EXHIBIT 10.8.1
NEWPARK RESOURCES, INC.
1995 INCENTIVE STOCK OPTION PLAN
1. Purpose.
This Amended and Restated Newpark Resources, Inc., 1995
Incentive Stock Option Plan (the "Plan") is intended to allow
designated employees, executive officers and other corporate and
divisional officers (all of whom are sometimes collectively referred to
herein as "Employees") of Newpark Resources, Inc., a Delaware
corporation ("Newpark"), and Subsidiaries which it may have from time
to time (Newpark and such Subsidiaries being together referred to
herein as the "Company") to receive certain options ("Stock Options")
to purchase Newpark's common stock, $.01 par value ("Common Stock"), as
herein provided. "Subsidiary" shall mean each corporation which is a
"subsidiary corporation" of Newpark, within the definition contained in
Section 424(f) of the Internal Revenue Code of 1986, as amended (the
"Code"). The purpose of the Plan is to provide Employees with
additional incentives to make significant and extraordinary
contributions to the long-term performance and growth of the Company
and to attract and retain Employees of exceptional ability.
2. Administration.
1.b The Plan shall be administered by the Compensation
Committee (the "Committee") of the Board of Directors of Newpark (the
"Board"). Each member of the Committee shall be a "disinterested
person" as that term is defined in Rule 16b-3 promulgated by the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act"), but no action of
the Committee shall be invalid if this requirement is not met. The
Committee shall select one of its members as Chairman and shall act by
vote of a majority of a quorum or by unanimous written consent. A
majority of its members shall constitute a quorum. The Committee shall
be governed by the provisions of Newpark's By-Laws and of Delaware law
applicable to the Board, except as otherwise provided herein or
determined by the Board.
2.b The Committee shall have full and complete authority,
in its discretion, but subject to the express provisions of the Plan:
to approve the Employees nominated by the management of the Company to
be granted Stock Options; to determine the number of Stock Options to
be granted to an Employee; to determine the time or times at which
Stock Options shall be granted; to establish the terms and conditions
upon which Stock Options may be exercised; to remove or adjust any
restrictions and conditions upon Stock Options; to specify, at the time
of grant, provisions relating to the exercisability of Stock Options
and to accelerate or otherwise modify the exercisability of any Stock
Options; and to adopt such rules and regulations and to make all other
determinations deemed necessary or desirable for the administration of
the Plan. All interpretations and constructions of the Plan by the
Committee, and all of its actions hereunder, shall be binding and
conclusive on all persons for all purposes.
3.b The Company hereby agrees to indemnify and hold
harmless each Committee member and each employee of the Company, and
the estate and heirs of such Committee member or employee, against all
claims, liabilities, expenses, penalties, damages or other pecuniary
losses, including legal fees, which such Committee member or employee
or his or her estate or heirs may suffer as a result of his or her
responsibilities, obligations or duties in connection with the Plan, to
the extent that insurance, if any, does not cover the payment of such
items.
3. Eligibility and Participation.
Employees eligible under the Plan shall be approved by the
Committee from those Employees who, in the opinion of the management of
the Company, are in positions which enable them to make significant and
extraordinary contributions to the long-term performance and growth of
the Company. In selecting Employees to whom Stock Options may be
granted, consideration shall be given to factors such as employment
position, duties and responsibilities, ability, productivity, length of
service, morale, interest in the Company and recommendations of super-
visors. No member of the Committee shall be eligible to participate
under the Plan or under any other Company plan if such participation
would contravene the standard of paragraph 2.1 above relating to "dis-
interested persons".
4. Grants.
The Committee may grant Stock Options in such amounts, at
such times, and to such Employees nominated by the management of the
Company as the Committee, in its discretion, may determine; provided,
however, that, subject to adjustment as provided in paragraph 11, the
maximum number of shares of Common Stock for which Stock Options may be
granted to any one Employee during any one calendar year shall be
100,000. Stock Options granted under the Plan shall constitute
"incentive stock options" within the meaning of Section 422 of the
Code, if so designated by the Committee on the date of grant. The
Committee shall also have the discretion to grant Stock Options which
do not constitute incentive stock options and any such Stock Options
shall be designated non-statutory stock options by the Committee on the
date of grant. The aggregate fair market value (determined as of the
time an incentive stock option is granted) of the Common Stock with
respect to which incentive stock options are exercisable for the first
time by any Employee during any one calendar year (under all plans of
the Company and any parent or subsidiary of the Company) may not exceed
the maximum amount permitted under Section 422 of the Code (currently
$100,000.00). Non-statutory stock options shall not be subject to the
limitations relating to incentive stock options contained in the pre-
ceding sentence. Subject to the provisions of paragraph 11 hereof, the
number of shares of Common Stock issued and issuable pursuant to the
exercise of Stock Options granted hereunder shall not exceed 500,000;
provided, however, that on the last business day of each fiscal year of
the Company, commencing with the last business day of the fiscal year
ending December 31, 1996, such maximum number shall be increased by a
number equal to 1.25% of the number of shares of Common Stock issued
and outstanding on the close of business on such day; provided,
further, that in no event shall the aggregate number of shares issued
and issuable pursuant to the exercise of Stock Options granted
hereunder exceed 1,250,000. Each Stock Option shall be evidenced by a
written agreement (the "Option Agreement") in a form approved by the
Committee, which shall be executed on behalf of the Company and by the
Employee to whom the Stock Option is granted. If a Stock Option
expires, terminates or is cancelled for any reason without having been
exercised in full, the shares of Common Stock not purchased thereunder
shall again be available for purposes of the Plan.
5. Purchase Price.
The purchase price (the "Exercise Price") of shares of
Common Stock subject to each Stock Option ("Option Shares") shall equal
the fair market value ("Fair Market Value") of such shares on the date
of grant of such Stock Option. Notwithstanding the foregoing, the
Exercise Price of Option Shares subject to an incentive stock option
granted to an Employee who at the time of grant owns stock possessing
more than 10% of the total combined voting power of all classes of
stock of the Company or of any parent or Subsidiary shall be at least
equal to 110% of the Fair Market Value of such shares on the date of
grant of such Stock Option. The Fair Market Value of a share of Common
Stock on any date shall be equal to the closing price of the Common
Stock for the last preceding day on which Newpark's shares were traded,
and the method for determining the closing price shall be determined by
the Committee.
6. Option Period.
The Stock Option period (the "Term") shall commence on the
date of grant of the Stock Option and shall be ten years or such
shorter period as is determined by the Committee. Notwithstanding the
foregoing, the Term of an incentive stock option granted to an Employee
who at the time of grant owns stock possessing more than 10% of the
total combined voting power of all classes of stock of the Company or
of any parent or subsidiary shall not exceed five years. Each Stock
Option shall provide that it is exercisable over its term in such
periodic installments as the Committee in its sole discretion may
determine. Such provisions need not be uniform. Notwithstanding the
foregoing, but subject to the provisions of paragraphs 2.2 and 11.3,
Stock Options granted to Employees who are subject to the reporting
requirements of Section 16(a) of the Exchange Act ("Section 16
Reporting Persons") shall not be exercisable until at least six months
and one day from the date the Stock Option is granted, or, if later,
from the date of stockholder approval of the Plan. If an Employee
shall not in any period purchase all of the Option Shares which the
Employee is entitled to purchase in such period, the Employee may
purchase all or any part of such Option Shares at any time prior to the
expiration of the Stock Option.
7. Exercise of Options.
1.b Each Stock Option may be exercised in whole or in part
(but not as to fractional shares) by delivering it for surrender or
endorsement to the Company, attention of the Corporate Secretary, at
the principal office of the Company, together with payment of the
Exercise Price and an executed Notice and Agreement of Exercise in the
form prescribed by paragraph 7.2. Payment may be made in cash, by
cashier's or certified check or by surrender of previously owned shares
of the Company's Common Stock valued pursuant to paragraph 5 (if the
Committee authorizes payment in stock).
2.b Exercise of each Stock Option is conditioned upon the
agreement of the Employee to the terms and conditions of this Plan and
of such Stock Option as evidenced by the Employee's execution and
delivery of a Notice and Agreement of Exercise in a form to be
determined by the Committee in its discretion. Such Notice and
Agreement of Exercise shall set forth the agreement of the Employee
that: (a) no Option Shares will be sold or otherwise distributed in
violation of the Securities Act of 1933 (the "Securities Act") or any
other applicable federal or state securities laws, (b) each Option
Share certificate may be imprinted with legends reflecting any
applicable federal and state securities law restrictions and
conditions, (c) the Company may comply with said securities law
restrictions and issue "stop transfer" instructions to its Transfer
Agent and Registrar without liability, (d) if the Employee is a Section
16 Reporting Person, the Employee will furnish to the Company a copy of
each Form 4 or Form 5 filed by said Employee and will timely file all
reports required under federal securities laws, and (e) the Employee
will report all sales of Option Shares to the Company in writing on a
form prescribed by the Company.
3.b No Stock Option shall be exercisable unless and until
any applicable registration or qualification requirements of federal
and state securities laws, and all other legal requirements, have been
fully complied with. The Company will use reasonable efforts to
maintain the effectiveness of a Registration Statement under the
Securities Act for the issuance of Stock Options and shares acquired
thereunder, but there may be times when no such Registration Statement
will be currently effective. The exercise of Stock Options may be
temporarily suspended without liability to the Company during times
when no such Registration Statement is currently effective, or during
times when, in the reasonable opinion of the Committee, such suspension
is necessary to preclude violation of any requirements of applicable
law or regulatory bodies having jurisdiction over the Company. If any
Stock Option would expire for any reason except the end of its term
during such a suspension, then if the exercise of such Stock Option is
duly tendered before its expiration, such Stock Option shall be
exercisable and exercised (unless the attempted exercise is withdrawn)
as of the first day after the end of such suspension. The Company
shall have no obligation to file any Registration Statement covering
resales of Option Shares.
8. Continuous Employment.
Except as provided in paragraph 10 below, an Employee may
not exercise a Stock Option unless from the date of grant to the date
of exercise such Employee remains continuously in the employ of the
Company. For purposes of this paragraph 8, the period of continuous
employment of an Employee with the Company shall be deemed to include
(without extending the term of the Stock Option) any period during
which such Employee is on leave of absence with the consent of the
Company, provided that such leave of absence shall not exceed three (3)
months and that such Employee returns to the employ of the Company at
the expiration of such leave of absence. If such Employee fails to
return to the employ of the Company at the expiration of such leave of
absence, such Employee's employment with the Company shall be deemed
terminated as of the date such leave of absence commenced. The
continuous employment of an Employee with the Company shall also be
deemed to include any period during which such Employee is a member of
the Armed Forces of the United States, provided that such Employee
returns to the employ of the Company within ninety (90) days (or such
longer period as may be prescribed by law) from the date such Employee
first becomes entitled to discharge. If an Employee does not return to
the employ of the Company within ninety (90) days (or such longer
period as may be prescribed by law) from the date such Employee first
becomes entitled to discharge, such Employee's employment with the
Company shall be deemed to have terminated as of the date such
Employee's military service ended.
9. Restrictions on Transfer.
Incentive stock options granted under this Plan shall be
transferable only by will or the laws of descent and distribution. The
Committee shall have discretion to grant non-statutory stock options
that are not subject to the restrictions on transfer relating to incen-
tive stock options contained in the preceding sentence; provided,
however, that non-statutory stock options granted to a Section 16
Reporting Person shall be subject to such restrictions on transfer as
may be required to qualify for the exemption provided for in Section
16b-3 of the Exchange Act or otherwise imposed by the Committee in its
sole and absolute discretion. No interest of any Employee under the
Plan shall be subject to attachment, execution, garnishment, sequest-
ration, the laws of bankruptcy or any other legal or equitable process.
Each Stock Option granted under this Plan shall be exercisable during
an Employee's lifetime only by such Employee and, in the case of non-
statutory stock options, such Employee's permitted transferees.
10. Termination of Employment.
1.b Upon an Employee's Retirement, Disability or death, (a)
all Stock Options to the extent then presently exercisable shall remain
in full force and effect and may be exercised pursuant to the provi-
sions thereof, including expiration at the end of the fixed term
thereof, and (b) unless otherwise provided by the Committee, all Stock
Options to the extent not then presently exercisable by such Employee
shall terminate as of the date of such termination of employment and
shall not be exercisable thereafter.
2.b Upon the termination of the employment of an Employee
with the Company for any reason other than the reasons set forth in
paragraph 10.1 hereof, unless otherwise provided by the Committee, (a)
all Stock Options to the extent then presently exercisable by such
Employee shall remain exercisable only for a period of ninety (90) days
after the date of such termination of employment (except that the
ninety (90) day period shall be extended to twelve (12) months if the
Employee shall die during such ninety (90) day period), and may be
exercised pursuant to the provisions thereof, including expiration at
the end of the fixed term thereof, and (b) all Stock Options to the
extent not then presently exercisable by such Employee shall terminate
as of the date of such termination of employment and shall not be
exercisable thereafter.
3.b For purposes of this Plan:
(a) "Retirement" shall mean an Employee's retirement
from the employ of the Company on or after the date on which such
Employee attains the age of sixty-five (65) years; and
(b) "Disability" shall mean total and permanent
incapacity of an Employee, due to physical impairment or legally
established mental incompetence, to perform the usual duties of such
Employee's employment with the Company, which disability shall be
determined: (i) on medical evidence by a licensed physician designated
by the Committee, or (ii) on evidence that the Employee has become
entitled to receive primary benefits as a disabled employee under the
Social Security Act in effect on the date of such disability.
11. Adjustments Upon Change in Capitalization.
1.b The number and class of shares subject to each out-
standing Stock Option, the Exercise Price thereof (but not the total
price) and the maximum number of Stock Options that may be granted
under the Plan shall be proportionately adjusted in the event of any
increase or decrease in the number of the issued shares of Common Stock
which results from a split-up or consolidation of shares, payment of a
stock dividend or dividends exceeding a total of two and one-half
percent (2.5%) for which the record dates occur in any one fiscal year,
a recapitalization (other than the conversion of convertible securities
according to their terms), a combination of shares or other like
capital adjustment, so that upon exercise of the Stock Option, the
Employee shall receive the number and class of shares such Employee
would have received had such Employee been the holder of the number of
shares of Common Stock for which the Stock Option is being exercised
upon the date of such change or increase or decrease in the number of
issued shares of the Company.
2.b Upon a reorganization, merger or consolidation of the
Company with one or more corporations as a result of which Newpark is
not the surviving corporation or in which Newpark survives as a wholly-
owned subsidiary of another corporation, or upon a sale of all or
substantially all of the property of the Company to another
corporation, or any dividend or distribution to shareholders of more
than ten percent (10%) of the Company's assets, adequate adjustment or
other provisions shall be made by the Company or other party to such
transaction so that there shall remain and/or be substituted for the
Option Shares provided for herein, the shares, securities or assets
which would have been issuable or payable in respect of or in exchange
for such Option Shares then remaining, as if the Employee had been the
owner of such Option Shares as of the applicable date. Any securities
so substituted shall be subject to similar successive adjustments.
3.b In the sole discretion of the Committee, Stock Options
may include provisions, on terms (which need not be uniform) authorized
by the Committee in its sole discretion, that accelerate the Employees'
rights to exercise Stock Options upon a sale of substantially all of
the Company's assets, the dissolution of Newpark or upon a change in
the controlling shareholder interest in Newpark resulting from a tender
offer, reorganization, merger or consolidation or from any other
transaction or occurrence, whether or not similar to the foregoing
(each, a "Change in Control").
12. Withholding Taxes.
The Company shall have the right at the time of exercise of
any Stock Option to make adequate provision for any federal, state,
local or foreign taxes which it believes are or may be required by law
to be withheld with respect to such exercise ("Tax Liability"), to
ensure the payment of any such Tax Liability. The Company may provide
for the payment of any Tax Liability by any of the following means or a
combination of such means, as determined by the Committee in its sole
and absolute discretion in the particular case: (i) by requiring the
Employee to tender a cash payment to the Company, (ii) by withholding
from the Employee's salary, (iii) by withholding from the Option Shares
which would otherwise be issuable upon exercise of the Stock Option
that number of Option Shares having an aggregate fair market value
(determined in the manner prescribed by paragraph 5) as of the date the
withholding tax obligation arises that is equal to the Employee's Tax
Liability or (iv) by any other method deemed appropriate by the
Committee. Satisfaction of the Tax Liability of a Section 16 Reporting
Person may be made by the method of payment specified in clause (iii)
above upon satisfaction of such additional conditions as the Committee
shall deem in its sole and absolute discretion as appropriate in order
for such withholding of Option Shares to qualify for the exemption
provided for in Section 16b-3 of the Exchange Act.
13. Relationship to Other Employee Benefit Plans.
Stock Options granted hereunder shall not be deemed to be
salary or other compensation to any Employee for purposes of any
pension, thrift, profit-sharing, stock purchase or any other employee
benefit plan now maintained or hereafter adopted by the Company.
14. Amendments and Termination.
The Board of Directors may at any time suspend, amend or
terminate this Plan. No amendment or modification of this Plan may be
adopted, except subject to shareholder approval, which would: (a)
materially increase the benefits accruing to Employees under this Plan,
(b) materially increase the number of securities which may be issued
under this Plan (except for adjustments pursuant to paragraph 11
hereof) or (c) materially modify the requirements as to eligibility for
participation in the Plan.
15. Successors in Interest.
The provisions of this Plan and the actions of the Committee
shall be binding upon all heirs, successors and assigns of the Company
and of Employees.
16. Other Documents.
All documents prepared, executed or delivered in connection
with this Plan shall be, in substance and form, as established and
modified by the Committee or by persons under its direction and
supervision; provided, however, that all such documents shall be
subject in every respect to the provisions of this Plan, and in the
event of any conflict between the terms of any such document and this
Plan, the provisions of this Plan shall prevail. All Stock Options
granted under the Plan shall be evidenced by written agreements
executed by the Company and the Employees to whom the Stock Options
have been granted. Each agreement shall specify whether a Stock Option
is an incentive stock option or a non-statutory stock option.
17. No Obligation to Continue Employment.
This Plan and grants hereunder shall not impose any
obligation on the Company to continue to employ any Employee.
Moreover, no provision of this Plan or any document executed or
delivered pursuant to this Plan shall be deemed modified in any way by
any employment contract between an Employee (or other employee) and the
Company.
18. Misconduct of an Employee.
Notwithstanding any other provision of this Plan, if an
Employee commits fraud or dishonesty toward the Company or wrongfully
uses or discloses any trade secret, confidential data or other
information proprietary to the Company, or intentionally takes any
other action materially inimical to the best interests of the Company,
as determined by the Committee, in its sole and absolute discretion,
such Employee shall forfeit all rights and benefits under this Plan.
19. Term of Plan.
This Plan was adopted by the Board effective November 2,
1995. No Stock Options may be granted under this Plan after November
2, 2005.
20. Governing Law.
This Plan shall be construed in accordance with, and
governed by, the laws of the State of Delaware.
21. Stockholder Approval.
No Stock Option shall be exercisable unless and until the
stockholders of the Company have approved this Plan and all other legal
requirements have been fully complied with.
22. Privileges of Stock Ownership.
The holder of a Stock Option shall not be entitled to the
privileges of stock ownership as to any shares of the Company common
stock not actually issued to such holder.
IN WITNESS WHEREOF, this Plan has been executed effective as of
the 2nd day of November, 1995.
NEWPARK RESOURCES, INC.
By
James D. Cole, President