300,000 SHARES EXERCISE PRICE: $1.15
STOCK OPTION AGREEMENT - XXXX
THIS STOCK OPTION AGREEMENT - XXXX (the "Option Agreement") made and
effective as of the 15th day of April, 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 XXXX X. XXXX, herein referred
to as "EMPLOYEE", of 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, the variety of services to be rendered by Employee shall
represent an important and valuable aid to the conduct of the Corporation's
business enterprise, and as such Corporation deems it to be in the best
interests of the Corporation to hire Employee;
WHEREAS, in connection with the hiring of Employee, the Corporation has
entered into an Employment and Noncompetition Agreement - Xxxx dated April
15, 1998 (the "Employment Agreement"); and
WHEREAS, the Corporation desires to enter into this 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 300,000 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 Xxxxxxx X.
Xxxxxxxx) 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 on the Commencement
Date of the Employment Agreement (as defined therein).
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 April 15,
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 Option Agreement; (ii) a written Notice of Election to Exercise (the
"Notice of Election") in the form set forth on the Schedule I to Option
Agreement, to this 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
300,000 shares, and the time for exercise has not expired, the Corporation
shall provide the Employee with a new or revised 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 does
not commence on the Commencement Date selected by the Company pursuant to
Section 2.1 of the Employment Agreement, any and all Options hereunder shall
immediately terminate and Employee shall lose all rights to such options,
subject to applicable law. Such Options which have vested as of such
Commencement Date shall be exercisable in accordance with Section 3 of this
Option Agreement.
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 Option Agreement, such Form S-8 to allow for the immediate resale of the
shares subject to the Option Agreement, but only at such time
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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 Option Agreement. Any notice to the Corporation shall be
addressed to the attention of the Chairman of the Board, President and Chief
Executive Officer. Either party may effect a change in such address by a
prior written notice.
7. BINDING ACCEPTANCE. By acceptance of this signed Option Agreement,
the Employee does hereby agree to be bound by all of the terms and conditions
set forth herein.
8. GOVERNING LAW. This Option Agreement shall be construed under the
laws of the Commonwealth of Kentucky.
9. TOTAL AGREEMENT. This Option Agreement is the entire agreement
between the parties hereto relating to the subject matter hereof. This
Option Agreement rescinds any and all prior agreements and understandings
between the parties with respect to the subject matter covered in this Option
Agreement.
IN WITNESS WHEREOF, the Corporation has executed this Option Agreement
by its duly authorized corporate officer as of the date set forth above.
"Corporation"
THERMOVIEW INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx,
Chairman of the Board,
President and Chief
Executive Officer
Accepted by:
"Employee"
/s/ Xxxx X. Xxxx
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XXXX X. XXXX
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SCHEDULE I TO OPTION AGREEMENT
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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 Stock Option Agreement - Xxxx
(the "Options"), dated as of April 15, 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 (maximum 300,000) 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:
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or Account #:
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You are hereby requested to issue a certificate representing the shares in
the name(s), and to the address(es) as specified below:
Name:
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Street: Number of Shares:
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City: State: Zip:
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Social Security or Tax I.D. Number:
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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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