EXHIBIT 10.33
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is entered into as of April 9, 2001, by and
between TSET, Inc., a Nevada corporation ("TSET"), and Igor Krichtafovitch
("Krichtafovitch").
WITNESSETH:
WHEREAS, TSET desires to grant to Krichtafovitch an option to acquire up
to 50,000 restricted shares of TSET's common stock, par value $0.001 per share
(the "Option Shares"), in consideration of valuable contributions made by
Krichtafovitch to TSET and its wholly-owned subsidiaries; and
WHEREAS, Krichtafovitch desires to accept such option.
NOW, THEREFORE, for and in consideration of the premises and mutual
promises, covenants, and agreements set forth herein and for other good and
valuable consideration, the delivery, receipt, and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF OPTION. TSET hereby grants to Krichtafovitch an option
(the "Option") to acquire the Option Shares at an exercise price
of $0.885 per share (the "Exercise Price"). The Option shall
immediately and fully vest in Krichtafovitch' favor for all
purposes upon execution and delivery of this Agreement by the
parties. The Option is personal to Krichtafovitch and may be
exercised only by Krichtafovitch during his lifetime. The Option
shall continue in full force and effect for a period of 5 years
from the date hereof (the "Term"), at which time the Option shall
expire and terminate unless previously exercised by
Krichtafovitch. The Option shall not be subject to forfeiture or
termination, except for Krichtafovitch's failure to exercise the
Option during the Term.
2. EXERCISE OF OPTION. The Option may be exercised by
Krichtafovitch, in whole or in part, at any time during the Term
upon receipt by TSET of written notice from Krichtafovitch (the
"Exercise Notice"). The Exercise Notice shall specify the number
of Option Shares Krichtafovitch desires to acquire pursuant
thereto and provide any necessary or appropriate instructions to
TSET and its transfer agent regarding the denomination of
certificates representing the Option Shares and the name in which
the Option Shares should be registered. The exercise of the
Option shall be on a "cashless" basis and Krichtafovitch shall
not be required to remit to TSET any payment therefor.
3. RESERVATION OF THE OPTION SHARES. To ensure fulfillment of its
obligations hereunder should Krichtafovitch elect to exercise the
Option, TSET shall reserve from its authorized but unissued
capital that number of shares of its common stock equal to the
Option Shares.
4. RESTRICTIONS ON TRANSFER. Krichtafovitch acknowledges that the
Option Shares are subject to certain restrictions upon transfer,
and cannot be sold, assigned, transferred, or conveyed (in any
case, a "transfer") except in compliance with such restrictions
and applicable provisions of federal and state securities laws.
Certificates representing the Option Shares shall bear
appropriate restrictive legends and notices. In the event
Krichtafovitch desires to transfer any Option Shares prior to the
expiration of such restrictions, TSET shall be entitled to
receive from Krichtafovitch written undertakings, certifications,
or opinions of legal counsel evidencing compliance with such
restrictions.
5. TAX MATTERS. Krichtafovitch acknowledges that treatment of the
Option, the Option Shares, and events or transactions with
respect thereto, for federal and state income and other tax
purposes, is dependent upon various factors and events which are
not determined by this Agreement. TSET makes no representations
to Krichtafovitch with respect to, and hereby disclaims any and
all responsibility as to such tax treatment. Krichtafovitch shall
be solely and fully responsible for the payment of, and shall
pay, any and all federal, state, and other taxes (including any
and all withholding taxes) levied with respect to the grant of
the Option, the purchase of the Option Shares, and any subsequent
transfer thereof. In the event the exercise of the Option or the
disposition of the Option Shares following exercise of the Option
results in Krichtafovitch's realization of income which for
federal, state, local, or other income tax purposes is, in TSET's
opinion, subject to withholding of tax, then at the election of
TSET and prior to the delivery to Krichtafovitch of certificates
representing the Option Shares acquired by him pursuant to an
Exercise Notice, (a) Krichtafovitch shall pay to TSET an amount
equal to such withholding tax or (b) TSET may withhold such
amount from any compensation or other payments owed by TSET to
Krichtafovitch.
6. NONQUALIFIED STATUS. The Option is not intended to be an
"incentive stock option" as defined in the Internal Revenue Code
of 1986, as amended, and shall not be treated as such whether or
not, by the terms hereof, it meets the requirements of any
applicable provisions thereof.
7. NOTICES. All notices or other communications given or made
hereunder shall be in writing and may be delivered personally, by
express, registered, or certified mail (return receipt
requested), by special courier, or by facsimile transmission (to
be followed by delivery of a written original notice in the most
expeditious manner possible, as aforesaid), all postage, fees,
and charges prepaid, to TSET and Krichtafovitch, as the case may
be, to the following addresses (which may be changed by the
parties from time to time upon written notice given as
aforesaid):
To TSET: 333 South State Street, PMB 111
Lake Oswego, OR 97034
Attn: Richard A. Papworth
Chief Financial Officer
Tel: 503.968.1547
Fax: 503.968.0867
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To Krichtafovitch: 6827 117th Avenue, N.E.
Kirkland, WA 98033
Tel: 425.889.0186
Fax: 425.889.0576
Notices hereunder shall be deemed given when delivered in person,
upon confirmation of successful transmission when sent by
facsimile, or 5 days after being mailed by express, registered,
or certified mail (return receipt requested), postage and fees
prepaid.
8. INTEGRATION, AMENDMENT, AND WAIVER. When executed and delivered,
this Agreement shall constitute the entire agreement between the
parties with respect to the subject matter hereof and shall
supersede any and all prior agreements and understandings with
respect thereto. No other agreement, whether oral or written,
shall be used to modify or contradict the provisions hereof
unless the same is in writing, signed by the parties, and states
that it is intended to amend the provisions of this Agreement. No
waiver by either party of any breach of this Agreement in any
particular instance shall constitute a waiver of any other breach
hereof in any other circumstance or any relinquishment for the
future of their respective rights to strictly enforce all of the
other provisions hereof or seek all remedies which may be
available at law or in equity.
9. COUNTERPARTS; BINDING EFFECT. This Agreement may be executed in
multiple counterparts (and by facsimile signature, to be followed
by manual signature), each of which shall be deemed an original,
and all of which shall be deemed to constitute a single
agreement. This Agreement shall be binding upon and inure to the
benefit of the parties' respective permitted heirs, successors,
and assigns.
10. ASSIGNMENT. This Agreement is personal to the parties hereto.
Accordingly, Krichtafovitch shall not assign or transfer this
Agreement without the prior written consent of TSET, which
consent shall not be unreasonably withheld, conditioned, or
delayed; provided, however, that Krichtafovitch shall be
permitted to assign or transfer this Agreement to a legal entity
owned by Krichtafovitch without such consent. Any attempted
assignment of this Agreement by Krichtafovitch without receipt of
such consent from TSET shall be null and void.
11. SEVERABILITY. If any provision (or portion thereof) of this
Agreement is adjudged unenforceable by a court of competent
jurisdiction, the remaining provisions shall nevertheless
continue in full force and effect and the provision deemed
unenforceable shall be remade or interpreted by the parties in a
manner that such provisions shall be enforceable to preserve, to
the maximum extent possible, the original intention and meaning
thereof. If necessary to effect such intent, TSET and
Krichtafovitch shall negotiate in good faith to amend this
Agreement to replace such provision with language believed in
good faith by the parties to be enforceable, which as closely as
possible reflects such intent.
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12. NO THIRD PARTY BENEFICIARIES. This Agreement is for the sole
benefit of the parties and their permitted successors, heirs, and
assigns. Nothing herein, expressed or implied, shall give or be
construed to give any other person, other than the parties and
their permitted assigns, any legal or equitable rights hereunder.
No finder's or other fees shall be payable by either party with
respect to the exercise of the Option or the issuance of the
Option Shares pursuant to this Agreement.
13. STATE SECURITIES QUALIFICATIONS. The sale of the Option Shares
pursuant to any exercise of the Option has not been qualified
with the securities regulatory authorities in any state or other
jurisdiction and the issuance of the Option Shares prior to such
qualification may be unlawful unless such transactions are exempt
from such qualification requirements. The rights of the parties
hereto are expressly conditioned upon such qualification being
obtained, unless any such transaction is so exempt.
14. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Oregon, exclusive of
its conflicts of laws principles.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement effective as of the date first written above.
TSET, Inc.
By: /s/ Jeffrey D. Wilson
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Jeffrey D. Wilson
Chairman and Chief Executive Officer
/s/ Igor Krichtafovitch
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Igor Krichtafovitch