Exhibit 10.34
STOCK OPTION AGREEMENT
UNDER
THE XXXXXXX.XXX, INC. 1999 STOCK INCENTIVE COMPENSATION PLAN
THIS STOCK OPTION AGREEMENT is entered into effective on the 15th day of
January 2000, by and between XXXXXXX.XXX, INC., a Texas corporation (the
"Company"), and XXXXXX X. XXXXX, a resident of Bexar County, Texas (the
"Employee").
WHEREAS, on May 7, 1999, the Company adopted its 1999 Stock Incentive
Compensation Plan (the "Plan"); and
WHEREAS, the Plan provides for the issuance of options to purchase shares
of the common stock of the Company, par value $0.001 per share (the "Shares");
WHEREAS, the Company desires to grant to the Employee an options to
purchase 100,000 of the Shares in conformity with the Plan;
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Grant of Options. The Company hereby grants to the Employee options (the
"Options") to purchase all or any portion of 100,000 Shares at a purchase price
equal to $4.00 per Share (the "Exercise Price") in accordance with the terms of
this Agreement, and pursuant to the Plan.
2. Vesting of Options. The Employee's right to exercise the Options shall vest
at a rate of 25 percent (25,000 shares) for each year of employment the Employee
completes with the Company. For purposes of this Stock Purchase Agreement, the
Employee will be deemed to have completed a year of employment if the Employee
remains employed with the Company as of each January 15th of the years 2001,
2002, 2003 and 2004. Therefore, if the Employee remains employed with the
Company on such date, the Employee's right to exercise the Options shall be
fully vested as of January 15, 2004. In the event the Employee terminates his
employment, or the Company terminates the Employee's employment for "cause"
(defined as the Employee's negligence or failure to perform services in
accordance with reasonable industry standards) then (i) any Options that are
exercisable as of the date of such termination shall be deemed earned by the
Employee, surviving termination and exercisable on or before December 31, 2005,
and (ii) any Options that are not yet exercisable as of the date of such
termination of employment will terminate automatically without notice and be of
no further force or effect. Notwithstanding anything in this Agreement to the
contrary, the Options will terminate automatically without notice and be of no
further force or effect to the extent the Options are not yet exercised on
December 31, 2005.
3. Manner of Exercise of Options. The Options may be exercised on one or more
occasions, but can only be exercised for whole Shares. The Options shall be
exercised by the Employee by delivering to the Company (i) written notification
that any or all of the Options are exercisable, including evidence reasonably
satisfactory to the Company to that effect, (ii) the cash required to pay in
full an amount equal to the total Exercise Price for the number of Shares so
exercised. Then, the Company shall deliver to the Employee certificate(s) for
the Shares (collectively, the "Option Shares"). The Employee shall execute such
documents and instruments as requested by the Company to evidence the issuance
of the Option Shares.
4. Transferability of Options. Except as herein set forth, the Options shall
not be transferable by the Employee and shall be exercisable only by the
Employee.
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5. Requirements of Law.
(a) Compliance with Laws. The Company shall not be required to sell or
issue any Option Shares under this Agreement if the issuance of the Option
Shares will constitute a violation by the Employee or the Company of any
provisions of any law or regulation of any governmental authority or the Bylaws
of the Company. The Company shall not be obligated to take any affirmative
action other than that which is specifically set forth in this Paragraph 5 in
order to cause the exercise of the Options or the issuance of Option Shares
pursuant hereto to comply with any law or regulation of any governmental
authority.
(b) Federal and State Securities Laws. Upon exercise of the Options,
unless a registration statement under the Securities Act of 1933, as amended
(the "Securities Act"), is in effect with respect to the Option Shares covered
hereby, the Company shall not be required to issue such Option Shares unless the
Company has received evidence reasonably satisfactory to it that such issuance
is exempt from registration under the Securities Act and all applicable state
securities laws. Subject to the Registration Rights Agreement described below,
the Company may, but shall in no event be obligated to register any securities
covered hereby pursuant to the Securities Act or any applicable state securities
laws. Unless registered or exempt from restriction, the certificate(s) issued
representing the Option Shares shall bear a legend in substantially the
following form:
"The Shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended, or under the securities laws of any
state and may not be sold or transferred except upon such registration or
upon receipt by the Company of an opinion of counsel reasonably satisfactory
to the Company that registration is not required for such sale or transfer."
(c) Investment Intent. The Employee represents and warrants that the
Options and Option Shares are being acquired solely for the account of the
Employee for investment purposes only and not with a view to or for the resale,
distribution, subdivision, or fractionalization thereof; the Employee has no
contract, understanding, undertaking, agreement, or arrangement with any person
to sell, transfer or pledge to any person the Options or Option Shares or any
part thereof; the Employee has no present plans to enter into any such contract,
undertaking, agreement or arrangement; the Employee understands the legal
consequences of the foregoing representations and warranties to mean that the
Employee must bear the economic risk of the investment in the Option Shares for
an indefinite period of time; the Employee has such knowledge and experience in
financial and business matters that the Employee is capable of evaluating the
merits and risks of acquiring the Option Shares; and the Employee acknowledges
that the acquisition of the Option Shares involves a high degree of risk that
may result in the loss of the total amount of the Employee's investment in the
Options and Option Shares.
(d) Due Diligence. The Employee acknowledges that he has for a reasonable
amount of time had an opportunity to ask questions and receive answers
concerning the terms and conditions of the issuance of the Options and Option
Shares and the actual and proposed business and affairs of the Company, and is
satisfied with the results thereof, and been given access, if requested, to all
documents with respect to the Company or this transaction, as well as to such
other information that the Employee has requested to evaluate an investment in
the Options and Option Shares. The Employee has made his own determination of
the value of the Options and has not received or relied upon any statements,
representations, or warranties of the Company or its agents or representatives.
6. No Rights as Shareholder. The Employee shall have no rights as a shareholder
of the Company with respect to the Option Shares until the date of issuance of a
certificate for the Option Shares; no adjustment for distributions, or
otherwise, shall be made if the record date therefor is prior to the date of
issuance of such certificate.
7. Changes in the Company's Structure.
(a) Changes in Structure. The existence of the Options shall not affect
in any way the right or power of the Company, directors, or its shareholders to
make or authorize any or all adjustments, recapitalization, reorganizations or
other changes in the Company's capital structure or its business, or any merger
or consolidation of the Company, or any issue of bonds, debentures, or any other
security or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business or any other corporate act
or proceeding, whether of a similar character or otherwise.
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(b) Changes in Number of Shares. If, while the Options are outstanding,
the Company shall effect a subdivision or consolidation of Shares or other
capital readjustment, the payment of a Share dividend, or other increase or
reduction of the number of Shares outstanding, without receiving compensation
therefor in money, services, or property, then (i) in the event of such an
increase in the number of Shares outstanding, the number of Option Shares then
subject to the Options shall be proportionately increased, and the Exercise
Price shall be proportionately reduced and (ii) in the event of such a reduction
in the number of Shares outstanding, the number of Option Shares then subject to
the Options shall be proportionately reduced, and the Exercise Prices shall be
proportionately increased.
(c) Changes in Corporate Structure. After a merger of one or more
corporations into the Company or after a consolidation of the Company and one or
more corporations in which the Company shall be the surviving corporation, the
Employee shall, at no additional cost, be entitled upon exercise of the Options
to receive (subject to any required action by shareholders) in lieu of the
number of Option Shares as to which the Options shall then be so exercisable,
the number and class of shares or other securities to which the Employee would
have been entitled pursuant to the terms of the agreement of merger or
consolidation if, immediately prior to such merger or consolidation, the
Employee had been the holder of record of a number of Shares equal to the number
of Option Shares as to which the Options shall be so exercised. In the event the
Company agrees to be merged with or consolidated into one or more corporations
or other entities in which the Company shall not be the surviving entity then,
the Company shall, prior to such merger or consolidation, obtain the full and
unconditional agreement of such surviving entity to assume all of the
obligations of the Company under this Agreement.
(d) Issuance of Shares. Except as hereinbefore expressly provided, the
issuance by the Company of shares of any class, or securities convertible into
shares of any class, for cash or property, or for labor or services, either upon
direct sale or upon the exercise of rights or warrants to subscribe therefor, or
upon conversion of shares or obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of the Shares then
subject to the Options.
8. Expenses. Each party shall pay its own expenses, including legal expenses
and attorneys' fees, which have been or may be incurred in connection with the
preparation, administration, amendment, or modification of this Agreement and
the other documents and instruments executed in connection herewith.
9. Notices. All notices, requests and other communications hereunder shall be
in writing and shall be deemed to have been duly given at the time of receipt if
delivered by hand or communicated by electronic transmission, or, if mailed,
three days after deposit in the United States mail, registered or certified,
return receipt requested, with postage prepaid and addressed to the party to
receive same, if to the Company, addressed to Xx. Xxxx X. Xxxxxx, XX, at 0000
Xxxxxxx Xxxx, Xxx Xxxxxxx, Xxxxx 00000, telephone (000) 000-0000, fax (210) 682-
2137, and if to Employee, addressed to Xx. Xxxxxx X. Xxxxx at 0000 Xxxxxxx Xxxx,
Xxx Xxxxxxx, Xxxxx 00000, telephone (000) 000-0000, fax (000) 000-0000;
provided, however, that if either party shall have designated a different
address by notice to the other given as provided above, then any subsequent
notice shall be addressed to such party at the last address so designated.
10. Conflict. Notwithstanding anything herein contained to the contrary, in
the event of any conflict between the terms of the Registration Rights Agreement
or this Agreement, the terms of the Registration Rights Agreement shall control.
11. Amendments. No amendment, modification or waiver of this Agreement or any
other agreements or documents executed pursuant hereto shall be effective unless
the same is in writing and signed by the person against whom such amendment is
sought to be enforced.
12. Attorney's Fees. In the event that it should become necessary for any
party entitled hereunder to bring suit against any other party to this Agreement
for enforcement of the covenants herein contained, the parties hereby covenant
and agree that the party who is found to be in violation of said covenants shall
also be liable for all reasonable counsel's fees and costs of court incurred by
the other parties hereto.
13. Governing law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, without regard to
any conflicts of laws provisions thereof. Each party hereby irrevocably submits
to the personal jurisdiction of the United States District Court for Bexar
County, Texas, as well as of the District Courts
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of the State of Texas in Bexar County, Texas over any suit, action or proceeding
arising out of or relating to this Agreement. Each party hereby irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such mediation, arbitration,
suit, action or proceeding brought in any such county and any claim that any
such mediation, arbitration, suit, action or proceeding brought in such county
has been brought in an inconvenient forum.
14. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the breach, termination, or validity thereof, shall be settled by
final and binding arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA Rules") in effect as of the
effective date of this Agreement. The American Arbitration Association shall be
responsible for (a) appointing a sole arbitrator, and (b) administering the case
in accordance with the AAA Rules. The situs of the arbitration shall be San
Antonio, Texas. Upon the application of either party to this Agreement, and
whether or not an arbitration proceeding has yet been initiated, all courts
having jurisdiction hereby are authorized to (x) issue and enforce in any lawful
manner, such temporary restraining orders, preliminary injunctions and other
interim measures of relief as may be necessary to prevent harm to a party's
interest or as otherwise may be appropriate pending the conclusion of
arbitration proceedings pursuant to this Agreement and (y) enter and enforce in
any lawful manner such judgments for permanent equitable relief as may be
necessary to prevent harm to a party's interest or as otherwise may be
appropriate following the issuance of arbitral awards pursuant to this
Agreement. Any order or judgment rendered by the arbitrator may be entered and
enforced by any court having competent jurisdiction.
15. Waivers. The observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
by the party entitled to enforce such term, but such waiver shall be effective
only if in a writing signed by the party or parties against which such waiver is
to be asserted. No delay or omission on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any right, power or privilege hereunder
operate as a waiver of any other right, power or privilege hereunder nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder. All remedies, either under this Agreement
or by law or otherwise afforded to any party, shall be cumulative and not
alternative.
16. Entire Agreement. This Agreement and the Registration Rights Agreement
described herein constitute the entire agreement between the parties with
respect to the matters covered hereby, and any other prior or contemporaneous
oral or written understandings or agreements with respect to the matters covered
hereby are expressly superseded by this Agreement. There are no other unwritten
or oral agreements between the parties.
17. Severability. If any provision of this Agreement, or the application of
such provision to any person or circumstance, shall be declared judicially to be
invalid, unenforceable or void, such decision will not have the effect of
invalidating or voiding the remainder of this Agreement or affect the
application of such provision to other persons or circumstances, and the parties
agree that the part or parts of this Agreement so held to be invalid,
unenforceable or void will be deemed to have been stricken herefrom and the
remainder of this Agreement will have the same force and effect as if such part
or parts had never been included herein. Any such finding of invalidity or
unenforceability shall not prevent the enforcement of such provision in any
other jurisdiction to the maximum extent permitted by applicable law.
18. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
XXXXXXX.XXX, INC.
By /s/ Xxxx X. Xxxxxx XX
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Xxxx X. Xxxxxx XX, Chairman
/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX
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