EXHIBIT 10.2
Date of Grant:
Employee:
(INSITUFORM TECHNOLOGIES, INC. LOGO) SSN:
No. of Shares:
Option Price: $
2001 EMPLOYEE EQUITY INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
This option to purchase shares of Class A common stock, par value $0.01 per
share (the "Common Stock"), of Insituform Technologies, Inc. ("Insituform") is
granted to you pursuant to the 2001 Employee Equity Incentive Plan (the "Plan")
and is subject to (i) the terms and conditions in the Plan and those set forth
below; and (ii) the execution and delivery by you to Insituform of a 2005
Confidentiality, Work Product and Non-Competition Agreement (the "Non-Compete
Agreement"), the good and valuable consideration for which shall be this option,
and the receipt and sufficiency of which are hereby acknowledged. Any
capitalized, but undefined, term used in this Non-Qualified Stock Option
Agreement shall have the meaning ascribed to it in the Plan. This option is not
intended to be an incentive stock option as defined in Section 422 of the
Internal Revenue Code. Your signature below constitutes your acceptance of this
option and acknowledgement of your agreement to all the terms and conditions
contained herein, including, but not limited to, the Non-Compete Agreement. You
must return an executed copy of this Non-Qualified Stock Option Agreement and
the Non-Compete Agreement to the Director of Human Resources or such person's
designee (the "Director of Human Resources") within 30 days of the date of grant
or this Non-Qualified Stock Option Agreement shall be void.
Accepted by Employee: INSITUFORM TECHNOLOGIES, INC.
- ------------------------------ ----------------------------------------
Thomas S. Rooney, Jr., President and CEO
TERMS AND CONDITIONS
1. EXERCISABILITY. This option can be exercised only to the extent that the
shares covered by this option have become exercisable according to the schedule
below. Except as provided in paragraph 5 below, you must be employed by
Insituform or a subsidiary of Insituform (the "Company") on the commencement
date of the exercise period for the additional shares to become exercisable.
<Table>
<Caption>
Cumulative Maximum
Number of Shares
That May Be
Commencement of Exercise Period Purchased
- ------------------------------- ------------------
Date of Grant...................................
1st Year Anniversary of Date of Grant ..........
2nd Year Anniversary of Date of Grant ..........
3rd Year Anniversary of Date of Grant ..........
</Table>
2. EXERCISE IN WHOLE OR PART. To the extent this option has become exercisable,
you may purchase on any business day prior to the termination of this option all
or any part of the total shares which you are then entitled to purchase, less
any shares previously purchased; however, no fractional shares may be purchased.
3. METHOD OF EXERCISE. You may exercise this option by delivering to the
Director of Human Resources the purchase price for the shares to be purchased
along with written notice of:
o Your name and social security number;
o The number of shares to be purchased; and
o The address to which the stock certificate and notices are to
be sent.
4. PAYMENT OF PURCHASE PRICE. The purchase price for the shares purchased
pursuant to this option shall be payable at the time of purchase. The purchase
price may be paid by certified check or cashier's check payable to Insituform,
in Common Stock beneficially owned by you for at least 6 months or in any
combination of check and such Common Stock; provided, however, that no portion
of the purchase price may be paid in Common Stock if you are then subject to a
"blackout period" with respect to such Common Stock. If payment is made in
shares of such Common Stock, the sum of the check amount and the fair market
value of such Common Stock must be at least equal to the purchase price. The
fair market value of such Common Stock shall be the closing price per share of
the Common Stock as generally reported by the Nasdaq Stock Market on the
business day before the date of delivery of such Common Stock to the Director of
Human Resources.
5. TERM OF OPTION. To the extent this option has become exercisable, it may be
exercised by you at any time during the 7-year period beginning on the date of
grant as long as you are an employee of the Company, subject to the special
provisions below. To the extent this option remains unexercised at the end of
such 7-year period, your right to purchase shares pursuant to this option will
terminate. To the extent unexercised, this option will terminate before the end
of such 7-year period as follows (in no event will any of the following extend
this option beyond a 7-year term):
(a) If you retire from the Company after you attain age 55 ("retire" means
voluntarily terminating your employment and not working more than 1,000 hours a
year), this option will terminate 5 years after your retirement, except that, if
you take any action constituting cause (as defined below) after your retirement,
this option will terminate immediately;
(b) If the Company terminates your employment at any time other than for "cause"
(as defined below) or disability (pursuant to the terms of any employee
disability benefit plan maintained by the Company), or if you terminate your
employment voluntarily, this option will terminate 60 days after such
termination of employment;
(c) If your employment is terminated as a result of your disability (pursuant to
the terms of any employee disability benefit plan maintained by the Company),
this option will terminate 90 days after such termination of employment;
(d) If your employment is terminated by your death, this option will terminate 1
year following your death; and
(e) In the event of your death during a period in which this option remains
exercisable in accordance with subparagraph (a), (b) or (c) above, this option
will terminate 1 year following your death.
If this option is terminated in accordance with subparagraph (a) or (b) above,
you may exercise this option prior to its termination only to the extent it has
become exercisable prior to the date your employment terminated. If this option
is terminated in accordance with subparagraph (c) or (d) above, this option will
be exercisable in full prior to its termination. If this option is terminated in
accordance with subparagraph (e) above, this option will be exercisable prior to
its termination to the same extent that it was exercisable by you prior to your
death.
IF YOUR EMPLOYMENT IS TERMINATED OTHER THAN AS DESCRIBED IN SUBPARAGRAPH (a),
(b), (c) OR (d) ABOVE, YOUR RIGHT TO PURCHASE SHARES PURSUANT TO THIS OPTION
WILL TERMINATE IMMEDIATELY.
For purposes of this option, "cause" shall mean any of:
(i) breaching any employment, confidentiality, noncompete, nonsolicitation
or other agreement with the Company, any written Company policy
relating to compliance with laws (during employment) or any general
undertaking or legal obligation to the Company;
(ii) causing, inducing, requesting or advising, or attempting to cause,
induce, request or advise, any employee, representative, consultant or
other similar person to terminate his/her relationship, or breach any
agreement, with the Company;
(iii) causing, inducing, requesting or advising, or attempting to cause,
induce, request or advise, any customer, supplier or other Company
business contact to withdraw, curtail or cancel their business with the
Company; or
(iv) failure or refusal to perform any stated duty or assignment,
misconduct, disloyalty, violation of any Company policy or work rule,
engaging in criminal conduct in connection with your employment, being
indicted or charged with any crime constituting a felony or involving
dishonesty or moral turpitude, violation of any term in this
Non-Qualified Stock Option Agreement, unsatisfactory job performance,
or any other reason constituting cause within the meaning of Missouri
common law.
6. CHANGE IN CONTROL. Notwithstanding the provisions of paragraph 5 above, all
of the shares covered by this option shall become immediately exercisable upon a
Change in Control.
For purposes of this Non-Qualified Stock Option Agreement, a "Change in Control"
shall mean:
(a) the acquisition by any "person" or "group" (as defined pursuant to Section
13(d) under the Securities Exchange Act of 1934) of "beneficial ownership" (as
defined in Rule 13d-3 under said Act) of in excess of 30% of the combined voting
power of the outstanding voting securities (the "Voting Securities") of
Insituform entitled to vote generally in the election of directors; and/or
(b) the replacement of 50% or more of the members of Insituform's Board of
Directors (excluding, for purposes of such calculation, the Chairman of the
Board) over a 1-year period from the directors who constituted such Board at the
beginning of such period, where such replacement shall not have been approved by
a vote including at least a majority of the directors who were members of the
Board at the beginning of such 1-year period or whose election as members of the
Board was previously so approved; and/or
(c) consummation of a merger, statutory share exchange or consolidation
involving Insituform or sale or other disposition of all or substantially all of
the assets of Insituform, unless following such transaction: (i) all or
substantially all of the individuals and entities who were the "beneficial
owners" (as hereinabove defined), respectively, of the outstanding Voting
Securities immediately prior to such transaction "beneficially owned," directly
or indirectly, more than 30% of the combined voting power of the then
outstanding Voting Securities of the corporation resulting from such transaction
in substantially the same proportion as their ownership immediately prior to
such transaction of
the outstanding Voting Securities of Insituform, (ii) no "person" or "group"
(as hereinabove defined) "beneficially owns," directly or indirectly, 30% or
more of the combined voting power of the then outstanding Voting Securities of
such corporation except to the extent that such ownership existed prior to such
transaction and (iii) at least a majority of the members of the board of
directors resulting from such transaction were members of Insituform's Board of
Directors immediately prior to such transaction or were nominated by at least a
majority of the members of Insituform's Board of Directors at the time of the
execution of the initial agreement for such transaction, or by the action of
Insituform's Board of Directors providing for such transaction; and/or
(d) approval by the stockholders of Insituform of a complete liquidation or
dissolution of Insituform.
7. TAXES. The Plan Administrator may withhold delivery of certificates for
purchased shares until you make satisfactory arrangements to pay any
withholding, transfer or other taxes due as a result of your exercise of this
option. You are responsible for all taxes applicable to any income realized upon
the exercise of this option.
8. SECURITIES LAWS. This option shall not be exercisable if such exercise would
violate any federal or state securities law. Insituform may take any appropriate
action to achieve compliance with those laws in connection with any exercise of
this option or your resale of the Common Stock.
9. TRANSFERABILITY. Except as otherwise specifically approved by the Plan
Administrator, this option is not transferable other than by will or the laws of
descent and distribution and is exercisable only by you or your guardian or
legal representative. You may designate a beneficiary(ies) to exercise your
rights under this option in the event of your death. Such designation must be on
a form approved by the Director of Human Resources and will be effective upon
receipt thereof by the Director of Human Resources while you are alive. Any
designation form so delivered will revoke all prior designations.
10. ADJUSTMENTS. The Plan Administrator may make such adjustments in the option
price and in the number or kind of shares of Common Stock covered by this option
as may be required to prevent dilution or enlargement of your rights that would
otherwise result from any stock split, stock dividend, reorganization,
recapitalization, sale, consolidation, issuance of stock rights or warrants or
any similar event.
11. INTERPRETATIONS BINDING. Plan Administrator interpretations and
determinations are binding and conclusive.
12. NO OWNERSHIP INTERESTS. You will not, by reason of holding this option, have
any right to vote or to receive dividends or other distributions, or have any
other rights of a stockholder, with respect to the shares of Common Stock
covered by this option.
13. NO RIGHT TO CONTINUE AS AN EMPLOYEE; NO RIGHT TO FURTHER OPTION GRANTS. This
option does not give you any right to continue as an employee of the Company for
any period of time or at any rate of compensation, nor does it interfere with
the Company's right to determine the terms of your employment. An option grant
is within the discretion of the Plan Administrator, and does not entitle you to
any further option grants.
14. TERMINATION FOR CAUSE. If your employment is terminated for cause (as
defined above), or if you engage in any activity constituting cause (as defined
above) during the 2-year period following termination of employment, in addition
to any other legal or equitable remedies, all of which are expressly reserved:
(i) Insituform shall have the right to purchase from you any and all Common
Stock acquired pursuant to this option after the date 2 years prior to your
termination and then owned by you for a purchase price per share equal to the
option price set forth above, and (ii) you shall be required to pay to
Insituform, upon demand, an amount equal to the profit you realized on the sale
of any Common Stock acquired pursuant to this option after the date 2 years
prior to your termination and sold by you at any time (such profit per share
being equal to the excess, if any, of the sale price per share over the option
price set forth above).