EXHIBIT 10.8
SEILER POLLUTION CONTROL SYSTEMS, INC.
1995 NON-STATUTORY STOCK OPTION PLAN
1. Purpose of the Plan.
The 1995 Non-Statutory Stock Option Plan (the "Plan") is intended as an
employment incentive, to aid in attracting and retaining in the employ or
service of SEILER POLLUTION CONTROL SYSTEMS, INC. (the "Company"), a Delaware
corporation, and any Affiliated Corporation, persons of experience and ability
and whose services are considered valuable, to encourage the sense of
proprietorship in such persons, and to stimulate the active interest of such
persons in the development and success of the Company. The Plan provides for the
issuance of non-statutory stock options ("Options") which are not intended to
qualify as "incentive stock options" within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
2. Administration of the Plan.
The Company's Board of Directors ("Board") may appoint and maintain as
administrator of the Plan a Compensation Committee (the "Committee") of the
Board which shall consist of at least three members of the Board. Until such
time as the Committee is duly constituted, the Board itself shall have and
fulfill the duties herein allocated to the Committee. The Committee shall have
full power and authority to designate Plan participants, to determine the
provisions and terms of respective Options, the method of exercise as related to
exercise in whole or in installments, and Option price, and to interpret the
provisions and supervise the administration of the Plan. The Committee may in
its discretion provide that certain Options not vest until expiration of a
certain period after issuance or until other conditions are satisfied, so long
as not contrary to the Plan.
A majority of the members of the Committee shall constitute a quorum. All
decisions and selections made by the Committee pursuant to the Plan's provisions
shall be made by a majority of its members. Any decision reduced to writing and
signed by all of the members shall be fully effective as if it had been made by
a majority at a meeting duly held. The Committee shall select one of its members
as its chairman and shall hold its meetings at such times and places as it deems
advisable. If at any time the Board shall consist of seven or more members, then
the Board may amend the Plan to provide that the Committee shall consist only of
Board members who shall not have been eligible to participate in the Plan (or
similar stock option plan) of the Company or its affiliates at any time within
one year prior to appointment to the Committee.
Each Option shall be evidenced by a written agreement containing terms and
conditions established by the Committee consistent with the provisions of the
Plan.
3. Designation of Participants.
The persons eligible for participation in the Plan as recipients of
Options shall include full-time and part-time employees (as determined by the
Committee) and officers of the Company or of an Affiliated Corporation. In
addition, directors of the Company or any Affiliated Corporation who are not
employees of the Company or an Affiliated Corporation and any attorney,
consultant or other adviser to the Company or any Affiliated Corporation shall
be eligible to participate in the Plan. For all purposes of the Plan, any
director who is not also a common law employee and is granted an Option under
the Plan shall be considered an "employee" until the effective date of the
director's resignation or removal from the Board of Directors, including removal
due to death or disability. The Committee shall have full power to designate,
from among eligible individuals, the persons to whom Options may be granted. A
person who has been granted an Option hereunder may be granted an additional
Option or Options, if the Committee shall so determine. The granting of an
Option shall not be construed as a contract of employment or as entitling the
recipient thereof to any rights of continued employment.
4. Stock Reserved for the Plan.
Subject to adjustment as provided in Paragraph 9 below, a total of
1,000,000 shares of Common Stock, $.0001 par value per share ("Stock"), of the
Company shall be subject to the Plan. The Stock subject to the Plan shall
consist of unissued shares or previously issued shares reacquired and held by
the Company or any Affiliated Corporation, and such amount of shares shall be
and is hereby reserved for sale for such purpose. Any such shares which may
remain unsold and which are not subject to outstanding Options at the
termination of the Plan shall cease to be reserved for the purpose of the Plan,
but until termination of the Plan, the Company shall at all times reserve a
sufficient number of shares to meet the requirements of the Plan. Should any
Option expire or be canceled prior to its exercise in full, the unexercised
shares theretofore subject to such Option may again be subjected to an Option
under the Plan.
5. Option Price.
The purchase price of each share of Stock placed under Option shall not be
less than eighty-five percent (85%) of the fair market value of such share on
the date the Option is granted. The fair market value of a share on a particular
date shall be deemed to be the average of either (i) the highest and lowest
prices at which shares were sold on the date of grant, if traded on a national
securities exchange, (ii) the high and low prices reported in the consolidated
reporting system, if traded on a "last sale reported" system, such as NASDAQ,
for over-the-counter securities, or (iii) the high bid and high asked price for
other over-the-counter securities. If no transactions in the Stock occur on the
date of grant, the fair market value shall be determined as of the next earliest
day for which reports or quotations are available. If the common shares are not
then quoted on any exchange or in any quotation medium at the time the Option is
granted, then the Board of Directors or Committee shall use its discretion in
selecting
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a good faith value believed to represent fair market value based on factors then
known to them. The cash proceeds from the sale of Stock shall be added to the
general funds of the Company.
6. Exercise Period.
(a) The Option exercise period shall be a term of not more than ten (10)
years from the date of granting of each Option and shall automatically
terminate:
(i) Upon the expiration of the term of the Option as set
forth in the Option agreement but in no event (except as
provided in (iv) below) later than ten (10) years from
the date of grant of such Option;
(ii) Upon termination of the optionee's employment with the
Company for cause;
(iii) Subject to subclause (i) above, upon the expiration of
twelve (12) months from the date of termination of the
optionee's employment with the Company for any reason,
other than death, without cause; provided, that if the
optionee dies within three months after termination of
his employment, subclause (iv) below shall apply; or
(iv) Upon the expiration of fifteen (15) months after the
date of death of the optionee, provided that the Option
was exercisable on the date of death.
(b) "Employment with the Company" as used in the Plan shall include
employment with any Affiliated Corporation, and Options granted under the Plan
shall not be affected by an employee's transfer of employment among the Company
and any Parent or Subsidiary thereof. An optionee's employment with the Company
shall not be deemed interrupted or terminated by a bona fide leave of absence
(such as sabbatical leave or employment by the Government) duly approved,
military leave, maternity leave or sick leave.
7. Exercise of Options.
(a) The Committee, in granting Options, shall have discretion to determine
the terms and conditions upon which Options shall be exercisable, subject to
applicable provisions of the Plan. Once available for purchase, unpurchased
shares of Stock shall remain subject to purchase until the Option expires or
terminates in accordance with Paragraph 6 above. Unless otherwise provided in
the Option, an Option may be exercised in whole or in part, one or more times,
but no Option may be exercised for a fractional share of Stock.
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(b) Options may be exercised solely by the optionee during his lifetime,
or after his death (with respect to the number of shares which the optionee
could have purchased at the time of death) by the person or persons entitled
thereto under the decedent's will or the laws of descent and distribution.
(c) The purchase price of the shares of Stock as to which an Option is
exercised shall be paid in full at the time of exercise and no shares of Stock
shall be issued until full payment is made therefor. Payment shall be made
either (i) in cash, represented by bank or cashier's check, certified check or
money order, (ii) in lieu of payment for bona fide services rendered, provided
that such services were not in connection with the offer or sale of securities
in a capital-raising transaction, (iii) by delivery of shares of the Company's
Common Stock or by delivery of shares of corporate stock which are freely
tradable without restriction and which are part of a class of securities which
has been listed for trading on the NASDAQ system or a national securities
exchange, with an aggregate fair market value on the date of exercise equal to
or greater than the exercise price of the shares of Stock being purchased under
the Option, or (iv) a combination of cash, services, or corporate shares.
Notwithstanding the foregoing, any method of payment other than in cash may be
used only with the consent of the Committee (or if none, the Board). An Option
shall be deemed exercised when written notice thereof, accompanied by the
appropriate payment in full, is received by the Company. No holder of an Option
shall be, or have any of the rights and privileges of, a shareholder of the
Company in respect of any shares of Stock purchasable upon exercise of any part
of an Option unless and until certificates representing such shares shall have
been issued by the Company to him or her.
8. Assignability.
No Option shall be assignable or otherwise transferable (by the optionee
or otherwise) except by will or the laws of descent and distribution. No Option
shall be pledged or hypothecated in any manner, whether by operation of law or
otherwise, nor be subject to execution, attachment or similar process.
9. Reorganizations and Recapitalizations of the Company.
(a) The existence of the Plan and Options granted hereunder shall not
affect in any way the right or power of the Company or its shareholders to make
or authorize any and all adjustments, recapitalizations, reorganizations or
other changes in the Company's capital structure or its business, or any merger
or consolidation of the Company, or any issue of bonds, debentures, preferred or
prior preference stocks ahead of or affecting the Company's Common Stock or the
rights thereof, or the dissolution or liquidation of the Company, or any sale,
exchange or transfer of all or any part of its assets or business, or the other
corporation act or proceeding, whether of a similar character or otherwise.
(b) The shares of Stock with respect to which Options may be granted
hereunder are shares of the Common Stock of the Company as currently
constituted. If, and whenever, prior to delivery by the Company of all of the
shares of Stock which are subject to Options granted
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hereunder, the Company shall effect a subdivision or consolidation of shares or
other capital readjustment, the payment of a Stock dividend, a stock split,
combination of shares (reverse stock split) or recapitalization or other
increase or reduction of the number of shares of the Common Stock outstanding
without receiving compensation therefor in money, services or property, then the
number of shares of Stock available under this Plan and the number of shares of
Stock with respect to which Options granted hereunder may thereafter be
exercised shall (i) in the event of an increase in the number of outstanding
shares, be proportionately increased, and the cash consideration payable per
share shall be proportionately reduced; and (ii) in the event of a reduction in
the number of outstanding shares, be proportionately reduced, and the cash
consideration payable per share shall be proportionately increased.
(c) If the Company is reorganized, merged, consolidated or party to a plan
of exchange with another corporation pursuant to which shareholders of the
Company receive any shares of stock or other securities, there shall be
substituted for the shares of Stock subject to the unexercised portions of
outstanding Options an appropriate number of shares of each class of stock or
other securities which were distributed to the shareholders of the Company in
respect of such shares of Stock in the case of a reorganization, merger,
consolidation or plan of exchange; provided, however, that all such Options may
be canceled by the Company as of the effective date of a reorganization, merger,
consolidation, plan of exchange, or any dissolution or liquidation of the
Company, by giving notice to each optionee or his personal representative of its
intention to do so and by permitting the purchase of all the shares subject to
such outstanding Options for a period of not less than thirty (30) days during
the sixty (60) days next preceding such effective date.
(d) Except as expressly provided above, the Company's issuance of shares
of Stock of any class, or securities convertible into shares of Stock of any
class, for cash or property, or for labor or services, either upon direct sale
or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into shares of
Stock or other securities, shall not affect, and no adjustment by reason thereof
shall be made with respect to, the number of shares of Stock subject to Options
granted hereunder or the purchase price of such shares.
10. Purchase for Investment.
Unless the shares of Stock covered by this Plan have been registered under
the Securities Act of 1933, as amended, each person exercising an Option under
the Plan may be required by the Company to give a representation in writing that
he is acquiring such shares for his own account for investment and not with a
view to, or for sale in connection with, the distribution of any part thereof.
11. Effective Date and Expiration of the Plan.
The Plan shall be effective as of September 15, 1995, the date of its
adoption by the Board, and no Option shall be granted pursuant to the Plan after
its expiration. This Plan shall
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expire on December 31, 2005 except as to Options then outstanding, which shall
remain in effect until they have expired or been exercised.
12. Amendments or Termination.
The Board may amend, alter or discontinue the Plan at any time in such
respects as it shall deem advisable in order to conform to any change in any
applicable law, or in order to comply with the provisions of any rule or
regulation of the Securities and Exchange Commission required to exempt the Plan
or any Option granted thereunder from the operation of Section 16(b) of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), or in any other
respect not inconsistent with Section 16(b) of the Exchange Act; provided, that
no amendment or alteration shall be made which would impair the rights of any
participant under any Option theretofore granted, without his consent (unless
made solely to conform such Option to, and necessary because of, changes in the
foregoing laws, rules or regulations).
13. Government Regulations.
The Plan, and the granting and exercise of Options hereunder, and the
obligation of the Company to sell and deliver shares of Stock under such
Options, shall be subject to all applicable laws, rules and regulations, and to
such approvals by any governmental agencies or national securities exchanges as
may be required.
14. Liability.
No member of the Board of Directors, the Committee or officers or
employees of the Company or any Affiliated Corporation shall be personally
liable for any action, omission or determination made in good faith in
connection with the Plan.
15. Miscellaneous.
(a) The term "Affiliated Corporation" used herein shall mean any Parent or
Subsidiary.
(b) The term "Parent" used herein shall mean any corporation owning 50
percent or more of the total combined voting stock of all classes of the Company
or of another corporation qualifying as a Parent within this definition.
(c) The term "Subsidiary" used herein shall mean any corporation more than
50 percent of whose total combined voting stock of all classes is held by the
Company or by another corporation qualifying as a Subsidiary within this
definition.
(d) The term "Committee" as used herein shall mean the Board of Directors
of the Company in such situations when the Company has no Compensation
Committee.
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16. Options in Substitution for Other Options.
The Committee may, in its sole discretion, at any time during the term of
the Plan, grant new options to an employee under the Plan or any other stock
option plan of the Company on the condition that such employee shall surrender
for cancellation one or more outstanding options which represent the right to
purchase (after giving effect to any previous partial exercise thereof) a number
of shares, in relation to the number of shares to be covered by the new
conditional grant hereunder, determined by the Committee. If the Committee shall
have so determined to grant such new options on such a conditional basis ("New
Conditional Options"), no such New Conditional Option shall become exercisable
in the absence of such employee's consent to the condition and surrender and
cancellation as appropriate. New Conditional Options shall be treated in all
respects under the Plan as newly granted options. Options may be granted under
the Plan from time to time in substitution for similar rights held by employees
of other corporations who are about to become employees of the Company or an
Affiliated Corporation, or the merger or consolidation of the employing
corporation with the Company or an Affiliated Corporation, or the acquisition by
the Company or an Affiliated Corporation of the assets of the employing
corporation, or the acquisition by the Company or an Affiliated Corporation of
stock of the employing corporation as the result of which it becomes an
Affiliated Corporation.
17. Withholding Taxes.
Pursuant to applicable federal and state laws, the Company may be required
to collect withholding taxes upon the exercise of an Option. The Company may
require, as a condition to the exercise of an Option that the optionee
concurrently pay to the Company the entire amount or a portion of any taxes
which the Company is required to withhold by reason of such exercise, in such
amount as the Committee or the Company in its discretion may determine. In lieu
of part or all of any such payment, the optionee may elect to have the Company
withhold from the shares to be issued upon exercise of the option that number of
shares having a Fair Market Value equal to the amount which the Company is
required to withhold.
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