EXHIBIT 4.17
COMMODORE ENVIRONMENTAL SERVICES, INC.
OPTION AGREEMENT
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AGREEMENT (this "Agreement") dated as of June 17, 1997 (the "Date of
Grant") by and between COMMODORE ENVIRONMENTAL SERVICES, INC. a Delaware
corporation having offices at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx 00000 (the "Company") and Xxxxx Xxxxxx an individual residing at 0000
Xxxxxxxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000 (the "Optionee").
WITNESSETH:
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WHEREAS, the Company provides for, among other things, the granting from
time to time to officers, directors and/or persons determined by a committee of
the Board (the "Committee") to be key employees or directors of and/or key
consultants to the Company or any of its subsidiaries of "non-qualified stock
options" or "incentive stock options" to purchase shares of Common Stock, par
value $.001 per share, of the Company (the "Common Stock").
WHEREAS, on May 1, 1997, the Company granted the Optionee an option (the
"Existing Option") to purchase 750,000 shares of Common Stock at an exercise
price of $0.29, and now wishes to set forth in writing the terms and conditions
of such prior grant.
WHEREAS, the Optionee and the Company desire to terminate the Existing
Agreement, and restate the terms and conditions applicable to the Existing
Option in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereby agree as follows:
1. Grant and Designation of Option.
(a) Subject to the terms and conditions of this Agreement, the terms
and conditions of which are incorporated by reference, the Company granted to
the Optionee as of May 1, 1997, the right and option (the "Option") to purchase
up to 750,000 shares of Common Stock (the "Option Shares") at a price of $.029
per share (the "Exercise Price").
(b) The option is intended to be, and shall be treated as a
Nonqualified Option
2. Vesting of Option.
(a) The Option may be exercised unless and then only to the extent that
it is vested in accordance with the provisions of this Section 2.
(b) as of the date hereof, the Option is vested and exercisable with
respect to 750,000 Option Shares.
(c) Anything contained in this Section 2 to the contrary
notwithstanding, the Optionee shall become fully (100%) vested in the Option
upon the Optionee's termination of employment with the Company or any of its
subsidiaries by reason of death, disability or retirement at age 65 or older in
accordance with the Company's standard retirement procedures then in effect
(with retirement being hereinafter referred to as "retirement"), or as provided
in Section 6 hereof. The determination of whether disability or retirement has
occurred shall be made by the Committee in its sole discretion. As used herein,
the term "subsidiary" shall have the meaning ascribed to the term "subsidiary
corporation" under Section 424 of the Internal Revenue Code of 1986, as amended.
3. Duration of Option.
Subject to prior termination in accordance with Section 8 below, and
subject to extension by mutual written agreement of the Company and the
Optionee, the Option shall expire and all rights to purchase shares pursuant
hereto (to the extent not previously exercised) shall cease and terminate on May
1, 2007.
4. Exercise of Option.
A person entitled to exercise the Option may exercise the Option (if
and to the extent then vested in accordance with Section 2 above) in whole at
any time, or in part from time to time by delivering to the Company (or any
other officer hereafter designated by the Company for the purpose), written
notice specifying the number of shares of Common Stock with respect to which the
Option is being exercised, together with payment in full of the Exercise Price
for such shares plus an amount that is sufficient to enable the Company or the
applicable subsidiary to withhold in accordance with applicable state and
federal withholding requirements. Such payment shall be made in cash or by
certified check or bank draft to the order of the Company, provided, however,
that the Committee may, in its sole discretion, authorize such payment, in whole
or in part, in any other form, including payment by personal check or by the
exchange of shares of Common stock of the Company then owned of record by the
person entitled to exercise the Option and having a fair market value (as
determined by the Committee) on the date of exercise equal to the price for
which the shares of Common Stock may be purchased pursuant to the Option.
5. Adjustments.
(a) The number of shares of Common Stock covered by the Option, and the
Exercise Price, shall be proportionately adjusted for any increase or decrease
in the number of issued and/or outstanding shares of Common Stock resulting from
a stock split, combination of shares, recapitalization or other subdivision or
consolidation of shares or other capital adjustment, or the payment of a stock
dividend in respect of the Common Stock; provided, however, that any fractional
shares resulting from any such adjustment shall be eliminated.
(b) From time to time as and when any adjustments may be required
pursuant to this Section 5, the Company shall endeavor to give written notice to
the Optionee of the event requiring such adjustment, which notice shall further
set forth the Company's calculation of the required adjustment to the number of
shares of Common Stock covered by the Option, and the Exercise Price therefor.
6. Merger, Consolidation, etc.
In the event that the Company shall, pursuant to action by the
Board, at any time propose to merge into, consolidate with, or sell or otherwise
transfer all of its assets to, another corporation and provision is not made
pursuant to the terms of such transaction for (a) the assumption by the
surviving, resulting or acquiring corporation of the Option, (b) the
substitution of a new option therefor, or (c) the payment of cash or other
consideration in respect thereof, then the Committee shall cause written notice
of the proposed transaction to be given to the Optionee not less than thirty
(30) days prior to the anticipated effective date of the proposed transaction.
On a date which the Committee shall specify in such notice, which date shall not
be less than ten (10) days prior to the anticipated effective date of the
proposed transaction, the Option shall become fully (100%) vested and the
Optionee shall have the right to exercise the Option to purchase any or all
shares then subject to the Option, and if the proposed transaction is
consummated, the Option, to the extent not previously exercised prior to the
effective date of the transacton, shall terminate on such effective date. If the
proposed transaction is abandoned or otherwise not consummated, then to the
extent that the portion of the Option not exercised prior to such abandonment
shall have vested solely by operation of this Section 6, such vesting shall be
annulled and be of no further force or effect and the vesting period set forth
in Section 2 above shall be reinstituted as of the date of such abandonment,
provided, however, that nothing herein contained shall be deemed to
retroactively affect or impair any exercise of any such vested Option prior to
the date of such abandonment.
7. Non-Transferability.
(a) The Opion shall not be transferable other than (i) to any
transferee who is a member of the immediate family (i.e., spouse, child, natural
parent, brother or sister) of the original Optionee hereunder, or (ii) by will
or the laws of descent and distribution.
(b) In no event and under no circumstances shall the Optionee or any
other person entitled to exercise the Option pledge, hypothecate, or xxxxx x
xxxx upon or security interest in any interest in this Agreement or the option.
8. Termination of Employment; Competition.
The following provisions shall apply in the event of the Optionee's
engaging in competition with the Company, or (if the Optionee is now or
hereafter becomes an employee of the Company or any of its subsidiaries) in the
event of the termination of the Optionee's employment with the Company or any of
its subsidiaries.
(a) In the event that the Optionee shall engage or participate in,
or become involved with, in any manner or capacity (whether as employee, agent,
consultant, advisor, officer, director, manager, partner, joint venturer,
investor, shareholder (other than passive investments in less than five (5%)
percent of the outstanding securities of any company or otherwise), any business
enterprise which is engaged in the rendering of environmental remediation
services or any other business conducted or operated by the Company on the date
on which the Optionee first became involved with such other business enterprise,
or in the event that the Optionee's employment with the Company or any of its
subsidiaries shall be terminated either (i) by the Company or any of its
subsidiaries "for cause" (as defined in any applicable employment agreement to
which the Optionee is a party), or (in the absence of such a definition
contained in any applicable employment agreement to which the Optionee is a
party) for fraud, dishonesty, habitual drunkenness or drug use, for willful
disregard of assigned duties or instructions by the Optionee, for concrete
actions causing substantial harm to the Company, or for other breach by the
Optionee of any applicable employment agreement to which the Optionee is a
party, or (ii) by the Optionee voluntarily and without the written consent of
the Company then the Option shall immediately terminate at the time that notice
of termination of employment is given, and shall not then or thereafter be
exerciseable in whole or in part, provided, however, that nothing herein
contained shall be deemed to modify or amend the terms and conditions of any
applicable employment agreement, including but not limited to the grounds upon
which the Optionee's employment may be terminated.
(b) In the event that the Optionee's employment with the Company or
any of its subsidiaries shall terminate (i) by reason of retirement, or (ii)
under circumstances other than those specified in Section 8(a) above and for
other than death or disability, then the Option shall terminate thirty (30) days
after the date of such termination of employment or on the Expiration Date,
whichever shall first occur, provided, however, that if the Optionee dies within
such thirty (30) day period, then the Option shall terminate ninety (90) days
after the Optionee's death or on the Expiration Date, whichever shall first
occur.
(c) In the event of the death or disability of the Optionee while
the Optionee is employed by the Company or any of its subsidiaries, the Option
shall terminate ninety (90) days after the Optionee's death or disability, as
the case may be, or on the Expiration Date, whichever shall first occur.
(d) Anything contained in this Section 8 to the contrary
notwithstanding, the Option may only be exercised following the Optionee's
termination of employment with the Company or any of its subsidiaries of reasons
other than death, disability or retirement if, and to the extent that, the
Option was exercisable immediately prior to such termination of employment.
(e) The Optionee's transfer of employment between the Company and
any of its subsidiaries or between subsidiaries shall not constitute a
termination of employment, and the Committee shall determine in each case
whether an authorized leave of absence for professional education, military
service or otherwise shall constitute a termination of employment.
9. No Right as Stockholder or to Continued Employment.
The Optionee shall not have any rights as a stockholder of the
Company with respect to any shares covered by the Option prior to the date of
issuance to the Optionee of the certificate or certificates for such shares. The
Option does not confer upon the Optionee any right to continued employment by
the Company or any of its subsidiaries, or interfere in any way with the right
of the Company or of its subsidiaries to terminate the employment of the
Optionee (subject to the terms and conditions of any applicable employment
agreement between the Company or any of its subsidiaries and the Optionee).
10. Issuance of Shares; Restrictions.
(a) Subject to the conditions, restrictions and other qualifications
provided in this Section 10, the Company shall, within thirty (30) business days
after the Option has been duly exercised in whole or in part, deliver to the
person who exercised the Option one or more certificates, registered in the name
of such person, for the number of shares of Common Stock with respect to which
the Option has been exercised. The Company may legend any stock certificate
issued hereunder to reflect any restrictions provided for in this Section 10,
including but not limited to a "stop transfer" legend pursuant to Section 10(b)
below.
(b) Unless the shares subject to the Option have been registered
under the Securities Act of 1933, as amended (the "Act") (and, if the person
exercising the Option may be deemed an "affiliate" of the Company as such term
is defined in Rule 405 under the Act, such shares have been registered under the
Act for resale by such person), or the Company has determined that an exemption
from registration under the Act is available, (i) any exercise of the Option
shall be deemed a confirmation by the person effecting such exercise that he or
she is acquiring the subject Option Shares for his or her own account for
investment, and not with a view to the resale or distribution of all or any part
thereof, and (ii) the Company may require, prior to and as a condition of the
issuance of any shares of Common Stock pursuant to such exercise, that the
person exercising the Option furnish the Company with a further written
representation in a form prescribed by the Committee to the effect that (A) such
person acquiring such shares solely with a view to investment for such person's
own account and not with a view to the resale or distribution of all or any part
thereof, and (B) such person will not dispose of any of such shares otherwise
than in accordance with the provisions of Rule 144 under the Act unless and
until either the sale or distribution of such shares is registered under the Act
or the Company is satisfied that an exemption from such registration is
available.
(c) Anything herein contained to the contrary notwithstanding, the
Company shall not be obliged to sell or issue any shares of Common Stock
pursuant to the exercise of the Option unless and until the Company is satisfied
that such sale or issuance complies with all applicable provisions of the Act
and all other laws and/or regulations by which the Company is bound or to which
the Company or such shares are subject, and the Company reserves the right to
delay the delivery of Option Shares for such period of time as may be required
in order to effect compliance with the applicable provisions of the Act and all
other applicable laws and/or regulations as aforesaid.
11. Acknowledgement.
The Optionee hereby acknowledges receipt of a copy of and agrees to
accept as final and conclusive all determinations, interpretations and
constructions by the Committee with respect to, this Agreement and the Option.
All capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in.
12. Reservation of Common Stock.
The Company shall at all times reserve and keep available for
issuance upon the exercise of the Option such manner of shares of Common Stock
(whether unissued or treasury or both) as shall be sufficient to permit the full
exercise of the Option.
13. Expense.
The Company shall pay any and all expenses, transfer taxes and other
charges, including all costs associated with the preparation, issuance and
delivery of stock certificates, that may be incurred in respect of the issuance
or delivery of Option Shares upon any exercise of the Option.
14. Entire Agreement.
The parties hereto agree that this Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements,
understandings, negotiations and discussions, both written and oral, between the
parties hereto with respect to the Existing Option. The
parties further agree that the Existing Agreement is hereby terminated without
obligation to either party hereto, provided, however, that nothing in this
Agreement shall in any way modify any portion of any Existing Agreement that
does not relate to the Existing Option.
15. Miscellaneous
(a) No provision hereof, in the absence of affirmative action by the
Optionee (or other person entitled to exercise the Option at such time) to
effect any exercise hereunder, shall give rise to any liability of the Optionee
(or any such other person) for the Exercise Price or as a stockholder of the
Company, regardless of whether such liability is asserted by the Company or by
any creditor or creditors of the Company.
(b) Neither this Agreement nor any of the terms or conditions hereof
may be waived, amended or modified, except with the written consent of the
Company and the Optionee.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
(d) The captions and Section headings used in this Agreement are for
convenience of reference only, and shall not affect or be referred to in
connection with any interpretation or construction hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the Date of Grant first set forth above.
COMMODORE ENVIRONMENTAL SERVICES, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
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Name
Title
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Optionee: /s/ Xxxxx X. Xxxxxx
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Optionee Social Security No.:
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