STOCK OPTION AGREEMENT
AGREEMENT made as of the 5th day of May, 1998, by and between
ENVIRO-RECOVERY, INC., a Texas corporation ("Company"), and Xxxxx Xxxxxx
("Employee").
WHEREAS, the Company and Employee have entered into an
employment Agreement of even date herewith pursuant to which employee will be
employed by the Company ("Employment Agreement");
WHEREAS, on May 5, 1998 ("Grant Date"), the Board of Directors
of the Company ("Board") authorized the grant to the Employee of an option
("Option") to purchase an aggregate of 5,000,000 shares of the authorized but
unissued Common Stock of the Company ("Common Stock"), conditioned upon the
Employee's acceptance thereof upon the terms and conditions set forth in this
Agreement; and
WHEREAS, the Employee desires to acquire the Option on the
terms and conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants the
Employee the Option to purchase all or any part of an aggregate of 5,000,000
shares of Common Stock ("Option Shares") on the terms and conditions set forth
herein.
2. Non-Incentive Stock Option. The Option represented
hereby is not intended to be an Option which qualifies as an "Incentive Stock
Option" under Section 422 of the Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option is
$.10 per share, subject to adjustment as hereinafter provided.
4. Exercisability. This Option is exercisable
commencing May 5, 1998 and ending on May 5, 2003, at the close of business
("Exercise Period").
5. Effect of Termination of Employment. The termination
of the employment of Employee will have no effect on the exercisability of this
option.
6. Withholding Tax. Not later than the date as of which an
amount first becomes includible in the gross income of the Employee for Federal
income tax purposes with respect to the Option, the Employee shall notify the
Company of the amount and, to the extent required, pay to the Company, or make
arrangements satisfactory to the Company regarding the payment of, any Federal,
state and local taxes of any kind required by law to be withheld or paid with
respect to such amount. The obligations of the Company under the Plan and
pursuant to this Agreement shall be conditional upon such payment or
arrangements with the Company 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 the Employee from the Company.
7. Adjustments. In the event of any recapitalization, dividend
(other than cash dividend), stock split, reverse stock split, or other change in
capital structure of the Company affecting the number of issued shares of Common
Stock, the Company shall proportionally adjust the number and kind of Option
Shares and the exercise price of the Option in order to prevent the dilution or
enlargement of the Employee's proportionate interest in the Company and
Employee's rights hereunder immediately prior to the recapitalization, dividend,
stock split, reverse stock split or other change in the capital structure,
provided that the number of Option Shares shall always be a whole number.
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8. Method of Exercise.
8.1. Notice to the Company. The Option shall be
exercised in whole or in part by written notice in substantially the form
attached hereto as Exhibit A directed to the Company at its principal place of
business accompanied by full payment as hereinafter provided of the exercise
price for the number of Option Shares specified in the notice.
8.2. Delivery of Option Shares. The Company
shall deliver a certificate for the Option Shares to the Employee as soon as
practicable after payment therefor.
8.3. Payment of Purchase Price.
8.3.1. Payment. The Employee shall make
payments by wire transfer, certified or bank check or personal check, in each
case payable to the order of the Company; the Company shall not be required to
deliver certificates for Option Shares until the Company has confirmed the
receipt of good and available funds in payment of the purchase price thereof.
8.3.2. Payment of Withholding Tax. Any
required withholding tax may be paid in cash in accordance with Sections 8.3.1.
9. Nonassignability. The Option shall not be assignable or
transferable except by will or by the laws of descent and distribution in the
event of the death of the Employee. No transfer of the Option by the Employee by
will or by the laws of descent and distribution shall be effective to bind the
Company unless the Company shall have been furnished with written notice thereof
and a copy of the will and such other evidence as the Company may deem necessary
to establish the validity of the transfer and the acceptance by the transferee
or transferees of the terms and conditions of the Option.
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10. Company Representations. The Company hereby
represents and warrants to the Employee that:
(a) the Company, by appropriate and all required
action, is duly authorized to enter into this Agreement and consummate
all of the transactions contemplated hereunder; and
(b) the Option Shares, when issued and delivered by
the Company to the Employee in accordance with the terms and conditions
hereof, will be duly and validly issued and fully paid and
non-assessable.
11. Employee Representations. The Employee hereby
represents and warrants to the Company that:
(a) he is acquiring the Option and shall acquire
the Option Shares for his own account and not with a view towards the
distribution thereof;
(b) he understands that he must bear the economic
risk of the investment in the Option Shares, which cannot be sold by
his unless they are registered under the Securities Act of 1933 ("1933
Act") or an exemption therefrom is available thereunder and that the
Company is under no obligation to register the Option Shares for sale
under the 1933 Act;
(c) in his position with the Company, he has had both
the opportunity to ask questions and receive answers from the officers
and directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the offer made hereunder and to
obtain any additional information to the extent the Company possesses
or may possess such information or can acquire it without unreasonable
effort or expense necessary to verify the accuracy of the information
obtained pursuant to clause (ii) above;
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(d) he is aware that the Company shall place stop
transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the 1933 Act or an
exemption therefrom as provided herein; and
(e) The certificates evidencing the Option Shares may
bear the following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of May 5, 1998, a copy of which is on file with
the Company, and may not be trans ferred, pledged or
disposed of except in accordance with the terms and
conditions thereof."
12. Restriction on Transfer of Stock Option Agreement and
Option Shares. Anything in this Agreement to the contrary notwithstanding and in
addition to the provisions of Section 11 of this Agreement, the Employee hereby
agrees that he or she shall not sell, transfer by any means or otherwise dispose
of the Option Shares acquired by him or her without registration under the 1933
Act, or in the event that they are not so registered, unless (i) an exemption
from the 1933 Act registration requirements is available thereunder, and (ii)
the Employee has furnished the Company with notice of such proposed transfer and
the Company's legal counsel, in its reasonable opinion, shall deem such proposed
transfer to be so exempt.
13. Miscellaneous.
13.1. Notices. All notices, requests, deliveries,
payments, demands and other communications which are required or permitted to be
given under this Agreement shall be in writing and shall be either delivered
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personally or sent by registered or certified mail, or by private courier,
return receipt requested, postage prepaid to the parties at their respective
addresses set forth herein, or to such other address as either shall have
specified by notice in writing to the other. Notice shall be deemed duly given
hereunder when delivered or mailed as provided herein.
13.2. Stockholder Rights. The Employee shall not
have any of the rights of a stockholder with respect to the Option Shares until
such shares have been issued after the due exercise of the Option. Nothing
contained in this Agreement shall be deemed to confer upon Employee any right to
continued employment with the Company or any subsidiary thereof, nor shall it
interfere in any way with the right of the Company to terminate Employee in
accordance with the provisions regarding such termination set forth in
Employee's written agreement with the Company, or if there exists no such
agreement, to terminate Employee at will.
13.3. Waiver. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach.
13.4. Entire Agreement. This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof. This Agreement may not be amended except by writing executed by
the party to be charged.
13.5. Binding Effect; Successors. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and, to the
extent not prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided above, their
respective heirs, successors, assigns and representatives any rights, remedies,
obligations or liabilities.
13.6. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of Wisconsin
(without regard to choice of law provisions).
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13.7. Headings. The headings contained herein are
for the sole purpose of convenience of reference, and shall not in any way limit
or affect the meaning or interpretation of any of the terms or provisions of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
ENVIRO-RECOVERY, INC. Address:
0000 XXXX XXXXXXXXX XXXXX
XXXXXXX, XXXXXXXXX 00000
/s/ Xxxxx Xxxxxxx
By:_____________________
Xxxxx Xxxxxxx
EMPLOYEE: Address:
000 XX. XXXXXX XXXXX
XXXX XXXXX, XXXXXXX 00000
/s/ Xxxxxx Xxxxxx
_______________________
Xxxxxx Xxxxxx
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EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
__________________________
DATE
Enviro-Recovery, Inc.
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Secretary or Treasurer
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of May
5, 1998 ("Agreement") with Enviro-Recovery, Inc. ("Company"), I hereby
irrevocably elect to exercise the right to purchase _________ shares of the
Company's common stock ("Common Stock"), which are being purchased for
investment and not for resale.
As payment for my shares, enclosed is (check and complete
applicable box[es]):
a [personal check] [certified check] [bank check]
|__| payable to the order of "Enviro Recovery, Inc." in the sum
of $_________; and/or
confirmation of wire transfer in the amount of
|_| $_____________.
I hereby represent, warrant to, and agree with, the Company
that:
(i) I have acquired the Option and shall
acquire the Option Shares for my own account and not with a view
towards the distribution thereof;
(ii) I understand that I must bear the economic risk
of the investment in the Option Shares, which cannot be sold by me
unless they are registered under the Securities Act of 1933 ("1933
Act") or an exemption therefrom is available thereunder and that the
Company is under no obligation to register the Option Shares for sale
under the 1933 Act;
(iii) in my position with the Company, I have had
both the opportunity to ask questions and receive answers from the
officers and directors of the Company and all persons act ing on its
behalf concerning the terms and conditions of the offer made hereunder
and to obtain any additional information to the extent the Company
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possesses or may possess such information or can acquire it without
unreasonable effort or expense necessary to verify the accuracy of the
information obtained pursuant to clause (ii) above;
(iv) I am aware that the Company shall place stop
transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the 1933 Act or an
exemption therefrom as provided herein; and
(v) the certificates evidencing the Option Shares may
bear the following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of May 5, 1998, a copy of which is on file with
the Company, and may not be transferred, pledged or
disposed of except in accordance with the terms and
conditions thereof."
Kindly forward to me my certificate at your earliest
convenience.
Very truly yours,
_____________________________ _________________________________
(Signature) (Address)
_____________________________ _________________________________
(Print Name) (Address)
_________________________________
(Social Security Number)
