EXHIBIT 10.43
STOCK OPTION AGREEMENT
----------------------
THIS STOCK OPTION AGREEMENT is entered into as of May 3, 2001, by and
between TSET, Inc., a Nevada corporation ("TSET"), and Xxxxxxx X. Xxxxxx
("Xxxxxx ").
WITNESSETH:
----------
WHEREAS, pursuant to that certain employment agreement dated as of April
20, 1999 by and between TSET (the "Employment Agreement"), and Xxxxxx, TSET
desires to grant to Xxxxxx an option to acquire up to 200,000 restricted shares
of TSET's common stock, par value $0.001 per share (the "Option Shares"), in
consideration of Xxxxxx'x service to TSET as chairman of the board of directors
from April 1999 through April 2001, the parties acknowledging that the
Employment Agreement provides for such consideration at the rate of 100,000
shares annually; and
WHEREAS, Xxxxxx desires to accept such option.
NOW, THEREFORE, for and in consideration of the premises and mutual
promises, covenants, and agreements set forth herein and for other good and
valuable consideration, the delivery, receipt, and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF OPTION. TSET hereby grants to Xxxxxx an option (the "Option")
to acquire the Option Shares at an exercise price of $0.71 per share
(the "Exercise Price"). The Option shall immediately and fully vest in
Xxxxxx'x favor for all purposes upon execution and delivery of this
Agreement by the parties. The Option is personal to Xxxxxx and may be
exercised only by Xxxxxx during his lifetime. The Option shall
continue in full force and effect for a period of 10 years from the
date hereof (the "Term"), at which time the Option shall expire and
terminate unless previously exercised by Xxxxxx. The Option shall not
be subject to forfeiture or termination, except for Xxxxxx'x failure
to exercise the Option during the Term.
2. EXERCISE OF OPTION. The Option may be exercised by Xxxxxx, in whole or
in part, at any time during the Term upon receipt by TSET of written
notice from Xxxxxx (the "Exercise Notice"). The Exercise Notice shall
specify the number of Option Shares Xxxxxx desires to acquire pursuant
thereto and provide any necessary or appropriate instructions to TSET
and its transfer agent regarding the denomination of certificates
representing the Option Shares and the name in which the Option Shares
should be registered. The exercise of the Option shall be on a
"cashless" basis, at Xxxxxx'x election, and if so elected Xxxxxx shall
not be required to remit to TSET any payment therefor.
3. RESERVATION OF THE OPTION SHARES. To ensure fulfillment of its
obligations hereunder should Xxxxxx elect to exercise the Option, TSET
shall reserve from its authorized but unissued capital that number of
shares of its common stock equal to the Option Shares.
4. RESTRICTIONS ON TRANSFER. Xxxxxx acknowledges that the Option Shares
are subject to certain restrictions upon transfer, and cannot be sold,
assigned, transferred, or conveyed (in any case, a "transfer") except
in compliance with such restrictions and applicable provisions of
federal and state securities laws. Certificates representing the
Option Shares shall bear appropriate restrictive legends and notices.
In the event Xxxxxx desires to transfer any Option Shares prior to the
expiration of such restrictions, TSET shall be entitled to receive
from Xxxxxx written undertakings, certifications, or opinions of legal
counsel evidencing compliance with such restrictions. The Option
Shares shall be entitled to all of the benefits provided in the
Employment Agreement relating to demand and piggy-back registration
rights with respect thereto.
5. TAX MATTERS. Xxxxxx acknowledges that treatment of the Option, the
Option Shares, and events or transactions with respect thereto, for
federal and state income and other tax purposes, is dependent upon
various factors and events, which are not determined by this
Agreement. TSET makes no representations to Xxxxxx with respect to,
and hereby disclaims any and all responsibility as to such tax
treatment. Xxxxxx shall be solely and fully responsible for the
payment of, and shall pay, any and all federal, state, and other taxes
(including any and all withholding taxes) levied with respect to the
grant of the Option, the purchase of the Option Shares, and any
subsequent transfer thereof. In the event the exercise of the Option
or the disposition of the Option Shares following exercise of the
Option results in Xxxxxx'x realization of income which for federal,
state, local, or other income tax purposes is, in TSET's opinion,
subject to withholding of tax, then at the election of TSET and prior
to the delivery to Xxxxxx of certificates representing the Option
Shares acquired by him pursuant to an Exercise Notice, (a) Xxxxxx
shall pay to TSET an amount equal to such withholding tax or (b) TSET
may withhold such amount from any compensation or other payments owed
by TSET to Xxxxxx.
6. NONQUALIFIED STATUS. The Option is not intended to be an "incentive
stock option" as defined in the Internal Revenue Code of 1986, as
amended, and shall not be treated as such whether or not, by the terms
hereof, it meets the requirements of any applicable provisions
thereof.
7. NOTICES. All notices or other communications given or made hereunder
shall be in writing and may be delivered personally, by express,
registered, or certified mail (return receipt requested), by special
courier, or by facsimile transmission (to be followed by delivery of a
written original notice in the most expeditious manner possible, as
aforesaid), all postage, fees, and charges prepaid, to TSET and
Xxxxxx, as the case may be, to the following addresses (which may be
changed by the parties from time to time upon written notice given as
aforesaid):
To TSET: 000 Xxxxx Xxxxx Xxxxxx, XXX 000
Xxxx Xxxxxx, XX 00000
2
Attn: Xxxxxxx X. Xxxxxxxx
Chief Financial Officer
Tel: 000.000.0000
Fax: 000.000.0000
To Xxxxxx: 000 Xxxxx Xxxxx Xxxxxx, XXX 000
Xxxx Xxxxxx, XX 00000
Tel: 000.000.0000
Fax: 000.000.0000
Notices hereunder shall be deemed given when delivered in person, upon
confirmation of successful transmission when sent by facsimile, or 5
days after being mailed by express, registered, or certified mail
(return receipt requested), postage and fees prepaid.
8. INTEGRATION, AMENDMENT, AND WAIVER. When executed and delivered, this
Agreement shall constitute the entire agreement between the parties
with respect to the subject matter hereof and shall supersede any and
all prior agreements and understandings with respect thereto. No other
agreement, whether oral or written, shall be used to modify or
contradict the provisions hereof unless the same is in writing, signed
by the parties, and states that it is intended to amend the provisions
of this Agreement. No waiver by either party of any breach of this
Agreement in any particular instance shall constitute a waiver of any
other breach hereof in any other circumstance or any relinquishment
for the future of their respective rights to strictly enforce all of
the other provisions hereof or seek all remedies which may be
available at law or in equity.
9. COUNTERPARTS; BINDING EFFECT. This Agreement may be executed in
multiple counterparts (and by facsimile signature, to be followed by
manual signature), each of which shall be deemed an original, and all
of which shall be deemed to constitute a single agreement. This
Agreement shall be binding upon and inure to the benefit of the
parties' respective permitted heirs, successors, and assigns.
10. ASSIGNMENT. This Agreement is personal to the parties hereto.
Accordingly, Xxxxxx shall not assign or transfer this Agreement
without the prior written consent of TSET, which consent shall not be
unreasonably withheld, conditioned, or delayed; provided, however,
that Xxxxxx shall be permitted to assign or transfer this Agreement to
a legal entity owned by Xxxxxx without such consent. Any attempted
assignment of this Agreement by Xxxxxx without receipt of such consent
from TSET shall be null and void.
3
11. SEVERABILITY. If any provision (or portion thereof) of this Agreement
is adjudged unenforceable by a court of competent jurisdiction, the
remaining provisions shall nevertheless continue in full force and
effect and the provision deemed unenforceable shall be remade or
interpreted by the parties in a manner that such provisions shall be
enforceable to preserve, to the maximum extent possible, the original
intention and meaning thereof. If necessary to effect such intent,
TSET and Xxxxxx shall negotiate in good faith to amend this Agreement
to replace such provision with language believed in good faith by the
parties to be enforceable, which as closely as possible reflects such
intent.
12. NO THIRD PARTY BENEFICIARIES. This Agreement is for the sole benefit
of the parties and their permitted successors, heirs, and assigns.
Nothing herein, expressed or implied, shall give or be construed to
give any other person, other than the parties and their permitted
assigns, any legal or equitable rights hereunder. No finder's or other
fees shall be payable by either party with respect to the exercise of
the Option or the issuance of the Option Shares pursuant to this
Agreement.
13. STATE SECURITIES QUALIFICATIONS. The sale of the Option Shares
pursuant to any exercise of the Option has not been qualified with the
securities regulatory authorities in any state or other jurisdiction
and the issuance of the Option Shares prior to such qualification may
be unlawful unless such transactions are exempt from such
qualification requirements. The rights of the parties hereto are
expressly conditioned upon such qualification being obtained, unless
any such transaction is so exempt.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon, exclusive of its
conflicts of laws principles.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
effective as of the date first written above.
TSET, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxx
4
