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Exhibit 10.69
OPTION AGREEMENT
THIS AGREEMENT is made effective as of February 19, 1998 by and between
Xxxxxx Xxxxxxx (hereinafter referred to as "Optionee"), and Decora Industries,
Inc., a Delaware corporation (hereinafter referred to as "Optionor").
RECITALS:
WHEREAS, Optionee has performed numerous valuable services to the
Optionor, including serving as a director and Chief Executive Officer; and
WHEREAS, to compensate Optionee for his services to Optionor, Optionor
desires to grant to Optionee and Optionee is desirous of acquiring an option to
purchase shares of the common stock of Optionor, subject to the terms and
conditions hereinafter set forth;
NOW, THEREFORE, the parties hereby agree as follows:
1. Incorporation of Recitals. The parties hereby incorporate by this
reference the recitals
set forth above.
2. Grant of Option. Subject to the terms and conditions hereinafter set
forth, Optionor hereby gives and grants to Optionee the right and option to
purchase theretofore authorized but unissued common shares of Optionor at such
time and for the purchase price specified below.
A. From February 19, 1998, and up until and including February
18, 2003, Optionee shall have the right and option to purchase, at $5.50 per
share and Optionor shall have the obligation to issue to Optionee, 300,000
shares of the authorized but unissued common shares of Optionor. Such options
shall vest as follows: 100,000 shall vest immediately; 100,000 on February 19,
1999; and 100,000 shall vest on February 19, 2000.
3. Exercise of Option. Optionee may exercise any option granted
hereunder by notifying Optionor in writing of its intention to exercise such
option. A closing date shall then be agreed to in good faith no later than 30
days after the notice, at which time Optionee shall pay the purchase price of
the Shares being purchased, and Optionor shall deliver to Optionee the
certificates for shares duly endorsed. Optionee may purchase all or any part of
the Shares subject to options granted hereby.
4. Representations. Optionor represents and warrants to Optionee that
Optionee, upon proper exercise, shall receive good and marketable title to the
shares of Optionor underlying the options being granted hereby, free of all
pledges, liens and encumbrances, except as stated in paragraph 5.
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5. Representations and Warranties of Optionee. Optionee hereby
represents and warrants that:
A. The options granted hereby and the Shares which will be
purchased by and delivered to Optionee upon exercise of
such options are being acquired by Optionee for his own
account and not with a view to resale or other
disposition thereof.
B. Optionee will not sell, transfer, or make any other
disposition of any option or the shares to be purchased
and delivered to Optionee hereunder upon the exercise of
such option unless and until (a) such 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 Optionor and declared
effective by the Securities and Exchange Commission (the
"SEC"), or (b) in the opinion of counsel for the
Optionor, no such registration statement or
post-effective amendment is required, or (c) 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 obligation of the
Optionor to deliver and transfer the shares to the Optionee upon any exercise of
any option shall be subject to the following:
A. Optionor may require Optionee, as an additional
condition of its obligation to deliver the shares upon
exercise of any 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
Optionor, 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 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
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OR TO THE HOLDER HEREOF REASONABLY SATISFACTORY TO
THE ISSUER.
7. Restrictions. Optionee:
A. Shall not be entitled to any type of dividend declared by
Optionor, unless and until an option is exercised; and
B. Shall not be entitled to any voting rights by virtue of an
option; and
C. Acknowledges that the options granted hereby are personal
to Optionee and that Optionee may not sell, assign,
transfer or otherwise dispose of such options to any other
person.
8. Anti-Dilution. If prior to the exercise of any option granted
hereunder Optionor shall have effected one or more stock split-ups, stock
dividends, or other increases or reductions of the number of Shares of its
common stock outstanding without receiving compensation therefor in money,
services or property, the number of Shares of common stock subject to the
options hereby granted shall (a) if a net increase shall have been effected in
the number of outstanding shares of Optionor's common stock, be proportionately
increased and the cash consideration payable per Share shall be proportionately
reduced; and (b) if a net reduction shall have been effected in the number of
outstanding Shares of Optionor's common stock, be proportionately reduced and
the cash consideration payable per Share be proportionately increased.
9. Piggyback Registration Rights.
A. The Optionor will permit any option shares subject to this
agreement to be included, at the request of the Optionee in
any registration of securities of the Optionor (other than
shares of Common Stock pursuant to the Optionor's stock
option plan or stock purchase plan) under a registration
statement filed by the Optionor under the Securities Act.
The Optionor shall provide written notice to the Optionee
at least 30 days prior to the filing of any such
registration statement sent by registered mail to the
address of record of the Optionee. If Optionee shall
deliver a written request to the Optionor within ten (10)
business days after the mailing of such notice, setting
forth the number of securities which he intends to sell in
the public offering (the "Registered Securities"), and
requesting inclusion of such Registered Securities therein,
the Optionor agrees to include the Registered Securities in
such registration statement and related underwriting
agreements (if any) or if the Optionor eligible to use Form
S-3 permit Optionee to utilize a selling shareholders
Registration Statement on Form S-3. Notwithstanding the
above, the Optionee may only have option shares subject to
this agreement so registered one time.
B. The parties hereto agree that if the offering is
underwritten, the Registered Securities shall be for
purposes of the preceding sentence underwritten by the
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same underwriter or underwriters on terms no less
favorable than those applicable to the shares offered by
the Optionor or other stockholders pursuant to such
registration statement, and agree, at the request of the
Optionor or such other stockholders, to join with the
Optionor or such other stockholders in executing
appropriate underwriting agreements with such underwriter
or underwriters and to execute appropriate powers of
attorney and custodian agreements in forms acceptable to
the underwriter or underwriters, which agreements shall
not place any restrictions upon the sale or transfer of
the Registered Securities not otherwise placed on all
other shareholders whose shares are registered in such
registration statement. Optionee agrees that if, in spite
of the best efforts of the Optionor (which the Optionor
agrees to use), the inclusion of all of the Registered
Securities which he may desire to include in any such
registration statement shall not be acceptable to the
managing underwriter or underwriters of the offering
(acting reasonably and in good faith), some or all of his
Registered Securities may be excluded or withdrawn from
such registration statement in accordance with the
following provision: Optionee shall have the right to
include in such registration statement such number (but
only such number) of shares, as applicable, as shall bear
the same relationship to the total number of Units,
Warrants, or shares, as applicable, which the managing
underwriter or underwriters will permit to be included in
such registration statement by all holders of securities
who wish to register securities in such registration
statement.
C. Optionor shall pay all expenses associated with filing and
causing to become effective any registration statement and
with maintaining its effectiveness excepting only (i) the
underwriting discounts and commissions incurred directly
on the sale of any of Optionee's Registered Securities
included therein, and (ii) legal expense individually
incurred by Optionee, said discounts, commissions and
legal expenses with respect to the sale of Optionee's
shares to be borne by Optionee.
10. Notice and Opportunity to Cure Default. In the event of a perceived
default of the provisions of this agreement, Optionor agrees to provide Optionee
and his counsel written notice of any default and Optionor shall have 10 days
from receipt of said notice to cure the stated default.
11. Agreement to Perform Necessary Acts. The parties hereto agree to
cooperate fully with one another in executing all documents, certificates,
notices, filings and the like and performing all acts reasonably necessary to
carry out the intent of this agreement.
12. Assignment and Transfer. No option granted hereby may be assigned by
Optionee without the prior written consent of Optionor.
13. Amendments. This agreement may not be modified, amended or changed
except by an instrument in writing signed by the parties hereto.
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14. Litigation and Attorneys' Fees. In the event of any litigation
between the parties to in connection with this Agreement or to enforce any
provision or right hereunder, the unsuccessful party to such litigation shall
pay to the successful party therein by such successful party, which costs,
expenses and attorneys' fees shall be included as a part of any judgment
rendered in such action in addition to any other relief to which the successful
party may be entitled.
IN WITNESS WHEREOF, the parties have executed this Option Agreement as
of the day and year first above written.
OPTIONEE
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Xxxxxx Xxxxxxx
OPTIONOR
Decora Industries, Inc.
By:____________________
Its:___________________
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