DIRECTORS' STOCK OPTION AGREEMENT
By this Agreement, Xxxxxx Xxxxxx Holding Corporation (the
"Company"), located at 00000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, grants to
Xxxxxxx X. Xxxxx (the "Director"), of 000 Xxxxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxx 00000 certain options to purchase the Company's common stock (the
"Common Stock") according to the following terms and conditions:
ARTICLE 1: TERM OF AGREEMENT
1.01. Term. The term of this Agreement shall begin on April
7, 1997, and shall terminate on June 30, 1999, subject to the discretion
of the Company's shareholders.
ARTICLE 2: DUTIES OF DIRECTOR
2.01. Duties. The Director shall serve on the Company's Board
of Directors, at the discretion of the Company's shareholders, and shall
perform all duties commonly discharged by a person in such position. If
the Director is appointed as a consultant to the Company, the Director
shall serve in such capacity or capacities as may be agreed. Nothing
shall be construed, however, to require the Director's appointment as a
consultant to the Company.
ARTICLE 3: DIRECTOR BENEFITS
3.01. Nonstatutory Stock Option. Grant of Option. By
this Paragraph, the Company agrees that it will cause to be granted to
the Director an option (the "Option") to purchase 75,000 shares of common
stock of CRTM (or successor) ("Common Shares") at a purchase price of
seventy (70%) percent of the average trading price of the Common Stock,
as reported by NASDAQ, for the five (5) trading days immediately
preceding the date the Option is granted. One-third (1/3) of the Option
shall vest immediately upon the date hereof and the remaining two-thirds
(2/3) of the Option shall vest at the rate of one-third (1/3) on each of
the following dates hereafter, during the term of service under this
Agreement, and provided that Director is then currently serving as a
director of the Company on such dates: June 30, 1998; and June 30, 1999.
Any vested portion of the Option may be exercised in whole or in part at
any time up to and including April 6, 2002. It is agreed that the
Director shall not have any of the rights of, nor be treated as, a
shareholder with respect to the shares subject to this Option until the
Director has exercised the Option, delivery of the stock certificates for
such shares has been made to the Director, and the Director has become
the shareholder of record of such shares. Any vested portion of the
Option shall not be transferable otherwise than by will or the laws of
descent and distribution, and any vested portion of the Option may be
exercised, during the lifetime of the Director, only by him. More
particularly (but without limiting the generality of the foregoing), any
vested portion of the Option may not be assigned, transferred (except as
provided above), pledged, or hypothecated in any way, shall not be
assignable by operation of law, and shall not be subject to execution,
attachment, or similar process. Any attempted assignment, transfer,
pledge, hypothecation, or other disposition of any vested portion of the
Option contrary to the provisions hereof, and the levy of any execution,
attachment, or similar process upon the Option, shall be null and void
and without effect. Such vested portion of the Option may be exercised
by Director or by his executors, administrators, or other legal
representatives, heirs, legatees, next of kin, or distributees within
three months, but not later than three months, after the date of the
legal qualification of the executors or administrators of his estate,
provided diligent efforts are made and such qualification is obtained
within a reasonable time after his death. Notwithstanding anything in
this Agreement to the contrary, any vested portion of the Option herein
granted to Director shall in no event be exercisable after the expiration
of five (5) years from the date of this Agreement. If, at any time prior
to the fifth anniversary of the date of this Agreement, the Company
proposes to register any of its securities under the Securities Act
(other than by a registration on Form X-0, X-0 or any successor similar
forms or any other form not available for registering the Common Shares
underlying the Option for sale to the public), whether for sale for its
own account or other security holders, the Company will, each such time,
at least 60 days prior to filing the registration statement, give written
notice to the Director of the Company's intention to do so. Upon the
written request of the Director made within 45 days after the receipt of
any such notice (which request shall specify the underlying Common Shares
intended to be disposed of by the Director), the Company will use
reasonable efforts to cause to be filed a registration statement for the
registration under the Securities Act of all underlying Common Shares
which the Company has been so requested to register by the Director.
Vesting of Option upon Change in Control. "Change in control"
means the acquisition by a person or group, as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, of beneficial ownership
of twenty percent (20%) or more of the Company's common stock (other than
as a result of an issuance of securities initiated by the Company in the
ordinary course of business), or as a result of, or in connection with
any cash tender or exchange offer, merger, or other business combination,
sale of assets, or contested election, or any combination of the
foregoing transactions, and the persons who were directors of the Company
before such transactions shall cease to constitute a majority of the
Board of Directors of the Company or any successor to the Company. Upon
a change in control of the Company, any unvested portion of any Option
held by the Director shall immediately vest. If the Company should
thereafter undertake to file a registration statement with the SEC for
registration of any of its Common Stock, the Company shall include in
such registration statement the Common Stock underlying all Options held
by the Director, and will use its best efforts to have such registration
statement declared effective at the earliest possible date.
Method of exercising vested portion of the Option. Such Option
may be exercised, in whole at any time or in part from time to time, by
giving to the Company notice in writing to that effect. Within 30 days
after the receipt by it of notice of exercise of such Option, the Company
shall cause certificates for the number of shares with respect to which
such Option is exercised to be issued in the name of Director or his
executors, administrators, or other legal representatives, heirs,
legatees, next of kin, or distributees, or to be properly endorsed or
accompanied by separate stock powers duly executed, and to be delivered
to Director or his executors, administrators, or other legal
representatives, heirs, legatees, next of kin, or distributees. Payment
of the purchase price for the shares with respect to which such Option is
exercised shall be made to the Company upon the delivery of such stock,
together with revenue stamps or checks in an amount sufficient to pay any
stock transfer taxes required on such delivery. The Company shall give
the person or persons entitled to the same at least five (5) days' notice
of the time and place for delivery and for the payment of such purchase
price.
Changes in capital structure If all or any portion of the Option
shall be exercised subsequent to any share dividend, split-up,
recapitalization, merger, consolidation, combination or exchange of
shares, separation, reorganization, or liquidation occurring after the
date hereof, as a result of which shares of any class shall be issued in
respect of outstanding Common Shares or Common Shares shall be changed
into the same or a different number of shares of the same or another
class or classes, the person or persons so exercising the Option shall
receive, for the aggregate price paid upon such exercise, the aggregate
number and class of shares which, if Common Shares (as authorized at the
date hereof) had been purchased at the date hereof for the same aggregate
price (on the basis of the price per share set forth above) and had not
been disposed of, such person or persons would be holding, at the time of
such exercise, as a result of such purchase and all such share dividends,
split-ups, recapitalizations, mergers, consolidations, combinations or
exchanges of shares, separations, reorganizations, or liquidations;
provided, however, that no fractional share shall be issued upon any such
exercise, and the aggregate price paid shall be appropriately reduced on
account of any fractional share not issued.
Representation as to investment intent. The exercise of such Option
and the delivery of the shares subject to it will be contingent upon the
Company being furnished by Director, his legal representatives, or other
persons entitled to exercise such Option a statement in writing that at
the time of such exercise it is his or their intention to acquire the
shares being purchased solely for investment purposes and not with a view
to distribution.
Nonstatutory Stock Option. The Option granted in this Paragraph
is intended not to qualify as an incentive stock Option within the
meaning of Section 422 of the Internal Revenue Code of 1986 and shall be
so construed.
ARTICLE 4: GENERAL PROVISIONS
4.01. Notices. All notices or other communications required
under this Agreement may be effected either by personal delivery in
writing or by certified mail, return receipt requested. Notice shall be
deemed to have been given when delivered or mailed to the parties at
their respective addresses as set forth above or when mailed to the last
address provided in writing to the other party by the addressee.
4.02. Entirety of Agreement. This Agreement constitutes
the entire understanding between the parties concerning the subject
matter hereof. No agreements, representations, or warranties other than
those specifically set forth in this Agreement shall be binding on any of
the parties unless set forth in writing and signed by both parties. This
Agreement supersedes all other prior agreements, either oral or in
writing, between the parties with respect to the subject matter hereof
and contains all of the covenants and agreements between the parties with
respect to such subject matter. Each party to this Agreement
acknowledges that no inducements or promises, oral or otherwise, have
been made by any party, or anyone acting on behalf of any party, that are
not embodied in this Agreement.
4.03. Modification. This Agreement shall not be amended,
modified, or altered in any manner except in a writing signed by both
parties.
4.04. Failure to Enforce Not Waiver. Any failure or
delay on the part of either the Company or the Director to exercise any
remedy or right under this Agreement shall not operate as a waiver. The
failure of either party to require performance of any of the terms,
covenants, or provisions of this Agreement by the other party shall not
constitute a waiver of any of the rights under the Agreement. No
forbearance by either party to exercise any rights or privileges under
this Agreement shall be construed as a waiver, but all rights and
privileges shall continue in effect as if no forbearance had occurred.
No covenant or condition of this Agreement may be waived except by the
written consent of the waiving party. Any such written waiver of any
term of this Agreement shall be effective only in the specific instance
and for the specific purpose given.
4.05. Law Governing Agreement. This agreement shall be governed
exclusively by and construed in accordance with the laws of the State of
Texas.
4.06. Partial Invalidity. If any provision in this Agreement is
held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remaining provisions shall remain in full force and
effect, as if this Agreement had been executed without any such invalid
provisions having been included.
Executed at Dallas, Texas, as of April 7, 1997.
COMPANY: Xxxxxx Xxxxxx Holding Corporation
By:____/s/___Patrick A. Custer________
Xxxxxxx X. Xxxxxx, President
DIRECTOR: ____/s/__Bernard S. Appel____________
