As filed with the Securities and Exchange Commission on June 12, 1997
Registration No. 333-________
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
______________
HOWELL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 74-1223027
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
_______________
1111 Fannin Street, Suite 1500
Houston, Texas 77002
(713) 658-4000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
HOWELL CORPORATION
1997 NONQUALIFIED STOCK OPTION PLAN
(Full title of the plan)
Robert T. Moffett
Vice President and General Counsel
Howell Corporation
1111 Fannin Street, Suite 1500
Houston, Texas 77002
(713) 658-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
A copy to:
John R. Brantley
Bracewell & Patterson, L.L.P.
South Tower Pennzoil Place
711 Louisiana, Suite 2900
Houston, Texas 77002-2781
___________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================
Title of Proposed maximum Proposed maximum Amount of
securities to Amount to be offering price aggregate offering registration
be registered registered(1) per share(2) price(2) fee(2)
- ----------------------------------------------------------------------------------------------
<S>
<C> <C> <C> <C> <C>
Common Stock, 538,800
$1.00 par value shares $13.125 $7,071,750 $2,143
<FN>
==============================================================================================
(1) Represents the number of shares of Common Stock authorized for issuance
under the Howell Corporation 1997 Nonqualified Stock Option Plan
(the "Plan"). This Registration Statement shall also include an
indeterminable number of additional shares of Common Stock issuable
pursuant to the antidilution provisions of the Plan.
(2) Calculated pursuant to Rule 457(h) based on the price at which options
granted under the Plan are exercisable.
================================================================================
</TABLE>
P A R T I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registration Information and Employee Plan Annual Information.*
* The information required by Items 1 and 2 of Part I of Form S-8 is omitted
from this Registration Statement in accordance with the Note to Part I of
Form S-8 and Rule 428 promulgated under the Securities Act.
P A R T I I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following materials previously filed by Howell Corporation
(the "Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Exchange Act of 1934 (the "Exchange Act") are incorporated
herein by reference: the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996, the Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended March 31, 1997, and the description of the Common
Stock of the Company contained in the registration statement on Form 8-A, as
amended by Form 8-A/A filed on July 29, 1994. All documents filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all the Common Stock registered
hereunder has been sold or which deregisters all Common Stock then remaining
unsold shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this registration to the extent that a statement contained
herein or in any other subsequently filed document that also is or is deemed to
be incorporated herein by reference modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Delaware General Corporation Law
Section 145(a) of the General Corporation Law of the State of Delaware (the
"DGCL") provides that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 145(b) of the DGCL states that a corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no indemnifi-
cation shall be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation unless and only
to the extent that the Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 145(c) of the DGCL provides that to the extent that a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in sub-
sections (a) and (b), or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 145(d) of the DGCL states that any indemnification under subsections
(a) and (b) (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in subsections (a) and (b).
Such determination shall be made (1) by the board of directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
Section 145(e) of the DGCL provides that expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal, administra-
tive or investigative action, suit or proceeding may be paid by the corporation
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in Section 145. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate.
Section 145(f) of the DGCL states that the indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of Section
145 shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office.
Section 145(g) of the DGCL provides that a corporation shall have the power
to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any such capa-
city, or arising out of his status as such, whether or not the corporation would
have the power to indemnify him against such liability under the provisions of
Section 145.
Section 145(j) of the DGCL states that the indemnification and advancement of
expenses provided by, or granted pursuant to Section 145 shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Certificate of Incorporation
The Certificate of Incorporation, as amended, provides that no director shall
be liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty except in the instance of (i) the breach of the duty of loyalty,
(ii) intentional acts or knowing misconduct, (iii) violations of Section 174 of
the DGCL or (iv) for receiving an improper benefit.
By-laws
Article VII of the By-laws authorizes the Company to indemnify any director,
officer or employee entitled to indemnity under law, to the fullest extent
permitted by law.
Indemnity Agreements
The Company is party to indemnity agreements with all of its officers and
directors. The agreement provides, among other things, that the Company shall
indemnify an officer or director when he is a party or threatened to be a party
to an action, suit or proceeding by reason of the fact that he is or was a
director or officer of the Company. The Company shall indemnify such director
or officer against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with the action or
proceeding. In any event, no indemnification shall be made if the officer or
director is adjudged liable to the Company.
Directors' and Officers' Insurance
The Company maintains a policy of liability insurance covering its directors
and officers against losses resulting from wrongful acts committed by them in
their official capacities, including liabilities arising under applicable
securities laws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibits not incorporated herein by reference to a prior filing are
designated by an (*) and are filed herewith. Exhibits designated by two
asterisks (**) are incorporated herein by reference to the Company's Annual
Report on Form 10-K for the year ended December 31, 1996 filed March 26, 1997.
Exhibit
Number Description of Exhibit
_______ ______________________
3.1** Certificate of Incorporation, as amended, of the Company
3.2** Bylaws of the Company
5* Opinion of Bracewell & Patterson, L.L.P.
10.1* Howell Corporation 1997 Nonqualified Stock Option Plan
10.2* Form of Nonqualified Option Agreement for use under 1997
Nonqualified Stock Option Plan
23.1* Consent of Bracewell & Patterson, L.L.P. (contained in
Exhibit 5)
23.2* Consent of Deloitte & Touche LLP
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) shall not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the offer-
ing of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
promulgated under the Exchange Act; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
__________
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration State-
ment to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Houston, and State of Texas on May 31, 1997.
HOWELL CORPORATION
By: /s/ RICHARD K. HEBERT
_________________________________________
Richard K. Hebert
President and Chief Operating Officer
POWER OF ATTORNEY
_________________
Each person whose signature appears below hereby constitutes and appoints
each of Richard K. Hebert and Robert T. Moffett, with full power to act without
the other, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities (until revoked in writing) to sign any and all amendments
(including post-effective amendments) to this Registration Statement, to file
the same, together with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, to sign any and all
applications, registration statements, notices and other documents necessary or
advisable to comply with the applicable state securities authorities, granting
unto said attorneys-in-fact and agents or any of them, or their or his
substitutes or substitute, full power and authority to perform and do each and
every act and thing necessary and advisable as fully to all intents and purposes
as he might or could perform and do in person, thereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them, or their or his
substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the indicated capacities
on May 31, 1997.
/s/ DONALD W. CLAYTON Chairman of the Board and Chief Executive Officer
___________________________
Donald W. Clayton
/s/ RICHARD K. HEBERT President, Chief Operating Officer and Director
___________________________
Richard K. Hebert
/s/ PAUL N. HOWELL Director
___________________________
Paul N. Howell
/s/ RONALD E. HALL Director
___________________________
Ronald E. Hall
/s/ ROBERT M. AYRES, Jr. Director
___________________________
Robert M. Ayres, Jr.
/s/ OTIS A. SINGLETARY Director
___________________________
Otis A. Singletary
/s/ JACK T. TROTTER Director
___________________________
Jack T. Trotter
/s/ WALTER M. MISCHER, SR. Director
____________________________
Walter M. Mischer, Sr.
/s/ PAUL W. MURRILL Director
____________________________
Paul W. Murrill
<PAGE>
EXHIBIT INDEX
Exhibits not incorporated herein by reference to a prior filing are
designated by an (*) and are filed herewith. Exhibits designated by two
asterisks (**) are incorporated herein by reference to the Company's Annual
Report on Form 10-K for the year ended December 31, 1996 filed March 26, 1997.
Exhibit
Number Description of Exhibit
_______ ______________________
3.1** Certificate of Incorporation, as amended, of the Company
3.2** Bylaws of the Company
5* Opinion of Bracewell & Patterson, L.L.P.
10.1* Howell Corporation 1997 Nonqualified Stock Option Plan
10.2* Form of Nonqualified Option Agreement for use under 1997
Nonqualified Stock Option Plan
23.1* Consent of Bracewell & Patterson, L.L.P.
(contained in Exhibit 5)
23.2* Consent of Deloitte & Touche LLP
[Exhibit 5]
June 9, 1997
Howell Corporation
1111 Fannin Street, Suite 1500
Houston, Texas 77002
Ladies and Gentlemen:
We have acted as counsel to Howell Corporation, a Delaware corporation (the
"Company"), in connection with the proposed issuance by the Company of up to
538,800 shares (the "Shares") of Common Stock, $1.00 par value, upon the
exercise of options granted to certain employees of the Company pursuant to the
terms of the Company's 1997 Nonqualified Stock Option Plan (the "Plan").
We have examined originals or copies of (i) the Certificate of Incorporation of
the Company, as amended, (ii) the Bylaws of the Company, (iii) the Plan, (iv)
certain resolutions of the Board of Directors of the Company and (v) such other
documents and records as we have deemed necessary and relevant for purposes
hereof. In addition, we have relied on certificates of officers of the Company
as to certain matters of fact relating to this opinion and have made such
investigations of law as we have deemed necessary and relevant as a basis
hereof.
We have assumed the genuineness of all signatures, the authenticity of all
documents, certificates and records submitted to us as originals, the conformity
to original documents, certificates and records of all documents, certificates
and records submitted to us as copies, and the truthfulness of all statements of
fact contained therein.
Based on the foregoing and subject to the limitations and assumptions set forth
herein and having due regard for such legal considerations as we deem relevant,
we are of the opinion that the Shares have been duly and validly authorized and
when issued and paid for in accordance with the terms of the Plan, for a
consideration at least equal to the par value thereof, will be validly issued,
fully paid and nonassessable.
The foregoing opinion is based on and is limited to the General Corporation Law
of the State of Delaware and the relevant law of the United States of
America, and we render no opinion with respect to the law of any other
jurisdiction. We hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Company's Registration Statement on Form S-8.
Very truly yours,
Bracewell & Patterson,L.L.P.
EXHIBIT 10.1
HOWELL CORPORATION
1997 NONQUALIFIED STOCK OPTION PLAN
SECTION 1. Purpose of the Plan. The purpose of this Howell Corporation
1997 Nonqualified Stock Option Plan ("Plan") is to encourage ownership of common
stock, $1.00 par value ("Common Stock"), of Howell Corporation, a Delaware
corporation (the "Company"), by employees and directors of the Company and its
Affiliates (as defined below) and to provide increased incentive for such
employees and directors to render services and to exert maximum effort for the
business success of the Company. In addition, the Company expects that the Plan
will further strengthen the identification of employees and directors with the
stockholders. The options granted under this Plan shall be nonqualified options
which are not intended to qualify as incentive stock options pursuant to Section
422 of the Internal Revenue Code of 1986, as amended ("Code") (the options shall
hereinafter be referred to as "Nonqualified Options"), as provided in the
agreements evidencing the Nonqualified Options as provided in Section 6 hereof.
As used in this Plan, the term "Affiliates" means any "parent corporation" of
the Company and any "subsidiary corporation" of the Company within the meaning
of Code Sections 424(e) and (f), respectively.
SECTION 2. Administration of the Plan.
(a) Composition of Committee. The Plan shall be administered by the Board
of Directors of the Company (the "Board") or, if the Board shall so direct by
resolutions thereof, the Stock Option Committee of the Board. The Board while
administering the Plan and the Stock Option Committee shall hereinafter be
referred to as the "Committee." If the Company is subject to Section 16 of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), no director shall
serve as a member of the Stock Option Committee unless he is a Non-Employee
Director within the meaning of Rule 16b-3 promulgated by the Securities and
Exchange Commission ("Commission") under the Exchange Act ("Rule 16b-3").
(b) Committee Action. The Committee shall hold its meetings at such times
and places as it may determine. A majority of its members shall constitute a
quorum, and all determinations of the Committee shall be made by not less than a
majority of its members. Any decision or determination reduced to writing and
signed by a majority of the members shall be fully effective as if it had been
made by a majority vote of its members at a meeting duly called and held.
The Committee may designate the Secretary of the Company or other Company
employees to assist the Committee in the administration of the Plan, and may
grant authority to such persons to execute award agreements or other documents
on behalf of the Committee and the Company. Any duly constituted committee of
the Board satisfying the qualifications of this Section 2 may be appointed as
the Committee.
(c) Committee Expenses. All expenses and liabilities incurred by the
Committee in the administration of the Plan shall be borne by the Company. The
Committee may employ attorneys, consultants, accountants or other persons.
SECTION 3. Stock Reserved for the Plan. Subject to adjustment as provided
in Sections 6(g) and 8 hereof, the aggregate number of shares of Common Stock
that may be optioned under the Plan is 538,800. The shares subject to the Plan
shall consist of authorized but unissued shares of Common Stock and such number
of shares shall be and is hereby reserved for sale for such purpose. Any of
such shares which may remain unsold and which are not subject to outstanding
Nonqualified Options at the termination of the Plan shall cease to be reserved
for the purpose of the Plan, but until termination of the Plan or the
termination of the last of the Nonqualified Options granted under the Plan,
whichever last occurs, the Company shall at all times reserve a sufficient
number of shares to meet the requirements of the Plan. Should any Nonqualified
Option lapse, expire or be canceled prior to its exercise in full, the shares
theretofor subject to such Nonqualified Option may not be made subject to
another Nonqualified Option under the Plan.
SECTION 4. Eligibility. The persons eligible to participate in the Plan
as a recipient of Nonqualified Options ("Optionee") shall include only employees
and directors of the Company or its Affiliates at the time the Nonqualified
Option is granted. An employee who has been granted a Nonqualified Option
hereunder may be granted an additional Nonqualified Option or Nonqualified
Options, if the Committee shall so determine.
SECTION 5. Grant of Nonqualified Options. Except where the Committee has
explicitly given the authority to some other individual, the Committee shall
have sole and absolute discretionary authority (i) to determine, authorize, and
designate those employees and directors of the Company or its Affiliates who are
to receive Nonqualified Options under the Plan, and (ii) to determine the number
of shares of Common Stock to be covered by such Nonqualified Options and the
terms thereof. If the Company is subject to Section 16 of the Exchange Act, the
Committee shall specifically pre-approve each grant to each Optionee subject to
Section 16(b) of the Exchange Act in accordance with Rule 16b-3 as amended,
unless such grant is or will be otherwise exempt from Section 16(b) of the
Exchange Act. The Committee shall thereupon grant Nonqualified Options in
accordance with such determinations as evidenced by a written Nonqualified
Option agreement. Subject to the express provisions of the Plan, the Committee
shall have discretionary authority to prescribe, amend and rescind rules and
regulations relating to the Plan, to interpret the Plan, to prescribe and amend
the terms of the Nonqualified Option agreements (which need not be identical)
and to make all other determinations deemed necessary or advisable for the
administration of the Plan.
SECTION 6. Terms and Conditions. Each Nonqualified Option granted under
the Plan shall be evidenced by an agreement,in a form approved by the Committee,
which shall be subject to the following express terms and conditions and to such
other terms and conditions as the Committee may deem appropriate.
(a) Option Period. The Committee shall promptly notify the Optionee of
the Nonqualified Option grant and a written agreement shall promptly be executed
and delivered by and on behalf of the Company and the Optionee, provided that
the Nonqualified Option grant shall expire if a written agreement is not signed
by said Optionee (or his agent or attorney) and returned to the Company within
60 days from date of receipt by the Optionee of such agreement. The date of
grant shall be the date the Nonqualified Option is actually granted by the
Committee, even though the written agreement may be executed and delivered by
the Company and the Optionee after that date. Each Nonqualified Option
agreement shall specify the period for which the Nonqualified Option thereunder
is granted (which in no event shall exceed ten years from the date of grant) and
shall provide that the Nonqualified Option shall expire at the end of such
period. If the original term of an option is less than ten years from the date
of grant, the Nonqualified Option may be amended prior to its expiration,
with the approval of the Committee and the Optionee, to extend the term so that
the term as amended is not more than ten years from the date of grant.
(b) Option Price. The purchase price of each share of Common Stock
subject to each Nonqualified Option granted pursuant to the Plan shall be
determined by the Committee at the time the Nonqualified Option is granted. The
Committee shall set the purchase price for each share subject to a Nonqualified
Option at such price as the Committee in its sole discretion shall determine,
provided that the purchase price of each share of Common Stock subject to a
Nonqualified Option shall not be less than 50% of the fair market value of a
share of Common Stock on the day immediately preceeding the date on which the
option is granted.
For all purposes under the Plan, the fair market value of a share of Common
Stock on a particular date shall be equal to the mean of the reported high and
low sales prices of the Common Stock as reported in The Wall Street Journal's
NYSE-Composite Transactions listing for such day (corrected for obvious
typographical errors) on that date, or if no prices are reported in such listing
on that date, then the mean of the reported high and low sales prices on the
largest national securities exchange (based on the aggregate dollar value of
securities listed) on which such shares are listed or traded, or if
such shares are not listed or traded on any national securities exchange,
then the mean of the reported high and low sales prices for such shares in the
over-the-counter market, as reported on the National Association of Securities
Dealers Automated Quotations System, or, if such prices shall not be reported
thereon, the mean between the closing bid and asked prices so reported, or, if
such prices shall not be reported, then the mean closing bid and asked prices
reported by the National Quotation Bureau Incorporated, or, in all other cases,
the value established by the Committee in good faith.
(c) Procedure for Exercise. Nonqualified Options shall be exercised by
the delivery of written notice to the Secretary of the Company setting forth the
number of shares with respect to which the Nonqualified Option is being
exercised. Such notice shall be accompanied by cash or cashier's check, bank
draft, postal or express money order payable to the order of the Company, or at
the option of the Committee, in Common Stock theretofore owned by such Optionee
(or any combination of cash and Common Stock). Notice may also be delivered by
fax or telecopy provided that the purchase price of such shares is delivered to
the Company via wire transfer on the same day the fax is received by the
Company. The notice shall specify the address to which the certificates for
such shares are to be mailed. An Optionee shall be deemed to be a stockholder
with respect to shares covered by a Nonqualified Option on the date the Company
receives such written notice and such option payment. The Committee may, in its
discretion and to the extent permitted by the laws of the State of Delaware,
determine to permit an Optionee to satisfy the purchase price of the shares as
to which a Nonqualified Option is exercised by delivery of the Optionee's
promissory note, such note to be subject to such terms and conditions as the
Committee may determine. The Committee may, in its discretion and to the extent
permitted by the laws of the State of Delaware, determine to cause the Company
to loan to an Optionee funds, on such terms and conditions as the Committee may
determine to be appropriate, sufficient for the Optionee to pay the purchase
price of the shares as to which a Nonqualified Option is to be exercised.
As promptly as practicable after receipt of such written notification and
payment, the Company shall deliver to the Optionee certificates for the number
of shares with respect to which such Nonqualified Option has been so exercised,
issued in the Optionee's name or such other name as Optionee directs; provided,
however, that such delivery shall be deemed effected for all purposes when a
stock transfer agent of the Company shall have deposited such certificates in
the United States mail, addressed to the Optionee at the address specified
pursuant to this Section 6(c).
(d) Termination of Employment. If an employee to whom a Nonqualified
Option is granted ceases to be employed by the Company for any reason or if a
director to whom a Nonqualified Option is granted ceases to serve on the Board
for any reason, any Nonqualified Option which is exercisable on the date of such
termination of employment or cessation from the Board may be exercised for
period not to exceed the shorter of (i) six months from the date of the
Optionee's termination of employment or cessation from the Board or (ii) the
remaining option period established for the Nonqualified Option pursuant to
Section 6(a) above.
(e) Assignability. A Nonqualified Option shall not be assignable or
otherwise transferable except by will or by the laws of descent and
distribution. During the lifetime of an Optionee, a Nonqualified Option shall
be exercisable only by him.
(f) No Rights as Stockholder. No Optionee shall have any rights as a
stockholder with respect to shares covered by a Nonqualified Option until the
option is exercised by the written notice and accompanied by payment as provided
in Section (c) above.
(g) Changes in Company's Capital Structure. If the outstanding shares of
Common Stock or other securities of the Company, or both, for which the
Nonqualified Option is then exercisable shall at any time be changed or
exchanged by a subdivision or consolidation of shares of Common Stock or other
capital readjustment, a declaration of a stock dividend, stock split, or
combination of shares, the number and kind of shares of Common Stock or other
securities which are subject to the Plan or subject to any Nonqualified Options
theretofore granted, and the option prices, shall be appropriately and equitably
adjusted so as to maintain the proportionate number of shares or other
securities without changing the aggregate option price.
(h) Acceleration of Nonqualified Options. Except as hereinbefore
expressly provided, (i) the issuance by the Company of shares of stock of any
class of 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, (ii) the payment
of a dividend in property other than Common Stock or (iii) the occurrence of any
similar transaction, 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 Common Stock subject to Nonqualified Options theretofore
granted or the purchase price per share, unless the Committee shall determine
in its sole discretion that an adjustment is necessary to provide equitable
treatment to Optionee. Notwithstanding anything to the contrary contained in
this Plan, the Committee may in its sole discretion accelerate the time at which
any Nonqualified Option may be exercised, including, but not limited to, upon
the occurrence of the events specified in this Section 6, and is authorized at
any time (with the consent of the Optionee) to purchase Nonqualified Options
pursuant to Section 7.
SECTION 7. Relinquishment of Nonqualified Options.
(a) The Committee, in granting Nonqualified Options hereunder, shall have
discretion to determine whether or not Nonqualified Options shall include a
right of relinquishment as hereinafter provided by this Section 7. The
Committee shall also have discretion to determine whether a Nonqualified Option
agreement evidencing a Nonqualified Option initially granted by the Committee
without a right of relinquishment shall be amended or supplemented to include
such a right of relinquishment. Neither the Committee nor the Company shall be
under any obligation or incur any liability to any person by reason of the
Committee's refusal to grant or include a right of relinquishment in any
Nonqualified Option granted hereunder or in any Nonqualified Option agreement
evidencing the same. Subject to the Committee's determination in any case
that the grant by it of a right of relinquishment is consistent with clause (i)
hereof, any Nonqualified Option granted under this Plan, and the Nonqualified
Option agreement evidencing such Nonqualified Option, may provide:
(i) That the Optionee, or his heirs or other legal representatives to
the extent entitled to exercise the Nonqualified Option under the terms
thereof, in lieu of purchasing the entire number of shares subject to
purchase thereunder, shall have the right to relinquish all or any part of
the then unexercised portion of the Nonqualified Option (to the extent then
exercisable) for a number of shares of Common Stock, for an amount of cash
or for a combination of Common Stock and cash to be determined in
accordance with the following provisions of this clause (i):
(A) The written notice of exercise of such right of
relinquishment shall state the percentage, if any, of the Appreciated
Value (as defined below) that the Optionee elects to receive in cash
("Cash Percentage"), such Cash Percentage to be in increments of 10%
of such Appreciated Value up to 100% thereof;
(B) The number of shares of Common Stock, if any, issuable
pursuant to such relinquishment shall be the number of such shares,
rounded to the next greater number of full shares, as shall be equal
to the quotient obtained by dividing (A) the difference between (I)
the Appreciated Value and (II) the result obtained by multiplying the
Appreciated Value and the Cash Percentage by (B) the then current
market value per share of Common Stock;
(C) The amount of cash payable pursuant to such relinquishment
shall be an amount equal to the Appreciated Value less the aggregate
current market value of the Common Stock issued pursuant to such
relinquishment, if any, which cash shall be paid by the Company
subject to such conditions as are deemed advisable by the Committee to
permit compliance by the Company with the withholding provisions
applicable to employers under the Code and any applicable state income
tax laws;
(D) For the purpose of this clause (i), "Appreciated Value"
means the excess of (x) the aggregate current market value of the
shares of Common Stock covered by the Nonqualified Option or the
portion thereof to be relinquished over (y) the aggregate purchase
price for such shares specified in such Nonqualified Option;
(ii) That such right of relinquishment may be exercised only upon
receipt by the Company of a written notice of such relinquishment which
shall be dated the date of election to make such relinquishment; and that,
for the purposes of this Plan, such date of election shall be deemed to be
the date when such notice is sent by registered or certified mail, or when
receipt is acknowledged by the Company, if mailed by other than registered
or certified mail or if delivered by hand or by any telegraphic
communications equipment of the sender or otherwise delivered;
(iii) That the "current market value" of a share of Common Stock on a
particular date shall be deemed to be its fair market value on that date as
determined in accordance with Section 6(b); and
(iv) That the Nonqualified Option, or any portion thereof, may be
relinquished only to the extent that (A) it is exercisable on the date
written notice of relinquishment is received by the Company, (B) the
Committee shall consent to the election of the holder to relinquish
such Nonqualified Option in whole or in part for cash as set forth in such
written notice of relinquishment and (C) the holder of such Nonqualified
Option pays, or makes provision satisfactory to the Company for the payment
of, any taxes which the Company is obligated to collect with respect to
such relinquishment.
(b) The Committee, in granting Nonqualified Options hereunder, shall have
discretion to determine the terms upon which such Nonqualified Options shall be
relinquishable, subject to the applicable provisions of this Plan, and including
such provisions as are deemed advisable to permit the exemption from the
operation from Section 16(b) of the Exchange Act of any such relinquishment
transaction, and Nonqualified Options outstanding, and option agreements
evidencing such Nonqualified Options, may be amended, if necessary, to permit
such exemption. If a Nonqualified Option is relinquished, such Nonqualified
Option shall be deemed to have been exercised to the extent of the number of
shares of Common Stock covered by the Nonqualified Option or part thereof which
is relinquished, and no further Nonqualified Option may be granted covering such
shares of Common Stock.
(c) Neither any Nonqualified Option nor any right to relinquish the same
to the Company as contemplated by this Section 7 shall be assignable or
otherwise transferable except by will or the laws of descent and distribution.
SECTION 8. Corporate Transactions.
(a) The existence of outstanding Nonqualified Options shall not affect in
any way the right or power of the Company or its stockholders to make or
authorize any or all adjustments, recapitalizations, reorganizations, exchanges,
or other changes in the Company's capital structure or its business, or any
merger or consolidation of the Company, or any issuance of Common Stock or other
securities or subscription rights thereto, or any issuance of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Common Stock or
the rights thereof, or 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, whether of a similar character or otherwise.
(b) If the Company is reorganized, merged or consolidated or is otherwise
a party to a plan of exchange with another corporation pursuant to which
reorganization, merger, consolidation or plan of exchange, shareholders of the
Company receive any shares of Common Stock or other securities or if the Company
shall distribute ("Spin Off") securities of another corporation to its
shareholders, there shall be substituted for the shares subject to the
unexercised portions of outstanding Nonqualified Options an appropriate number
of shares of (i) each class of stock or other securities which were distributed
to the shareholders of the Company in respect of such shares in the case of a
reorganization, merger, consolidation or plan of exchange, or (ii) in the case
of a Spin Off, the securities distributed to shareholders of the Company
together with shares of Common Stock, such number of shares or securities to be
determined in accordance with the provisions of Section 425 of the Code (or
other applicable provisions of the Code or regulations issued thereunder which
may from time to time govern the treatment of incentive stock options in such a
transaction); provided, however, that all such Nonqualified Options may be
canceled by the Company as of the effective date of (x) a reorganization,
merger, consolidation, plan of exchange or Spin Off or (y) any dissolution or
liquidation of the Company, by giving notice to each Optionee or his personal
representative of its intention to do so and by permitting the purchase for a
period of at least thirty days during the sixty days next preceding such
effective date of all of the shares subject to such outstanding Nonqualified
Options, without regard to the installment provisions set forth in the
Nonqualified Option agreements; and provided further that in the event of a
Spin Off, the Company may, in lieu of substituting securities or accelerating
and canceling Nonqualified Options as contemplated above, elect (i) to reduce
the purchase price for each share of Common Stock subject to an outstanding
Nonqualified Option by an amount equal to the fair market value, as determined
in accordance with the provisions of Section 6(b), of the securities distributed
in respect of each outstanding share of Common Stock in the Spin Off or (ii) to
reduce proportionately the purchase price per share and to increase
proportionately the number of shares of Common Stock subject to each
Nonqualified Option in order to reflect the economic benefits inuring to the
shareholders of the Company as a result of the Spin Off.
(c) The Committee may, in its sole discretion, provide that a Nonqualified
Option shall become fully exercisable upon a Change in Control of the Company
(as defined in the next sentence). "Change in Control" of the Company shall be
conclusively deemed to have occurred if (and only if) any of the following shall
have taken place: (i) a change in control is reported by the Company in response
to either Item 5(f) of Schedule 14A of Regulation 14A promulgated under the
Exchange Act; (ii) any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing forty percent or more of the combined voting power of
the Company's then outstanding securities; or (iii) following the election or
removal of directors, a majority of the Board consists of individuals who were
not members of the Board two years before such election or removal, unless the
election of each director who was not a director at the beginning of such
two-year period has been approved in advance by directors representing at least
a majority of the directors then in office who were directors at the beginning
of the two-year period.
(d) Except as hereinbefore expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into or exchangeable for
shares of stock of any class, for cash or property, or for labor or services,
either upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible
into or exchangeable for shares of stock of any class shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number of shares
of Common Stock subject to Nonqualified Options granted hereunder.
SECTION 9. Amendments or Termination. The Board may amend, alter or
discontinue the Plan, but no amendment or alteration shall be made which would
impair the rights of any Optionee, without his consent, under any Nonqualified
Option theretofore granted.
SECTION 10. Compliance With Other Laws and Regulations. The Plan, the
grant and exercise of Nonqualified Options thereunder, and the obligation of the
Company to sell and deliver shares under such Nonqualified Options, shall be
subject to all applicable federal and state laws, rules and regulations and to
such approvals by any governmental or regulatory agency as may be required. The
Company shall not be required to issue or deliver any certificates for shares
of Common Stock prior to the completion of any registration or qualification
of such shares under any federal or state law or issuance of any ruling or
regulation of any government body which the Company shall, in its sole
discretion, determine to be necessary or advisable.
SECTION 11. Purchase for Investment. Unless the Nonqualified Options and
shares of Common Stock issuable upon the exercise of the Nonqualified Options
issued pursuant to this Plan have been registered under the Securities Act of
1933, as amended, or the Company has determined that such registration is
unnecessary, each person exercising a Nonqualified Option under this Plan may
be required by the Company to give a representation in writing that he is
acquiring such shares for his own account for investment and not with a view to,
or for sale in connection with, the distribution of any part thereof.
SECTION 12. Taxes.
(a) The Company may make such provisions as it may deem appropriate for
the withholding of any taxes which it determines is required in connection with
any Nonqualified Options granted under this Plan.
(b) Notwithstanding the terms of Section 12(a), any Optionee may pay all
or any portion of the taxes required to be withheld by the Company or paid by
him in connection with the exercise of a Nonqualified Option by electing to have
the Company withhold shares of Common Stock, or by delivering previously owned
shares of Common Stock, having a fair market value, determined in accordance
with Section 6(b), equal to the amount required to be withheld or paid; provided
that such tax withholding or stock delivery right was specifically pre-approved
by the Committee as a feature of the Nonqualified Option or is otherwise
approved in accordance with Rule 16b-3. An Optionee must make the foregoing
election on or before the date that the amount of tax to be withheld is
determined ("Tax Date"). All such elections are irrevocable and subject to
disapproval by the Committee.
SECTION 13. Replacement of Nonqualified Options. The Committee from time
to time may permit an Optionee under the Plan to surrender for cancellation any
unexercised outstanding Nonqualified Option and receive from the Company in
exchange a Nonqualified Option for such number of shares of Common Stock as may
be designated by the Committee. The Committee may, with the consent of the
person entitled to exercise any outstanding Nonqualified Option, amend such
option, including reducing the exercise price of any option to not less than the
fair market value of the Common Stock at the time of the amendment and extending
the term thereof.
SECTION 14. No Right to Company Employment. Nothing in this Plan or as a
result of any Nonqualified Option granted pursuant to this Plan shall confer on
any individual any right to continue in the employ of the Company or interfere
in any way with the right of the Company to terminate an individual's employment
at any time. The Nonqualified Option agreements may contain such provisions as
the Committee may approve with reference to the effect of approved leaves of
absence.
SECTION 15. Liability of Company. The Company and any Affiliate which is
in existence or hereafter comes into existence shall not be liable to an
Optionee or other persons as to:
(a) The Non-Issuance of Shares. The non-issuance or sale of shares as to
which the Company has been unable to obtain from any regulatory body having
jurisdiction the authority deemed by the Company's counsel to be necessary to
the lawful issuance and sale of any shares hereunder; and
(b) Tax Consequences. Any tax consequence expected, but not realized, by
any Optionee or other person due to the exercise of any Nonqualified Option
granted hereunder.
SECTION 116. Effectiveness and Expiration of Plan. The Plan shall be
effective on the date the Board approves the Plan and shall expire ten years
after such date. Thereafter, no Nonqualified Option shall be granted pursuant
to the Plan.
SECTION 17. Non-Exclusivity of the Plan. The adoption by the Board shall
not be construed as creating any limitations on the power of the Board to adopt
such other incentive arrangements as it may deem desirable, including without
limitation, the granting of restricted stock or stock nonqualified options
otherwise than under the Plan, and such arrangements may be either generally
applicable or applicable only in specific cases.
SECTION 18. Governing Law. This Plan and any agreements hereunder shall be
interpreted and construed in accordance with the laws of the State of Delaware
and applicable federal law.
IN WITNESS WHEREOF, and as conclusive evidence of the adoption of the
foregoing by the Board on May 14, 1997 (the "Date of Adoption"), Howell
Corporation has caused this document to be duly executed in its name and
behalf by an officer thereunto duly authorized as of the Date of Adoption.
HOWELL CORPORATION
By: /s/ROBERT T. MOFFETT
Name: Robert T. Moffett
_________________________________
Title: Vice President, General Counsel
and Secretary
EXHIBIT 10.2
NONQUALIFIED STOCK OPTION AGREEMENT
This Nonqualified Stock Option Agreement ("Option Agree ment") is between
Howell Corporation, a Delaware corporation (the "Company") and _________________
(the "Optionee").
W I T N E S S E T H:
___________________
WHEREAS, to carry out the purposes of the Howell Corporation 1997
Nonqualified Stock Option Plan (the "Plan") by providing for the acquisition of
proprietary interests in the Company through the award of a nonqualified stock
option providing for acquisition rights in the common stock of the Company, to
retain and attract personnel of outstanding ability, and to provide additional
motivation to the Employee to continue to exert Employee's best efforts for the
success and welfare of the Company and the benefit of the Company's
stockholders, the Committee (as defined in the Plan) has determined that the
Company's interests will be advanced by the issuance to Optionee of a
nonqualified stock option under the Plan.
NOW THEREFORE, for and in consideration of these premises it is agreed as
follows:
1. Option. Subject to the terms and conditions contained herein, the
Company hereby irrevocably grants to Optionee the right and option ("Option") to
purchase from the Company _____________________ (_________) shares of the
Company's common stock, $1.00 par value ("Common Stock"), at a price of
$__________ per share.
2. Option Period. The Option herein granted may be exercised by Optionee
in whole or in part at any time during a ten (10) year period (the "Option
Period") beginning on ________________, 1997 (the "Grant Date"), subject to
the limitation that said 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 of employment with the Company or its Affiliates
beginning on the Grant Date in accordance with the following schedule:
Number of Percentage of
Full Years Shares Purchasable
__________ __________________
Less than one 0%
One 25%
Two 50%
Three 75%
Four or more 100%
Notwithstanding anything in this Agreement to the contrary, the Committee, in
its sole discretion may waive the foregoing schedule of vesting and upon written
notice to the Optionee, accelerate the earliest date or dates on which any of
the Options granted hereunder are exercisable.
3. Procedure for Exercise. The Option herein granted may be exercised by
written notice by Optionee to the Secretary of the Company setting forth the
number of shares of Common Stock with respect to which the Option is to be
exercised accompanied by payment for the shares to be purchased, and specifying
the address to which the certificate for such shares is to be mailed. The
notice shall be accompanied by (i) cash, cashier's check, bank draft, postal or
express money order payable to the order of the Company, or other immediately
available funds, or (ii) at the election of the Optionee and agreed to by the
Committee, certificates representing shares of Common Stock theretofore owned by
Optionee duly endorsed for transfer to the Company, or (iii) any combination of
the preceding, equal in value to the aggregate exercise price. Notice may also
be delivered by fax or telecopy provided that the exercise price of such shares
is received by the Company via wire transfer on the same day the fax or telecopy
transmission is received by the Company. An option to purchase shares of Common
Stock in accordance with this Plan, shall be deemed to have been exercised
immediately prior to the close of business on the date (i) written notice of
such exercise and (ii) payment in full of the exercise price for the number of
shares for which Options are being exercised, are both received by the Company
and Optionee shall be treated for all purposes as the record holder of such
shares of Common Stock as of such date.
As promptly as practicable after receipt of such written notice and
payment, the Company shall deliver to Optionee certificates for the number of
shares with respect to which such Option has been so exercised, issued in
Optionee's name or such other name as Optionee directs; provided, however, that
such delivery shall be deemed effected for all purposes when a stock transfer
agent of the Company shall have deposited such certificates in the United States
mail, addressed to Optionee at the address specified pursuant to this Section 3.
4. Termination of Employment or Cessation from the Board of Directors.
If Optionee's employment with the Company or its Affiliates is terminated during
the Option Period for any reason or if the Optionee ceases to serve on the Board
of the Company or its Affiliates during the Option Period for any reason,
Options which are exercisable by the Optionee pursuant to Section 2 on the date
of such termination of employment or cessation from the Board of the Company
shall expire on the earlier of (i) six months from the date of the Optionee's
termination of employment or cessation from the Board of the Company or (ii) the
remaining Option Period established for the Option pursuant to Section 2. Any
Options which are not exercisable by the Optionee pursuant to Section 2 on the
date of the Optionee's termination of employment or cessation from the Board of
the Company shall expire on the date of such termination of employment or
cessation from the Board of the Company.
5. Transferability. This Option shall not be transferable by Optionee
otherwise than by Optionee's will or by the laws of descent and distribution.
During the lifetime of Optionee, the Option shall be exercisable only by him.
Any heir or legatee of Optionee shall take rights herein granted subject to the
terms and conditions hereof. No such transfer of this Option Agreement to heirs
or legatees of Optionee shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and a copy of such
evidence as the Committee may deem necessary to establish the validity of the
transfer and the acceptance by the transferee or transferees of the terms and
conditions hereof.
6. No Rights as Stockholder. Optionee shall have no rights as a
stockholder with respect to any shares of Common Stock covered by this Option
Agreement until the Option is exercised by written notice and accompanied by
payment as provided in Section 3 above. Until such time, Optionee shall not be
entitled to dividends attributable to such shares or to vote such shares at
meetings of the stock holders of the Company. Except as provided in Section 8
hereof, no adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash or securities or other property) paid or distributions or
other rights granted in respect of any share of Common Stock for which the
record date for such payment, distribution or grant is prior to the date upon
which the Optionee shall have exercised said Option by written notice and
payment to the Company, as provided hereinabove.
7. Corporate Transactions.
a. If the Company is reorganized, merged or consolidated or is
otherwise a party to a plan of exchange with another corporation pursuant to
which reorganization, merger, consolidation or plan of exchange, shareholders of
the Company receive any shares of Common Stock or other securities or if the
Company shall distribute ("Spin Off") securities of another corporation to its
shareholders, there shall be substituted for the shares subject to the
unexercised portion of the Option an appropriate number of shares of (i) each
class of stock or other securities which were distributed to the shareholders of
the Company in respect of such shares in the case of a reorganization, merger,
consolidation or plan of exchange, or (ii) in the case of a Spin Off, the
securities distributed to shareholders of the Company together with shares of
Common Stock, such number of shares or securities to be determined in accordance
with the provisions of Section 425 of the Code (or other applicable provisions
of the Code or regulations issued thereunder which may from time to time govern
the treatment of incentive stock options in such a transaction); provided,
however, that the Option may be canceled by the Company as of the effective date
of (x) a reorganization, merger, consolidation, plan of exchange or Spin Off or
(y) any dissolution or liquidation of the Company, by giving notice to the
Optionee or his personal representative of its intention to do so and by
permitting the purchase for a period of at least thirty days during the sixty
days next preceding such effective date of all of the shares subject to the
Option; and provided further that in the event of a Spin Off, the Company may,
in lieu of substituting securities or accelerating and canceling the Option as
contemplated above, elect (i) to reduce the purchase price for each share of
Common Stock subject to the Option by an amount equal to the fair market value,
as determined in accordance with the provisions of Section 6(b), of the
securities distributed in respect of each outstanding share of Common Stock in
the Spin Off or (ii) to reduce proportionately the purchase price per share and
to increase proportionately the number of shares of Common Stock subject to the
Option in order to reflect the economic benefits inuring to the shareholders of
the Company as a result of the Spin Off.
b. The Option shall become fully exercisable upon a Change in Control
of the Company (as defined in the next sentence). "Change in Control" of the
Company shall be conclusively deemed to have occurred if (and only if) any of
the following shall have taken place: (i) a change in control is reported by
the Company in response to either Item 5(f) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act; (ii) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing forty percent or more of
the combined voting power of the Company's then outstanding securities; or (iii)
following the election or removal of directors, a majority of the Board consists
of individuals who were not members of the Board two years before such election
or removal, unless the election of each director who was not a director at the
beginning of such two year period has been approved in advance by directors
representing at least a majority of the directors then in office who were
directors at the beginning of the two-year period.
c. Except as hereinbefore expressly provided, the issue by the
Company of shares of stock of any class, or securities convertible into or
exchangeable for shares of stock of any class, for cash or property, or for
labor or services, either upon direct sale or upon the exercise of rights or
warrants to subscribe therefore, or upon conversion of shares or obligations of
the Company convertible into or exchangeable for shares of stock of any class
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number of shares of Common Stock subject to the Option granted
hereunder.
8. Changes in Capital Structure. The existence of outstanding Options
shall not affect in any way the right or power of the Company or its
shareholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issuance of
Common Stock or subscription rights thereto, or any issuance of bonds,
debentures, preferred or prior preference stock ahead of or affecting the Common
Stock or the rights thereof, or 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 proceedings, whether of a similar character or otherwise.
If the outstanding shares of Common Stock of the Company shall at any time be
changed or exchanged by a subdivision or consolidation of shares of Common Stock
or other capital readjustment, a declaration of a stock dividend, stock split,
combination of shares, or recapitalization, the number and kind of shares
subject to the Plan or subject to any Options theretofore granted, and the
Option prices, shall be appropriately and equitably adjusted so as to maintain
the proportionate number of shares without changing the aggregate Option price.
9. Compliance With Securities Laws. Upon the acquisition of any shares
pursuant to the exercise of the Option herein granted, Optionee (or any person
acting under Section 5) will enter into such written representations,
warranties and agreements as the Company may reasonably request in order to
comply with applicable securities laws or with this Option Agreement.
10. Compliance With Laws. Notwithstanding any of the other provisions
hereof, Optionee agrees that he will not exercise the Option(s) granted hereby,
and that the Company will not be obligated to issue any shares pursuant to this
Option Agreement, if the exercise of the Option(s) or the issuance of such
shares of Common Stock would constitute a violation by the Optionee or by the
Company of any provision of any law or regulation of any governmental authority.
11. Withholding of Tax. To the extent that the exercise of this Option or
the disposition of shares of Common Stock acquired by exercise of this Option
results in compensation income to the Optionee for federal or state income tax
purposes, the Optionee shall pay to the Company at the time of such exercise or
disposition (or such other time as the law permits if the Optionee is subject to
Section 16(b) of the Securities Exchange Act of 1934, as amended) such amount of
money as the Company may require to meet its obligation under applicable tax
laws or regulations; and, if the Optionee fails to do so, the Company is
authorized to withhold from any cash remuneration then or thereafter payable to
the Optionee, any tax required to be withheld by reason of such resulting
compensation income or Company may otherwise refuse to issue or transfer any
shares otherwise required to be issued or transferred pursuant to the terms
hereof. Payment of the withholding tax by the Optionee shall be made in
accordance with Section 12 of the Plan.
12. Resolution of Disputes. As a condition of the granting of the Option
hereby, the Optionee and his heirs and successors agree that any dispute or
disagreement which may arise hereunder shall be determined by the Committee in
its sole discretion and judgment, and that any such determination and any
interpretation by the Committee of the terms of this Option Agreement shall be
final and shall be binding and conclusive, for all purposes, upon the Company,
Optionee, his heirs and personal representatives.
13. Legends on Certificate. The certificates representing the shares of
Common Stock purchased by exercise of an Option will be stamped or otherwise
imprinted with legends in such form as the Company or its counsel may require
with respect to any applicable restrictions on sale or transfer and the stock
transfer records of the Company will reflect stop-transfer instructions with
respect to such shares.
14. Notices. Every notice hereunder shall be in writing and shall be given
by registered or certified mail. All notices of the exercise of any Option
hereunder shall be directed to Howell Corporation, 1500 Howell Building, 1111
Fannin, Houston, Texas 77002-6923, Attention: Secretary. Any notice given by
the Company to Optionee directed to him at his address on file with the Company
shall be effective to bind him and any other person who shall acquire rights
hereunder. The Company shall be under no obligation whatsoever to advise
Optionee of the existence, maturity or termination of any of Optionee's rights
hereunder and Optionee shall be deemed to have familiarized himself with all
matters contained herein and in the Plan which may affect any of Optionee's
rights or privileges hereunder.
15. Construction and Interpretation. Whenever the term "Optionee" is used
herein under circumstances applicable to any other person or persons to whom
this award, in accordance with the provisions of Section 5 hereof, may be
transferred, the word "Optionee" shall be deemed to include such person or
persons. References to the masculine gender herein also include the feminine
gender for all purposes.
16. Agreement Subject to Plan. This Option Agreement is subject to the
Plan. The terms and provisions of the Plan (including any subsequent amendments
thereto) are hereby incorporated herein by reference thereto. In the event of a
conflict between any term or provision contained herein and a term or provision
of the Plan, the applicable terms and provisions of the Plan will govern and
prevail. All definitions of words and terms contained in the Plan shall be
applicable to this Option Agreement.
17. Employment Relationship. Employees shall be considered to be in the
employment of the Company as long as they remain employees of the Company or a
parent or subsidiary corporation (as defined in Section 424 of the Internal
Revenue Code of 1986, as amended). Any questions as to whether and when there
has been a termination of such employment and the cause of such termination,
shall be determined by the Committee, and its determination shall be final.
Nothing contained herein shall be construed as conferring upon the Optionee the
right to continue in the employ of the Company, nor shall anything contained
herein be construed or interpreted to limit the "employment at will"
relationship between the Optionee and the Company.
18. Binding Effect. This Option Agreement shall be binding upon and inure
to the benefit of any successors to the Company and all persons lawfully
claiming under Optionee.
IN WITNESS WHEREOF, this Option Agreement has been executed as of the ____
day of _______________, 19____.
ATTEST: HOWELL CORPORATION
______________________________ By:_________________________________
OPTIONEE
____________________________________
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Howell Corporation on Form S-8 of our report dated February 28, 1997, appearing
in the Annual Report on Form 10-K of Howell Corporation for the year ended
December 31, 1996.
DELOITTE & TOUCHE LLP
Houston, Texas
June 9, 1997
