Exhibit 99(c)(5)
STOCK OPTION AGREEMENT
OPTION AGREEMENT, dated as of August 10, 1999, between COMC, INC., an
Illinois corporation (the "Company") and Xxxxxxx X. Xxxxx (the "Optionee").
WHEREAS, the Company, in consideration for the Optionee's agreement to
restructure outstanding indebtedness of the Company (the "Loan Restructure
Agreement"), desires to grant to the Optionee an option to either acquire or
increase, as the case may be, his proprietary interest in the Company and its
subsidiaries;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements hereinafter set forth, the parties hereto mutually agree as follows:
1. Grant of Option.
A. Subject to the terms and conditions hereinafter set forth,
the Company hereby grants to the Optionee, the option (the "Option") to
purchase, during the period specified in Paragraph 2 and at the purchase price
specified in Paragraph 3, all or any part of 376,623 shares, or 1.9% of the
fully-diluted common stock of the Company on the date hereof (including the
adjustments, if any, in Paragraph 6) (the "Shares"), of the Common Stock of the
Company, $.01 par value (the "Common Stock"), which, when issued upon the
exercise of the Option, and paid for in accordance with the terms hereof, shall
be fully paid and nonassessable.
2. Period and Exercise.
A. Subject to the provisions of Paragraphs 3 and 9, the Option
shall be immediately exercisable, in whole or in part, at any time during the
term of the Option. The Option and all rights thereunder shall terminate on a
date 10 years from the date of this Agreement (the "Termination Date").
B. The Option may be exercised pursuant to its terms by the
Optionee's giving written notice thereof to the Secretary or Treasurer of the
Company at its then principal office. Such notice shall state the number of
Shares with respect to which the Option is being exercised and shall be
accompanied by payment in full of the exercise price for such Shares in cash, by
check payable in good funds to the order of the Company, by the delivery of a
recourse promissory note, by the delivery of shares of Common Stock of the
Company valued at their fair market value on the date of exercise, or by the
surrender of options with respect to such number of other shares which, when
multiplied by the excess of the fair market value of a share of Common Stock on
the date of exercise over the exercise price of such surrendered option, equals
the exercise price, or the portion thereof, to be satisfied on such surrender.
C. The Company may in its discretion require, whether or not a
registration statement under the Securities Act of 1933 (the "Act") is then in
effect with respect to the Shares issuable upon such exercise, that as a
condition precedent to the exercise of the Option, the person exercising the
Option give to the Company a written representation and undertaking,
satisfactory in form and substance to the Company, that he is acquiring the
Shares for his or her own account for investment and not with a view to the
distribution or resale thereof and otherwise establish to the Company's
satisfaction that the offer or sale of the Shares issuable upon the exercise of
the Option will not constitute or result in any breach or violation of the Act,
or any similar act or statute or any rulings or regulations thereunder.
In the event this Option shall be exercised pursuant to Paragraph 10 by
any person other than the Optionee, the aforesaid notice shall also be
accompanied by appropriate proof of the right of such person to exercise the
same.
3. Option Price. Subject to the provisions of Paragraph 5, the option
price per share shall be $.08 per share (the "Option Price").
4. Listing, Registration and other Legal Requirements.
A. The granting and exercise of this Option and the Company's
obligation to deliver Shares pursuant to an exercise of the Option shall be
subject to all applicable federal and state laws, rules and regulations, and to
obtaining such approvals by registration or qualification with a regulatory or
governmental agency as may be required. Pending the satisfaction of the
foregoing, such exercise shall be deemed suspended and there shall be returned
to the person exercising the Option the proceeds representing the exercise
price. In such event, the Company shall provide notice to the Optionee or his
representative of the satisfaction of the foregoing condition, whereupon the
right to exercise the Option shall be reinstated.
B. As soon as practicable, but in any event no later than 120
days after the date hereof, the Company shall file a registration statement on
Form S-8 with the Securities and Exchange Commission, and use its best efforts
to effect such registration, including, without limitation, the execution of an
undertaking to file post-effective amendments, and shall take all actions to
comply with applicable regulations issued under the Act, as may be so requested
and as would permit or facilitate the sale and distribution of all of the
Shares.
5. Adjustments for Reorganization, Liquidation, Stock-Dividends or
Stock Splits.
A. If the Company is reorganized, or merged or consolidated
with another corporation while the Option, or any portion thereof, remains
outstanding, there shall be substituted for the shares subject to the
unexercised portion of the Option an appropriate number of shares of each class
of stock or other securities of the reorganized, or merged or consolidated
corporation which were distributed to the shareholders of the Company in respect
of such shares; provided, however, that this Option may be exercised in full by
the Optionee as of the effective date of any such reorganization, merger or
consolidation by the Optionee's giving notice in writing to the Company of his
intention to so exercise.
B. If the Company is liquidated or dissolved while the Option,
or any portion thereof, remains unexercised, then such unexercised portion of
the Option may be exercised in full by the Optionee as of the effective date of
any such liquidation or dissolution of the Company by the Optionee's giving
notice in writing to the Company of his intention to so exercise.
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C. If the outstanding shares of common stock of the Company
shall at any time be changed or exchanged by declaration of a stock dividend,
stock split, combination or exchange of shares, recapitalization, extraordinary
dividend payable in stock of a corporation other than the Company, or otherwise
in cash, or any other like event by or of the Company, and as often as the same
shall occur, then the number, class and kind of shares subject to this Option,
and the Option Price, shall be appropriately and equitably adjusted so as to
maintain the proportionate number of Shares without changing the Option Price;
provided, however, that no adjustment shall be made by reason of the
distribution of subscription rights on outstanding stock.
6. Adjustments for Increase in Outstanding Shares of Common Stock. This
Option is meant to be an option to purchase the number of Shares that, upon
exercise, equal to 1.9% of the total outstanding capital of the Company, on a
fully diluted basis, on the date hereof. If the shares of common stock in the
Company's treasury (which shares have been contributed for the sole purpose of
issuing options to the Optionee) are removed for any reason and required to be
issued and outstanding shares of common stock, then the number of shares
issuable upon exercise of this Option shall be increased so that the aggregate
shares issuable to Optionee hereunder represent 1.9% of the total outstanding
capital of the Company, after solely taking account of the shares that have been
removed from treasury, on a fully diluted basis, upon exercise.
7. Corporate Reorganization, Liquidation. In the event of a
reorganization by means of merger or consolidation of the Company with, or sale
or substantially all the assets of the Company to, another corporation or the
dissolution or liquidation of the Company while all or part of the Option
remains outstanding under this Agreement, there shall be substituted for the
Shares subject to the unexercised portion of the Option an appropriate number of
shares of each class of stock, other securities or other assets of the
reorganized corporation or, if liquidated, the Company, which would have been
distributed in respect of such Shares if the Option had been exercised
immediately prior to the record date of the applicable foregoing transaction;
provided, however, that the Optionee may exercise in full the Option granted
hereunder as of the effective date of any such reorganization or dissolution or
liquidation of the Company by giving notice to the Company of his intention to
so exercise.
8. No Rights in Shares Prior to Exercise. The Optionee shall not be
considered a record holder of any of the Shares subject to an unexercised
portion of the Option until the date on which he or she shall exercise the
Option as to such Shares in accordance with Paragraph 2 hereof; provided,
however, in the event the exercise is effected within 10 days prior to the
record date for the determination of holders entitled to vote at a meeting of
shareholders, the holder of the Shares received upon exercise of the Option
shall not have any right to vote the Shares received at Such meeting.
9. Stock Reserved. The Company shall at all times during the term of
this Agreement reserve and keep available such number of shares of Common Stock
as will be sufficient to satisfy the requirements of this Agreement and shall
pay all original issue taxes, if any, on the exercise of the Option, and all
other fees and expenses necessarily incurred by the Company in connection
therewith.
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10. Exercise Upon Termination of Employment. In the event the
employment of the Optionee is terminated by the Company for any reason the
Option may be exercised, in whole or in part, by the Optionee at any time
following termination of the Optionee. In the event of termination as a result
of death or disability of the Optionee, the Option may be exercised by the
Optionee or his legal representative or by the executor or administrator of the
Optionee or the person to whom the Optionee's rights under the Option shall pass
by the Will of the Optionee or the laws of descent and distribution at any time,
in whole or in part.
11. Not Employment Agreement. This Agreement does not constitute an
employment agreement and shall not confer on the Optionee any right to continue
in the employ of the Company or any of its subsidiaries.
12. Successors. This Agreement shall be binding upon any successor of
the Company.
13. Amendment. This agreement may not be amended at any time unless the
option agreements of Xxxxxxx X. Xxxxxxx and Xxxxxxxxxxx X. Xxxxx are amended
concurrently to the same effect with each of their written consent.
14. Notices. Any notice or other communication under this Agreement
shall be in writing and shall be considered given when received and shall be
delivered personally, mailed by registered or certified mail, return receipt
requested, or, to the extent available, sent by facsimile transmission to the
parties at the addresses set forth below (or at such other address as a party
may specify by notice to the other):
If to the Company: COMC, Inc.
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Secretary or Treasurer
Fax No.:______________________
with a copy to: Xxxx Xxxxx, Esq.
Xxxxxx Xxxxx, Inc.
1901 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax No.: 000-000-0000
If to Optionee: Xxxxxxx X. Xxxxx
____________________
____________________
Phone No.: 000-000-0000
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with a copy to: Xxxxx Xxxxx, Esq.
______________________
______________________
______________________
Fax No.:______________
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of California.
16. Fractional Share. The Company shall not be required to issue any
fractional share upon exercise of the Option, but it shall pay to the Optionee
or to his or her personal representative or beneficiary who acquires the right
to exercise the Option by bequest or inheritance on the death of the Optionee,
the cash equivalent of any fractional share interests, as determined in the sole
discretion of the Board or the Committee.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
COMC, INC.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxxx X. Xxxxx
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Optionee
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