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EXHIBIT 4.8
BETTIS CORPORATION
1994 NONEMPLOYEE DIRECTORS' STOCK OPTION PLAN
I. PURPOSE OF THE PLAN
The BETTIS CORPORATION 1994 NONEMPLOYEE DIRECTORS' STOCK OPTION PLAN
(the "Plan") is intended to promote the interests of BETTIS CORPORATION, a
Delaware corporation (the "Company"), and its stockholders by helping to award
and retain highly-qualified independent directors, and allowing them to develop
a sense of proprietorship and personal involvement in the development and
financial success of the Company. Accordingly, the Company shall grant to
directors of the Company who are not employees of the Company or any of its
subsidiaries ("Nonemployee Directors") the option ("Option") to purchase shares
of the common stock of the Company ("Stock"), as hereinafter set forth.
Options granted under the Plan shall be options which do not constitute
incentive stock options, within the meaning of section 422(b) of the Internal
Revenue Code of 1986, as amended.
II. OPTION AGREEMENTS
Each Option shall be evidenced by a written agreement in the form
attached to the Plan.
III. ELIGIBILITY OF OPTIONEE
Options may be granted only to individuals who are Nonemployee
Directors of the Company. Each Nonemployee Director who serves in such
capacity or is elected to the Board of Directors of the Company (the "Board")
on the first day the Stock is listed and traded on the NASDAQ-National Market
System (the "First Grant Date") shall receive, as of such date and without the
exercise of the discretion of any person or persons, an Option exercisable for
5,000 shares of Stock. Each Nonemployee Director who serves in such capacity
or is elected to the Board on the first anniversary of the First Grant Date
shall receive, as of such date and without the exercise of the discretion of
any person or persons, an Option exercisable for 5,000 shares of Stock (subject
to adjustment in the same manner as provided in Paragraph VII hereof with
respect to shares of Stock subject to Options then outstanding). Each
Nonemployee Director who serves in such capacity or is elected to the Board on
the second anniversary of the First Grant Date shall receive, as of such date
and without the exercise of the discretion of any person or persons, an Option
exercisable for 5,000 shares of Stock (subject to adjustment in the same manner
as provided in Paragraph VII hereof with respect to shares of Stock subject to
Options then outstanding). If, as of any date that the Plan is in effect,
there are not sufficient shares of Stock available under the Plan to allow for
the grant to each Nonemployee Director of an Option for the number of shares
provided herein, each Nonemployee Director shall receive an Option for his or
her pro-rata share of the total number of shares of Stock then available under
the Plan. All Options granted under the Plan shall be at the Option price set
forth in Paragraph V hereof and shall be subject to adjustment as provided in
Paragraph VII hereof.
IV. SHARES SUBJECT TO THE PLAN
The aggregate number of shares which may be issued under Options
granted under the Plan shall not exceed 75,000 shares of Stock. Such shares
may consist of authorized but
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unissued shares of Stock or previously issued shares of Stock reacquired by the
Company. Any of such shares which remain unissued and which are not subject to
outstanding Options at the termination of the Plan shall cease to be subject to
the Plan, but, until termination of the Plan, the Company shall at all times
make available a sufficient number of shares to meet the requirements of the
Plan. Should any Option hereunder expire or terminate prior to its exercise in
full, the shares theretofore subject to such Option may again be subject to an
Option granted under the Plan. The aggregate number of shares which may be
issued under the Plan shall be subject to adjustment in the same manner as
provided in Paragraph VII hereof with respect to shares of Stock subject to
Options then outstanding. Exercise of an Option shall result in a decrease in
the number of shares of Stock which may thereafter be available, both for
purposes of the Plan and for sale to any one individual, by the number of
shares as to which the Option is exercised.
V. OPTION PRICE
The purchase price of Stock issued under each Option shall be the fair
market value of Stock subject to the Option as of the date the Option is
granted. For all purposes under the Plan, the fair market value of a share of
Stock on a particular date shall be equal to the mean of the high and low sales
prices of the Stock (i) reported by the NASDAQ-National Market System on that
date or (ii) if the Stock is listed on a national stock exchange, reported on
the stock exchange composite tape on that date; or, in either case, if no
prices are reported on that date, on the last preceding date on which such
prices of the Stock are so reported. If the Stock is traded over the counter
at the time a determination of its fair market value is required to be made
hereunder, its fair market value shall be deemed to be equal to the average
between the reported high and low or closing bid and asked prices of Stock on
the most recent date on which Stock was publicly traded. In the event Stock is
not publicly traded at the time a determination of its value is required to be
made hereunder, the determination of its fair market value shall be made by the
Board in such manner as it deems appropriate.
VI. TERM OF PLAN
The Plan shall be effective on the date the Plan is approved by the
stockholders of the Company. Except with respect to Options then outstanding,
if not sooner terminated under the provisions of Paragraph VIII, the Plan shall
terminate upon and no further Options shall be granted after the second
anniversary of the First Grant Date.
VII. RECAPITALIZATION OR REORGANIZATION
A. The existence of the Plan and the Options granted hereunder
shall not affect in any way the right or power of the Board or the stockholders
of the Company to make or authorize any adjustment, recapitalization,
reorganization or other change in the Company's capital structure or its
business, any merger or consolidation of the Company, any issue of debt or
equity securities, the dissolution or liquidation of the Company or any sale,
lease, exchange or other disposition of all or any part of its assets or
business or any other corporate act or proceeding.
B. The shares with respect to which Options may be granted are
shares of Stock as presently constituted, but if, and whenever, prior to the
expiration of an Option theretofore granted, the Company shall effect a
subdivision or consolidation of shares of Stock or the payment of a stock
dividend on Stock without receipt of consideration by the Company, the number
of shares of Stock with respect to which such Option may thereafter be
exercised (i) in the event of an increase in the number of outstanding shares
shall be proportionately increased, and the purchase price per share shall be
proportionately reduced,
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and (ii) in the event of a reduction in the number of outstanding shares shall
be proportionately reduced, and the purchase price per share shall be
proportionately increased.
C. If the Company recapitalizes or otherwise changes its capital
structure, thereafter upon any exercise of an Option theretofore granted the
optionee shall be entitled to purchase under such Option, in lieu of the number
and class of shares of Stock then covered by such Option, the number and class
of shares of stock and securities to which the optionee would have been
entitled pursuant to the terms of the recapitalization if, immediately prior to
such recapitalization, the optionee had been the holder of record of the number
of shares of Stock then covered by such Option.
D. Any adjustment provided for in Subparagraphs (b) or (c) above
shall be subject to any required stockholder action.
E. Except as hereinbefore expressly provided, the issuance by the
Company of shares of stock of any class or securities convertible into shares
of stock of any class, for cash, property, labor or services, upon direct sale,
upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, and in any case whether or not for fair value, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number of shares of Stock subject to Options theretofore granted or the
purchase price per share.
VIII. AMENDMENT OR TERMINATION OF THE PLAN
The Board in its discretion may terminate the Plan at any time with
respect to any shares for which Options have not theretofore been granted. The
Board shall have the right to alter or amend the Plan or any part thereof from
time to time; provided, that no change in any Option theretofore granted may be
made which would impair the rights of the optionee without the consent of such
optionee; and provided, further, that the Board may not make any alteration or
amendment which would materially increase the benefits accruing to participants
under the Plan, increase the aggregate number of shares which may be issued
pursuant to the provisions of the Plan, change the class of individuals
eligible to receive Options under the Plan or extend the term of the Plan,
without the approval of the stockholders of the Company.
IX. SECURITIES LAWS
A. The Company shall not be obligated to issue any Stock pursuant
to any Option granted under the Plan at any time when the offering of the
shares covered by such Option have not been registered under the Securities Act
of 1933, as amended, and such other state and federal laws, rules or
regulations as the Company deems applicable and, in the opinion of legal
counsel for the Company, there is no exemption from the registration
requirements of such laws, rules or regulations available for the offering and
sale of such shares.
B. It is intended that the Plan and any grant of an Option made
to a person subject to Section 16 of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), meet all of the requirements of Rule 16b-3, as
currently in effect or as hereinafter modified or amended ("Rule 16b-3"),
promulgated under the 1934 Act. If any provision of the Plan or any such
Option would disqualify the Plan or such Option under, or would otherwise not
comply with, Rule 16b-3, such provision or Option shall be construed or deemed
amended to conform to Rule 16b-3.
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NONEMPLOYEE DIRECTOR'S STOCK OPTION AGREEMENT
AGREEMENT made as of the _____ day of ____________________, 19__,
between BETTIS CORPORATION, a Delaware corporation (the "Company"), and
_______________________________("Director").
To carry out the purposes of the BETTIS CORPORATION 1994 NONEMPLOYEE
DIRECTORS' STOCK OPTION PLAN (the "Plan"), a copy of which is attached hereto
as Exhibit A, by affording Director the opportunity to purchase shares of
common stock of the Company ("Stock"), and in consideration of the mutual
agreements and other matters set forth herein and in the Plan, the Company and
Director hereby agree as follows:
1. GRANT OF OPTION. The Company hereby irrevocably grants to
Director the right and option ("Option") to purchase all or any part of an
aggregate of _____________ shares of Stock, on the terms and conditions set
forth herein and in the Plan, which Plan is incorporated herein by reference as
a part of this Agreement. This Option shall not be treated as an incentive
stock option within the meaning of section 422(b) of the Internal Revenue Code
of 1986, as amended.
2. PURCHASE PRICE. The purchase price of Stock purchased
pursuant to the exercise of this Option shall be $__________________ per share,
which has been determined to be not less than the fair market value of the
Stock at the date of grant of this Option. For all purposes of this Agreement,
fair market value of Stock shall be determined in accordance with the
provisions of the Plan.
3. EXERCISE OF OPTION. Subject to the earlier expiration of this
Option as herein provided, this Option may be exercised, by written notice to
the Company at its principal executive office addressed to the attention of its
Chief Executive Officer, at any time and from time to time after the date of
grant hereof, but, except as otherwise provided below, this Option shall not be
exercisable for more than a percentage of the aggregate number of shares
offered by this Option determined by the number of full years from the date of
grant hereof to the date of such exercise, in accordance with the following
schedule:
PERCENTAGE OF SHARES
NUMBER OF FULL YEARS THAT MAY BE PURCHASED
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Less than 1 year 20%
1 year but less than 2 years 40%
2 years but less than 3 years 60%
3 years but less than 4 years 80%
4 years or more 100%
Notwithstanding the foregoing, if (i) the Company shall not be the
surviving entity in any merger, consolidation or other reorganization (or
survives only as a subsidiary of an entity other than a previously wholly-
owned subsidiary of the Company), (ii) the Company sells, leases or exchanges
or agrees to sell, lease or exchange all or substantially all of its assets to
any other person or entity (other than a wholly-owned subsidiary of the
Company), (iii) the Company is to be dissolved and liquidated, (iv) any person
or entity, including a "group" as contemplated by Section 13(d)(3) of the
Securities Exchange Act of 1934, acquires or gains ownership or control
(including, without limitation, power to vote) of more than 50% of the
outstanding shares of the Company's voting stock (based upon voting power), or
(v) as a result of or in connection with a contested election of directors, the
persons who were directors of the Company before such election shall cease to
constitute a majority of the
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Board of Directors of the Company (each such event is referred to herein as a
"Corporate Change"), then effective as of the earlier of (1) the date of
approval by the stockholders of the Company of such merger, consolidation,
reorganization, sale, lease or exchange of assets or dissolution or such
election of directors or (2) the date of such Corporate Change, this Option
shall be exercisable in full.
This Option is not transferable by Director otherwise than by will or
the laws of descent and distribution, and may be exercised only by Director
during Director's lifetime. This Option may be exercised only while Director
remains a member of the Board of Directors of the Company (the "Board") and
will terminate and cease to be exercisable upon Director's termination of
membership on the Board, except that:
(a) If Director's membership on the Board terminates by
reason of disability, this Option may be exercised in full by Director
(or Director's estate or the person who acquires this Option by will
or the laws of descent and distribution or otherwise by reason of the
death of Director) at any time during the period of one year following
such termination.
(b) If Director dies while a member of the Board,
Director's estate, or the person who acquires this Option by will or
the laws of descent and distribution or otherwise by reason of the
death of Director, may exercise this Option in full at any time during
the period of one year following the date of Director's death.
(c) If Director's membership on the Board terminates for
any reason other than as described in (a) or (b) above, this Option
may be exercised by Director at any time during the period of three
months following such termination, or by Director's estate (or the
person who acquires this Option by will or the laws of descent and
distribution or otherwise by reason of the death of Director) during a
period of one year following Director's death if Director dies during
such three-month period, but in each case only as to the number of
shares Director was entitled to purchase hereunder upon exercise of
this Option as of the date Director's membership on the Board so
terminates.
This Option shall not be exercisable in any event after the expiration of ten
years from the date of grant hereof. The purchase price of shares as to which
this Option is exercised shall be paid in full at the time of exercise (A) in
cash (including check, bank draft or money order payable to the order of the
Company), (B) by delivering to the Company shares of Stock having a fair market
value equal to the purchase price, or (C) any combination of cash or Stock. No
fraction of a share of Stock shall be issued by the Company upon exercise of an
Option or accepted by the Company in payment of the purchase price thereof;
rather, Director shall provide a cash payment for such amount as is necessary
to effect the issuance and acceptance of only whole shares of Stock. Unless
and until a certificate or certificates representing such shares shall have
been issued by the Company to Director, Director (or the person permitted to
exercise this Option in the event of Director's death) shall not be or have any
of the rights or privileges of a stockholder of the Company with respect to
shares acquirable upon an exercise of this Option.
4. WITHHOLDING OF TAX. To the extent that the exercise of this
Option or the disposition of shares of Stock acquired by exercise of this
Option results in compensation income to Director for federal or state income
tax purposes, Director shall deliver to the Company at the time of such
exercise or disposition such amount of money or shares of Stock as the Company
may require to meet its obligation under applicable tax laws or regulations,
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and, if Director fails to do so, the Company is authorized to withhold from any
cash or Stock remuneration then or thereafter payable to Director any tax
required to be withheld by reason of such resulting compensation income. Upon
an exercise of this Option, the Company is further authorized in its discretion
to satisfy any such withholding requirement out of any cash or shares of Stock
distributable to Director upon such exercise.
5. STATUS OF STOCK. The Company intends to register for
issuance under the Securities Act of 1933, as amended (the "Act"), the shares
of Stock acquirable upon exercise of this Option, and to keep such registration
effective throughout the period this Option is exercisable. In the absence of
such effective registration or an available exemption from registration under
the Act, issuance of shares of Stock acquirable upon exercise of this Option
will be delayed until registration of such shares is effective or an exemption
from registration under the Act is available. The Company intends to use its
best efforts to ensure that no such delay will occur. In the event exemption
from registration under the Act is available upon an exercise of this Option,
Director (or the person permitted to exercise this Option in the event of
Director's death or incapacity), if requested by the Company to do so, will
execute and deliver to the Company in writing an agreement containing such
provisions as the Company may require to assure compliance with applicable
securities laws.
Director agrees that the shares of Stock which Director may acquire by
exercising this Option will not be sold or otherwise disposed of in any manner
which would constitute a violation of any applicable federal or state
securities laws. Director also agrees (i) that the certificates representing
the shares of Stock purchased under this Option may bear such legend or legends
as the Company deems appropriate in order to assure compliance with applicable
securities laws, (ii) that the Company may refuse to register the transfer of
the shares of Stock purchased under this Option on the stock transfer records
of the Company if such proposed transfer would in the opinion of counsel
satisfactory to the Company constitute a violation of any applicable securities
law and (iii) that the Company may give related instructions to its transfer
agent, if any, to stop registration of the transfer of the shares of Stock
purchased under this Option.
6. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of any successors to the Company and all persons lawfully
claiming under Director.
7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and Director has executed
this Agreement, all as of the day and year first above written.
BETTIS CORPORATION
By:
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Director
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