EXHIBIT 10.4
UNIVERSAL HEIGHTS, INC.
STOCK OPTION AGREEMENT
This Agreement, dated as of October 12, 1995, is made between Universal
Heights, Inc., a Delaware corporation, having its principal offices at 00000
X.X. 00xx Xxxxxx, Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000 (the "Company"), and XXX
XXXXXXXXX, who resides at 0000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (the
"Optionee").
W I T N E S S E T H :
1. GRANT OF OPTION. The Company hereby grants to the Optionee, subject to
the terms and conditions herein set forth and as set forth in the Consulting
Agreement (the "Consulting Agreement") dated the date hereof by and between the
Company and the Optionee, the right and option (the "Option") to purchase from
the Company, all or any part of an aggregate of FIFTY-FIVE THOUSAND (55,000)
post-split shares of Common Stock, par value $.01 per share, of the Company (the
"Common Stock"), at an exercise price per share equal to the closing bid price
of the Company's Common Stock as quoted on the NASDAQ SmallCap Market system on
the respective date such Option vests as provided in Section 3 hereof.
2. TERMS AND CONDITIONS. It is understood and agreed that this Option, and
the exercise of said Option, is subject to the terms and conditions set forth
herein and the Consulting Agreement.
3. VESTING AND LIMITATION ON EXERCISE OF OPTION. This Option shall vest
with respect to (i) 30,000 shares of Common Stock issuable upon exercise thereof
on the date thereof (the "Initial 30,000 Option Shares"), and (ii) the remaining
25,000 shares on the date one (1) year from the date hereof (the "Remaining
25,000 Option Shares"). Following the vesting of the Option as provided in this
Section 3, the Option shall not be exercisable with respect to the Initial
30,000 Option Shares and the Remaining 25,000 Option Shares until the date one
(1) year from their respective vesting dates as provided in this Section 3.
4. EXPIRATION OF OPTION. This Option shall not be exercisable after 5:00
p.m. E.S.T. on the date ten (10) years from the respective vesting dates of the
Initial 30,000 Option Shares and the Remaining 25,000 Option Shares as set forth
in Section 3 hereof.
5. NON-ASSIGNABILITY OF OPTION. This Option shall not be given, granted,
sold, exchanged, transferred, pledged, assigned or otherwise incumbered or
disposed of by the Optionee, otherwise than by will or the laws of descent and
distribution, and, during the lifetime of the Optionee, shall not be exercisable
by any other person, but only by him.
6. METHOD OF EXERCISE OF OPTION. The Optionee shall notify the Company by
written notice sent by registered or certified mail, return receipt requested,
addressed to its principal office, or by hand delivery to such office, properly
receipted, as to the number of shares of Common Stock the Optionee desires to
purchase under this Option, which written notice shall be accompanied by the
Optionee's check payable to the order of the Company for the full option price
of such shares of Common Stock. As soon as practicable after the receipt of such
written notice the Company shall, at its principal office, tender to the
Optionee a certificate or certificates issued in the Optionee's name evidencing
the shares of Common Stock purchased by the Optionee hereunder.
7. INVESTMENT REPRESENTATION. The Optionee represents that at the time of
any exercise of this Option, where the shares of Common Stock underlying the
Option are not registered under the Securities Act of 1933, as amended, such
shares of Common Stock will be acquired for investment and not for resale or
with a view to the distribution thereof.
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8. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of changes in
the outstanding Common Stock or the Company by reason of stock dividends,
split-ups, recapitalizations, mergers, consolidations, combinations, exchanges
of shares, separations, reorganizations, or liquidations, the number of shares
of Stock issuable upon the exercise of this Option, the option price thereof and
any limitation on exercise set forth in Section 3 hereof shall be
correspondingly adjusted by the Company. Any such adjustment in the number of
shares of Common Stock issuable upon exercise of this Option shall apply
proportionately to only the then unexercised portion of this Option. If
fractional shares would result from any such adjustment, the adjustment shall be
revised to the next lower whole number of shares.
9. NO RIGHTS AS STOCKHOLDER. The Optionee shall have no rights as a
Stockholder in respect to the shares of Common Stock issuable upon exercise of
this Option as to which this Option shall not have been exercised and payment
made as herein provided.
10. BINDING EFFECT. Except as herein otherwise expressly provided, this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their legal representatives, successors and assigns.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
12. NOTICES. Any notice hereunder shall be delivered by hand or by
registered or certified mail, return receipt requested, to a party at its
address set forth above with a copy to Gusrae, Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx X. Xxxxxxx, Esq., subject to the
right of either party to designate at any time hereafter, in writing, some other
address.
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13. COUNTERPARTS. This Agreement may be exercised in counterparts, each of
which shall constitute one and the same instrument.
14. REGISTRATION RIGHTS. If permitted by the rules and regulations of the
Securities and Exchange Commission, the Company agrees to use its best efforts
to file a registration statement on Form S-8 (or any successor form) covering
the shares of Common Stock issuable upon exercise of this Option with in twelve
(12) months from the date hereof with respect to the Initial 30,000 Option
Shares and twenty-four (24) months from the date hereof with respect to the
Remaining 25,000 Option Shares.
IN WITNESS WHEREOF, Universal Heights, Inc. has caused this Agreement to
be executed by an appropriate officer and the Optionee has executed this
Agreement, both as of the day and year first written.
UNIVERSAL HEIGHTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President
/s/ Xxx Xxxxxxxxx
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XXX XXXXXXXXX, Optionee
