WORLD AIR HOLDINGS, INC. AMENDED & RESTATED 1995 STOCK INCENTIVE PLAN DIRECTOR STOCK OPTION AGREEMENT
Exhibit
10.2
THIS AGREEMENT is made as of the ___ day of , 200___ (the “Grant Date”) by and
between World Air Holdings, Inc., a Delaware corporation (the “Company”), and
(“Optionee”).
WITNESSETH:
RECITALS
A. Optionee has been granted an Option under the World Air Holdings, Inc. Amended and
Restated 1995 Stock Incentive Plan (the “Plan”) to purchase shares of the Company’s common stock.
Capitalized terms used herein and not otherwise defined herein have the same meaning as the terms
used in the Plan.
B. The Option granted to Optionee is not intended to be an incentive stock option under
Section 422 of the Internal Revenue Code.
NOW, THEREFORE, it is hereby agreed as follows:
1. Grant of Option. Subject to the terms and conditions set forth in this Agreement
and the Plan, the Company hereby grants to Optionee, as of the Grant Date, a Nonqualified Stock
Option (the “Option”) to purchase up to shares of the Company’s common stock, $0.001 par
value (the “Option Shares”) from time to time during the term of the Option at an exercise price of
$ per share (“Exercise Price”).
2. Option Term. The Option will expire at the close of business on
(the “Expiration Date”), unless sooner terminated in accordance with the provisions of this
Agreement or the Plan.
3. Option Nontransferable. The Option is not transferable or assignable by Optionee
other than by will or by the laws of descent and distribution; during the lifetime of Optionee, the
Option shall be exercisable only by Optionee.
4. Dates of Exercise. So long as Optionee continues to serve as a member of the
Board of Directors of World Air Holdings, Inc. (the “Board”), the Option shall be exercisable as to
the Option Shares within the specified term of the Option and pursuant to the provisions of this
Agreement. Option Shares shall become exercisable in installments, as follows:
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Notwithstanding the forgoing provisions of this Section 4, in the event (i) the Optionee
ceases to serve on the Board due to death or disability (as defined in Section 5 below); or (ii) of
the occurrence of any Change of Control following the Grant Date but prior
to the date the Optionee ceases to serve upon the Board (or upon the Board of a successor of
the Company immediately following a transaction of the type described in either Section 17(c)(i) or
Section 17(c)(ii)), any previously unvested Option Shares shall become immediately vested.
5. Termination of Board Membership. Should Optionee cease for any reason (including
death or disability) to be a member of the Board, the Option may, subject to the provisions of
Section 4 hereof, be exercised (to the extent the Option was exercisable by Optionee at the time of
the termination of his Board membership) at any time within one (1) year after the termination of
his Board membership; provided, however, in no event shall the Option be exercisable after the
Expiration Date. The term “disability” means a physical or mental illness that will prevent
Optionee from doing substantial gainful work for at least twelve (12) months or is likely to result
in death. If Optionee became entitled to Social Security benefits payable on account of
disability, he will be conclusively deemed to be disabled for purposes of this Agreement.
6. Privilege of Stock Ownership. The holder of the Option will have none of the
rights of a shareholder with respect to the option Shares until such individual has exercised the
option and has been issued a stock certificate for the Option Shares.
7. Manner of Exercising Option. In order to exercise the Option with respect to all
or any part of the Option Shares for which the Option is at the time exercisable, Optionee (or in
the case of exercise after Optionee’s death, Optionee’s executor, administrator, heir or legatee,
as the case may be) must take the following actions.
(a) Provide the Company written notice of such exercise in accordance with Section 14 hereof,
specifying the number of Option Shares with respect to which the Option is being exercised;
(b) Pay the aggregate exercise price for the purchased shares in one or more of the following
alternative forms: (i) full payment, in cash or by check payable to the Company’s order, in the
amount of the exercise price for the Option Shares being purchased; (ii) full payment in shares of
Common Stock (held for at least six months if acquired pursuant to an option) and having a Fair
Market Value on the day of exercise (as determined under the terms of the Plan) equal to the
exercise price for the Option Shares being purchased; (iii) a combination of such shares of Common
Stock and cash or check payable to the Company’s order, equal in the aggregate to the exercise
price for the Option Shares being purchased; or (iv) delivery of a properly executed exercise
notice together with irrevocable instructions to a broker to promptly deliver to the Company the
amount of sale or loan proceeds to pay the exercise price; and
(c) Furnish the Company with appropriate documentation that the person (or persons)
exercising the Option, if other than Optionee, has the right to exercise the Option.
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8. Compliance with Laws and Regulations.
(a) The exercise of the Option and the issuance of Option Shares upon such exercise is
subject to compliance by the Company and Optionee with all applicable requirements of law relating
thereto and with all applicable regulations of any stock exchange on which shares of the Company’s
common stock may be listed at the time of such exercise and issuance.
(b) In connection with the exercise of the Option, Optionee will execute and deliver to the
Company such representations in writing as may be requested by the Company so that it may comply
with the applicable requirements of federal and state securities laws.
9. Liability of the Company.
(a) If the Option Shares exceed, as of the Grant Date, the number of shares that may without
shareholder approval be issued under the Plan, then this Option will be void with respect to such
excess shares unless shareholder approval of an amendment sufficiently increasing the number of
shares issuable under the Plan is obtained in accordance with the provisions of the Plan.
(b) The inability of the Company to obtain approval from any regulatory body having authority
deemed by the Company to be necessary to the lawful issuance and sale of any common stock pursuant
to the Option will relieve the Company of any liability with respect to the non-issuance or sale of
the common stock as to which such approval is not obtained.
10. No Right to Remain on Board. Nothing in this Agreement or in the Plan confers
upon the Optionee any right to continued membership on the Board.
11. Other Restrictions. Upon any exercise of the Option, the Committee may require
Optionee to represent to and agree with the Company in writing that the shares are being acquired
without a view to distribution thereof. The certificates for such shares may include any legend
which the Committee deems appropriate to reflect any restrictions on transfer determined by the
Committee to be necessary or appropriate under applicable securities laws.
All certificates for shares of common stock delivered pursuant to exercise of the Option shall
be subject to such stock-transfer orders and other restrictions as the Committee may deem advisable
under the rules, regulations, and other requirements of the Securities and Exchange Commission, any
stock exchange upon which the common stock is then listed, and any applicable federal or state
securities law, and the Committee may cause a legend or legends to be put on any such certificate
to make appropriate reference to such restrictions.
12. Definitions. Capitalized terms not otherwise defined herein shall have the
meaning ascribed to such terms in the Plan.
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13. Headings. The headings of Sections herein are included solely for convenience of
reference and shall not affect the meaning or interpretation of any of the provisions of this
Agreement.
14. Notices. Any notice required to be given or delivered to the Company under the terms of
this Agreement will be in writing and addressed to the Company in care of its Secretary at HLH
Building, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. Any notice required to be given or
delivered to Optionee will be in writing and addressed to Optionee at the address indicated below
Optionee’s signature line on this Agreement. All notices will be deemed to have been given or
delivered upon personal delivery or upon deposit in the U.S., mail, postage prepaid and properly
addressed to the party to be notified.
15. Construction. This Agreement and the Option evidenced hereby are made and granted
pursuant to the Plan and are in all respects limited by and subject to the express terms and
provisions of the Plan. All decisions of the Committee with respect to any question or issue
arising under the Plan or this Agreement will be conclusive and binding on all persons having an
interest in the Option.
16. Governing Law. The interpretation, performance, and enforcement of this
Agreement will be governed by the laws of the State of Georgia.
17. Definition of Change in Control. For purposes of this Agreement, the term
“Change of Control” shall mean the occurrence of any one or more of the following events:
(a) any Person, other than the Company, is or becomes the Beneficial Owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), directly or
indirectly, of securities of the Company representing more than 50% of the combined voting power of
the Company’s then outstanding securities; or
(b) during any period of two (2) consecutive years (not including any period prior to the
Grant Date), individuals who at the beginning of such period constitute the Board of Directors of
the Company and any new director (other than a director designated by a Person who has entered into
an agreement with the Company to effect a transaction described in Subsections (a), (c) or (d) of
this Section 17) whose election by the Board of Directors of the Company or nomination for election
by the stockholders of the Company was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any reason to constitute
a majority of the Board of Directors of the Company (or of a successor of the Company immediately
following a transaction of the type described in clauses (i) or (ii) of Subsection 17(c) below); or
(c) the shareholders of the Company approve a merger or consolidation of the Company with any
other corporation, other than (i) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or being converted into voting securities of the surviving entity), in
combination with the ownership of any trustee or other
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fiduciary holding securities under an employee benefit plan of the Company or any of its
affiliates, at least 50% of the combined voting power of the voting securities of the Company or of
such surviving entity outstanding immediately after such merger or consolidation, or (ii) a merger
or consolidation effected to implement a recapitalization of the Company (or similar transaction)
in which no Person acquires more than 50% of the combined voting power of the Company’s then
outstanding securities; or
(d) the shareholders of the Company approve a plan of complete liquidation of the Company or
an agreement for the sale or disposition by the Company of all or substantially all of the
Company’s assets.
For purposes of this Section 17, the term “Person” shall have the meaning given in Section
(3)(a)(9) of the Exchange Act, as modified and used in Section 13(d) and 14(d) thereof; however, a
Person shall not include (i) World Air Holdings, Inc. or any of their subsidiaries or affiliates;
(ii) a trustee or other fiduciary holding securities under an employee benefit plan of World Air
Holdings, Inc. or any of their subsidiaries; (iii) an underwriter temporarily holding securities of
the Company pursuant to an offering of such securities; or (iv) a corporation owned, directly or
indirectly, by the stockholders of World Air Holdings, Inc. in substantially the same proportions
as their ownership of stock of World Air Holdings, Inc.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in duplicate on its
behalf by its duly authorized officer and Optionee has also executed this Agreement in duplicate,
all as of the day and year indicated above.
| WORLD AIR HOLDINGS, INC. |
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| By: | ||||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| President and CEO | ||||
| OPTIONEE: |
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