1
EXHIBIT-10.28
CENTRUM INDUSTRIES, INC.
STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of this 2nd day of December, 1996, by and
between Centrum Industries, Inc., a Delaware corporation ("Centrum") and
Anthony A. Montani ("Employee").
NOW THEREFORE, in consideration of the mutual covenants contained in
this Agreement, the parties hereto agree as follows:
SECTION 1 - GRANT OPTION. Centrum hereby grants to Employee the right
and option to purchase from it, on the following terms and conditions, all or
any part of an aggregate of One Thousand Eight Hundred Ninety Eight (1,898)
shares of Centrum's common stock $.05 par value (the "Shares"). The purchase
price for all Shares shall be $2.00 per share, exercisable and payable as
hereinafter provided. The price per share represents the fair market value for
these shares as of this date, determined in accordance with the Performance
Award Plan.
SECTION 2 - EXERCISE OF OPTION; CHANGE OF CONTROL. The Employee may
elect to exercise the option at any time on or after December 2, 1996.
Notwithstanding the above, if Centrum's officers or directors execute a letter
of intend (binding or non-binding) by which Centrum will become a party to a
transaction which will effect a "Change of Control" of Centrum, Employee must
exercise his/her options within the thirty (30) day period following the date
of notice to Employee that a letter of intent has been entered into, or else
the option and all rights granted by this Agreement, to the extent those rights
have not been exercised, will terminate and become null and void. No partial
exercise of such option may be for less than one (1) full Share. For
purposes of this Agreement "Change of Control" shall be effected if (i) Centrum
merges with or into or consolidates with another corporation following the
requisite approval of the shareholders of Centrum of such merger or
consolidation and, after giving effect to such merger or consolidation, less
than fifty-one (51%) of the then outstanding voting securities of the surviving
or resulting corporation represent or were issued in exchange for voting
securities of Centrum outstanding immediately prior to such merger or
consolidation; (ii) there is a sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all or substantially
all the assets of Centrum following the requisite approval of the shareholders
of Centrum of such transaction or series of transactions; or (iii) the
requisite approval of the shareholders of Centrum is obtained to approve any
plan or proposal for the liquidation or dissolution of Centrum. The option
shall be exercisable only by Employee during his/her lifetime and only if
Employee was a employee of Centrum or a Centrum affiliate on the date three (3)
months prior to the date of exercise. If Employee is disabled within the
meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended
(the "Code"), the reference to the three (3) month period above shall be read
as one (1) year.
2
SECTION 3 - METHOD OF EXERCISE. The option granted under this
Agreement shall be exercisable as provided above, upon written notice to
Centrum and the payment in cash to Centrum of the full purchase price of the
Shares which the Employee elects to purchase.
SECTION 4 - TERMINATION OF EMPLOYMENT. In the event that a Employee
shall cease to be employed by Centrum or a Centrum affiliate, whether
voluntarily or involuntarily, for any reason other than death or disability,
all of Employee's rights to further exercise his/her option(s) shall expire
three (3) months after the date of termination of employment; provided,
however, that no option shall be exercisable after the expiration date set
forth in Section 6. A leave of absence with the express written consent of
Centrum shall not be considered termination of employment for purposes of this
Section 4.
SECTION 5 - DEATH OR DISABILITY OF EMPLOYEE. In the event of the
death or disability of an Employee while employed by Centrum or a Centrum
affiliate, his/her right to purchase Shares may be exercised (to the extend
that Employee was entitled to do so at the date of his/her death or disability)
by him/her or, in the case of the death of Employee, by his/her personal
representative or by any person or persons who shall have acquired the option
directly from Employee by will or by the laws of descent and distribution, at
any time within three (3) months after the date of his/her death or
disability; provided that if Employee is disabled as defined in Section 2 of
this Agreement, the three (3) month period referred to above shall be read as
one (1) year. Notwithstanding anything herein to the contrary, no option
shall be exercisable after the expiration of the term of the option set forth
in Section 6.
SECTION 6 - TERMINATION OF OPTION. The option and all rights granted
by this Agreement, to the extent those rights have not been exercised will
terminate and become null and void at 5:00 p.m. on December 2, 2006.
SECTION 7 - SHARES AS INVESTMENT. By accepting this option, the
Employee acknowledges that any and all Shares purchased pursuant to the
exercise of the option under this Agreement shall be acquired for investment
and not for distribution, and upon the delivery of any and all of the Shares
due to the exercise of the option granted hereunder, the Employee shall deliver
to Centrum a representation in writing and in a form acceptable to Centrum that
such Shares are being acquired in good faith for investment and not for
distribution. This Section 7 shall not apply in the event that the Shares have
been registered pursuant to the Securities Act of 1933 and applicable state
securities laws.
SECTION 8 - RESTRICTIONS ON SHARES. The Shares issued pursuant to the
exercise of the option granted in Section 1 shall not be registered under
federal securities laws or the securities of any state and will, therefore, be
deemed restricted and certain restrictions will be applicable upon the resale
of such security. Each Share will, upon issuance, contain a restrictive legend
in substantially the following form:
The common stock represented by this certificate has not been
registered under the Securities Act of 1933, as amended or under the
securities laws of any state. Each holder desiring to transfer the
common stock must furnish Centrum with a written opinion reasonable
satisfactory to Centrum in the
3
form and substance from counsel reasonable satisfactory to Centrum by
reason of experience to the effect that the holder may transfer the
common stock as desired without registration under the Securities Act
or the securities laws of any state.
This Section 8 shall not apply in the event that the Shares have been
registered pursuant to the Securities Act of 1933 and applicable state
securities laws.
SECTION 9 - DILUTION OR OTHER AGREEMENT. In the event that additional
Shares are issued pursuant to a stock split or a stock dividend, the number of
Shares then covered by each outstanding option granted hereunder shall be
increased proportionately with no increase in the total purchase price of the
Shares then so covered. If the issued and outstanding Shares are reduced by a
reverse stock split or other combination of Shares, (other than by a
transaction described in Section 2 of this Agreement), the number of Shares
then covered by each outstanding option granted hereunder shall be reduced
proportionately with no reduction in the total price of the Shares then so
covered. In the event that Centrum should transfer assets to another
corporation and distribute the stock of such other corporation without the
surrender of Shares, and if such distribution is not taxable as a dividend and
no gain or loss is recognized by reason of Section 355 of the Code, or some
similar section, then the total purchase price of the Shares shall be reduced
by an amount which bears the same ratio to the total purchase price then in
effect as the market value of the stock distributed with respect to the Shares
immediately following the distribution, bears to the aggregate of the market
value of such time of a Share and the stock distributed in respect thereof. No
fractional shares shall be issued, and any fractional Shares resulting from the
computations pursuant to this Section 9, shall be eliminated from the option.
No adjustment shall be made for cash dividends or the issuance to stockholders
of rights to subscribe for additional Shares or other securities.
SECTION 10 - RIGHT OF SHAREHOLDER. The Employee shall not have any
rights or privileges of a shareholder of Centrum in respect with the Shares
transferable upon exercise of the option granted under this Agreement, unless
and until certificates representing such Shares shall have been endorsed,
transferred, and delivered and the transferee has caused his/her name to be
entered as the shareholder of record on the books of Centrum.
SECTION 11 - NON-TRANSFERABILITY. The option shall not be
transferable and the option may be exercised, during the lifetime of the
Employee only by him/her. Except as specifically provided in this Agreement,
the option may not be assigned, transferred, pledged or hypothecated in any
way, shall not be assignable by operation of law, including but not limited to
a decree in a domestic relations proceeding, and shall not be subject to
execution, attachment or similar process. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of the option, and the levy of any
execution, attachment, or similar process upon the option in violation of this
Agreement, shall be null and void and without effect.
SECTION 12 - AFFILIATE. As used herein, the term "affiliate" shall
mean any present or any future corporation which would be deemed an affiliate
of Centrum in Rule 12b-2 of the regulations promulgated pursuant to the
Securities Exchange Act of 1934.
SECTION 13 - NOTICES. Any notice to be given under the terms of this
Agreement shall be addressed to Centrum in care of its President at 6135 Trust
Drive, Suite 104A, Holland, Ohio 43528 with a copy to John W. Hilbert II, Esq.,
Fuller & Henry P.L.L., One SeaGate, 17th
4
Floor, P.O. Box 2088, Toledo, Ohio 43603 and any notice to be given to Employee
shall be addressed to him/her at the address set forth beneath his/her
signature below, or at such other address as either party may hereafter
designate in writing to the other. Any such notice shall be deemed duly given
when mailed by prepaid regular, registered, or certified mail.
SECTION 14 - BINDING EFFECT. This Agreement shall be binding upon
Employee and his/her executors administrators, and representatives and assigns,
and upon Centrum and its successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first set forth above.
CENTRUM INDUSTRIES, INC.
By: /s/ George H. Wells
-----------------------------------
George H. Wells, President and
Chief Executive Officer
"EMPLOYEE"
/s/ Anthony A. Montani
---------------------------------------
Employee's Address for Notice Purposes:
---------------------------------------
---------------------------------------