As filed with the Securities and Exchange Commission on October 8, 1998
Registration No. ____________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Tanknology-NDE International, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 95-3634420
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Identification No.)
Organization)
8900 Shoal Creek Blvd., Bldg. 200
Austin, Texas
(Address of Principal Executive offices)
78757
(Zip Code)
- --------------------------------------------------------------------------------
Tanknology-NDE International, Inc. 1989 Long-Term Incentive Plan
and
Tanknology-NDE International, Inc. 1995 Incentive Plan
for Non-Management Employees
(Full titles of the plans)
- --------------------------------------------------------------------------------
David G. Osowski
c/o Tanknology-NDE International, Inc.
8900 Shoal Creek Blvd.
Building 200
Austin, TX 78757
(Name and Address of Agent for Service)
512-451-6334
Telephone Number, Including Area Code,
of Agent for Service
copy to:
James Grace, Jr.
Baker & Botts L.L.P.
One Shell Plaza
910 Louisiana
Houston, TX 77002-4995
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed
Title of Amount Proposed Maximum Maximum Amount of
Securities to be to be Offering Price Per Aggregate Registration
Registered Registered Share(1) Offering Price (1) Fee
<S> <C> <C> <C>
- ------------------------------ --------------- ---------------------- -------------------- ---------------
Common Stock (par value
$0.0001 per share)......... 6,250,000 $ 0.875 $ 5,468,750 $ 1,613.28
============================== =============== ====================== ==================== ===============
</TABLE>
[FN]
(1) Estimated in accordance with Rule 457(c) and (h) solely for the purpose of
calculating the registration fee and based upon the average of the high and
low sales price reported on the OTC Bulletin Board on October 7, 1998.
- --------------------------------------------------------------------------------
</FN>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing information concerning the Company's 1989
Long-Term Incentive Plan (the "1989 Plan") and the 1995 Incentive Plan for
Non-Management Employees (the "1995 Plan") required by Item 1 of Form S-8 and
the statement of availability of registrant information and any other
information required by Item 2 of Form S-8 will be sent or given to participants
as specified by Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act"). In accordance with Rule 428 and the requirements of Part I of
Form S-8, such documents are not being filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act. The registrant shall maintain a file of such documents in
accordance with the provisions of Rule 428. Upon request, the registrant shall
furnish to the Commission or its staff a copy or copies of all of the documents
included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
This Registration Statement incorporates herein by reference the following
documents which have been filed with the Commission pursuant to the Securities
Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), by
the Company:
1. The Company's Annual Report on Form 10-KSB for the year ended December
31, 1997;
2. The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1998;
3. The Company's Quarterly Report on Form 10-QSB for the quarter ended
June 30, 1998;
4. The description of the Company's common stock, par value $.0001 per
share ("Common Stock"), contained in the Company's Registration
Statement on Form 8-A, as originally filed with the Commission on
October 11, 1989 and as thereafter amended;
5. The description of the Company's 1989 Plan contained in the Company's
Schedule 14A Proxy Statement Pursuant to Section 14(a) of the Exchange
Act, as originally filed with the Commission on July 24, 1997; and
6. The Company's Current Report on Form 8-K filed on January 13, 1998.
Each document filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing such documents.
Any statement contained in this Registration Statement, in an amendment
hereto or in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any subsequently filed supplement to
this Registration Statement or in any document that also is incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
II-2
<PAGE>
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 such person 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 such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person 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
such person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement or 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 such person 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 such person's 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 such
person is or was a director, officer, employee or agent of the corporation, or
is 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 such person in
connection with such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification 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 that the Court of Chancery or such other
court shall deem proper.
Section 145(c) of the DGCL provides that to the extent that a present or
former director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith.
Section 145(d) of the DGCL states that any indemnification under
subsections (a) and (b) of Section 145 (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 present or former director, officer, employee or
agent is proper in the circumstances because such person has met the applicable
standard of conduct set forth in subsections (a) and (b). Such determination
shall be made, with respect to a person who is a director or officer at the time
of such determination, (1) by the board of directors by a majority vote of the
directors who were not parties to such action, suit or proceeding, even though
less than a quorum or (2) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum or (3) if such a
II-3
<PAGE>
quorum is not obtainable or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion or (4)
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,
administrative 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 ultimately is determined that such person is
not entitled to be indemnified by the corporation as authorized in Section 145.
Such expenses (including attorneys' fees) incurred by former directors and
officers or other employees and agents may be so paid upon such terms and
conditions, if any, as the corporation 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 such person's 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 such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the corporation would have the power to indemnify such person 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.
Restated Certificate of Incorporation
The Restated Certificate of Incorporation of the Company provides that a
director of the Company shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL or (iv) for any transaction from which the director
derived an improper personal benefit. If the DGCL is amended to authorize the
further elimination or limitation of the liability of directors, then the
liability of a director of the Company, in addition to the limitation on
personal liability described above, shall be limited to the fullest extent
permitted by the amended DGCL. Further, any repeal or modification of such
provision of the Restated Certificate of Incorporation by the stockholders of
the Company shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Company existing at
the time of such repeal or modification.
Bylaws
The Bylaws of the Company provide that each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was or has agreed to become a director or officer of the
Company or is or was serving or has agreed to serve at the request of the
Company as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director or officer or in any other
capacity while serving or having agreed to serve as a director or officer, shall
be indemnified and held harmless by the Company to the fullest extent authorized
by the DGCL, as the same exists or may thereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the
Company to provide broader indemnification rights than said law permitted the
Company to provide prior to such amendment) against all expense, liability and
II-4
<PAGE>
loss (including, without limitation, attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to serve in the
capacity which initially entitled such person to indemnity thereunder, and shall
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that the Company shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
board of directors of the Company. The Bylaws further provide that the right to
indemnification conferred thereby shall be a contract right and shall include
the right to be paid by the Company the expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that, if the
DGCL requires, the payment of such expenses incurred by a current, former or
proposed director or officer in his or her capacity as a director or officer or
proposed director or officer (and not in any other capacity in which service was
or is or has been agreed to be rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Company of an undertaking, by or on behalf of such indemnified
person, to repay all amounts so advanced if it shall ultimately be determined
that such indemnified person is not entitled to be indemnified under the Bylaws
or otherwise. In addition, the Bylaws provide that the Company may, by action of
its board of directors, provide indemnification to employees and agents of the
Company, individually or as a group, with the same scope and effect as the
indemnification to employees and agents of the Company, individually or as a
group, with the same scope and effect as the indemnification of directors and
officers provided for in the Bylaws.
The Bylaws include related provisions meant to facilitate the indemnitee's
receipt of such benefits. These provisions cover, among other things: (i)
specification of the method of determining entitlement to indemnification and
the selection of independent counsel that will in some cases make such
determination; (ii) specification of certain time periods by which certain
payments or determinations must be made and actions must be taken; and (iii) the
establishment of certain presumptions in favor of an indemnitee. The benefits of
certain of these provisions are available to an indemnitee only if there has
been a change in control (as defined therein).
Stock Plans
In addition, Section 5 of each of the Company's 1989 Plan and 1995 Plan
provides that certain directors and officers administering the Stock Plans shall
not be liable for anything done or omitted to be done by him or her in
connection with the performance of duties under the Stock Plans, except for his
or her own willful misconduct or as expressly provided by statute.
Insurance
The Company has obtained a policy of liability insurance to insure its
directors and officers against losses resulting from certain acts committed by
them in their capacities as directors and officers of the Company.
Indemnification Agreements
The Company has entered into an agreement with each of its directors and
executive officers pursuant to which the Company has agreed to indemnify, to the
fullest extent of applicable law, such persons against all losses, liabilities,
claims, damages and expenses (as defined therein) arising out of any event
related to the fact that the person is or was a director or officer of the
Company.
The above discussion of the Company's Restated Certificate of
Incorporation, Bylaws, Plans, indemnification agreements and Section 145 of the
DGCL is intended to be only a summary and is qualified in its entirety by the
full text of each of the foregoing.
Item 7. Exemption from Registration Claimed
Not Applicable.
II-5
<PAGE>
Item 8. Exhibits
The following documents are filed as a part of this registration statement
or incorporated by reference herein:
Exhibit
No. Description
- ------------ -----------------------------------------------------------------
*4.1 Amended and Restated Certificate of Incorporation of the Company,
as amended May 22, 1996 (incorporated herein by reference to
Exhibit 3.01 of Form 10-KSB/A for the fiscal year ended December
31, 1996).
*4.2 Bylaws of the Company as adopted November 29, 1988 and amended
July 10, 1990 (incorporated herein by reference to Exhibit 3.06
of Form 10-KSB for the fiscal year ended December 31, 1991).
*4.3 1989 Plan (incorporated herein by reference to Appendix A to the
Company's Schedule 14A Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934).
4.4 1995 Plan.
4.5 Form of 1989 Plan Agreements.
4.6 Form of 1995 Plan Agreements.
5 Opinion of Baker & Botts, L.L.P.
23.1 Consent of Baker & Botts, L.L.P. (contained in Exhibit 5).
23.2 Consent of Ernst & Young, L.L.P.
24 Powers of Attorney (included on the signature page of this
Registration Statement).
- --------------------------
*Incorporated herein by reference as indicated.
Item 9. Undertakings
(a) 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 of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) of the Securities Act of 1933 if, in the
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
II-6
<PAGE>
(iii)To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do 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
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Act and will be
governed by the final adjudication of such issue.
II-7
<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
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 8th day of October,
1998.
Tanknology-NDE International, Inc.
By: /s/ JAY ALLEN CHAFFEE
------------------------------
Jay Allen Chaffee
Chairman of the Board
POWER OF ATTORNEY
Each person whose signature appears below appoints Jay Allen Chaffee, A.
Daniel Sharplin, and David G. Osowski, and each of them, each of whom may act
without the joinder of the other, as his true and lawful attorneys-in- fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and all other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully and for all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or their substitutes, 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 below by the following persons in the
capacities indicated on the 8th day of October, 1998.
Signature Title
- ------------------------------ -----------------------------------------------
/s/ JAY ALLEN CHAFFEE
- ------------------------------ Chairman of the Board and Director
Jay Allen Chaffee
/s/ A. DANIEL SHARPLIN
- ------------------------------ President, Chief Executive Officer and Director
A. Daniel Sharplin
/s/ DAVID G. OSOWSKI
- ------------------------------ Vice President and Chief Financial Officer
David G. Osowski (Principal Accounting Officer)
/s/ CHARLES C. MCGETTIGAN
- ------------------------------ Director
Charles C. McGettigan
/s/ MICHAEL S. TAYLOR
- ------------------------------ Director
Michael S. Taylor
/s/ MYRON A. WICK, III
- ------------------------------ Director
Myron A. Wick, III
/s/ KEL LANDERS
- ------------------------------ Director
Lawrence K. Landers
II-8
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
- ------------ -----------------------------------------------------------------
*4.1 Amended and Restated Certificate of Incorporation of the Company,
as amended May 22, 1996 (incorporated herein by reference to
Exhibit 3.01 of Form 10-KSB/A for the fiscal year ended December
31, 1996).
*4.2 Bylaws of the Company as adopted November 29, 1988 and amended
July 10, 1990 (incorporated herein by reference to Exhibit 3.06
of Form 10-KSB for the fiscal year ended December 31, 1991).
*4.3 1989 Plan (incorporated herein by reference to Appendix A to the
Company's Schedule 14A Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934).
4.4 1995 Plan.
4.5 Form of 1989 Plan Agreements.
4.6 Form of 1995 Plan Agreements.
5 Opinion of Baker & Botts, L.L.P.
23.1 Consent of Baker & Botts, L.L.P. (contained in Exhibit 5).
23.2 Consent of Ernst & Young, L.L.P.
24 Powers of Attorney (included on the signature page of this
Registration Statement).
- --------------------------
*Incorporated herein by reference as indicated.
II-9
<PAGE>
EXHIBIT 4.4
NDE ENVIRONMENTAL CORPORATION
1995 INCENTIVE PLAN
FOR NONMANAGEMENT EMPLOYEES
1. Objectives. The NDE Environmental Corporation 1995 Incentive Plan for
Nonmanagement Employees (the "Plan") is designed to retain selected employees of
NDE Environmental Corporation (the "Company") and its Subsidiaries and reward
them for making significant contributions to the success of the Company and its
Subsidiaries. These objectives are to be accomplished by making awards under the
Plan and thereby providing Participants with a proprietary interest in the
growth and performance of the Company and its Subsidiaries.
2. Definitions. As used herein, the terms set forth below shall have the
following respective meanings:
"Award" means the grant of any form of non-qualified stock option, stock
appreciation right, stock award or cash award, whether granted singly, in
combination or in tandem, to a Participant pursuant to any applicable terms,
conditions and limitations as the Committee may establish in order to fulfill
the objectives of the Plan.
"Award Agreement" means a written agreement between the Company and a
Participant that sets forth the terms, conditions and limitations applicable to
an Award.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" means the Board or such committee of the Board as is designated
by the Board to administer the Plan.
"Common Stock" means the Common Stock, par value $.0001 per share, of the
Company.
"Director" means an individual serving as a member of the Board.
"Fair Market Value" means, as of a particular date, (a) if the shares of
Common Stock are listed on a national securities exchange, the mean between the
highest and lowest sales price per share of Common Stock on the consolidated
transaction reporting system for the principal such national securities exchange
on that date, or, if there shall have been no such sale so reported on that
date, on the last preceding date on which such a sale was so reported, (b) if
the shares of Common Stock are not so listed but are quoted on the Nasdaq
National Market, the mean between the highest and lowest sales price per share
of Common Stock on the Nasdaq National Market on that date, or, if there shall
have been no such sale so reported on that date, on the last preceding date on
-1-
<PAGE>
EXHIBIT 4.4
which such a sale was so reported, (c) if the Common Stock is not so listed or
quoted, the mean between the closing bid and asked price on that date, or, if
there are no quotations available for such date, on the last preceding date on
which such quotations shall be available, as reported by Nasdaq, or, if not
reported by Nasdaq, by the National Quotation Bureau, Inc. or (d) if none of the
above is applicable, such amount as may be determined by the Board, in good
faith, to be the fair market value per share of Common Stock.
"Participant" means an employee of the Company or any of its Subsidiaries
to whom an Award has been made under this Plan.
"Restricted Stock" means Common Stock that is restricted or subject to
forfeiture provisions.
"Subsidiary" means any corporation of which the Company directly or
indirectly owns shares representing more than 50% of the voting power of all
classes or series of capital stock of such corporation which have the right to
vote generally on matters submitted to a vote of the shareholders of such
corporation.
3. Eligibility. All employees of the Company and its Subsidiaries, other than
employees who are executive officers or Directors of the Company or its
Subsidiaries, are eligible for Awards under this Plan. The Committee shall
select the Participants in the Plan from time to time by the grant of Awards
under the Plan. The granting of Awards under this Plan shall be entirely
discretionary and nothing in this Plan shall be deemed to give any employee of
the Company or its Subsidiaries any right to participate in this Plan or to be
granted an Award.
4. Common Stock Available for Awards. There shall be available for Awards
granted wholly or partly in Common Stock (including rights or options which may
be exercised for or settled in Common Stock) during the term of this Plan an
aggregate of 250,000 shares of Common Stock, subject to adjustment as provided
in Section 14. The Board and the appropriate officers of the Company shall from
time to time take whatever actions are necessary to file required documents with
governmental authorities and stock exchanges and transaction reporting systems
to make shares of Common Stock available for issuance pursuant to Awards. Common
Stock related to Awards that are forfeited or terminated, expire unexercised,
are settled in cash in lieu of Common Stock or in a manner such that all or some
of the shares covered by an Award are not issued to a Participant, or are
exchanged for Awards that do not involve Common Stock, shall immediately become
available for Awards hereunder.
5. Administration. This Plan shall be administered by the Committee, which
shall have full and exclusive power to interpret this Plan and to adopt such
rules, regulations and guidelines for carrying out this Plan as it may deem
necessary or proper, all of which powers shall be exercised in the best
interests of the Company and in keeping with the objectives of this Plan. The
Committee may, in its discretion, provide for the extension of the
exercisability of an Award, accelerate the vesting or exercisability of an
Award, eliminate or make less restrictive any restrictions contained in an
Award, waive any restriction or other provision of this Plan or an Award or
otherwise amend or modify an Award in any manner that is either (a) not adverse
-2-
<PAGE>
to the Participant holding such Award or (b) consented to by such Participant.
The Committee may correct any defect or supply any omission or reconcile any
inconsistency in this Plan or in any Award in the manner and to the extent the
Committee deems necessary or desirable to carry it into effect. Any decision of
the Committee in the interpretation and administration of this Plan shall lie
within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned. No member of the Committee or officer of the
Company to whom it has delegated authority in accordance with the provisions of
Section 6 of this Plan shall be liable for anything done or omitted to be done
by him or her, by any member of the Committee or by any officer of the Company
in connection with the performance of any duties under this Plan, except for his
or her own willful misconduct or as expressly provided by statute.
6. Delegation of Authority. The Committee may delegate to the Chairman of the
Board of Directors, the President and to other senior officers of the Company
its duties under this Plan pursuant to such conditions or limitations as the
Committee may establish.
7. Awards. The Committee shall determine the type or types of Awards to be
made to each Participant under this Plan. Each Award made hereunder shall be
embodied in an Award Agreement, which shall contain such terms, conditions and
limitations as shall be determined by the Committee in its sole discretion and
shall be signed by the Participant and by the President or any Vice President of
the Company for and on behalf of the Company. An Award Agreement may include
provisions for the repurchase by the Company of Common Stock acquired pursuant
to the Plan and the repurchase of a Participant's option rights under the Plan.
Awards may consist of those listed in this Section 7 and may be granted singly,
in combination or in tandem. Awards may also be made in combination or in tandem
with, in replacement of, or as alternatives to grants or rights (a) under this
Plan or any other employee plan of the Company or any of its Subsidiaries,
including the plan of any acquired entity, or (b) made to any Company or
Subsidiary employee by the Company or any Subsidiary. An Award may provide for
the granting or issuance of additional, replacement or alternative Awards upon
the occurrence of specified events, including the exercise of the original
Award.
(i) Stock Option. An Award may consist of a right to purchase a specified
number of shares of Common Stock at a price specified by the Committee
in the Award Agreement or otherwise.
(ii) Stock Appreciation Right. An Award may consist of a right to receive a
payment, in cash or Common Stock, equal to the excess of the Fair
Market Value or other specified valuation of a specified number of
shares of Common Stock on the date the stock appreciation right
("SAR") is exercised over a specified strike price as set forth in the
applicable Award Agreement.
-3-
<PAGE>
(iii)Stock Award. An Award may consist of Common Stock or may be
denominated in units of Common Stock. All or part of any stock Award
may be subject to conditions established by the Committee and set
forth in the Award Agreement, which conditions may include, but are
not limited to, continuous service with the Company and its
Subsidiaries, achievement of specific business objectives, increases
in specified indices, attaining specified growth rates and other
comparable measurements of performance. Such Awards may be based on
Fair Market Value or other specified valuations. The certificates
evidencing shares of Common Stock issued in connection with a stock
Award shall contain appropriate legends and restrictions describing
the terms and conditions of the restrictions applicable thereto.
(iv) Cash Award. An Award may be denominated in cash with the amount of the
eventual payment subject to future service and such other restrictions
and conditions as may be established by the Committee and set forth in
the Award Agreement, including, but not limited to, continuous service
with the Company and its Subsidiaries, achievement of specific
business objectives, increases in specified indices, attaining
specified growth rates and other comparable measurements of
performance.
8. Payment of Awards.
(a) General. Payment of Awards may be made in the form of cash or Common
Stock or combinations thereof and may include such restrictions as the Committee
shall determine including, in the case of Common Stock, restrictions on transfer
and forfeiture provisions.
(b) Deferral. The Committee may, in its discretion, (i) permit selected
Participants to elect to defer payments of some or all types of Awards in
accordance with procedures established by the Committee or (ii) provide for the
deferral of an Award in an Award Agreement or otherwise. Any such deferral may
be in the form of installment payments or a future lump sum payment. Any
deferred payment, whether elected by the Participant or specified by the Award
Agreement or by the Committee, may be forfeited if and to the extent that the
Award Agreement so provides.
(c) Dividends and Interest. Dividends or dividend equivalent rights may be
extended to and made part of any Award denominated in Common Stock or units of
Common Stock, subject to such terms, conditions and restrictions as the
Committee may establish. The Committee may also establish rules and procedures
for the crediting of interest on deferred cash payments and dividend equivalents
for deferred payment denominated in Common Stock or units of Common Stock.
(d) Substitution of Awards. At the discretion of the Committee, a
Participant may be offered an election to substitute an Award for another Award
or Awards of the same or different type.
-4-
<PAGE>
9. Stock Option Exercise. The price at which shares of Common Stock may be
purchased under a stock option shall be paid in full at the time of exercise in
cash or, if permitted by the Committee, by means of tendering Common Stock or
surrendering all or part of that or any other Award, including Restricted Stock,
valued at Fair Market Value on the date of exercise, or any combination thereof.
The Committee shall determine acceptable methods for tendering Common Stock or
Awards to exercise a stock option as it deems appropriate. If permitted by the
Committee, payment may be made by successive exercises by the Participant. The
Committee may provide for procedures to permit the exercise or purchase of
Awards by (a) loans from the Company or (b) use of the proceeds to be received
from the sale of Common Stock issuable pursuant to an Award. Unless otherwise
provided in the applicable Award Agreement, in the event shares of Restricted
Stock are tendered as consideration for the exercise of a stock option, a number
of the shares issued upon the exercise of the stock option, equal to the number
of shares of Restricted Stock used as consideration therefor, shall be subject
to the same restrictions as the Restricted Stock so submitted as well as any
additional restrictions that may be imposed by the Committee.
10. Tax Withholding. The Company shall have the right to deduct applicable
taxes from any Award payment and withhold, at the time of delivery or vesting of
cash or shares of Common Stock under this Plan, an appropriate amount of cash or
number of shares of Common Stock or a combination thereof for payment of taxes
required by law or to take such other action as may be necessary in the opinion
of the Company to satisfy all obligations for withholding of such taxes. The
Committee may also permit withholding to be satisfied by the transfer to the
Company of shares of Common Stock theretofore owned by the holder of the Award
with respect to which withholding is required. If shares of Common Stock are
used to satisfy tax withholding, such shares shall be valued based on the Fair
Market Value when the tax withholding is required to be made.
11. Amendment, Modification, Suspension or Termination. The Board may amend,
modify, suspend or terminate this Plan for the purpose of meeting or addressing
any changes in legal requirements or for any other purpose permitted by law
except that (a) no amendment or alteration that would impair the rights of any
Participant under any Award previously granted to such Participant shall be made
without such Participant's consent and (b) no amendment or alteration shall be
effective prior to approval by the Company's shareholders to the extent such
approval is then required by applicable law.
12. Termination of Employment. Upon the termination of employment by a
Participant, any unexercised, deferred or unpaid Awards shall be treated as
provided in the specific Award Agreement evidencing the Award. In the event of
such a termination, the Committee may, in its discretion, provide for the
extension of the exercisability of an Award, accelerate the vesting or
exercisability of an Award, eliminate or make less restrictive any restrictions
contained in an Award, waive any restriction or other provision of this Plan or
an Award or otherwise amend or modify the Award in any manner that is either (a)
not adverse to such Participant or (b) consented to by such Participant.
13. Assignability. The Committee may include in Award Agreements such
restrictions on transfer as it may determine in its sole discretion.
-5-
<PAGE>
14. Adjustments.
(a) The existence of outstanding Awards shall not affect in any manner 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
capital stock of the Company or its business or any merger or consolidation of
the Company, or any issue of bonds, debentures, preferred or prior preference
stock (whether or not such issue is prior to, on a parity with or junior to the
Common Stock) 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 of any kind, whether or not of a character similar to that of
the acts or proceedings enumerated above.
(b) In the event of any subdivision or consolidation of outstanding shares
of Common Stock or declaration of a dividend payable in shares of Common Stock
or capital reorganization or reclassification or other transaction involving an
increase or reduction in the number of outstanding shares of Common Stock, the
Committee may adjust proportionally (i) the number of shares of Common Stock
reserved under this Plan and covered by outstanding Awards denominated in Common
Stock or units of Common Stock; (ii) the exercise or other price in respect of
such Awards; and (iii) the appropriate Fair Market Value and other price
determinations for such Awards. In the event of any consolidation or merger of
the Company with another corporation or entity or the adoption by the Company of
a plan of exchange affecting the Common Stock or any distribution to holders of
Common Stock of securities or property (other than normal cash dividends or
dividends payable in Common Stock), the Committee shall make such adjustments or
other provisions as it may deem equitable, including adjustments to avoid
fractional shares, to give proper effect to such event. In the event of a
corporate merger, consolidation, acquisition of property or stock, separation,
reorganization or liquidation, the Committee shall be authorized, in its
discretion, (i) to issue or assume stock options, regardless of whether in a
transaction to which Section 424(a) of the Code applies, by means of
substitution of new options for previously issued options or an assumption of
previously issued options, (ii) to make provision, prior to the transaction, for
the acceleration of the vesting and exercisability of, or lapse of restrictions
with respect to, Awards and the termination of options that remain unexercised
at the time of such transaction or (iii) to provide for the acceleration of the
vesting and exercisability of the options and the cancellation thereof in
exchange for such payment as shall be mutually agreeable to the Participant and
the Committee.
15. Restrictions. No Common Stock or other form of payment shall be issued with
respect to any Award unless the Company shall be satisfied based on the advice
of its counsel that such issuance will be in compliance with applicable federal
and state securities laws. Certificates evidencing shares of Common Stock
delivered under this Plan may be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the rules, regulations
and other requirements of the Securities and Exchange Commission, any securities
exchange or transaction reporting system upon which the Common Stock is then
listed and any applicable federal and state securities law. The Committee may
cause a legend or legends to be placed upon any such certificates to make
appropriate reference to such restrictions.
16. Unfunded Plan. Insofar as it provides for Awards of cash, Common Stock or
rights thereto, this Plan shall be unfunded. Although bookkeeping accounts may
be established with respect to Participants who are entitled to cash, Common
-6-
<PAGE>
Stock or rights thereto under this Plan, any such accounts shall be used merely
as a bookkeeping convenience. The Company shall not be required to segregate any
assets that may at any time be represented by cash, Common Stock or rights
thereto, nor shall this Plan be construed as providing for such segregation, nor
shall the Company, the Board or the Committee be deemed to be a trustee of any
cash, Common Stock or rights thereto to be granted under this Plan. Any
liability or obligation of the Company to any Participant with respect to a
grant of cash, Common Stock or rights thereto under this Plan shall be based
solely upon any contractual obligations that may be created by this Plan and any
Award Agreement, and no such liability or obligation of the Company shall be
deemed to be secured by any pledge or other encumbrance on any property of the
Company. None of the Company, the Board or the Committee shall be required to
give any security or bond for the performance of any obligation that may be
created by this Plan.
17. No Employment Guaranteed: No provision of this Plan or any Award Agreement
hereunder shall confer any right upon any employee to continued employment with
the Company or any Subsidiary.
18. Rights as Shareholder: Unless otherwise provided under the terms of an
Award Agreement, a Participant shall have no rights as a holder of Common Stock
with respect to Awards granted hereunder, unless and until certificates for
shares of Common Stock are issued to such Participant.
19. Governing Law. This Plan and all determinations made and actions taken
pursuant hereto, to the extent not otherwise governed by mandatory provisions of
the Code or the securities laws of the United States, shall be governed by and
construed in accordance with the laws of the State of Texas.
20. Effective Date of Plan. This Plan shall be effective as of the date (the
"Effective Date") it is approved by the Board of Directors of the Company.
Attested to by the Secretary of NDE Environmental
Corporation as adopted by the Board of Directors of
NDE Environmental Corporation effective as of the
22nd day of June, 1995 (the "Effective Date").
/s/ ERIC J. HOPKINS
---------------------------------------------------
Eric ("Rick") J. Hopkins
Secretary
-7-
<PAGE>
EXHIBIT 4.5
TANKNOLOGY-NDE INTERNATIONAL, INC.
Non-Qualified Stock Option Agreement
Tanknology-NDE International, Inc., a Delaware Corporation (the "Company"),
hereby grants this ***** day of *******, 199*, to ********, an option to
purchase a maximum of ***** shares of its Common Stock, $.001 par value, at the
price $.**** per share, on the following terms and conditions:
1. Grant Under 1989 Long-Term Incentive Plan. This Option is granted pursuant
to and is governed by the Company's 1989 Long-Term Incentive Plan, as amended
(the "Plan") and, unless the context otherwise requires, terms used herein shall
have the same meaning as in the Plan. To the extent not specifically defined
herein, capitalized terms used in this Agreement shall have the same meanings
ascribed to them in the Plan. By execution of this Agreement, the Optionee
acknowledges receipt of a copy of the Plan. Determinations made in connection
with this Option pursuant to the Plan shall be governed by the Plan as it exists
on this date.
2. Grant as Non-Qualified Option; Other Options. This Option shall be treated
for federal income tax purposes as a Non-Qualified Option (rather than an
Incentive Stock Option), and the Board of Directors will take appropriate
action, if necessary, to achieve this result. This Option is in addition to any
other Options heretofore or hereafter granted to the Optionee by the Company. A
duplicate original of this instrument shall not effect the grant of another
Option.
3. Extent of Option If Business Relationship Continues. If the Optionee has
continued to serve the Company or any Subsidiary (as defined in the Plan) in the
capacity of an employee, officer, director or consultant (such service is
described herein as maintaining or being involved in a "Business Relationship"
with the Company) on the following dates, the Optionee may exercise this Option
for the number of shares set opposite the applicable date:
Less than one year from
******, 199* -0- shares
One year but less than
two years from up to
*****, 199* - up to 1/3 of the shares
granted
<PAGE>
EXHIBIT 4.5
Two years but less than
******, 199* - an additional 1/3 of the
shares granted
Three years but less than
*****, 199* - all of the shares granted
The foregoing rights are cumulative and, while the Optionee continues to
maintain a Business Relationship with the Company, may be exercised up to and
including the date which is ten years from the date this Option is granted. All
of the foregoing rights are subject to Articles 4, 12 and 13, as appropriate, if
the Optionee ceases to maintain a Business Relationship with the Company or
dies, becomes disabled or undergoes dissolution while involved in a Business
Relationship with the Company.
4. Termination of Business Relationship. If the Optionee ceases to maintain a
Business Relationship with the Company, other than by reason of death as defined
in Article 5, no further installments of this Option shall become exercisable
and this Option shall terminate after the passage of ninety (90) days from the
date the Business Relationship ceases, but in no event later than the scheduled
expiration date. In such a case, the Optionee's only rights hereunder shall be
those which are properly exercised before the termination of this Option.
5. Death; Dissolution. If the Optionee is a natural person who dies while
involved in a Business Relationship with the Company, this Option may be
exercised, to the extent of the number of shares with respect to which the
Optionee could have exercised it on the date of his death, by his estate,
personal representative or beneficiary to whom this Option has been assigned
pursuant to Article 10, at any time within one hundred eighty (180) days after
the date of death, but not later than the scheduled expiration date. If the
Optionee is a corporation, partnership, trust or other entity that is dissolved,
liquidated, becomes insolvent or enters into a merger or acquisition with
respect to which such Optionee is not the surviving entity at the time when such
entity is involved in a Business Relationship with the Company, this Option
shall immediately terminate as of the date of such event, and the only rights
hereunder shall be those as to which this Option was properly exercised before
such dissolution or other event.
<PAGE>
EXHIBIT 4.5
6. Partial Exercise. Exercise of this Option up to the extent above stated may
be made in part at any time and from time to time within the above limits,
except that this Option may not be exercised for a fraction of a share unless
such exercise is with respect to the final installment of stock subject to this
Option and a fractional share (or cash in lieu thereof) must be issued to permit
the Optionee to exercise completely such final installment. Any fractional share
with respect to which an installment of this Option cannot be exercised because
of the limitation contained in the preceding sentence shall remain subject to
this Option and shall be available for later purchase by the Optionee in
accordance with the terms hereof.
7. Payment of Price. The Option price is payable in United States dollars and
may be paid in cash or by check or any combination of the foregoing, equal in
amount to the Option price; plus all withholding taxes due.
8. Agreement to Purchase for Investment. By acceptance of this Option, the
Optionee agrees that a purchase of shares under this Option will not be made
with a view to their distribution, as that term is used in the Securities Act of
1933, as amended, unless in the opinion of counsel to the Company such
distribution is in compliance with or exempt from the registration and
prospectus requirements of that Act, and the Optionee agrees to sign a
certificate to such effect at the time of exercising this Option and agrees that
the certificate for the shares so purchased may be inscribed with a legend to
ensure compliance with that Act.
9. Method of Exercising Option. Subject to the terms and conditions of this
Agreement, this Option may be exercised by written notice to the Company (to the
attention of the corporate Secretary located at 8900 Shoal Creek Blvd., Building
200, Austin, Texas 78757, or to such transfer agent as the Company shall
designate. Such notice shall state the election to exercise this Option and the
number of shares in respect of which it is being exercised and shall be signed
by the person or persons so exercising this Option. Such notice shall be
accompanied by payment of the full purchase price of such shares, and the
Company shall deliver a certificate or certificates representing such shares as
soon as practicable after the notice shall be received. The certificate or
certificates for the shares as to which this Option shall have been so exercised
shall be registered in the name of the person or persons so exercising this
Option (or, if this Option shall be exercised by the Optionee and if the
Optionee shall so request in the notice exercising this Option, shall be
registered in the name of the Optionee and another person jointly, with right of
survivorship) and shall be delivered as provided above to or upon the written
order of the person or persons exercising this Option. In the event this Option
shall be exercised, pursuant to Article 5 hereof, by any person or persons other
than the Optionee, such notice shall be accompanied by appropriate proof of the
right of such person or persons to exercise this Option. All shares that shall
be purchased upon the exercise of this Option as provided herein shall be fully
paid and non-assessable.
10. Option Not Transferable. This Option is not transferable or assignable
except by will or by the laws of descent and distribution. During the Optionee's
lifetime, only the Optionee can exercise this Option.
<PAGE>
EXHIBIT 4.5
11. No Obligation to Exercise Option. The grant and acceptance of this Option
imposes no obligation on the Optionee to exercise it.
12. No Obligation to Continue Business Relationship. The Company and any
Subsidiary are not by the Plan or this Option obligated to continue to maintain
a Business Relationship with the Optionee.
13. No Rights as Stockholder until Exercise. The Optionee shall have no rights
as a stockholder with respect to shares subject to this Agreement until a stock
certificate therefor has been issued to the Optionee and is fully paid for.
Except as is expressly provided in the Plan with respect to certain changes in
the capitalization of the Company, no adjustment shall be made for dividends or
similar rights for which the record date is prior to the date such stock
certificate is issued.
14. Capital Changes and Business Successions. It is the purpose of this Option
to encourage the Optionee to work for the best interests of the Company and its
stockholders. Since, for example, that might require the issuance of a stock
dividend or a merger with another corporation, the purpose of this Option would
not be served if such a stock dividend, merger or similar occurrence would cause
the Optionee's rights hereunder to be diluted or terminated and thus be contrary
to the Optionee's interest. The Plan contains extensive provisions designed to
reserve options at full value in a number of contingencies. Therefore,
provisions in the Plan for adjustment with respect to stock subject to options
and the related provisions with respect to successors to the business of the
Company are hereby made applicable hereunder and are incorporated herein by
reference. In particular, without affecting the generality of the foregoing, it
is understood that for the purposes of Articles 3 through 5 hereof, both
inclusive, maintaining or being involved in a Business Relationship with the
Company includes maintaining or being involved in a Business Relationship with a
Related Corporation as defined in the Plan.
15. Withholding Taxes. The Optionee hereby agrees that the Company may withhold
from the Optionee's wages or other remuneration the appropriate amount of
federal, state and local taxes attributable to the Optionee's exercise of any
installment of this Option. At the Company's discretion, the amount required to
be withheld may be withheld in cash from such wages or other remuneration, or in
kind from the Common Stock otherwise deliverable to the Optionee on exercise of
this Option. The Optionee further agrees that, if the Company does not withhold
an amount from the Optionee's wages or other remuneration sufficient to satisfy
the Company's withholding obligation, the Optionee will reimburse the Company on
demand, in cash, for the amount underwithheld. If Optionee is not an employee of
the Company, Optionee acknowledges by signing this Agreement that upon
Optionee's exercise of the Option the Company will not collect from Optionee or
pay any contributions to Social Security, unemployment insurance, federal or
state withholding taxes, nor provide any other contributions for benefits which
might be expected in an employer-employee relationship.
16. Amendment and Termination. This Agreement may be amended only by a written
agreement executed by the Company and the Optionee. The Company may terminate
the Plan at any time, provided that such termination will not modify the terms
<PAGE>
EXHIBIT 4.5
and conditions of the Option granted hereunder without the Optionee's consent.
17. Change In Control. Upon a Change in Control (as such term is defined in the
Plan), the Company may, in its discretion, but shall not be obligated to,
accelerate the exercise dates of this Option, pay cash to the Optionee equal to
the spread between the Purchase Price and the Fair Market Value in exchange for
the cancellation of the Option, or, with the consent of the Optionee, substitute
new options or make any necessary adjustment or amendment to this Option. The
existence of the Option shall not affect the right of the Company to reclassify,
recapitalize or otherwise change its capital or debt structure or to merge,
consolidate, convey any or all of its assets, dissolve, liquidate, wind up or
otherwise reorganize.
18. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the State of Delaware.
<PAGE>
EXHIBIT 4.5
IN WITNESS WHEREOF the Company and the Optionee have caused this instrument to
be executed, and the Optionee whose signature appears below acknowledges receipt
of a copy of the Plan and acceptance of an original copy of this Agreement.
- --------------------------- TANKNOLOGY-NDE INTERNATIONAL, INC.
Optionee's Name
- --------------------------- By:_______________________________
Optionee's Signature
- ---------------------------
Print Name of Employee
- ---------------------------
Title
- ---------------------------
Street Address
- ---------------------------
City, State, zip code
- ---------------------------
Social Security I.D. Number
<PAGE>
EXHIBIT 4.6
TANKNOLOGY-NDE INTERNATIONAL, INC.
STOCK OPTION AGREEMENT
FOR 1995 INCENTIVE PLAN
FOR NON-MANAGEMENT EMPLOYEES
Tanknology-NDE International, Inc., a Delaware Corporation (the "Company"),
hereby grants this *** day of ****, 199**, to ***** (the "Optionee"), an option
to purchase a maximum of **** shares of its Common Stock, $.001 par value, at
the price $ .*** per share, on the following terms and conditions:
1. Grant Under 1995 Incentive Plan for Non-Management Employees. This Option
is granted pursuant to and is governed by the Company's 1995 Incentive Plan For
Non-Management Employees, as amended (the "Plan") and, unless the context
otherwise requires, terms used herein shall have the same meaning as in the
Plan. To the extent not specifically defined herein, capitalized terms used in
this Agreement shall have the same meanings ascribed to them in the Plan. By
execution of this Agreement, the Optionee acknowledges receipt of a copy of the
Plan. Determinations made in connection with this Option pursuant to the Plan
shall be governed by the Plan as it exists on this date.
2. Grant as Non-Qualified Option; Other Options. This Option shall be treated
for federal income tax purposes as a Non-Qualified Option (rather than an
Incentive Stock Option), and the Board of Directors will take appropriate
action, if necessary, to achieve this result. This Option is in addition to any
other Options heretofore or hereafter granted to the Optionee by the Company. A
duplicate original of this instrument shall not effect the grant of another
Option.
3. Extent of Option If Business Relationship Continues. If the Optionee has
continued to serve the Company or any Subsidiary (as defined in the Plan) in the
capacity of an employee, officer, director or consultant (such service is
described herein as maintaining or being involved in a "Business Relationship"
with the Company) on the following dates, the Optionee may exercise this Option
for the number of shares set opposite the applicable date:
Less than one year from
*****, 199* -0- shares
One year but less than
two years from up to
*****, 199* up to 1/3 of the shares granted
<PAGE>
Two years but less than an additional 1/3 of the shares
three years from ****, 199* granted
Three years but less than
ten years from ****, 199* all of the shares granted
The foregoing rights are cumulative and, while the Optionee continues to
maintain a Business Relationship with the Company, may be exercised up to and
including the date which is 10 years from the date this Option is granted. All
of the foregoing rights are subject to Articles 4, 12 and 13, as appropriate, if
the Optionee ceases to maintain a Business Relationship with the Company or
dies, becomes disabled or undergoes dissolution while involved in a Business
Relationship with the Company.
4. Termination of Business Relationship. If the Optionee ceases to maintain a
Business Relationship with the Company, other than by reason of death as defined
in Article 5, no further installments of this Option shall become exercisable
and this Option shall terminate after the passage of ninety (90) days from the
date the Business Relationship ceases, but in no event later than the scheduled
expiration date. In such a case, the Optionee's only rights hereunder shall be
those which are properly exercised before the termination of this Option.
5. Death; Dissolution. If the Optionee is a natural person who dies while
involved in a Business Relationship with the Company, this Option may be
exercised, to the extent of the number of shares with respect to which the
Optionee could have exercised it on the date of his death, by his estate,
personal representative or beneficiary to whom this Option has been assigned
pursuant to Article 10, at any time within one hundred eighty (180) days after
the date of death, but not later than the scheduled expiration date. If the
Optionee is a corporation, partnership, trust or other entity that is dissolved,
liquidated, becomes insolvent or enters into a merger or acquisition with
respect to which such Optionee is not the surviving entity at the time when such
entity is involved in a Business Relationship with the Company, this Option
shall immediately terminate as of the date of such event, and the only rights
hereunder shall be those as to which this Option was properly exercised before
such dissolution or other event.
<PAGE>
6. Partial Exercise. Exercise of this Option up to the extent above stated may
be made in part at any time and from time to time within the above limits,
except that this Option may not be exercised for a fraction of a share unless
such exercise is with respect to the final installment of stock subject to this
Option and a fractional share (or cash in lieu thereof) must be issued to permit
the Optionee to exercise completely such final installment. Any fractional share
with respect to which an installment of this Option cannot be exercised because
of the limitation contained in the preceding sentence shall remain subject to
this Option and shall be available for later purchase by the Optionee in
accordance with the terms hereof.
7. Payment of Price. The Option price is payable in United States dollars and
may be paid in cash or by check or any combination of the foregoing, equal in
amount to the Option price; plus all withholding taxes due.
8. Agreement to Purchase for Investment. By acceptance of this Option, the
Optionee agrees that a purchase of shares under this Option will not be made
with a view to their distribution, as that term is used in the Securities Act of
1933, as amended, unless in the opinion of counsel to the Company such
distribution is in compliance with or exempt from the registration and
prospectus requirements of that Act, and the Optionee agrees to sign a
certificate to such effect at the time of exercising this Option and agrees that
the certificate for the shares so purchased may be inscribed with a legend to
ensure compliance with that Act.
9. Method of Exercising Option. Subject to the terms and conditions of this
Agreement, this Option may be exercised by written notice to the Company (to the
attention of the corporate Secretary located at 8900 Shoal Creek Blvd., Building
200, Austin, Texas 78757, or to such transfer agent as the Company shall
designate. Such notice shall state the election to exercise this Option and the
number of shares in respect of which it is being exercised and shall be signed
by the person or persons so exercising this Option. Such notice shall be
accompanied by payment of the full purchase price of such shares, and the
Company shall deliver a certificate or certificates representing such shares as
soon as practicable after the notice shall be received. The certificate or
certificates for the shares as to which this Option shall have been so exercised
shall be registered in the name of the person or persons so exercising this
Option (or, if this Option shall be exercised by the Optionee and if the
Optionee shall so request in the notice exercising this Option, shall be
registered in the name of the Optionee and another person jointly, with right of
survivorship) and shall be delivered as provided above to or upon the written
order of the person or persons exercising this Option. In the event this Option
shall be exercised, pursuant to Article 5 hereof, by any person or persons other
than the Optionee, such notice shall be accompanied by appropriate proof of the
right of such person or persons to exercise this Option. All shares that shall
be purchased upon the exercise of this Option as provided herein shall be fully
paid and non-assessable.
10. Option Not Transferable. This Option is not transferable or assignable
except by will or by the laws of descent and distribution. During the Optionee's
lifetime, only the Optionee can exercise this Option.
<PAGE>
11. No Obligation to Exercise Option. The grant and acceptance of this Option
imposes no obligation on the Optionee to exercise it.
12. No Obligtion to Continue Business Relationship. The Company and any
Subsidiary are not by the Plan or this Option obligated to continue to maintain
a Business Relationship with the Optionee.
13. No Rights as Stockholder until Exercise. The Optionee shall have no rights
as a stockholder with respect to shares subject to this Agreement until a stock
certificate therefor has been issued to the Optionee and is fully paid for.
Except as is expressly provided in the Plan with respect to certain changes in
the capitalization of the Company, no adjustment shall be made for dividends or
similar rights for which the record date is prior to the date such stock
certificate is issued.
14. Capital Changes and Business Successions. It is the purpose of this Option
to encourage the Optionee to work for the best interests of the Company and its
stockholders. Since, for example, that might require the issuance of a stock
dividend or a merger with another corporation, the purpose of this Option would
not be served if such a stock dividend, merger or similar occurrence would cause
the Optionee's rights hereunder to be diluted or terminated and thus be contrary
to the Optionee's interest. The Plan contains extensive provisions designed to
reserve options at full value in a number of contingencies. Therefore,
provisions in the Plan for adjustment with respect to stock subject to options
and the related provisions with respect to successors to the business of the
Company are hereby made applicable hereunder and are incorporated herein by
reference. In particular, without affecting the generality of the foregoing, it
is understood that for the purposes of Articles 3 through 5 hereof, both
inclusive, maintaining or being involved in a Business Relationship with the
Company includes maintaining or being involved in a Business Relationship with a
Related Corporation as defined in the Plan.
15. Withholding Taxes. The Optionee hereby agrees that the Company may withhold
from the Optionee's wages or other remuneration the appropriate amount of
federal, state and local taxes attributable to the Optionee's exercise of any
installment of this Option. At the Company's discretion, the amount required to
be withheld may be withheld in cash from such wages or other remuneration, or in
kind from the Common Stock otherwise deliverable to the Optionee on exercise of
this Option. The Optionee further agrees that, if the Company does not withhold
an amount from the Optionee's wages or other remuneration sufficient to satisfy
the Company's withholding obligation, the Optionee will reimburse the Company on
demand, in cash, for the amount underwithheld. If Optionee is not an employee of
the Company, Optionee acknowledges by signing this Agreement that upon
Optionee's exercise of the Option the Company will not collect from Optionee or
pay any contributions to Social Security, unemployment insurance, federal or
state withholding taxes, nor provide any other contributions for benefits which
might be expected in an employer-employee relationship.
<PAGE>
16. Amendment and Termination. This Agreement may be amended only by a written
agreement executed by the Company and the Optionee. The Company may terminate
the Plan at any time, provided that such termination will not modify the terms
and conditions of the Option granted hereunder without the Optionee's consent.
17. Change In Control. Upon a Change in Control (as such term is defined in the
Plan), the Company may, in its discretion, but shall not be obligated to,
accelerate the exercise dates of this Option, pay cash to the Optionee equal to
the spread between the Purchase Price and the Fair Market Value in exchange for
the cancellation of the Option, or, with the consent of the Optionee, substitute
new options or make any necessary adjustment or amendment to this Option. The
existence of the Option shall not affect the right of the Company to reclassify,
recapitalize or otherwise change its capital or debt structure or to merge,
consolidate, convey any or all of its assets, dissolve, liquidate, wind up or
otherwise reorganize.
18. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF the Company and the Optionee have caused this instrument to
be executed, and the Optionee whose signature appears below acknowledges receipt
of a copy of the Plan and acceptance of an original copy of this Agreement.
- --------------------------- TANKNOLOGY-NDE INTERNATIONAL, INC.
Optionee's Name
- --------------------------- By:_______________________________
Optionee's Signature
- ---------------------------
Print Name of Employee
- ---------------------------
Title
- ---------------------------
Street Address
- ---------------------------
City, State, zip code
- ---------------------------
Social Security I.D. Number
<PAGE>
EXHIBIT 5
October 8, 1998
Tanknology-NDE International, Inc.
8900 Shoal Creek Blvd.
Building 200
Austin, Texas 78757
Gentlemen:
In connection with the Registration Statement on Form S-8 (the
"Registration Statement") being filed by Tanknology-NDE International, Inc., a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to 6,250,000
shares of common stock of the Company, par value $.0001 per share ("Common
Stock"), that may be issued pursuant to the 1989 Long-Term Incentive Plan and
1995 Incentive Plan for Non-Management Employees (the "Plans"), certain legal
matters in connection with those shares of Common Stock are being passed on for
the Company by us. At your request, this opinion is being furnished for filing
as Exhibit 5 to the Registration Statement.
In our capacity as your counsel in the connection referred to above, we
have examined the Company's Restated Certificate of Incorporation and Bylaws,
each as amended to date, and the originals, or copies certified or otherwise
identified, of corporate records of the Company, certificates of public
officials and of representatives of the Company, statutes and other instruments
and documents as a basis for the opinions hereinafter expressed. In connection
with this opinion, we have relied on certificates of officers of the Company
with respect to the accuracy of material factual matters contained in or covered
by the certificates referred to above.
Based on and subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware.
2. On the issuance of shares of Common Stock pursuant to the provisions
of the Plans and the related award agreements authorized and approved
by the Compensation Committee of the Board of Directors of the Company
for consideration at least equal to the par value of those shares,
those shares of Common Stock will be duly authorized by all necessary
corporate action on the part of the Company, validly issued, fully
paid and nonassessable.
<PAGE>
-2-
October 8, 1998
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ BAKER & BOTTS, L.L.P.
----------------------------------
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration statement
on Form S-8 pertaining to the 1989 Long-Term Incentive Plan and the 1995
Incentive Plan for Non-Management Employees of Tanknology-NDE International,
Inc., of our report dated March 13, 1998, with respect to the consolidated
financial statements of Tanknology-NDE International, Inc. included in its Form
10-K for the year ended December 31, 1997, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG, L.L.P.
---------------------------------
ERNST & YOUNG, L.L.P.
Austin, Texas
October 8, 1998
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