DI INDUSTRIES, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT (this "Agreement") made as of
October 1, 1996 by and between DI INDUSTRIES, INC., a corporation organized
under the laws of the State of Texas (the "Corporation"), and XXXXXXX X.
XXXXXX, an individual residing in the State of Texas (the "Optionee");
W I T N E S S E T H:
WHEREAS, as an inducement to the Optionee to enter into a contract of
employment with the Corporation under the terms of an Employment Agreement dated
of even date herewith by and between the Optionee and the Corporation (the
"Employment Agreement") and to provide Optionee with additional incentive to
further the business of the Corporation, the Corporation has agreed to grant the
Optionee options to purchase shares of common stock, $0.10 par value ("Common
Stock"), of the Corporation; and
WHEREAS, by granting the Optionee options to purchase shares of Common
Stock pursuant to the terms of this Agreement, the Corporation intends to carry
out the purposes set forth in the 1996 Employee Stock Option Plan of the
Corporation (the "Plan") adopted by the Board of Directors of the Corporation
(the "Board of Directors") effective as of July 29, 1996 and the shareholders
of the Corporation effective as of August 27, 1996; and
WHEREAS, it is intended that the options granted to Optionee pursuant to
this Agreement constitute incentive stock options under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, the Corporation and the Optionee desire to set forth the terms and
conditions of such options to purchase Common Stock;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
and other good and valuable consideration, the receipt, adequacy and sufficiency
of which are hereby acknowledged, the parties hereto do hereby agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions hereinafter set
forth, the Corporation hereby grants to the Optionee an option (the "Option")
to purchase all or any part of an aggregate number of 300,000 shares of Common
Stock (such shares, as increased or decreased in accordance with Section 8
hereof, being referred to hereinafter as the "Option Shares") at an exercise
price of $1.50 per share (hereinafter the "Exercise Price").
2. EXERCISE PERIOD. The Option shall be exercisable by Optionee as to
twenty percent (20%) of the Option Shares on December 31, 1996, as to an
additional twenty percent (20%) of the Option Shares, one (1) year after the
date of this Agreement, as to an additional twenty percent (20%) of the Option
Shares, two (2) years after the date of this Agreement, as to an additional
twenty percent (20%) of the Option Shares, three (3) years after the date of
this Agreement, until the fourth anniversary of the date of this Agreement,
after which time the Option shall be exercisable in full. The Option shall
expire and terminate as to any Option Shares not purchased by the Optionee on or
before the tenth anniversary of the date of this Agreement (the "Expiration
Date"), subject to earlier termination as set forth herein.
Except as provided in Section 10 hereof, the Option may not be exercised at
any time unless the Optionee shall have been in the continuous employ of the
Corporation, or a parent or a subsidiary corporation, from the date hereof to
the date of the exercise of the Option.
3. METHOD OF EXERCISING THE OPTION. The Option shall be exercised by the
Optionee delivering to the Corporation (i) written notice from the Optionee
stating that the Optionee is exercising the Option and specifying the number of
Option Shares that the Optionee is entitled to purchase (the "Notice"), which
shall be in form and content identical to ANNEX I hereto and (ii) the aggregate
Exercise Price (the "Payment") for the number of Option Shares that the
Optionee is entitled to purchase, which
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Exercise Price must be in the form of (a) cash or a cashier's or certified check
payable to the order of the Corporation, or (b) the tender to the Corporation of
such number of shares of Common Stock owned by the Optionee having an aggregate
fair market value as of the date of exercise that is not greater than the total
Exercise Price for the shares of Common Stock with respect to which the Option
is being exercised and by paying the remaining amount of the Exercise Price.
4. TRANSFERABILITY OF OPTION. The Option shall not be transferable or
assignable, in whole or in part, and except as otherwise provided in Section 10
or this Agreement, the Option shall be exercisable (i) only by the Optionee
during his lifetime, or (ii) in the event of his death, by his heirs,
representatives, distributees, or legatees in accordance with his will or the
laws of descent and distribution (but only to the extent that the Option would
be exercisable by the Optionee under Section 2).
5. INVESTMENT REPRESENTATION. The Optionee represents that the Option
Shares available for purchase by the Optionee under this Agreement will be
acquired only for investment and not with a view toward resale or distribution.
6. SECURITIES LAW REQUIREMENTS; LEGENDS. The Optionee agrees and
understands that the Option Shares may be restricted securities as defined in
Rule 144 promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), and may not be sold, assigned or transferred, unless the
sale, assignment or transfer of such shares is registered under the Securities
Act and applicable blue sky laws, as now in effect or hereafter amended, or
there is furnished an opinion of counsel in form and substance satisfactory to
the Corporation from counsel acceptable to the Corporation that such
registrations are not required. The Optionee further understands and agrees
that, unless issued pursuant to an effective registration statement under the
Securities Act, the following legend shall be set forth on each certificate
representing Option Shares:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR UNDER THE BLUE SKY LAWS OF ANY
STATE, AND MAY NOT BE SOLD, ASSIGNED OR TRANSFERRED EXCEPT UPON SUCH
REGISTRATION OR UPON RECEIPT BY THE CORPORATION OF AN OPINION OF
COUNSEL FOR THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED FOR
SUCH SALE, ASSIGNMENT OR TRANSFER."
In addition, the following legend shall be placed on each certificate
representing Option Shares:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE GOVERNED BY THE TERMS
OF THE 1996 EMPLOYEE STOCK OPTION PLAN OF THE CORPORATION, DATED JULY
29, 1996, WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE CORPORATION
AND A COPY OF WHICH WILL BE PROVIDED FOR INSPECTION UPON WRITTEN
REQUEST."
7. NO RIGHTS AS SHAREHOLDER. The Optionee shall not have any rights as a
shareholder with respect to any of the Option Shares until the date of issuance
by the Corporation to the Optionee of a stock certificate representing such
Option Shares. Except as otherwise provided in Section 8 hereof, the Optionee
shall not shall not be entitled to any dividends, cash or otherwise, or any
adjustment of the Option Shares for such dividends, if the record date therefor
is prior to the date of issuance of such stock certificates. Upon valid exercise
of the Option by the Optionee, the Corporation agrees to cause a valid stock
certificate for the number of Option Shares then purchased to be issued and
delivered to the Optionee within seven (7) business days thereafter.
8. CORPORATE PROCEEDINGS OF THE CORPORATION.
(a) The existence of the Option shall not affect in any way the right
or power of the Corporation or its officers, directors and shareholders, as
the case may be, to (i) make or authorize any adjustments,
recapitalizations, reorganizations or other changes in the capital
structure or business of the Corporation, (ii) participate in any merger or
consolidation of the Corporation, (ii) issue any Common Stock, bonds,
debentures, preferred or prior preference stock or any other securities
affecting the Common Stock or the rights of holders thereof, (iv) dissolve
or liquidate the Corporation, (v) sell or transfer all
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or any part of the assets or business of the Corporation, or (vi) perform
any other corporate act or proceedings, whether of a similar character or
otherwise.
(b) If the Corporation merges into or with consolidates with (such
events collectively referred herein as a "Merger") any corporation or
corporations and is not the surviving corporation, then the surviving
corporation may assume the Option or substitute a new option of the
surviving corporation for the Option; provided, however, that the excess of
the aggregate fair market value of the securities subject to the Option
immediately after such assumption, or the new option immediately after such
substitution, over the aggregate Exercise Price of such shares must be,
based upon a good faith determination by the Board of Directors of the
Corporation, not less than the excess of the aggregate fair market value of
the Common stock subject to the Option immediately before such substitution
or assumption over the aggregate Exercise Price of such Common Stock.
(c) In the event that the surviving corporation does not utilize the
provisions of (b) above, or in the event of a dissolution or liquidation of
the Corporation, the Corporation shall cause written notice of such Merger
or dissolution or liquidation (and the material terms and conditions
thereof) to be delivered to the Optionee at least ten (10) days prior to
the proposed effective date (the "Effective Date") of such event. The
Optionee shall be entitled to exercise the Option until the Effective Date,
or until the Expiration Date if earlier. To the extent that the Merger or
liquidation is consummated after the Effective Date, the Option shall
terminate and the Corporation shall have no further obligations of any type
hereunder. The provisions of this paragraph shall not apply to any merger
or reorganization, the principal purpose of which is to change the
jurisdiction of the domicile of the Corporation.
(d) If, while the Option is outstanding, the Corporation shall effect
a subdivision or consolidation of the shares of Common Stock or other
capital readjustment, the payment of a common stock dividend, or other
increase or reduction of the number of shares of Common Stock outstanding,
without receiving compensation therefor in money, services or property,
then (i) in the event of an increase in the number of shares of Common
Stock outstanding, the number of Option Shares shall be proportionately
increased, and the per share Exercise Price shall be proportionately
reduced, and (ii) in the event of a reduction in the number of shares of
Common Stock outstanding, the number of Option Shares shall be
proportionately reduced, and the per share Exercise Price shall be
proportionately increased. No fractional share of Common Stock shall be
issued upon any such exercise and the Exercise Price shall be appropriately
reduced on account of any fractional share not issued.
(e) The issuance by the Corporation of shares of stock of any class
of securities convertible into shares of stock of any class, including
Common Stock, for cash, property, labor or services rendered, either upon
direct sale or upon the exercise of rights, options, or warrants to
subscribe therefor, or upon conversion of shares or obligations of the
Corporation convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to,
the number of Option Shares or the Exercise Price.
9. REGISTRATION RIGHTS. The Optionee shall have no registration rights
with respect to the Option Shares.
10. TERMINATION.
(a) If the Optionee for any reason whatsoever, other than death or
permanent and total disability, as defined in (b) below, ceases to be
employed by the Corporation, or a parent or subsidiary corporation of the
Corporation, and prior to such cessation, the Optionee was employed at all
times from the date of the granting of the Option until the date of such
cessation, the Option must be exercised by the Optionee (to the extent that
the Optionee is entitled to do so at the date of cessation) within three
(3) months following the date of cessation of employment, subject to the
Expiration Date; provided, however, that if the Optionee is terminated for
cause (as defined in the Employment Agreement), the Option will immediately
terminate.
(b) If the Optionee becomes permanently and totally disabled, as
hereinafter defined, while employed by the Corporation or a parent or
subsidiary corporation of the Corporation, and prior to
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such disability the Optionee was employed at all times from the date of the
granting of the Option until the date of disability, the Option must be
exercised by the Optionee (to the extent that the Optionee is entitled to
do so at the date of disability) at any time within one (1) year after the
date of disability or the Expiration Date, whichever is earlier.
"Permanently and totally disabled" means being unable to engage in
any substantial gainful activity by reason of any medically physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than
twelve (12) months. Such determination of permanent and total disability
must be made in accordance with the requirements of Section 22(e)(3), and
applicable regulations, of the Code, or any other applicable method
necessary for the continued qualification of this Plan under Section 422 of
the Code, or any equivalent successor provision, if applicable. In the
absence of any specific requirements for this determination, the decision
of the Corporation, as aided by any physicians designated by the
Corporation shall be conclusive and the Corporation shall send written
notice to the Optionee of the determination that the Optionee has become
permanently and totally disabled.
(c) In the event that the Optionee dies while employed by the
Corporation or a parent or subsidiary corporation of the Corporation, and
prior to death the Optionee was employed at all times from the date of the
granting of the Option until the date of death, the Option must be
exercised (to the extent that the Optionee is entitled to do so at the date
of death) by a legatee or legatees of the Optionee under the Optionee's
will, or by the Optionee's personal representative or distributes, at any
time within one (1) year after the date of death or the Expiration Date,
whichever is earlier, and if not so exercised, the Option shall thereupon
terminate.
Nothing in (a), (b) or (c) shall extend the time for exercising the
Option granted pursuant to this Agreement beyond the Expiration Date.
11. DISPOSITION OF STOCK AFTER EXERCISE OF OPTION. Notwithstanding any
other provision of this Agreement to the contrary, in consideration of the
granting of the Option, the Optionee agree (i) not to dispose of any Opinion
Shares within two (2) years after the date of this Agreement nor within one (1)
year after the date of exercise of the Option and (ii) not to dispose of any
Option Shares thereafter without the prior approval of the Corporation unless
such shares have been registered under the Securities Act.
12. NOTICES. All notices, demands, requests and other communications
required or permitted hereunder shall be in writing and shall be deemed to be
delivered when actually received through U.S. Express Mail or any private
express service (as evidenced by a written receipt), or, if earlier, and
regardless of whether actually received (except where receipt is specified in
this Agreement), four (4) days following deposit in a regularly maintained
receptacle for the United States mail, registered or certified, return receipt
requested, postage fully prepaid, addressed to the addressee at its address set
forth below or at such other address as such party may have specified
theretofore by notice delivered in accordance with this Section:
If to the Corporation: DI Industries, Inc.
000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: President
If to Optionee: Xxxxxxx X. Xxxxxx
00000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
13. TRANSFERABILITY; BINDING EFFECT. The Option shall be transferable only
as set forth in Section 4. Subject to the foregoing, all covenants, terms,
agreements and conditions of this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the Corporation and the Optionee and their
respective successors and assigns.
14. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the Corporation and the Optionee relating to the subject
matter hereof.
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15. PARENT AND SUBSIDIARY. As used herein, the terms "parent" and
"subsidiary" shall mean any present or future corporation which would be a
"parent corporation" or a "subsidiary corporation" of the Corporation, as
such term is defined in Section 425 of the Internal Revenue Code.
16. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Texas.
17. CAPTIONS. The section and paragraph headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
18. COUNTERPARTS. This Agreement may be executed in multiple original
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the date first written above.
CORPORATION:
DI INDUSTRIES, INC.
By: X.X. Xxxxxxxx
Name: X.X. Xxxxxxxx
Title: President and CEO
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OPTIONEE:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
ACKNOWLEDGMENT OF SPOUSE TO
TERMS OF INCENTIVE STOCK OPTION AGREEMENT
I, Xxxxx Xxxxxx, am the spouse of Xxxxxxx X. Xxxxxx, ("Optionee"), and I
am fully aware of, understand, and fully consent and agree to the provisions of
the Incentive Stock Option Agreement, dated October 1, 1996 executed by Optionee
and DI Industries, Inc. (the "Corporation"). I understand the binding effect
of this Agreement and its binding effect upon any interest, community or
otherwise, I may now or hereafter own, and I agree that the termination for any
reason of my marital relationship with Optionee shall not have the effect of
removing any stock of the Corporation otherwise subject to the terms of this
Agreement from the coverage hereof.
Signed this day of 10-30-1996.
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx,
Spouse of Xxxxxxx X. Xxxxxx
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