Exhibit 10.32
HECKMANN
CORPORATION
STOCK OPTION
AGREEMENT
Heckmann Corporation (the “
Company ” ) has granted to the Participant named
in the Notice of Grant of Stock Option (the “
Grant Notice ” ) to which this Stock Option
Agreement (the “ Option Agreement ” ) is
attached an option (the “ Option ” ) to
purchase certain shares of Stock upon the terms and conditions set
forth in the Grant Notice and this Option Agreement. The Option has
been granted pursuant to and shall in all respects be subject to
the terms and conditions of the Heckmann Corporation 2009 Equity
Incentive Plan (the “ Plan ” ), as
amended to the Date of Grant, the provisions of which are
incorporated herein by reference. By signing the Grant Notice, the
Participant: (a) acknowledges receipt of, and represents that
the Participant has read and is familiar with, the Grant Notice,
this Option Agreement, the Plan and a prospectus for the Plan
prepared in connection with the registration with the Securities
and Exchange Commission of shares issuable pursuant to the Option
(the “ Plan Prospectus ” ),
(b) accepts the Option subject to all of the terms and
conditions of the Grant Notice, this Option Agreement and the Plan
and (c) agrees to accept as binding, conclusive and final all
decisions or interpretations of the Committee upon any questions
arising under the Grant Notice, this Option Agreement or the
Plan.
1. D
EFINITIONS
AND
C
ONSTRUCTION
.
1.1 Definitions .
Unless otherwise defined herein, capitalized terms shall have the
meanings assigned to such terms in the Grant Notice or the
Plan.
1.2 Construction .
Captions and titles contained herein are for convenience only and
shall not affect the meaning or interpretation of any provision of
this Option Agreement. Except when otherwise indicated by the
context, the singular shall include the plural and the plural shall
include the singular. Use of the term “or” is not
intended to be exclusive, unless the context clearly requires
otherwise.
2. T
AX
C
ONSEQUENCES
.
2.1 Tax Status of Option
. This Option is intended to have the tax status
designated in the Grant Notice.
(a) Incentive Stock Option
. If the Grant Notice so designates, this Option is intended to
be an Incentive Stock Option within the meaning of
Section 422(b) of the Code, but the Company does not represent
or warrant that this Option qualifies as such. The Participant
should consult with the Participant’s own tax advisor
regarding the tax effects of this Option and the requirements
necessary to obtain favorable income tax treatment under
Section 422 of the Code, including, but not limited to,
holding period requirements. (NOTE TO PARTICIPANT: If the Option is
exercised more than three (3) months after the date on which
you cease to be an Employee (other than by reason of your death or
permanent and total disability as defined in Section 22(e)(3)
of the Code), the Option will be treated as a Nonstatutory Stock
Option and not as an Incentive Stock Option to the extent required
by Section 422 of the Code.)
(b) Nonstatutory Stock
Option. If the Grant Notice so designates, this Option is
intended to be a Nonstatutory Stock Option and shall not be treated
as an Incentive Stock Option within the meaning of
Section 422(b) of the Code.
2.2 ISO Fair Market Value
Limitation. If the Grant Notice designates this Option as an
Incentive Stock Option, then to the extent that the Option
(together with all Incentive Stock Options granted to the
Participant under all stock option plans of the Participating
Company Group, including the Plan) becomes exercisable for the
first time during any calendar year for shares having a Fair Market
Value greater than One Hundred Thousand Dollars ($100,000), the
portion of such options which exceeds such amount will be treated
as Nonstatutory Stock Options. For purposes of this
Section 2.2, options designated as Incentive Stock Options are
taken into account in the order in which they were granted, and the
Fair Market Value of stock is determined as of the time the option
with respect to such stock is granted. If the Code is amended to
provide for a different limitation from that set forth in this
Section 2.2, such different limitation shall be deemed
incorporated herein effective as of the date required or permitted
by such amendment to the Code. If the Option is treated as an
Incentive Stock Option in part and as a Nonstatutory Stock Option
in part by reason of the limitation set forth in this
Section 2.2, the Participant may designate which portion of
such Option the Participant is exercising. In the absence of such
designation, the Participant shall be deemed to have exercised the
Incentive Stock Option portion of the Option first. Separate
certificates representing each such portion shall be issued upon
the exercise of the Option. (NOTE TO PARTICIPANT: If the aggregate
Exercise Price of the Option (that is, the Exercise Price
multiplied by the Number of Option Shares) plus the aggregate
exercise price of any other Incentive Stock Options you hold
(whether granted pursuant to the Plan or any other stock option
plan of the Participating Company Group) is greater than $100,000,
you should contact the Chief Financial Officer of the Company to
ascertain whether the entire Option qualifies as an Incentive Stock
Option.)
3. A
DMINISTRATION
.
All questions of interpretation
concerning the Grant Notice, this Option Agreement, the Plan or any
other form of agreement or other document employed by the Company
in the administration of the Plan or the Option shall be determined
by the Committee. All such determinations by the Committee shall be
final, binding and conclusive upon all persons having an interest
in the Option, unless fraudulent or made in bad faith. Any and all
actions, decisions and determinations taken or made by the
Committee in the exercise of its discretion pursuant to the Plan or
the Option or other agreement thereunder (other than determining
questions of interpretation pursuant to the preceding sentence)
shall be final, binding and conclusive upon all persons having an
interest in the Option. Any Officer shall have the authority to act
on behalf of the Company with respect to any matter, right,
obligation, or election which is the responsibility of or which is
allocated to the Company herein, provided the Officer has apparent
authority with respect to such matter, right, obligation, or
election.
4. E
XERCISE
OF
THE
O
PTION
.
4.1 Right to Exercise
. Except as otherwise provided herein, the Option shall
be exercisable on and after the Initial Vesting Date and prior to
the termination of the Option (as
2
provided in Section 6) in an amount not to
exceed the number of Vested Shares less the number of shares
previously acquired upon exercise of the Option. In no event shall
the Option be exercisable for more shares than the Number of Option
Shares, as adjusted pursuant to Section 9.
4.2 Method of Exercise
. Exercise of the Option shall be by means of electronic
or written notice (the “ Exercise Notice
” ) in a form authorized by the Company. An electronic
Exercise Notice must be digitally signed or authenticated by the
Participant in such manner as required by the notice and
transmitted to the Company or an authorized representative of the
Company (including a third-party administrator designated by the
Company). In the event that the Participant is not authorized or is
unable to provide an electronic Exercise Notice, the Option shall
be exercised by a written Exercise Notice addressed to the Company,
which shall be signed by the Participant and delivered in person,
by certified or registered mail, return receipt requested, by
confirmed facsimile transmission, or by such other means as the
Company may permit, to the Company, or an authorized representative
of the Company (including a third-party administrator designated by
the Company). Each Exercise Notice, whether electronic or written,
must state the Participant’s election to exercise the Option,
the number of whole shares of Stock for which the Option is being
exercised and such other representations and agreements as to the
Participant’s investment intent with respect to such shares
as may be required pursuant to the provisions of this Option
Agreement. Further, each Exercise Notice must be received by the
Company prior to the termination of the Option as set forth in
Section 6 and must be accompanied by full payment of the
aggregate Exercise Price for the number of shares of Stock being
purchased. The Option shall be deemed to be exercised upon receipt
by the Company of such electronic or written Exercise Notice and
the aggregate Exercise Price.
4.3 Payment of Exercise
Price.
(a) Forms of Consideration
Authorized . Except as otherwise provided below, payment of
the aggregate Exercise Price for the number of shares of Stock for
which the Option is being exercised shall be made (i) in cash,
by check or in cash equivalent; (ii) if permitted by the
Company and subject to the limitations contained in
Section 4.3(b), by means of (1) a Cashless Exercise,
(2) a Net-Exercise, or (3) a Stock Tender Exercise; or
(iii) by any combination of the foregoing.
(b) Limitations on Forms of
Consideration. The Company reserves, at any and all times,
the right, in the Company’s sole and absolute discretion, to
establish, decline to approve or terminate any program or procedure
providing for payment of the Exercise Price through any of the
means described below, including with respect to the Participant
notwithstanding that such program or procedures may be available to
others.
(i) Cashless Exercise. A
“ Cashless Exercise ” means the delivery
of a properly executed Exercise Notice together with irrevocable
instructions to a broker in a form acceptable to the Company
providing for the assignment to the Company of the proceeds of a
sale or loan with respect to shares of Stock acquired upon the
exercise of the Option in an amount not less than the aggregate
Exercise Price for such shares (including, without limitation,
through an exercise complying with the provisions of
Regulation T as promulgated from time to time by the Board of
Governors of the Federal Reserve System).
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(ii) Net-Exercise. A
“ Net-Exercise ” means the delivery of a
properly executed Exercise Notice electing a procedure pursuant to
which (1) the Company will reduce the number of shares
otherwise issuable to the Participant upon the exercise of the
Option by the largest whole number of shares having a Fair Market
Value that does not exceed the aggregate Exercise Price for the
shares with respect to which the Option is exercised, and
(2) the Participant shall pay to the Company in cash the
remaining balance of such aggregate Exercise Price not satisfied by
such reduction in the number of whole shares to be issued.
Following a Net-Exercise, the number of shares remaining subject to
the Option, if any, shall be reduced by the sum of (1) the net
number of shares issued to the Participant upon such exercise, and
(2) the number of shares deducted by the Company for payment
of the aggregate Exercise Price.
(iii) Stock Tender Exercise.
A “ Stock Tender Exercise ” means the
delivery of a properly executed Exercise Notice accompanied by
(1) the Participant’s tender to the Company, or
attestation to the ownership, in a form acceptable to the Company
of whole shares of Stock having a Fair Market Value that does not
exceed the aggregate Exercise Price for the shares with respect to
which the Option is exercised, and (2) the Participant’s
payment to the Company in cash of the remaining balance of such
aggregate Exercise Price not satisfied by such shares’ Fair
Market Value. A Stock Tender Exercise shall not be permitted if it
would constitute a violation of the provisions of any law,
regulation or agreement restricting the redemption of the
Company’s stock. If required by the Company, the Option may
not be exercised by tender to the Company, or attestation to the
ownership, of shares of Stock unless such shares either have been
owned by the Participant for a period of time required by the
Company (and not used for another option exercise by attestation
during such period) or were not acquired, directly or indirectly,
from the Company.
4.4 Tax Withholding
.
(a) In General. At the
time the Option is exercised, in whole or in part, or at any time
thereafter as requested by a Participating Company, the Participant
hereby authorizes withholding from payroll and any other amounts
payable to the Participant, and otherwise agrees to make adequate
provision for (including by means of a Cashless Exercise to the
extent permitted by the Company), any sums required to satisfy the
federal, state, local and foreign tax (including any social
insurance) withholding obligations of the Participating Company
Group, if any, which arise in connection with the Option. The
Company shall have no obligation to deliver shares of Stock until
the tax withholding obligations of the Participating Company Group
have been satisfied by the Participant.
(b) Withholding in Shares
. The Company shall have the right, but not the obligation, to
require the Participant to satisfy all or any portion of a
Participating Company’s tax withholding obligations upon
exercise of the Option by deducting from the shares of Stock
otherwise issuable to the Participant upon such exercise a number
of whole shares having a fair market value, as determined by the
Company as of the date of exercise, not in excess of the amount of
such tax withholding obligations determined by the applicable
minimum statutory withholding rates.
4.5 Beneficial Ownership of
Shares; Certificate Registration . The Participant
hereby authorizes the Company, in its sole discretion, to deposit
for the benefit of the
4
Participant with any broker with which the
Participant has an account relationship of which the Company has
notice any or all shares acquired by the Participant pursuant to
the exercise of the Option. Except as provided by the preceding
sentence, a certificate for the shares as to which the Option is
exercised shall be registered in the name of the Participant, or,
if applicable, in the names of the heirs of the
Participant.
4.6 Restrictions on Grant of the
Option and Issuance of Shares . The grant of the Option
and the issuance of shares of Stock upon exercise of the Option
shall be subject to compliance with all applicable requirements of
federal, state or foreign law with respect to such securities. The
Option may not be exercised if the issuance of shares of Stock upon
exercise would constitute a violation of any applicable federal,
state or foreign securities laws or other law or regulations or the
requirements of any stock exchange or market system upon which the
Stock may then be listed. In addition, the Option may not be
exercised unless (i) a registration statement under the
Securities Act shall at the time of exercise of the Option be in
effect with respect to the shares issuable upon exercise of the
Option or (ii) in the opinion of legal counsel to the Company,
the shares issuable upon exercise of the Option may be issued in
accordance with the terms of an applicable exemption from the
registration requirements of the Securities Act. THE PARTICIPANT IS
CAUTIONED THAT THE OPTION MAY NOT BE EXERCISED UNLESS THE FOREGOING
CONDITIONS ARE SATISFIED. ACCORDINGLY, THE PARTICIPANT MAY NOT BE
ABLE TO EXERCISE THE OPTION WHEN DESIRED EVEN THOUGH THE OPTION IS
VESTED. The inability of the Company to obtain from any regulatory
body having jurisdiction the authority, if any, deemed by the
Company’s legal counsel to be necessary to the lawful
issuance and sale of any shares subject to the Option shall relieve
the Company of any liability in respect of the failure to issue or
sell such shares as to which such requisite authority shall not
have been obtained. As a condition to the exercise of the Option,
the Company may require the Participant to satisfy any
qualifications that may be necessary or appropriate, to evidence
compliance with any applicable law or regulation and to make any
representation or warranty with respect thereto as may be requested
by the Company.
4.7 Fractional Shares
. The Company shall not be required to issue fractional
shares upon the exercise of the Option.
5. T
RANSFERABILITY
OF
THE
O
PTION
.
5.1 Except as provided in
Section 5.2, the Option may be exercised during the lifetime
of the Participant only by the Participant or the
Participant’s guardian or legal representative and shall not
be subject in any manner to anticipation, alienation, sale,
exchange, transfer, assignment, pledge, encumbrance, or garnishment
by creditors of the Participant or the Participant’s
beneficiary, except transfer by will or by the laws of descent and
distribution. Following the death of the Participant, the Option,
to the extent provided in Section 7, may be exercised by
the
