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Exhibit 10.68
OPTION AGREEMENT
THIS AGREEMENT is made effective as of January 8, 1998 by and between
Xxxx Xxxxxxx (hereinafter referred to as "Optionee"), and Decora Industries,
Inc., a Delaware corporation (hereinafter referred to as "Optionor").
RECITALS:
WHEREAS, Optionee has entered into an Employment Agreement with
Optionor's subsidiary Decora Manufacturing dated as of the date hereof;
WHEREAS, the Employment Agreement provides for compensation to Optionee
in the form of the issuance of options;
WHEREAS, Optionor desires to grant to Optionee and Optionee is desirous
of acquiring an option to purchase shares of the common stock of Optionor,
subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, the parties hereby agree as follows:
1. Incorporation of Recitals. The parties hereby incorporate by this
reference the recitals set forth above.
2. Grant of Option. Subject to the terms and conditions hereinafter set
forth, Optionor hereby gives and grants to Optionee the right and option to
purchase authorized but unissued common shares of Optionor at such time and for
the purchase price specified below.
A. Optionor hereby gives and grants to Optionee, an option to
purchase 60,000 shares of the authorized but unissued common stock of Optionor
at an exercise price of $4.75 per share which shall vest as follows: 20,000
options shall vest as of the date hereof; 20,000 options shall vest twelve
months from the date hereof and 20,000 options shall vest twenty-four months
from the date hereof;
B. Each option shall be exercisable for three years from vesting;
and
C. Unvested options shall terminate as set forth in the
Employment Agreement.
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3. Exercise of Option. Optionee may exercise any option granted
hereunder by notifying Optionor in writing of its intention to exercise such
option. A closing date shall then be agreed to in good faith no later than 30
days after the notice, at which time Optionee shall pay the purchase price of
the Shares being purchased, and Optionor shall deliver to Optionee the
certificates for shares duly endorsed. Optionee may purchase all or any part of
the Shares subject to options granted hereby.
4. Representations. Optionor represents and warrants to Optionee that
Optionee, upon proper exercise, shall receive good and marketable title to the
shares of Optionor underlying the options being granted hereby, free of all
pledges, liens and encumbrances, except as stated in paragraph 5.
5. Representations and Warranties of Optionee. Optionee hereby
represents and warrants that:
A. The options granted hereby and the Shares which will be
purchased by and delivered to Optionee upon exercise of
such options are being acquired by Optionee for his own
account and not with a view to resale or other
disposition thereof.
B. Optionee will not sell, transfer, or make any other
disposition of any option or the shares to be purchased
and delivered to Optionee hereunder upon the exercise of
such option unless and until (a) such option or shares,
as applicable, are included in a registration statement
or a post-effective amendment under the Securities Act
which has been filed by the Optionor and declared
effective by the Securities and Exchange Commission (the
"SEC"), or (b) in the opinion of counsel for the
Optionor, no such registration statement or
post-effective amendment is required, or (c) the SEC has
first issued a "no action" letter regarding any such
proposed disposition of any option or the shares.
6. Federal and State Securities Law Requirements. The obligation of the
Optionor to deliver and transfer the shares to the Optionee upon any exercise of
any option shall be subject to the following:
A. Optionor may require Optionee, as an additional
condition of its obligation to deliver the shares upon
exercise of any option hereunder, to make any
representations and warranties (including without limit
those set forth in Paragraph 5 hereof) with respect to
the shares as may, in the opinion of counsel to
Optionor, be required to ensure compliance with the
Securities Act, the securities laws of any state, or any
other applicable law, regulation, or rule of any
governmental agency.
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B. Each certificate representing the shares issued pursuant
to this Agreement shall bear whatever legends are
required by federal or state law or by any governmental
agency. In particular, unless an appropriate
registration statement is filed pursuant to the
Securities Act with respect to the shares, each
certificate representing such shares shall be endorsed
on its face with the following legend or its equivalent:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE
SECURITIES MAY BE SOLD OR TRANSFERRED ONLY IF THEY HAVE
BEEN REGISTERED UNDER SAID ACT OR THERE EXISTS AN
EXEMPTION FROM REGISTRATION UNDER SAID ACT OR THE RULES
AND REGULATIONS THEREUNDER EVIDENCED BY A NO-ACTION
LETTER OR AN OPINION OF COUNSEL TO THE ISSUER OR TO THE
HOLDER HEREOF REASONABLY SATISFACTORY TO THE ISSUER.
7. Restrictions. Optionee:
A. Shall not be entitled to any type of dividend declared
by Optionor, unless and until an option is exercised;
and
B. Shall not be entitled to any voting rights by virtue of
an option; and
C. Acknowledges that the options granted hereby are
personal to Optionee and that Optionee may not sell,
assign, transfer or otherwise dispose of such options to
any other person.
8. Anti-Dilution. If prior to the exercise of any option granted
hereunder Optionor shall have effected one or more stock split-ups, stock
dividends, or other increases or reductions of the number of Shares of its
common stock outstanding without receiving compensation therefor in money,
services or property, the number of Shares of common stock subject to the
options hereby granted shall (a) if a net increase shall have been effected in
the number of outstanding shares of Optionor's common stock, be proportionately
increased and the cash consideration payable per Share shall be proportionately
reduced; and (b) if a net reduction shall have been effected in the number of
outstanding Shares of Optionor's common stock, be proportionately reduced and
the cash consideration payable per Share be proportionately increased.
9. Notice and Opportunity to Cure Default. In the event of a perceived
default of the provisions of this agreement, Optionor agrees to provide Optionee
and his counsel written notice
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of any default and Optionor shall have 10 days from receipt of said notice to
cure the stated default.
10. Agreement to Perform Necessary Acts. The parties hereto agree to
cooperate fully with one another in executing all documents, certificates,
notices, filings and the like and performing all acts reasonably necessary to
carry out the intent of this agreement.
11. Assignment and Transfer. No option granted hereby may be assigned by
Optionee without the prior written consent of Optionor.
12. Amendments. This agreement may not be modified, amended or changed
except by an instrument in writing signed by the parties hereto.
13. Arbitration. Any claim arising out of this agreement shall be
settled by binding arbitration in Albany, New York in accordance with the
Commercial Rules of the American Arbitration Association. The arbitrator shall
be an active member of the New York bar. The arbitrator shall prepare an award
in writing which shall include factual findings and any legal conclusions on
which the decision is based. Judgment upon an award to rendered may be entered
in any court having jurisdiction.
IN WITNESS WHEREOF, the parties have executed this option Agreement as
of the day and year first above written.
OPTIONOR OPTIONEE
DECORA INDUSTRIES, INC. XXXX XXXXXXX
By:____________________________ By:________________________________
Its:___________________________ Its:_______________________________
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