Exhibit 10.28
CIRILIUM HOLDINGS, INC.
STOCK OPTION AWARD AGREEMENT
THIS STOCK OPTION AWARD AGREEMENT, dated as of the 21st day of May 2004
(the "Agreement"), is between Cirilium Holdings, Inc., a Delaware corporation
with its principal offices at 000 X. Xxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx,
XX 00000 (the OCompanyO), and Xxxxxxx X. Xxxxxxx, a consultant of the Company
(OConsultantO) as of the date of the initial Consulting Agreement executed on
May 3, 2004, ("initial Consulting Agreement") between the Company and
Consultant. The Company and Consultant may be known individually as a "Party"
and collectively as "Parties".
WHEREFORE, in consideration of the mutual promises and of the
representations, warranties, covenants and performances herein contained, the
parties hereto, intending to be legally bound according to the terms of this
Agreement, hereby agree as follows:
1. Option Award
In accordance with the terms of the initial Consulting Agreement, the Company
shall grant Consultant stock options in an amount and according to the terms and
conditions described herein, and Consultant hereby accepts and agrees to this
grant, in an amount and in accordance with the terms and conditions hereinafter
set forth.
1.1 Award of Stock Options.
Contingent upon Consultant's continued Services to the Company under
the initial Consulting Agreement, Consultant shall receive options
to purchase a total of 150,000 shares of restricted common stock in
the Company. In the event that the Consulting Agreement between
Consultant and the Company is terminated, whether by Consultant or
by the Company (including without limitation a termination without
cause), Consultant shall receive options for the current fiscal year
in an amount pro rata with that portion of the year in which
Consultant performed services for the Company and Consultant shall
receive these options at the end of the relevant twelve-month period
as if this Agreement had never been terminated.
All options subject to this section shall vest according to the
following schedule:
---------------------------------------------------- ---------------------------
Vesting Date (1) Number of Options (2)
---------------------------------------------------- ---------------------------
At the end of the 12th month from the date of the 50,000
initial Consulting Agreement
---------------------------------------------------- ---------------------------
At the end of the 24th month from the date of the 50,000
initial Consulting Agreement
---------------------------------------------------- ---------------------------
At the end of the 36th month from the date of the 50,000
initial Consulting Agreement
---------------------------------------------------- ---------------------------
(1) The vesting date of all options granted under this Agreement
shall be with reference to either the execution date of the initial
Consulting Agreement or the date of this Agreement, whichever is
earlier.
(2) The exercise price of all options subject to this Agreement
shall be $.0001 (one-hundredth of one cent) per share.
1
Consultant represents to the Company that he is not subject or a
party to any consulting agreement, non-competition covenant,
non-disclosure agreement or other agreement, covenant, understanding
or restriction of any nature whatsoever which would prohibit
Consultant from executing this Agreement and performing fully his
duties and responsibilities hereunder, or which would in any manner,
directly or indirectly, limit or affect the duties and
responsibilities which may now or in the future be assigned to
Consultant by the Company.
1.2 Extent of Service.
The foregoing shall not be construed as preventing Consultant from
making investments in other businesses or enterprises provided that
Consultant agrees not to become engaged in any other business
activity which may, in the judgment of the Board of Directors of the
Company, interfere with his ability to discharge his duties and
responsibilities to the Company.
2. Change of Control
In the event of a change of control or ownership of the Company, the Board
of Directors shall use best efforts to effect an agreement with the
Acquirer whereby the Consultant shall be allowed to vest its entire
current and future stock options in the Company for that current fiscal
year immediately following a change of control or ownership by the
Company.
3. Confidential Information
a. Consultant recognizes and acknowledges that by reason of his service
to the Company, he has had, and will continue to have (for so long
as Consultant remains with the Company), access to confidential
information of the Company and its affiliates, including without
limitation, information and knowledge pertaining to products and
services offered, ideas, plans, trade secrets, proprietary
information, advertising, distribution and sales methods and
systems, sales and profit figures, customer and client lists, and
relationships between the Company and its affiliates and customers,
clients, suppliers and others who have business dealings with the
Company and its affiliates (OConfidential InformationO). Consultant
acknowledges that such Confidential Information is a valuable and
unique asset and covenants that he will not, either during or at any
time after the Term, disclose any such Confidential Information to
any person for any reason whatsoever (except as his duties described
herein may require) without the prior written authorization of the
Board of Directors of the Company, unless such information is in the
public domain through no fault of Consultant or except as may be
required by law.
b. Consultant will not disclose the terms or the contents of this
Agreement to any person for any reason whatsoever (except as his
duties described herein may require) without the prior written
authorization of the Board of Directors of the Company, unless such
information is in the public domain through no fault of Consultant
or except as may be required by law.
c. The restrictions contained in Sections 3(a) and 3(b) herein shall
continue to be in full force and effect for so long as Consultant
continues to remain engaged by the Company, then continuing for not
less than one (1) year following the termination thereof, or for
three (3) years, whichever period of time is longer.
4. Equitable Relief
a. Consultant acknowledges that the restrictions contained in Sections
1 and 2 hereof are reasonable and that the Company would not have
entered into this Agreement in the absence of such restrictions, and
that any violation of any provision of those Sections will result in
irreparable injury to the Company.
b. CONSULTANT FURTHER REPRESENTS AND ACKNOWLEDGES THAT (i) HE HAS BEEN
ADVISED BY THE COMPANY TO CONSULT HIS OWN LEGAL COUNSEL IN RESPECT
OF THIS AGREEMENT, (ii) THAT HE HAS HAD FULL OPPORTUNITY, PRIOR TO
EXECUTION OF THIS AGREEMENT, TO REVIEW THROUGHLY THIS AGREEMENT WITH
HIS COUNSEL, AND (iii) HE HAS READ AND FULLY UNDERSTANDS THE TERMS
AND PROVISIONS OF THIS AGREEMENT.
2
c. Consultant agrees that the Company shall be entitled to preliminary
and permanent injunctive relief, without the necessity of providing
actual damages, as well as an equitable accounting of all earnings,
profits and other benefits arising from any violation of Section 2
hereof, which rights shall be cumulative and in addition to any
other rights or remedies to which the Company may be entitled. In
the event that any of the provisions of Section 2 hereof should ever
be adjudicated to exceed the time, geographic, product or service,
or other limitations permitted by applicable law in any
jurisdiction, then such provisions shall be deemed reformed in such
jurisdiction to the maximum time, geographic, product or service, or
other limitations permitted by applicable law.
d. Consultant irrevocably and unconditionally (i) agrees that any suit,
action or other legal proceeding arising out of this Agreement,
including without limitation, any action commenced by the Company
for preliminary or permanent injunctive relief or other equitable
relief, must be brought in the United States District Court for the
Southern District of Florida, or if such court does not have
jurisdiction or will not accept jurisdiction, in any court of
general jurisdiction in Palm Beach County (ii) consents to the
non-exclusive jurisdiction of any such court in any such suit,
action or proceeding, and (iii) waives any objection which
Consultant may have to the laying of venue of any such suit, action
or proceeding in any such court. Consultant also irrevocably and
unconditionally consents to the service of any process, pleadings,
notices or other papers in a manner permitted by the notice
provisions of Section 6 hereof.
5. Governing Law
This Agreement shall be governed by and interpreted under the laws of the
State of Florida without giving effect to any conflict of laws provisions.
6. Litigation Expenses
In the event of a lawsuit by either Party to enforce the provisions of
this Agreement each Party must pay their own costs and expenses.
7. Notices
All notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing and
shall be deemed to have been given when hand delivered or mailed by
registered or certified mail, as follows (provided that notice of change
of address shall be deemed given only when received):
If to the Company: Cirilium Holdings Inc.
000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
If to Consultant:
-------------------------
-------------------------
-------------------------
or to such other names or addresses as to the Company or Consultant, as
the case may be, shall designate by notice to each other person entitled
to receive notices in the manner specified in this Section.
3
8. Entire Agreement: Contents of Agreement.
(a) This Agreement supersedes any and all other agreements, either
oral or written, between the Parties, with respect to the number of
stock options granted to Consultant. The vesting date of all options
granted under this Agreement shall be with reference to the
execution date of the initial Consulting Agreement, dated May 3,
2004.
(b) Each Party to this Agreement acknowledges that no
representation, inducements, promises or agreements, orally or
otherwise, have been made by any Party, or anyone acting on behalf
of any Party, which are not embodied herein, and that no other
agreement, statement, or promise not contained in this Agreement
shall be valid or binding. Any modification of this Agreement will
be effective only if it is in writing and signed by both Parties to
this Agreement.
(c) Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any
other number, singular or plural, and any other gender, masculine,
feminine or neuter, as the context indicates is appropriate.
9 Assignment
All of the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective heirs,
executors, administrators, legal representatives, successors and assigns
of the parties hereto, except that the duties and responsibilities of
Consultant hereunder are of a personal nature and shall not be assignable
or delegable in whole or in part by Consultant.
10. Miscellaneous
All section headings are for convenience only. This Agreement may be
executed in several counterparts, each of which is an original. It shall
not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first above written.
Cirilium Holdings, Inc. Consultant
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------- -----------------------
Xxxxxx X. Xxxxxx, President Xxxxxxx X. Xxxxxxx
