Exhibit 10.57
OPTION AGREEMENT
FOR OFFICERS AND KEY EMPLOYEES
PURSUANT TO THE SEACOR SMIT INC. (FORMERLY SEACOR HOLDINGS, INC.)
1996 SHARE INCENTIVE PLAN
This OPTION AGREEMENT dated as of January 29, 1999 (the "Grant
Date") provides for the granting of options by SEACOR SMIT Inc., a Delaware
corporation (the "Company"), to Xxxxxxx Xxxxxxxxx, an employee of the Company
(the "Employee"), to purchase shares of the Company's common stock, par value
$.01 (the "Common Stock"), on the terms and subject to the conditions
hereinafter provided.
The stock options to be granted pursuant hereto shall not be
Incentive Stock Options (as defined in Section 422A of the Internal Revenue Code
of 1986, as amended).
1. Number of Shares. The Company hereby awards to the Employee
options to purchase 25,000 shares of Common Stock (the "Stock Options").
2. Exercise Price. For the Stock Options granted hereunder,
the per-share exercise price shall be forty-four and one half United States
dollars (US $44.50), the price at which the shares last traded on the New York
Stock Exchange on the Grant Date.
3. Payment of Exercise Price. The option exercise price may be
paid in cash, by the delivery of shares of Common Stock of the Company then
owned by the Employee, or by a combination of these methods. Payments may also
be made by delivering a properly executed exercise notice to the Company
together with a copy of irrevocable instructions to a broker to deliver promptly
to the Company the amount of sale or loan proceeds to pay the exercise price. To
facilitate the foregoing, the Company may enter into agreements for coordinated
procedures with one or more brokerage firms. The Company may prescribe any other
method of paying the exercise price that it determines to be consistent with
applicable law, including, without limitation, in lieu of the exercise of Stock
Options by delivery of shares of Common Stock of the Company then owned by the
Employee, providing the Company with a notarized statement attesting to the
number of shares owned, where upon verification by the Company, the Company may
issue to the Employee only the number of incremental shares to which the
Employee is entitled upon exercise of the Stock Options. In determining which
methods the Employee may utilize to pay the exercise price, the Company may
consider such factors as it determines are appropriate.
4. Exercise Period.
a. General. Subject to the terms and conditions set
forth herein, Stock Options granted hereunder shall be exercisable as follows:
(i). 8,334 shall be exercisable as of January 31,
2000;
(ii). 8,333 shall be exercisable as of January 31,
2001; and
(iii). 8,333 shall be exercisable as of January 31,
2002.
Subject to the last sentence of Paragraph 4b, no Stock Option awarded hereunder
shall be exercisable later than ten years after the Grant Date. The Stock Option
awarded hereunder shall not be transferable otherwise than by will or the laws
of descent and distribution, and shall be exercisable during the Employee's
lifetime only by the Employee.
b. Death. In the event of the Employee's death, each
Stock Option awarded but unexercised as of the date of death shall become
immediately exercisable, and may be exercised for a period commencing as of the
date after the day of death and continuing for one year thereafter.
c. Retirement. Subject to Paragraph 5, in the event
of Employee's formal retirement, each Stock Option awarded, but unexercised as
of the date of retirement shall become immediately exercisable, and may be
exercised until the first to occur of (i) the one year anniversary of the
Employee's retirement date and (ii) the tenth anniversary of the Grant Date.
d. Termination of Employment Without Cause. Subject
to Paragraph 5, in the event Employee is terminated without Cause (as defined
below), each Stock Option awarded, but unexercised as of the date of termination
shall become immediately exercisable, and may be exercised until the first to
occur of (i) the date which shall be ninety (90) days after the effective date
of such termination and (ii) the tenth anniversary of the Grant Date. For
purposes hereof, "Cause" means (w) fraud, embezzlement or gross insubordination
on the part of the Employee or breach by the Employee of his or her obligations
under any Company policy or procedure; (x) conviction of or the entry of a plea
of nolo contendere by the Employee for any felony; (y) a material breach of, or
the willful failure or refusal by the Employee to perform and discharge, his or
her duties, responsibilities or obligations, as an Employee; or (z) any act of
moral turpitude or willful misconduct by the Employee which (A) is intended to
result in substantial personal enrichment of the Employee at the expense of the
Company or any of its subsidiaries or affiliates or (B) has a material adverse
impact on the business or reputation of the Company, or any of its subsidiaries
or affiliates.
5. Termination of Stock Options; Post-Employment Exercises. No
Stock Option represented by this Agreement may be exercised after termination of
the Employee's employment with the Company and all Stock Options shall terminate
and be of no further force or effect from and after the date of such
termination, except as provided for in Paragraphs 4b, 4c or 4d hereof. The
exercise of any Stock Option after termination of the Employee's employment by
reason of retirement as provided in Xxxxxxxxx 0x or by reason of termination
without Cause as provided in Paragraph 4d shall be subject to satisfaction of
the conditions precedent that the Employee neither (i) competes with, or takes
other employment with or renders services to a competitor of, the Company, its
subsidiaries or affiliates without the written consent of the Company, nor (iii)
conducts herself or himself in a manner adversely affecting the Company.
6. Adjustment Provisions; Change in Control.
a. If there shall be any change in the Common Stock
of the Company, through merger, consolidation, reorganization, recapitalization,
stock dividend, stock split, reverse stock split, split up, spinoff, combination
of shares, exchange of shares, dividend in kind or other like change in capital
structure or distribution (other than normal cash dividends) to stockholders of
the Company, an adjustment shall be made to each outstanding Stock Option such
that each such Stock Option shall thereafter be exercisable for such securities,
cash and/or other property as would have been received in respect of the Common
Stock subject to such Stock Option had it been exercised in full immediately
prior to such change or distribution, and such an adjustment shall be made
successively each time any such change shall occur. In addition, in the event of
any such change or distribution, in order to prevent dilution or enlargement of
the Employee's rights hereunder, the Company will have authority to adjust, in
an equitable manner, the number and kind of shares that may be issued with
respect to any Stock Option hereunder, the number and kind of shares subject to
outstanding Stock Options, the exercise price applicable to outstanding Stock
Options, and the Market Value (as hereinafter defined) and other value
determinations applicable to outstanding Stock Options. Appropriate adjustments
may also be made by the Company in the terms of any Stock Options to reflect
such changes or distributions and to modify any other terms of outstanding Stock
Options on an equitable basis. In addition, the Company is authorized to make
adjustments to the terms and conditions of Stock Options, in recognition of
unusual or nonrecurring events affecting the Company or the financial statements
of the Company, or in response to changes in applicable laws, regulations, or
accounting principles. For purposes of this Paragraph 6 and Paragraph 7, the
"Market Value" of the Shares shall be equal to 100% of the closing price of the
Common Stock on the New York State Exchange or any other national securities
exchange or other market system as reported by the Wall Street Journal for the
date on which such Market Value is being fixed, or, if there shall be no trading
on such date, the date next preceding on which trading occurred.
b. Notwithstanding any other provision hereunder, if
there is a Change in Control of the Company, all then outstanding Stock Options
shall immediately become exercisable. For purposes of this Paragraph 6b, a
"Change in Control" of the Company shall be deemed to have occurred upon any of
the following events:
(i) A change in control of the direction and
administration of the Company's business of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act; or
(ii) During any period of two (2) consecutive years,
the individuals who at the beginning of such period constitute the Company's
Board of Directors or any individuals who would be "Continuing Directors" (as
hereinafter defined) cease for any reason to constitute at least a majority
thereof; or
(iii) The Company's Common Stock shall cease to be
publicly traded; or
(iv) The Company's Board of Directors shall approve a
sale of all or substantially all of the assets of the Company, and such
transaction shall have been consummated; or
(v) The Company's Board of Directors shall approve
any merger, consolidation, or like business combination or reorganization of the
Company, the consummation of which would result in the occurrence of any event
described in Paragraph 6b(ii) or (iii) above, and such transaction shall have
been consummated.
Notwithstanding the foregoing, (A) any spin-off of a division
or subsidiary of the Company to its stockholders and (B) any event listed in (i)
through (v) above that the Board of Directors determines not to be a Change in
Control of the Company, shall not constitute a Change in Control of the Company.
For purposes of this Paragraph 6b, "Continuing Directors"
shall mean (x) the directors of the Company in office on the Grant Date and (y)
any successor to any such director and any additional director who after such
date was nominated or selected by a majority of the Continuing Directors in
office at the time of his or her nomination or selection.
The Company may determine that, upon the occurrence of a
Change in Control of the Company, each Stock Option outstanding hereunder shall
terminate within a specified number of days after notice to the Employee, and
the Employee shall receive, with respect to each share of Common Stock subject
to such Stock Option, an amount equal to the excess of the Market Value of such
shares of Common Stock immediately prior to the occurrence of such Change in
Control over the exercise price per share of such Stock Option; such amount to
be payable in cash, in one or more kinds of property (including the property, if
any, payable in the transaction) or in a combination thereof, as the Company, in
its discretion, shall determine.
7. Withholding. All payments or distributions of Stock Options
made hereunder of shares of Common Stock covered by Stock Options shall be net
of any amounts required to be withheld pursuant to applicable federal, national,
state and local tax withholding requirements imposed by each taxing authority
having jurisdiction. The Company may require the Employee to remit to it an
amount sufficient to satisfy such tax withholding requirements prior to the
delivery of any certificates for such shares of Common Stock. The Company may,
in its discretion and subject to such rules as it may adopt (including any as
may be required to satisfy applicable tax and/or non-tax regulatory
requirements), permit the Employee to pay all or a portion of the federal,
national, state and local withholding taxes arising in connection with any Stock
Option by electing to have the Company withhold shares of Common Stock having a
Market Value equal to the amount to be withheld, provided that such withholding
shall only be at rates required by applicable statutes or regulations.
8. Tenure. The Employee's right to continue to serve the
Company or any of its subsidiaries as an officer, employee, or otherwise, shall
not be enlarged or otherwise affected by the award hereunder.
9. Specific Restrictions Upon Option Shares. The Employee
hereby agrees with the Company as follows:
a. The Employee shall acquire shares of Common Stock
hereunder for investment purposes only and not with a view to resale or other
distribution thereof to the public in violation of the United States Securities
Act of 1933, as amended (the "1933 Act"), and shall not dispose of any such
shares in transactions which, in the opinion of counsel to the Company, violate
the 1933 Act, or the rules and regulations thereunder, or any applicable state
or national securities or "blue sky" laws; and further
b. If any shares of Common Stock that are shares
subject to the Stock Options shall be registered under the 1933 Act, no public
offering (otherwise than on a national securities exchange, as defined in the
United States Securities Exchange Act of 1934, as amended) of any shares
acquired hereunder shall be made by the Employee (or any other person) under
such circumstances that he or she (or such person) may be deemed an underwriter,
as defined in the 1933 Act; and further
c. The Employee agrees that the Company shall have
the authority to endorse upon the certificate or certificates representing the
shares acquired hereunder such legends referring to the foregoing restrictions
and any other applicable restrictions, as it may deem appropriate.
10. Notices. Any notice required or permitted under this
Option Agreement shall be deemed to have been duly given if delivered,
telecopied or mailed, certified or registered mail, return receipt requested to
the Employee at such address as the Company shall maintain for the Employee in
its personnel records.
11. Failure to Enforce Not a Waiver. The failure of the
Company to enforce at any time any provision of this agreement shall in no
manner be construed to be a waiver of such provision or of any other provision
hereof.
12. Governing Law. The Option Agreement shall be governed by
and construed according to the laws of the State of New York, applicable to
agreements made and performed in that state.
13. Partial Invalidity. The invalidity or illegality of any
provision herein shall not be deemed to affect the validity of any other
provision.
14. Stock Option Plan Controls. This agreement is subject to
all terms and provisions of the SEACOR SMIT Inc. (formerly SEACOR Holdings,
Inc.) 1996 Share Incentive Plan (the "Plan"), which are incorporated herein by
reference. In the event of any conflict, the terms and provisions of the Plan
shall control over the terms and provisions of this agreement. All capitalized
terms herein shall have the meanings given to such terms by the Plan unless
otherwise defined herein or unless the context clearly indicates otherwise.
IN WITNESS WHEREOF, the Company has executed this Option
Agreement on the date and year first above written.
SEACOR SMIT INC.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Secretary
The undersigned hereby accepts, and agrees to, all terms and provisions of the
foregoing Option Agreement.
/s/ Xxxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxxx
