EXHIBIT 10.66
U.S. HELICOPTER CORPORATION
INCENTIVE STOCK OPTION AGREEMENT
[FOR GRANTS TO EMPLOYEES]
U.S. HELICOPTER CORPORATION, a Delaware corporation (the "Company"),
hereby grants to _____________ (the "Optionee"), an Incentive Stock Option (the
"Option") to purchase a total of _____________ shares of the Company's Common
Stock, at the price set forth herein, and subject to the terms, definitions and
provisions of the 2007 Stock Incentive Plan (the "Plan") adopted by the Company,
which is incorporated herein by reference. The terms defined in the Plan shall
have the same defined meanings herein.
1. NATURE OF THE OPTIONS. The Incentive Stock Option is intended to
qualify as an "incentive stock option" as defined in Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"). The shares underlying the Option
are hereinafter referred to as the "Shares".
2. EXERCISE PRICE. The exercise price of the Option is $_____ per share
for each share subject to the Option.
3. TERMS OF OPTIONS. This Option is granted in connection with the
Optionee's employment by the Company. Subject to provisions contained elsewhere
in this Agreement, the Option may be exercised cumulatively as set forth below
after the vesting date set forth below, until the day preceding the tenth
anniversary of the date hereof (the "Termination Date"); provided, however, that
no Options may be exercised until sufficient shares are available for issuance
by the Company through an amendment to the Company's Certificate of
Incorporation or otherwise:
VESTING DATE NUMBER OF OPTIONS
-------------- -----------
4. ADMINISTRATION. The Plan is administered by a committee of the Board
(the "Committee" as defined in the Plan). All determinations and acts of the
Committee as to any matters concerning the Plan, including interpretations or
constructions of this Option and of the Plan, shall be conclusive and binding on
the Optionee and any parties claiming through the Optionee.
5. EXERCISE. Unless the Optionee ceases to be employed by the Company
or a direct or indirect subsidiary thereof, the right of the Optionee to
purchase Shares hereunder, subject to any installment requirements set forth
above, may be exercised in whole or in part at any time after the accrual of
such respective installment and prior to the Termination Date, except as
otherwise provided herein. The Option may not be exercised for a fraction of a
share. Notwithstanding the foregoing, the Optionee's right to exercise the
Option shall be subject to Shareholder approval of the Plan and shall be limited
by the number of shares of Company Common Stock available for issuance pursuant
to Awards granted under the Plan.
-1-
6. NOTICE OF EXERCISE. The Option shall be exercisable by written
notice (the "Notice") which shall state the election to exercise the Option and
the number of Shares in respect of which the Option is being exercised, and such
other representations and agreements as to the Optionee's investment intent with
respect to such Shares as may be required by the Company pursuant to the
provisions of the Plan. Such written notice shall be signed by the Optionee and
shall be delivered in person or by certified mail to the President of the
Company. The written notice shall be accompanied by payment in full of the
exercise price in cash, or in any other manner approved by the Committee,
including payment by surrender of shares of Common Stock of the Company at their
fair market value on the date of delivery.
7. DELIVERY OF CERTIFICATES. As soon as practicable after receipt of
the Notice and payment, and subject to the next two paragraphs, the Company
shall, without transfer or issue tax or other incidental expense to the
Optionee, deliver to the Optionee a certificate or certificates for the shares
of Common Stock so purchased. Such delivery shall be made (a) at the offices of
the Company at 0 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxxxx Heliport, Xxx
Xxxx, XX 00000, (b) at such other place as may be mutually acceptable to the
Company and the Optionee, or (c) by certified mail addressed to the Optionee at
the Optionee's address shown in the records of the Company.
8. WITHHOLDING. The Company shall have the right to withhold an
appropriate number of shares of Common Stock (based on the fair market value
thereof on the date of exercise) 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 tax withholding obligations.
9. COMPLIANCE WITH LAWS. The Company may postpone the time of delivery
of certificate(s) for shares of Common Stock for such additional time as the
Company shall deem necessary or desirable to enable it to comply with the
requirements of any securities exchange upon which the Common Stock may be
listed, or the requirements of the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, any rules or regulations of the
Securities and Exchange Commission promulgated thereunder, or any applicable
state laws relating to the authorization, issuance or sale of securities.
10. NON-TRANSFERABLE OPTIONS. During the Optionee's lifetime, this
Option shall be exercisable only by the Optionee and neither this Option nor any
right hereunder may be sold, pledged, assigned, hypothecated, transferred or
disposed of in any manner otherwise than by will or by the laws of descent or
distribution on the terms set forth in Section 13. The terms of this Option
Agreement shall be binding upon the executors, administrator, heirs, successors
and assigns of Optionee.
-2-
11. DEATH OF OPTIONEE. In the event of the death of Optionee during the
term of the Option and while an employee of the Company and having been employed
continuously as an employee since the date of grant of the Option, the Option
may be exercised, at any time within twelve (12) months unless otherwise
provided in an agreement with the Company following the date of death, by the
Optionee's estate or by a person who acquired the right to exercise the Option
by bequest or inheritance but only to the extent of the right to exercise that
had accrued at the date of death. If Optionee's estate or a person who acquired
the right to exercise the Option by bequest or inheritance does not exercise
such portion of Optionee's Option which has vested and which the Optionee was
entitled to exercise in the time specified herein, the Option shall terminate.
12. TERMINATION OF EMPLOYMENT.
(a) If Optionee's employment by the Company or its direct or indirect
subsidiaries terminates for any reason other than by reason of death or
disability or "for cause" as defined in Section 12(b) below, all currently
exercisable installments of this Option shall remain exercisable for a period of
thirty (30) days unless otherwise provided in an agreement with the Company from
the date of termination and, to the extent not exercised, shall terminate. All
other non-vested installments of this Option shall immediately and automatically
terminate.
(b) If Optionee's employment by the Company or its direct or indirect
subsidiaries terminates by virtue of a termination for cause (as defined in
Optionee's Employment Agreement, if applicable or as set forth below) the
Committee shall have the right to terminate the Option, upon the date of
termination of employment, whether vested or not, in their sole discretion,
without prior notice to Optionee. If Employee is not employed pursuant to an
Employment Agreement as of the date of termination, cause shall mean the
substantial breach or continuous neglect by Employee of his employment
obligations, or willful misconduct by Employee in the performance of such
obligations which occurs or persists after notice and an opportunity to cure.
13. DISABILITY OF OPTIONEE. If Optionee is unable to continue his
employment or association with the Company as a result of his disability (as
such condition is defined in the Plan), Optionee may, but only within twelve
(12) months unless otherwise provided in an agreement with the Company from the
date of exercise such portion of the Option which has vested to the extent he
was entitled to exercise it at the date of such disability, and such portion of
the Option which has not vested shall terminate. If Optionee does not exercise
such portion of the Option which has vested and which Optionee was entitled to
exercise within the time specified herein, this Option shall terminate.
14. NON-DILUTION. In the event of any change in the outstanding Common
Stock by reason of a stock split, stock dividend, combination or
reclassification of shares, recapitalization, merger or similar event, the
Committee shall adjust proportionally (a) the number of Shares of Stock (i)
available for issuance under the Plan and (ii) covered by outstanding Awards
denominated in stock or units of stock; (b) the exercise and grant prices dated
to outstanding Awards; and (c) the appropriate Fair Market Value and other price
determinations for such Awards as the Committee in its sole discretion may in
good faith determine to be equitably required in order to prevent dilution or
-3-
enlargement of the rights of Participants. Moreover, in the event of any such
transaction or event, the Committee may provide in substitution for any or all
outstanding Awards under the Plan such alternative consideration as it may in
good faith determine to be equitable under the circumstances and may require in
connection therewith the surrender of all Awards so replaced. The Committee may
also make or provide for such adjustments in the number of Shares specified in
Section 3 of the Plan as the Committee in its sole discretion may in good faith
determine to be appropriate in order to reflect any such transaction or event.
In the event of any other change affecting the Common Stock or any distribution
(other than normal cash dividends) to holders of Common Stock, such adjustments
in the number and kind of shares and the exercise, grant and conversion prices
of the affected Awards as may be deemed equitable by the Committee, including
adjustments to avoid fractional shares, shall be made to give proper effect to
such event. Upon the occurrence of a "change in control", as defined in the
Plan, of the Company, each Option shall at the discretion of the Committee
either be cancelled in exchange for a payment in cash of any amount equal to the
excess, if any, of the Change in Control price over the exercise price for such
Option, or be fully exercisable regardless of the exercise schedule otherwise
applicable to such Option and all restricted shares of Stock and all SARs shall
become nonforfeitable and be immediately transferable or payable, as the case
may be, subject however to Paragraph 9(b) of the Plan. In the event of a
corporate merger, consolidation, acquisition of property or stock, separation,
reorganization or liquidation not constituting a change in control, the
Committee may terminate this Option, authorize the assumption of this Option or
substitute a new stock option for this Option, whether or not in a transaction
to which Section 424(a) of the Internal Revenue Code applies. The judgment of
the Committee with respect to any matter referred to in this paragraph shall be
conclusive and binding upon the Optionee and any parties claiming through the
Optionee.
15. REGISTRATION ON FORM S-8. The Company hereby agrees that in the
event that during the term Options are exercisable, the Company causes to be
filed with the Securities and Exchange Commission a registration statement on
Form S-8 (or equivalent form as may be in effect at such time) the Optionee may
include in such registration statement all shares underlying options granted to
Optionee under the Plan. The Company covenants that it will keep such
registration statement current and effective while the Optionee or his guardian
or estate has the right to exercise any of the options granted hereunder. The
Company also hereby agrees that in the event that during the term the Company
causes to be filed with the Securities and Exchange Commission a registration
statement on a form other than Form S-8, Optionee shall have "piggyback"
registration rights to include in such registration statement all the options
and shares underlying options granted to Optionee under the Plan, subject to a
reasonable cutback in the inclusion of such options and shares if the Board or
the Company's underwriter determines that such cutback is necessary to prevent
an adverse effect on the Company's offering.
-4-
16. NON-COMPETITION.
(a) As consideration in part for the grant of the Options,
Optionee agrees that, for a period commencing on the date hereof and ending one
year after the termination of his employment with the Company for any reason,
Optionee shall not, anywhere in North America, directly or indirectly:
(i) solicit or attempt to solicit business of any
customers of the Company
(including prospective customers solicited by the Company) for products or
services the same or similar to those offered, sold, produced or under
development by the Company during the term of this employment therewith or dealt
in by Optionee during his employment with the Company;
(ii) otherwise divert or attempt to divert from the
Company any business whatsoever;
(iii) solicit or attempt to solicit for any business
endeavor any employee of the
Company;
(iv) interfere with any employment relationship or
other business relationship
between the Company and any other individual, person, or other entity;
(v) use the name of the Company or a name similar
thereto; or
(vi) render any services as an officer, director,
employee, partner, consultant or
otherwise to, or have any interest as a stockholder, partner, lender or
otherwise in, any person which is engaged in activities which, if performed by
an Optionee would violate this Section 16.
(b) Optionee agrees that during the term of Optionee's
employment with the Company, Optionee will not, anywhere in North America,
directly or indirectly, as an independent contractor or otherwise, engage in any
activity for or on behalf of any person or entity in a competitive line of
business to that carried on by the Company, or engage in any manner in the
scheduled or unscheduled helicopter transport business or other business
competitive with the business carried on by the Company or dealt in by Optionee
during his or her employment with the Company.
(c) If during the one year period commencing on the
termination of Optionee's employment with the Company for any reason, Optionee,
directly or indirectly engages, anywhere in North America, as an independent
contractor or otherwise, in any activity for or on behalf of any person or
entity in a competitive line of business to that carried on by the Company
during the term of Optionee's employment therewith, or engages in any manner in
the scheduled or unscheduled helicopter transport business or other business
carried on by the Company during the term of Optionee's employment therewith or
dealt in by Optionee during Optionee's employment with the Company, all the
non-exercised vested and unvested options held by Optionee shall terminate
immediately, notwithstanding any other provisions to the contrary contained
herein.
-5-
(d) The provisions contained in paragraphs (b) and (c) of this
Section 16 shall not prevent Optionee from purchasing or owning up to five
percent (5%) of the voting securities of any corporation, the securities of
which are publicly-traded.
17. CONFIDENTIALITY.
(a) Optionee understands and acknowledges that as a result of
Optionee's employment with the Company, and involvement with the business of the
Company, Optionee is or shall necessarily become informed of, and have access
to, confidential information of the Company including, without limitation,
inventions, patents, patent applications, trade secrets, technical information,
know-how, plans, specifications, marketing plans and information, pricing
information, identity of customers and prospective customers and identity of
suppliers, and that such information, even though it may have been or may be
developed or otherwise acquired by Optionee, is the exclusive property of the
Company to be held by Optionee in trust and solely for the Company's benefit.
Optionee shall not at any time, either during or subsequent to Optionee's
employment hereunder, reveal, report, publish, transfer or otherwise disclose to
any person, corporation or other entity, or use, any of the Company's
confidential information, without the written consent of the Company's Board of
Directors, except for use on behalf of the Company in connection with the
Company's business, and except for such information which legally and
legitimately is or becomes of general public knowledge from authorized sources
other than Optionee.
(b) Upon termination of Optionee's employment with the Company
for any reason, Optionee shall promptly deliver to the Company all drawings,
manuals, letters, notes, notebooks, reports and copies thereof and all other
materials, including, without limitation, those of a secret or confidential
nature, relating to the Company's business which are in Optionee's possession or
control. The Company shall reimburse Optionee for any packing or moving costs
reasonably incurred by Optionee in connection with the foregoing delivery.
For purposes of this Section 17 and Section 16, the term "Company"
includes the Company and other predecessor corporation, and affiliates
(including, without limitation, distributors, licensees, franchisees,
subsidiaries and joint ventures).
18. REMEDIES AND SURVIVAL. Because the Company does not have an
adequate remedy at law to protect its interest in its trade secrets, privileged,
proprietary or confidential information and similar commercial assets, or its
business from Optionee's competition, the Company shall be entitled to
injunctive relief, in addition to such other remedies and relief that would, in
the event of a breach or a threatened breach of the provisions of Sections 16
and 17, be available to the Company. The Company shall not be required to plead
or prove the inadequacy of damages. The provisions of Sections 16 and 17 and
this Section 18 shall survive any termination of Optionee's employment with the
Company for any reason whatsoever.
-6-
19. FAILURE TO PAY. If, upon tender of delivery thereof, the Optionee
fails to accept delivery of and pay or have paid for all or any part of the
number of shares of Common Stock specified in the Notice, the Optionee's right
to exercise this Option with respect to such undelivered and unpaid for shares
may be terminated by the Company.
20. RESTRICTIONS ON TRANSFER OF SHARES UNDERLYING OPTIONS.
The issuance of the Shares upon the exercise of the Option and the transfer or
resale of such Shares shall be subject to such restrictions as are, in the
opinion of the Company's counsel, required to comply with the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder, and the
certificate(s) representing such shares shall, if it is deemed advisable by the
Company's counsel, bear a legend to such effect.
21. NO RIGHTS OF SHAREHOLDER. Neither the Optionee nor any person or
persons entitled to exercise the Optionee's rights under this Option in
accordance herewith shall have any rights to dividends or to Common Stock
subject to this Option, except to the extent that a certificate for such shares
shall have been issued upon the exercise of this Option as provided herein.
22. NOTICES. Each notice relating to this Option shall be in writing
and delivered in person or by certified mail to the proper address. All notices
to the Company shall be addressed to it at its offices at Downtown Manhattan
Heliport, Pier 0 Xxxx Xxxxx, Xxx Xxxx, XX 00000, attention of the Committee, c/o
the Company's President. All notices to the Optionee or other person or persons
then entitled to exercise any rights with respect to this Option shall be
addressed to the Optionee or such other person or persons at the Optionee's
address shown in the records of the Company or the location at which the
Optionee is employed by the Company. Anyone to whom a notice may be given under
this Option may designate a new address by notice to that effect.
23. NO RIGHT TO EMPLOYMENT. Neither the adoption of the Plan nor the
granting of this Option confers on the Optionee any right to continued
employment by the Company (or any of its direct or indirect subsidiaries) or in
any way interferes with or alters any of the Company's (and its direct and
indirect subsidiaries') rights to terminate the employment by the Company of the
Optionee at any time, with or without cause, and without liability therefor.
This Option shall not be deemed a part of the Optionee's regular, recurring
compensation for any purpose, including, without limitation, for the purposes of
any termination indemnity or severance pay law of any jurisdiction.
24. GOVERNING LAW. This Option and all determinations made and actions
taken pursuant hereto, to the extent not otherwise governed by the Internal
Revenue Code of 1986, as amended from time to time, or the securities laws of
the United States, shall be governed by and construed under the laws of the
State of Delaware.
-7-
IN WITNESS WHEREOF, U.S. HELICOPTER CORPORATION has caused this Option
to be executed by its officers as of the 4th day of December, 2007.
U.S. HELICOPTER CORPORATION
By: ____________________________________
Xxxxxx X. Xxxx, Xx.
Chief Financial Officer,
Sr. Vice President and Treasurer
ACCEPTED AND AGREED:
--------------------------
-8-
