ICC TECHNOLOGIES, INC.
STOCK OPTION
This STOCK OPTION (the "Option") is granted as of the 18th day of
September, 1998, by ICC TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), to XXXX X. XXXXX ("Grantee").
BACKGROUND
A. Grantee is an employee of the Company.
B. In consideration of services to be performed, Company desires to afford
Grantee an opportunity to purchase shares of its common stock in accordance with
Company's 1998 Long Term Incentive Plan (the "Plan") as hereinafter provided.
C. Any capitalized terms not otherwise defined herein shall have the
meaning accorded them under the Plan.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties, hereto,
intending to be legally bound, agree as follows:
1. Grant of Option. Company hereby irrevocably grants to Grantee the
right and option (the "Option") to purchase all or any part of an aggregate of
One Hundred Fifty Thousand (150,000) shares of the common stock of Company
("Common Stock"), par value $.01 per share (the "Option Shares") which option
shall constitute an "incentive stock option" under the Plan, at those purchase
prices listed in Paragraphs 4 and 5 hereof (the "Option Prices"), during the
period and subject to the conditions hereinafter set forth.
2. Option Period. The Option may be exercised in accordance with the
provisions of Paragraphs 4 and 5 hereof during the Option Period, which shall
begin on the date hereof and shall end on the Option Expiration Date defined in
Paragraph 3 hereof. All rights to exercise the Option shall terminate on the
Option Expiration Date.
3. Option Expiration Date. The Option Expiration Date shall be September
18, 2003.
4. Exercise of Option.
(a) Except as provided in subparagraph 4(b), this Option shall be
exercisable at the rate of up to 33-1/3% of the total number of shares for which
this Option is granted, commencing on May 12, 1999, and at the rate of up to
33-1/3% of such total on May 12, 2000 and May 1, 2001, respectively, at an
exercise price of $2.375 per Option Share, provided that any portion of this
Option which is exercisable in any year, but not exercised, may be carried
forward and exercised in any future year during the term hereof.
(b) Notwithstanding the foregoing, subject to the terms of any
employment agreement between the Company and the Grantee, Grantee may purchase
all or any portion of the unexercised balance of this Option upon the effective
date of a change in the control of the Company, including, without limitation, a
(i) merger or consolidation of the Company into or with any other corporation
when the Company is not the surviving entity of such merger or consolidation,
(ii) the acquisition, directly or indirectly by any entity or "group" (as
defined in Section 13(d) of the Securities and Exchange Act of 1934, as
amended), of stock or options, or any combination thereof, (a) constituting a
majority of the then outstanding common stock of the Company or (b) possessing a
majority of the then outstanding voting power of the Company, (iii) any similar
purchase or other acquisition of a majority of the total equity interest of the
Company, (iv) the acquisition of all, or substantially all of, the assets of the
Company, or (v) the formation of a joint venture or partnership with the Company
for the purpose of effecting a transfer of control of, or a material interest
in, the Company (such merger, consolidation, sale or other transaction being
hereinafter referred to as a "Transaction"). There shall be excluded from the
foregoing any Transaction as a result of which (a) the holders of Common Stock
prior to the Transaction retain or acquire securities constituting a majority of
the outstanding voting common stock of the acquiring or surviving corporation or
other entity and (b) no single person owns more than half of the outstanding
voting common stock of the acquiring or surviving corporation or other entity.
For purposes of this Paragraph 4, voting common stock of the acquiring or
surviving corporation or other entity that is issuable upon conversion of
convertible securities or upon exercise of warrants or options shall be
considered outstanding, and all securities that vote in the election of
directors (other than solely as the result of a default in the making of any
dividend or other payment) shall be deemed to constitute that number of shares
of voting common stock which is equivalent to the number of such votes that may
be cast by the holders of such securities.
5. Manner of Exercise. Exercise of the Option shall be by written notice to
Company pursuant to Paragraph 12 hereof. The notice shall be accompanied by
payment in full in cash, stock of the Company, or a combination thereof, in the
amount of the Option Price. Upon receipt of such notice and payment, Company
shall deliver a certificate or certificates representing the Option Shares
purchased. The certificate or certificates representing the Option Shares shall
be registered in the name of the Grantee, or if the Grantee so requests, shall
be issued in or transferred into the name of the Grantee and another person
jointly with the right of survivorship. The certificate or certificates shall be
delivered to or upon the written order of the Grantee. No Grantee or his legal
representative, legatees or distributees, as the case may be, shall be or shall
be deemed to be a holder of any shares subject to this Option unless and until
certificates for such shares are issued to him or them upon the exercise of this
Option. The Option Shares that shall be purchased upon the exercise of the
Option as provided herein shall be fully paid and nonassessable.
6. Rights in Event of Death or Termination of Employment.
(a) If Grantee dies without having fully exercised the Option, the
executors, administrators, legatees or distributees of Grantee's estate shall
have the right, for a period of one year after the date of Grantee's death, to
exercise the unexercised and unexpired portion, if any,
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of the Option, in whole or in part, to the same extent that Grantee could have
exercised the Option at the expiration of such one-year period had the Grantee
lived.
(b) If Grantee shall have ceased for any reason, other than death, to be
an employee of the Company, Grantee shall have the right for a period of thirty
(30) days thereafter, but not later than the Expiration Date, to exercise in
whole or in part the unexercised and exercisable portion, if any, of the Option
on the date of such cessation, as determined in accordance with Paragraph 4
hereof.
7. Transferability of Option. The Option is not transferable by Grantee
other than by will or by the laws of descent and distribution in the event of
the Grantee's death, in which event the Option may be exercised by the heirs or
legal representatives of the Grantee as provided in Paragraph 6 hereof. The
Option may be exercised during the lifetime of the Grantee only by the Grantee.
Any attempt at assignment, transfer, pledge or disposition of the Option
contrary to the provisions hereof or the levy of any execution, attachment or
similar process upon the Option shall be null and void and without effect. Any
exercise of the Option by a person other than the Grantee shall be accompanied
by appropriate proofs of the right of such person to exercise the Option.
8. Option Shares to be Purchased for Investment. Unless Company has
notified Grantee pursuant to Paragraph 12 hereof that a registration statement
covering the Option Shares has become effective under the Securities Act of 1933
(the "Act"), it shall be a condition to the exercise of the Option that the
Option Shares acquired upon such exercise be acquired for investment and not
with a view to distribution. If requested by the Company upon advice of its
counsel that the same is necessary or desirable, the Grantee shall, at the time
of purchase of the Option Shares, deliver to the Company Grantee's written
representation that Grantee (a) is purchasing the Option Shares for his own
account for investment, and not with a view to public distribution or with any
present intention of reselling any of the Option Shares (other than a
distribution or resale which, in the opinion of counsel satisfactory to the
Company, may be made without violating the registration provisions of the Act);
(b) has been advised and understands that (i) the Option Shares have not been
registered under the Act and are subject to restrictions on transfer and (ii)
the Company is under no obligation to register the Option Shares under the Act
or to take any action which would make available to the Grantee any exemption
from such registration; and (c) has been advised and understands that such
Option Shares may not be transferred without compliance with all applicable
federal and state securities laws.
9. Changes in Capital Structure. The number of Option Shares covered by
this Option and the Option Price shall be equitably adjusted in the event (the
"Event") of (i) the payment of any dividend payable in, or the making of any
distribution of, Common Stock to holders of record of Common Stock, which
increases the outstanding Common Stock by more than 25%; (ii) any stock split,
combination of shares, recapitalization or other similar change; (iii) the
merger or consolidation of the Company into or with any other corporation; or
(iv) the reorganization, dissolution, liquidation or winding up of the Company,
and the Grantee shall be entitled, upon the exercise of the Option, to entitle
the Grantee to receive such new, additional or other shares of stock of any
class, or other property (including cash), as Grantee would have been
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entitled to receive as a matter of law in connection with such Event had Grantee
held the Option Shares on the record date set for such Event. The Company shall
have the authority to determine the adjustments to be made under this Paragraph
9 and any such determination shall be final, binding and conclusive.
10. Legal Requirements. If the listing, registration or qualification of
the Option Shares upon any securities exchange or under any federal or state
law, or the consent or approval of any governmental regulatory body is necessary
as a condition of or in connection with the purchase of the Option Shares, the
Company shall not be obligated to issue or deliver the certificates representing
the Option Shares as to which the Option has been exercised unless and until
such listing, registration, qualification, consent or approval shall have been
effected or obtained. This Option does not hereby impose on the Company a duty
to so list, register, qualify, or effect or obtain consent or approval. If
registration is considered unnecessary by the Company or its counsel, the
Company may cause a legend to be placed on the certificates for the Option
Shares being issued calling attention to the fact that they have been acquired
for investment and have not been registered, such legend to read as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND
MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED UNLESS THERE IS A
REGISTRATION STATEMENT IN EFFECT COVERING SUCH SECURITIES OR THERE IS AVAILABLE
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933,
AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS."
11. No Obligation to Exercise Option. The Grantee shall be under no
obligation to exercise the Option.
12. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed to be properly given when personally delivered to
the party entitled to receive the notice or when sent by certified or registered
mail, postage prepaid, properly addressed to the party entitled to receive such
notice at the address stated below:
If to Company: ICC Technologies, Inc.
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
If to Grantee: Xxxx X. Xxxxx
00 Xxxxx Xxxx
Xxx Xxxxx, XX 00000
13. Administration. This Option has been granted pursuant to the 1998 Long
Term Incentive Plan adopted by the Board of Directors of the Company and to be
approved by the Shareholders of the Company, and is subject to the terms and
provisions thereof. In the event the Plan has not been approved by the
Shareholders within twelve months of its adoption by the
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Board of Directors, this Option shall be deemed to be an Option having been
granted by the Board not under any plan and the Company shall, in its sole
discretion, use its reasonable efforts to file and cause to be effective a
Registration Statement on Form S-3, if available, under the Securities Act of
1933, covering the shares subject to this Option. By acceptance hereof the
Grantee acknowledges receipt of a copy of the Plan. All questions of
interpretation and application of the Plan and this Option shall be determined
by the Company, and such determination shall be final, binding and conclusive.
14. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
15. Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Delaware without regard to conflicts of laws
principles.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Amendment. This Agreement may not be amended except by an instrument in
writing signed by the parties.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the
date first above written.
ICC TECHNOLOGIES, INC.
By:
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Xxxxx X. Xxxxxx, President
By:
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Xxxx X. Xxxxx, Grantee
