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EXHIBIT 10.9
STOCK OPTION AGREEMENT
THIS AGREEMENT, entered into as of the Agreement Date (as defined in
paragraph 1), by and between the Participant and First Wave Marine, Inc. (the
"Company");
WITNESSETH:
WHEREAS, the Company maintains the 1997 Incentive Equity Plan (the
"Plan"), which is incorporated into and forms a part of this Agreement, and the
Participant has been selected by the committee administering the Plan (the
"Committee") to receive a Non-Qualified Stock Option Award under the Plan;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the
Participant, as follows:
1. Terms of Award. The following terms used in this Agreement
shall have the meanings set forth in this paragraph 1:
a. The "Participant" is Name.
b. The "Agreement Date" is December 30, 1997.
c. The number of "Covered Shares" shall be Number
shares of Stock.
d. The "Exercise Price" is $3.50 per share.
The number of Covered Shares and the Exercise Price shall be subject
to adjustment as provided in the Plan. Other terms used in this Agreement are
defined in paragraph 8 or elsewhere in this Agreement.
2. Award and Exercise Price. The Participant is hereby granted
an option (the "Option") to purchase the number of Covered Shares of Stock at
the Exercise Price per share as set forth in paragraph 1. The Option is not
intended to constitute an "incentive stock option" as that term is used in Code
Section 422.
3. Date of Exercise. The Option shall become exercisable
according to the following vesting schedule.
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The Option shall become
As of the following Anniversary of the exercisable with respect to the
Agreement Date: following percentage of the
Covered Shares:
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One-year anniversary 33 1/3%
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Two-year anniversary 33 1/3%
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Three-year anniversary 33 1/3%
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The Option shall not become exercisable in accordance with the foregoing
schedule as of any anniversary if the Participant's Date of Termination (as
defined below) occurs before such anniversary. Exercisability under this
schedule is cumulative, and after the Option becomes exercisable under the
schedule with respect to any portion of the Covered Shares, it shall continue
to be exercisable with respect to that portion of the Covered Shares until the
Option expires. Notwithstanding the foregoing provisions of this paragraph 3,
the Option shall become immediately fully exercisable, accelerating all further
vesting requirements, with respect to all of the Covered Shares which
Participant has not exercised as follows:
a. The Option shall become fully exercisable upon the
date of the Participant's Date of Termination by
reason of the Participant's death or Disability.
b. The Option shall become fully exercisable upon the
date of a Change in Control, if the Board of
Directors of the Company provides in a resolution
after the Change in Control that vesting will be
accelerated, and the Participant's Date of
Termination does not occur before the Change in
Control.
4. Expiration. The Option shall not be exercisable on or after
the Expiration Date. The "Expiration Date" shall be earliest to occur of:
a. the ten-year anniversary of the Agreement Date; or
b. if the Participant's Date of Termination occurs by
reason of death, Disability or Employment Separation,
the one-year anniversary of such Date of Termination.
5. Method of Option Exercise. The Option may be exercised in
whole or in part by filing a written notice with the Secretary of the Company
at its corporate headquarters prior to the Expiration Date. Such notice shall
specify the number of shares of Stock which the Participant elects to purchase,
and shall be accompanied by payment of the Exercise Price for such shares of
Stock indicated by the Participant's election. Payment shall be by cash or by
check payable to the Company. Except as otherwise provided by the Committee
before the Option is exercised: (i) all or a portion of the Exercise Price may
be paid by the Participant by delivery of shares of Stock acceptable to the
Committee and having an aggregate Fair Market Value (valued as of the date of
exercise) that is equal to the amount of cash that would otherwise be required;
and (ii) the Participant may pay the Exercise Price by authorizing a third
party to sell shares of Stock (or a sufficient portion of the shares) acquired
upon exercise of the Option and remit to the Company a sufficient portion of
the sale proceeds to pay the entire Exercise Price and any tax withholding
resulting from such exercise.
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6. Withholding. All distributions under this Agreement are
subject to withholding of all applicable taxes. At the election of the
Participant, and subject to such rules as may be established by the Committee,
such withholding obligations may be satisfied through the surrender of shares
of Stock which the Participant already owns, or to which the Participant is
otherwise entitled under the Plan.
7. Transferability. Except as otherwise provided in this
paragraph 7, the Option is not transferable other than as designated by the
Participant by will or by the laws of descent and distribution, and during the
Participant's life, may be exercised only by the Participant. However, the
Participant, with the express written approval of the Committee, may transfer
the Option to (i) the spouse, parents, children, stepchildren, adoptive
relationships, sisters, brothers or grandchildren of the Participant, (ii) a
trust or trusts for the exclusive benefit of the spouse, parents, children,
stepchildren, adoptive relationships, sisters, brothers or grandchildren of the
Participant, or (iii) a partnership or limited liability company in which the
spouse, parents, children, stepchildren, adoptive relationships, sisters,
brothers or grandchildren of the Participant are the only partners or members,
as applicable; provided in each case that (x) there may be no consideration for
any such transfer (other than in the case of Clause (iii), units in the
partnership or membership interests in the limited liability company) and (y)
subsequent transfers of transferred Options shall be prohibited except those
made in accordance with this section or by will or by the laws of descent and
distribution. Following transfer, any such Options shall continue to be
subject to the same terms and conditions as were applicable immediately prior
to transfer. The provisions with respect to termination set forth in Section
2.4 of the Plan shall continue to apply with respect to the original
Participant, in which event the Options shall be exercisable by the transferee
only to the extent and for the periods specified herein. The original
Participant will remain subject to withholding taxes upon exercise of any such
Options by the transferee. The Company shall have no obligation whatsoever to
provide notice to any transferee of any matter, including without limitation,
early termination of an Option on account of termination of the original Option
pursuant to Section 2.4 of the Plan.
Except as set forth above and in the applicable agreement, (i) no
Options shall be voluntarily or involuntarily assigned, sold, transferred,
pledged, mortgaged or encumbered by the Participant otherwise than by will or
by laws of descent and distribution, and (ii) all Options shall be exercisable,
during the Participant's lifetime, only by the Participant. At the request of
a Participant, Stock purchased upon exercise of an Option may be issued or
transferred into the name of the Participant and another person jointly with
rights of survivorship. All Options issued under this Agreement, and all
rights under the Plan, shall not be subject to involuntary seizure, or other
process by any creditor of any holder of any such Options, and the Company
shall not honor or recognize any such involuntary seizure or other such
process. Except as set forth above, any attempted assignment, sale, transfer,
pledge, mortgage or encumbrance ("Assignment") or any attempted involuntary
seizure or other process shall be null, void and without any effect whatsoever.
Should it be determined, by a court of law or otherwise, that any such
Assignment or involuntary seizure or other process is effective, then all
Options for which such is effective shall terminate and be forfeited as of the
moment of such involuntary seizure or other process, and shall thereafter be
null, void and without any effect whatsoever.
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8. Definitions. For purposes of this Agreement, the terms
listed below shall be defined as follows:
a. Date of Termination. The Participant's "Date of
Termination" shall be the first day occurring on or
after the Agreement Date on which the Participant's
employment with the Company and all Related Companies
terminates for any reason (death, Disability or
Employment Separation); provided that a termination
of employment shall not be deemed to occur by reason
of a transfer of the Participant between the Company
and a Related Company or between two Related
Companies; and further provided that the
Participant's employment shall not be considered
terminated while the Participant is on a leave of
absence from the Company or a Related Company
approved by the Participant's employer.
b. Disability. The term "Disability" means the
permanent and total disability of Participant as
determined by the Committee.
c. Employment Separation. The term "Employment
Separation" means Participant's voluntary resignation
from employment, including retirement, or the
termination of a Participant from employment of the
Company or a Related Company.
d. Plan Definitions. Except where the context clearly
implies or indicates the contrary, a word, term, or
phrase used in the Plan is similarly used in this
Agreement.
9. Change in Control Provisions.
a. Impact of Event. In the event of a "Change in
Control" as defined in Section 9(b), the Committee or
the Board may provide that one or more of the
following acceleration and valuation provisions shall
apply:
(i) Any or all SARs outstanding for at least six
months on the date that such Change in
Control is determined to have occurred and
any or all Options awarded under this Plan
not previously exercisable and vested shall
become fully exercisable and vested.
(ii) The restrictions and deferral limitations
applicable to all Stock Awards shall lapse
and such shares and such Stock Awards shall
be fully vested.
(iii) The value of any or all outstanding Options,
SARs and Stock Awards shall be cashed out on
the basis of the "Change in Control Price" as
defined in Section 9(c) as of the date such
Change in Control is determined to have
occurred or such other date as the Committee
may determine prior to the Change in Control.
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b. Definition of "Change in Control". For purposes of
Section 9(a), a "Change in Control" means the
happening of any of the following:
(i) A tender offer is made and consummated for
the ownership of 30% or more of the
outstanding voting securities of the Company;
(ii) The Company shall merge or consolidate with
another corporation and as a result of such
merger or consolidation less than 75% of the
outstanding voting securities of the
surviving or resulting corporation shall be
owned in the aggregate by the former
shareholders of the Company, other than
affiliates (within the meaning of the
Securities Exchange Act of 1934 ("Exchange
Act")) of any party to such merger or
consolidation, as the same shall have existed
immediately prior to such merger or
consolidation;
(iii) The Company shall sell substantially all of
its assets to another corporation which is
not a Related Company;
(iv) A person, within the meaning of Section
3(a)(9) or of Section 13(d)(3) of the
Exchange Act, shall acquire 30% or more of
the outstanding voting securities of the
Company (whether directly, indirectly,
beneficially or of record); or
(v) If, as a result of a sale or other
transaction, the Participant's employer
ceases to be a Related Company (and the
Participant's employer is or becomes an
entity that is separate from the Company).
For purposes hereof, ownership of voting securities
shall take into account and shall include ownership
as determined by applying the provisions of Rule
13d-3(d)(1)(i) pursuant to the Exchange Act.
c. Change in Control Price. For the purposes of this
Section 9, "Change in Control Price" means the
highest price per share paid in any transaction
reported on the principal United States securities
exchange, the NASDAQ National Market System or other
principal market on which the Stock is traded, or
paid or offered in any bona fide transaction related
to a Change in Control of the Company, at the time
during the preceding sixty-day period as determined
by the Committee, except that, in the case of
Incentive Options and SARs relating to Incentive
Stock Options, such price shall be based only on
transactions reported for the date as of which the
Committee decides to cashout such options.
10. Heirs and Successors. This Agreement shall be binding upon,
and inure to the benefit of, the Company and its successors and assigns, and
upon any person acquiring, whether by merger, consolidation, purchase of assets
or otherwise, all or substantially all of the Company's
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assets and business. In the event of the Participant's death prior to exercise
of this Option, the Option may be exercised by the estate of the Participant to
the extent such exercise is otherwise permitted by the Agreement. Subject to
the terms of the Plan, any benefits distributable to the Participant under this
Agreement that are not paid at the time of the Participant's death shall be
paid at the time and in the form determined in accordance with the provisions
of this Agreement and the Plan, to the beneficiary designated by the
Participant in writing filed with the Committee in such form and at such time
as the Committee shall require. If a deceased Participant fails to designate a
beneficiary, or if the designated beneficiary of the deceased Participant dies
before the Participant or before complete payment of the amounts distributable
under this Agreement, the amounts to be paid under this Agreement shall be paid
to the legal representative or representatives of the estate of the last to die
of the Participant and the beneficiary.
11. Requirements of Law. The Company shall not be required to
sell or issue any shares on the exercise of the Option if the issuance of such
shares shall constitute a violation by the Participant or the Company of any
provisions of any law or regulation of any governmental authority. The Option
shall be subject to the requirements that, if at any time the Board of
Directors of the Company or the Committee shall determine that the listing,
registration or qualification of the Covered Shares subject thereto upon any
securities exchange or under any state or federal law of the United States or
of any other country or governmental subdivision thereof, or the consent or
approval of any governmental regulatory body, or investment or other
representations, are necessary or desirable in connection with the issue or
purchase of the Covered Shares subject thereto, the Option may not be exercised
in whole or in part unless such listing, registration, qualification, consent,
approval or representation shall have been effected or obtained free of any
conditions not acceptable to the Board of Directors. If required at any time
by the Board of Directors or the Committee, the Option may not be exercised
until the Participant has delivered an investment letter to the Company. In
addition, specifically in connection with the Securities Act of 1933 (as now in
effect or hereafter amended, the "Act"), upon exercise of the Option, the
Company shall not be required to issue the underlying shares unless the
Committee has received evidence satisfactory to it to the effect that such
shares will be issued in compliance with such Act or unless an opinion of
counsel satisfactory to the Company has been received by the Company to the
effect that such registration is not required. Any determination in this
connection by the Committee shall be final, binding and conclusive. In the
event the shares issuable on exercise of the Option are not registered under
the Securities Act of 1933, the Company may imprint on the certificate for such
shares the following legend or any other legend which counsel for the Company
considers necessary or advisable to comply with the Act:
The shares of stock represented by this certificate
have not been registered under the Securities Act of 1933 or
under the securities laws of any state and may not be sold or
transferred except upon registration or upon receipt by the
Corporation of an opinion of counsel satisfactory to the
Corporation, in form and substance satisfactory to the
Corporation, that registration is not required for such sale
or transfer.
The Company may, but shall in no event be obligated to, register any
securities covered hereby pursuant to the Act. The Company shall not be
obligated to take any other affirmative
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action in order to cause the exercise of the Option or the issuance of shares
of Stock pursuant thereto to comply with any law or regulation of any
governmental authority.
12. Release by Participant. Participant acknowledges that the
Option and this Option Agreement constitute the entire understanding and
agreement between the parties hereto with respect to the issuance of Stock of
the Company or any Related Company and there are no agreements, understandings,
restrictions, representations or warranties between such parties other than
those set forth herein; all other agreements and understandings being
superseded hereby. Participant hereby remises, releases, acquits and forever
discharges the Company and its successors and assigns from any and all claims,
counterclaims, demands, damages, debts, agreements, covenants, suits,
contracts, obligations, liabilities, accounts, offsets, rights, actions and
causes of action which in any manner relate to or arise out of any claims of
agreements, understandings, restrictions, representations or warranties with
respect to the issuance of Stock of the Company or any Related Company to the
Participant, including, without limitation, claims of fraud, breach of
contract, negligent or intentional misrepresentation, breach of fiduciary duty,
conspiracy, negligence, securities violations, duress, mistake, tortious
interference, usury, control, or other obligations, whether at law or in
equity, whether already accrued or accruing hereafter.
13. Administration. The authority to manage and control the
operation and administration of this Agreement shall be vested in the
Committee, and the Committee shall have all powers with respect to this
Agreement as it has with respect to the Plan. Any interpretation of the
Agreement by the Committee and any decision made by it with respect to the
Agreement is final and binding.
14. Plan Definitions. Notwithstanding anything in this Agreement
to the contrary, the terms of this Agreement shall be subject to the terms of
the Plan, a copy of which may be obtained by the Participant from the office of
the Secretary of the Company. Inconsistencies between this document and the
Plan shall be resolved in accordance with the terms of the Plan.
15. Amendment. This Agreement may be amended by written agreement
of the Participant and the Company, without the consent of any other person.
IN WITNESS WHEREOF, the Participant has executed this Agreement, and
the Company has caused these presents to be executed in its name and on its
behalf, all as of the Agreement Date.
PARTICIPANT
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Name
FIRST WAVE MARINE, INC.
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇
President
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