EXHIBIT 4.7
AMENDED AND RESTATED STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED STOCK OPTION AGREEMENT, dated as of January 2,
1996 (the "Agreement"), is made by and between Xxxxxxx X. Xxxxx, an individual
residing at 00 Xxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Xxxxx"), and COMMODORE
ENVIRONMENTAL SERVICES, INC., a Delaware corporation, having an address at 000
Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 ("CES").
W I T N E S S E T H:
WHEREAS, in consideration for services rendered, CES has agreed to grant
to Xxxxx an option (the "Option") to buy shares of common stock of CES (the
"Common Stock") and Xxxxx hereby accepts the said Option; and
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and for other good and valuable consideration the receipt of which is hereby
acknowledged, CES and Xxxxx do hereby agree as follows:
1. The Option. CES hereby grants to Xxxxx the Option to purchase from CES
275,000 shares of the Common Stock (the "Full Exercise Amount") at any time
during the period commencing on January 1, 1996 and terminating on December 31,
2000 (the "Exercise Period"), at the exercise price per share of Thirty Seven
and 50/100 Cents ($0.375) subject to adjustment as hereinbelow set forth (the
"Option Exercise Price").
2. Duration of Option. The Option shall expire and all rights to purchase
shares pursuant thereto shall cease at 5:00 p.m., New York City time, on the
last day of the Exercise Period (the "Expiration Date").
3. Designation as Nonqualified Option. The option is designated as
"Nonqualified Option," which term, as used herein, shall mean an option not
intended to be an "incentive stock option" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").
4. Exercise of Option. Xxxxx may exercise the Option by delivering to CES
a notice specifying the number of shares of Common Stock with respect to which
the Option is being exercised (the "Shares") in each calendar year, which
Notice shall include payment in full of the Option Exercise Price for such
Shares (the "Option Exercise"). Such payment shall be made by certified or bank
check drawn on a bank which is a member of the Federal Reserve and payable to
the order of CES.
5. Condition to Exercise. The Option shall be fully exercisable by Xxxxx
without any restrictions.
6. Nontransferability. The Option shall not be transferable other than by
will or the laws of descent and distribution and may not be exercised by anyone
other than Xxxxx; provided, that if Xxxxx dies or becomes incapacitated, the
Option may be exercised by Xxxxx' estate, legal representative or beneficiary,
as the case may be, subject to all other terms and conditions contained in the
Agreement.
7. Issuance of Shares; Restrictions. (a) Subject to the conditions and
restrictions provided in this Section 7, CES shall, within 20 business days
after the Option has been duly exercised in whole or in part, deliver to Xxxxx
one or more certificates, registered in the name of Xxxxx, for the number of
the Shares with respect to which the Option has been exercised. CES may legend
any stock certificate issued hereunder to reflect any restrictions provided
under applicable state securities or other laws as determined by counsel to
CES, as well as any other restrictions provided for in this Section 7.
(b) Legend. All shares issued to Xxxxx pursuant to the Option Exercise
shall bear the following legend:
"The Shares evidenced by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933
or applicable state securities laws, and may not be offered, sold or
otherwise transferred, pledged or hypothecated unless and until
registered under the securities laws, or unless, in the option of
counsel satisfactory to the Corporation, in form and substance
satisfactory to the Corporation, such offer, sale, transfer, pledge or
hypothecation is exempt from registration or is otherwise in compliance
with such laws."
(c) Anything contained herein to the contrary notwithstanding, CES shall
not be obligated to sell or issue any shares of Common Stock pursuant to
the exercise of the Option unless and until (i) CES is satisfied that such
sale or issuance complies with all applicable provisions of the Securities
Act of 1933 and all other laws or regulations by which CES is bound or to
which CES or such shares are subject (including all applicable state
securities or other laws) and (ii) if Xxxxx has not already done so, Xxxxx
executes and delivers a subscription agreement in the form then being
utilized by CES with respect to employee-stockholders which covers the
shares of Common Stock acquired pursuant to the exercise of the Option.
8. Adjustments to Shares Subject to Option. The number of shares of Common
Stock covered by the Option, and the Option Exercise Price and the type of
securities subject to the Option Exercise Price and the type of securities
subject to the Option shall be proportionately and equitably adjusted for any
increase or decrease in the number of issued shares of Common Stock, or any
change in the type of securities subject to the Option, resulting from a
stock-split or other subdivision, any other consolidation of shares of the
Common Stock, any other capital adjustment of the shares of Common Stock, any
exchange or conversion of the Common Stock for other securities, or the payment
of a stock dividend upon the shares of Common Stock subject to the Option.
9. Complete Agreement; Amendments. This Agreement constitutes the complete
understanding and agreement among the parties hereto, and no alteration,
amendment or modification of any of the terms or provisions hereof shall be
valid unless made pursuant to an instrument in writing signed by each of said
parties. This Agreement supersedes and terminates any and all prior agreements
and understandings among the parties hereto relating to the subject matter
hereof.
10. Severability. In the event that any provision or provisions of this
Agreement shall hereafter be declared to be invalid or unenforceable in whole
or in part; such invalidity or unenforceability shall not affect any provisions
of this Agreement or portions of such provisions not rendered invalid or
unenforceable, which provisions or portions of such provisions shall continue
in full force and effect.
11. Successors and Assigns. All of the terms and provisions of this
Agreement shall inure to the benefit of and be binding upon the heirs,
successors, personal representatives and permitted assigns of the respective
parties hereto.
12. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York, without giving effect to the
choice of law principles thereunder.
13. Notice. All notices, offers, acceptances and the communications to be
made, served or given under or pursuant to the terms hereof shall be in writing
and shall be sent (i) by registered or certified mail, return receipt
requested, postage prepaid, (ii) personally delivered, or (iii) delivered by
telecopy, to any party at the address set forth at the beginning of this
Agreement for such party. Any party hereto may change the address to which each
such notice or communication shall be sent by giving written notice to the
other part hereto of such changed address. Notice shall be deemed upon given
hand delivery, transmission by telecopy, or five (5) days following deposit in
the United States mail (prepaid, return receipt requested).
14. Headings. The headings in this Agreement are intended solely for ease
of reference and shall be given no effect in the construction or interpretation
of this Agreement.
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
