EXHIBIT 10.15
EMISSIONS TESTING, INC.
2000 STOCK OPTION PLAN
EMISSIONS TESTING, INC.
2000 STOCK OPTION PLAN
ARTICLE I
DEFINITIONS
As used herein, the following terms have the following
meanings unless the context clearly indicates to the contrary:
1.1 "Award" shall mean a grant of Restricted Stock or an SAR.
1.2 "Board" shall mean the Board of Directors of the Company.
1.3 "Cause" (i) with respect to the Company or any subsidiary
or affiliate which employs the recipient of an Award or Option (the "recipient")
or for which such recipient primarily performs services, the commission by the
recipient of an act of fraud, embezzlement, theft or proven dishonesty, or any
other illegal act or practice (whether or not resulting in criminal prosecution
or conviction), or any act or practice which the Committee shall, in good faith,
deem to have resulted in the recipient's becoming unbendable under the
Company's, the subsidiary's or the affiliate's fidelity bond; (ii) the willful
engaging by the recipient in misconduct which is deemed by the Committee, in
good faith, to be materially injurious to the Company, any subsidiary, or any
affiliate, monetarily or otherwise, including, but not limited, improperly
disclosing trade secrets or other confidential or sensitive business information
and data about the Company or any subsidiaries or affiliates and competing with
the Company or its subsidiaries and affiliates, or soliciting employees,
consultants or customers of the Company in violation of law or any employment or
other agreement to which the recipient is a party; or (iii) the willful and
continued failure or habitual neglect by the recipient to perform his or her
duties with the Company or the subsidiary or affiliate substantially in
accordance with the operating and personnel policies and procedures of the
Company or the subsidiary or affiliate generally applicable to all their
employees. For purposes of this Plan, no act or failure to act by the recipient
shall be deemed be "willful" unless done or omitted to be done by recipient not
in good faith and without reasonable belief that the recipient's action or
omission was in the best interest of the Company and/or the subsidiary or
affiliate. Notwithstanding the foregoing, if the recipient has entered into an
employment agreement that is binding as of the date of employment termination,
and if such employment agreement defines "Cause," then the definition of "Cause"
in such agreement shall apply to the recipient in this Plan. "Cause" under
either (i), (ii) or (iii) shall be determined by the Committee.
1.4 "Change in Control" shall mean any occurrence by which any
"person" (as such term is used in sections 13(d) and 14(d) of the Exchange Act),
other than any person who is a shareholder of the Company on or before the
Effective Date, by the acquisition or aggregation of securities is or becomes
the beneficial owner, directly or indirectly, of securities
of the Company representing 50 percent or more of the combined voting power of
the Company's then outstanding securities ordinarily (and apart from rights
accruing under special circumstances) having the right to vote at elections of
directors (the "Base Capital Stock") ; except that any change in the relative
beneficial ownership of the Company's securities by any person resulting solely
from a reduction in the aggregate number of outstanding shares of Base Capital
Stock, and any decrease thereafter in such person's ownership of securities,
shall be disregarded until such person increases in any manner, directly or
indirectly, such person's beneficial ownership of any securities of the Company.
1.5 "Code" shall mean the United States Internal Revenue Code
of 1986, including effective date and transition rules (whether or not
codified). Any reference herein to a specific section of the Code shall be
deemed to include a reference to any corresponding provision of future law.
1.6 "Committee" shall mean a committee of at least two
Directors appointed from time to time by the Board, having the duties and
authority set forth herein in addition to any other authority granted by the
Board. In selecting the Committee, the Board shall consider (i) the benefits
under Section 162(m) of the Code of having a Committee composed of "outside
directors" (as that term is defined in the Code) for certain grants of Options
to highly compensated executives, and (ii) the benefits under Rule 16b-3 of
having a Committee composed of either the entire Board or a Committee of at
least two Directors who are Non-Employee Directors for Options granted to or
held by any Section 16 Insider. At any time that the Board shall not have
appointed a committee as described above, any reference herein to the Committee
shall mean the Board.
1.7 "Company" shall mean Emissions Testing, Inc. a Georgia
corporation.
1.8 "Effective Date" shall mean December 1, 2000.
1.9 "Director" shall mean a member of the Board and any person
who is an advisory or honorary director of the Company if such person is
considered a director for the purposes of Section 16 of the Exchange Act, as
determined by reference to such Section 16 and to the rules, regulations,
judicial decisions, and interpretative or "no-action" positions with respect
thereto of the Securities and Exchange Commission, as the same may be in effect
or set forth from time to time.
1.10 "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended. Any reference herein to a specific section of the Exchange Act
shall be deemed to include a reference to any corresponding provision of future
law
1.11 "Exercise Price" shall mean the price at which an
Optionee may purchase a share of Stock under a Stock Option Agreement.
1.12 "Fair Market Value" on any date shall mean (i) the
closing sales price of the Stock, regular way, on such date on the national
securities exchange having the greatest volume of trading in the Stock during
the thirty-day period preceding the day the value is to be
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determined or, if such exchange was not open for trading on such date, the next
preceding date on which it was open; (ii) if the Stock is not traded on any
national securities exchange, the average of the closing high bid and low asked
prices of the Stock on the over-the-counter market on the day such value is to
be determined, or in the absence of closing bids on such day, the closing bids
on the next preceding day on which there were bids; or (iii) if the Stock also
is not traded on the over-the-counter market, the fair market value as
determined in good faith by the Board or the Committee based on such relevant
facts as may be available to the Board, which may include opinions of
independent experts, the price at which recent sales have been made, the book
value of the Stock, and the Company's current and future earnings.
1.13 "Optionee" shall mean a person who is an Optionee or a
person who has received an Award of Restricted Stock or an SAR.
1.14 "Incentive Stock Option" shall mean an option to purchase
any stock of the Company, which complies with and is subject to the terms,
limitations and conditions of Section 422 of the Code and any regulations
promulgated with respect thereto.
1.15 "Non-Employee Director" shall have the meaning set forth
in Rule 16b-3 under the Exchange Act, as the same may be in effect from time to
time, or in any successor rule thereto, and shall be determined for all purposes
under the Plan according to interpretative or "no-action" positions with respect
thereto issued by the Securities and Exchange Commission.
1.16 "Officer" shall mean a person who constitutes an officer
of the Company for the purposes of Section 16 of the Exchange Act, as determined
by reference to such Section 16 and to the rules, regulations, judicial
decisions, and interpretative or no-action" positions with respect thereto of
the Securities and Exchange Commission, as the same may be in effect or set
forth from time to time.
1.17 "Option" shall mean an option, whether or not an
Incentive Stock Option, to purchase Stock granted pursuant to the provisions of
Article VI hereof.
1.18 "Optionee" shall mean a person to whom an Option has been
granted hereunder.
1.19 "Permanent and Total Disability" shall have the same
meaning as given to that term by Code Section 22(e) (3) and any regulations or
rulings promulgated thereunder.
1.20 "Plan" shall mean Emissions Testing, Inc. 2000 Stock
Option Plan, the terms of which are set forth herein.
1.21 "Purchasable" shall refer to Stock which may be purchased
by an Optionee under the terms of this Plan on or after a certain date specified
in the applicable Stock Option Agreement.
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1.22 "Qualified Domestic Relations Order" shall have the
meaning set forth in the Code or in the Employee Retirement Income Security Act
of 1974, or the rules and regulations promulgated under the Code or such Act.
1.23 "Reload Option" shall have the meaning set forth in
Section 6.8 hereof.
1.24 "Restricted Stock" shall mean Stock issued, subject to
restrictions, to a Grantee pursuant to Article VII hereof.
1.25 "Restriction Agreement" shall mean the agreement setting
forth the terms of an Award, and executed by a Grantee as provided in Section
7.1 hereof.
1.26 "SAR" means a stock appreciation right, which is the
right to receive an amount equal to the appreciation, if any, in the Fair Market
Value of a share of Stock from the date of the grant of the right to the date of
its payment, all as provided in Article VIII hereof.
1.27 "SAR Price" means the base value established by the
Committee for an SAR on the date the SAR is granted and which is used in
determining the amount of benefit, if any, paid to a Grantee.
1.28 "Section 16 Insider" shall mean any person who is subject
to the provisions of Section 16 of the Exchange Act, as provided in Rule 16a-2
promulgated pursuant to the Exchange Act.
1.29 "Stock" shall mean the common stock, no par value per
share, of the Company or, in the event that the outstanding shares of Stock are
hereafter changed into or exchanged for shares of a different stock or
securities of the Company or some other entity, such other stock or securities.
1.30 "Stock Option Agreement" shall mean an agreement between
the Company and an Optionee under which the Optionee may purchase Stock
hereunder, a sample form of which is attached hereto as Exhibit A (which form
may be varied by the Committee in granting an Option)
ARTICLE II
THE PLAN
2.1 Name. This Plan shall be known as "Emissions Testing, Inc. 2000
Stock Option Plan."
2.2 Purpose. The purpose of the Plan is to advance the interests of the
Company, its subsidiaries, its affiliates that perform services for the Company
and its subsidiaries, and its shareholders by affording certain employees and
Directors of the Company and its subsidiaries and affiliates, as well as key
consultants and advisors to the Company or any subsidiary or affiliate, an
opportunity to acquire or increase their proprietary interests in the Company.
The objective of the issuance of the Options and Awards is to promote the growth
and profitability of
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the Company, its subsidiaries and its affiliates because the Grantees will be
provided with an additional incentive to achieve the Company's objectives
through participation in its success and growth and by encouraging their
continued association with or service to the Company.
2.3 Effective Date. The Plan shall become effective on December 1,
2000.
2.4 Shareholder Approval. If shareholder approval is required by the
Code for Incentive Stock Options and such shareholder approval has not been
obtained (or is not obtained within 12 months thereof), any Incentive Stock
Options issued under the Plan shall automatically become options which do not
qualify as Incentive Stock Options.
ARTICLE III
PARTICIPANTS
The class of persons eligible to participate in the Plan shall consist
of all persons whose participation in the Plan the Committee determines to be in
the best interests of the Company which shall include, but not be limited to,
all Directors and employees, including but not limited to executive personnel,
of the Company or any subsidiary or affiliate, as well as key consultants and
advisors to the Company or any subsidiary or affiliate.
ARTICLE IV
ADMINISTRATION
4.1 Duties and Powers of the Committee. The Plan shall be administered
by the Committee. The Committee shall select one of its members as its Chairman
and shall hold its meetings at such times and places as it may determine. The
Committee shall keep minutes of its meetings and shall make such rules and
regulations for the conduct of its business as it may deem necessary. The
Committee shall have the power to act by unanimous written consent in lieu of a
meeting, and to meet by telephone. In administering the Plan, the Committee's
actions and determinations shall be binding on all interested parties. The
Committee shall have the power to grant Options or Awards in accordance with the
provisions of the Plan and may grant Options and Awards singly, in combination,
or in tandem. Subject to the provisions of the Plan, the Committee shall have
the discretion and authority to determine those individuals to whom Options or
Awards will be granted and whether such Options shall be accompanied by the
right to receive Reload Options, the number of shares of Stock subject to each
Option or Award, such other matters as are specified herein, and any other terms
and conditions of a Stock Option Agreement or Restriction Agreement. The
Committee shall also have the discretion and authority to delegate to any
Officer its powers to grant Options or Awards under the Plan to any person who
is an employee of the Company but not an Officer or Director. To the extent not
inconsistent with the provisions of the Plan, the Committee may give a Grantee
an election to surrender an Option or Award in exchange for the grant of a new
Option or Award, and shall have the authority to amend or modify an outstanding
Stock Option Agreement or Restriction Agreement, or to waive any provision
thereof, provided that the Grantee consents to such action.
4.2 Interpretation; Rules. Subject to the express provisions of the
Plan, the Committee also shall have complete authority to interpret the Plan, to
prescribe, amend, and rescind rules
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and regulations relating to it, to determine the details and provisions of each
Stock Option Agreement, and to make all other determinations necessary or
advisable for the administration of the Plan, including, without limitation, the
amending or altering of the Plan and any Options or Awards granted hereunder as
may be required to comply with or to conform to any federal, state, or local
laws or regulations.
4.3 No Liability. Neither any member of the Board nor any member of the
Committee shall be liable to any person for any act or determination made in
good faith with respect to the Plan or any Option or Award granted hereunder.
4.4 Majority Rule. A majority of the members of the Committee shall
constitute a quorum, and any action taken by a majority at a meeting at which a
quorum is present, or any action taken without a meeting evidenced by a writing
executed by all the members of the Committee, shall constitute the action of the
Committee.
4.5 Company Assistance. The Company shall supply full and timely
information to the Committee on all matters relating to eligible persons, their
employment, death, retirement, disability, or other termination of employment,
and such other pertinent facts as the Committee may require. The Company shall
furnish the Committee with such clerical and other assistance as is necessary in
the performance of its duties.
ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN
5.1 Limitations. Subject to any antidilution adjustment pursuant to the
provisions of Section 5.2 hereof, the maximum number of shares of Stock that may
be issued hereunder shall be 1,000,000. Any or all shares of Stock subject to
the Plan may be issued in any combination of Incentive Stock Options,
non-Incentive Stock Options, Restricted Stock, or SARs, and the amount of Stock
subject to the Plan may be increased from time to time in accordance with
Article X. Shares subject to an Option or issued as an Award may be either
authorized and unissued shares or shares issued and later acquired by the
Company. The shares covered by any unexercised portion of an Option or Award
that has terminated for any reason (except as set forth in the following
paragraph), or any forfeited portion of an Option or Award, and shares tendered
for cashless exercise and withheld for taxes may again be optioned or awarded
under the Plan, and such shares shall not be considered as having been optioned
or issued in computing the number of shares of Stock remaining available for
option or award hereunder.
If Options are issued in respect of options to acquire stock of any
entity acquired, by merger or otherwise, by the Company (or any subsidiary of
the Company), to the extent that such issuance shall not be inconsistent with
the terms, limitations and conditions of Code Section 422 or Rule 16b-3 under
the Exchange Act, the aggregate number of shares of Stock for which Options may
be granted hereunder shall automatically be increased by the number of shares
subject to the Options so issued; provided, however, that the aggregate number
of shares of Stock for which Options may be granted hereunder shall
automatically be decreased by the number of shares covered by any unexercised
portion of an Option so issued that has terminated
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for any reason, and the shares subject to any such unexercised portion may not
be optioned to any other person.
5.2 Antidilution.
(a) If (1) the outstanding shares of Stock are changed into or
exchanged for a different number or kind of shares or other securities of the
Company or any other entity by reason of merger, consolidation, reorganization,
recapitalization, reclassification, combination or exchange of shares, or stock
split or stock dividend, (2) any spin-off, spin-out or other distribution of
assets materially affects the price of the Company's stock, or (3) there is any
assumption and conversion to the Plan by the Company of an acquired company's
outstanding option grants, then: (i) the aggregate number and kind of shares of
Stock for which Options or Awards may be granted hereunder shall be adjusted
proportionately by the Committee; and (ii) the rights of Optionees (concerning
the number of shares subject to Options and the Exercise Price) under
outstanding Options and the rights of the holders of Awards (concerning the
terms and conditions of the lapse of any then-remaining restrictions), shall be
adjusted proportionately by the Committee.
(b) In the event of an anticipated Change in Control or the
Company shall be a party to any reorganization, involving merger, consolidation,
or acquisition of the stock or substantially all the assets of the Company, the
Board or the Committee, in its discretion, may: (i) notwithstanding other
provisions hereof, declare that all Options granted under the Plan shall become
exercisable immediately notwithstanding the provisions of the respective Stock
Option Agreements regarding exercisability, that all such Options shall
terminate 90 days after the Committee gives written notice of the immediate
right to exercise all such Options and of the decision to terminate all Options
not exercised within such 90-day period, and that all then-remaining
restrictions pertaining to Awards under the Plan shall immediately lapse; and/or
(ii) notify all Grantees that all Options or Awards granted under the Plan shall
be assumed by the successor corporation or substituted on an equitable basis
with options or restricted stock issued by such successor corporation.
(c) If the Company is to be liquidated or dissolved in
connection with a reorganization described in Section 5.2(b), the provisions of
such Section shall apply. In all other instances, the adoption of a plan of
dissolution or liquidation of the Company shall, notwithstanding other
provisions hereof, cause all then-remaining restrictions pertaining to Awards
under the Plan to lapse, and shall cause every Option outstanding under the Plan
to terminate to the extent not exercised prior to the adoption of the plan of
dissolution or liquidation by the shareholders, provided that, notwithstanding
other provisions hereof, the Committee may declare all Options granted under the
Plan to be exercisable at any time on or before the fifth business day following
such adoption notwithstanding the provisions of the respective Stock Option
Agreements regarding exercisability.
(d) The adjustments described in paragraphs (a) through (c) of
this Section 5.2, and the manner of their application, shall be determined
solely by the Board or the Committee, and any such adjustment may provide for
the elimination of fractional share interests; provided, however, that any
adjustment made by the Board or the Committee shall be
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made in a manner that will not cause an Incentive Stock Option to be other than
an Incentive Stock Option under applicable statutory and regulatory provisions.
The adjustments required under this Article V shall apply to any successors of
the Company and shall be made regardless of the number or type of successive
events requiring such adjustments.
ARTICLE VI
OPTIONS
6.1 Types of Options Granted. The Committee may, under this Plan, grant
either Incentive Stock Options or Options which do not qualify as Incentive
Stock Options. Within the limitations provided in this Plan, both types of
Options may be granted to the same person at the same time, or at different
times, under different terms and conditions, as long as the terms and conditions
of each Option are consistent with the provisions of the Plan. Without
limitation of the foregoing, Options may be granted subject to conditions based
on the financial performance of the Company or any other factor the Committee
deems relevant.
6.2 Option Grant and Agreement. Each Option granted hereunder shall be
evidenced by minutes of a meeting or the written consent of the Committee and by
a written Stock Option Agreement executed by the Company and the Optionee. The
terms of the Option, including the Option's duration, time or times of exercise,
exercise price, whether the Option is intended to be an Incentive Stock Option,
and whether the Option is to be accompanied by the right to receive a Reload
Option, shall be stated in the Stock Option Agreement. No Incentive Stock Option
may be granted more than ten years after the earlier to occur of the Effective
Date or the date the Plan is approved by the Company's shareholders.
Separate Stock Option Agreements may be used for Options intended to be
Incentive Stock Options and those not so intended, but any failure to use such
separate agreements shall not invalidate, or otherwise adversely affect the
Optionee's interest in, the Options evidenced thereby.
6.3 Optionee Limitation. The Committee shall not grant an Incentive
Stock Option to any person who, at the time the Incentive Stock Option is
granted:
(a) is not an employee of the Company or any of its
subsidiaries; or
(b) owns or is considered to own stock possessing at least 10%
of the total combined voting power of all classes of stock of the Company or any
of its parent or subsidiary corporations; provided, however, that this
limitation shall not apply if at the time an Incentive Stock Option is granted
the Exercise Price is at least 110% of the Fair Market Value of the Stock
subject to such Option and such Option by its terms would not be exercisable
after five years from the date on which the Option is granted.
6.4 $100,000 Limitation. Except as provided below, the Committee shall
not grant an Incentive Stock Option to, or modify the exercise provisions of
outstanding Incentive Stock Options held by, any person who, at the time the
Incentive Stock Option is granted (or modified), would thereby receive or hold
any Incentive Stock Options of the Company and any parent or
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subsidiary of the Company, such that the aggregate Fair Market Value (determined
as of the respective dates of grant or modification of each option) of the stock
with respect to which such Incentive Stock Options are exercisable for the first
time during any calendar year is in excess of $100,000 (or such other limit as
may be prescribed by the Code from time to time) ; provided that the foregoing
restriction on modification of outstanding Incentive Stock Options shall not
preclude the Committee from modifying an outstanding Incentive Stock Option if,
as a result of such modification and with the consent of the Optionee, such
Option no longer constitutes an Incentive Stock Option; and provided that, if
the $100,000 limitation (or such other limitation prescribed by the Code)
described in this Section 6.4 is exceeded, the Incentive Stock Option, the
granting or modification of which resulted in the exceeding of such limit, shall
be treated as an Incentive Stock Option up to the limitation and the excess
shall be treated as an Option not qualifying as an Incentive Stock Option.
6.5 Exercise Price. The Exercise Price of the Stock subject to each
Option shall be determined by the Committee. Subject to the provisions of
Section 6.3(b) hereof, the Exercise Price of an Incentive Stock Option shall not
be less than the Fair Market Value of the Stock as of the date the Option is
granted (or in the case of an Incentive Stock Option that is subsequently
modified, on the date of such modification)
6.6 Exercise Period. The period for the exercise of each Option granted
hereunder shall be determined by the Committee, but the Stock Option Agreement
with respect to each Option intended to be an Incentive Stock Option shall
provide that such Option shall not be exercisable after the expiration of ten
years from the date of grant (or modification) of the Option. In addition, no
Incentive Stock Option granted under the Plan shall be exercisable prior to
shareholder approval of the Plan.
6.7 Option Exercise.
(a) Unless otherwise provided in the Stock Option Agreement or
Section 6.6 hereof, an Option may be exercised at any time or from time to time
during the term of the Option as to any or all full shares which have become
Purchasable under the provisions of the Option, but not at any time as to less
than 100 shares unless the remaining shares that have become so Purchasable are
less than 100 shares. The Committee shall have the authority to prescribe in any
Stock Option Agreement that the Option may be exercised only in accordance with
a vesting schedule during the term of the Option.
(b) An Option shall be exercised by (i) delivery to the
Company at its principal office a written notice of exercise with respect to a
specified number of shares of Stock and (ii) payment to the Company at that
office of the full amount of the Exercise Price for such number of shares in
accordance with Section 6.7(c). If requested by an Optionee, an Option may be
exercised with the involvement of a stockbroker in accordance with the federal
margin rules set forth in Regulation T (in which case the certificates
representing the underlying shares will be delivered by the Company directly to
the stockbroker).
(c) The Exercise Price is to be paid in full in cash upon the
exercise of the Option and the Company shall not be required to deliver
certificates for the shares purchased
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until such payment has been made; provided, however, that in lieu of cash, all
or any portion of the Exercise Price may be paid by tendering to the Company
shares of Stock duly endorsed for transfer and owned by the Optionee, or by
authorization to the Company to withhold shares of Stock otherwise issuable upon
exercise of the Option, in each case to be credited against the Exercise Price
at the Fair Market Value of such shares on the date of exercise (however, no
fractional shares may be so transferred, and the Company shall not be obligated
to make any cash payments in consideration of any excess of the aggregate Fair
Market Value of shares transferred over the aggregate Exercise Price) provided
further, that the Board may provide in a Stock Option Agreement (or may
otherwise determine in its sole discretion at the time of exercise) that, in
lieu of cash or shares, all or a portion of the Exercise Price may be paid by
the Optionee 5 execution of a recourse note equal to the Exercise Price or
relevant portion thereof, subject to compliance with applicable state and
federal laws, rules and regulations.
(d) In addition to and at the time of payment of the Exercise
Price, the Optionee shall pay to the Company in cash the full amount of any
federal, state, and local income, employment, or other withholding taxes
applicable to the taxable income of such Optionee resulting from such exercise.
However, in the discretion of the Committee any Stock Option Agreement may
provide that all or any portion of such tax obligations, together with
additional taxes not exceeding the actual additional taxes to be owed by the
Optionee as a result of such exercise, may, upon the irrevocable election of the
Optionee, be paid by tendering to the Company whole shares of Stock duly
endorsed for transfer and owned by the Optionee, or by authorization to the
Company to withhold shares of Stock otherwise issuable upon exercise of the
Option, in either case in that number of shares having a Fair Market Value on
the date of exercise equal to the amount of such taxes thereby being paid, and
subject to such restrictions as to the approval and timing of any such election
as the Committee may from time to time determine to be necessary or appropriate
to satisfy the conditions of the exemption set forth in Rule 16b-3 under the
Exchange Act, if such rule is applicable.
(e) The holder of an Option shall nor have any of the rights
of a shareholder with respect to the shares of Stock subject to the Option until
such shares have been issued and transferred to the Optionee upon the exercise
of the Option.
6.8 Reload Options.
(a) The Committee may specify in a Stock Option Agreement (or
may otherwise determine in its sole discretion) that a Reload Option shall be
granted, without further action of the Committee, (i) to an Optionee who
exercises an Option (including a Reload Option) by surrendering shares of Stock
in payment of amounts specified in Sections 6.7(c) or 6.7(d) hereof, (ii) for
the same number of shares as are surrendered to pay such amounts, (iii) as of
the date of such payment and at an Exercise Price equal to the Fair Market Value
of the Stock on such date, and (iv) otherwise on the same terms and conditions
as the Option whose exercise has occasioned such payment, subject to such other
conditions or terms as the Committee shall specify at the time such exercised
Option is granted.
(b) Unless provided otherwise in the Stock Option Agreement, a
Reload Option may not be exercised by an Optionee (i) prior to the end of a
one-year period from the
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date that the Reload Option is granted, and (ii) unless the Optionee retains
beneficial ownership of the shares of Stock issued to such Optionee upon
exercise of the Option referred to above in Section 6.8(a) (i) for a period of
one year from the date of such exercise.
6.9 Nontransferability of Option. No Option shall be transferable by an
Optionee other than by will or the laws of descent and distribution or, in the
case of Options other than Incentive Stock Options, pursuant to a Qualified
Domestic Relations Order, and no Option shall be transferable by an Optionee who
is a Section 16 Insider prior to shareholder approval of the Plan. During the
lifetime of an Optionee, Options shall be exercisable only by such Optionee (or
by such Optionee s guardian or legal representative, should one be appointed).
6.10 Termination of Employment or Service. The Committee shall have the
power to specify, with respect to the Options granted to a particular Optionee,
the effect upon such Optionee' s right to exercise an Option on termination of
such Optionee's employment or service under various circumstances, which effect
may include immediate or deferred termination of such Optionee's rights under an
Option, or acceleration of the date at which an Option may be exercised in full;
provided, however, that in no event may an Incentive Stock Option be exercised
after the expiration of ten years from the date of grant thereof. Unless a Stock
Option Agreement specifically provides otherwise, in the event the recipient of
an Option or Award is terminated from his or her employment or other service to
the Company or its subsidiaries for Cause, Options and Awards, whether vested or
unvested, granted to such person shall terminate immediately and shall not
thereafter be exercisable.
6.11 Employment Rights. Nothing in the Plan or in any Stock Option
Agreement shall confer on any person any right to continue in the employ of the
Company or any of its subsidiaries, or shall interfere in any way with the right
of the Company or any of its subsidiaries to terminate such person's employment
at any time.
6.12 Certain Successor Options. To the extent not inconsistent with the
terms, limitations and conditions of Code Section 422 and any regulations
promulgated with respect thereto, an Option issued in respect of an option held
by an employee to acquire stock of any entity acquired, by merger or otherwise,
by the Company (or any subsidiary of the Company) may contain terms that differ
from those stated in this Article VI, but solely to the extent necessary to
preserve for any such employee the rights and benefits contained in such
predecessor option, or to satisfy the requirements of Code Section 424 (a).
6.13 Effect of Change in Control. The Committee may determine, at the
time of granting an Option or thereafter, that such Option shall become
exercisable on an accelerated basis in the event that a Change in Control occurs
with respect to the Company (and the Committee shall have the discretion to
modify the definition of a Change in Control in a particular Option Agreement).
If the Committee finds that there is a reasonable possibility that, within the
succeeding six months, a Change in Control will occur with respect to the
Company, then the Committee may determine that all outstanding Options shall be
exercisable on an accelerated basis.
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ARTICLE VII
RESTRICTED STOCK
7.1 Awards of Restricted Stock. The Committee may grant Awards of
Restricted Stock, which shall be governed by a Restriction Agreement between the
Company and the Grantee. Each Restriction Agreement shall contain such
restrictions, terms, and conditions as the Committee may, in its discretion,
determine, and may require that an appropriate legend be placed on the
certificates evidencing the subject Restricted Stock. Shares of Restricted Stock
granted pursuant to an Award hereunder shall be issued in the name of the
Grantee as soon as reasonably practicable after the Award is granted, provided
that the Grantee has executed the Restriction Agreement governing the Award, the
appropriate blank stock powers, and, in the discretion of the Committee, an
escrow agreement and any other documents which the Committee may require as a
condition to the issuance of such shares. If a Grantee shall fail to execute the
foregoing documents within any time period prescribed by the Committee, the
Award shall be void. At the discretion of the Committee, shares issued in
connection with an Award may be held by the Company for the account of the
Grantee or deposited together with the stock powers with an escrow agent
designated by the Committee. Unless the Committee determines otherwise and as
set forth in the Restriction Agreement, upon issuance of the shares, the Grantee
shall have all of the rights of a shareholder with respect to such shares,
including the right to vote the shares and to receive all dividends or other
distributions paid or made with respect to the shares. Unless the Committee
determines otherwise, not more than 20,000 shares of Restricted Stock may be
awarded to any individual in the aggregate in any one fiscal year of the
Company, such limitation to be applied in a manner consistent with the
requirements of, and only to the extent required for compliance with, the
exclusion from the limitation on deductibility of compensation under Section
162(m) of the Code.
7.2 Non-Transferability. Until any restrictions upon Restricted Stock
awarded to a Grantee shall have lapsed in a manner set forth in Section 7.3,
such shares of Restricted Stock shall not be transferable other than by will or
the laws of descent and distribution, or pursuant to a Qualified Domestic
Relations Order, nor shall they be delivered to the Grantee.
7.3 Lapse of Restrictions. Restrictions upon Restricted Stock awarded
hereunder shall lapse at such time or times and on such terms and conditions as
the Committee may, in its discretion, determine at the time the Award is granted
or thereafter.
7.4 Termination of Employment. The Committee shall have the power to
specify, with respect to each Award granted to any particular Grantee, the
effect upon such Grantee s rights with respect to such Restricted Stock of the
termination of such Grantee's employment under various circumstances, which
effect may include immediate or deferred forfeiture of such Restricted Stock or
acceleration of the date at which any then-remaining restrictions shall lapse.
7.5 Treatment of Dividends. At the time an Award of Restricted Stock is
made the Committee may, in its discretion, determine that the payment to the
Grantee of any dividends, or a specified portion thereof, declared or paid on
such Restricted Stock shall be (i) deferred until the lapsing of the relevant
restrictions and (ii) held by the Company for the account of the Grantee until
such lapsing. In the event of such deferral, there shall be credited at the end
of each
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year (or portion thereof) interest on the amount of the account at the beginning
of the year at a rate per annum determined by the Committee. Payment of deferred
dividends, together with interest thereon, shall be made upon the lapsing of
restrictions imposed on such Restricted Stock, and any dividends deferred
(together with any interest thereon) in respect of Restricted Stock shall be
forfeited upon any forfeiture of such Restricted Stock.
7.6 Delivery of Shares. Except as provided otherwise in Article IX
below, within a reasonable period of time following the lapse of the
restrictions on shares of Restricted Stock, the Committee shall cause a stock
certificate to be delivered to the Grantee with respect to such shares and such
shares shall be free of all restrictions hereunder.
ARTICLE VIII
STOCK APPRECIATION RIGHTS
8.1 SAR Grants. The Committee, in its sole discretion, may grant to any
Grantee an SAR. The Committee may impose such conditions or restrictions on the
exercise of any SAR as it may deem appropriate, including, without limitation,
restricting the time of exercise of the SAR to specified periods as may be
necessary to satisfy the requirements of Rule 16b-3. Unless the Committee
determines otherwise, an SAR providing for not more than 20,000 equivalent
shares of Stock may be awarded to any individual in the aggregate in any one
fiscal year of the Company, such limitation to be applied in a manner consistent
with the requirements of, and only to the extent required for compliance with,
the exclusion from the limitation on deductibility of compensation under Section
162(m) of the Code.
8.2 Determination of Price. The SAR Price shall be established by the
Committee in its sole discretion. The SAR Price shall not be less than 100% of
the Fair Market Value of the Stock on the date the SAR is granted for an SAR
issued in tandem with an Incentive Stock Option.
8.3 Exercise of an SAR. Upon exercise of an SAR, the Grantee shall be
entitled, subject to the terms and conditions of this Plan and the Agreement, to
receive the excess for each share of Stock being exercised under the SAR of (i)
the Fair Market Value of such share of Stock on the date of exercise over (ii)
the SAR Price for such share of Stock.
8.4 Payment for an SAR. At the sole discretion of the Committee, the
payment of such excess shall be made in (i) cash, (ii) shares of Stock, or (iii)
a combination of both. Shares of Stock used for this payment shall be valued at
their Fair Market Value on the date of exercise of the applicable SAR.
8.5 Status of an SAR under the Plan. Shares of Stock subject to an
Award of an SAR shall be considered shares of Stock which may be issued under
the Plan for purposes of Section 5.1 hereof, unless the Agreement making the
Award of the SAR provides that the exercise of such SAR results in the
termination of an unexercised Option for the same number of shares of Stock.
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8.6 Termination of Employment. The Committee shall have the power to
specify, with respect to each SAR granted to any particular Grantee, the effect
upon such Grantee's rights with respect to such SAR of the termination of such
Grantee 5 employment under various circumstances, which effect may include
immediate or deferred forfeiture of such SAR or acceleration of the date at
which any then-remaining restrictions shall lapse.
8.7 No Shareholder Rights. The Grantee shall have no rights as a
shareholder with respect to an SAR. In addition, no adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or rights except as provided in Section 5.2 hereof.
ARTICLE IX
STOCK CERTIFICATES
The Company shall not be required to issue or deliver any certificate
for shares of Stock purchased upon the exercise of any Option granted hereunder
or any portion thereof, or deliver any certificate for shares of Restricted
Stock granted hereunder, prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on all stock exchanges on
which the Stock is then listed;
(b) The completion of any registration or other qualification of such
shares which the Committee shall deem necessary or advisable
under any federal or state law or under the rulings or
regulations of the Securities and Exchange Commission or any
other governmental regulatory body;
(c) The obtaining of any approval or other clearance from any federal
or state governmental agency or body which the Committee shall
determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time following the
exercise of the Option as the Board from time to time may
establish for reasons of administrative convenience.
Stock certificates issued and delivered to Grantees shall bear such
restrictive legends as the Company shall deem necessary or advisable pursuant to
applicable federal and state securities laws.
ARTICLE X
TERMINATION AND AMENDMENT
10.1 Termination and Amendment. The Board may at any time terminate the
Plan, and may at any time and from time to time and in any respect amend the
Plan; provided, however,
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that the Board (unless its actions are approved or ratified by the shareholders
of the Company within twelve months of the date that the Board amends the Plan)
may not amend the Plan to:
(a) Increase the total number of shares of Stock issuable
pursuant to Incentive Stock Options, except as contemplated in Sections 5.1 and
5.2;
(b) Change the class of employees eligible to receive
Incentive Stock Options that may participate in the Plan; or
(c) Otherwise materially increase the benefits accruing to
recipients of Incentive Stock Options under the Plan.
10.2 Effect on Grantee's Rights. No termination, amendment, or
modification of the Plan shall affect adversely a Grantee's rights under a Stock
Option Agreement or Restriction Agreement without the consent of the Grantee or
his legal representative.
ARTICLE XI
RELATIONSHIP TO OTHER COMPENSATION PLANS
The adoption of the Plan shall not affect any other stock option,
incentive, or other compensation plans in effect for the Company or any of its
subsidiaries; nor shall the adoption of the Plan preclude the Company or any of
its subsidiaries from establishing any other form of incentive or other
compensation plan for employees or Directors of the Company or any of its
subsidiaries.
ARTICLE XII
MISCELLANEOUS
12.1 Replacement or Amended Grants. At the sole discretion of the
Committee, and subject to the terms of the Plan, the Committee may modify
outstanding Options or Awards or accept the surrender of outstanding Options or
Awards and grant new Options or Awards in substitution for them. However, no
modification of an Option or Award shall adversely affect a Grantee's rights
under a Stock Option Agreement or Restriction Agreement without the consent of
the Grantee or his legal representative.
12.2 Forfeiture for Competition. If a Grantee provides services to a
competitor of the Company or any of its subsidiaries, whether as an employee,
officer, director, independent contractor, consultant, agent, or otherwise, such
services being of a nature that can reasonably be expected to involve the skills
and experience used or developed by the Grantee while an employee of the Company
or subsidiary, then that Grantee's rights under any Options outstanding
hereunder shall be forfeited and terminated, and any shares of Restricted Stock
held by such Grantee subject to remaining restrictions shall be forfeited,
subject in each case to a determination to the contrary by the Committee.
12.3 Plan Binding on Successors. The Plan shall be binding upon the
successors and assigns of the Company.
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12.4 Singular, Plural; Gender. Whenever used herein, nouns in the
singular shall include the plural, and the masculine pronoun shall include the
feminine gender.
12.5 Headings, etc., No Part of Plan. Headings of Articles and Sections
hereof are inserted for convenience and reference; they do not constitute part
of the Plan.
12.6 Interpretation. With respect to Section 16 Insiders, transactions
under this Plan are intended to comply with all applicable conditions of Rule
16b-3 or its successors under the Exchange Act. To the extent any provision of
the Plan or action by the Plan administrators fails to so comply, it shall be
deemed void to the extent permitted by law and deemed advisable by the Plan
administrators.
* * * * *
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EXHIBIT A
TO THE EMISSIONS TESTING, INC. 2000 STOCK OPTION PLAN
EMISSIONS TESTING, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement"), entered into
as of this _____ day of __________, _____, by and between EMISSIONS TESTING,
INC., a Georgia corporation (the "Company"), and ____________________ (the
"Optionee").
WHEREAS, effective as of December 1, 2000, the Board of Directors of
the Company approved the adoption of "Emissions Testing, Inc. 2000 Stock Option
Plan" (the "Plan"), and recommended that the Plan be approved by the Company's
shareholders; and
WHEREAS, the Committee has in accordance with the foregoing recitals,
granted the Optionee a stock option to purchase the number of shares of the
Company's common stock as set forth below, and in consideration of the granting
of that stock option the Optionee intends to remain in the employ of the
Company; and
WHEREAS, the Company and the Optionee desire to enter into a written
agreement with respect to such option in accordance with the Plan.
NOW, THEREFORE, as an employment incentive and to encourage stock
ownership, and also in consideration of the mutual covenants contained herein,
the parties hereto agree as follows.
1. Incorporation of Plan. This option is granted pursuant to the
provisions of the Plan and the terms and definitions of the Plan are
incorporated herein by reference and made a part hereof. A copy of the Plan has
been delivered to, and receipt is hereby acknowledged by, the Optionee.
2. Grant of Option. Subject to the terms, restrictions, limitations and
conditions stated herein, the Company hereby evidences its grant to the
Optionee, not in lieu of salary or other compensation, of the right and option
(the "Option") to purchase all or any part of the number of shares of the
Company's Common Stock, no par value (the "Stock"), set forth on Schedule A
attached hereto and incorporated herein by reference. The Option shall be
exercisable in the amounts and at the time specified on Schedule A. The Option
shall expire and shall not be exercisable on the date specified on Schedule A or
on such earlier date as determined pursuant to Section 8, 9, or 10 hereof.
Schedule A states whether the Option is intended to be an Incentive Stock
Option.
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3. Purchase Price. The price per share to be paid by the Optionee for
the shares subject to this Option (the "Exercise Price") shall be as specified
on Schedule A, which price shall be an amount not less than the Fair Market
Value of a share of Stock as of the Date of Grant (as defined in Section 11
below) if the Option is an Incentive Stock Option.
4. Exercise Terms. The Optionee must exercise the Option for at least
the lesser of 100 shares or the number of shares of Purchasable Stock as to
which the Option remains unexercised. In the event this Option is not exercised
with respect to all or any part of the shares subject to this Option prior to
its expiration, the shares with respect to which this Option was not exercised
shall no longer be subject to this Option.
5. Option Non-Transferable. No Option shall be transferable by an
Optionee other than by will or the laws of descent and distribution or, in the
case of non-Incentive Stock Options, pursuant to a Qualified Domestic Relations
Order, and no Option shall be transferable by an Optionee who is a Section 16
Insider prior to shareholder approval of the Plan. During the lifetime of an
Optionee, Options shall be exercisable only by such Optionee (or by such
Optionee' s guardian or legal representative, should one be appointed)
6. Notice of Exercise of Option. This Option may be exercised by the
Optionee, or by the Optionee's administrators, executors or personal
representatives, by a written notice (in substantially the form of the Notice of
Exercise attached hereto as Schedule B) signed by the Optionee, or by such
administrators, executors or personal representatives, and delivered or mailed
to the Company as specified in Section 14 hereof to the attention of the
President or such other officer as the Company may designate. Any such notice
shall (a) specify the number of shares of Stock which the Optionee or the
Optionee's administrators, executors or personal representatives, as the case
may be, then elects to purchase hereunder, (b) contain such information as may
be reasonably required pursuant to Section 12 hereof, and (c) be accompanied by
(i) a certified or cashier's check payable to the Company in payment of the
total Exercise Price applicable to such shares as provided herein, (ii) shares
of Stock owned by the Optionee and duly endorsed or accompanied by stock
transfer powers having a Fair Market Value equal to the total Exercise Price
applicable to such shares purchased hereunder, or (iii) a certified or cashier's
check accompanied by the number of shares of Stock whose Fair Market Value when
added to the amount of the check equals the total Exercise Price applicable to
such shares purchased hereunder. Upon receipt of any such notice and
accompanying payment, and subject to the terms hereof, the Company agrees to
issue to the Optionee or the Optionee's administrators, executors or personal
representatives, as the case may be, stock certificates for the number of shares
specified in such notice registered in the name of the person exercising this
Option.
7. Adjustment in Option. The number of shares subject to this Option,
the Exercise Price and other matters are subject to adjustment during the term
of this Option in accordance with Section 5.2 of the Plan.
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8. Termination of Employment.
(a) Except as otherwise specified in Schedule A hereto, in the
event of the termination of the Optionee's employment with the Company or any of
its subsidiaries, other than a termination that is either (i) for Cause, (ii)
voluntary on the part of the Optionee and without written consent of the
Company, or (iii) for reasons of death or disability or retirement, the Optionee
may exercise this Option at any time within 90 days after such termination to
the extent of the number of shares which were Purchasable hereunder at the date
of such termination.
(b) Except as specified in Schedule A attached hereto, in the
event of a termination of the Optionee's employment that is either (i) for Cause
or (ii) voluntary on the part of the Optionee and without the written consent of
the Company, this Option, to the extent not previously exercised, shall
terminate immediately and shall not thereafter be or become exercisable.
(c) Unless and to the extent otherwise provided in Exhibit A
hereto, in the event of the retirement of the Optionee at the normal retirement
date as prescribed from time to time by the Company or any subsidiary, the
Optionee shall continue to have the right to exercise any Options for shares
which were Purchasable at the date of the Optionee's retirement (provided that,
on the date which is three months after the date of retirement, the Options will
become void and unexercisable unless on the date of retirement the Optionee
enters into a noncompete agreement with National Environmental Contracting
Company and continues to comply with such noncompete agreement). This Option
does not confer upon the Optionee any right with respect to continuance of
employment by the Company or by any of its subsidiaries. This Option shall not
be affected by any change of employment so long as the Optionee continues to be
an employee of the Company or one of its subsidiaries.
9. Disabled Optionee. In the event of termination of employment because
of the Optionee's becoming a Disabled Optionee, the Optionee (or his or her
personal representative) may exercise this Option, within a period ending on the
earlier of (a) the last day of the one year period following the Optionee's
death or (b) the expiration date of this Option, to the extent of the number of
shares which were Purchasable hereunder at the date of such termination.
10. Death of Optionee. Except as otherwise set forth in Schedule A with
respect to the rights of the Optionee upon termination of employment under
Section 8(a) above, in the event of the Optionee's death while employed by the
Company or any of its subsidiaries or within three months after a termination of
such employment (if such termination was neither (i) for cause nor (ii)
voluntary on the part of the Optionee and without the written consent of the
Company), the appropriate persons described in Section 6 hereof or persons to
whom all or a portion of this Option is transferred in accordance with Section 5
hereof may exercise this Option at any time within a period ending on the
earlier of (a) the last day of the one year period following the Optionee's
death or (b) the expiration date of this Option. If the Optionee was an employee
of the Company at the time of death, this Option may be so exercised to the
extent of the number of shares that were Purchasable hereunder at the date of
death. If the Optionee's employment terminated prior to his or her death, this
Option may be exercised only to the extent of the
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number of shares covered by this Option which were Purchasable hereunder at the
date of such termination.
11. Date of Grant. This Option was granted by the Board of Directors of
the Company on the date set forth in Schedule A (the "Date of Grant").
12. Compliance with Regulatory Matters. The Optionee acknowledges that
the issuance of capital stock of the Company is subject to limitations imposed
by federal and state law and the Optionee hereby agrees that the Company shall
not be obligated to issue any shares of Stock upon exercise of this Option that
would cause the Company to violate law or any rule, regulation, order or consent
decree of any regulatory authority (including without limitation the Securities
and Exchange Commission) having jurisdiction over the affairs of the Company.
The Optionee agrees that he or she will provide the Company with such
information as is reasonably requested by the Company or its counsel to
determine whether the issuance of Stock complies with the provisions described
by this Section 12.
13. Restriction on Disposition of Shares. The shares purchased pursuant
to the exercise of an Incentive Stock Option shall not be transferred by the
Optionee except pursuant to the Optionee' s will, or the laws of descent and
distribution, until such date which is the later of two years after the grant of
such Incentive Stock Option or one year after the transfer of the shares to the
Optionee pursuant to the exercise of such Incentive Stock Option.
14. Miscellaneous.
(a) This Agreement shall be binding upon the parties hereto
and their representatives, successors and assigns.
(b) This Agreement is executed and delivered in, and shall be
governed by the laws of, the State of Georgia.
Any requests or notices to be given hereunder shall be deemed
given, and any elections or exercises to be made or accomplished shall be deemed
made or accomplished, upon actual delivery thereof to the designated recipient,
or three days after deposit thereof in the United States mail, registered,
return receipt requested and postage prepaid, addressed, if to the Optionee, at
the address set forth below and, if to the Company, to the executive offices of
the Company at 400 Colony Park, Building 104, Suite 600, Cumming, Georgia 30041.
(c) This Agreement may not be modified except in writing
executed by each of the parties hereto.
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IN WITNESS WHEREOF, the Board of Directors of the Company has
caused this Stock Option Agreement to be executed on behalf of the Company and
the Company's seal to be affixed hereto and attested by the Secretary or an
Assistant Secretary of the Company, and the Optionee has executed this Stock
Option Agreement under seal, all as of the day and year first above written.
EMISSIONS TESTING, INC. OPTIONEE
By:______________________________ ________________________________
Its: ____________________________ Name:___________________________
Address:________________________
________________________
Attest:__________________________ ________________________
Its:__________________________
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SCHEDULE A
TO
STOCK OPTION AGREEMENT
BETWEEN
EMISSIONS TESTING, INC.
AND
______________________
Dated _______________, 2000
1. Number of Shares Subject to Option: _____ shares.
2. This Option (Check one) [ ] is [ ] is not an Incentive Stock Option.
3. Option Exercise Price: $__________ per share.
4. Date of Grant: ____________________
5. Option Vesting Schedule:
Check one:
( ) Options are exercisable with respect to all shares on or after
the date hereof.
( ) Options are exercisable with respect to the number of shares
indicated below on or after the date indicated next to the number
of shares:
No. of Shares Vesting Date
------------- ------------
6. Option Exercise Period:
Check One:
( ) All options expire and are void unless exercised on or before
____________________.
( ) Options expire and are void unless exercised on or before the date
indicated next to the number of shares:
No. of Shares Expiration Date
------------- ---------------
7. Effect of Termination of Employment of Optionee (if different from that set
forth in Sections 8, 9 and 10 of the Stock Option Agreement):
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SCHEDULE B
NOTICE OF EXERCISE
The undersigned hereby notifies Emissions Testing, Inc. (the
"Company") of this election to exercise the undersigned's stock option to
purchase _____ shares of the Company's common stock, no par value (the "Common
Stock"), pursuant to the Stock Option Agreement (the "Agreement") between the
undersigned and the Company dated . Accompanying this Notice is (1) a certified
or a cashier's check in the amount of $__________ payable to the Company, and/or
(2) _____ shares of the Company's Common Stock presently owned by the
undersigned and duly endorsed or accompanied by stock transfer powers, having an
aggregate Fair Market Value (as defined in Emissions Testing, Inc. 2000 Stock
Option Plan) as of the date hereof of $__________, such amounts being equal, in
the aggregate, to the purchase price per share set forth in Section 3 of the
Agreement multiplied by the number of shares being purchased hereby (in each
instance subject to appropriate adjustment pursuant to Section 5.2 of the
Agreement).
IN WITNESS WHEREOF, the undersigned has set his hand and seal,
this _____ day of __________, _____.
OPTIONEE [OR OPTIONEE'S ADMINISTRATOR,
EXECUTOR OR PERSONAL REPRESENTATIVE]
Name:___________________________________________________
Position (if other than Optionee):______________________
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