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EXHIBIT 4.3
CENTRUM INDUSTRIES, INC.
STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the 10th day of June,1998, by and between
Centrum Industries, Inc., a Delaware corporation ("Centrum") and ______________
("Employee").
NOW THEREFORE, in consideration of the mutual covenants contained in
this Agreement, the parties hereto agree as follows:
SECTION 1 - GRANT OF OPTION. Centrum hereby grants to Employee the
right and option to purchase from it, on the following terms and conditions, all
or any part of an aggregate of _____________________________________ (_______)
shares of Centrum's common stock $.05 par value (the "Shares"). The purchase
price for all Shares shall be Two and 00/100 Dollars ($2.00) per share,
exercisable and payable as hereinafter provided. This price per share represents
the fair market value for these shares as of this date, as determined by
Centrum's Board of Directors.
SECTION 2 - EXERCISE OF OPTION; CHANGE OF CONTROL. The Employee may
elect to exercise the option at any time. Notwithstanding the above, if
Centrum's officers or directors execute a letter of intent (binding or
non-binding) by which Centrum will become a party to a transaction which will
effect a "Change of Control" of Centrum, Employee must exercise his/her options
within the thirty (30) day period following the date of notice to Employee that
a letter of intent has been entered into, or else the option and all rights
granted by this Agreement, to the extent those rights have not been exercised,
will terminate and become null and void. No partial exercise of such option may
be for less than one (1) full Share. For purposes of this Agreement "Change of
Control" shall be effected if (i) Centrum merges with or into or consolidates
with another corporation following the requisite approval of the shareholders of
Centrum of such merger or consolidation and, after giving effect to such merger
or consolidation, less than fifty-one (51%) of the then outstanding voting
securities of the surviving or resulting corporation represent or were issued in
exchange for voting securities of Centrum outstanding immediately prior to such
merger or consolidation; (ii) there is a sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all or substantially
all the assets of Centrum following the requisite approval of the shareholders
of Centrum of such transaction or series of transactions; or (iii) the requisite
approval of the shareholders of Centrum is obtained to approve any plan or
proposal for the liquidation or dissolution of Centrum. The option shall be
exercisable only by Employee during his/her lifetime and only if Employee was an
employee of Centrum or a Centrum affiliate on the date three (3) months prior to
the date of exercise. If Employee is disabled within the meaning of Section
22(e)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), the
reference to the three (3) month period above shall be read as one (1) year.
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SECTION 3 - METHOD OF EXERCISE. The option granted under this Agreement
shall be exercisable as provided above, upon written notice to Centrum and the
payment in cash to Centrum of the full purchase price of the Shares which the
Employee elects to purchase.
SECTION 4 - TERMINATION OF EMPLOYMENT. In the event that an Employee
shall cease to be employed by Centrum or a Centrum affiliate, whether
voluntarily or involuntarily, for any reason other than death or disability, all
of Employee's rights to further exercise his/her option(s) shall expire three
(3) months after the date of termination of employment; provided, however, that
no option shall be exercisable after the expiration date set forth in Section 6.
A leave of absence with the express written consent of Centrum shall not be
considered termination of employment for purposes of this Section 4.
SECTION 5 - DEATH OR DISABILITY OF EMPLOYEE. In the event of the death
or disability of an Employee while employed by Centrum or a Centrum affiliate,
his/her right to purchase Shares may be exercised (to the extent that Employee
was entitled to do so at the date of his/her death or disability) by him/her or,
in the case of the death of Employee, by his/her personal representative or by
any person or persons who shall have acquired the option directly from Employee
by will or by the laws of descent and distribution, at any time within three (3)
months after the date of his/her death or disability; provided that if an
Employee is disabled as defined in Section 2 of this Agreement, the three (3)
month period referred to above shall be read as one (1) year. Notwithstanding
anything herein to the contrary, no option shall be exercisable after the
expiration of the term of the option set forth in Section 6.
SECTION 6 - TERMINATION OF OPTION. The option and all rights granted by
this Agreement, to the extent those rights have not been exercised will
terminate and become null and void at 5:00 p.m. on June 10, 2008.
SECTION 7 - SHARES AS INVESTMENT. By accepting this option, the
Employee acknowledges that any and all Shares purchased pursuant to the exercise
of the option under this Agreement shall be acquired for investment and not for
distribution, and upon the delivery of any and all of the Shares due to the
exercise of the option granted hereunder, the Employee shall deliver to Centrum
a representation in writing and in a form acceptable to Centrum that such Shares
are being acquired in good faith for investment and not for distribution. This
Section 7 shall not apply in the event that the Shares have been registered
pursuant to the Securities Act of 1933 and applicable state securities laws.
SECTION 8 - RESTRICTIONS ON SHARES. Initially, the Shares issued
pursuant to the exercise of the option granted in Section 1 may not be
registered under federal securities laws or the securities of any state and may,
therefore, be deemed restricted and certain restrictions will be applicable upon
the resale of such security. Each Share may, upon issuance, contain a
restrictive legend in substantially the following form:
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The common stock represented by this certificate has not been
registered under the Securities Act of 1933, as amended or
under the securities laws of any state. Each holder desiring
to transfer the common stock must furnish Centrum with a
written opinion reasonably satisfactory to Centrum in the form
and substance from counsel reasonably satisfactory to Centrum
by reason of experience to the effect that the holder may
transfer the common stock as desired without registration
under the Securities Act or the securities laws of any state.
It is Centrum's present intention to file a registration statement with the
Securities and Exchange Commission to register this option and the underlying
Shares in the near future. This Section 8 will not apply in the event that the
Shares have been registered pursuant to the Securities Act of 1933 and
applicable state securities laws.
SECTION 9 - DILUTION OR OTHER AGREEMENT. In the event that additional
Shares are issued pursuant to a stock split or a stock dividend, the number of
Shares then covered by each outstanding option granted hereunder shall be
increased proportionately with no increase in the total purchase price of the
Shares then so covered. If the issued and outstanding Shares are reduced by a
reverse stock split or other combination of Shares, (other than by a transaction
described in Section 2 of this Agreement), the number of Shares then covered by
each outstanding option granted hereunder shall be reduced proportionately with
no reduction in the total price of the Shares then so covered. In the event that
Centrum should transfer assets to another corporation and distribute the stock
of such other corporation without the surrender of Shares, and if such
distribution is not taxable as a dividend and no gain or loss is recognized by
reason of Section 355 of the Code, or some similar section, then the total
purchase price of the Shares shall be reduced by an amount which bears the same
ratio to the total purchase price then in effect as the market value of the
stock distributed with respect to the Shares immediately following the
distribution, bears to the aggregate of the market value of such time of a Share
and the stock distributed in respect thereof. No fractional shares shall be
issued, and any fractional Shares resulting from the computations pursuant to
this Section 9, shall be eliminated from the option. No adjustment shall be made
for cash dividends or the issuance to stockholders of rights to subscribe for
additional Shares or other securities.
SECTION 10 - RIGHT OF SHAREHOLDER. The Employee shall not have any
rights or privileges of a shareholder of Centrum in respect with the Shares
transferable upon exercise of the option granted under this Agreement, unless
and until certificates representing such Shares shall have been endorsed,
transferred, and delivered and the transferee has caused his/her name to be
entered as the shareholder of record on the books of Centrum.
SECTION 11 - NON-TRANSFERABILITY. The option shall not be transferable
and the option may be exercised, during the lifetime of the Employee only by
him/her.
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Except as specifically provided in this Agreement, the option may not
be assigned, transferred, pledged or hypothecated in any way, shall not be
assignable by operation of law, including but not limited to a decree in a
domestic relations proceeding, and shall not be subject to execution, attachment
or similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the option, and the levy of any execution, attachment, or
similar process upon the option in violation of this Agreement, shall be null
and void and without effect.
SECTION 12 - AFFILIATE. As used herein, the term "affiliate" shall mean
any present or any future corporation which would be deemed an affiliate of
Centrum in Rule 12b-2 of the regulations promulgated pursuant to the Securities
Exchange Act of 1934.
SECTION 13 - NONCOMPETITION. Employee acknowledges and agrees that in
the performance of his duties of employment with Centrum and/or any subsidiary
(collectively and individually the "Employers") he may be in contact with
customers, potential customers and/or information about customers or potential
customers of the Employers either in person, through the mails, by telephone or
by other electronic means. Employee also acknowledges and agrees that trade
secrets and confidential information of the Employers, more fully described in
paragraph 13(c) of this Agreement, gained by Employee during his employment with
the Employers, have been developed by the Employers through substantial
expenditures of time, effort and financial resources and constitute valuable and
unique property of the Employers. Employee further understands, acknowledges and
agrees that the foregoing makes it necessary for the protection of the
Employers' businesses that Employee not divert business or customers from the
Employers and that the Employee maintain the confidentiality and integrity of
the Confidential Information as hereinafter as defined:
(a) Employee agrees that he will not, during his employment by
the Employers and for a period of one year after such employment ends,
whether by action of the Employee or the Employers (the "Business
Protection Period"):
(i) solicit, divert, entice or take away any
customers, business, patronage or orders of the Employers with
whom the Employee has had contact, involvement or
responsibility during his or her employment with the
Employers, or attempt to do so, for the sale of any product or
service that competes with a product or service offered by the
Employers; or
(ii) solicit, divert, entice or take away any
potential customer identified, selected or targeted by the
Employers with whom the Employee has had contact, involvement
or responsibility during his or her employment with the
Employers, or attempt to do so, for the sale of any product or
service that competes with a product or service offered by the
Employers.
Nothing contained in this paragraph 13(a) shall preclude
Employee from accepting employment with a company, firm, or
business that competes with the Employers so long as the
Employee's activities do not violate the
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provisions of subparagraph 13(a)(i) and 13(a)(ii) above or
any of the provisions of paragraphs 13(b) and 13(c) below.
(b) Employee agrees that he will not directly or indirectly at
any time during the Business Protection Period solicit or induce or
attempt to solicit or induce any employee of the Employers to terminate
his or her employment, representation or other association with the
Employers.
(c) Employee will keep in strict confidence, and will not,
directly or indirectly, at any time during or after the term of this
Agreement, disclose, furnish, disseminate, make available or use
(except in the course of performing his duties of employment with the
Employers) any trade secrets or confidential business or technical
information of the Employers or their customers (the "Confidential
Information"), without limitation as to when or how Employee may have
acquired such information. The Confidential Information shall include
the whole or any portion or phase of any scientific or technical
information, design, process, procedure, formula, pattern, compilation,
program, device, method, technique or improvement, or any business
information plans, financial information, or listing of names,
addresses or telephone numbers, including without limitation,
information relating to the Employers' customers or prospective
customers, the Employers' customer list, contract information including
terms, pricing and services provided, information received as a result
of customer contacts, the Employers' products and processing
capabilities, methods of operation, business plans, financials or
strategy, and agreements to which the Employers may be a party. The
Confidential Information shall not include information that is or
becomes publicly available other than as a result of disclosure by the
Employee. Employee specifically acknowledges that the Confidential
Information, whether reduced to writing or maintained in the mind or
memory of Employee and whether compiled by the Employers and/or
Employee, derives independent economic value from not being readily
known to or ascertainable by proper means by others who can obtain
economic value from its disclosure or use, that reasonable efforts have
been put forth by the Employers to maintain the secrecy of such
information, that such information is the sole property of the
Employers and that any retention and use of such information during or
after the Employee's employment with the Employers (except in the
course of performing his duties of employment with the Employers) shall
constitute a misappropriation of the Employers' trade secrets. Employee
further agrees that, at the time of termination of his employment he
will return to the Employers, in good condition, all property of the
Employers, including, without limitation, the Confidential Information.
In the event that said items are not so returned, the Employers shall
have the right to charge Employee for all reasonable damages, costs,
attorney's fees and other expenses incurred in searching for, taking,
removing, and/or recovering such property. In the event that the
Employee is advised in writing by his legal counsel that he is required
by subpoena or other legal process to disclose any of the Confidential
Information, he shall promptly notify the Employers of this situation
and he shall promptly provide the Employers with a copy of the written
advice of legal counsel so that the Employers may seek a protective
order or other appropriate remedy. If a
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protective order or other appropriate remedy is not obtained in a
easonable period of time, the Employee may furnish only that portion
of the Confidential Information that he is advised by his legal
counsel is legally required.
SECTION 14 - NOTICES. Any notice to be given under the terms of this
Agreement shall be addressed to Centrum in care of its President at 0000 Xxxxx
Xxxxx, Xxxxx 000X, Xxxxxxx, Xxxx 00000 with a copy to Xxxx X. Xxxxxxx XX, Esq.,
Xxxxxx & Xxxxx P.L.L., One SeaGate, 00xx Xxxxx, X. X. Xxx 0000, Xxxxxx, Xxxx
00000 and any notice to be given to Employee shall be addressed to him/her at
the address set forth beneath his/her signature below, or at such other address
as either party may hereafter designate in writing to the other. Any such notice
shall be deemed duly given when mailed by prepaid regular, registered, or
certified mail.
SECTION 15 - BINDING EFFECT. This Agreement shall be binding upon
Employee and his/her executors administrators, and representatives and assigns,
and upon Centrum and its successors and assigns.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
set forth above.
CENTRUM INDUSTRIES, INC.
By:
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Xxxxxx X. Xxxxx, Chairman of the Board,
Chief Executive Officer and President
"EMPLOYEE"
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EMPLOYEE'S ADDRESS FOR NOTICE PURPOSES:
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