1
WASTE RECOVERY, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT ("Agreement"), made and entered
into in Dallas, Texas, as of the 29th day of June, 1995, by and between Waste
Recovery, Inc., a corporation organized and existing under the laws of Texas
(the "Company") and Xxxxxx X. Xxxxxxxx (the "Participant").
WHEREAS, Participant is now a full-time employee of the Company, and
will render faithful and efficient service to the Company; and
WHEREAS, the Company desires to continue to receive the benefit of
Participant's services and to fully identify his interests with the Company's
future and success; and
WHEREAS, the Board of Directors ("Board") of the Company and the
stockholders of the Company have heretofore approved the Company's 1989 Stock
Plan for Employees (the "Plan") providing for, among other things, the granting
of stock options under the Plan to certain employees of the Company, including
officers of the Company; and
WHEREAS, pursuant to the provisions of such Plan, the Board has
granted and authorized the terms and provisions in this Agreement pursuant to
Section 422 of the Internal Revenue Code of 1986 (the "Code"):
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and other good and valuable consideration, it is
understood and agreed as follows:
1. OPTION TO PURCHASE.
(a) The Company hereby grants to Participant an irrevocable right
and option ("Option") to purchase from the Company One Hundred Thousand
(100,000) shares (subject, however, to adjustment as provided in Paragraph 8),
of the common stock, no par value, of the Company (the "Option Shares") upon
the terms and conditions herein contained.
(b) The purchase price payable to the Company for the shares to be
acquired pursuant to the exercise of this Option will be Ninety-Eight Cents
($0.98) per share, which shall be paid to the Company in the manner hereinafter
described at the time of exercise. Such purchase price is referred to herein
as the "Option Price".
2
2. EXERCISE OF OPTION.
(a) Vesting.
(1) Except as otherwise provided in Section 2(a)(2)
below, the Option Shares will become vested in accordance with the following
schedule, if as of each relevant date the Participant is still employed by the
Company or any of its subsidiaries:
(i) As of June 29, 1996, Participant shall vest
in 20,000 of the Option Shares;
(ii) As of June 29, 1997, Participant shall vest
in an additional 20,000 of the Option Shares;
(iii) As of June 29, 1998, Participant shall vest
in an additional 20,000 of the Option Shares;
(iv) As of June 29, 1999, Participant shall vest
in an additional 20,000 of the Option Shares;
and
(v) As of June 29, 2000, Participant shall vest
in an additional 20,000 of the Option Shares.
(2) Notwithstanding Section 2(a)(1) above, upon a merger
or dissolution in which the Company is not the surviving corporation, or a
transfer of substantially all the assets of the Company, Participant shall vest
in all of the Option Shares less any such shares as to which this Option has
been previously exercised.
(b) Exercisable Option Shares. Participant can exercise this
Option on a cumulative basis to the extent hereinafter provided with respect to
all or any part of the number of "Exercisable Option Shares" subject to this
Option, and such right shall be a continuing one during the term of the Option
as provided in paragraph 3 hereof, until this Option has been fully exercised
with respect to the number of Option Shares stated in paragraph 1.
"Exercisable Option Shares" shall be the Option Shares granted in paragraph 1
and vested in accordance with paragraph 2(a) hereof, less Option Shares
previously exercised.
(c) Exercise After Participant's Death. Upon the death of
Participant, this Option shall still be exercisable in full with respect to
Option Shares which are Exercisable Option Shares on the date of Participant's
death, and may be exercised in whole or in part by the estate of the
Participant or by such person or persons to whom this Option shall be
transferred by the Will of Participant, or by the applicable laws of descent
and distribution, but only within one hundred eighty (180) days after the
Participant's death, or within the unexpired term of this Option, whichever is
shorter, at which time this
3
WASTE RECOVERY, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT ("Agreement"), made and entered
into in Dallas, Texas, as of the 29th day of June, 1995, by and between Waste
Recovery, Inc., a corporation organized and existing under the laws of Texas
(the "Company") and _Sharon K. Price (the "Participant").
WHEREAS, Participant is now a full-time employee of the Company, and
will render faithful and efficient service to the Company; and
WHEREAS, the Company desires to continue to receive the benefit of
Participant's services and to fully identify his interests with the Company's
future and success; and
WHEREAS, the Board of Directors ("Board") of the Company and the
stockholders of the Company have heretofore approved the Company's 1989 Stock
Plan for Employees (the "Plan") providing for, among other things, the granting
of stock options under the Plan to certain employees of the Company, including
officers of the Company; and
WHEREAS, pursuant to the provisions of such Plan, the Board has
granted and authorized the terms and provisions in this Agreement pursuant to
Section 422 of the Internal Revenue Code of 1986 (the "Code"):
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and other good and valuable consideration, it is
understood and agreed as follows:
1. OPTION TO PURCHASE.
(a) The Company hereby grants to Participant an irrevocable right
and option ("Option") to purchase from the Company Twenty Five Thousand
(25,000) shares (subject, however, to adjustment as provided in Paragraph 8),
of the common stock, no par value, of the Company (the "Option Shares") upon
the terms and conditions herein contained.
(b) The purchase price payable to the Company for the shares to be
acquired pursuant to the exercise of this Option will be Ninety-Eight Cents
($0.98) per share, which shall be paid to the Company in the manner hereinafter
described at the time of exercise. Such purchase price is referred to herein
as the "Option Price".
4
2. EXERCISE OF OPTION.
(a) Vesting.
(1) Except as otherwise provided in Section 2(a)(2)
below, the Option Shares will become vested in accordance with the following
schedule, if as of each relevant date the Participant is still employed by the
Company or any of its subsidiaries:
(i) As of June 29, 1995, Participant shall vest
in 5,000 of the Option Shares;
(ii) As of June 29, 1996, Participant shall vest
in an additional 5,000 of the Option Shares;
(iii) As of June 29, 1997, Participant shall vest
in an additional 5,000 of the Option Shares;
(iv) As of June 29, 1998, Participant shall vest
in an additional 5,000 of the Option Shares;
and
(v) As of June 29, 1999, Participant shall vest
in an additional 5,000 of the Option Shares.
(2) Notwithstanding Section 2(a)(1) above, upon a merger
or dissolution in which the Company is not the surviving corporation, or a
transfer of substantially all the assets of the Company, Participant shall vest
in all of the Option Shares less any such shares as to which this Option has
been previously exercised.
(b) Exercisable Option Shares. Participant can exercise this
Option on a cumulative basis to the extent hereinafter provided with respect to
all or any part of the number of "Exercisable Option Shares" subject to this
Option, and such right shall be a continuing one during the term of the Option
as provided in paragraph 3 hereof, until this Option has been fully exercised
with respect to the number of Option Shares stated in paragraph 1.
"Exercisable Option Shares" shall be the Option Shares granted in paragraph 1
and vested in accordance with paragraph 2(a) hereof, less Option Shares
previously exercised.
(c) Exercise After Participant's Death. Upon the death of
Participant, this Option shall still be exercisable in full with respect to
Option Shares which are Exercisable Option Shares on the date of Participant's
death, and may be exercised in whole or in part by the estate of the
Participant or by such person or persons to whom this Option shall be
transferred by the Will of Participant, or by the applicable laws of descent
and distribution, but only within one hundred eighty (180) days after the
Participant's death, or within the unexpired term of this Option, whichever is
shorter, at which time this
5
WASTE RECOVERY, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into in Dallas, Texas, as of the 14th
day of August, 1995, by and between Waste Recovery, Inc., a corporation
organized and existing under the laws of Texas (the "Company") and Xxxxx
Xxxxxxx, Xx. (the "Grantee").
WHEREAS, Grantee is now a non-employee member of the Board of
Directors ("Board") of the Company and will render faithful and efficient
service to the Company; and
WHEREAS, the Board and the shareholders of the Company have heretofore
approved the Company's 1992 Stock Plan for Non-Employee Directors (the "Plan")
which provides, among other things, that at the conclusion of each Annual
Meeting of Shareholders of the Company, each elected or incumbent non-employee
director shall automatically be granted an option to purchase Two Thousand Five
Hundred (2,500) shares of common stock, but only if the Company's net income
for the fiscal year just ended was improved over the net income for the prior
fiscal year; and
WHEREAS, the above conditions have been met, and Grantee, as such a
director, is entitled to receive such a stock option in accordance with the
Plan;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, it is
understood and agreed as follows:
1. OPTION TO PURCHASE.
(a) The Company hereby grants to Grantee an irrevocable right and
nonqualified option ("Option") to purchase from the Company Two Thousand Five
Hundred (2,500) shares (subject, however, to adjustment as provided in
paragraph 7), of the common stock, no par value, of the Company (the "Option
Shares") upon the terms and conditions herein contained.
(b) The purchase price payable to the Company for the shares to be
acquired pursuant to the exercise of this Option will be One and 41/100 Dollars
($1.41) per share, which shall be paid to the Company in the manner hereinafter
described at the time of exercise. Such purchase price is referred to herein
as the "Option Price".
2. EXERCISE OF OPTION.
(a) Exercisable Option Shares. Grantee can exercise this Option
on a cumulative basis to the extent hereinafter provided with respect to all or
any part of the number of "Exercisable Option Shares" subject to this Option,
and such right shall be a continuing one during the term of the Option as
provided in paragraph 3 hereof, until this Option has been
NONQUALIFIED STOCK OPTION AGREEMENT PAGE 1
6
fully exercised with respect to the number of Option Shares stated in paragraph
1. "Exercisable Option Shares" shall be the Option Shares granted in paragraph
1 hereof, less Option Shares previously exercised.
(b) Exercise After Grantee's Death. Upon the death of Grantee,
this Option shall still be exercisable in full with respect to Option Shares
which are Exercisable Option Shares on the date of Grantee's death, and may be
exercised in whole or in part by the estate of the Grantee or by such person or
persons to whom this Option shall be transferred by the Will of Grantee, or by
the applicable laws of descent and distribution, but only within one hundred
eighty (180) days after the Grantee's death or within the unexpired term of
this Option, whichever is shorter, at which time this Option shall lapse and
become void.
3. TERM OF OPTION. Subject to the limitations contained
elsewhere in this Option, this Option shall remain open and exercisable for a
period of ten (10) years, through and including August 13, 2005, after which
this Option shall lapse and become void.
4. MANNER OF EXERCISE OF OPTION.
(a) This Option shall be exercised in whole or in part by written
notice to the Company addressed to the President of the Company at such place
as the Company's executive offices may then be located, such notice, in
accordance with the attached exercise form, together with payment for the
Option Price for the number of Option Shares being exercised and stated
therein, to be delivered either personally or by registered or certified mail.
Such notice, if delivered by registered or certified mail, shall be deemed to
be received by the Company at the time stated in the postmark thereon, provided
it is received by the Company before the expiration of the term of this Option.
Such notice shall state the number of Option Shares such Grantee (or other
person as may be exercising this Option) elects to exercise under this Option
(such number not to exceed the maximum number of Exercisable Option Shares).
(b) Manner of Payment. Payment for Option Shares purchased upon
exercising all or part of this Option shall be made in full at the time of
exercise, in cash, or, in the Company's discretion, in common stock of the
Company owned by the Grantee, valued as of the close of business on the
immediately preceding business day, and such other forms of consideration
having a current value equal to the option price as may be suitable to the
Board, or in any combination of the foregoing. No Option Shares may be
delivered until full payment of the purchase price thereof has been made.
5. RIGHTS AS A STOCKHOLDER. After receipt of the notice of
exercise as provided in paragraph 4 above, the Company shall cause to be issued
and delivered such certificates, in such denominations as Grantee may direct,
representing the number of fully-paid, nonassessable shares of common stock
which the Grantee is entitled to receive, registered in the name of Grantee,
but Grantee shall have no right as a stockholder with respect to any such
shares until the issuance of such stock certificates, and no adjustment
NONQUALIFIED STOCK OPTION AGREEMENT PAGE 2
7
shall be made for cash dividends or other rights for which the record date is
prior to the time such stock certificates are issued, except as provided
herein. The Company agrees to issue such stock certificates within thirty (30)
business days after such receipt of notice of the exercise of this Option,
along with payment. Each certificate shall be issued in the name of Grantee so
exercising this Option, or in the name of Grantee and his spouse as joint
tenants, if Grantee should so request.
6. RESTRICTIONS ON OPTION AND SHARES.
(a) This Option shall not be transferred by Grantee other than by
Will or by the applicable laws of descent and distribution or a qualified
domestic relations order as defined in the Internal Revenue Code ("QUADRO"),
and can be exercised during his lifetime only by Grantee, his guardian or legal
representative, or the QUADRO beneficiaries. This Option shall not be subject
to any claim of any creditor of Grantee; shall not be subject to attachment,
garnishment or other legal or equitable process by or on behalf of any such
creditor; and shall not in anywise be liable for or subject to the debts,
contracts, liabilities, engagements or torts of Grantee. This Option shall not
be pledged, hypothecated, or otherwise encumbered, and any attempt to do so
shall be void.
(b) Holding Period. Since the Grantee is a director of the
Company, the Option Shares shall not be sold or disposed of within six months
of the date of this Agreement.
7. CAPITAL ADJUSTMENTS AND REORGANIZATIONS.
(a) The Option Shares covered by this Option, and the Option
Price, shall be adjusted to reflect, any stock dividend, stock split, share
combination, exchange of shares, recapitalization, merger, consolidation,
separation, reorganization, liquidation or the like, of or by the Company, in
accordance with the Plan.
(b) Nothing in this paragraph 7 shall in any way extend the time
within which this Option must be exercised as provided in Paragraph 3 above.
8. WITHHOLDING TAX. Should the Company be required to withhold
any tax pursuant to the exercise of this Option by Grantee, as a condition to
the Company's obligation to deliver shares upon such exercise, Grantee agrees
to make arrangements satisfactory to the Board to insure that the amount
required to be withheld is made available to the Company for timely payment.
If agreeable to the Board, Grantee shall be allowed to deliver shares of the
Company's common stock previously owned by Grantee, or Option Shares from the
exercise of this Option, for the payment of such withholding tax.
9. DISSOLUTION OR MERGER. In the event that, prior to the
delivery by the Company of all the Option Shares in respect of which Options
are granted, a merger or dissolution in which the Company is not the surviving
Corporation shall occur, or a transfer of substantially all the assets of the
Company shall occur:
NONQUALIFIED STOCK OPTION AGREEMENT PAGE 3
8
(a) If provision be made in writing in connection with such
transaction for the assumption and continuance of the Option hereby granted, or
the substitution for such Option of a new option covering the shares of the
successor corporation, with appropriate adjustment as to number and kind of
shares and prices, this Option, or the new option substituted therefore, as the
case may be, shall continue in the same manner and under the terms provided.
(b) In the event provision is not made in such transaction for the
continuance and assumption of this Option or for the substitution of an option
covering the shares of the successor corporation, then Grantee shall be
entitled within a reasonable period of time, prior to the effective date of any
such transaction, to purchase the full number of Exercisable Option Shares,
failing which purchase, any unexercised portion thereof shall be deemed
canceled as of such effective transaction date.
10. EARLY TERMINATION. This Option will terminate, as to any
unexercised portion, thirty (30) days following the voluntary resignation of
Grantee from the Board.
11. PLAN. The Option provided for in this Agreement is granted
pursuant to the Plan, as amended, which was adopted by the Board effective
March 10, 1992, and approved by the shareholders on May 18, 1992. The terms
and provisions of the Plan are incorporated by reference herein, and in the
case of any conflict between the terms and conditions of this Agreement and
those of the Plan, those of the Plan shall prevail and be controlling.
12. GENDER AND NUMBER. Whenever the masculine, feminine or neuter
gender, or the singular or plural number is used herein, the application of one
shall include the application of the other as the context so indicates.
13. NOTICES. Any notice relating to this Agreement shall be in
writing and delivered in person or by certified mail to the Company at its
principal place of business, to the attention of the President. All notices to
the Grantee or other person or persons then entitled to exercise the Option,
shall be delivered to the Grantee or such other person or persons at the
Grantee's address below specified.
14. APPLICATION. If any provision of this Agreement, or the
application to any entity, individual or circumstance shall be invalid or
unenforceable to any extent, such provision shall be modified to the minimum
extent necessary to make it or its application valid and enforceable. The
remainder of this Agreement, and the application of such provision to other
entities, persons or circumstances, shall not be affected thereby, and shall be
enforced to the greatest extent permitted by law.
15. BOARD OF DIRECTORS. The term "Board" or "Board of Directors"
means the Board of Directors of the Company, or its properly authorized
committee or representative.
16. LAW GOVERNING; VENUE. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS
NONQUALIFIED STOCK OPTION AGREEMENT PAGE 4
9
AND APPLICABLE FEDERAL LAW, AND SHALL BE PERFORMABLE IN DALLAS COUNTY, TEXAS.
IN WITNESS WHEREOF, this Agreement is executed in duplicate originals
as of the date and year first above shown.
ATTEST: WASTE RECOVERY, INC.
By: By:
-------------------------- -----------------------------
Xxxx X. Xxxxxxx Xxxxxx X. Xxxxxxxx
Secretary President
000 Xxxxx Xxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Grantee:
--------------------------------
(signature)
--------------------------------
(printed name)
--------------------------------
--------------------------------
(address)
NONQUALIFIED STOCK OPTION AGREEMENT PAGE 5
10
EXERCISE FORM
(To be executed by the registered owner to purchase Common
Stock pursuant to the Nonqualified Stock Option Agreement)
Waste Recovery, Inc.
000 Xxxxx Xxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Attention: President
The undersigned hereby: (1) irrevocably subscribes for
__________________ shares of your Common Stock pursuant to his or her
Nonqualified Stock Option granted August 14, 1995, and encloses payment of
$___________________ therefor, or other sufficient consideration agreed to by
you in writing; (2) requests that a certificate for the shares be issued in the
name of the undersigned and delivered to the undersigned at the address below;
(3) requests that if such number of shares is not all of the shares purchasable
hereunder, a new Option of like tenor for the balance of the remaining shares
purchasable hereunder be issued in the name of the undersigned and delivered to
the undersigned at the address below; (4) agrees that the certificate(s) for
shares of Common Stock may bear a legend in substantially this form:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, OR UNDER ANY APPLICABLE STATE LAW. THEY MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED, OR PLEDGED WITHOUT (1) REGISTRATION UNDER
THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE LAW OR (2) AN
OPINION (SATISFACTORY TO THE COMPANY) OF COUNSEL (SATISFACTORY TO THE
COMPANY) THAT REGISTRATION IS NOT REQUIRED;
(5) acknowledges that I have received the Company's: annual report for its last
fiscal year (including financial statements prepared by independent certified
public accountants); most recent definitive proxy statement filed therewith;
all interim quarterly reports on Form 10-Q filed since such annual report; and
information on the use of proceeds from this sale. I have requested and been
advised of any material changes in the Company's affairs since the date of such
documents; and have received or had made available to me all financial or other
information which I consider necessary to an informed judgment as to the
investment merits of this exercise of Option; and (6) represents and warrants
to the Company that with respect to legended shares, I am acquiring the shares
pursuant to this Option for my own account for investment; I am not acquiring
such shares with a
EXERCISE FORM PAGE 1
11
view to, or in connection with, any offering or distribution; and I have no
present intention of selling or otherwise disposing of any of such shares.
Date:
----------------------- ---------------------------------------
(Please sign exactly as name appears on
Option)
---------------------------------------
Printed Name
---------------------------------------
Address
---------------------------------------
Address
---------------------------------------
Taxpayer ID No.
EXERCISE FORM PAGE 2
