[EXHIBIT 10.5]
GRANT OF OPTION
PURSUANT TO THE
BBJ ENVIRONMENTAL TECHNOLOGIES, INC.
2000 EMPLOYEE BENEFIT AND CONSULTING SERVICES COMPENSATION PLAN,
AS AMENDED
THIS GRANT OF OPTION (this "Agreement"), made on the 27th day of
January, 2003, by and between BBJ Environmental Technologies, Inc., a
Nevada corporation (the "Company"), and Xxxx Xxxxxxx (the "Optionee").
1. Grant of Option. Subject to terms and conditions of this
Agreement and those set forth in the BBJ Environmental Technologies,
Inc. 2000 Employee Benefit and Consulting Services Compensation Plan,
as amended (the "Plan"), the Company, with the approval and at the
direction of its Board of Directors, hereby grants to Optionee an
option (the "Option") to purchase One Million (1,000,000) shares of
common stock, $0.001 par value per share (the "Common Stock" or
"Shares"), of the Company at the Exercise Price set forth in this
Agreement. The Shares that may be purchased upon the exercise of the
Option are sometimes referred to in this Agreement as the "Option
Shares". Capitalized terms not otherwise defined in this Agreement
shall have the meaning ascribed to them in the Plan.
2. Exercise Price. The Exercise Price of the Option is $0.16
per Option Share.
3. Terms of the Option.
(a) Type of Option. The Option is intended to be a
nonstatutory option and is NOT an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code.
(b) Exercise Period. Subject to Section 3(c) of this
Agreement, during the period commencing on the date of this Agreement
("Date of Grant") and terminating five (5) years after the Date of
Grant (the "Exercise Period"), the Option may be exercised with
respect to all or a portion of the Option Shares (in full Shares) to
the extent that the Option has not previously been exercised in
accordance with the vesting schedule ("Vesting Schedule"), which is
attached hereto as Exhibit A and incorporated herein by reference.
(c) Termination of Service. Notwithstanding the
provisions of Section 3(b) of this Agreement:
(i) Termination By Reason Of Death. If the
Optionee's Consulting Agreement with the Company, dated
effective January 1, 2003 (the "Consulting Agreement"),
terminates due to the death of the Optionee, then for a
period of one year from the date of such death or until the
end of the Exercise Period, whichever is shorter, the
Option may be exercised to the extent that the Optionee was
entitled to the exercise same under the Vesting Schedule at
the time of death.
(ii) Termination By Reason Of Disability. If the
Consulting Agreement terminates by reason of Optionee's
Disability, as defined in the Consulting Agreement, then
the Option, then for a period of one year from the date of
such termination of employment or until the end of the
Exercise Period, whichever is shorter, the Option may be
exercised to the extent that the Optionee was entitled to
exercise same under the Vesting Schedule at the time of
such termination; provided, however, that if the Optionee
should die during such one year period, the unexercised
portion of the Option shall thereafter be exercisable, but
only to the extend that Optionee was entitled to exercise
same under the Vesting Schedule at the time of termination
referenced to in this Section 3(c)(ii), for a period of one
year from the date of such death or until the end of the
Exercise Period, whichever is shorter.
(iii) Termination For Cause. If the Consulting
Agreement is terminated by the Company for Cause, as
defined in the Consulting Agreement, the unexercised
portion of the Option shall terminate immediately and shall
be null and void as of the time of such termination. As of
the time of such termination, the unexercised portion of
the Option will no longer be exercisable and no Shares
pursuant to the unexercised portion of the Option may be
purchased by the Optionee.
(iv) Termination Without Cause. If the Consulting
Agreement is terminated by the Company for other than Cause
or Disability, then any portion of the Option that has not
vested as of the date of such termination shall become
vested as of the date of such termination and the
unexercised portion of the Option shall be exercisable
until the end of the Exercise Period.
(v) Other Termination Of Consulting Agreement. If
the Consulting Agreement terminates for any reason other
than a termination described in clauses Section 3(c)(i)
through (iv) of this Agreement, then the unexercised
portion of the Option shall terminate immediately and shall
be null and void as of the time of such termination. As of
the time of such termination, the unexercised portion of
the Option will no longer be exercisable and no Shares
pursuant to the unexercised portion of the Option may be
purchased by the Optionee.
4. Method of Exercise.
(a) Notice of Exercise. In order to exercise any portion
of this Option, the Optionee shall notify the Company in writing of
the election to exercise the Option and the number of Option Shares in
respect of which the Option is being exercised. Such notice shall be
delivered to the Secretary of the Corporation and shall be accompanied
with the Exercise Price payable in the manner set forth in
Section 4(b) below. The date specified in Optionee's notice as the
date of exercise of the Option shall be deemed to be the date of
exercise ("Date of Exercise"); provided, that, such date is at least
five (5) days after the giving of such notice and that payment in full
for the Option Shares to be purchased upon such exercise shall have
been received by such date. Otherwise, the Date of Exercise shall be
the date on which all conditions for issuance of Option Shares have
been satisfied and such Option Shares have been issued by the Company.
The certificate or certificates for Shares as to which the Option has
been exercised shall be registered in the name of the Optionee. The
notice must refer to this Agreement and it must specify the number of
shares being purchased, and recite the consideration being paid
therefor. Notice shall be deemed given on the date on which the
notice is delivered to the Company by facsimile transmission,
certified mail or hand-delivery bearing an authorized signature of
Optionee.
(b) Payment of Exercise Price. The Exercise Price for the
Option Shares to be purchased upon exercise of an Option, in whole or
in part, shall be paid to the Company in full on or before the Date of
Exercise. The Exercise Price shall be paid by Optionee in immediately
available funds by wire transfer, cash or by check deemed acceptable
to the Committee.
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(c) Failure to Pay or Accept Delivery. If the Optionee
fails to pay for any of the Option Shares specified in its notice to
exercise or fails to accept delivery thereof, the Optionee's right to
purchase such Option Shares shall terminate and have no force and
effect, in which event the Company and Optionee shall have no
liability to each other with respect to this Option.
5. Restrictions on Exercise. This Option may not be exercised
if the issuance of the Option Shares upon such exercise or the method
of payment of consideration for such Option Shares would constitute a
violation of any applicable federal or state securities law or any
other law or regulation. As a condition to the exercise of this
Option, the Company may require the Optionee to make any
representation or warranty to the Company at the time of exercise of
the Option as in the opinion of legal counsel for the Company may be
required by any applicable law or regulation. Accordingly, the stock
certificates for the Option Shares issued upon exercise of this Option
may bear appropriate legends restricting transfer.
6. Sale of Common Stock Upon Exercise of Option; Legend. The
Common Stock to be acquired pursuant to the exercise of this Option
has been registered for resale pursuant to a Registration Statement on
Form S-8 (Registration Statement No. 333-90700), which has been
declared effective by the Securities and Exchange Commission.
Notwithstanding the foregoing, for so long as the Optionee shall be an
"affiliate" of the Company as defined under Rule 144 promulgated under
the 1933 Act: (a) the Common Stock shall be subject to the
restrictions on transfer set forth in Rule 144 applicable to an
"affiliate" as defined under Rule 144, and (b) the Common Stock may
not be sold, exchanged, assigned, transferred or permitted to be
transferred, whether voluntarily, involuntarily or by operation of
law, delivered, encumbered, discounted, hypothecated or otherwise
disposed of until an Opinion of Counsel, satisfactory to the Company,
has been received by the Company, which opinion establishes that the
transfer or resale of the Common Stock may be made by the Optionee in
compliance with Rule 144. The stock certificates evidencing the
Common Stock acquired by the Optionee upon exercise of the Option
shall bear the following legend:
"The Common Stock represented by this
certificate is subject to the
restrictions on transfer set forth in
Rule 144 promulgated under the
Securities Act of 1933, as amended,
applicable to an "affiliate" as
defined under Rule 144, and may not be
sold, exchanged, assigned, transferred
or permitted to be transferred,
whether voluntarily, involuntarily or
by operation of law, delivered,
encumbered, discounted, hypothecated
or otherwise disposed of until an
Opinion of Counsel, satisfactory to
the Company, has been received by the
Company, which opinion establishes
that the transfer or resale of the
Common Stock may be made in compliance
with Rule 144."
7. Non-Transferability of Option. Except as otherwise
provided by the Plan, this Option may be exercised during the lifetime
of the Optionee only by the Optionee and may not be transferred in any
manner other than by will or by the laws of descent and distribution.
Any purported transfer in violation of this Section 7 shall be void ab
initio and shall be of no force or effect. The terms of this Option
shall be binding upon the executors, administrators, heirs, and
successors of the Optionee.
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8. Adjustments Upon Changes in Capitalization or Merger. In
the event of changes in the capitalization or organization of the
Company (including, without limitation, a stock split or a stock
dividend) or, if the Company is a party to a merger or other corporate
reorganization, the number of Shares covered by this Option shall be
adjusted in accordance with the provisions of Section 15 of the Plan.
9. Term of Option. Unless modified, extended, or renewed in
accordance with Section 16 of the Plan, this Option may not be
exercised after the expiration of the Exercise Period and may be
exercised during such term only in accordance with the Plan and the
terms of this Option.
10. Amendment of Option. The Board of Directors or the
Committee may amend the Option and Plan at anytime, subject only to
the limitations set forth in Section 16 of the Plan and by applicable
law.
11. Not Employment or Consulting Contract. Nothing in this
Agreement or in the Plan shall confer upon the Optionee any right to
continue in the employ or service of the Company (or continue as a
consultant of the Company). This is not an employment or consulting
contract.
12. Income Tax Withholding. The Optionee authorizes the
Company to withhold in accordance with applicable law from any
compensation payable to him or her any taxes required to be withheld
by Federal, state or local laws as a result of the exercise of this
Option. Furthermore, in the event of any determination that the
Company has failed to withhold a sum sufficient to pay all withholding
taxes due in connection with the exercise of this Option, the Optionee
agrees to pay the Company the amount of any such deficiency in cash
within five (5) days after receiving a written demand from the Company
to do so, whether or not Optionee is an employee of the Company at
that time.
13. Notice. Any notice furnished pursuant to this Agreement,
other than the notice described in Section 4(a) of this Agreement,
shall be delivered in accordance with Section 9 of the Consulting
Agreement.
14. Incorporation by Reference. The Option is granted, and the
Option Shares will be issued, pursuant to the Plan, the terms and
conditions of which are incorporated herein by reference, and the
Options and this Agreement shall in all respects be interpreted in
accordance with the Plan. The Committee shall interpret and construe
the Plan and this Agreement, and its interpretations and
determinations shall be conclusive and binding on the parties hereto
and any other person claiming an interest hereunder, with respect to
any issue arising hereunder or thereunder.
15. Governing Law. This Agreement shall be interpreted,
construed and governed according to the law of the State of Florida
without regard to conflicts of laws principles that would result in
the application of the laws of any other jurisdiction.
16. Submission to Jurisdiction. Both parties agree that all
disputes, claims, actions or lawsuits between them, arising out of or
relating to this Agreement, or for alleged breach of this Agreement,
shall be heard and determined by a state court sitting in Hillsborough
County, Florida, or by the United States District Court for the Middle
District of Florida, or by any appellate courts which review decisions
of those courts ("the Florida Courts"). The parties expressly submit
to the jurisdiction of the Florida Courts for adjudication of all such
disputes, claims, actions and lawsuits arising out of or relating to
this Agreement, or for alleged breach of this Agreement, and agree not
to bring any such action or proceeding in any other court. Both
parties waive any defense of inconvenient forum as to the maintenance
of any action or proceeding brought pursuant to this section of the
Agreement in the Florida Courts, and waive any bond, surety, or other
security that
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might be required of the other party with respect to any aspect of
such action, to the extent permitted by law. Provided, however, that
either party may bring a proceeding in a different court, jurisdiction
or forum to obtain collection of any judgment, or to obtain
enforcement of any injunction or order, entered against the other
party by the Florida Courts.
[Rest of Page Intentionally Left Blank; Signatures on Following Page]
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BBJ ENVIRONMENTAL TECHNOLOGIES, INC.
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
--------------------------
Title: Chairman & CEO
-------------------------
The Optionee acknowledges receipt of a copy of the Plan and the
related prospectus and represents that he is familiar with the terms
and provisions thereof, and hereby accepts this Option subject to all
of the terms and provisions thereof. The Optionee hereby agrees to
accept as binding, conclusive and final all decisions or
interpretations of the Board of Directors or the Committee upon any
questions arising under the Plan.
Dated: January 27, 2003 OPTIONEE: Xxxx Xxxxxxx
-------------------------
Printed Name
/s/ Xxxx Xxxxxxx
-------------------------
Signature
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EXHIBIT A
---------
Grant of Option pursuant to the BBJ Environmental Technologies, Inc.
2000 Employee Benefit and Consulting Services Compensation Plan, as
amended
Optionee: Xxxx Xxxxxxx
Options Granted: 1,000,000 Shares
Exercise Price: $0.16 per Share
Date of Grant: January 27, 2003
Exercise Period: January 27, 2003 to January 27, 2008
Expiration Date: January 27, 2008
Vesting Schedule: option on date vested (assuming continued employee or
# of shares ----------- consultant status, etc.)
-----------
Cumulative During the period commencing on the Date of
maximum of 60% Grant and ending on June 30, 2003, the
of the Shares Option may be exercised up to a cumulative
(600,000 Shares) maximum of 60% of the Shares.
Cumulative During the period commencing on the July 1,
maximum of 80% 2003 and ending on December 31, 2003, the
of the Shares Option may be exercised up to a cumulative
(800,000 Shares) maximum of 80% of the Shares
Cumulative Commencing on January 1, 2004, the Option may
maximum of 100% be exercised in full.
of the Shares
(1,000,000 Shares)
Vested Options Exercised to Date: __________ (including this exercise)
Balance of Vested Options to be
Exercised: __________
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NOTICE OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF THE OPTION)
TO: BBJ Environmental Technologies, Inc.
The undersigned, the holder of the attached Grant of Option,
hereby irrevocably elects to exercise the purchase rights represented
by such Grant of Option for, and to purchase thereunder, _______
shares of the Common Stock of BBJ Environmental Technologies, Inc. and
herewith makes payment of _______________ therefor. Optionee requests
that the certificates for such shares be issued in the name of
Optionee and he delivered to Optionee at the address of ____________
_____________________________________________________________, and if
such shares shall not be all of the shares purchasable hereunder,
represents that a new Subscription of like tenor for the appropriate
balance of the shares, or a portion thereof, purchasable under the
Grant of Option pursuant to the BBJ Environmental Technologies, Inc.
2000 Employee Benefit and Consulting Services Compensation Plan, as
amended, be delivered to Optionee when and as appropriate.
OPTIONEE:
Dated:_______________ ________________________________
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