STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is made as of February 2,
1998, by and between ▇▇▇▇▇▇ Natural Corporation, a Delaware corporation (the
"Company"), and Hilton ▇. ▇▇▇▇▇▇▇▇▇▇ ("Holder").
Preliminary Recitals
A. Holder is an employee of the Company or one of its subsidiaries or
affiliates.
B. Pursuant to the ▇▇▇▇▇▇ Natural Corporation Stock Option Plan (the
"Plan"), the Company desires to ▇▇▇▇▇ ▇▇▇▇▇▇ an incentive stock option to
purchase shares of the Company's common stock, par value $.005 per share
(the "Common Stock"), subject to the terms and conditions of the Plan and
subject further to the terms and conditions set forth below.
NOW, THEREFORE, the Company and Holder agree as follows:
1. Grant of Incentive Stock Option. The Company hereby grants to
Holder, subject to the terms and conditions set forth herein, the incentive
stock option ("ISO") to purchase up to 100,000 shares of Common Stock, at the
purchase price of $4.25 per share, such ISO to be exercisable and exercised as
hereinafter provided.
2. Exercise Period. The ISO shall expire three months after the
termination of the Holder's employment with the Company and its subsidiaries and
affiliates (the "▇▇▇▇▇▇ Group") unless the employment is terminated by a member
of the ▇▇▇▇▇▇ Group for Cause (as defined below) or unless the employment is
terminated by reason of the death or Total Disability (as defined below) of
Holder. If the Holder's employment is terminated by a member of the ▇▇▇▇▇▇ Group
for Cause, the ISO shall expire as of the date employment terminates. If the
Holder's employment terminates due to his death or Total Disability, then the
ISO may be exercised by Holder or the person or persons to which Holder's rights
under this Agreement pass by will, or if no such person has such right, by his
executors or administrators, within six months after the date of death or Total
Disability, but no later than the expiration date specified in Section 3(d)
below. "Cause" means the Holder's act of fraud or dishonesty, knowing and
material failure to comply with applicable laws or regulations, drug or alcohol
abuse, as determined by the Committee of the ▇▇▇▇▇▇ Natural Corporation Stock
Option Plan (the "Committee"). "Total Disability" means the complete and
permanent inability of Holder to perform all of his duties of employment with
the Company, as determined by the Committee upon the basis of such evidence,
including independent medical reports and data, as the Committee deems
appropriate or necessary.
3. Exercise of Option
(a) Subject to the other terms of this Agreement regarding the
exercisability of the ISO, the ISO may only be exercised in respect of the
number of shares listed in column A from and after the exercise dates listed in
column ▇,
▇▇▇▇▇▇ "▇" ▇▇▇▇▇▇ "▇"
Number of Shares Exercise Date
9,500 February 2, 1999
23,500 February 2, 2000
23,500 February 2, 2001
23,500 February 2, 2002
20,000 February 2, 2003
-------
100,000
(b) This ISO may be exercised, to the extent exercisable by
its terms, from time to time in whole or in part at any time prior to the
expiration thereof. Any exercise shall be accompanied by a written notice to the
Company specifying the number of shares as to which this ISO is being exercised
(the "Option Shares"). Notations of any partial exercise or installment
exercise, shall be made by the Company on Schedule A hereto.
(c) Notwithstanding the above, this ISO shall be fully
exercisable in the event Holder's employment with the ▇▇▇▇▇▇ Group is terminated
by Holder for "Good Reason" (as defined below), or a member of the ▇▇▇▇▇▇ Group
terminates his employment without "Cause" (as defined above). "Good Reason"
means the Holder's termination of employment with the ▇▇▇▇▇▇ Group on or after a
reduction in his compensation or benefits, his removal as the Company's Vice
Chairman of the Board of Directors, President, Chief Operating Officer, Chief
Financial Officer or Secretary, or his being assigned duties or responsibilities
that are inconsistent with the dignity, importance or scope of his position with
the Company.
(d) Notwithstanding anything else herein to the contrary, this
ISO shall expire ten years from the date indicated above.
(e) The Holder hereby agrees to notify the Company in writing
in the event shares acquired pursuant to the exercise of this ISO are
transferred, other than by will or by the laws of descent and distribution,
within two years after the date indicated above or within one year after the
issuance of such shares pursuant to such exercise.
4. Payment of Purchase Price Upon Exercise. At the time of any exercise
of the ISO the purchase price of the ISO shall be paid in full to the Company in
either of the following ways or in any combination of the following ways:
(a) By check or other immediately available funds.
(b) With property consisting of shares of Common Stock. (The
shares of Common Stock to be used as payment shall be valued as of the date of
exercise of the ISO at the Closing Price as defined below. For example, if
Holder exercises the option for 4,000 shares at a total Exercise Price of
$7,000, assuming exercise price of $1.75 per share, and the Closing Price is
$5.00, he may pay for the 4,000 Option Shares by transferring 1,400 shares of
Common Stock to the Company.)
(c) For purposes of this Agreement, the term "Closing Price"
means, with respect to the Company's Common Stock, the last sale price
regular-way or, in case no such sale takes place on such date, the average of
the closing bid and asked prices regular-way on the principal national
securities exchange on which the securities are listed or admitted to trading;
or, if they are not listed or admitted to trading on any national securities
exchange, the last sale price of the securities on the consolidated transaction
reporting system of the National Association of Securities Dealers (NASD"), if
such last sale information is reported on such system or, if not so reported,
the average of the closing bid and asked prices of the securities on the
National Association of Securities Dealers Automatic Quotation System ("NASDAQ")
or any comparable system or, if the securities are not listed on NASDAQ or a
comparable system, the average of the closing bid and asked prices as furnished
by two members of the NASD selected from time to time by the Company for that
purpose.
5. Purchase for Investment; Resale Restrictions. Unless at the time of
exercise of the ISO there shall be a valid and effective registration statement
under the Securities Act of 1933 ("'33 Act") and appropriate qualification and
registration under applicable state securities laws relating to the Option
Shares being acquired, Holder shall upon exercise of the ISO give a
representation that he is acquiring such shares for his own account for
investment and not with a view to, or for sale in connection with, the resale or
distribution of any such shares. In the absence of such registration statement,
Holder shall execute a written affirmation, in a form reasonably satisfactory to
the Company, of such investment intent. Holder further agrees that he will not
sell or transfer any Option Shares until he requests and receives an opinion of
the Company's counsel or other counsel reasonably satisfactory to the Company to
the effect that such proposed sale or transfer will not result in a violation of
the '33 Act, or a registration statement covering the sale or transfer of the
shares has been declared effective by the Securities and Exchange Commission, or
he obtains a no-action letter from the Securities and Exchange Commission with
respect to the proposed transfer.
6. Nontransferability.This ISO shall not be transferable other than by
will or by the laws of descent and distribution. During the lifetime of Holder,
this ISO shall be exercisable only by Holder.
7. Adjustments.
(a) If the Company hereafter (i) declares a distribution on
its shares in shares, (ii) splits its outstanding shares, (iii) combines its
outstanding shares into a smaller number of securities or (iv) issues any shares
or other securities by reclassification of its shares (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing entity), the purchase price in effect at the time of
the record date for such distribution or the effective date of such subdivision,
combination or reclassification shall be adjusted so that it shall equal the
price determined by multiplying the purchase price by a fraction, the
denominator of which shall be the number of shares outstanding immediately after
giving effect to such action, and the numerator of which shall be the number of
shares outstanding immediately prior to such action. Whenever the purchase price
payable upon exercise of the ISO is adjusted pursuant to the preceding sentence
above, the number of shares purchasable upon exercise of the ISO shall
simultaneously be adjusted by multiplying the number of shares issuable upon
exercise of the ISO immediately prior to the event which causes the adjustment
by the purchase price in effect immediately prior to the event which causes the
adjustment and dividing the product so obtained by the purchase price, as
adjusted. Such adjustments shall be made successively whenever any event listed
above shall occur.
(b) If, at any time, as a result of an adjustment made
pursuant to paragraph 7(a) above, the Holder shall become entitled to receive
any securities of the Company other than shares, the number of such other
securities so receivable upon exercise of the ISO shall thereafter be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the shares contained in paragraph
7(a) above.
(c) If any other event contemplated in Section 10(a) of the
Plan occurs, adjustments to the number and kind of shares subject to this ISO
and/or to the purchase price for each share subject to this ISO may be made in
accordance with Section 10(a) of the Plan.
(d) No adjustments shall be made under this Section 7 that
would have the effect of modifying this ISO under Internal Revenue Code ▇▇.▇▇.
422 or 424.
(e) Whenever the purchase price or the number of shares is
adjusted, as herein provided, ▇▇▇▇▇▇ shall within 10 business days of the event
causing such adjustment give a notice setting forth the adjusted purchase price
and adjusted number of shares issuable upon exercise of the ISO to be mailed to
the Holder.
(f) Notwithstanding anything else herein to the contrary, upon
the occurance of a change in control (as defined in (g) below), the option or
any portion thereof not theretofore exercisable, shall immediately become
exercisable in its entirety and the option (being the option to purchase shares
of Common Stock subject to the applicable provisions of the Plan and awarded in
accordance with the Plan in terms of section 1 above) may, with the consent of
Holder, be purchased by the Company for cash at a price equal to the fair market
value (as defined in 7(g) below) less the purchase price payable by Holder to
exercise the option as set out in Article 1 above for one (1) share of Common
Stock of the Company multiplied by the number of shares of Common Stock which
Holder has the option to purchase in terms of Article 1 above.
(g) For the purposes of this agreement
(i) "Change in Control" means;
(A)the acquisition of "Beneficial Ownership"
by any person (as defined in rule 13 (d) - 3 under the Securities Exchange
Act 1934), corporation or other entity other than the Company or a wholly owned
subsidiary of the Company of 20% or more of the outstanding Stock,
(B)the sale or disposition of substantially all of the assets of the
Company, or
(C)the merger of the Company with another
corporation in which the Common Stock of the Company is no longer outstanding
after such merger.
(ii) "Fair Market Value" means, as of any date, the Closing Price for
one share of the Common Stock of the Company on such date.
8. The provisions of Section 5(b) (iii) of the Plan, regarding the
execution of a shareholder's agreement as a condition precedent to the Company's
obligation to issue shares under the Plan, shall not apply to the ISO or any
shares issued pursuant to the ISO.
9. The Company represents and warrants to Holder that (a) there are no
options to purchase the Company's Common Stock, containing the same or
substantially the same terms as the ISO, which are actively traded on an
established market within the meaning of Internal Revenue Code ss.83 and the
regulations promulgated thereunder; and (b) the shares of the Company's Common
Stock issued upon exercise of the ISO, when issued in accordance with the terms
hereof, will be duly authorized, validly issued, fully paid and nonassessable.
The Company shall reserve and keep reserved out of its authorized shares of
Common Stock the number of shares of Common Stock that may be issuable from time
to time upon exercise of the ISO.
10. No Rights as Stockholder.Holder shall have no rights as a
stockholder with respect to any shares of Common Stock subject to this ISO prior
to the date of issuance to him of a certificate or certificates for such shares.
11. No Right to Continue Employment. This Agreement shall not confer
upon Holder any right with respect to continuance of employment with any member
of the ▇▇▇▇▇▇ Group nor shall it interfere in any way with the right of any such
member to terminate his employment at any time.
12. Compliance With Law and Regulation.This Agreement and the
obligation of the Company to sell and deliver shares of Common Stock hereunder
shall be subject to all applicable federal and state laws, rules and regulations
and to such approvals by any government or regulatory agency as may be required.
If at any time the Board of Directors of the Company shall determine that (i)
the listing, registration or qualification of the shares of Common Stock subject
or related thereto upon any securities exchange or under any state or federal
law, or (ii) the consent or approval of any government regulatory body, is
necessary or desirable as a condition of or in connection with the issue or
purchase of shares of Common Stock hereunder, this ISO may not be exercised in
whole or in part unless such listing, registration, qualification, consent,
approval or agreement shall have been effected or obtained free of any
conditions not acceptable to the Board of Directors. The Company agrees to use
its reasonable efforts to obtain any necessary listing, registration,
qualification, consent, approval or agreement as expeditiously as possible, and
the term of this ISO shall be extended until 30 days following the date such
listing, registration, qualification, consent, approval or agreement is effected
or obtained. Moreover, this ISO may not be exercised if its exercise or the
receipt of shares of Common Stock pursuant thereto would be contrary to
applicable law.
13. Tax Withholding Requirements. The Company shall have the right to
require Holder to remit to the Company an amount sufficient to satisfy any
federal, state or local withholding tax requirements prior to the delivery of
any certificate or certificates for Common Stock.
14. Fractional Shares.Notwithstanding any other provision of this
Agreement, no fractional shares of stock shall be issued upon the exercise of
this ISO and the Company shall not be under any obligation to compensate Holder
in any way for such fractional shares.
15. Notices. Any notice hereunder to the Company shall be addressed to
it at its office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ with a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, Breed, ▇▇▇▇▇▇ &
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and any notice hereunder to
Holder shall be addressed to him at ▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, subject
to the right of either party to designate at any time hereafter in writing some
other address.
16. Amendment. No modification, amendment or waiver of any of the
provisions of this Agreement shall be effective unless in writing specifically
referring hereto, and signed by both parties.
17. Governing Law. This Agreement shall be construed according to the
laws of the State of Delaware and all provisions hereof shall be administered
according to and its validity shall be determined under, the laws of such State,
except where preempted by federal laws.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, ▇▇▇▇▇▇ Natural Corporation has caused this
Agreement to be executed by a duly authorized officer and Holder has executed
this Agreement both as of the day and year first above written.
▇▇▇▇▇▇ NATURAL CORPORATION
By:_________________________________
Title: Chairman and CEO
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Hilton ▇. ▇▇▇▇▇▇▇▇▇▇