315,248 SHARES EXERCISE PRICE: $1.15
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AMENDED AND RESTATED STOCK OPTION AGREEMENT -
XXXXXXX X. XXXXXXXX
THIS AMENDED AND RESTATED STOCK OPTION AGREEMENT - XXXXXXX X. XXXXXXXX (the
"Amended and Restated Option Agreement") made and effective as of the 13th day
of January, 1998, between THERMOVIEW INDUSTRIES, INC., herein referred to as the
"CORPORATION", being incorporated under the laws of the State of Nevada,
maintaining its principal place of business at 0000 Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000; and XXXXXXX X. XXXXXXXX, herein referred to as "EMPLOYEE", of
000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000.
WITNESSETH:
WHEREAS, the Corporation and Employee mutually desire to amend and restate
that certain Stock Option Agreement - Xxxxxxxx, dated as of January 13, 1998
(the "Original Option Agreement"), whereby the Original Option Agreement shall
be cancelled in its entirety and replaced by this Amended and Restated Option
Agreement;
WHEREAS, the Corporation desires to enter into this Amended and Restated
Option Agreement with the Employee containing the terms and conditions
hereinafter set forth, and to grant to Employee stock options to purchase shares
of the common stock of the Corporation.
NOW, THEREFORE, in consideration of the promises and mutual agreements of
the parties herein contained, and for other good and valuable consideration, the
parties agree as follows:
1. GRANT OF OPTIONS. In consideration of the foregoing, the Corporation
hereby grants and issues to Employee the rights at the election of the Employee
(hereinafter referred to as the "Options") to purchase up to an aggregate of
315,248 shares of Common Stock, $.001 par value, of the Corporation (the "Common
Stock") at a price of $1.15 per share.
1.1 ANTI-DILUTION PROVISION. The number of shares of Common Stock
underlying the Options shall be proportionately increased in the event that the
Corporation causes to be issued additional shares in the form of a stock
dividend, stock splits, option exercise at less than book value (with the
exception of the exercise of options under (i) the Stock Option Agreement -
Xxxxxxxx, dated October 22, 1997, by and between Thermo-Tilt Window Company, a
Delaware corporation ("Thermo-Tilt") and Xxxxxx X. Xxxxxxxx; (ii) the Stock
Option Agreement - Xxxxxxxx, dated October 22, 1997, by and between Thermo-Tilt
and Xxxxx Xxxxxxxx, (iii) the Stock Option
Agreement - LD Capital, Inc., dated October 22, 1997, by and between
Thermo-Tilt and LD Capital, Inc. and (iv) the Stock Option Agreement -
Xxxxxxxx, dated October 22, 1997, by and between Thermo-Tilt and Employee) or
other such reclassification; or conversely, proportionately decreased in the
event of a reverse split or reclassification. In the event that stockholders
of the Corporation are granted the right to purchase additional shares from
the proceeds of a cash dividend by the Corporation, such event shall be
treated as a stock dividend as relates to the option.
2. VESTING OF OPTIONS. The Options shall vest as follows: (i) options
representing 108,707 shares of Common Stock shall vest upon the effective date
of this Amended and Restated Option Agreement; (ii) options representing 10,872
shares of Common Stock shall vest on February 1, 1998 and (iii) the remainder of
the options, representing 195,669 shares of Common Stock, shall vest ratably on
a monthly basis commencing on March 1, 1998, and the first day of each month
thereafter through November 1, 1998, so that options representing 21,741 whole
shares of Common Stock shall vest at the beginning of each such calendar month.
3. EXCERCISEABILITY/EXPIRATION OF OPTIONS. Once vested, the Options
shall be exercisable, in whole or in part, at an exercise price of $1.15 per
share and shall expire at 3:00 p.m. Louisville, Kentucky time on January 13,
2003. The Options may be exercised by giving written notice to the Corporation
to that effect. The Options evidenced hereby shall be exercisable by the
delivery to and receipt by the Corporation of: (i) this original Amended and
Restated Option Agreement; (ii) a written Notice of Election to Exercise (the
"Notice of Election") in the form set forth on the Schedule I to Amended and
Restated Option Agreement, to this Amended and Restated Option Agreement,
attached hereto and incorporated herein by reference, specifying the number of
shares to be purchased in not less than one thousand (1,000) share
denominations; and (iii) payment of the full purchase price, either by federal
funds wire transfer to the bank depository to be specified by the Corporation or
by certified check, U.S. funds, payable to the order of the Corporation, or on
such other terms as may be acceptable to the Corporation. If the Notice of
Exercise is for less than the total of 315,248 shares, and the time for exercise
has not expired, the Corporation shall provide the Employee with a new or
revised Amended and Restated Option Agreement for the balance of the shares then
remaining unexercised, upon the same terms and conditions as stated herein.
4. TERMINATION OF OPTIONS. In the event Employee's employment is
terminated by the Company for "good cause" pursuant to Section 2.1(ii) or by
Employee pursuant to Section 2.1(iii), any and all Options which have not vested
as of the termination date shall immediately terminate and Employee shall lose
all rights to such options, subject to applicable law. Such Options which have
vested as of the termination date shall be exercisable in accordance with
Section 3 of this Amended and Restated Option Agreement.
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5. REGISTRATION RIGHT. The Corporation represents that upon delivery to
and receipt by the Corporation of a written notice from Employee to the effect
below, the Corporation will use its best efforts to prepare, file, and maintain
with the appropriate regulatory authorities an effective Registration Statement
on Form S-8 (the "Form S-8"), or other applicable form, for the shares of its
Common Stock underlying the Options granted by this Amended and Restated Option
Agreement, such Form S-8 to allow for the immediate resale of the shares subject
to the Amended and Restated Option Agreement, but only at such time as the
Corporation is in compliance with the requirements to use the Form S-8 or other
applicable form.
6. NOTICES. All notices required to be given by either party shall be in
writing and (i) delivered by hand, (ii) sent by recognized overnight courier, or
(iii) sent by registered or certified mail, return receipt requested, to the
party being noticed at the address set forth in the first paragraph of this
Amended and Restated Option Agreement. Any notice to the Corporation shall be
addressed to the attention of the President. Either party may effect a change
in such address by a prior written notice.
7. BINDING ACCEPTANCE. By acceptance of this signed Amended and Restated
Option Agreement, the Employee does hereby agree to be bound by all of the terms
and conditions set forth herein.
8. GOVERNING LAW. This Amended and Restated Option Agreement shall be
construed under the laws of the Commonwealth of Kentucky.
9. TOTAL AGREEMENT. This Amended and Restated Option Agreement is the
entire agreement between the parties hereto relating to the subject matter
hereof. This Amended and Restated Option Agreement rescinds any and all prior
agreements and understandings between the parties with respect to the subject
matter covered in this Amended and Restated Option Agreement.
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IN WITNESS WHEREOF, the Corporation has executed this Amended and Restated
Option Agreement by its duly authorized corporate officer as of the date set
forth above.
"Corporation"
THERMOVIEW INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
Chief Operating Officer
Accepted by:
"Employee"
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
XXXXXXX X. XXXXXXXX
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SCHEDULE I TO AMENDED AND RESTATED OPTION AGREEMENT
NOTICE OF ELECTION TO EXERCISE
TO: ThermoView Industries, Inc.
0000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
The undersigned Purchaser hereby elects to purchase ____ shares (the "Shares")
of the common stock ($.001 par value) of ThermoView Industries, Inc. (the
"Corporation") pursuant to the terms of the Amended and Restated Stock Option
Agreement - Xxxxxxx X. Xxxxxxxx (the "Options"), dated as of January 13, 1998,
by and between the undersigned and the Corporation, (which Options must be
surrendered with this Notice of Election To Exercise).
Payment in full (U.S. Funds) is hereby tendered in the aggregate sum of
$______________, which sum represents shares (315,248 maximum) times the per
share purchase price of $1.15 by:
( ) Certified Check or ( ) Federal Funds Wire Transfer to the
Corporation's depository bank in accordance with your prior written
instructions.
( ) By Delivery vs Payment at: ________________________________________
or Account #: ______________________________________
You are hereby requested to issue a certificate representing the shares in the
name(s), and to the address(es) as specified below:
Name: _______________________________________________________________________
Street:____________________________________ Number of Shares: _______________
City:__________________________________ State: _________ Zip: _______________
Social Security or Tax I.D. Number: ____________________________________
Purchaser acknowledges that no formal memorandum, prospectus or offering
document of any kind has been delivered by the Corporation with specific regard
to the exercise of these Options. However, by virtue of the Purchaser's
employment relationship with, and activities on behalf of the Corporation,
sufficient business and other information has been made available by the
Corporation to enable Purchaser to fully evaluate the investment potential of
the Shares being acquired. The Corporation's representatives have provided
information and answered all material questions.
Date: ___________________________, _____ ______________________
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If no registration statement as to the Options and the Shares is effective as of
the date of exercise, include the following paragraph:
The purchaser represents and warrants that it is purchasing the Shares for
investment and not with a view to distribution thereof and understands and
acknowledges that the Stock Certificate(s) representing the Shares shall bear
the following legend:
The shares represented by this certificate have
not been registered or qualified for sale under
the Securities Act of 1933, as amended (the
"Act"), or any state securities or blue sky laws,
and may not be sold, transferred or otherwise
disposed of except pursuant to an exemption from
registration or qualification thereunder. The
Corporation may require, as a condition to transfer
of this certificate, an opinion of counsel
satisfactory to the Corporation to the effect that
such transfer will not be in violation of the Act or
any such laws.
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