Exhibit 10.1
FORM OF
WAINOCO OIL CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
Agreement made effective the ____ day of __________, 199_, between Wainoco
Oil Corporation, a Wyoming corporation (the "Company"), and
("Optionee").
By affording Optionee the opportunity to purchase shares of the Common
Stock, no par value, of the Company ("Stock"), and in consideration of the
mutual agreements and other matters set forth herein, the Company and Optionee
hereby agree as follows:
1. Grant of Option. The Company hereby irrevocable grants to Optionee the
right and option (the "Option") to purchase all or any part of an aggregate of
shares of Stock, on the terms and conditions set forth herein. This Option is
not intended to qualify as an "incentive stock option" within the meaning of
Section 422A of the Internal Revenue Code of 1986, as amended (the "Code").
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 the
Option.
3. Exercise of Option. (a) The Option granted pursuant to this Agreement
may be exercised during the period beginning on the later of [the grant date]
and the date upon which registration of the shares underlying the Option becomes
effective (the "Initial Exercise Date") and ending [five years from grant date]
in whole at any time or in part from time to time, but only as to the shares as
to which the right to exercise has matured at the time of exercise. This option
will become exercisable as to the number of shares set opposite the date or
dates set forth below:
Date Number of Shares
------------------------------------------------------ ----------------
Initial Exercise Date/[First ▇▇▇. of ▇▇▇▇▇ Date] [20%]
[First ▇▇▇. of Grant Date]/[Second ▇▇▇. of ▇▇▇▇▇ Date] [40%]
[Second ▇▇▇. of Grant Date]/[Third ▇▇▇. of ▇▇▇▇▇ Date] [70%]
[Third ▇▇▇. of Grant Date] [100%]
(b) Subject to the earlier expiration of the Option as herein provided and
subject to the terms and conditions contained herein, the Option may be
exercised, by written notice (which complies in all respects with the provisions
of this Agreement) to the Company at its principal executive office addressed to
the attention of the Secretary of the Company, at any time and from time to time
beginning on the Initial Exercise Date, identifying the option and specifying
the number of shares that the Optionee decides to purchase, such exercise to be
effective at the time of receipt of such written notice at the Company's
principal executive office during normal business hours. The notice shall not
be considered to be properly given unless accompanied by all documentation
deemed appropriate by the Compensation Committee of the Board of Directors of
the Company (the "Committee") to reflect exercise of the Option and compliance
with all applicable laws, rules and regulations. The notice shall state a
requested delivery date and the denominations for the share certificate or
certificates. The Company shall use its best efforts to deliver the share
certificates within five business days.
4. Payment of Option Exercise Price. The full price per share (the
"Exercise Price") for the shares with respect to which the Option is being
exercised shall be payable to the Company at the time of exercise (giving
notice) (i) in cash or by check payable and acceptable to the Company or (ii)
subject to the approval of the Committee, by tendering to the Company shares of
Stock owned by the Optionee having an aggregate market value per share (closing
price on a publicly traded stock exchange) as of the date of exercise and tender
that is not greater than the Exercise Price for the shares with respect to which
the Option is being exercised and by paying any remaining amount of the Exercise
Price as provided in (i) above; however, the Committee may, upon confirming that
the Optionee owns the number of additional shares being tendered, authorize the
issuance of a new certificate for the number of shares being acquired pursuant
to the exercise of the Option less the number of shares being tendered upon the
exercise and return to the Optionee (or not required surrender of) the
certificate for the shares being tendered upon the exercise. Payment
instruments will be received subject to collection.
5. Non-Transferability. The Option may not be transferred by Optionee
otherwise than by will or the laws of descent and distribution.
6. Termination of Employment. (a) If the Optionee's employment with the
Company is terminated for reasons other than (i) retirement pursuant to a
retirement plan of the Company ("retirement"), (ii) permanent disability or
(iii) death, the Option shall be exercisable by him, subject to Section (3)
above, only within three months after such termination, but only to the extent
the Option was exercisable on the termination date.
(b) If, however, any termination of employment is due to retirement or
permanent disability, the Optionee shall have the right, subject to the
provisions of Section (3) above, to exercise the Option at any time within 12
months after the termination date to the extent that the Optionee was entitled
to exercise the same on the termination date. Whether any termination of
employment is due to retirement or permanent disability and whether an
authorized leave of absence or absence on military or government service or for
other reasons shall constitute a termination of employment for the purposes of
this Agreement shall be determined by the Committee.
(c) If the Optionee shall die while entitled to exercise the Option, the
Optionee's estate, personal representative or beneficiary, as the case may be,
shall have the right, subject to the provisions of Section (3) above, to
exercise the Option at any time within 12 months after the date of the
Optionee's death, to the extend that the Optionee was entitled to exercise the
same on the day of the Optionee's death.
7. Withholding of Tax. To the extent that the exercise of the Option is a
taxable event with respect to which the Company has a duty to withhold for
federal or state income tax purposes, Optionee shall pay to the Company at the
time of such exercise (or such time as the law permits if Optionee is subject to
Section 16(b)) such money as the Company may require to meet its obligation
under applicable tax laws or regulations, and, if Optionee fails to do so, the
Company is authorized to withhold from any cash remuneration then or thereafter
payable to Optionee any tax required to be withheld by reason of such resulting
compensation income or otherwise refuse to issue or transfer any shares
otherwise required to be issued pursuant to the terms hereof.
8. Securities Matters. The Option granted herein shall be subject to the
requirement that, if at any time the Board shall determine, in its discretion,
that the listing, registration or qualification of the shares subject to such
Option upon any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the issue or purchase of
shares hereunder, such Option may not be exercised in whole or in part unless
such listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not reasonably acceptable to the
Board.
9. Recapitalization or Reorganization. (a) The shares with respect to
which the Option may be exercised are shares of Stock as presently constituted.
If, and whenever, prior to the expiration of the Option, the Company shall
effect a subdivision 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 the Option may thereafter be exercised shall be
proportionately increased, and the purchase price per share under the Option
shall be proportionately reduced. If, and whenever, prior to the expiration of
the Option, the Company shall effect a consolidation of shares of Stock, the
number of shares of Stock with respect to which the Option may thereafter be
exercised shall be proportionately reduced, and the purchase price per share
under the Option shall be proportionately increased.
(b) 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 the Option or the
Exercise Price per share.
(c) If the Company effects a recapitalization or otherwise materially
changes its capital structure (both of the foregoing are herein referred to as a
"Fundamental Change"), then thereafter upon any exercise of the Option, the
Optionee shall be entitled to purchase under the Option, in lieu of the number
of shares of Stock that would have been received, the number and class of shares
of stock and securities to which the Optionee would have been entitled pursuant
to the terms of the Fundamental Change if, immediately prior to such Fundamental
Change, the Optionee had been the holder of record of the number of shares of
Stock covered by the Option.
10. Employment Relationship. For purposes of this Agreement, Optionee
shall be considered to be in the employment of the Company as long as Optionee
remains an employee of either the Company, a parent or subsidiary corporation
(as defined in Section 425 of the Code) of the company, or a corporation or a
parent or subsidiary of such corporation assuming or substituting a new
agreement for this Agreement. Any question as to whether and when there has
been a termination of such employment, for purposes of this Agreement, and the
cause of such termination, for purposes of this Agreement, shall be determined
by the Committee, and its determination shall be final. Nothing herein shall
give Optionee any right to continued employment or affect in any manner the
right of the Company or any subsidiary or parent corporation to terminate the
employment of Optionee.
11. 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
Optionee. This Agreement and all actions taken shall be governed by and
constructed in accordance with laws of the State of Texas. The Committee shall
have authority to construe the terms of this Agreement, and the Committee's
determinations shall be final and binding on Optionee and the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and Optionee has executed this Agreement as of the day and year first
above written.
WAINOCO OIL CORPORATION
By: __________________________
OPTIONEE
______________________________