EXHIBIT 2.6
EMPLOYEE STOCK OPTION AGREEMENT
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This Employee Stock Option Agreement ("Agreement") is made and entered into
effective as of the 18th day of February, 1998 (the "Effective Date"), by and
between LA-MAN CORPORATION, a Nevada corporation (the "Company"), and XXXXX X.
XXXX, an employee of the Company or one or more of its subsidiaries
("Employee"):
RECITALS:
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A. The Company has previously adopted the La-Man Corporation 1994 Amended
and Restated Employee and Consultant Stock Compensation Plan, as amended by
Amendment No. 1 dated as of September 1, 1995 and Amendment No. 2 dated as of
August 29, 1997 (the "1994 Plan");
B. The Company has delivered to Employee a copy of the 1994 Plan, Employee
has read and understands the provisions of such plan, and has consulted with his
own legal and other professional advisors regarding the provisions of such plan
or has voluntarily determined not to seek such separate professional advice;
C. Employee, as an employee of the Company or one or more of its
subsidiaries, is eligible as of the date hereof to participate in the 1994 Plan,
and the Company desires to grant to Employee certain options under the 1994 Plan
to purchase from the Company newly issued shares of common stock, par value
$.001 per share, of the Company ("Common Stock"), to induce Employee to continue
to pursue the best interests of the Company and to provide an incentive to
Employee to increase his or her equity interest in the Company, all on the terms
and conditions hereinafter stated.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the Company and Employee hereby agree as follows:
1. INCORPORATION BY REFERENCE OF 1994 PLAN. The terms and provisions of the
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1994 Plan, to the extent relevant to options granted hereunder and thereunder,
are incorporated by reference herein and, in addition to the terms and
conditions stated in this Agreement, terms and conditions of the 1994 Plan shall
apply to the applicable options granted to Employee hereunder to the same extent
and with the same force and effect as if fully set forth in this Agreement.
2. GRANT OF OPTIONS.
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2.1 Grant of Options. The Company hereby grants to Employee the
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following options (collectively, the "Options") to purchase from the Company the
following number of
newly issued shares of Common Stock ("Option Shares") at the exercise price and
prior to the expiration date ("Expiration Date") set forth below:
Non-qualified Options under the 1994 Plan for 100,000 shares of Common
Stock exercisable at the price of $4.03 per share, the fair market
value per share of the Common Stock on February 18, 1998, and expiring
on February 18, 2003.
2.2 Applicability of 1994 Plan. This Agreement is executed pursuant to
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the 1994 Plan, and the Options granted to Employee hereunder and the obligations
of the Company with respect to the issuance of any Option Shares upon any
exercise of the Options are and shall be subject to all applicable terms and
provisions of the 1994 Plan. To the extent any applicable provisions of the
1994 Plan may be deemed to conflict with the provisions of this Agreement, the
provisions of the 1994 Plan shall be deemed to govern.
3. EXERCISE OF OPTIONS.
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3.1 Rate of Exercise. Options shall be exercisable by Employee, in the
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manner specified hereinbelow, in increments of not less than 1,000 Option
Shares. In no event shall the Company be required to issue any fractional
Option Shares.
3.2 Manner of Exercise. Employee may exercise the Options at any time
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prior to their respective Expiration Dates, by delivering notice to the Company
in accordance with the provisions of Section 10 hereof specifying the number of
Option Shares to be purchased and accompanied by cash, bank cashier's check or
immediately available wired funds, or check drawn on Employee's bank payable to
or to the order of the Company, in the amount of the per share exercise price
of the Options so exercised multiplied by the applicable number of Option
Shares. Options shall not be exercisable except in accordance with and in the
manner provided in this Section 3.2. The Company shall issue and deliver or
cause to be issued and delivered a certificate or certificates representing the
applicable number of Option Shares upon the exercise of any Options hereunder,
upon satisfaction of the following conditions:
(a) The obtaining of any approval or other clearance from any
federal or state governmental agency which the Company shall in its sole
discretion determine to be necessary or advisable; and
(b) The lapse of such reasonable period of time following the
exercise of the Options as the Company may from time to time establish for
reasons of administrative convenience.
3.3 Termination of Employment. In the event the employment or service
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of Employee with the Company or its subsidiaries is terminated prior to the
Expiration Date, the exercise rights of Employee with respect to the Options may
terminate prior to the Expiration Date as follows:
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(a) In the event the employment or service of Employee is terminated
for cause, all Option exercise rights of Employee hereunder shall terminate
immediately upon such termination of employment for cause. "Cause" shall mean
incompetence in the performance of duties, disloyalty, dishonesty, theft,
embezzlement, unauthorized disclosure of patents, processes or trade secrets of
the Company or any of its subsidiaries, individually or as an employee, partner,
associate, officer, director, agent or representative of any organization. The
determination of the existence and the proof of "cause" shall be made by the
Board of Directors of the Company and shall be binding on Employee and the
Company.
(b) In the event the employment or service of Employee is terminated
by either Employee or the Company or the applicable subsidiary for any reason
other than cause, death or disability (as defined in Section 22(e)(3) of the
Internal Revenue Code of 1986, as amended), then all Option exercise rights of
Employee hereunder shall be exercisable by Employee at any time prior to the
earlier of the Expiration Date or the three (3) months following the date of
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such termination.
(c) In the event Employee becomes disabled (defined as specified in
subpart (b) hereinabove), then all Option exercise rights of Employee hereunder
shall be exercisable by Employee at any time prior to the earlier of the
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Expiration Date or twelve (12) months following the date of termination of
employment or service due to disability.
(d) In the event of termination of employment or service as the result
of death, then all Option exercise rights of Employee hereunder shall be
exercisable by the person or persons to whom such rights pass by will or by the
laws of descent and distribution, at any time prior to the earlier of the
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Expiration Date or within three (3) months following the date of Employee's
death. If a person or estate acquires the right to exercise an Option by
bequest or inheritance, the Company may require reasonable evidence as to the
ownership of the Options so acquired, and may require such consents and releases
of taxing and other governmental authorities as the Company may deem advisable.
(e) Options granted hereunder shall not be affected by any change of
duties or position of Employee, so long as Employee continues in the service of
the Company or its subsidiaries.
(f) Nothing contained herein shall confer upon Employee any right with
respect to continuation of employment or service by the Company or any of its
subsidiaries, nor interfere in any way with the right of the Company or any of
its subsidiaries to terminate Employee's employment or service or change
Employee's duties or compensation at any time.
4. NONTRANSFERABILITY OF OPTIONS. Options granted hereunder shall not be
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sold, transferred, assigned, pledged, hypothecated or otherwise disposed of in
any way (by operation of law or otherwise) without the prior written approval of
the Company. Any attempt to sell, transfer, assign, pledge, hypothecate or
otherwise dispose of any Options or any rights in connection therewith contrary
to the provisions of this Agreement or upon the levy of any attachment or
similar process upon such Options or rights shall cause such Options and rights
to immediately become null and void.
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5. SHAREHOLDER RIGHTS. Employee shall not be, nor have any of the rights or
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privileges of, a shareholder of the Company in respect of any Option Shares
issuable upon exercise of any Options unless and until such Option Shares shall
have been fully paid for and a stock certificate or certificates registering
such Option Shares in the name of Employee shall have been duly issued.
Employee covenants and agrees to deliver to the Company or its registrar and
transfer agent any and all documents and instruments required in connection with
the issuance of any stock certificates representing Option Shares.
6. ANTI-DILUTION. In the event of any stock dividend, stock split, exchange
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of shares, recapitalization, reorganization, merger, consolidation, rights
offering or other change of corporate structure involving the Company's Common
Stock, appropriate and proportionate adjustments shall be made in the number of
Option Shares issuable upon exercise of the Options and, if appropriate, the
applicable exercise prices therefor. In the event of any such adjustment, the
Company shall deliver to Employee in the manner specified in Section 10 hereof a
brief written summary of such event and the effect thereof upon the number of
Option Shares issuable upon exercise on any Options and the effect, if any, on
the exercise price of any such Options.
7. RESTRICTIONS ON TRANSFER OF OPTION SHARES. Unless and until the Option
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Shares shall have been registered under the applicable provisions of the
Securities Act of 1933, as amended (the "Securities Act"), and any applicable
state securities laws, Employee shall not sell, transfer or otherwise dispose of
any Option Shares or any interest therein unless and until the Option Shares
have been so registered or Employee shall have delivered or cause to be
delivered to the Company an opinion of counsel (with the identity of such
counsel and the substance of such opinion satisfactory to the Company) to the
effect that such intended sale, transfer or disposition does not violate the
provisions of the Securities Act or any applicable state securities laws.
Without limiting the foregoing, if a registration with respect to the Option
Shares is not in effect under the Securities Act, Employee further agrees that
the Company shall have the right to require, as a condition to the exercise of
the Option, that the Employee represent to the Company in writing that the
Option Shares to be received upon exercise of the Option will be acquired by
Employee for investment and not with a view to distribution. Upon exercise of
any Options:
(a) If Employee is subject to the reporting requirements under Section
16(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), Employee
shall timely furnish to the Company a copy of each Form 3, Form 4 or Form 5
required to be filed by Employee with the Securities and Exchange Commission
(the "SEC") and will timely file with the SEC all reports required to be file by
Employee;
(b) Employee shall thereafter report all sales of Option Shares to the
Company in writing on the form prescribed from time to time by the Company.
Unless and until the Option Shares are registered under the Securities Act and
applicable state securities laws, certificates representing any Option Shares
may be imprinted with legend conditions reflecting federal and state securities
laws restrictions and conditions and the Company may comply therewith by issuing
"stop transfer" instructions to its transfer agents and registrars without
liability.
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8. RELEASE BY EMPLOYEE. In consideration of the Options granted hereunder
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to Employee, Employee, for himself and his successors, assigns, heirs,
executors, administrators, legal representatives and all persons or entities
acting on Employee's behalf or who might claim through Employee, hereby
completely, unconditionally, voluntarily and knowingly releases and forever
discharges the Company and its predecessors, successors, assigns, affiliates,
officers, directors, shareholders, employees, agents and representatives and all
persons who might be liable through any of the foregoing, of and from any and
all claims, demands, damages, actions, causes of action or suits at law and
equity, of whatsoever kind or nature, for or on account of or in connection with
any claim that the Company is obligated to issue, grant or deliver or cause to
be issued, granted or delivered to or for the account or benefit of Employee any
shares of capital stock, warrants, options (other than the Options granted
herein) or other securities of any kind or nature exchangeable for or
convertible into securities of the Company, unless and only to the extent such
obligation is expressed in a written agreement duly signed on behalf of the
Company.
9. INFORMATION TO BE FURNISHED BY EMPLOYEE. Upon or prior to the exercise
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of any Option, Employee shall furnish to the Company in writing such information
or assurances as, in the Company's opinion, may be necessary to enable the
Company to comply fully with the Securities Act and the rules and regulations
thereunder and any other applicable federal or state statutes, rules and
regulations. The Company shall take such steps as may be necessary to comply
with all applicable laws and regulations, including the rules and regulations of
the SEC.
10. NOTICES. All Option exercise notices and other notices and
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communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by telex or telecopy (and promptly confirmed by
mail) to the parties as follows (or at such other address as either party may
have furnished to the other in writing in accordance herewith, except that
notices of changes of address shall only be effective upon receipt):
If to the Company to:
La-Man Corporation
Attention: J. Xxxxxxx Xxxxxxxx, President
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxxx X. Xxxxxx, P.A.
Broad and Xxxxxx
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
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If to Employee to:
Xxxxx X. Xxxx
0000 Xxxxxxx Xxx Xxxxxx
Xxxx Xxxxxx, XX 00000
11. COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. GOVERNING LAW. This Agreement shall be governed by, and construed and
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interpreted in accordance with and under, the laws of the State of Florida. If
a court or other body of competent jurisdiction determines that any term or
provision of this Agreement is excessive in scope, such term or provision shall
be adjusted rather than voided and interpreted so as to be enforceable to the
fullest extent possible, and all other terms and provisions of this Agreement
shall be deemed valid and enforceable to the fullest extent possible.
13. BINDING EFFECT; PARTIES IN INTEREST. Subject to the nontransferability
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provisions of Section 4 hereof, this Agreement shall be binding upon and inure
to the benefit of the respective heirs, representatives, successors and assigns
of the parties hereto. Nothing expressed or referred to in this Agreement is
intended or shall be construed to give any person other than the parties to this
Agreement, or their respective successors or assigns, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
14. ENTIRE AGREEMENT. Subject to the provisions of Sections 1 and 2.2
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hereof, this Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes any and all
representations, agreements, arrangements or understandings not expressly set
forth herein.
15. TAXES. All taxes resulting from the issuance or exercise of the Options
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shall be the sole responsibility of Employee. The Company assumes no
responsibility for any taxes resulting from such issuance or exercise. Upon
exercise of the Options in whole or in part, the Company is authorized to
withhold (or cause the appropriate subsidiary of the Company to withhold) from
Employee's salary or other cash compensation such sums of money as are necessary
to pay Employee's withholding tax. The Company may elect to withhold from
Option Shares otherwise issuable hereunder a sufficient number to satisfy the
Company's withholding obligations. If the Company becomes required to pay
withholding tax to any federal, state or other taxing authority as the result of
the granting of the Options to Employee or the exercise thereof and Employee
fails to provide the Company with the funds with which to pay such withholding
tax, the Company may withhold up to 50% of each payment of salary or other
consideration otherwise payable to Employee (which will be in addition to any
other required or permitted withholdings), until the Company has been reimbursed
for the entire withholding tax it is required to pay.
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16. ASSURANCES. Each of the parties hereto shall execute and deliver any and
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all additional papers and documents, and shall do any and all further acts and
thing, as may be reasonably necessary in connection with the performance of
their obligations hereunder and to carry out the intent of this Agreement.
17. ATTORNEYS' FEES. In the event that either party hereto brings an
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action or proceeding for a declaration of the rights of the parties under this
Agreement, for injunctive relief, for an alleged breach or default, or any other
action arising out of this Agreement or the transactions contemplated hereby, or
in the event that any party is in default of its obligations hereunder, whether
or not suit is filed or prosecuted to final judgement the prevailing party shall
be entitled to recover reasonable attorneys' fees, in addition to any other
court costs incurred and any other damages or relief awarded.
18. MODIFICATIONS, AMENDMENTS AND WAIVERS. No amendment, change or
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modification of this Agreement shall be valid unless it is in writing signed by
the parties hereto and expressly states that an amendment, change or
modification of this Agreement is being made. No claim of waiver, consent, or
acquiescence with respect to any provision of this Agreement shall be made
against any party hereto accept on the basis of a written instrument executed by
or on behalf of such party. The party hereto for whose benefit a condition is
herein inserted shall have the unilateral right to waive such condition.
IN WITNESS WHEREOF, the Company and Employee have executed this Agreement
as of the date first above written.
LA-MAN CORPORATION,
a Nevada Corporation
By: /s/ J. Xxxxxxx Xxxxxxxx
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J. Xxxxxxx Xxxxxxxx
President and Chief Executive Officer
EMPLOYEE
/s/ Xxxxx X. Xxxx
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XXXXX X. XXXX
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