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EXHIBIT 99.4
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT made as of November 4, 1997 between TRANSCOASTAL MARINE
SERVICES, INC., a Delaware corporation (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the
"Option Holder").
1. Grant of Option. Subject to the terms and conditions of this
Agreement and the 1997 Stock Option Plan (the "Plan"), the Company hereby
grants to the Option Holder effective October 29, 1997 (the "Grant Date") an
option (the "Option") to purchase 20,139 shares (the "Stock") of the common
stock of the Company, $.001 par value ("Common Stock") at a price per share of
$18.00 (the "Option Price"), subject to the limitation that said Option shall
be exercisable in increments ratably as set forth in Exhibit A hereto (the
"Vesting Schedule") determined by the number of full years of employment with
the Company from the date of grant to the date of exercise. Notwithstanding
anything in this Agreement to the contrary, the Vesting Schedule is subject to
Section 4 herein and the Board of Directors, in its sole discretion, may waive
the Vesting Schedule and, upon written notice to the Option holder, accelerate
the earliest date or dates in which any of the Options granted hereunder are
exercisable. This Agreement and the purchase of the shares of Stock hereunder
is intended and should be interpreted to qualify as an Incentive Stock Option
as that term is used in Section 422 of the Internal Revenue Code of 1986, as it
may be amended from time to time (the "Internal Revenue Code"), and any
provisions of this Agreement are hereby amended in their entirety to any extent
necessary to permit all Stock purchased hereunder to qualify for treatment as
such under Section 422 of the Internal Revenue Code.
2. Method for Exercising the Option. The vested portion of the
Option may be exercised in whole or in part only by delivery in person or
through certified or registered mail to the Company at its principal office in
New Iberia, Louisiana (attention: Corporate Secretary) of written notice
specifying the Option that is being exercised and the number of shares of Stock
with respect to which the Option is being exercised. The notice must be
accompanied by payment of the total Option Price.
The total Option Price for the Stock shall be paid in full by any of
the following methods or any combination of the following methods:
(a) In cash or by certified or cashier's check payable to
TransCoastal Marine Services, Inc.;
(b) The delivery to the Company of certificates
representing the number of shares of Common Stock then owned by the Option
Holder, the Designated Value (defined below) of which equals the Option Price
of the Stock purchased pursuant to the Option, properly endorsed for transfer
to the Company; provided, however, that no Option may be exercised by delivery
to the Company of certificates representing Common Stock, unless such Common
Stock has been held by the Option
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Holder for more than six months. (For purposes of this Agreement, the
Designated Value of any shares of Common Stock delivered in payment of the
Option Price upon exercise of the Option shall be the Designated Value as of
the exercise date, and the exercise date shall be the day of delivery of the
certificates for the Common Stock used as payment of the Option Price); or
(c) By delivery to the Company of a properly executed
notice of exercise together with irrevocable instructions to a broker to
deliver promptly to the Company, in payment of the Option Price, the amount of
the cash proceeds of the sale of shares of Common Stock or a loan from the
broker to the Option Holder sufficient, in each case, to pay the Option Price,
and in a form satisfactory to the Corporate Secretary.
Upon such notice to the Corporate Secretary and payment of the
total Option Price, the exercise of the Option shall be deemed to be effective,
and a properly executed certificate or certificates representing the Stock so
purchased shall be issued by the Company and delivered to the Option Holder.
For purposes of this Agreement, the "Designated Value" of the shares
of Stock on a given date shall mean (i) if the Stock is listed or admitted for
trading on any national securities exchange or the National Market System of
the National Association of Securities Dealers, Inc. Automated Quotation
System, the last sale price, or if no sale occurred, the mean between the
closing high bid and low asked quotations for such date of the Stock on the
principal securities exchange on which shares of Stock are listed, (ii) if
Stock is not traded on any national securities exchange but is quoted on the
National Association of Securities Dealers, Inc. Automated Operations System,
or any similar system of automated dissemination of quotations or securities
prices in common use, the mean between the closing high bid and low asked
quotations for such day of the Stock on such system, (iii) if neither clause
(i) nor (ii) is applicable, the mean between the high bid and low asked
quotations for the Stock as reported by the National Quotation Bureau
Incorporated if at least two securities dealers have inserted both bid and
asked quotations for shares of the Stock on at least five (5) of the ten (10)
preceding days, or (iv) if none of the conditions set forth above is met, the
fair market value of shares of Stock as determined by the Board. Provided, for
purposes of determining "fair market value" of the Common Stock of the Company,
such value shall be determined without regard to any restriction other than a
restriction which will never lapse. In no event shall the fair market value of
the Stock be less than its par value.
3. Adjustment of the Option.
(a) Adjustment by Stock Split, Stock Dividend, Etc. If
at any time the Company increases or decreases the number of its outstanding
shares of Common Stock, or changes in any way the rights and privileges of its
Common Stock, by means of the payment of a stock dividend or the making of any
other distribution on such shares payable in Common Stock, or though a stock
split or subdivision of shares of Common Stock, or a consolidation or
combination of shares of Common Stock, or through a reclassification or
recapitalization involving the Common Stock, the numbers, rights and privileges
of the shares of Stock included in the Option shall be increased, decreased or
changed in like manner as if such shares of Stock had been issued and
outstanding, fully paid and non-assessable at the time of such occurrence.
(b) Dividends Payable in Stock of Another Corporation,
Etc. If at any time the Company pays or makes any dividend or other
distribution upon its Common Stock payable in
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securities or other property (except money or Stock), a proportionate part of
such securities or other property shall be set aside and delivered to the
Option Holder upon issuance of the Stock purchased at the time of the exercise
of the Option. The securities and other property delivered to the Option
Holder upon exercise of the Option shall be in the same ratio to the total
securities and property set aside for the Option Holder as the number of shares
of Stock with respect to which the Option is then exercised is to the total
shares of Common Stock subject to the Option. Prior to the time that any such
securities or other property are delivered to the Option Holder in accordance
with the foregoing, the Company shall be the owner of such securities or other
property and Option Holder shall not have the right to vote the securities,
receive any dividends payable on such securities, or in any other respect be
treated as the owner. If securities or other property which have been set
aside by the Company in accordance with this Section 3 are not delivered to the
Option Holder because the Option is not exercised, then such securities or
other property shall remain the property of the Company and shall be dealt with
by the Company as it shall determine in its sole discretion.
(c) Other Changes in Stock. In the event there shall be
any change, other than as specified in the preceding subsections 3(a) and (b),
in the number or kind of outstanding shares of Common Stock or of any stock or
other securities into which the Common Stock shall be changed or for which it
shall have been exchanged, then and if the Board of Directors of the Company
shall in its discretion determine that such change equitably requires an
adjustment in the number or kind of shares subject to the Option, such
adjustments shall be made by the Board of Directors and shall be effective for
all purposes as of this Agreement.
(d) Apportionment of Option Price. Upon any occurrence
described in the preceding subsections 3(a), (b), and (c), the aggregate Option
Price for the shares of Stock then subject to the Option shall remain unchanged
and shall be apportioned ratably over the increased or decreased number or
changed kinds of securities or other properties subject to the Option.
4. Reorganization. If the Company is merged or consolidated with
another corporation and the Company is not the surviving corporation or in case
of a reorganization (other than a reorganization under the United States
Bankruptcy Code) or upon the liquidation or dissolution of the Company, the
Option Holder shall have the right, immediately prior to such dissolution,
liquidation, merger, consolidation or combination, to exercise, in whole or in
part, the remainder of the Option, whether or not then exercisable shall
immediately vest and become exercisable; provided, however, that the Option
Holder may only acquire that number of shares of Stock that can be acquired
without causing the Option Holder to have an "excess parachute payment" as
determined under Section 280G of the Internal Revenue Code. Notwithstanding
the foregoing provisions, after the Participant has been afforded the
opportunity to exercise the remainder of the Option as provided in this Section
4, and to the extent the remainder of the Option is not timely exercised as
provided in this Section 4, then, the terms and provisions of this Agreement
shall thereafter continue in effect, and the Option Holder shall be entitled to
exercise the remainder of the Option in accordance with the terms and
provisions of this Agreement as such Option thereafter becomes exercisable.
For purposes of this Section 4, if any merger, consolidation, or combination
occurs in which the Company is not the surviving corporation and which is the
result of a mere change in the identity, form, or place of organization of the
Company, accomplished in accordance with Section 368(a)(1)(F) of the Internal
Revenue Code, then such event shall not cause an acceleration of the
exercisability of the Option granted under this Agreement.
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5. Expiration and Termination of the Option. The Option shall
expire at 5:00 p.m. Houston, Texas, time on October 29, 2007 (the period from
the date of this Agreement to the expiration date is defined as the "Option
Period") or prior to such time as follows:
(a) Upon termination of the employment of the Option
Holder for any reason other than death, the Options exercisable as of the date
of termination may be exercised by Option Holder within three months after the
date of the termination of employment of the Option Holder.
(b) Upon termination of the employment of the Option
Holder by reason of the death of the Option Holder, the Options exercisable as
of the date of the Option Holder's death may be exercised by the personal
representative of the deceased Option Holder within three months of the date of
the Option Holder's death.
6. Transferability. The Option may not be transferred except by
will or pursuant to the laws of descent and distribution, and it shall be
exercisable during the Option Holder's life only by him, or in the event of his
disability or incapacity, by his guardian or legal representative, and after
his death, only by those entitled to do so under his will or the applicable
laws of descent and distribution.
7. Employment Agreement. In partial consideration of the
Company's granting of the Option, the Option Holder has entered into the
Employment Agreement, pursuant to which the Option Holder, among other things
has agreed to remain in the employ of the Company on the terms and conditions
stated therein.
8. Compliance with Securities Laws. Upon the acquisition of any
shares pursuant to the exercise of the Option herein granted, Option holder or
any person acting under Section 5(b) will enter into such written
representations, warranties and agreements as the Company may reasonably
request in order to comply with applicable securities laws or with this
Agreement.
9. Legends on Certificates. The Certificates representing the
shares of Common Stock purchased by exercise of an Option will be stamped or
otherwise imprinted with legends in such form as the Company or its counsel may
require with respect to any applicable restrictions on sale or transfer and the
stock transfer records of the Company will reflect stock-transfer instructions
with respect to such shares.
10. Withholding.
(a) Arrangement for Withholding. The Option Holder
hereby agrees to make appropriate arrangements with the Company to provide for
the amount of additional tax withholding under Sections 3102 and 3402 of the
Internal Revenue Code and applicable state income tax laws resulting from the
exercise of the Option. If such arrangements are not made, the Company may
refuse to issue any Stock to the Option Holder.
(b) Withholding Election. The Option Holder may elect to
pay all such amounts of tax withholding, or any part thereof, by electing to
transfer to the Company, or to have the Company withhold from shares otherwise
issuable to the Option Holder, shares of Stock having a value equal to the
amount required to be withheld or such lesser amount as may be elected by the
Option Holder. All elections shall be subject to the approval or disapproval
of the Board of
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Directors. The value of shares of Stock to be withheld shall be based on the
Designated Value of the Stock on the date that the amount of tax to be withheld
is to be determined (the "Tax Date"). Any such election by the Option Holder
to have shares of Stock withheld for this purpose will be subject to the
following restrictions:
(i) All elections must be made prior to the Tax
Date.
(ii) All elections shall be irrevocable.
(iii) If the Option Holder is an officer or
director of the Company within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, ("Section 16"), the Option Holder must
satisfy the requirements of such Section 16 and any applicable rules thereunder
with respect to the use of Stock to satisfy such tax withholding obligation.
11. Miscellaneous.
(a) Notices. Any notice required or permitted to be
given under this Agreement shall be in writing and shall be given by first
class registered or certified mail, postage prepaid, or by personal delivery to
the appropriate party, addressed:
(i) If to the Company, to the Company at its
principal place of business at New Iberia, Louisiana (Attention: Corporate
Secretary) or at such other address as may have been furnished to the Option
Holder in writing by the Company; or
(ii) If to the Option Holder, to the Option Holder
at his address on file with the Company.
or at such other address as may have been furnished to the Company by the
Option Holder.
Any such notice shall be deemed to have been given as of the
fourth day after deposit in the United States Postal Service, postage prepaid,
properly addressed as set forth above, in the case of mailed notice, or as of
the date delivered in the case of personal delivery.
(b) Amendment. The Board of Directors may make any
adjustment in the Option Price, the number of shares of Stock subject to, or
the terms of the Option by amendment or by substitution of an outstanding
Option. Such amendment or substitution may result in terms and conditions
(including Option Price, the number of shares of Stock covered, Vesting
Schedule or Option Period) that differ from the terms and conditions of this
Option. The Board of Directors may not, however, adversely affect the rights
of the Option Holder without the consent of the Option Holder. If such action
is effective by amendment, the effective date of such amendment will be the
date of the original grant of this Option. Except as provided herein, this
Agreement may not be amended or otherwise modified unless evidenced in writing
and signed by the Company and the Option Holder.
(c) Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement,
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and each other provision of this Agreement shall be severable and enforceable
to the extent permitted by law.
(d) Waiver. Any provision contained in this Agreement
may be waived, either generally or in any particular instance, by the Company.
(e) Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the Company and the Option Holder and their
respective heirs, executors, administrators, legal representatives, successors
and assigns.
(f) Rights to Employment. Nothing contained in this
Agreement shall be construed as giving the Option Holder any right to be
retained in the employ of the Company and this Agreement is limited solely to
governing the rights and obligations of the Option Holder with respect to the
Stock and the Option.
(g) Gender and Number. Except when otherwise indicated
by the context, the masculine gender shall also include the feminine gender,
and the definition of any term herein in the singular shall also include the
plural.
(h) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware without
giving effect to the conflicts of laws provisions thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
TRANSCOASTAL MARINE SERVICES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇, Director
OPTION HOLDER
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
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EXHIBIT A
Vesting Schedule
CONDITIONS TO VESTING AMOUNT EXERCISABLE
Upon the continuous employment by Option Cumulative proportion of the Stock as to
Holder through the applicable date all or part of which the Option can be
indicated below: exercised after satisfaction of the
----------------------------------------- respective conditions to vesting:
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1. 10/29/1998 20%
2. 10/29/1999 40%
3. 10/29/2000 60%
4. 10/29/2001 80%
5. 10/29/2002 100%