EXHIBIT 10.44
XXXXXXX WASTE SYSTEMS, INC.
FORM OF NON-STATUTORY STOCK OPTION AGREEMENT
1. GRANT OF OPTION. Xxxxxxx Waste Systems, Inc., a Delaware corporation
(the "Company"), hereby grants to [____________________] (the "Optionee") an
option, to purchase an aggregate of [__________] shares of the Class A Common
Stock ("Common Stock") of the Company at a price of $2.00 per share,
purchasable as set forth in and subject to the terms and conditions of this
option. Except where the context otherwise requires, the term "Company" shall
include the parent and all present and future subsidiaries of the Company as
defined in Sections 424(e) and 424(f) of the Internal Revenue Code of 1986, as
amended or replaced from time to time (the "Code").
2. NON-STATUTORY STOCK OPTION. This option is not intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code.
3. EXERCISE OF OPTION AND PROVISIONS FOR TERMINATION.
(a) VESTING SCHEDULE. Except as otherwise provided in this Agreement,
this option may be exercised prior to the tenth anniversary of the date of
grant (hereinafter the "Expiration Date") at any time in conjunction with or
following the closing of: (I) a firm commitment underwritten public offering
of shares of the Company's capital stock which offering: (w) shall occur not
later than July 31, 1998; (x) shall result in not less than $15,000,000
aggregate net proceeds to the Company; (y) shall have afforded each of BCI
Growth III, L.P., The Vermont Venture Capital Fund, L.P. and North Atlantic
Ventures, L.P. the opportunity to sell in the offering not less than 25% of
the aggregate number of shares of Common Stock issued or issuable to such
person upon the exercise of the warrants dated as of July 26, 1993 or May 25,
1994 held by such person (as such warrants have been amended or restated), in
each case at the initial public offering price less underwriters' discount,
if any, applicable to such shares and such expenses in connection therewith
as may be allocated to each of such persons; and (z) shall be at a public
offering price per share equal to not less than $8.50 per share (provided,
however, that the condition stated in this subparagraph (z) shall not apply
if such offering shall have occurred pursuant to the exercise by any such
persons of their demand registration rights pursuant to any registration
rights agreement then in effect between the
Company and any such persons); or (II) the merger or consolidation of the
Company, the sale of all or substantially all of the assets of the Company,
or a sale by stockholders of the capital stock of the Company, which such
event (i) shall occur not later than July 31, 1998; and (ii) shall have
resulted in net proceeds per share of capital stock held by each of BCI
Growth III, L.P., The Vermont Venture Capital Fund, L.P. and North Atlantic
Ventures, L.P. of at least $8.50, payable in cash or marketable securities
(including registered securities of the acquiring entity). Notwithstanding
the foregoing, this option shall become exercisable in full at any time after
December 31, 2000. This option may not be exercised at any time on or after
the Expiration Date, except as otherwise provided in Section 3(e) below.
(b) EXERCISE PROCEDURE. Subject to the conditions set forth in this
Agreement, this option shall be exercised by the Optionee's delivery of
written notice of exercise to the Treasurer of the Company, specifying the
number of shares to be purchased and the purchase price to be paid therefor
and accompanied by payment in full in accordance with Section 4. Such
exercise shall be effective upon receipt by the Treasurer of the Company of
such written notice together with the required payment. The Optionee may
purchase less than the number of shares covered hereby, provided that no
partial exercise of this option may be for any fractional share or for fewer
than ten whole shares.
(c) CONTINUOUS RELATIONSHIP WITH THE COMPANY REQUIRED. Except as
otherwise provided in this Section 3, this option may not be exercised unless
(i) the Optionee, at the time he or she exercises this option, is, and has
been at all times since the date of grant of this option, an employee,
officer or director of, or consultant or advisor to, the Company (an
"Eligible Optionee"); and (ii) the Optionee shall have become a party to, and
bound as a Stockholder by, the Amended and Restated Stockholders' Agreement
dated May 25, 1994, as it may be amended and restated from time to time.
(d) TERMINATION OF RELATIONSHIP WITH THE COMPANY. If the Optionee
ceases to be an Eligible Optionee for any reason, then, except as provided in
paragraphs (e) and (f) below, the right to exercise this option shall
terminate three months after such cessation (but in no event after the
Expiration Date), PROVIDED THAT this option shall be exercisable only to the
extent that the Optionee was entitled to exercise this option on the date
-2-
of such cessation. Notwithstanding the foregoing, if the Optionee, prior to
the Expiration Date, materially violates the non-competition or
confidentiality provisions of any employment contract, confidentiality and
nondisclosure agreement or other agreement between the Optionee and the
Company, the right to exercise this option shall terminate immediately upon
written notice to the Optionee from the Company describing such violation.
(e) EXERCISE PERIOD UPON DEATH OR DISABILITY. If the Optionee dies or
becomes disabled (within the meaning of Section 22(e)(3) of the Code) prior
to the Expiration Date while he or she is an Eligible Optionee, or if the
Optionee dies within three months after the Optionee ceases to be an Eligible
Optionee (other than as the result of a termination of such relationship by
the Company for "cause" as specified in paragraph (f) below), this option
shall be exercisable, within the period of twelve months following the date
of death or disability of the Optionee (whether or not such exercise occurs
before the Expiration Date), by the Optionee or by the person to whom this
option is transferred by will or the laws of descent and distribution,
PROVIDED THAT this option shall be exercisable only to the extent that this
option was exercisable by the Optionee on the date of his or her death or
disability. Except as otherwise indicated by the context, the term
"Optionee", as used in this option, shall be deemed to include the estate of
the Optionee or any person who acquires the right to exercise this option by
bequest or inheritance or otherwise by reason of the death of the Optionee.
(f) DISCHARGE FOR CAUSE. If the Optionee, prior to the Expiration
Date, is discharged by the Company for "cause" (as defined below), the right
to exercise this option shall terminate immediately upon such cessation of
employment. "Cause" shall mean willful misconduct by the Optionee or willful
failure to perform his or her responsibilities in the best interests of the
Company (including, without limitation, breach by the Optionee of any
provision of any employment, consulting, advisory, nondisclosure,
non-competition or other similar agreement between the Optionee and the
Company), as determined by the Company, which determination shall be
conclusive. The Optionee shall be considered to have been discharged "for
cause" if the Company determines, within 30 days after the Optionee's
resignation, that discharge for cause was warranted.
-3-
4. PAYMENT OF PURCHASE PRICE.
(a) METHOD OF PAYMENT. Payment of the purchase price for shares
purchased upon exercise of this option shall be made (i) by delivery to the
Company of cash or a check to the order of the Company in an amount equal to
the purchase price of such shares, (ii) subject to the consent of the
Company, by delivery to the Company of shares of Common Stock of the Company
then owned by the Optionee having a fair market value equal in amount to the
purchase price of such shares, (iii) as a "cashless exercise", in compliance
with applicable laws and regulations, (iv) by any other means determined by
the Board of Directors, or (v) by any combination of such methods of payment.
(b) VALUATION OF SHARES OR OTHER NON-CASH CONSIDERATION TENDERED IN
PAYMENT OF PURCHASE PRICE. For the purposes hereof, the fair market value of
any share of the Company's Common Stock or other non-cash consideration which
may be delivered to the Company in exercise of this option shall be
determined in good faith by the Board of Directors of the Company.
(c) DELIVERY OF SHARES TENDERED IN PAYMENT OF PURCHASE PRICE. If the
Optionee exercises this option by delivery of shares of Common Stock of the
Company, the certificate or certificates representing the shares of Common
Stock of the Company to be delivered shall be duly executed in blank by the
Optionee or shall be accompanied by a stock power duly executed in blank
suitable for purposes of transferring such shares to the Company. Fractional
shares of Common Stock of the Company will not be accepted in payment of the
purchase price of shares acquired upon exercise of this option.
5. DELIVERY OF SHARES; COMPLIANCE WITH SECURITIES LAWS, ETC.
(a) GENERAL. The Company shall, upon payment of the option price for
the number of shares purchased and paid for, make prompt delivery of such
shares to the Optionee, provided that if any law or regulation requires the
Company to take any action with respect to such shares before the issuance
thereof, then the date of delivery of such shares shall be extended for the
period necessary to complete such action.
-4-
(b) LISTING, QUALIFICATION, ETC. This option shall be subject to the
requirement that if, at any time, counsel to the Company shall determine that
the listing, registration or qualification of the shares subject hereto upon
any securities exchange or under any state or federal law, or the consent or
approval of any governmental or regulatory body, or that the disclosure of
non-public information or the satisfaction of any other condition is
necessary as a condition of, or in connection with, the issuance or purchase
of shares hereunder, this option may not be exercised, in whole or in part,
unless such listing, registration, qualification, consent or approval,
disclosure or satisfaction of such other condition shall have been effected
or obtained on terms acceptable to the Board of Directors. Nothing herein
shall be deemed to require the Company to apply for, effect or obtain such
listing, registration, qualification or disclosure, or to satisfy such other
condition.
6. NONTRANSFERABILITY OF OPTION. This option is personal and no rights
granted hereunder may be transferred, assigned, pledged or hypothecated in
any way (whether by operation of law or otherwise) nor shall any such rights
be subject to execution, attachment or similar process, except that this
option may be transferred (i) by will or the laws of descent and distribution
or (ii) pursuant to a qualified domestic relations order as defined in
Section 414(p) of the Code. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of this option or of such rights contrary to
the provisions hereof, or upon the levy of any attachment or similar process
upon this option or such rights, this option and such rights shall, at the
election of the Company, become null and void.
7. NO SPECIAL EMPLOYMENT OR SIMILAR RIGHTS. Nothing contained in this
option shall be construed or deemed by any person under any circumstances to
bind the Company to continue the employment or other relationship of the
Optionee with the Company for the period within which this option may be
exercised.
8. RIGHTS AS A SHAREHOLDER. The Optionee shall have no rights as a
shareholder with respect to any shares which may be purchased by exercise of
this option (including, without limitation, any rights to receive dividends
or non-cash distributions with respect to such shares) unless and until a
certificate representing such shares is duly issued and delivered to the
Optionee. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is issued.
-5-
9. ADJUSTMENT PROVISIONS.
(a) GENERAL. If, through or as a result of any merger, consolidation,
sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock
split, reverse stock split or other similar transaction, (i) the outstanding
shares of Common Stock are increased or decreased or are exchanged for a
different number or kind of shares or other securities of the Company, or
(ii) additional shares or new or different shares or other securities of the
Company or other non-cash assets are distributed with respect to such shares
of Common Stock or other securities, an appropriate and proportionate
adjustment shall be made in (x) the number and kind of shares issuable upon
the exercise of this option, and (y) the option price for each share issuable
upon the exercise hereof without changing the aggregate purchase price as to
which such options remain exercisable.
(b) BOARD AUTHORITY TO MAKE ADJUSTMENTS. Any adjustments under this
Section 9 will be made by the Board of Directors, whose determination as to
what adjustments, if any, will be made and the extent thereof will be final,
binding and conclusive. No fractional shares will be issued pursuant to this
option on account of any such adjustments.
10. MERGERS, CONSOLIDATION, DISTRIBUTIONS, LIQUIDATIONS, ETC. In the
event of a merger or consolidation or sale of all or substantially all of the
assets of the Company in which outstanding shares of Common Stock are
exchanged for securities, cash or other property of any other corporation or
business entity, or in the event of a liquidation of the Company, prior to
the Expiration Date or termination of this option, the Board of Directors of
the Company, or the board of directors of any corporation assuming the
obligations of the Company, may, in its discretion, take any one or more of
the following actions, as to this option: (i) provide that such option shall
be assumed, or an equivalent option shall be substituted, by the acquiring or
succeeding corporation (or an affiliate thereof), (ii) upon written notice to
the Optionee, provide that this option will terminate immediately prior to
the consummation of such transaction unless exercised by the Optionee within
a specified period following the date of such notice, (iii) in the event of a
merger under the terms of which holders of the Common Stock of the Company
will receive upon consummation thereof a cash payment for each share
surrendered in the merger (the "Merger Price"), make or provide for a cash
payment to the Optionee equal to the difference between (A) the Merger Price
times
-6-
the number of shares of Common Stock subject to this option (to the extent
then exercisable at prices not in excess of the Merger Price) and (B) the
aggregate exercise price of this outstanding option, in exchange for the
termination of this option, and (iv) provide that this option shall become
exercisable in full immediately prior to such event.
11. WITHHOLDING TAXES. The Company's obligation to deliver shares upon
the exercise of this option shall be subject to the Optionee's satisfaction
of all applicable federal, state and local income and employment tax
withholding requirements.
12. INVESTMENT REPRESENTATIONS; LEGENDS.
(a) REPRESENTATIONS. The Optionee represents, warrants and covenants
that:
(i) Any shares purchased upon exercise of this option shall be
acquired for the Optionee's account for investment only, and not
with a view to, or for sale in connection with, any distribution of
the shares in violation of the Securities Act of 1933 (the
"Securities Act"), or any rule or regulation under the Securities
Act.
(ii) The Optionee has had such opportunity as he or she has
deemed adequate to obtain from representatives of the Company such
information as is necessary to permit the Optionee to evaluate the
merits and risks of his or her investment in the Company.
(iii) The Optionee is able to bear the economic risk of holding
such shares acquired pursuant to the exercise of this option for an
indefinite period.
(iv) The Optionee understands that (A) the shares acquired
pursuant to the exercise of this option will not be registered under
the Securities Act and are "restricted securities" within the
meaning of Rule 144 under the Securities Act; (B) such shares cannot
be sold, transferred or otherwise disposed of unless they are
subsequently registered under the Securities Act or an exemption
from registration is then available; (C) in any event, an exemption
from registration under Rule 144 or otherwise under the Securities
Act may not be available for at least two years and even then will
not
-7-
be available unless a public market then exists for the Common
Stock, adequate information concerning the Company is then available
to the public, and other terms and conditions of Rule 144 are
complied with; and (D) there is now no registration statement on
file with the Securities and Exchange Commission with respect to any
stock of the Company and the Company has no obligation or current
intention to register any shares acquired pursuant to the exercise
of this option under the Securities Act.
(v) The Optionee agrees that, if the Company offers any of its
Common Stock for sale pursuant to a registration statement under the
Securities Act, the Optionee will not, without the prior written
consent of the Company, offer, sell, contract to sell or otherwise
dispose of, directly or indirectly (a "Disposition"), any shares
purchased upon exercise of this option for a period of 90 days after
the effective date of such registration statement.
By making payment upon exercise of this option, the Optionee shall be deemed
to have reaffirmed, as of the date of such payment, the representations made
in this Section 12.
(b) LEGENDS ON STOCK CERTIFICATE. All stock certificates
representing shares of Common Stock issued to the Optionee upon exercise of
this option shall have affixed thereto legends substantially in the following
forms, in addition to any other legends required by applicable state law:
"The shares of stock represented by this certificate have
not been registered under the Securities Act of 1933 and
may not be transferred, sold or otherwise disposed of in
the absence of an effective registration statement with
respect to the shares evidenced by this certificate, filed
and made effective under the Securities Act of 1933, or an
opinion of counsel satisfactory to the Company to the
effect that registration under such Act is not required."
"The shares of stock represented by this certificate are
subject to certain restrictions on transfer contained in
an Option Agreement,
-8-
a copy of which will be furnished upon request by the
issuer."
13. MISCELLANEOUS.
(a) Except as provided herein, this option may not be amended or
otherwise modified unless evidenced in writing and signed by the Company and
the Optionee.
(b) All notices under this option shall be mailed or delivered by
hand to the parties at their respective addresses set forth beneath their
names below or at such other address as may be designated in writing by
either of the parties to one another.
(c) This option shall be governed by and construed in accordance
with the laws of the State of Vermont.
Date of Grant: XXXXXXX WASTE SYSTEMS, INC.
As of May 25, 1994
By: ______________________________________
Title: ___________________________________
OPTIONEE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the
terms and conditions thereof.
OPTIONEE
___________________________________________
ADDRESS: __________________________________
__________________________________
-9-
