EXHIBIT 10(h)(ii)
DIRECTOR STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of August 9, 1996, is made and entered into by
and between XXXXX NURSERY FARMS, INC., a Florida corporation (the "Company"),
and XXXXXXXXX XXXX (the "Optionee").
WITNESSETH:
WHEREAS, the Company has approved the grant of non-qualified
stock options to the directors of the Company; and
WHEREAS, the Optionee is a director of the Company;
NOW, THEREFORE, in consideration of the Optionee's agreement to serve
as a director of the Company, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. GRANT OF THE OPTION. Subject to and upon the terms and conditions
set forth in this Agreement, the Company hereby grants to the Optionee a
non-qualified stock option (the "Option") to purchase up to TWO THOUSAND FIVE
HUNDRED (2,500) shares (the "Option Shares") of the Company's common stock, par
value $.001 per share (the "Common Stock"), at a price equal to $3.125 per
share.
2. TERM. The term of the Option shall commence on the date of this
Agreement, and, subject to the provisions of Section 5 of this Agreement, shall
expire ten (10) years from the date of this Agreement. Upon its termination, the
Option shall be of no further force and effect and shall not be exercisable to
any extent.
3. VESTING. Subject to the provisions of Section 5 of this Agreement,
the right of the Optionee to purchase the Option Shares under the Option shall
vest over a period of five (5) years at the
rate of twenty percent (20%) per year, with the first twenty percent (20%) to
vest on the anniversary date of this Agreement, and each additional twenty
percent (20%) to vest on each subsequent anniversary date of this Agreement.
4. RESTRICTIONS ON TRANSFER. The Optionee may not transfer any of the
Optionee's rights in the Option or under this Agreement except upon the
Optionee's death.
5. TERMINATION OF OPTION ON TERMINATION OF EMPLOYMENT.
(a) If the Optionee's employment with the Company terminates by
reason of death, the Option shall become fully vested and may thereafter be
immediately exercised by the legal represen tative of the estate or by the
legatee of the Optionee under the will of the Optionee, for a period of three
years from the date of death or until the expiration of the stated term of the
Option, whichever period is shorter.
(b) If the Optionee's employment with the Company terminates by
reason of Disability, the Option shall become fully vested and may thereafter be
exercised for a period of three years from the date of such termination of
employment or the expiration of the stated term of such Option, whichever period
is shorter.
(c) If the Optionee's employment with the Company terminates by
reason of Retirement, the Option may thereafter be exercised to the extent it
was exercisable at the time of Retire ment for a period of three (3) years from
the date of Retirement or the expiration of the stated term of the Option,
whichever period is shorter.
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(d) If the Optionee's employment with the Company terminates for any
reason other than death, Disability or Retire ment, the Option shall thereupon
terminate, except that if the Optionee's employment with the Company
involuntarily terminated without Cause, such Option may, to the extent vested as
of such date, be exercised for the lesser of three (3) months from the date of
the Optionee's termination or the balance of the Option's stated term.
(e) For purposes of this Agreement, "Disability" shall mean a
written determination by a competent physician that the Optionee has been
physically or mentally unable to perform his or her duties as an employee of the
Company and that such condition has existed for an aggregate of one hundred
twenty (120) days during any period of twelve (12) consecutive months; "Cause"
shall mean a felony conviction of the Optionee or the failure of the Optionee to
contest prosecution for a felony, or the Optionee's willful misconduct or
dishonesty, any of which is directly and materially harmful to the business or
reputation of the Company; and "Retirement" means retirement from employment on
or after reaching age 65.
6. ADJUSTMENT IN CERTAIN EVENTS.
(a) In the event of any stock dividend or stock split, the Company
(subject to any required action by the shareholders of the Company) shall make
such equitable adjustments as are necessary and appropriate to protect the
Option from dilution in the number, kind and the exercise price of the Option
Shares underlying the Option; provided, however, that the Company shall not be
required to make any such adjustments in the event of a change which does not
result in a dilution of at least ten percent (10%) in the number or exercise
price of the Option Shares.
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(b) Except as expressly provided by Section 6(a), the Company shall
be under no obligation to make any adjustments to the Option in the event of any
other changes involving the Company's capital structure, including, but not
limited to, merger, xxxxxxx dation, dissolution, liquidation, sale of assets or
sale or redemption of capital stock. Furthermore, this Agreement shall not in
any way limit or affect the right of the Company to make such changes in its
capital structure.
7. PRIVILEGE OF STOCK OWNERSHIP. The Optionee shall not be deemed to be
the holder of, or to have any of the rights of a shareholder with respect to,
any Option Shares unless and until the Optionee properly exercises the Option in
accordance with the requirements of Sections 8 and 9. Upon the proper exercise
of the Option, the Optionee shall have full voting and other ownership rights
with respect to the Option Shares.
8. MANNER OF EXERCISING OPTION. The Option may be exercised only as to
whole shares and only by written notice signed by the Optionee (or in the case
of exercise after Optionee's death or mental disability by Optionee's legal
representative, executor, administrator or heir or legatee, as applicable), and
mailed or delivered to the Secretary of the Company at its principal office. The
notice shall specify the number of Option Shares with respect to which the
Option is being exercised. The notice must be accompanied by payment in full for
such Shares in cash and include any representations required by Section 9. If
the Option is exercised by a person other than the Optionee, such person must
provide the Company with proof, in a form satisfactory to the Company and its
counsel, that such person has the right to exercise the Option. The Company
shall have the right to accept payment for the Option in a form other than cash,
in the Company's sole discretion.
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9. COMPLIANCE WITH LAWS AND REGULATIONS.
(a) Prior to the exercise of the Option, the Optionee shall deliver
to the Company such representations in writing as may be requested by the
Company in order to ensure that the exercise of the Option and the issuance of
the Option Shares will comply with all applicable federal and state securities
laws.
(b) The Optionee acknowledges and agrees that the Option Shares will
not be registered under federal or state securities laws, and that the Option
Shares may not be resold by the Optionee unless such shares are first registered
under federal and applica ble state securities laws or unless such resale is, in
the opinion of the Company's counsel, exempt from such registration require
ments. The Optionee further acknowledges and agrees that the Company has no
intent or obligation to register the Option Shares under federal and state
securities laws, and that the Optionee may not require such registration. The
Optionee represents and warrants that all Option Shares will be acquired for
investment purposes only, and not with a view to their resale or distribution.
(c) If the Company shall determine, in its discretion, that it is
necessary or desirable to obtain the listing, registra tion or qualification of
the Option Shares upon any securities exchange or under any federal or state
law, or the consent or approval of any government regulatory body, then the
Option may not be exercised in whole or in part, and no shares may be issued
under the Option, until such listing, registration, qualification, consent or
approval is obtained free of any conditions deemed unacceptable to the Company.
10. TAXES. The Company shall have the right to require the Optionee to
pay tho the Company, or to make arrangements satisfactory
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to the Company regarding the payment of any federal, state or local taxes
required to be paid or withheld with respect to the Option.
11. EMPLOYMENT. Nothing in this Agreement shall be deemed to grant any
right of continued employment to the Optionee or to limit, restrict or waive any
right of the Company to terminate the Optionee's employment at any time with or
without Cause.
12. MISCELLANEOUS.
(a) ASSIGNMENT. This Agreement may not be assigned by the Optionee
without the prior written consent of the Company. This Agreement shall be
binding upon and inure to the benefit of the parties, and their successors and
assigns.
(b) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties regarding the subject matter hereof. This
Agreement supersedes all prior discussions, agree ment, oral or written between
the parties with respect to the subject matter of this Agreement. This Agreement
may not be modified except in a written document signed by both of the parties.
(c) NOTICES. All notices required or permitted under this Agreement
shall be in writing and shall be deemed to have been duly given upon receipt if
delivered in person or upon the expiration of seven (7) days after the date of
posting, if mailed by registered or certified mail, postage pre-paid to the
parties at the following addresses:
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If to the Company:
Xxxxx Nursery Farms, Inc.
XX Xxx 000
Xxxxxx, Xxxxxx Xxxx 00000
If to the Optionee:
00 Xxxxxxxxx Xxxxx
Xxxxxxxxx 00X
Xxx Xxxx, X.X. 00000
Any party may change the address to which notices to such party shall
be delivered or mailed by giving notice thereof to the other party in the manner
provided by this Section.
(d) GOVERNING LAW. The validity and effect of this Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of Florida without regard to its principles of conflicts of laws.
(e) WAIVER. Any term or condition of this Agreement may be waived at
any time by the party which is entitled to the benefit thereof, but only if such
waiver is evidenced by writing signed by such party. No failure on the part of a
party hereto to exercise, and no delay in exercising, any right, power or remedy
created hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of such right, power or remedy by any such party preclude any
other future exercise thereof or the exercise of any other fight, power or
remedy. No wavier by any party hereto to any breach of or default in any term or
condition of this Agreement shall constitute a waiver of or consent to any
subsequent breach of or default in the same or any other term or condition
hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first written above.
COMPANY
XXXXX NURSERY FARMS, INC.
By:/s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, President
OPTIONEE
By: /s/ XXXXXXXXX XXXX
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Xxxxxxxxx Xxxx
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