EXHIBIT 4.18
STOCK OPTION AGREEMENT
EFFECTIVE DATE: March 31, 2000
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PLACE: Tempe, Arizona
PARTIES: RECONDITIONED SYSTEMS, INC., an Arizona corporation
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(the "Company"), and Xxxx X. Xxxxxxxx ("Optionee")
RECTIALS:
The Company desires to issue to Optionee options to acquire up
to 2,000 shares of the Company's no par value common stock ("Common Stock").
Capitalized terms not otherwise defined herein shall have the same meaning as
ascribed to them in the Employment Agreement between the Company and the
Optionee dated August 10, 1995.
AGREEMENTS:
In consideration of the mutual promises herein contained, the
parties agree as follows:
1. Grant of Option. The Company hereby irrevocably grants
to Optionee the right and option (the "Option") to purchase all or any part
of an aggregate of up to two thousand shares (2,000) of Common Stock (the
"Shares") on the terms and conditions set forth in this Agreement.
2. Purchase Price. The purchase price of the Shares acquired
pursuant to the exercise of an Option shall be Two dollars and sixty two and one
half cents ($2.625) per Share, which is equal to or greater than the market
value per share on the effective date of this grant. The purchase price shall be
paid in the manner set forth in Paragraph 11.
3. Vesting. Optionee's right to acquire Shares pursuant to
the exercise of the Option as provided herein shall be fully vested as of the
date hereof; provided, however, that Optionee hereby agrees not to sell,
assign, transfer, pledge, hypothecate or otherwise dispose of any Shares
acquired upon exercise of this Option for a period of twelve (12) months
following the Effective Date of this Option.
4. Term of Option. Subject to earlier termination of the
Option as provided in Paragraphs 7, 8 and 9 hereof, shall terminate as of the
date ten (10) years after the Effective Date of Grant.
5. Exercise of the Option. Subject to earlier termination of
the Option as provided in Paragraphs 7, 8 and 9 hereof, and to the lock-up
provisions contained in Paragraph 3 hereof, Optionee may exercise the Option
from time to time as to any part or all of the Shares covered hereby.
6. Nontransferability. The Option shall not be transferable
otherwise than by will or the laws of descent and distribution, and the Option
may be exercised, during the lifetime of Optionee, only by Optionee. More
particularly, but without limiting the generality of the foregoing, and except
as otherwise specified, the Option may not be sold, assigned, transferred,
pledged, hypothecated, or disposed of in any manner, shall not be assignable by
operation of law, and shall not be subject to execution, attachment, or similar
process. Any attempted sale, assignment, transfer, pledge, hypothecation, or
other disposition contrary to the provisions hereof, and the levy of execution,
attachment, or similar process upon the Option, shall be null and void and
without effect.
7. Termination of Employment. Effect on Employment. If the
employment of Optionee is terminated (otherwise than by reason of death), the
Option may be exercised at any time within three (3) months after the date of
termination, but not more than ten (10) years from the date hereof. To the
extent the Option has not been exercised by such time, the Option shall
terminate. Nothing in this Agreement shall confer upon Optionee any right to
continue in the employ of the Company or any parent or subsidiary of the Company
or interfere in any way with the right of the Company or any parent or
subsidiary of the Company to terminate Optionee's employment at any time.
8. Death of Optionee. If Optionee dies while employed by the
Company or within three (3) months after the termination of his employment, the
Option may be exercised by the legal representative of his estate, or by any
person or persons who shall have acquired the Option directly from Optionee by
bequest or inheritance, at any time within one (1) year after the date of his
death, but not more than ten (10) years from the date hereof. To the extent the
Option has not been exercised by such time, the Option shall terminate.
9. Dissolution or Liquidation of Company. In the event of the
proposed dissolution or liquidation of the Company, or in the event of a
proposed sale of substantially all of the assets of the Company, or in the event
of a merger or consolidation with another corporation in any manner in which the
Company is not the surviving corporation and the surviving corporation does not
agree to assume the Option granted hereunder, the Option will terminate
immediately before the consummation of such proposed action, unless sooner
terminated as of a date fixed by the Board of Directors, in which event Optionee
shall be given the right to exercise the Option as to all or any part of the
Shares subject to this Agreement.
10. Rights as Stockholders. Optionee shall not by reason of
the Option have any rights as a stockholder of the Company until Optionee shall,
from time to time, have exercised the Option, and, upon each such exercise,
Optionee shall have, with respect to the number of Shares as to which the Option
is then exercised, all rights of a stockholder of record from the date of such
exercise, irrespective of whether certificates to evidence the Shares with
respect to which the Option was exercised shall have been issued on such date.
11. Method of Exercising.
(a) Notice of Exercise/Payment of Purchase Price
. Subject to the terms and conditions of this Agreement, the Option may
be exercised by written notice to the Secretary of the Company, at the
Company's main office, or at such other address as the Company, by written
notice to Optionee, may designate from time to time. Such notice shall state
the election to exercise the Option and the number of Shares in respect of
which the Option is being exercised, and shall besigned by the person or persons
exercising the Option. Such notice shall be accompanied by payment of the
full purchase price of such Shares, by cashier's or certified check, or by
such other form of consideration, if any, as may be approved by the Company's
Board of Directors. In addition to the foregoing, the purchase price for the
Shares may be paid through a sale and remittance procedure by with
Optionee shall provide concurrent irrevocable written instructions to: (i)
a Company designated brokerage firm to effect the immediate sale of the
purchased Shares and remit to the Company, out of the sale proceeds available
on the settlement date, sufficient funds to cover the purchase price for the
Shares acquired pursuant to exercise of the Option, and (ii) the Company to
deliver the certificates for the purchased Shares directly to the brokerage
firm to complete the sale transaction.
(b) Stock Certificates. Upon the exercise of an
Option, the Company shall deliver a certificate or certificates
representing any Shares acquired hereunder as soon as possible after the
notice and payment shall be received. Except if issued through the sales and
remittance procedure described in Paragraph 11(a), the certificate or
certificates for the Shares as to which the Option shall have been so
exercised shall be registered in the name of Optionee or in the name of any
other person or entity specified in writing by the Optionee. If an Option
shall be exercised by the legal representative of Optionee's estate, or by
any person or persons who shall have acquired the Option directly form
Optionee as a result of Optionee's death, whether by bequest, inheritance,
or otherwise, such notice shall be accompanied by appropriate proof of
the right of such person or persons to exercise the Option. All Shares that
shall be purchased upon the exercise of an Option as provided herein shall be
fully paid and nonassessable.
12. Reservation of Shares. The Company shall at all times
during the term of the Option reserve and keep available such number of shares
of Common Stock as will be sufficient to satisfy the requirements of this
Agreement, shall pay all fees, expenses, and taxes necessarily incurred by the
Company in connection therewith, and shall, from time to time, use its good
faith efforts to comply with all laws, rules, and regulations which, in the
opinion of counsel for the Company , shall be applicable thereto.
13. Registration of Shares. The Company shall register the
Shares issuable upon exercise of the Option with the Securities and Exchange
Commission (the "Commission") by filing a Registration Statement on Form S-8
with the Commission.
14. Adjustment of Recapitalization. In the event of any stock
dividend, stock split, combination of shares, recapitalization or other change
in the capital structure of the Company or any merger, consolidation, spin-off,
split-up, reorganization, partial or complete liquidation or other distribution
of assets, issuance of warrants or other rights to purchase securities or any
other corporate transaction or event having an effect similar to any of the
foregoing, appropriate adjustments shall be made by the Board of Directors of
the Company to the number and kind of Shares and the price per Share subject to
this Agreement.
15. Taxes. Optionee agrees, no later than the date as of which
the value of an Option or Shares acquired pursuant to this Agreement first
becomes includible in the gross income of Optionee for federal income tax
purposes, to pay to the Company or make arrangements satisfactory to the Company
regarding payment of, any federal, state or local taxes of any kind required by
law to be withheld with respect to the Option or such Shares. The obligations of
the Company under this Agreement shall be conditional on such payment or
arrangements, and the Company shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to
Optionee.
16. Action Taken in Good Faith. No member of the Board of
Directors, nor any officer or employee of the Company acting on behalf of the
Board, shall be personally liable for any action, determination or
interpretation taken or made in good faith with respect to this Agreement.
17. Miscellaneous.
(a) Waiver. The waiver of any provision
of this Agreement will not be effective unless in writing and executed by
the party against whom enforcement of the waiver is sought.
(b) Entire Agreement.This Agreement constitutes
the entire integrated agreement among the parties pertaining to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements, representations, and understandings of the parties. This Agreement
may not be amended except by written instrument executed by the parties.
(c) Arbitration. Any dispute or controversy
arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three (3) arbitrators
in Phoenix, Arizona in accordance with the rules of the American Arbitration
Association then in effect. The decision of the arbitrators shall be final and
binding on the parties, and judgment may be entered on the
arbitrator's award in any court having jurisdiction. The costs and expenses of
such arbitration, including but not limited to attorneys' and other
professionals' fees, shall be borne in accordance with the determination or the
arbitrators.
(d) Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of Arizona
without regard to its conflict of law principles.
(e) Severability. If any provisions of this
Agreement is held to be unenforceable by a court of competent jurisdiction,
the remainder of this Agreement shall be severable and not affected thereby.
(f) Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
(g) Delays or Omissions. No delay or
omission to exercise any right, power, or remedy accruing to any party
hereunder or any breach or default under this Agreement shall impair any such
right, power, or remedy, nor shall it be construed as a waiver of or
acquiescence to any single breach or default be deemed a waiver of any other
breach or default occurring before or after the waiver. Any waiver, permit,
consent, or approval of any kind of any breach or default under this Agreement
must be in writing and shall be effective only to the extent specifically stated
in such writing. All remedies either under this Agreement or by law or otherwise
afforded to any party shall be cumulative.
(h) Headings. The headings in this
Agreement have been inserted for convenience only and shall not affect the
meaning or interpretation of any provision in this Agreement.
(i) Assignment. The rights and obligations
of the Company and Optionee hereunder shall inure to the benefit of and shall
be binding on their successors and assigns.
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement effective as of the day and year first above written.
COMPANY: OPTIONEE:
RECONDITIONED SYSTEMS, INC.,
An Arizona corporation
By /S/ Xxxx X. Xxxxxxxx /S/ Xxxxx X. Xxxx
____________________________________ ___________________________
Xxxxx X. Xxxx, Chairman Xxxx X. Xxxxxxxx
