INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into and effective as of this 8TH day of
DECEMBER, 1998 (the "Date of Grant"), by and between Xxx-Xxxxxxx Technologies
Inc., a Wyoming corporation (the "Company"), and XXXXXXX X. XXXXX (the
"Optionee").
A. The Company has adopted the Xxx-Xxxxxxx Technologies Inc. 1998
Stock Option Plan (the "Plan") authorizing the Board of Directors of the
Company, or a committee as provided for in the Plan (the Board or such a
committee to be referred to as the "Committee"), to grant incentive stock
options to employees of the Company and its Subsidiaries (as defined in the
Plan).
B. The Company desires to give the Optionee an inducement to acquire
a proprietary interest in the Company and an added incentive to advance the
interests of the Company by granting to the Optionee an option to purchase
shares of subordinate voting stock of the Company pursuant to the Plan.
Accordingly, the parties agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to the Optionee the right, privilege, and
option (the "Option") to purchase 600,000 shares (the "Option Shares") of the
Company's subordinate voting stock, no par value (the "Subordinate Voting
Stock"), according to the terms and subject to the conditions hereinafter set
forth and as set forth in the Plan. Subject to Section 10 of this Agreement,
the Option is intended to be an "incentive stock option," as that term is
used in Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2. OPTION EXERCISE PRICE.
The per share price to be paid by Optionee in the event of an
exercise of the Option will be $0.29 (US$).
3. DURATION OF OPTION AND TIME OF EXERCISE.
3.1 INITIAL PERIOD OF EXERCISABILITY. The Option will become
exercisable with respect to the Option Shares IMMEDIATELY WITH RESPECT TO 10%
OF THE TOTAL OPTION GRANT AND TWELVE QUARTERLY INSTALLMENTS THEREAFTER. The
following table sets forth the initial dates of exercisability of each
installment and the number of Option Shares as to which this Option will
become exercisable on such dates:
Initial Date of Number of Option Shares
Exercisability Available for Exercise
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01/21/98 100,000
04/21/98 QUARTERLY THROUGH 01/21/01 41,667
The foregoing rights to exercise this Option will be cumulative with
respect to the Option Shares becoming exercisable on each such date,
but in no event will this Option be exercisable after, and this Option
will become void and expire as to all unexercised Option Shares at,
5:00 p.m. (Lincolnshire, Illinois time) on APRIL 20, 2003 (the "Time of
Termination").
3.2 TERMINATION OF EMPLOYMENT.
(a) TERMINATION DUE TO DEATH, DISABILITY OR RETIREMENT.
(i) In the event the Optionee's employment with the
Company and all Subsidiaries is terminated by reason of death
or Disability, this Option will remain exercisable, to the
extent exercisable as of the date of such termination, for a
period of six months after such termination (but in no event
after the Time of Termination).
(ii) In the event the Optionee's employment with the
Company and all Subsidiaries is terminated by reason of
Retirement, this Option will remain exercisable, to the extent
exercisable as of the date of such termination, for a period
of three months after such termination (but in no event after
the Time of Termination).
(b) TERMINATION FOR REASONS OTHER THAN DEATH, DISABILITY OR
RETIREMENT. In the event that the Optionee's employment with the
Company and all Subsidiaries is terminated for any reason other than
death, Disability or Retirement, or the Optionee is in the employ of a
Subsidiary and the Subsidiary ceases to be a Subsidiary of the Company
(unless the Optionee continues in the employ of the Company or another
Subsidiary), all rights of the Optionee under the Plan and this
Agreement will immediately terminate without notice of any kind, and
this Option will no longer be exercisable; provided, however, that if
such termination is due to any reason other than termination by the
Company or any Subsidiary for "cause" (as defined in the Plan), this
Option will remain exercisable to the extent exercisable as of such
termination for a period of three months after such termination (but in
no event after the Time of Termination).
3.3 CHANGE IN CONTROL. If a Change in Control (as defined in the
Plan) of the Company occurs, this Option will become immediately exercisable
in full and will remain exercisable until the Time of Termination, regardless
of whether the Optionee remains in the employ of the Company or any
Subsidiary.
4. MANNER OF OPTION EXERCISE.
4.1 NOTICE. This Option may be exercised by the Optionee in whole or
in part from time to time, subject to the conditions contained in the Plan
and in this Agreement, by delivery, in person, by facsimile or electronic
transmission or through the mail, to the Company at its principal executive
office in Lincolnshire, Illinois (Attention: Chief Financial Officer), of a
written notice of exercise. Such notice must be in a form satisfactory to the
Committee, must identify the Option, must specify the number of Option Shares
with respect to which the Option is being exercised, and must be signed by
the person or persons so exercising the Option. Such
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notice must be accompanied by payment in full of the total purchase price of
the Option Shares purchased. In the event that the Option is being exercised,
as provided by the Plan and Section 3.2 above, by any person or persons other
than the Optionee, the notice must be accompanied by appropriate proof of
right of such person or persons to exercise the Option. As soon as
practicable after the effective exercise of the Option, the Optionee will be
recorded on the stock transfer books of the Company as the owner of the
Option Shares purchased, and the Company will deliver to the Optionee one or
more duly issued stock certificates evidencing such ownership.
4.2 PAYMENT. At the time of exercise of this Option, the Optionee
must pay the total purchase price of the Option Shares to be purchased
entirely in cash (including a check, bank draft or money order, payable to
the order of the Company); provided, however, that the Committee, in its sole
discretion, may allow such payment to be made, in whole or in part, by tender
of a promissory note (on terms acceptable to the Committee in its sole
discretion) or a Broker Exercise Notice or Previously Acquired Shares (as
such terms are defined in the Plan), or by a combination of such methods. In
the event the Optionee is permitted to pay the total purchase price of this
Option in whole or in part with Previously Acquired Shares, the value of such
shares will be equal to their Fair Market Value on the date of exercise of
this Option.
5. RIGHTS OF OPTIONEE; TRANSFERABILITY.
5.1 EMPLOYMENT. Nothing in this Agreement will interfere with or
limit in any way the right of the Company or any Subsidiary to terminate the
employment of the Optionee at any time, nor confer upon the Optionee any
right to continue in the employ of the Company or any Subsidiary at any
particular position or rate of pay or for any particular period of time.
5.2 RIGHTS AS A SHAREHOLDER. The Optionee will have no rights as a
shareholder unless and until all conditions to the effective exercise of this
Option (including, without limitation, the conditions set forth in Sections 4
and 6 of this Agreement) have been satisfied and the Optionee has become the
holder of record of such shares. No adjustment will be made for dividends or
distributions with respect to this Option as to which there is a record date
preceding the date the Optionee becomes the holder of record of such shares,
except as may otherwise be provided in the Plan or determined by the
Committee in its sole discretion.
5.3 RESTRICTIONS ON TRANSFER. Except pursuant to testamentary will
or the laws of descent and distribution or as otherwise expressly permitted
by the Plan, no right or interest of the Optionee in this Option prior to
exercise may be assigned or transferred, or subjected to any lien, during the
lifetime of the Optionee, either voluntarily or involuntarily, directly or
indirectly, by operation of law or otherwise. The Optionee will, however, be
entitled to designate a beneficiary to receive this Option upon such
Optionee's death, and, in the event of the Optionee's death, exercise of this
Option (to the extent permitted pursuant to Section 3.2(a) of this Agreement)
may be made by the Optionee's legal representatives, heirs and legatees.
5.4 BREACH OF CONFIDENTIALITY OR NON-COMPETE AGREEMENTS.
Notwithstanding anything in this Agreement or the Plan to the contrary, in
the event that the Optionee materially breaches the terms of any
confidentiality or non-compete agreement entered into with the Company or any
Subsidiary, whether such breach occurs before or after termination of the
Optionee's employment with the Company or any Subsidiary, the Committee in
its sole
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discretion may immediately terminate all rights of the Optionee under the
Plan and this Agreement without notice of any kind.
6. SECURITIES LAW AND OTHER RESTRICTIONS.
Notwithstanding any other provision of the Plan or this Agreement,
the Company will not be required to issue, and the Optionee may not sell,
assign, transfer or otherwise dispose of, any Option Shares, unless (a) there
is in effect with respect to the Option Shares a registration statement under
the Securities Act of 1933, as amended, and any applicable state or foreign
securities laws or an exemption from such registration, and (b) there has
been obtained any other consent, approval or permit from any other regulatory
body which the Committee, in its sole discretion, deems necessary or
advisable. The Company may condition such issuance, sale or transfer upon the
receipt of any representations or agreements from the parties involved, and
the placement of any legends on certificates representing Option Shares, as
may be deemed necessary or advisable by the Company in order to comply with
such securities law or other restrictions.
7. WITHHOLDING TAXES.
The Company is entitled to (a) withhold and deduct from future
wages of the Optionee (or from other amounts that may be due and owing to the
Optionee from the Company), or make other arrangements for the collection of,
all legally required amounts necessary to satisfy any federal, state or local
withholding and employment-related tax requirements attributable to the
Option, including, without limitation, the grant or exercise of this Option
or a disqualifying disposition of any Option Shares, or (b) require the
Optionee promptly to remit the amount of such withholding to the Company
before acting on the Optionee's notice of exercise of this Option. In the
event that the Company is unable to withhold such amounts, for whatever
reason, the Optionee agrees to pay to the Company an amount equal to the
amount the Company would otherwise be required to withhold under federal,
state or local law.
8. ADJUSTMENTS.
In the event of any reorganization, merger, consolidation,
recapitalization, liquidation, reclassification, stock dividend, stock split,
combination of shares, rights offering, divestiture or extraordinary dividend
(including a spin-off), or any other similar change in the corporate
structure or shares of the Company, the Committee (or, if the Company is not
the surviving corporation in any such transaction, the board of directors of
the surviving corporation), in order to prevent dilution or enlargement of
the rights of the Optionee, will make appropriate adjustment (which
determination will be conclusive) as to the number and kind of securities or
other property (including cash) subject to, and the exercise price of, this
Option.
9. SUBJECT TO PLAN.
The Option and the Option Shares granted and issued pursuant to
this Agreement have been granted and issued under, and are subject to the
terms of, the Plan. The terms of the Plan are incorporated by reference in
this Agreement in their entirety, and the Optionee, by execution of this
Agreement, acknowledges having received a copy of the Plan. The provisions of
this Agreement will be interpreted as to be consistent with the Plan, and any
ambiguities in this
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Agreement will be interpreted by reference to the Plan. In the event that any
provision of this Agreement is inconsistent with the terms of the Plan, the
terms of the Plan will prevail.
10. INCENTIVE STOCK OPTION LIMITATIONS.
10.1 LIMITATION ON AMOUNT. To the extent that the aggregate Fair
Market Value (determined as of the date of grant) of the shares of
Subordinate Voting Stock with respect to which incentive stock options
(within the meaning of Section 422 of the Code) are exercisable for the first
time by the Optionee during any calendar year (under the Plan and any other
incentive stock option plans of the Company or any subsidiary or parent
corporation of the Company (within the meaning of the Code)) exceeds $100,000
(or such other amount as may be prescribed by the Code from time to time),
such excess incentive stock options will be treated as non-statutory stock
options in the manner set forth in the Plan.
10.2 LIMITATION ON EXERCISABILITY; DISPOSITION OF OPTION SHARES .
Any incentive stock option that remains unexercised more than one year
following termination of employment by reason of Disability or more than
three months following termination for any reason other than death or
Disability will thereafter be deemed to be a non-statutory stock option. In
addition, in the event that a disposition (as defined in Section 424(c) of
the Code) of shares of Subordinate Voting Stock acquired pursuant to the
exercise of an incentive stock option occurs prior to the expiration of two
years after its date of grant or the expiration of one year after its date of
exercise (a "disqualifying disposition"), such incentive stock option will,
to the extent of such disqualifying disposition, be treated in a manner
similar to a non-statutory stock option.
10.3 NO REPRESENTATION OR WARRANTY. Section 422 of the Code and the
rules and regulations thereunder are complex, and neither the Plan nor this
Agreement purports to summarize or otherwise set forth all of the conditions
that need to be satisfied in order for this Option to qualify as an incentive
stock option. In addition, this Option may contain terms and conditions that
allow for exercise of this Option beyond the periods permitted by Section 422
of the Code, including, without limitation, the periods described in Section
10.2 of this Agreement. Accordingly, the Company makes no representation or
warranty regarding whether the exercise of this Option will qualify as the
exercise of an incentive stock option, and the Company recommends that the
Optionee consult with the Optionee's own advisors before making any
determination regarding the exercise of this Option or the sale of the Option
Shares.
11. MISCELLANEOUS.
11.1 BINDING EFFECT. This Agreement will be binding upon the heirs,
executors, administrators and successors of the parties to this Agreement.
11.2 GOVERNING LAW. This Agreement and all rights and obligations
under this Agreement will be construed in accordance with the Plan and
governed by the laws of the State of Wyoming, without regard to conflicts of
laws provisions. Any legal proceeding related to this Agreement will be
brought in an appropriate Illinois court, and the parties to this Agreement
consent to the exclusive jurisdiction of the court for this purpose.
11.3 ENTIRE AGREEMENT. This Agreement and the Plan set forth the
entire agreement and understanding of the parties to this Agreement with
respect to the grant and exercise of this
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Option and the administration of the Plan and supersede all prior agreements,
arrangements, plans and understandings relating to the grant and exercise of
this Option and the administration of the Plan.
11.4 AMENDMENT AND WAIVER. Other than as provided in the Plan, this
Agreement may be amended, waived, modified or canceled only by a written
instrument executed by the parties to this Agreement or, in the case of a
waiver, by the party waiving compliance.
The parties to this Agreement have executed this Agreement
effective the day and year first above written.
XXX-XXXXXXX TECHNOLOGIES INC.
By /s/ Xxxxxxx X. Xxxxxxxxx
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Its CFO
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By execution of this Agreement, OPTIONEE
the Optionee acknowledges having
received a copy of the Plan. /s/ Xxxxxxx X. Xxxxx
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(Signature)
1173 RFD
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(Name and Address)
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XXXX XXXXX, XX 00000
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