25,000 SHARES EXERCISE PRICE: $.50
STOCK OPTION AGREEMENT - XXXXXXXX
THIS STOCK OPTION AGREEMENT - XXXXXXXX (the "Option Agreement") made and
effective as of the 22nd day of October, 1997 (the "Effective Date"), between
THERMO-TILT WINDOW COMPANY, herein referred to as the "CORPORATION", being
incorporated under the laws of the State of Delaware, maintaining its principal
place of business at 0000 Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000; and XXXXXX X.
XXXXXXXX, herein referred to as "CONSULTANT", of c/o Pine South Capital, 000
Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, the variety of services rendered by Consultant, including general
business, management and business opportunity evaluation, merger and acquisition
location and structuring services, represents an important and valuable aid to
the conduct of the Corporation's business enterprise, and as such Corporation
deems it to be in the best interests of the Corporation to secure the services
of Consultant; and
WHEREAS, the Corporation desires to enter into this Option Agreement with the
Consultant containing the terms and conditions hereinafter set forth, and to
grant to Consultant an option to purchase shares of the Common Stock of the
Corporation.
NOW, THEREFORE, in consideration of the promises and mutual agreements of the
parties herein contained, and for other good and valuable consideration, the
parties agree as follows:
1. GRANT OF OPTION. In consideration of the foregoing, the Corporation
hereby grants and issues to Consultant the right at the election of the
Consultant (hereinafter referred to as the "Option") to purchase up to an
aggregate of 25,000 Shares of Common Stock ($.001 par value) of the Corporation
at a price of $.50 per share all of which Options shall be exercisable, in whole
or in part, at any time from a period commencing twelve months from the
Effective Date hereof and ending sixty (60) months from the Effective Date
hereof (the "Expiration Date").
1.1 ANTI-DILUTION PROVISION. The number of shares underlying the
option shall be proportionately increased in the event that the Corporation
causes to be issued additional Shares in the form of a stock dividend, stock
splits, option exercise at less than book value (with the exception of the
exercise of options under (i) the Stock Option Agreement - Xxxxxxxx, dated
October 22, 1997, by and between the Corporation and Xxxxxxx X. Xxxxxxxx, (ii)
the Stock Option Agreement - Xxxxxxxx, dated October 22, 1997, by and between
the Corporation and Xxxxx Xxxxxxxx, and (iii) the Stock Option Agreement - LD
Capital,
Inc., dated October 22, 1997, by and between the Corporation and LD Capital,
Inc.) or other such reclassification; or conversely, proportionately
decreased in the event of a reverse split or reclassification. In the event
that stockholders of the Corporation are granted the right to purchase
additional shares from the proceeds of a cash dividend by the Corporation,
such event shall be treated as a stock dividend as relates to the option.
2. METHOD OF EXERCISING OPTION. The Option may be exercised, in whole,
or in part at any time prior to 3:00 p.m. Owensboro, Kentucky Time on the
Expiration Date, by giving written notice to the Corporation to that effect.
The Option evidenced hereby shall be exercisable by the delivery to and receipt
by the Corporation of (a) this original Option Agreement (b) a written Notice of
Election to Exercise (the "Notice of Election") in the form set forth on the
Schedule I to Option Agreement, to this option, attached hereto and incorporated
herein by reference, specifying the number of Shares to be purchased in not less
than one thousand (1,000) share denominations (c) payment of the full purchase
price, either by federal funds wire transfer to the bank depository to be
specified by the Corporation or by certified check, U.S. funds, payable to the
order of the Corporation, or on such other terms as may be acceptable to the
Corporation. If the Notice of Exercise is for less than the total of 25,000
Shares, and the time for exercise has not expired, the Corporation shall provide
the Consultant with a new or revised Option Agreement for the balance of the
Shares then remaining unexercised, upon the same terms and conditions as stated
herein.
3. CORPORATION'S REPRESENTATION. The Corporation represents that it will
use its best efforts to prepare, file, and maintain with the appropriate
regulatory authorities an effective Registration Statement on Form S-8 (the
"Form S-8"), or other applicable form, for the shares of its Common Stock
underlying the Option granted by this Option Agreement, such Form S-8 to allow
for the immediate resale of the shares subject to the Option Agreement, but only
at such time as the Corporation is in compliance with the requirements to use
the Form S-8.
4. RESTRICTION AGAINST ASSIGNMENT. Except as otherwise expressly
provided above, Consultant agrees that this Option Agreement and the rights,
interests and benefits under it shall not be assigned, transferred, pledged, or
hypothecated in any way by Consultant or any other person claiming under
Consultant by virtue hereof. Such rights, interests or benefits shall not be
subject to execution, attachment, or similar process. Any attempted assignment,
transfer, pledge, or hypothecation, or other disposition of this Option
Agreement or of such rights, interests, and benefits contrary to the preceding
provisions, or
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the levy or any attachment or similar process thereupon, shall be null and
void and without any legal effect.
5. NOTICES. All notices required to be given by either party shall be in
writing and delivered by registered, certified or overnight express mail, return
receipt requested, to the party being noticed at the address set forth in the
first paragraph of this Option Agreement. Any notice to the Corporation shall
be addressed to the attention of the President. Either party may effect a
change in such address by a prior written notice.
6. BINDING ACCEPTANCE. By acceptance of this signed Option Agreement,
the Consultant does hereby agree to be bound by all of the terms and conditions
set forth herein.
7. GOVERNING LAW. This Option Agreement shall be construed under the
laws of the Commonwealth of Kentucky.
8. TOTAL AGREEMENT. This Option Agreement is the entire agreement
between the parties hereto relating to the subject matter hereof. This Option
Agreement rescinds any and all prior agreements and understandings between the
parties with respect to the subject matter covered in this Option Agreement
IN WITNESS WHEREOF, the Corporation has executed this Option Agreement by its
duly authorized corporate officer as of the date set forth above.
"Corporation"
THERMO-TILT WINDOW COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx,
President
Accepted by:
"Consultant"
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
XXXXXX X. XXXXXXXX
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SCHEDULE I TO OPTION AGREEMENT
NOTICE OF ELECTION TO EXERCISE
TO: Thermo-Tilt Window Company
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
The Undersigned Purchaser hereby elects to purchase ____ shares (the "Shares")
of the Common Stock ($.001 par value) of Thermo-Tilt Window Company (the
"Corporation") pursuant to the terms of the Stock Option Agreement - Xxxxxxxx
(the "Option"), dated as of October 22, 1997, by and between the undersigned and
the Corporation, (which Option must be surrendered with this Notice of Election
To Exercise).
Payment In Full (U.S. Funds) is hereby tendered in the aggregate sum of
$______________, which sum represents Shares (maximum 25,000) times the per
Share purchase price of $.50 by:
( ) Certified Check or ( ) Federal Funds Wire Transfer to the
Corporation's depository bank in accordance with your prior written
instructions.
( ) By Delivery vs Payment at:_________________________________________
or Account #:_______________________________________
You are hereby requested to issue a certificate representing the Shares in the
name(s), and to the address(es) as specified below:
Name:________________________________________________________________________
Street:________________________________________Number of Shares:_____________
City:_______________________________State:_________Zip:______________________
Social Security or Tax I.D. Number:_____________________________________
Purchaser acknowledges that no formal memorandum, prospectus or offering
document of any kind has been delivered by the Corporation with specific regard
to this Option exercise. However, by virtue of the Purchaser's consulting
relationship with, and activities on behalf of the Corporation, sufficient
business and other information has been made available by the Corporation to
enable Purchaser to fully evaluate the investment potential of the Shares being
acquired. The Corporation's representatives have provided information and
answered all material questions.
Date:_________________________, _____ _______________________________________
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If no registration statement as to the Option and the Shares is effective as of
the date of exercise, include the following paragraph:
The purchaser represents and warrants that it is purchasing the Shares for
investment and not with a view to distribution thereof and understands and
acknowledges that the Stock Certificate(s) representing the Shares shall bear
the following legend:
The shares represented by this certificate have
not been registered or qualified for sale under
the Securities Act of 1933, as amended (the "Act"),
or any state securities or blue sky laws, and may
not be sold, transferred or otherwise disposed of
except pursuant to an exemption from registration
or qualification thereunder. The Corporation may
require, as a condition to transfer of this
certificate, an opinion of counsel satisfactory to
the Corporation to the effect that such transfer
will not be in violation of the Act or any such laws.
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