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EXHIBIT 10.58
DECORA INDUSTRIES, INC.
1999 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
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DECORA INDUSTRIES, INC.
1999 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is made and entered into as of
the date of grant set forth below (the "Date of Grant") by and between Decora
Industries, Inc., a Delaware corporation (the "Company"), and the Participant
named below ("Participant"). Capitalized terms not defined herein shall have the
meaning ascribed to them in the Company's 1999 Stock Option Plan (the "Plan").
Participant:
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SOCIAL SECURITY NUMBER:
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ADDRESS:
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TOTAL OPTION SHARES:
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EXERCISE PRICE PER SHARE: $6.50
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DATE OF GRANT: May 1, 1999
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FIRST VESTING DATE: May 1, 1999 (subject to stockholder
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approval as required by Section 2.a)
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EXPIRATION DATE: April 30, 2004
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[No later than 10 years
from grant date]
TYPE OF STOCK OPTION:
(Check one): [ ] INCENTIVE STOCK OPTION
[X] NONQUALIFIED STOCK OPTION
1. GRANT OF OPTION.
The Company hereby grants to Participant an Option (the "Option") to
purchase the total number of Shares of Common Stock $0.01 par value, of the
Company set forth above (the "Shares") at the Exercise Price Per Share set forth
above (the "Exercise Price"), subject to all of the terms and conditions of this
Agreement and the Plan. If designated as an Incentive Stock Option above, the
Option is intended to qualify as an "incentive stock option" ("ISO") within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
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2. EXERCISE PERIOD.
a. VESTING SCHEDULE. The Option shall become exercisable upon the
First Vesting Date specified on the first page of this Agreement.
Notwithstanding the foregoing, no option shall be exercisable until such date as
the Stockholders approve the Decora Industries, Inc., 1999 Stock Option Plan.
b. EXPIRATION. The Option shall expire on the earlier of: (a) the
Expiration Date set forth above, or (b) five (5) years from the Date of Grant in
the event the Participant is a Ten Percent Stockholder, and must be exercised,
if at all, on or before the Expiration Date.
3. TERMINATION.
a. TERMINATION FOR ANY REASON EXCEPT DEATH OR DISABILITY. If
Participant is Terminated for any reason, except death or Disability, the
Option, to the extent (and only to the extent) that it would have been
exercisable by Participant on the date of Termination, may be exercised by
Participant no later than ninety (90) days after the date of Termination, but in
any event no later than the Expiration Date.
b. TERMINATION BECAUSE OF DEATH OR DISABILITY. If Participant is
Terminated because of death or Disability of Participant, any Option that is an
ISO, to the extent that it is exercisable by Participant on the date of
Termination, may be exercised by Participant (or Participant's legal
representative) no later than one hundred and eighty (180) days after the date
of Termination, but in any event no later than the Expiration Date.
c. NO OBLIGATION TO EMPLOY. Nothing in the Plan or this Agreement
shall confer on Participant any right to continue in the employ of, or other
relationship with, the Company or any Subsidiary or Affiliate of the Company, or
limit in any way the right of the Company or any Subsidiary or Affiliate of the
Company to terminate Participant's employment or other relationship at any time,
with or without cause.
4. MANNER OF EXERCISE.
a. STOCK OPTION EXERCISE AGREEMENT. To exercise this Option,
Participant (or in the case of exercise after Participant's death, Participant's
executor, administrator, heir or legatee, as the case may be) must deliver to
the Company an executed stock Option exercise Agreement in the form attached
hereto as Exhibit A, or in such other form as may be approved by the Company
from time to time (the "Exercise Agreement"), which shall set forth, inter alia,
Participant's election to exercise the Option, the number of Shares being
purchased, any restrictions imposed on the Shares and any representations,
warranties and Agreements regarding Participant's investment intent and access
to information as may be required by the Company to comply with applicable
securities laws. If someone other than Participant exercises the Option, then
such person must submit documentation reasonably acceptable to the Company that
such person has the right to exercise the Option.
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b. LIMITATIONS ON EXERCISE. The Option may not be exercised unless
such exercise is in compliance with all applicable federal and state securities
laws, as they are in effect on the date of exercise. The Option may not be
exercised as to fewer than One Hundred (100) Shares unless it is exercised as to
all Shares as to which the Option is then exercisable.
c. PAYMENT. The Exercise Agreement shall be accompanied by full
payment of the Exercise Price for the Shares being purchased in cash (by check),
or where permitted by law:
i. by cancellation of indebtedness of the Company to the
Participant;
ii. by surrender of shares of the Company's Common Stock that
either: (1) have been owned by Participant for more than six (6)
months and have been paid for within the meaning of SEC Rule 144; or
(2) were obtained by Participant in the public market; and, (3) are
clear of all liens, claims, encumbrances or security interests;
iii. by waiver of compensation due or accrued to Participant for
services rendered;
iv. provided that a public market for the Company's stock exists
and subject to the ability of the Participant to sell Shares in
compliance with applicable securities laws:
(1) through a "same day sale" commitment from the
Participant and a broker-dealer that is a member of the National
Association of Securities Dealers (an "NASD Dealer") whereby the
Participant irrevocably elects to exercise the Option and to sell
a portion of the Shares so purchased in order to pay the Exercise
Price, and whereby the NASD Dealer irrevocably commits upon
receipt of such Shares to forward the Exercise Price directly to
the Company; or
(2) through a "margin" commitment from the Participant and
an NASD Dealer whereby Participant irrevocably elects to exercise
the Option and to pledge the Shares so purchased to the NASD
Dealer in a margin account as security for a loan from the NASD
Dealer in the amount of the Exercise Price, and whereby the NASD
Dealer irrevocably commits upon receipt of such Shares to forward
the Exercise Price directly to the Company; or
v. by any combination of the foregoing.
d. TAX WITHHOLDING. Prior to the issuance of the Shares upon exercise
of the Option, Participant must pay or provide for any applicable federal or
state withholding obligations of the Company.
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e. ISSUANCE OF SHARES. Provided that the Exercise Agreement and
payment are in form and substance satisfactory to counsel for the Company, the
Company shall issue the Shares registered in the name of Participant,
Participant's authorized assignee, or Participant's legal representative, and
shall deliver certificates representing the Shares with the appropriate legends
affixed thereto.
5. REPRESENTATIONS AND WARRANTIES OF PARTICIPANT. Participant hereby
represents and warrants that:
(a) The Option granted hereby and the Shares which will be purchased
by and delivered to Participant upon exercise of the Option are being acquired
by Participant for his own account and not with a view to resale or other
disposition thereof.
(b) The Option granted hereunder and any Shares which may be issued to
Participant upon the exercise of the Option are restricted securities, and are
not freely tradeable. Participant will not sell, transfer, or make any other
disposition of this Option or the Shares to be purchased and delivered to
Participant hereunder upon the exercise of the Option unless and until (i) the
Option or Shares, as applicable, are included in a registration statement or a
post-effective amendment under the Securities Act which has been filed by the
Company and declared effective by the Securities and Exchange Commission (the
"SEC"), or (ii) in the opinion of counsel for the Company, no such registration
statement or post-effective amendment is required, or (iii) the SEC has first
issued a "no action" letter regarding any such proposed disposition of any
Option or the Shares.
6. FEDERAL AND STATE SECURITIES LAW REQUIREMENTS. The obligations of the
Company to deliver and transfer the Shares to the Participant upon any exercise
of this Option shall be subject to the following:
(a) The Company may require Participant, as an additional condition of
its obligation to deliver the Shares upon exercise of the Option hereunder, to
make any representations and warranties (including without limit those set forth
in Paragraph 5 hereof) with respect to the Shares as may, in the opinion of
counsel to the Company, be required to ensure compliance with the Securities
Act, the securities laws of any state, or any other applicable law, regulation,
or rule of any governmental agency.
(b) Each certificate representing the Shares issued pursuant to this
Agreement shall bear whatever legends are required by federal or state law or by
any governmental agency. In particular, unless an appropriate registration
statement is filed pursuant to the Securities Act with respect to the Shares,
each certificate representing such Shares shall be endorsed on its face with the
following legend or its equivalent:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SECURITIES MAY
BE SOLD OR TRANSFERRED ONLY IF THEY HAVE BEEN REGISTERED UNDER
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SAID ACT OR THERE EXISTS AN EXEMPTION FROM REGISTRATION UNDER
SAID ACT OR THE RULES AND REGULATIONS THEREUNDER EVIDENCED BY A
NO-ACTION LETTER OR AN OPINION OF COUNSEL TO THE ISSUER OR TO THE
HOLDER HEREOF REASONABLY SATISFACTORY TO THE ISSUER.
7. NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES
If the Option is an ISO, and if Participant sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before the
later of: (1) the date two years after the Date of Grant, and (2) the date one
year after transfer of such Shares to Participant upon exercise of the Option,
Participant immediately shall notify the Company in writing of such disposition.
Participant agrees that Participant may be subject to income tax withholding by
the Company on the compensation income recognized by Participant from the early
disposition by payment in cash or out of the current wages or other compensation
payable to Participant.
8. COMPLIANCE WITH LAWS AND REGULATIONS
The exercise of the Option and the issuance and transfer of Shares
shall be subject to compliance by the Company and Participant with all
applicable requirements of federal and state securities laws and with all
applicable requirements of any stock exchange on which the Company's Common
Stock may be listed at the time of such issuance or transfer.
9. NONTRANSFERABILITY OF OPTION.
The Option may not be transferred in any manner other than by will or
by the laws of descent and distribution and may be exercised during the lifetime
of Participant only by Participant. The terms of the Option shall be binding
upon the executors, administrators, successors and assigns of Participant.
10. PRIVILEGES OF STOCK OWNERSHIP.
Participant shall not have any of the rights of a shareholder with
respect to any Shares until Participant exercises the Option and pays the
Exercise Price.
11. INTERPRETATION.
Any dispute regarding the interpretation of this Agreement shall be
submitted by Participant or the Company to the Committee for review. The
resolution of such a dispute by the Committee shall be final and binding on the
Company and Participant.
12. ENTIRE AGREEMENT. The Plan is incorporated herein by reference. This
Agreement and the Plan constitute the entire Agreement of the parties and
supersede all prior undertakings and Agreements with respect to the subject
matter hereof.
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13. NOTICES.
Any notice required to be given or delivered to the Company under the
terms of this Agreement shall be in writing and addressed to the Corporate
Secretary of the Company at its principal corporate offices. Any notice required
to be given or delivered to Participant shall be in writing and addressed to
Participant at the address indicated above or to such other address as such
party may designate in writing from time to time to the Company. All notices
shall be deemed to have been given or delivered upon: personal delivery; three
(3) days after deposit in the United States mail by certified or registered mail
(return receipt requested); one (1) business day after deposit with any return
receipt express courier (prepaid); or one (1) business day after transmission by
rapifax or telecopier.
14. SUCCESSORS AND ASSIGNS.
The Company may assign any of its rights under this Agreement. This
Agreement shall be binding upon and inure to the benefit of the successors and
assigns of the Company. Subject to the restrictions on transfer set forth
herein, this Agreement shall be binding upon Participant and Participant's
heirs, executors, administrators, legal representatives, successors and assigns.
15. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. ACCEPTANCE.
Participant hereby acknowledges receipt of a copy of the Plan and this
Agreement. Participant has read and understands the terms and provisions
thereof, and accepts the Option subject to all the terms and conditions of the
Plan and this Agreement. Participant acknowledges that there may be adverse tax
consequences upon exercise of the Option or disposition of the Shares and that
Participant should consult a tax adviser prior to such exercise or disposition.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in
duplicate by its duly authorized representative and Participant has executed
this Agreement in duplicate as of the Effective Date.
DECORA INDUSTRIES, INC. PARTICIPANT:
By:___________________________ _____________________________
(Signature) (Signature)
______________________________ ______________________________
(Please print name) (Please print name)
______________________________ ______________________________
(Please print title)
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EXHIBIT A
STOCK OPTION EXERCISE AGREEMENT
In such form as is deemed appropriate from time to time by the Company and
which is not inconsistent with the Plan.
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