EXHIBIT 2.3
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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 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.
2.1 Grant of Options. The Company hereby grants to Employee the
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 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.
3.1 Rate of Exercise. Options shall be exercisable by Employee, in
the 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 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 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 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 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 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 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
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attachment or similar process upon such Options or rights shall cause such
Options and rights to immediately become null and void.
5. SHAREHOLDER RIGHTS. Employee shall not be, nor have any of the
rights or 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 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 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
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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.
8. RELEASE BY EMPLOYEE. In consideration of the Options granted
hereunder 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 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
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
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 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 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
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 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 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
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
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:
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J. Xxxxxxx Xxxxxxxx
President and Chief Executive Officer
EMPLOYEE
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XXXXX X. XXXX
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