EXHIBIT 10.67
U.S. HELICOPTER CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
[FOR GRANTS TO NON-EMPLOYEES - DIRECTORS AND CONSULTANTS]
U.S. HELICOPTER CORPORATION, a Delaware corporation (the "Company"),
hereby grants to ______________ (the "Optionee"), a Non-Qualified 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 Option is a non-qualified stock option.
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. Subject to provisions contained elsewhere in this
Agreement, the Option may be exercised 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
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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. 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.
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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 Secretary 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. DEATH OF OPTIONEE. The terms of this Option Agreement shall be
binding upon the executors, administrators, heirs, successors and assigns of
Optionee. In the event of the death of Optionee during the term of the Option,
the Option may be exercised, at any time within thirty-six (36) 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.
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11. 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.
12. RESTRICTIONS ON TRANSFER OF SHARES UNDERLYING OPTIONS. The issuance
of the Shares subject hereto and 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.
13. 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.
14. TERMINATION OF ASSOCIATION.
(a) If Optionee's association with 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 Paragraph 14 (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 association with the Company or its direct or
indirect subsidiaries terminates by virtue of a termination for cause (as
defined in Optionee's Consulting Agreement, if applicable or as set forth
below), the Committee shall have the right to terminate the Option, upon the
date of termination of association, whether vested or not, in their sole
discretion, without prior notice to Optionee. If Optionee is not affiliated with
the Company pursuant to a Consulting Agreement as of the date of termination,
cause shall mean the substantial breach or continuous neglect by Optionee of his
obligations, or willful misconduct by Optionee in the performance of such
obligations which occurs or persists after notice and an opportunity to cure.
15. DISABILITY OF OPTIONEE. If Optionee is unable to continue his
association with the Company as a result of his disability (as such condition is
defined in the Plan) Optionee may, but only within thirty-six (36) months unless
otherwise provided in an agreement with the Company from the date of disability,
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, the Option shall terminate.
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16. 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 may 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 prevent dilution or
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 an 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.
17. 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.
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18. 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 0 Xxxx Xxxxx Xxxxx,
Xxxxx 000, Xxxxxxxx Xxxxxxxxx Heliport, 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.
19. 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.
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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: _______________________________
Xxxx X. Xxxxxx
Chief Executive Officer and President
ACCEPTED AND AGREED:
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