Exhibit 1
INCENTIVE STOCK OPTION AGREEMENT
AGREEMENT made as of the 22nd day of October, 1996 by and between
AMERICAN INTERNATIONAL PETROLEUM CORPORATION, a Nevada corporation having its
principal executive offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Grantor"), and XXXXXX X. XXXXX, with an address at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Optionee").
W I T N E S S E T H:
WHEREAS, Optionee is presently employed by Grantor; and
WHEREAS, Grantor is desirous of increasing the incentive of Optionee to
exert his utmost efforts to improve the business of Grantor.
NOW, THEREFORE, in consideration of Optionee's continued service to
Grantor, and for other good and valuable consideration, Grantor hereby grants to
Optionee options to purchase common stock of Grantor, $.08 par value ("Common
Stock"), on the following terms and conditions:
1. Option.
Pursuant to its 1995 Stock Option Plan (the "Plan"), Grantor hereby
grants to Optionee an Incentive Stock Option, as such term is defined in Section
422(b) of the Internal Revenue Code of 1986, as amended (the "Code"), to
purchase, prior to 5:00 p.m. on October 21, 1999, up to 1,000,000 fully paid and
non-assessable shares of Common Stock (the "Shares"), subject to the terms and
conditions set forth below.
2. Purchase Price.
The purchase price shall be $0.50 per Share. Grantor shall pay all
original issue or transfer taxes on the exercise of this option and all other
fees and expenses necessarily incurred by Grantor in connection therewith.
3. Exercise of Option.
(a) 250,000 options granted hereby are fully vested and may be
exercised at any time prior to expiration as described herein.
(b) 750,000 options granted hereby are conditioned upon the successful
completion of financing(s) for Phase I of the Company's asphalt project; and
upon such completion, two-thirds of the conditional options (500,000) granted
hereby will be vested on April 22, 1997, and the remaining one-third of the
conditional options (250,000) granted hereby will be vested on October 22, 1997.
(c) Optionee shall notify Grantor in writing in person, by overnight
courier or registered or certified mail, return receipt requested, addressed to
its principal office, as to the number of Shares which Optionee desires to
purchase hereunder, which notice shall be accompanied by payment (by cash or
certified check) of the exercise price therefor, as specified in Paragraph 2
above. As soon as practicable thereafter, Grantor shall, at its principal
office, tender to Optionee certificates issued in Optionee's name evidencing the
Shares purchased by Optionee.
(d) If the aggregate fair market value of all the stock with respect to
which Incentive Stock Options are exercisable for the first time by Optionee
during any calendar year under the Plan and all Incentive Stock Option plans of
Grantor or its affiliates exceeds $100,000.00, the grant of the Incentive Stock
Option hereunder shall not, to the extent of such excess, be deemed a grant of
an Incentive Stock Option but will instead be deemed the grant of a
Non-Qualified Stock Option under the Plan.
4. Option Conditioned On Continued Employment.
(a) If the employment of Optionee shall be terminated for cause, or if
Optionee leaves such employment voluntarily, the options granted to Optionee
hereunder shall expire immediately upon such termination. If such employment
shall be terminated by the Corporation without cause, the option granted to
Optionee hereunder shall immediately vest in full, and such option shall be
exercisable until the end of the term hereof.
(b) If Optionee dies (i) while employed by Grantor or a subsidiary or
parent corporation, or (ii) within three (3) months after the termination of his
employment other than voluntarily by Optionee or for cause, such option, subject
to the provisions of subparagraph (d) of this Paragraph 4, may be exercised by a
legatee or legatees of such option under Optionee's last will or by his personal
representatives or distributees at any time within one (1) year after his death.
(c) If Optionee becomes disabled within the definition of Section
22(e)(3) of the Code while employed by Grantor or a subsidiary or parent
corporation, such option, subject to the provisions of subparagraph (d) of this
Paragraph 4, may be exercised at any time within one (1) year after the
termination of employment due to disability.
(d) Except as specifically provided above, an option may not be
exercised pursuant to this Paragraph 4 except to the extent that Optionee was
entitled to exercise the option, or any part thereof, at the time of termination
of employment or death, and in any event may not be exercised after the original
expiration date of the option.
5. Divisibility and Non-Assignability of the Options.
(a) Optionee may exercise the options herein granted from time to time
during the periods of their respective effectiveness with respect to any whole
number of Shares included therein, but in no event may an option be exercised as
to less than one thousand (1,000) Shares at any one time, except for the
remaining Shares covered by the option if less than one thousand (1,000).
(b) Optionee may not give, grant, sell, exchange, transfer legal title,
pledge, assign or otherwise encumber or dispose of the options herein granted or
any interest therein, otherwise than by will or the laws of descent and
distribution, and these options, or any of them, shall be exercisable during his
lifetime only by Optionee.
6. Stock as Investment.
By accepting these options, Optionee agrees for himself, his heirs and
legatees that any and all Shares purchased hereunder shall be acquired for
investment and not for sale or distribution, and upon the issuance of any or all
of the Shares Optionee, or his heirs or legatees receiving such Shares, shall
deliver to Grantor a representation in writing, that such Shares are being
acquired in good faith for investment and not for sale or distribution. Grantor
may place a "stop transfer" order with respect to such Shares with its transfer
agent and place an appropriate restrictive legend on the stock certificate(s)
evidencing such Shares.
7. Restriction on Issuance of Shares.
Grantor shall not be required to issue or deliver any certificate for
Shares purchased upon the exercise of any option unless (a) the issuance of such
shares has been registered with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, or counsel to Grantor shall have given an
opinion that such registration is not required; (b) approval, to the extent
required, shall have been obtained from any state regulatory body having
jurisdiction thereof; and (c) permission for the listing of such shares, if
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required, shall have been given by NASDAQ and any national securities exchange
on which the Common Stock of Grantor is at the time of issuance listed.
8. Registration Rights
(a) If, at any time during the exercise period hereof, Grantor proposes
to file a registration statement with respect to any class of securities (other
than pursuant to a registration statement on Forms S-4 or S-8 or any successor
form) under the Securities Act, Grantor shall notify Optionee at least twenty
(20) days prior to the filing of such registration statement and will offer to
include in such registration statement all or any portion of the Shares. At the
written request of Optionee, delivered to Grantor within ten (10) days after
receipt of Grantor's notice, Optionee shall state the number of Shares that it
wishes to sell or distribute publicly under the proposed registration statement.
Grantor will use its best efforts, through its officers, directors, auditors and
counsel in all matters necessary or advisable, to cause such registration
statement to become effective as promptly as practicable. In that regard,
Grantor makes no representations or warranties as to its ability to have the
registration statement declared effective. In the event Grantor is advised by
the staff of the SEC, NASDAQ or any self-regulatory or state securities agency
that the inclusion of the Shares will prevent, preclude or materially delay the
effectiveness of a registration statement filed by Grantor with respect to any
securities other than the Shares, Grantor, in good faith, may amend such
registration statement to exclude the Shares without otherwise affecting
Optionee's rights to any other registration statement herein.
(i) Primary Registrations. If a registration statement is
filed with respect to an underwritten primary registration on behalf of Grantor,
and if the underwriter thereof advises Grantor in writing that, in its opinion,
the number of Shares requested to be included in such registration statement
exceeds the number that can be sold in such offering without materially
adversely affecting the distribution of securities by the underwriter, then
Grantor will include in such registration statement first, the securities that
Grantor proposes to sell and second, the Shares requested to be included in such
registration statement, to the extent permitted by such underwriter. Any sales
of Shares shall be apportioned pro rata among Optionee and the holders of any
other securities requesting registration pursuant to registration rights
according to the amounts of Shares and such other securities requested to be
registered.
Notwithstanding the above, if any such underwriter shall advise Grantor
in writing that the distribution of the Shares requested to be included in the
registration statement concurrently with the securities being registered by
Grantor would materially adversely affect the distribution of such securities by
Grantor, then Optionee shall delay his offering and sale for such period ending
on the earliest of (a) 180 days following the effective date of Grantor's
registration statement or (b) such date as Grantor, managing underwriter and
Optionee shall otherwise agree. In the event of such delay, Grantor shall file
such supplements, post-effective amendments and take any such other steps as may
be necessary to permit such Optionee to make his proposed offering and sale for
a period of ninety (90) days immediately following the end of such period of
delay. If any party disapproves of the terms of any such underwriting, it may
elect to withdraw therefrom by written notice to Grantor, the underwriter and
Optionee.
(ii) Priority on Secondary Registrations. If a registration
statement is filed with respect to an underwritten secondary registration on
behalf of holders of securities of Grantor, and the underwriter thereof advises
Grantor in writing that in its opinion the number of Shares requested to be
included in such registration statement exceeds the number which can be sold in
such offering without materially adversely affecting the distribution of such
securities, then Grantor will include in such registration statement such
securities requested to be included in such registration statement, as permitted
by the managing
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underwriter, any sales of which shall be apportioned pro rata among Optionee and
the holders of any other securities requesting registration according to the
amounts of Shares and other securities requested to be registered.
(iii) Rule 144 Exception. Notwithstanding the foregoing,
Grantor shall not be required to file a registration statement to include the
Shares pursuant to this Agreement if, in the opinion of counsel for Grantor, all
of the Shares proposed to be disposed of may be transferred pursuant to the
provisions of Rule 144 under the Securities Act.
(b) In the event of any registration of a security pursuant to this
Agreement, Grantor shall indemnify Optionee and its officers and directors
against all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (and as amended or supplemented) relating
to such registration, or caused by any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they are made
unless such statement or omission was made in reliance upon and in conformity
with information furnished to Grantor by Optionee expressly for use therein.
Optionee shall also indemnify Grantor, its officers and directors and each
underwriter of the Shares so registered with respect to losses, claims, damages
and liabilities caused by any untrue statement or omission made in reliance upon
and in conformity with information furnished by Optionee to Grantor expressly
for use in such registration statement or prospectus.
(c) All expenses of any registration referred to in this Agreement,
except the fees and disbursements of counsel to Optionee, underwriting
commissions or discounts, filing fees and any transfer or other taxes applicable
to the Options and/or Shares, shall be borne by Grantor.
9. Adjustments Upon Changes in Capitalization.
(a) In the event of changes in the outstanding Common Stock of Grantor
by reason of stock dividends, stock splits, recapitalizations, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations, or liquidations, the number and class of shares as to which the
options may be exercised shall be correspondingly adjusted by Grantor. No
adjustment shall be made with respect to stock dividends or splits which do not
exceed 10% in any fiscal year, cash dividends or the issuance to stockholders of
Grantor of rights to subscribe for additional shares of Common Stock or other
securities. Anything to the contrary contained herein notwithstanding, the Board
of Directors of Grantor shall have the discretionary authority to take any
action necessary or appropriate to prevent these options from being disqualified
as "Incentive Stock Options" under the United States income tax laws then in
effect.
(b) Any adjustment in the number of Shares shall apply proportionately
to only the unexercised portion of an option granted hereunder. If fractions of
a share would result from any such adjustment, the adjustment shall be revised
to the next higher whole number of Shares so long as such increase does not
result in the holder of the option being deemed to own more than 5% of the total
combined voting power or value of all classes of stock of Grantor or its
subsidiaries.
(c) Notwithstanding anything contained herein to the contrary, a merger
or consolidation in which Grantor is not the surviving corporation, or a sale of
substantially all of Grantor's assets or capital stock shall cause the
unexercised options to terminate automatically, unless otherwise provided by the
Board of Directors.
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10. No Rights in Option Stock.
Optionee shall have no rights as a shareholder in respect of Shares as
to which the option granted hereunder shall not have been exercised and payment
made as herein provided.
11. Effect Upon Employment.
This Agreement does not give Optionee any right to continued employment
by Grantor.
12. Binding Effect.
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors
legal representatives and assigns.
13. Agreement Subject to Plan.
Notwithstanding anything contained herein to the contrary, this
Agreement is subject to, and shall be construed in accordance with, the terms of
the Plan, and in the event of any inconsistency between the terms hereof and the
terms of the Plan, the terms of the Plan shall govern.
14. Miscellaneous.
This Agreement shall be construed under the laws of the State of New
York applied to agreements made and to be performed entirely within such State.
Headings have been included herein for convenience of reference only and shall
not be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AMERICAN INTERNATIONAL PETROLEUM CORPORATION
By: Xxxxx X. Xxxxxxxxxxx
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Xxxxx X. Xxxxxxxxxxx
Vice President
ACCEPTED AND AGREED TO:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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