Incentive Stock Option Agreement
Exhibit
10.1
 |
Date of Grant: | |
| Employee: | ||
| SSN: | ||
| No. of Shares: | ||
| Option Price: $ |
2001
Employee Equity Incentive Plan
This
option
to purchase shares of Class A common stock, par value $0.01 per share (the
“Common Stock”), of Insituform Technologies, Inc. (“Insituform”) is granted to
you pursuant to the 2001 Employee Equity Incentive Plan (the “Plan”) and is
subject to the terms and conditions in the Plan and those set forth below.
Any capitalized, but undefined, term used in this Incentive Stock Option
Agreement shall have the meaning ascribed to it in the Plan. This option
is intended to be an incentive stock option as defined in §422 of the Internal
Revenue Code. If this option does not comply with the provisions of the
Internal Revenue Code relating to incentive stock options, this option will
become a non-qualified stock option. Your signature below constitutes your
acceptance of this option and acknowledgement of your agreement to all the
terms
and conditions contained herein. You must return an executed copy of this
Incentive Stock Option Agreement to the Director of Human Resources or such
person’s
designee (the “Director of Human Resources”) within 30 days of the date of grant
or this Incentive Stock Option Agreement shall be void.
Accepted
by
Employee:
INSITUFORM TECHNOLOGIES, INC.
_________________________________________________
_______________________________________________
Xxxxxx X. Xxxxxx, Xx., President and CEO
Terms
and
Conditions
1.
Exercisability. This option can be exercised only to the extent
that the shares covered by this option have become exercisable according
to the
schedule below. Except as provided in paragraph 5 below, you must be
employed by Insituform or a subsidiary of Insituform (the “Company”) on the
commencement date of the exercise period for the additional shares to become
exercisable.
|
Commencement
of Exercise Period
|
Cumulative
Maximum
Number
of Shares
That
May
Be
Purchased
|
|
Date
of Grant.....................................
1st
Year Anniversary of Date of Xxxxx
2nd
Year
Anniversary of Date of Xxxxx
3rd
Year Anniversary of Date of Xxxxx
|
…………
…………
…………
…………
|
2.
Exercise in Whole or Part. To the extent this option has become
exercisable, you may purchase on any business day prior to the termination
of
this option all or any part of the total shares which you are then entitled
to
purchase, less any shares previously purchased; however, no fractional
shares
may be purchased.
3.
Method of Exercise. You may exercise this option by delivering to
the Director of Human Resources the purchase price for the shares to be
purchased along with written notice of:
|
h
|
Your name and social security number; |
|
h
|
The
number of shares to be purchased;
and
|
|
i
|
The
address to which the stock certificate and notices are to be
sent.
|
4.
Payment of Purchase Price. The purchase price for the
shares purchased pursuant to this option shall be payable at the time of
purchase. The purchase price may be paid by certified check or cashier’s
check payable to Insituform, in Common Stock beneficially owned by you
for at
least 6 months or in any combination of check and such Common Stock;
provided, however, that no portion of the purchase price may be paid in
Common Stock if you are then subject to a “blackout period” with respect to such
Common Stock. If payment is made in shares of such Common Stock, the sum
of the check amount and the fair market value of such Common Stock must
be at
least equal to the purchase price. The fair market value of such Common
Stock shall be the closing price per share of the Common Stock as generally
reported by the Nasdaq Stock Market on the business day before the date
of
delivery of such Common Stock to the Director of Human Resources.
5.
Term of Option. To the extent this option has become
exercisable, it may be exercised by you at any time during the 7-year period
beginning on the date of grant as long as you are an employee of the Company,
subject to the special provisions below. To the extent this option remains
unexercised at the end of such 7-year period, your right to purchase shares
pursuant to this option will terminate. To the extent unexercised, this
option will terminate before the
end of such 7-year period
as
follows (in no event will any of the following extend this option beyond
a
7-year term):
(a) If you
retire from the Company after you attain age 55 (“retire” means voluntarily
terminating your employment and not working more than 1,000 hours a year),
this
option will terminate 5 years after your retirement, except that, if you
take
any action constituting cause (as defined below) after your retirement,
this
option will terminate immediately; however, if you do not exercise this
option
within 90 days after your retirement, this option will become a non-qualified
stock option;
(b) If the
Company terminates your employment at any time other than for “cause” (as
defined below) or disability (pursuant to the terms of any employee disability
benefit plan maintained by the Company), or if you terminate your employment
voluntarily, this option will terminate 90 days after such termination
of
employment;
(c) If your
employment is terminated as a result of your disability (pursuant to the
terms
of any employee disability benefit plan maintained by the Company), this
option
will terminate 90 days after such termination of employment;
(d) If your
employment is terminated by your death, this option will terminate 1 year
following your death; and
(e) In the event
of your death during a period in which this option remains exercisable
in
accordance with subparagraph (a), (b) or (c) above, this option will terminate
1
year following your death.
If this option is terminated
in accordance with subparagraph (a) or (b) above, you may exercise this
option
prior to its termination only to the extent it has become exercisable prior
to
the date your employment terminated. If this option is terminated in
accordance with subparagraph (c) or (d) above, this option will be exercisable
in full prior to its termination. If this option is terminated in
accordance with subparagraph (e) above, this option will be exercisable
prior to
its termination to the same extent that it was exercisable by you prior
to your
death.
If your employment
is
terminated other than as described in subparagraph (a), (b), (c) or (d)
above,
your right to purchase shares pursuant to this option will terminate
immediately.
For purposes of this
option,
“cause” shall mean any of:
(i)
breaching any employment, confidentiality, noncompete, nonsolicitation
or other
agreement with the Company, any written Company policy relating to compliance
with laws (during employment) or any general undertaking or legal obligation
to
the Company;
(ii)
causing, inducing, requesting or advising, or attempting to cause, induce,
request or advise, any employee, representative, consultant or other similar
person to terminate his/her relationship, or breach any agreement, with
the
Company;
(iii)
causing, inducing, requesting or advising, or attempting to cause, induce,
request or advise, any customer, supplier or other Company business contact
to
withdraw, curtail or cancel their business with the Company; or
(iv)
failure or refusal to perform any stated duty or assignment, misconduct,
disloyalty, violation of any Company policy or work rule, engaging in criminal
conduct in connection with your employment, being indicted or charged with
any
crime constituting a felony or involving dishonesty or moral turpitude,
violation of any term in this Incentive Stock Option Agreement, unsatisfactory
job performance, or any other reason constituting cause within the meaning
of
Missouri common law.
6.
Change in Control.
Notwithstanding
the provisions of paragraph 5
above, all of the shares covered by this option shall become immediately
exercisable upon a Change in Control.
For purposes of this
Incentive Stock Option Agreement, a “Change in Control” shall mean:
(a) the
acquisition by any “person” or “group” (as defined pursuant to Section 13(d)
under the Securities Exchange Act of 1934) of “beneficial ownership” (as defined
in Rule 13d-3 under said Act) of in excess of 30% of the combined voting
power
of the outstanding voting securities (the “Voting Securities”) of Insituform
entitled to vote generally in the election of directors; and/or
(b) the
replacement of 50% or more of the members of Insituform’s Board of Directors
(excluding, for purposes of such calculation, the Chairman of the Board)
over
a 1-year period from the directors who constituted such Board at the
beginning of such period, where such replacement shall not have been approved
by
a vote including at least a majority of the directors who were members
of the
Board at the beginning of such 1-year period or whose election as members
of the
Board was previously so approved; and/or
(c)
consummation of a merger,
statutory share exchange or consolidation involving
Insituform or sale or other disposition of all or substantially all of
the
assets of Insituform, unless following such transaction: (i) all or
substantially all of the individuals and entities who were the “beneficial
owners” (as hereinabove defined), respectively, of the outstanding Voting
Securities immediately prior to such transaction “beneficially owned,” directly
or indirectly, more than 30% of the combined voting power of the then
outstanding Voting Securities of the corporation resulting from such transaction
in substantially the same proportion as their ownership immediately prior
to
such transaction of the outstanding Voting Securities of Insituform, (ii)
no
“person” or “group” (as hereinabove defined) “beneficially owns,” directly or
indirectly, 30% or more of the combined voting power of the then outstanding
Voting Securities of such corporation except to the extent that such ownership
existed prior to such transaction and (iii) at least a majority of the
members
of the board of directors resulting from such
transaction were members
of
Insituform’s Board of Directors immediately prior to such transaction or were
nominated by at least a majority of the members of Insituform’s Board of
Directors at the time of the execution of the initial agreement for such
transaction, or by the action of Insituform’s Board of Directors providing for
such transaction; and/or
(d) approval by
the stockholders of Insituform of a complete liquidation or dissolution
of
Insituform.
7.
Taxes.
The
Plan Administrator may withhold delivery of
certificates for purchased shares until you make satisfactory arrangements
to
pay any withholding, transfer or other taxes due as a result of your exercise
of
this option. You are responsible for all taxes applicable to any income
realized upon the exercise of this option.
8.
Securities Laws.
This
option shall not be exercisable if such
exercise would violate any federal or state securities law. Insituform may
take any appropriate action to achieve compliance with those laws in connection
with any exercise of this option or your resale of the Common Stock.
9.
Transferability. Unless the Plan Administrator agrees to amend
this Incentive Stock Option Agreement to convert it into a Non-Qualified
Stock
Option Agreement and to the terms of the transfer, this option is not
transferable other than by will or the laws of descent and distribution
and is
exercisable only by you or your guardian or legal representative. You may
designate a beneficiary(ies) to exercise your rights under this option
in the
event of your death. Such designation must be on a form approved by the
Director of Human Resources and will be effective upon receipt thereof
by the
Director of Human Resources while you are alive. Any designation form so
delivered will revoke all prior designations.
10.
Adjustments.
The
Plan Administrator may make such adjustments in
the option price and in the number or kind of shares of Common Stock covered
by
this option as may be required to prevent dilution or enlargement of your
rights
that would otherwise result from any stock split, stock dividend,
reorganization, recapitalization, sale, consolidation, issuance of stock
rights
or warrants or any similar event.
11.
Interpretations
Binding. Plan Administrator interpretations and
determinations are binding and conclusive.
12. No
Ownership Interests. You will not, by reason of holding this
option, have any right to vote or to receive dividends or other distributions,
or have any other rights of a stockholder, with respect to the shares of
Common
Stock covered by this option.
13. No Right to
Continue as an Employee; No Right to Further Option Grants. This
option does not give you any right to continue as an employee of the Company
for
any period of time or at any rate of compensation, nor does it interfere
with
the Company’s right to determine the terms of your employment. An option
grant is within the discretion of the Plan Administrator, and does not
entitle
you to any further option grants.
14. Termination
for Cause. If your employment is terminated for cause (as defined
above), or if you engage in any activity constituting cause (as defined
above)
during the 2-year period following termination of employment, in addition
to any
other legal or equitable remedies, all of which are expressly reserved:
(i)
Insituform shall have the right to purchase from you any and all Common
Stock
acquired pursuant to this option after the date 2 years prior to your
termination and then owned by you for a purchase price per share equal
to the
option price set forth above, and (ii) you shall be required to pay to
Insituform, upon demand, an amount equal to the profit you realized on
the sale
of any Common Stock acquired pursuant to this option after the date 2 years
prior to your termination and sold by you at any time (such profit per
share
being equal to the excess, if any, of the sale price per share over the
option
price set forth above).
15. Notice of
Sale; Notices. If you sell or otherwise dispose of any shares of
Common Stock subject to this option on or before (i) 2 years from the date
of
the grant of this option, or (ii) 1 year from the date you received such
shares
of Common Stock pursuant to the exercise of this option, you will promptly
(I)
give notice thereof to the Director of Human Resources, with full details
and
such other information as may reasonably be requested and (II) upon request,
pay
to Insituform the amount of any taxes which Insituform may be required
to
withhold. Notices to Insituform or the Director of Human Resources shall
be sent to Insituform’s Corporate Headquarters, Attn: “Director of Human
Resources.”
