Exhibit 10.28
INCENTIVE STOCK OPTION AGREEMENT
OF
ORIOLE HOMES CORP.
AGREEMENT dated this 14th day of December, 1998, between Oriole Homes
Corp., a Florida corporation (hereinafter called the "Company"), and Xxxxxx
Xxxxxxxx (hereinafter called the "Employee").
W I T N E S S E T H:
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WHEREAS, the Company desires to grant Employee a proprietary interest in
the Company in order to increase his/her efforts on its behalf; and
WHEREAS, the Company has this day granted to the Employee an option to
purchase the number of shares of Class B Common Stock, par value $.10 per share,
of the Company, and at the option price, all as hereinafter stated, such option
to be exercisable not more than five (5) years after the date hereof; and
WHEREAS, the Employee is willing to accept said option and to be bound by
the terms and conditions thereof; and
WHEREAS, the execution and delivery of this Agreement has been duly
authorized by the Board of Directors of the Company;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained and other good and valuable considerations, the
receipt whereof is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
GRANT OF OPTION; ADJUSTMENT
OF SHARES COVERED BY OPTION
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1.1 The Company hereby grants to the Employee an option to purchase from
the Company, upon the terms and conditions hereinafter set forth, 3,500 shares
of Class B Common Stock, par value $.10 per share, of the Company, for a
consideration of $2.25 per share.
1.2 The number of shares of Common Stock above stated, and the purchase
price thereof, shall be subject to adjustment from time to time as provided
herein.
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PAYMENT FOR SHARES
2.1 The option price of the shares to be purchased pursuant to each
exercise of the within option shall be paid to the Company by the Employee in
full, in cash or check or in whole or in part by:
a. transfer to the Company of shares of Class A or Class B Common Stock
having a Fair Market Value equal to the option exercise price at the time of
such exercise; or
b. delivery of instructions to the Company to withhold from the option
shares that would otherwise be issued on the exercise that number of option
shares having a Fair Market Value equal to the option exercise price at the time
of such exercise. If the Fair Market Value of the number of whole shares
transferred or the number of whole option shares surrendered is less than the
total exercise price of the option, the shortfall must be made up in cash or
check.
EXERCISE OF OPTION
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3.1 The within option may be exercised during the lifetime of the Employee
and in whole or in part at any time after December 14, 2000 and thereafter until
on or before December 14, 2003.
3.2 At least twenty days prior to the date upon which all or any portion
of the within option is to be exercised, the person entitled to exercise the
option shall deliver to the Company written notice of his/her election to
exercise all or part of the option, which notice shall specify the date and time
for the exercise of the option and the number of shares in respect to which the
option is to be exercised. The date specified in such notice shall be a business
day and the time specified shall be during the regular business hours of the
Company.
3.3 The person entitled to exercise the option shall, at the date and time
specified in such notice, pay to the Company the consideration set forth in
Section 2 hereof at the principal office of the Company, the option price of the
shares in respect of which the option is being exercised, and contemporaneously,
or as soon thereafter as is practical, the Company shall deliver to the person
entitled to exercise the option, registered in the name of such person,
certificates representing the number of shares of stock or other securities in
respect of which the option is being exercised.
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EMPLOYMENT OF EMPLOYEE
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4. If the services of Employee are terminated for any reason on or prior
to February 22, 2000, the Company has the right to redeem the shares that have
been acquired at the exercise price. If such right of redemption is not
exercised within thirty (30) days from the termination date, the Company's
rights of redemption shall have no further force or effect.
RESTRICTIONS ON EXERCISE OF OPTION
AND SALE OF STOCK BY EMPLOYEE
-----------------------------
5. Unless the option and shares acquired upon the exercise of the option
are registered under the Securities Act of 1933, as amended (the "Securities
Act"), the Employee hereby represents and warrants to the Company that any and
all shares of Class B Common Stock which shall be acquired pursuant to the
exercise of the option shall be acquired for the Employee's own account and not
for the account or beneficial interest of any other person or entity, that such
shares of Class B Common Stock shall be acquired for the Employee's own
investment and that the shares of Class B Common Stock shall not be acquired
with a view to or for resale in connection with the distribution of all or any
part thereof. Furthermore, the Employee agrees that any shares of Class B Common
Stock so acquired will bear an appropriate legend to signify their restriction
under the applicable securities laws and that "stop-transfer" instructions will
be given to the Company's transfer agent.
The Employee agrees to be subject to and bound by any other restrictions
imposed by, or which the Company believes to be necessary or advisable to comply
with, any Federal or State securities laws, including but not limited to
restrictions governing the time and circumstances or disposition of the shares
being acquired by exercise of such option.
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NO RIGHTS AS SHAREHOLDER
OR TO CONTINUED EMPLOYMENT
--------------------------
6. The Employee shall not have any rights as a shareholder of the Company
with respect to any shares of Class B Common Stock prior to the date of issuance
to the Employee of the certificate or certificates for such shares and the grant
of the option does not confer to the Employee any right to be employed by the
Company and will not interfere in any way with the right of the Company to
terminate the employment of the Employee.
NO SECURITIES ACT
REGISTRATION OBLIGATION
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7. The Company shall have no obligation to the Employee to register the
Common Stock under the Securities Act.
MISCELLANEOUS
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8.1 This Agreement shall be binding upon and inure to the benefit of the
Company and its successors and the Employee and his executors and/or
administrators, provided that the within option shall be nontransferable by the
Employee otherwise than by will or by the laws of descent and distribution, and
during the lifetime of the Employee the option shall be exercisable only by him.
8.2 In the event there are any changes in the Class B Common Stock of the
Company through merger, consolidation, recapitalization, stock dividend or other
change in the corporate or capital structure of the Company, appropriate
adjustments, as may seem equitable to the Board of Directors of the Company,
shall be made in the number of shares and the exercise price per share of the
options to prevent dilution of the rights granted hereunder.
8.3 For the purposes of this Agreement, a transfer of the Employee from
the Company to a subsidiary, or vice versa, or from one subsidiary to another,
shall not be deemed a termination of employment.
8.4 This Agreement shall be deemed to be made under and shall be construed
in accordance with the laws of the State of Florida.
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8.5 This Agreement shall become effective as of the date hereof and,
unless sooner terminated, shall remain in effect for a period of five (5) years
from the date hereof. This Agreement may be terminated at any time by mutual
consent of the parties hereto, but no modification or amendment of this
Agreement shall become effective until such modification or amendment shall have
been approved by the Board of Directors of the Company.
8.6 The terms and conditions of the 1994 Stock Option Plan of Oriole Homes
Corp., as approved by Shareholders on April 5, 1994 (the "Plan") are hereby
incorporated herein by reference and if there is any conflict between this
Agreement and the Plan the provisions of the Plan shall govern.
IN WITNESS WHEREOF, the Company has caused this Stock Option Agreement to
be executed by its President or Vice President and the Employee has executed
this Agreement, the day and year first above written.
ORIOLE HOMES CORP.
By: /S/ XXXX X. XXXX
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Xxxx X. Xxxx, President
/S/ XXXXXX XXXXXXXX
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Employee
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