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EXHIBIT 10.2
STOCK OPTION PLAN
OF
GMX RESOURCES INC
(EFFECTIVE OCTOBER 30, 2000)
1. PURPOSE OF THE PLAN
This Stock Option Plan (the "Plan") is intended as an incentive to
managerial and other key employees of GMX RESOURCES INC. (the "Company"), and
its subsidiaries. Its purposes are to retain employees with a high degree of
training, experience, and ability, to attract new employees whose services
are considered unusually valuable, to encourage the sense of proprietorship
of such persons, and to stimulate the active interest of such persons in the
development and financial success of the Company. Options granted under the
Plan may be either "incentive stock options" as provided by Section 422 of
the Internal Revenue Code of 1986, as amended, and as may be further amended
from time to time ( the "Internal Revenue Code" or "Code") or options which
do not qualify as incentive stock options.
2. ADMINISTRATION OF THE PLAN
(a) ADMINISTRATION. The Plan shall be administered by the Board of
Directors of the Company, or if the Board so authorizes, by a committee (the
"Committee") of the Board of Directors consisting of not less than two (2)
members of the Board of Directors. Unless the context otherwise requires,
references herein to the Committee shall be references to the Board of
Directors or the Committee. Members of the Committee shall serve at the
pleasure of the Board, and the Board may from time to time remove members
from, or add members to, the Committee. A majority of the members of the
Committee shall constitute a quorum for the transaction of business. Action
approved in writing by a majority of the members of the Committee then
serving shall be fully effective as if the action had been taken by unanimous
vote at a meeting duly called and held.
(b) AUTHORITY. The Committee is authorized to construe and interpret
the Plan, to promulgate, amend and rescind rules and regulations relating to
the implementation of the Plan and to make all other determinations necessary
or advisable for the administration of the Plan. The Committee may designate
persons other than members of the Committee to carry out its responsibilities
under such conditions and limitations as it may prescribe, except that the
Committee may not delegate its authority with regard to selection for
participation of, and the granting of options to, persons subject to Sections
16(a) and 16(b) of the Exchange Act. Any determination, decision or action of
the Committee in connection with the construction, interpretation,
administration, or application of the Plan shall be final, conclusive and
binding upon all persons participating in the Plan and any person validly
claiming under or through persons participating in the Plan. The Company
shall effect the granting of options under the Plan in accordance with the
determinations made by the Committee, by execution of instruments in writing
in such form as approved by the Committee.
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3. DESIGNATION OF PARTICIPANTS
Persons eligible for options under the Plan shall consist of
managerial and other key employees of the Company and/or its subsidiaries who
hold positions of significant responsibilities or whose performance or
potential contribution, in the sole judgment of the Committee, will benefit
the future success of the Company. In addition, all Non-employee Directors of
the Company shall be eligible for options under the plan in accordance solely
with the provisions of Section 7 hereof.
4. SHARES SUBJECT TO THE PLAN
Subject to adjustment as provided in Paragraph 9 hereof, there shall
be subject to the Plan three hundred thousand (300,000) shares of common
stock subject of the Company, par value $0.01 per share. The shares subject
to the Plan shall consist of authorized but unissued shares or treasury
shares held by the Company. Any of such shares that may remain unsold and
that 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 expire or be canceled
prior to its exercise in full, or a portion of an option is surrendered in
payment for the exercise of an option or satisfaction of any tax withholding
obligations, the shares theretofore subject to such options may again be
subjected to an option under the Plan. Any shares not subject to outstanding
options at the expiration of the Plan or at any time during the life of the
Plan may be dedicated to other plans that the Company may adopt and to the
extent so dedicated, such shares shall not be subject to this Plan.
5. OPTION PRICE
(a) PRICE. The purchase price for each share placed under option
pursuant to the Plan shall be determined by the Committee, but shall in no
event be less than 100% of the Fair Market Value (as defined below) of such
share on the date the option is granted.
(b) FAIR MARKET VALUE. "Fair Market Value" means the average of the
high and low sales prices of the shares of Common Stock on any national
securities exchange on which the shares are listed on the day on which such
value is to be determined or, if no shares were traded on such day, on the
next preceding day on which shares were traded, as reported by such exchange,
by National Quotation Bureau, Inc. or other national quotation service. If
the Common Stock is not listed on a national securities exchange, Fair Market
Value means the average of the closing "bid" and "asked" prices of the shares
of Common Stock in the over-the-counter market on the date on which such
value is to be determined or, if such prices are not available, the last
sales price on such day or, if no shares were traded on such day, on the next
preceding day on which the shares were traded, as reported by the National
Association of Securities Dealers Automatic Quotation System (NASDAQ) or
other national quotation service. If at any time shares of Common Stock are
not traded on an exchange or in the over-the-counter market, Fair Market
Value shall be the value determined by the Committee, taking into
consideration those factors affecting or reflecting value that they deem
appropriate. For
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purposes of determining the purchase price of an incentive stock option, Fair
Market Value shall in any event be determined in accordance with Section 422
of the Code.
6. TERMS AND EXERCISE OF OPTIONS
(a) GENERAL. The Committee, in granting options hereunder, shall
have discretion to determine the times when, and the terms upon which,
options shall be exercisable, including such provisions as deemed advisable
to permit qualification as "incentive stock options" within the meaning of
Section 422 of the Internal Revenue Code, as the same may from time to time
be amended for options intended to qualify as such, and incentive stock
options outstanding under the Plan may be amended, if necessary, to permit
such qualification. The Committee shall designate at the time of granting of
any option whether such option or any portion thereof shall be an "incentive
stock option." Each option shall be evidenced by an agreement between the
Company and the optionee containing provisions consistent with this Plan and
such other provisions as the Committee may determine as provided herein.
Unless otherwise determined by the Committee at the time of grant, all
options shall become exercisable at the rate of 25% of the total shares
subject to the option on each of the first four (4) anniversary dates of the
date of grant. The Committee shall also be entitled to accelerate the date
any outstanding option becomes exercisable at any time.
(b) TERM. In the event of the death of an optionee while in the
employ of the Company, any unvested portion of the option as of the date of
death shall be vested as of the date of death and the option shall be
exercisable in full by the heirs or other legal representatives of the
optionee within twelve (12) months following the date of death. In the event
of termination of employment for any reason other than death or termination
for cause (and except as otherwise provided in subsection (e) below) such
option shall be exercisable by the employee or his legal representative
within three (3) months of the date of termination as to all then vested
portions. In addition, the Committee may in its sole discretion, approve
acceleration of the vesting of any unvested portions of the option. If an
optionee's employment with the Company is terminated for cause, the option
shall terminate as of the date of such termination of employment and the
optionee shall have no further rights to exercise any portion of the option.
"Termination for cause" means any discharge for violation of the policies and
procedures of the Company or for other job performance or conduct that is
detrimental to the best interests of the Company, as determined by the
Committee in its sole discretion. Notwithstanding any of the foregoing, in no
event may an option be exercised more than ten (10) years after the date of
its grant.
(c) METHOD OF EXERCISE. Options may be exercised, whether
in whole or in part, by written notification to the Company accompanied by
cash or a certified check for the aggregate purchase price of the number of
shares being purchased, or upon exercise of an option, the optionee shall be
entitled (unless otherwise provided in the agreement evidencing the option),
without the requirement of further approval or other action by the Committee,
to pay for the shares (i) by tendering stock of the Company that has been
owned by the optionee for at least six (6) months with such stock to be
valued at the Fair Market Value (as determined under Section 5) on the date
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immediately preceding the date of exercise or (ii) with a combination of cash
and stock that has been owned by the optionee for at least six (6) months as
provided above.
In addition, upon exercise of an option, the optionee may, with the
prior approval of the Committee, pay for the shares (a) by tendering stock of
the Company already owned by the optionee but that has NOT been held by the
optionee for at least six (6) months with such stock to be valued at the Fair
Market Value (as determined under Section 5) on the date immediately
preceding the date of exercise, (b) surrendering a portion of the option with
such surrendered option to be valued based on the difference between the Fair
Market Value (as determined under Section 5) of the shares surrendered on the
date immediately preceding the date of exercise and the aggregate option
purchase price of the shares surrendered ("Surrender Value"), or (c) with a
combination of cash, stock of the Company that has NOT been held by the
optionee for at least six (6) months or surrender of options.
The Committee may also permit optionees, either on a selective or
aggregate basis, to simultaneously exercise options and sell the shares of
common stock thereby acquired, pursuant to a brokerage or similar
arrangement, approved in advanced by the Committee, and use the proceeds from
such sale as payment of the purchase price of the shares being acquired upon
exercise of any option.
(d) LIMITATIONS APPLICABLE TO INCENTIVE OPTIONS. To the extent the
aggregate Fair Market Value of stock (determined as of the date of grant)
with respect to which incentive stock options are exercisable for the first
time by any individual during any calendar year (under all Company plans)
exceeds one hundred thousand dollars ($100,000), such options shall be
treated as options that are not incentive stock options. Options intended to
be incentive options shall have such additional terms and provisions as
required by the Internal Revenue Code.
(e) CONTINUED SERVICE AS A DIRECTOR. Any provisions of the Plan to
the contrary notwithstanding, for purposes of Section 6(b) above, in the
event an optionee who is also a director of the Company ceases to be employed
by the Company but continues to serve as a director of the Company, the
Committee, in its sole discretion, may determine that all or a portion of
such optionee's options shall not expire three (3) months following the date
of termination of employment with the Company as is provided in Section 6(b)
above, but instead shall continue in full force and effect until the such
optionee ceases to be a director of the Company, but in no event beyond the
stated expiration date of the options as set forth in the applicable option
agreement. Termination of any such option in connection with the optionee's
termination of service as a director shall be in accordance with the
provisions of Section 6(b) above; PROVIDED, however, that (i) the terms
"employ" and "employment" as used therein shall be replaced with the terms
"service" and "service on the Board of Directors," respectively, and (ii) the
phrase "termination for cause" shall mean any removal from the Board of
Directors for cause in accordance with applicable law and the Certificate of
Incorporation and ByLaws of the Company.
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(f) INDIVIDUAL LIMITATION. Subject to adjustment from time to time,
as provided in Section 9, not more than 100,000 shares of common stock of the
Company may be made subject to Options under the Plan to any individual in
the aggregate in any one (1) calendar year, such limitations to be applied in
a manner consistent with the requirements of, and only to the extent required
for compliance with, the exclusion from the limitation or deductibility of
compensation under Section 162(m) of the Code.
1. NON-EMPLOYEE DIRECTOR OPTIONS
Notwithstanding anything elsewhere in the Plan to the contrary, each
person who is a member of the Board of Directors of the Company but who is
not an employee of the Company (a "Non-employee Director") shall be eligible
for grants of stock options under the Plan solely in accordance with the
provisions of this Section 7. The following provisions of this Section 7
shall apply to the granting of stock options to Non-employee Directors:
(a) EXERCISE PRICE. The purchase price for each share placed under
an option for a Non-employee Director shall be equal to 100% of the Fair
Market Value of such share on the date the option is granted.
(b) VESTING AND TERM. Unless otherwise determined by the Committee
at the time of grant, all options shall become exercisable at the rate of 25%
of the total shares subject to the option on each of the first four (4)
anniversary dates of the date of grant. The Committee shall also be entitled
to accelerate the date any outstanding option becomes exercisable at any
time. The period during which a Non-employee Director option may be exercised
shall be ten (10) years from the date of grant, subject to earlier
termination in accordance with the provisions of Section 6(b) hereof;
PROVIDED, HOWEVER that (i) the terms "employ" and "employment" as used
therein shall be replaced with the terms "service" and "service on the Board
of Directors," respectively, and (ii) the phrase "termination for cause"
shall mean any removal from the Board of Directors for cause in accordance
with applicable law and the Certificate of Incorporation and By-Laws of the
Company.
(c) METHOD OF EXERCISE. Options granted to Non-employee Directors
may be exercised in the manner provided in Section 6(c) hereof.
(d) OTHER PROVISIONS. All options granted to Non-employee Directors
shall be subject to the other provisions of general applicability to options
granted under the Plan, including without limitation, the provisions of
Section 8 ("Assignability"), Section 9 ("Changes in Capitalization") and
Section 10 ("Change in Control") hereof.
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8. ASSIGNABILITY
During an optionee's lifetime, an option may be exercisable only by
the optionee and options granted under the Plan and the rights and privileges
conferred thereby shall not be subject to execution, attachment or similar
process and may not be transferred, assigned, pledged or hypothecated in any
manner (whether by operation of law or otherwise) other than by will or by
the applicable laws of descent and distribution. Notwithstanding the
foregoing or any other provisions of the Plan, to the extent permitted by
applicable law, the Committee may, in its sole discretion, permit recipients
of options that do not qualify as incentive stock options under Section 422
of the Internal Revenue Code to transfer such non-incentive options by gift
or other means pursuant to which no consideration is given for such transfer.
The Committee shall impose in connection with any non-incentive options
transferred pursuant to the foregoing sentence such limitations and
restrictions as it deems appropriate. Any other attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of any option under the Plan or of
any right or privilege conferred thereby, contrary to the provisions of the
Plan, or the sale or levy or any attachment or similar process upon the
rights and privileges conferred thereby, shall be null and void ab initio.
9. CHANGES IN CAPITALIZATION
(a) NO EFFECT ON COMPANY RIGHTS. Subject to the other provisions of
this Plan, the existence of the Plan and the options granted hereunder shall
not affect or restrict in any way the right or power of the Board or the
shareholders 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 bonds, debentures, preferred or prior preference stocks ahead of or
affecting the Company's capital stock or the rights thereof, any issue of
shares of Common Stock or shares of any other class of capital stock or
warrants or rights to acquire such shares, the dissolution or liquidation of
the Company or any sale or transfer of all or any part of its assets or
business, or any other corporate act or proceeding.
(b) CHANGES IN CAPITALIZATION. In the event of any change in
capitalization affecting the common stock of the Company, such as a stock
dividend, stock split, recapitalization, merger, consolidation, split-up,
combination or exchange of shares or other form of reorganization,
liquidation, sale of assets or any other change affecting the common stock
("Change in Capitalization"), such proportionate adjustments, shall be made
with respect to the aggregate number of shares of common stock for which
options may be granted under the Plan, the number of shares of common stock
(or other securities) covered by each outstanding option, and the price per
share of outstanding options to the end that the optionee shall be entitled
to receive the same number and kind of stock, securities, cash, property or
other consideration as if such option had been exercised immediately
preceding such Change in Capitalization.
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(c) OTHER DISTRIBUTIONS. The Committee may also make such
adjustments in the number of shares covered by, and the price or other value
of any outstanding options in the event of a spin-off or other distribution
(other than normal cash dividends) of Company assets to shareholders.
10. CHANGE IN CONTROL
(a) EFFECT ON OPTIONS. In the event of a Change in Control (as defined
below) of the Company, in addition to any adjustments required by Section 9(b):
(i) all options outstanding on the date of such Change
in Control shall become immediately and fully exercisable, and
(ii) an optionee will be permitted to surrender for
cancellation within sixty (60) days after such Change in Control, any
option or portion of such option to the extent not yet exercised and
the optionee will be entitled to receive a cash payment in an amount
equal to the excess, if any, of (A) the Fair Market Value on the date
preceding the date of surrender, of the shares subject to the option or
portion thereof surrendered, over (B) the aggregate exercise price for
the shares under the option or portion thereof surrendered.
(b) CHANGE IN CONTROL. A "Change in Control" of the Company shall mean
the occurrence after the effective date of the Plan of:
(i) An acquisition (other than directly from the Company) of
any voting securities of the Company (the "Voting Securities") by any
"Person" (as the term person is used for purposes of Section 13(d) or
14(d) of the Exchange Act) immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of fifty percent (50%) or more of the combined
voting power of the Company's then outstanding Voting Securities;
(ii) The individuals who, as of the date of adoption of the
Plan by the Board, are members of the Board (the "Incumbent Board"),
cease for any reason to constitute at least two-thirds of the members
of the Board; provided, however, that if the election, or nomination
for election by the Company's common stockholders, of any new director
was approved by a vote of at least two-thirds of the Incumbent Board,
such new director shall, for purposes of this Plan, be considered as a
member of the Incumbent Board; provided further, however, that no
individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened 'election contest' (as described in Rule 14A-11 promulgated
under the Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board (a
"Proxy Contest") including by reason of any agreement intended to avoid
or settle any Election Contest or Proxy Contest; or
(iii) The consummation of:
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(A) A merger, consolidation or reorganization
involving the Company, unless
(1) the stockholders of the Company,
immediately before such merger, consolidation or
reorganization, own, directly or indirectly
immediately following such merger, consolidation or
reorganization, at least sixty percent (60%) of the
combined voting power of the outstanding voting
securities of the corporation resulting from such
merger or consolidation or reorganization (the
"Surviving Corporation") in substantially the same
proportion as their ownership of the Voting
Securities immediately before such merger,
consolidation or reorganization,
(2) the individuals who were members of the
Incumbent Board immediately prior to the execution of
the agreement providing for such merger,
consolidation or reorganization constitute at least
two-thirds of the members of the board of directors
of the Surviving Corporation, and
(3) no Person, other than the Company, any
Subsidiary, any employee benefit plan (or any trust
forming a part thereof) maintained by the Company,
the Surviving Corporation, or any Subsidiary or any
Person who, immediately prior to such merger,
consolidation or reorganization had Beneficial
Ownership of fifty percent (50%) or more of the then
outstanding Voting Securities, has Beneficial
Ownership of fifty percent (50%) or more of the
combined voting power of the Surviving Corporation's
then outstanding voting securities;
(B) A complete liquidation or dissolution of the
Company; or
(C) An agreement for the sale or other disposition of
all or substantially all of the assets of the Company to any
Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the outstanding
Voting Securities as a result of the acquisition of Voting Securities by the
Company that, by reducing the number of Voting Securities outstanding,
increases the proportional number of shares Beneficially Owned by the Subject
Person, provided that if a Change in Control would occur (but for the
operation of this sentence) as a result of the acquisition of Voting
Securities by the Company, and after such share acquisition by the Company,
the Subject Person becomes the Beneficial Owner of any additional Voting
Securities which increases the percentage of the then outstanding Voting
Securities Beneficially Owned by the Subject Person, then a Change in Control
shall occur.
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11. REGISTRATION AND LISTING
The Company from time to time shall take such steps as may be
necessary to cause the issuance of shares upon the exercise of options
granted under the Plan to be registered under the Securities Act of 1933, as
amended, and such other federal or state securities laws as may be
applicable. The Company shall also from time to time take such steps as may
be necessary to list the shares issuable upon exercise of options granted
under the Plan for trading on such stock exchanges on which the Company's
then outstanding shares are admitted to listed trading.
12. EFFECTIVE AND EXPIRATION DATES OF PLAN
This Plan became effective as of October 30, 2000, the date of its
approval by the Board of Directors and the Shareholders of the Company. No
options shall be granted pursuant to this Plan after October 30, 2010, except
with respect to awards then outstanding.
13. AMENDMENTS OR TERMINATION
The Committee may at any time amend, alter or discontinue the Plan
in such manner as it may deem advisable. Any such amendment or alteration may
be effected without the approval of the shareholders of the Company, except
to the extent such approval may be required by applicable laws or by the
rules of any securities exchange upon which the Company's outstanding shares
are admitted to listed trading.
No amendment, alteration or discontinuation of the Plan shall
adversely affect any stock option grants made prior to the time of such
amendment, alteration or discontinuation, except with the consent of the
holder of the affected options.
14. GOVERNMENTAL REGULATIONS
Notwithstanding any provision hereof, or any option granted
hereunder, the obligation of the Company to sell and deliver shares under any
such option shall be subject to all applicable laws, rules and regulations
and to such approvals by any governmental agencies or national securities
exchange as may be required, and the optionee shall agree that he will not
exercise any option granted hereunder, and that the Company will not be
obligated to issue any shares under any such option, if the exercise thereof
or if the issuance of such shares shall constitute a violation by the
optionee or the Company of any applicable law or regulation. The Company
shall be entitled to require as a condition to the issuance of any shares of
Common Stock upon exercise of an option that the optionee remit an amount
sufficient, in the Company's opinion, to satisfy all FICA, federal, state or
other withholding tax requirements related thereto. Unless otherwise provided
in the Agreement evidencing the option, an optionee shall be entitled,
without the requirement of further approval or other action by the Committee,
to satisfy such obligation in whole or in part (i) by tendering stock of the
Company already owned by the optionee with such stock to be valued at the
Fair Market Value (as determined under Section 5) on the date immediately
preceding the date of exercise of the options,
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(ii) by surrendering a portion of his or her option with such surrendered
option to be valued at the Surrender Value (as determined under Section
6(c)), or (iii) by a combination of cash, stock of the Company and surrender
of options.
15. GOVERNING LAW
The Plan and all actions taken thereunder shall be governed by and
construed in accordance with the laws of the state of Oklahoma and applicable
federal law.
16. SEVERABILITY
If any provision of this Plan is determined to be invalid or
unenforceable for any reason, the remaining provisions of the Plan shall
remain in effect and be interpreted to reasonably effect the intent of the
Plan.
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