Exhibit 10.39
SEACOR SMIT INC.
RESTRICTED STOCK GRANT AGREEMENT
RESTRICTED STOCK GRANT AGREEMENT (the "Agreement"), dated this day
February 5, 1998 between SEACOR SMIT Inc., a Delaware corporation (the
"Company"), and Xxxxxxx Xxxxxxxxx, residing at 00 Xxxx 00xx Xxxxxx Xxx. # 0-X
Xxx Xxxx, XX 00000 (the "Grantee").
W I T N E S S E T H :
WHEREAS, Grantee is an officer or key employee of the Company; and
WHEREAS, the Company desires to issue and grant to the Grantee, and the
Grantee desires to accept, shares of the Company's Common Stock, $0.01 par value
("Common Shares"), upon the terms and subject to the conditions herein set
forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Grant of Restricted Stock. In recognition of the Grantee's commitment to the
continued growth and financial success of the Company, the Company hereby grants
to the Grantee 3,510 (restricted) Common Shares (the "Restricted Stock").
Simultaneously with the execution and delivery of this Agreement by the parties
hereto, the Company shall deliver to the Grantee a stock certificate (or
certificates) representing the shares of the Restricted Stock, which
certificate(s) shall (a) be registered on the Company's stock transfer books in
the name of the Grantee and (b) bear (in addition to any other legends required
by applicable law) the following legend (or a legend substantially similar
thereto):
"This certificate and the shares represented hereby are
subject to, and shall be transferable only in accordance with,
the provisions of a certain Restricted Stock Grant Agreement
dated February 5, 1998 between Xxxxxxx Xxxxxxxxx and SEACOR
SMIT Inc."
2. Removal of Restricted Stock Legend. Promptly after shares of the Restricted
Stock issued to the Grantee hereunder have become vested, the Company shall
cause the transfer agent for the Common Shares to issue separate Certificates
representing a) the Common Shares which are free of restrictions and without the
legend referred to above and b) the remaining unvested Common Shares bearing the
legend referred to above.
3. Vesting.
(a) Beneficial ownership of the restricted stock shall vest in the Grantee
as follows:
Date Number of shares
------------------------------- ----------------------------------
January 31, 1999 1,170
January 31, 2000 1,170
January 31, 2001 1,170
Notwithstanding the foregoing, 100% beneficial ownership of the aforementioned
shares of Restricted Stock shall vest immediately, without any action on the
part of the Company (or its successor as applicable) or the Grantee, if any of
the following events occur:
(i) the death of the Grantee;
(ii) the "Disability" (as hereinafter defined) of the
Grantee;
(iii) the termination of the Grantee's employment with the
Company or any of its subsidiaries without "Cause"
(as hereinafter defined); and
(iv) the occurrence of a "Change-in-Control" of the
Company (as hereinafter defined).
(b) For all purposes of this Agreement, the following terms shall have
the following respective meanings:
(i) "Disability" shall mean the Grantee's inability to
perform substantially all of his duties and
responsibilities to the Company and/or any of its
subsidiaries by reason of a physical or mental
disability or infirmity (A) for a continuous period
of six (6) months or (B) at such earlier time as the
Grantee submits medical evidence satisfactory to the
Company that the Grantee has a physical or mental
disability or infirmity that will likely prevent the
Grantee from substantially performing his duties and
responsibilities for six (6) months or longer;
(ii) "Cause" shall mean (A) the Grantee shall have
willfully failed to perform any of his material
obligations or duties required to be performed by
him pursuant to the terms of his employment as an
officer or key employee of the Company; or (B) the
Grantee shall have committed an act of fraud, theft
or dishonesty which is reasonably likely to result
in financial harm to the Company and/or any of its
subsidiaries; or (C) the Grantee shall be convicted
of (or plead nolo contendere to) any felony or
misdemeanor involving moral turpitude, which
misdemeanor might, in the reasonable judgment of a
majority of the Board of Directors of the Company,
cause embarrassment to the Company; provided,
however, that the Grantee shall not be deemed to
have been terminated for Cause unless and until
there shall have been delivered to him a copy of a
resolution duly adopted by a majority of the Board
of Directors of the Company at a meeting of such
Board of Directors duly called and held for the
purpose of determining whether, in the good faith
judgment of a majority of the Board of Directors of
the Company, the Company has "cause" to terminate
the Grantee's employment pursuant to these
provisions; and
(iii) "Change-in-Control" of the Company shall be deemed
to have occurred if (A) a change in control of the
direction and administration of the Company's
businesses of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or any successor rule or regulation)
promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"); (B) any
"person", (as such term is used in Sections 13(d)
and 14(d)(2) of the Exchange Act (but excluding any
employee benefit plan of the Company), is or becomes
the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more
of the combined voting power of the Company's
outstanding securities then entitled ordinarily (and
apart from rights accruing under special
circumstances) to vote generally for the election of
directors; (C) during any period of two consecutive
years, the individuals who at the beginning of such
period constitute the Board of Directors (the
"Board") cease for any reason to constitute at least
a majority thereof; (D) the Board shall approve a
sale of all or substantially all of the assets of
the Company and its subsidiaries (taken as a whole);
or (E) the Board shall approve any merger,
consolidation, or like business combination
transaction or reorganization of the Company, the
consummation of which would result in the occurrence
of any event described in clauses (A) through (D)
above.
4. Non-Transferability of Restricted Stock. Except as expressly provided in
Section 3 hereof, prior to the applicable Vesting Dates, none of the then
unvested shares of the Restricted Stock (nor any interest therein) may be sold,
assigned, transferred, pledged, hypothecated or otherwise disposed of, shall not
be assignable by operation of law and shall not be subject to execution,
attachment or similar process. Any attempted sale, assignment, transfer, pledge,
hypothecation or other disposition of any unvested shares of the Restricted
Stock contrary to the provisions hereof shall be null and void and without
effect.
5. Forfeiture.
(a) Upon the Grantee's voluntary termination of his employment with the
Company or any of its subsidiaries, or upon the termination of the Grantee's
employment with the Company or any of its subsidiaries for Cause, which event
occurs, in either case, on a date prior to the Vesting Dates, beneficial
ownership of the remaining unvested shares of the Restricted Stock shall not
vest in the Grantee and all such unvested shares of the Restricted Stock shall
be deemed to have been forfeited by the Grantee to the Company (a "Forfeiture")
without any consideration therefor. A termination of employment shall not be
deemed to occur by reason of the transfer of an employee from employment by the
Company to employment by a subsidiary thereof (or a transfer of employment from
one subsidiary of the Company to another subsidiary of the Company), or the
relocation of the Grantee's employment with the Company (or a subsidiary of the
Company) to a location which is more than 50 miles from the Grantee's current
residence.
(b) Upon the occurrence of a Forfeiture, the Grantee shall, within ten
(10) business days thereafter, transfer and deliver to the Company all stock
certificates representing all shares of the Restricted Stock, together with
stock powers duly executed in blank by the Grantee. From and after the
occurrence of such Forfeiture, the Grantee shall have no rights to or interests
in any shares of the forfeited Restricted Stock or under this Agreement (other
than the obligation to transfer and deliver all stock certificates representing
all shares of the Restricted Stock pursuant to this Section 5(b)).
6. Representations and Warranties of Grantee. The Grantee hereby
represents and warrants to the Company as follows:
(a) The Grantee has the legal right and capacity to enter into this
Agreement and he fully understands the terms and conditions of this Agreement.
(b) The Grantee is acquiring the Restricted Stock for investment
purposes only and not with a view to, or in connection with, the public
distribution thereof in violation of the Securities Act.
(c) The Grantee understands that none of the shares of the Restricted
Stock has been registered under the Securities Act and agrees that none of the
shares of the Restricted Stock may be offered, sold, assigned, transferred,
pledged, hypothecated or otherwise disposed of except in compliance with this
Agreement and the Securities Act or an applicable exemption from the
registration requirements of the Securities Act and applicable state securities
or "blue sky" laws; and he understands that the Company has no obligation to
cause or to refrain from causing any of the shares of the Restricted Stock or
any other shares of its capital stock to be registered under the Securities Act
or to comply with any exemption under the Securities Act which would permit the
shares of the Restricted Stock to be sold or otherwise transferred by the
Grantee.
7. Notices. Any notice required or permitted hereunder shall be deemed given
only when delivered personally or when deposited in a United States Post Office
as certified mail, postage prepaid, addressed, as appropriate, if to the
Grantee, at his address set forth above or such other address as he may
designate in writing to the Company, and, if to the Company, at 00000
Xxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 or such other address as the Company
may designate in writing to the Grantee.
8. Failure to Enforce Not a Waiver. The failure of the Company to enforce at any
time any provision of this Agreement shall in no way be construed to be a waiver
of such provision or of any other provision hereof.
9. Amendment: Termination. This Agreement may not be amended or terminated
unless such amendment or termination is in writing and duly executed by each of
the parties hereto.
10. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
but one and the same instrument.
11. Benefit and Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the Company, its successors and assigns, and the
Grantee, his executors, administrators, personal representatives and heirs. In
the event that any part of this Agreement shall be held to be invalid or
unenforceable, the remaining parts hereof shall nevertheless continue to be
valid and enforceable as though the invalid portions were not a part hereof.
12. Entire Agreement. This Agreement contains the entire understanding of the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements, discussions and understandings with respect to such subject
matter.
13. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, without giving
effect to principles and provisions thereof relating to conflict or choice of
laws.
IN WITNESS WHEREOF, each of the parties hereto have duly executed this
Agreement on the date and year first above written.
SEACOR SMIT INC.
By: /s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Vice President
GRANTEE
/s/ Xxxxxxx Xxxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxxx
