Exhibit 2
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STOCK OPTION AGREEMENT
UNDER 1991 STOCK OPTION PLAN
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AGREEMENT made as of the 26th day of April, 1994 between
METRO-TEL CORP., a Delaware corporation (hereinafter called the "Company"), and
Xxxxxxxxx X. Xxxxxxxxxx (hereinafter called the "Employee").
W I T N E S S E T H :
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WHEREAS, the Board of Directors of the Company is of the
opinion that the interests of the Company will be promoted by encouraging
Employee to acquire or increase a proprietary interest in the Company, thus
providing Employee with an opportunity to participate in the long-term growth of
the Company; and
WHEREAS, to that end, the Board of Directors adopted, and the
Company's stockholders approved, the Company's 1991 Stock Option Plan
(hereinafter the "Plan");
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants hereinafter set forth and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto do hereby agree as
follows:
1. The Company hereby grants to the Employee the right and
option to purchase, on the terms and conditions hereinafter set forth, all or
any part of an aggregate of 50,000 shares of the authorized Common Stock of the
Company, par value $.025 per share, at the purchase price of $1.03125 per share
(110% of the fair market value of the Company's Common Stock on the date hereof
determined in accordance with Section 5 of the Plan), such number of shares and
price being subject to adjustment as provided in Section 7(a) below. The Company
intends that this option
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qualify as an Incentive Stock Option under Section 422A(b) of the Internal
Revenue Code of 1954, as amended, (the "Code").
2. Shares to be issued on the exercise of this option, at the
election of the Company, may be either authorized but unissued shares or shares
previously issued and reacquired by the Company.
3. Except as otherwise herein provided, this option may be
exercised in whole or in part at any time during the term of this option. This
option shall not be exercisable at any time in an amount less than 100 shares
(or the remaining shares then covered by and purchasable under this option if
less than 100 shares). This option may not be exercised in respect of a fraction
of a share.
4. The term of this option shall commence on the date hereof
and shall expire at the close of business on April 25, 1999, subject to earlier
termination as hereinafter provided.
5. This option shall be exercisable, during the Employee's
lifetime, only by the Employee, and notwithstanding anything herein to the
contrary:
(a) In the event that the employment of Employee with
the Company, or one of its subsidiaries or a corporation or a
parent or subsidiary corporation of a corporation assuming
this option in a transaction to which Section 425(a) of the
Code applies, shall be terminated during the term of this
option otherwise than by reason of death or disability (within
the meaning of Section 22(e)(3) of the Code), this option may
be exercised by the Employee, to the extent the Employee was
entitled to do so at the termination of the Employee's
employment, at any time within three months after such
termination, but not thereafter, and in no event after the
date on which,
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except for such termination of employment, this option would
otherwise expire; provided, however, that if Employee's
employment shall be terminated either (a) for cause, or (b)
without the consent of the Company, this option shall
terminate immediately upon termination of employment.
(b) In the event of termination of such employment
during the term of this option by reason of disability (within
the meaning of Section 22(e)(3) of the Code), the Employee may
exercise this option, to the extent that the Employee was
entitled to do so upon the effective date the termination of
such employment, at any time within one year after such date,
but not thereafter and in no event after the date on which,
except for such termination of employment, this option would
otherwise expire; and
(c) If the Employee shall die (i) while the Employee
is so employed, (ii) within three months after the termination
of such employment (unless such termination was for cause or
without the consent of the Company or by reason of disability)
or (iii) or within one year following termination of such
employment if such termination was by reason of disability
(within the meaning of Section 22(e)(3) of the Code), this
option may be exercised, to the extent that the Employee was
entitled to do so at the date of death, by the Employee's
executor, administrator or other person at the time entitled
by law to his rights under this option, at any time within one
year after the date of the Employee's death, and in no event
after the date on which, except for such death, this option
would otherwise expire.
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6. This option may be exercised from time to time by the
giving of written notice of exercise to the Company specifying the number of
shares to be purchased and accompanied by such other documents as the Company
may require. The exercise price shall be paid, at Employee's option:
(i) by cash or by certified check; or
(ii) by transferring (to the extent permitted by Rule
l6b-3 promulgated under the Securities Exchange Act
of 1934) to the Company previously acquired shares of
the Company's Common Stock having an aggregate fair
market value on the date of option exercise equal to
the aggregate option exercise price of all options
being exercised; or
(iii) by transferring (to the extent permitted by Rule
l6b-3 promulgated under the Securities Exchange Act
of 1934) to the Company previously acquired shares of
the Company's Common Stock having an aggregate fair
market value on the date of option exercise less than
the aggregate option exercise price of all options
being exercised and cash or certified check for the
balance of the aggregate option exercise price of all
options being exercised.
Unless otherwise required by the Code and the applicable
regulations promulgated thereunder, the fair market value of such shares of the
Company's Common Stock shall be determined in accordance with the methods
described in Article 5 of the Plan but as of the date of option exercise. The
certificate representing the shares purchased shall be delivered to the Employee
as soon as practicable after the receipt by the Company of such notice and
payment.
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7. (a) In the event that, prior to the issuance by the Company
of all the shares of Common Stock in respect of which this option has been
granted, there shall be any change in the Common Stock of the Company by reason
of any stock dividend, stock split-up, stock combination, recapitalization,
merger or consolidation in which the Company is the surviving corporation,
reorganization or the like, the remaining number of shares of Common Stock still
subject to this option, the option price and the number of shares which may be
exercised in any one period shall be appropriately adjusted (but without regard
to fractions) by the Company's Board of Directors, whose determination in each
such case shall be conclusive and binding on the Company and the Employee.
(b) In the event of: (i) the liquidation or dissolution of
the Company; (ii) a merger or consolidation in which the Company is not the
surviving corporation; or (iii) other capital reorganization in which more than
fifty percent (50%) of the shares of the Company entitled to vote are exchanged,
this option shall terminate unless other provision is made therefor in the
transaction.
8. Neither the Employee nor the legatee or legatees of this
option under the Employee's last will nor the Employee's personal
representatives or distributees shall be, or have any of the rights or
privileges of, a shareholder of the Company in respect of any of the shares
issuable upon the exercise of the option hereby granted unless and until
certificates representing such shares shall have been issued and delivered.
9. The Company shall be under no obligation to issue shares as
to which Employee shall have exercised this option unless either: (i) a
Registration Statement under the Securities Act of 1933, as amended, or any
succeeding act (collective the "Act"), with respect to such shares shall then be
effective or (ii) there is an exemption from registration under the Act for the
issuance of such shares. Employee acknowledges that such shares are not
presently registered under
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the Act. The Employee agrees that the Company is under no obligation to register
this option or any of the shares underlying this option or do any act which may
be requisite to the Employee's securing an exemption from the registration
requirements of the Act in connection with any disposition of such shares; nor
is the Company under any obligation to register any of the shares or otherwise
qualify them for sale under any state law. Accordingly, any shares acquired
hereunder must be held indefinitely unless they are registered under the Act or
the disposition thereof is exempt from the registration requirements of the Act.
Any sale of the shares or any part thereof made in reliance on Rule 144 of the
Securities and Exchange Commission under the Act can be made only in limited
amounts in accordance with the terms and conditions of that Rule. The Employee
hereby represents, warrants and agrees for the Employee and the Employees
legatees, personal representatives and distributees that (a) unless the shares
underlying this option are registered under the Act, any shares purchased by the
Employee or the Employee's legatees or personal representatives or distributees
upon exercise, in whole or in part, of this option will be acquired for
investment for the Employee's and the Employee's legatees, personal
representatives and distributees own account and not with a view to the
distribution or resale thereof within the meaning of the Act unless the shares
so acquired shall have been registered pursuant to the Act; (b) at no time will
such shares be disposed of unless said shares are then registered under the Act
or the disposition is, in the opinion of counsel for the Company, exempt from
the registration requirements of the Act; (c) in connection with any proposed
disposition, the Employee or the Employee's legatees, legal representatives or
distributees, as the case may be, will furnish the Company and its counsel with
all such information as reasonably requested, which information shall be true
and accurate and not fail to state any information necessary to make the
statements made therein not misleading; (d) if requested, such persons shall
furnish the Company
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or its counsel with an opinion of counsel satisfactory to the Company that the
proposed disposition is exempt from the registration requirements of the Act;
(e) any other provision of this option to the contrary notwithstanding, the
Company shall be under no obligation to issue or deliver certificates
representing shares issuable upon the exercise of this option, although notice
and payment be duly given, unless and until the Employee or the Employee's
legatees, personal representatives or distributees shall confirm, as of that
time, the truth and accuracy of the representations and warranties made in this
Paragraph 10; (f) certificates for any shares acquired hereunder may bear a
legend referring to the restrictions on disposition of such shares under the Act
and that, in the event such certificates are at any time replaced with
certificates not bearing such a legend, such certificates will be surrendered to
the Company or its transfer agent upon request at any time prior to the
disposition of the shares represented thereby to be relegended with such legend
as may, in the opinion of counsel for the Company, then be appropriate to
further compliance with applicable law; and (g) the Company may refuse to
transfer on its books any shares acquired hereunder unless it is satisfied that
the transfer is made in compliance with the provisions hereof. If at any time
the Company's Board of Directors shall determine, in its discretion, that the
listing or qualification of the shares subject to this option on any securities
exchange or under any applicable law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or in
connection with, the exercise of this option or the issue of shares hereunder,
this option may not be exercised in whole or in part unless such listing,
qualification, consent or approval shall have been effected or obtained free of
any conditions that are not acceptable to the Company's Board of Directors.
10. This option is not transferable by the Employee otherwise
than by will or the laws of descent and distribution and is exercisable during
the Employee's lifetime only by the
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Employee. This option and the rights and privileges conferred hereby shall not
be transferred, assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise) and shall not be subject to execution,
attachment, or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of this option or any right or privilege
conferred hereby, contrary to the provisions hereof, or upon any levy of any
attachment or similar process upon the rights and privileges conferred hereby
which is not discharged within fifteen days, this option and the rights and
privileges conferred hereby shall, to the extent not theretofore exercised,
immediately become null and void.
11. Any notice to be given hereunder shall be in writing
addressed to the Company at 000 Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxx
00000, and any notice to the Employee shall be addressed to the Employee at 00
Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000 or at such other address as either
party may hereafter designate in writing to the other. Any such notice shall be
deemed to have been duly given if and when enclosed in a properly sealed
envelope or wrapper, addressed as aforesaid, registered, with return receipt
requested, and deposited, first class postage and registry fees prepaid, in a
post office or branch post office regularly maintained by the United States
Government.
12. This Agreement, together with the Plan, constitutes the
entire agreement and understanding between the Company and the Employee, and
supersedes all prior agreements and understanding relating to the subject matter
hereof, and this Agreement may not be modified or amended or any term or
provision hereof waived or discharged except in writing, signed by the party
against whom such amendment, modification, waiver or discharge is sought to be
enforced. In the event of a conflict between the terms of this Agreement and the
terms of the Plan, the terms of the
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Plan shall govern. References herein to determinations by the Company's Board of
Directors shall be deemed to include determinations by any committee appointed
by the Board of Directors to administer the Plan. All the terms of this
Agreement shall be binding upon the respective personal representatives,
successors and assigns of the parties hereto and shall inure to the benefit of
and be enforceable by the parties hereto and their respective personal
representatives, successors and assigns.
13. This Agreement shall be governed and construed in
accordance with the laws of New York, except insofar as the laws of the State of
Delaware shall specifically and mandatorily apply.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement the day and year first above written.
METRO-TEL CORP.
By: XXXXX XXXXX
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Xxxxx Xxxxx, Secretary
XXXXXXXXX X. XXXXXXXXXX
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Xxxxxxxxx X. Xxxxxxxxxx
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