Option dated April 4, 2019 issued to Tom J. Berman
OPTION TO PURCHASE
SHARES OF CLASS A COMMON STOCK OF
Dated: April 3, 2019
This certifies that Tom J. Berman (the “Holder”) is entitled to purchase, at a price of $0.55 per share (the “Exercise Price”) subject to adjustment under Section 4 below), from PEN Inc., a Delaware corporation (the “Company”), up to 550,000 fully paid and nonassessable shares (the “Option Shares”) of Class A Common Stock, $0.0001 par value per share (the “Class A Stock”) (subject to vesting under Section 1).
|1.||Vesting; Exercise; Delivery & Acknowledgement.|
|1.1.||Vesting. This Option is subject to vesting as follows:|
|The right to purchase:||Consisting of:||Is vested on:|
|Tranche 1||50,000 Option Shares||The date of grant|
|Tranche 2||75,000 Option Shares||December 31, 2019|
|Tranche 3||100,000 Option Shares||June 30, 2020|
|Tranche 4||125,000 Option Shares||December 31, 2020|
|Tranche 5||100,000 Option Shares||If the Bonus Cap is reached for 2019|
|Tranche 6||100,000 Option Shares||If the Bonus Cap is reached for 2020|
“Bonus Cap” means the $200,000 cap on the cash bonus payable under his Employment Agreement dated as of April 3, 2019.
|1.2.||Exercise. The vested Tranches of this option are exercisable from time to time, in whole or in part, from and after the date vesting occurs for that Tranche up to and including 5:00 p.m. (Eastern Time) on the 5th anniversary of the date of vesting for that Tranche (the “Expiration Time”), upon delivery to the Company of the Form of (i) the Exercise Notice attached as Appendix A duly completed and executed. (ii) payment of the aggregate Exercise Price for the number of shares for which this Option is being exercised, and (iii) payment of the Tax Amount Due (as defined in section 2.2).|
|1.3.||Delivery. Upon exercise and payment under Section 1.2, the Company will (x) issue and deliver to the Holder, at the Company’s expense, a statement for the Option Shares that were purchased or, (y) if available, and upon request and at the expense of the Holder, electronically deliver the Option Shares purchased to the Holder’s account at The Depository Trust Company (“DTC”) or similar organization. Any other securities or property to which the Holder may be entitled upon exercise shall be delivered to the Holder. “Business Day” means any day, other than a Saturday, Sunday and any day which is a legal holiday under the Laws of the State of Ohio or Florida, or is a day on which banking institutions located in the State of Ohio or Florida are authorized or required by law or other governmental action to close.|
|1.4.||Acknowledgement. In the case of a purchase of less than all the Option Shares in any Tranche, the Company will execute and deliver to the Holder, within ten days after rights represented by this Option have been exercised, an Acknowledgement in the form of Appendix B indicating the number of Option Shares which remain in that Tranche, if any.|
|2.||Payment of Exercise Price and Applicable Taxes.|
|2.1.||Exercise Price. The aggregate Exercise Price for Option Shares being purchased hereunder may be paid by (i) cash or wire transfer of immediately available funds to a bank account specified by the Company, or (ii) certified or bank cashier’s check. The Holder may also, in its sole discretion, satisfy its obligation to pay the aggregate purchase price for Option Shares through a “cashless exercise,” in which event the Company shall issue to the Holder the number of determined as follows:|
X = the number of Option Shares on which withholding is due.
Y = the total number of Option Shares with respect to which this Option is being exercised.
A = the Closing Sale Price for the Trading Day immediately prior to the date of receipt of the Form of Exercise Notice by the Company.
B = the Exercise Price in effect for the Option Shares at the time of exercise.
“Trading Day” means a day on which (a) the OTC Market or, if the Class A Stock is not trading on the OTC Market, the principal United States national or regional securities exchange on which the Class A Stock is then listed or open for trading, in each case, with a scheduled closing time of 4:00 p.m. (New York City time ) or the then-standard closing time for regular trading on the relevant exchange or market and (b) a Closing Sale Price for the Class A Stock is available on such securities exchange or market. If the Class A Stock is not so listed, a “Trading Day” means any day on which banking institutions in the State of New York are open for business.
“Closing Sale Price” of the Class A Stock on any date means the closing per share sale price (or, if no closing sales price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) at 4:00 p.m. (New York City time) on such date as reported by the principal United States national or regional securities exchange on which the Class A Stock is listed or, if the Class A Stock is not so listed, as reported by OTC Markets Group Inc. or a similar organization. If the Class A Stock is not so quoted, the “Closing Sales Price” shall be the average of the mid-point of the last bid and ask prices for the Class A Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.
|2.2||Applicable Taxes. The holder shall pay to the Company a payment equal to the Employee Rate multipled by X(A-B)( as X, A, and B are defined above, the “Tax Amount Due”). “Employee Rate” means the sum of the rates for applicable federal, state and local withholding taxes that would be deducted from an employee’s wages if the spread between the option price and fair market value was paid to the employee in cash, but specifically excludes any taxes due from the employer. The Tax Amount Due may be paid by (i) cash or wire transfer of immediately available funds to a bank account specified by the Company, or (ii) certified or bank cashier’s check.|
|3.||Shares to be Fully Paid. All Option Shares which may be issued upon the exercise of the rights represented by this Option will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable. The Company will take all action as may be reasonably necessary to assure that the shares of Class A Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any securities exchange or automated quotation system, if applicable, upon which the Class A Stock may be listed.|
|4.||Adjustment of Exercise Price and Number of Shares. The Exercise Price and the number of Option Shares purchasable are subject to adjustment as described in this Section 4. Upon each adjustment of the Exercise Price, the Holder shall thereafter be entitled to purchase, at the Exercise Price resulting from the adjustment, the number of shares obtained by multiplying the Exercise Price in effect immediately prior to the adjustment by the number of shares purchasable pursuant hereto immediately prior to the adjustment, and dividing the product by the Exercise Price resulting from the adjustment.|
|4.1||Subdivisions, Combinations and Dividends. If the Company (x) pays a dividend or makes a distribution, in shares of Class A Stock, on any all or substantially all shares of Class A Stock, (y) splits or subdivides its outstanding Class A Stock into a greater number of shares, or (z) combines its outstanding Class A Stock into a smaller number of shares, then in each case the Exercise Price in effect immediately prior thereto shall be adjusted so that the Holder shall be entitled to receive the number of shares of Class A Stock that the Holder would have owned or would have been entitled to receive after the occurrence of any of the events described above had this Option been exercised immediately prior to the event. An adjustment made under this Section 4.1 will be effective immediately after the close of business on the dividend or distribution date in the case of a dividend or distribution and will be effective immediately after the close of business on the effective date in the case of a subdivision, split or combination, as the case may be. If as a result of an adjustment under this Section 4.1, the Holder is entitled to receive any shares of the Company other than shares of Class A Stock, thereafter the number of other shares receivable upon exercise of this Option shall be subject to adjustment on terms as nearly equivalent as practicable to the provisions of this Section 4 with respect to the Class A Stock.|
|4.2||Reclassification. If any reclassification of the capital stock of the Company, by merger, consolidation, reorganization or otherwise, is effected so that holders of Class A Stock are entitled to receive stock, securities, or other assets or property, then, as a condition of the reclassification, lawful and adequate provisions shall be made whereby the Holder shall thereafter have the right to purchase and receive (in lieu of the shares of Class A Stock purchasable and receivable upon the exercise of this Option immediately prior to the reclassification) the shares of stock, securities or other assets or property as may be issued or payable with respect to or in exchange for a number of outstanding shares of Class A Stock equal to the number of shares of Class A Stock purchasable and receivable upon the exercise of this Option immediately prior to the reclassification. If the Company is acquired in an all cash transaction, the Holder shall have the right to receive cash equal to the value of the Option Shares issuable upon a cashless exercise of this Option immediately prior to the closing of the transaction. In any reclassification described above, appropriate provision shall be made with respect to the rights and interests of the Holder so that the provisions hereof (including, without limitation, provisions for adjustments of the Exercise Price and of the number of shares purchasable and receivable upon the exercise of this Option) shall continue to apply in relation to any shares of stock, or other securities or assets thereafter deliverable upon the exercise hereof.|
|4.3||Pro Rata Distributions. If the Company, at any time while this Option is outstanding, distributes to all holders of Class A Stock for no consideration (w) evidences of its indebtedness, (x) any security (other than a distribution of Class A Stock covered by the preceding paragraphs), (y) rights or options to subscribe for or purchase any security, or (z) any other asset, including cash (in each case, “Distributed Property”), then, upon any exercise of this Option that occurs after the record date for determination of stockholders entitled to receive the distribution, the Holder shall be entitled to receive, in addition to the Option Shares, the Distributed Property that the Holder would have been entitled to receive if the Holder been the record holder of the Option Shares immediately prior to the record date.|
|4.4||Notice of Adjustment. Upon any adjustment of the Exercise Price or any increase or decrease in the number of Options Shares purchasable, the Company shall give notice to the Holder. The notice shall state the Exercise Price resulting from such adjustment and the increase or decrease, if any, in the number of Option Shares purchasable setting forth in reasonable detail the method of calculation and the facts upon which the calculation is based.|
|4.5||Other Notices. If at any time: (1) the Company declares any cash dividend upon its shares of Class A Stock; (2) there is any capital reorganization or reclassification of the capital stock of the Company; (3) the Company is acquired in an all cash transaction; or (4) there is a voluntary or involuntary dissolution, liquidation or winding-up of the Company, then the Company notice to the Holder (a) at least ten days prior to the date on which the books of the Company will close, or the record date for the dividend, cash payment or for determining rights to vote in respect of any the reorganization or reclassification, and (b) if a reorganization or reclassification, at least ten days prior to the date when the same shall take place.|
|5.||No Voting or Dividend Rights. Nothing contained in this Option shall be construed as conferring upon the Holder the right to vote or to consent to receive notice as a stockholder of the Company or any other matters or any rights whatsoever as a stockholder of the Company prior to the purchase of Option Shares and then only as to the shares purchased in accordance with its terms. No dividends or interest shall be payable or accrued in respect of this Option or the interest represented hereby or the shares purchasable hereunder until, and only to the extent that, Option Shares are purchased hereunder.|
|6.||Transfer. This Option and the rights granted to Holder are not transferable by the Holder and may not be transferred, in whole or in part, except that vested Tranches may be exercised by the legal representative of the Holder for a period of 30 days after his death or disability.|
|7.||Lost or Mutilated Options. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this Option and, in the case of any loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or in the case of any mutilation upon surrender and cancellation of the Option, the Company, at its expense, will make and deliver a new Option, of like tenor, in lieu of the lost, stolen, destroyed or mutilated Option.|
|8.||Modification and Waiver. Any term of this Option may be amended by a writing signed by the Company and the Holder. The observance of any term of this Option may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a writing signed by the party against whom the waiver is to be enforced.|
|9.||Successors and Assigns. Subject to applicable securities laws, this Option and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors of the Company and of the Holder.|
|10.||Severability. Wherever possible, each provision of this Option shall be interpreted to be effective and valid under applicable law, but if any provision of this Option shall be prohibited by or invalid under applicable law, the provision shall be ineffective to the extent of the prohibition or invalidity, without invalidating the remainder of the provisions or the remaining provisions of this Option.|
|11.||Notices. All notices, requests and other communications hereunder shall be in writing and shall be given and shall be delivered personally or via a messenger service (notice given upon receipt), or mailed with confirming e-mail (notice deemed given upon earlier of e-mail receipt or receipt of hard copy) to the party’s corporate address or other address on record with the other parties.|
|12.||Governing Law. This Option is to be construed in accordance with and governed by the laws of the State of Delaware without regard to its principles of conflicts of laws.|
IN WITNESS WHEREOF, the Company has caused this Option to be duly executed as of the date first above written.
|By:||/s/ Scott E Rickert|
|Scott E. Rickert, Chairman & CEO|