EXHIBIT 4.5
TANKNOLOGY-NDE INTERNATIONAL, INC.
Non-Qualified Stock Option Agreement
Tanknology-NDE International, Inc., a Delaware Corporation (the "Company"),
hereby grants this ***** day of *******, 199*, to ********, an option to
purchase a maximum of ***** shares of its Common Stock, $.001 par value, at the
price $.**** per share, on the following terms and conditions:
1. Grant Under 1989 Long-Term Incentive Plan. This Option is granted pursuant
to and is governed by the Company's 1989 Long-Term Incentive Plan, as amended
(the "Plan") and, unless the context otherwise requires, terms used herein shall
have the same meaning as in the Plan. To the extent not specifically defined
herein, capitalized terms used in this Agreement shall have the same meanings
ascribed to them in the Plan. By execution of this Agreement, the Optionee
acknowledges receipt of a copy of the Plan. Determinations made in connection
with this Option pursuant to the Plan shall be governed by the Plan as it exists
on this date.
2. Grant as Non-Qualified Option; Other Options. This Option shall be treated
for federal income tax purposes as a Non-Qualified Option (rather than an
Incentive Stock Option), and the Board of Directors will take appropriate
action, if necessary, to achieve this result. This Option is in addition to any
other Options heretofore or hereafter granted to the Optionee by the Company. A
duplicate original of this instrument shall not effect the grant of another
Option.
3. Extent of Option If Business Relationship Continues. If the Optionee has
continued to serve the Company or any Subsidiary (as defined in the Plan) in the
capacity of an employee, officer, director or consultant (such service is
described herein as maintaining or being involved in a "Business Relationship"
with the Company) on the following dates, the Optionee may exercise this Option
for the number of shares set opposite the applicable date:
Less than one year from
******, 199* -0- shares
One year but less than
two years from up to
*****, 199* - up to 1/3 of the shares
granted
EXHIBIT 4.5
Two years but less than
******, 199* - an additional 1/3 of the
shares granted
Three years but less than
*****, 199* - all of the shares granted
The foregoing rights are cumulative and, while the Optionee continues to
maintain a Business Relationship with the Company, may be exercised up to and
including the date which is ten years from the date this Option is granted. All
of the foregoing rights are subject to Articles 4, 12 and 13, as appropriate, if
the Optionee ceases to maintain a Business Relationship with the Company or
dies, becomes disabled or undergoes dissolution while involved in a Business
Relationship with the Company.
4. Termination of Business Relationship. If the Optionee ceases to maintain a
Business Relationship with the Company, other than by reason of death as defined
in Article 5, no further installments of this Option shall become exercisable
and this Option shall terminate after the passage of ninety (90) days from the
date the Business Relationship ceases, but in no event later than the scheduled
expiration date. In such a case, the Optionee's only rights hereunder shall be
those which are properly exercised before the termination of this Option.
5. Death; Dissolution. If the Optionee is a natural person who dies while
involved in a Business Relationship with the Company, this Option may be
exercised, to the extent of the number of shares with respect to which the
Optionee could have exercised it on the date of his death, by his estate,
personal representative or beneficiary to whom this Option has been assigned
pursuant to Article 10, at any time within one hundred eighty (180) days after
the date of death, but not later than the scheduled expiration date. If the
Optionee is a corporation, partnership, trust or other entity that is dissolved,
liquidated, becomes insolvent or enters into a merger or acquisition with
respect to which such Optionee is not the surviving entity at the time when such
entity is involved in a Business Relationship with the Company, this Option
shall immediately terminate as of the date of such event, and the only rights
hereunder shall be those as to which this Option was properly exercised before
such dissolution or other event.
EXHIBIT 4.5
6. Partial Exercise. Exercise of this Option up to the extent above stated may
be made in part at any time and from time to time within the above limits,
except that this Option may not be exercised for a fraction of a share unless
such exercise is with respect to the final installment of stock subject to this
Option and a fractional share (or cash in lieu thereof) must be issued to permit
the Optionee to exercise completely such final installment. Any fractional share
with respect to which an installment of this Option cannot be exercised because
of the limitation contained in the preceding sentence shall remain subject to
this Option and shall be available for later purchase by the Optionee in
accordance with the terms hereof.
7. Payment of Price. The Option price is payable in United States dollars and
may be paid in cash or by check or any combination of the foregoing, equal in
amount to the Option price; plus all withholding taxes due.
8. Agreement to Purchase for Investment. By acceptance of this Option, the
Optionee agrees that a purchase of shares under this Option will not be made
with a view to their distribution, as that term is used in the Securities Act of
1933, as amended, unless in the opinion of counsel to the Company such
distribution is in compliance with or exempt from the registration and
prospectus requirements of that Act, and the Optionee agrees to sign a
certificate to such effect at the time of exercising this Option and agrees that
the certificate for the shares so purchased may be inscribed with a legend to
ensure compliance with that Act.
9. Method of Exercising Option. Subject to the terms and conditions of this
Agreement, this Option may be exercised by written notice to the Company (to the
attention of the corporate Secretary located at 0000 Xxxxx Xxxxx Xxxx., Xxxxxxxx
000, Xxxxxx, Xxxxx 00000, or to such transfer agent as the Company shall
designate. Such notice shall state the election to exercise this Option and the
number of shares in respect of which it is being exercised and shall be signed
by the person or persons so exercising this Option. Such notice shall be
accompanied by payment of the full purchase price of such shares, and the
Company shall deliver a certificate or certificates representing such shares as
soon as practicable after the notice shall be received. The certificate or
certificates for the shares as to which this Option shall have been so exercised
shall be registered in the name of the person or persons so exercising this
Option (or, if this Option shall be exercised by the Optionee and if the
Optionee shall so request in the notice exercising this Option, shall be
registered in the name of the Optionee and another person jointly, with right of
survivorship) and shall be delivered as provided above to or upon the written
order of the person or persons exercising this Option. In the event this Option
shall be exercised, pursuant to Article 5 hereof, by any person or persons other
than the Optionee, such notice shall be accompanied by appropriate proof of the
right of such person or persons to exercise this Option. All shares that shall
be purchased upon the exercise of this Option as provided herein shall be fully
paid and non-assessable.
10. Option Not Transferable. This Option is not transferable or assignable
except by will or by the laws of descent and distribution. During the Optionee's
lifetime, only the Optionee can exercise this Option.
EXHIBIT 4.5
11. No Obligation to Exercise Option. The grant and acceptance of this Option
imposes no obligation on the Optionee to exercise it.
12. No Obligation to Continue Business Relationship. The Company and any
Subsidiary are not by the Plan or this Option obligated to continue to maintain
a Business Relationship with the Optionee.
13. No Rights as Stockholder until Exercise. The Optionee shall have no rights
as a stockholder with respect to shares subject to this Agreement until a stock
certificate therefor has been issued to the Optionee and is fully paid for.
Except as is expressly provided in the Plan with respect to certain changes in
the capitalization of the Company, no adjustment shall be made for dividends or
similar rights for which the record date is prior to the date such stock
certificate is issued.
14. Capital Changes and Business Successions. It is the purpose of this Option
to encourage the Optionee to work for the best interests of the Company and its
stockholders. Since, for example, that might require the issuance of a stock
dividend or a merger with another corporation, the purpose of this Option would
not be served if such a stock dividend, merger or similar occurrence would cause
the Optionee's rights hereunder to be diluted or terminated and thus be contrary
to the Optionee's interest. The Plan contains extensive provisions designed to
reserve options at full value in a number of contingencies. Therefore,
provisions in the Plan for adjustment with respect to stock subject to options
and the related provisions with respect to successors to the business of the
Company are hereby made applicable hereunder and are incorporated herein by
reference. In particular, without affecting the generality of the foregoing, it
is understood that for the purposes of Articles 3 through 5 hereof, both
inclusive, maintaining or being involved in a Business Relationship with the
Company includes maintaining or being involved in a Business Relationship with a
Related Corporation as defined in the Plan.
15. Withholding Taxes. The Optionee hereby agrees that the Company may withhold
from the Optionee's wages or other remuneration the appropriate amount of
federal, state and local taxes attributable to the Optionee's exercise of any
installment of this Option. At the Company's discretion, the amount required to
be withheld may be withheld in cash from such wages or other remuneration, or in
kind from the Common Stock otherwise deliverable to the Optionee on exercise of
this Option. The Optionee further agrees that, if the Company does not withhold
an amount from the Optionee's wages or other remuneration sufficient to satisfy
the Company's withholding obligation, the Optionee will reimburse the Company on
demand, in cash, for the amount underwithheld. If Optionee is not an employee of
the Company, Optionee acknowledges by signing this Agreement that upon
Optionee's exercise of the Option the Company will not collect from Optionee or
pay any contributions to Social Security, unemployment insurance, federal or
state withholding taxes, nor provide any other contributions for benefits which
might be expected in an employer-employee relationship.
16. Amendment and Termination. This Agreement may be amended only by a written
agreement executed by the Company and the Optionee. The Company may terminate
the Plan at any time, provided that such termination will not modify the terms
EXHIBIT 4.5
and conditions of the Option granted hereunder without the Optionee's consent.
17. Change In Control. Upon a Change in Control (as such term is defined in the
Plan), the Company may, in its discretion, but shall not be obligated to,
accelerate the exercise dates of this Option, pay cash to the Optionee equal to
the spread between the Purchase Price and the Fair Market Value in exchange for
the cancellation of the Option, or, with the consent of the Optionee, substitute
new options or make any necessary adjustment or amendment to this Option. The
existence of the Option shall not affect the right of the Company to reclassify,
recapitalize or otherwise change its capital or debt structure or to merge,
consolidate, convey any or all of its assets, dissolve, liquidate, wind up or
otherwise reorganize.
18. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the State of Delaware.
EXHIBIT 4.5
IN WITNESS WHEREOF the Company and the Optionee have caused this instrument to
be executed, and the Optionee whose signature appears below acknowledges receipt
of a copy of the Plan and acceptance of an original copy of this Agreement.
--------------------------- TANKNOLOGY-NDE INTERNATIONAL, INC.
Optionee's Name
--------------------------- By:_______________________________
Optionee's Signature
---------------------------
Print Name of Employee
---------------------------
Title
---------------------------
Xxxxxx Xxxxxxx
---------------------------
Xxxx, Xxxxx, zip code
---------------------------
Social Security I.D. Number
