EXHIBIT 10.11
CERBCO, Inc.
INSITUFORM EAST, INCORPORATED
1999 EMPLOYEE STOCK OPTION PLAN
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT, hereinafter referred to as the
"Option" or the "Agreement", is made as of the 8th day of December, 2000,
between Insituform East, Incorporated, a Delaware Corporation (the "Company"),
and Xxxxxx X. Xxxxxxx (the "Optionee"), an officer of the Company, residing at
0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000.
The Company hereby grants to the Optionee an option to purchase shares
of Common Stock of the Company, par value $0.04 per share ("Common Stock"), at
the price, and in all respects subject to the terms, obligations, definitions
and provisions of the Insituform East, Incorporated 1999 Employee Stock Option
Plan (the "Plan") and this Agreement, as set forth below. Capitalized terms used
but not defined herein have the meanings ascribed to them in the Plan.
1. Number of Shares. The number of shares for which the Company grants an
option is thirty-thousand (30,000).
2. Option Price. The option price is $1.5625 for each share of Common
Stock.
3. Term. Unless earlier forfeited, the Option shall, notwithstanding any
other provision of this Agreement, expire in its entirety upon the fifth
anniversary of the date hereof (the "Expiration Date"). The Option shall also
expire and be forfeited at such times and in such circumstances as otherwise
provided hereunder or under the Plan.
4. Exercise of Option.
(i) Subject to Paragraph 3 above, the Option, to the extent there has been
no termination of the Optionee's employment and the Option has not otherwise
expired or been forfeited, shall vest and first become exercisable (unless
sooner exercisable in accordance with Section Fourteen of the Plan relating to
certain corporate transactions), on the 24-month anniversary of the date hereof;
provided, however, that the Option, if not already vested and exercisable, shall
vest and first become exercisable upon a Change in Control (as defined below) at
any time after the date hereof, if and to the extent that the Option has not
otherwise expired or been forfeited.
(ii) Right to Exercise. This Option shall be exercisable in whole or in
part by the Optionee during the term of the Option, but not before it has
vested:
(a) while the Optionee continues to serve as an officer of the Company, its
subsidiaries, its parent, or its successor companies;
(b) for a period ending three (3) months after the Optionee has terminated
his services in such capacity; or
(c) if the Optionee should die while serving in such capacity, by the
estate of the Optionee, within six (6) months after the date of the Optionee's
death; provided, however, that in no event shall the Option be exercised after
the Expiration Date.
(iii) Method of Exercise. This Option shall be exercisable in whole or in
part by a written notice, which shall state the election to exercise the Option
and the number of shares in respect of which it is being exercised, shall be
signed by the person or persons entitled to exercise the Option, and, if the
Option is being exercised by any person or persons other than the Optionee in
accordance with Section Ten of the Plan, shall be accompanied by proof,
satisfactory to counsel for the Company, of the right of such person or persons
to exercise the Option.
Payment of the purchase price of any shares with respect to which the
Option is being exercised shall be delivered with the notice of exercise. No
fractional shares of Common Stock shall be issued upon any such exercise. The
certificate or certificates for shares of Common Stock as to which the Option
shall be exercised shall be registered in the name of the Optionee or other
person exercising the Option.
(iv) Restrictions on Exercise. As a condition to the exercise of this
Option, the Company may require the person exercising this Option to make any
representation and warranty to the Company as may be required by applicable law
or regulation and execute such other agreements as the Company, in its sole and
absolute discretion, deems necessary or appropriate.
(v) Employment Agreement. The Optionee agrees to serve as an officer of the
Company for a period of not less than twenty-four (24) months from the date
hereof.
(vi) Change in Control. For purposes of this Agreement, "Change in Control"
shall mean the happening of any of the following:
(a) any "person," including a "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), but excluding the Company, any entity controlling, controlled
by or under common control with the Company, any employee benefit plan of the
Company or any such entity, and, with respect to any particular Optionee, the
Optionee and any "group" (as such term is used in Section 13(d)(3) of the
Exchange Act) of which the Optionee is a member), is or becomes the "beneficial
owner" (as defined in Rule 13(d)(3) under the Exchange Act), directly or
indirectly, of securities of the Company representing 50% or more of either (A)
the combined voting power of the Company's then outstanding securities or (B)
the then outstanding shares of Class B Common Stock; or
(b) any consolidation or merger of the Company where the stockholders of
the Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own (as such term is
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, shares
representing in the aggregate 50% or more of the combined voting power of the
securities of the corporation issuing cash or securities in the consolidation or
merger (or of its ultimate parent corporation, if any); or
(c) there shall occur (x) any sale, lease, exchange or other transfer (in
one transaction or a series of transactions contemplated or arranged by any
party as a single plan) of all or substantially all of the assets of the
Company, other than a sale or disposition by the Company of all or substantially
all of the Company's assets to an entity, at least 50% of the combined voting
power of the voting securities of which are owned by Persons in substantially
the same proportion as their ownership of the Company immediately prior to such
sale or (y) the approval by stockholders of the Company of any plan or proposal
for the liquidation or dissolution of the Company.
4. Nontransferability of Option. This Option may not be transferred in any
manner otherwise than by will or the laws of descent or distribution and may be
exercised during the lifetime of the Optionee only by the Optionee. The terms of
this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
5. Adjustments upon Changes in Capitalization. If all or any portion of the
Option is exercised subsequent to any stock dividend, split-up,
recapitalization, combination or exchange of shares, merger, consolidation,
acquisition of property or stock, separation, reorganization, or other similar
change or transaction of or by the Company, as a result of which shares of any
class shall be issued in respect of outstanding shares of the class covered by
the Option or shares of the class covered by the Option shall be changed into
the same or different number of shares of the same or another class or classes,
the person or persons so exercising such an Option shall receive, for the
aggregate option price payable upon such exercise of the Option, the aggregate
number and class of shares equal to the number and class of shares he would have
had on the date of exercise had the shares been purchased for the same aggregate
price at the date the Option was granted and had not been disposed of, taking
into consideration any such stock dividend, split-up, recapitalization,
combination or exchange of shares, merger, consolidation, acquisition of
property or stock, separation, reorganization, or other similar change or
transaction; provided, however, that no fractional share shall be issued upon
any such exercise, and the aggregate price paid shall be appropriately reduced
on account of any fractional share not issued.
6. Notices. Each notice relating to this Agreement shall be in writing and
delivered in person or by certified mail to the proper address. Each notice
shall be deemed to have been given on the date it is received. Each notice to
the Company shall be addressed to it at its principal office, now 0000 Xxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, to the attention of the Corporate Secretary of
the Company. Each notice to the Optionee or other person or persons then
entitled to exercise the Option shall be addressed to the Optionee or such other
person or persons at the Optionee's address set forth in the forepart of this
Agreement. Anyone to whom a notice may be given under this Agreement may
designate a new address by written notice to that effect.
7. Incorporation for Reference. The obligations, terms, definitions, and
provisions of the Plan are hereby incorporated in this Agreement by reference.
8. Benefits of Agreement. This Agreement shall inure to be benefit of and
be binding upon each successor of the Company. All obligations imposed upon the
Optionee and all rights granted to the Company under this Agreement shall be
binding upon the Optionee's heirs, legal representatives, successors and
assigns.
9. Rights, Terms, etc. With respect to the shares of Common Stock that the
Optionee may purchase hereunder, this Agreement shall be the sole and exclusive
source of any and all rights that the Optionee, his heirs, legal
representatives, successors or assigns may have with respect to the Plan or any
options or Common Stock granted or issued thereunder, whether to the Optionee or
to any other person.
10. Resolution of Disputes. This Agreement is subject to all the
provisions, requirements and conditions of the Plan, and in the event of any
ambiguity or inconsistency of provisions of this Agreement with those of the
Plan, the provisions of the Plan shall control. Any dispute or disagreement
which may arise under, or as a result of, or in any way relate to, the
interpretation, construction, or application of this Agreement will be decided
by the Board and any such determination made hereunder shall be final, binding,
and conclusive for all purposes.
IN WITNESS WHEREOF, the Company and the Optionee have caused this
Agreement to be executed as of the day, month, and year first above written.
INSITUFORM EAST, INCORPORATED
By /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
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Assistant Corporate Secretary Optionee
