W I T N E S S E T H:
WHEREAS, the Company has adopted the 1998 Long-Term Incentive Plan (the Plan) effective as of the Effective Date (as defined in the Plan) in order to provide an incentive to retain key executives and other selected employees and reward them for making major contributions to the success of the Company and its Subsidiaries (as defined in the Plan);
WHEREAS, the Plan provides that such key executives and selected employees may be granted a certain number of Options (as defined in the Plan) to purchase shares of the Common Stock, par value $.01 per share (Common Stock), of the Company to provide them with a proprietary interest in the growth of the Company and its Subsidiaries; and
WHEREAS, the Optionee has been selected to receive such award;
NOW, THEREFORE, in consideration of the premises, the terms and conditions set forth herein, the mutual benefits to be gained by the performance thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Subject to the terms and conditions set forth herein, the Company hereby grants to the Optionee an Option to purchase from the Company shares of Common Stock at $ per share. Such shares of Common Stock are hereinafter referred to as the Option Shares.
2. The Option granted pursuant to this Agreement may be exercised by the Optionee at any time during the 10-year period beginning on the date of this Option Agreement (Option Period), subject to the limitation that said Option shall become exercisable (i) with respect to 33 1/3% of the total number of Option Shares, as of the first anniversary of the date hereof; (ii) with respect to an additional 33 1/3% of the Option Shares, as of the second anniversary of the date hereof; and (iii) with respect to the remaining 33 1/3% of the total Option Shares, as of the third anniversary of the date hereof (it being understood that the right to purchase Option Shares shall be cumulative so that the Optionee may purchase on or after any such anniversary and during the remainder of the Option Period those quantifies of Option Shares which the Optionee was entitled to purchase but did not purchase during any preceding period or periods). Notwithstanding anything to the contrary contained herein, the Option herein granted shall terminate and be of no further force or effect upon the expiration of the Option Period.
3. The Option granted pursuant to this Agreement may be exercised by the Optionee by giving written notice to the Secretary of the Company setting forth the number of Option Shares with respect to which the Option is to be exercised, which notice shall be accompanied by payment of the full amount of the exercise price for such and any appropriate withholding taxes. If permitted by the Committee, payment may also be by means of tendering Common Stock, another Award, including Restricted Stock valued at Fair Market Value on the date of exercise, securing a loan from the Committee or any combination thereof. (All capitalized terms herein are defined in the Plan).
Such notice shall specify the address to which the certificate or certificates for such shares are to be mailed. As promptly as practicable following the receipt of such written notification and payment, the Company shall deliver to the Optionee certificates for the number of Option Shares with respect to which such Option has been exercised.
4. In the event that the Optionee terminates employment with the Company or a Subsidiary other than for Cause, and defined in Paragraph 5, when the Option granted pursuant to this Agreement is still in force and unexpired, such unmatured Option shall be accelerated. Such acceleration shall be effective as of the date of termination with the Company and each Option so accelerated may be exercised by the Optionee during the 12-month period beginning on such date but shall terminate at the end of such period.
5. In the event that the Optionees employment with the Company or a Subsidiary is terminated for Cause, any Option granted pursuant to this Agreement shall be forfeited upon the date that the Optionee terminates employment. Termination for Cause shall be termination resulting from (i) the continuing and material failure by the optionee to fulfill the Optionees duties as an employee of the Company or willful misconduct or gross neglect in the performance of such duties, in either such instance so as to cause material harm to the Company, all of such facts to be determined in good faith by the Board of Directors of the Company, (ii) committing fraud, misappropriation or embezzlement in the performance of the Optionees duties as an employee of the Company, or (iii) the optionees commission of any felony for which the Optionee is convicted and which, as determined in good faith by the Board of Directors of the Company, constitutes a crime involving moral turpitude. For the purposes of this Paragraph 5, the term Company includes Subsidiaries of the Company.
6. In the event that the Optionee terminates employment during the Option Period by reason of death or total and permanent disability at a time when the Option granted pursuant hereto is still in force and unexpired, such unmatured Option shall be accelerated. Such acceleration shall be effective as of the date of death or termination by reason of total and permanent disability of the Optionee, and each Option so accelerated may be exercised by the person or persons entitled thereto under the Optionees will or the laws for descent and distribution during the 12-month period beginning on such date but shall terminate at the end of such period.
7. Except as provided herein this Paragraph 7 or in Paragraph 10, no right or benefit under this plan shall be subject to anticipation, alienation, transfer, sale, assignment, pledge, encumbrance or charge, whether voluntary, involuntary, direct or indirect, by operation of law or otherwise, including, without limitation, a change in beneficial interest of any trust and a change in
ownership of a corporation or partnership, but not including a change of legal and beneficial title of a right or benefit resulting from the death of any Optionee or the spouse of any Optionee (any such proscribed transaction hereinafter a Disposition) and any attempted Disposition will be null and void. No right or benefit hereunder shall in any manner be liable for or subject to any debts, contracts, liabilities, or torts of any Optionee or other person entitled to such benefits. The foregoing provisions of this Paragraph 7 shall not apply to a domestic relations order awarding any benefits under the plan to the divorced spouse of an Optionee. The foregoing provisions of this Paragraph 7 shall also not apply to an irrevocable Disposition of a right or benefit under this Plan to a Permitted Assignee, as defined below, by (i) Optionee age 55 or older (an Eligible Optionee), or (ii) a Permitted Assignee, as defined below, who has received an assignment from an Eligible Optionee pursuant to this sentence.
|a.||Permitted Assignee. The term Permitted Assignee shall mean:|
|(i)||The Eligible Optionee;|
|(ii)||A spouse of the Eligible Optionee;|
|(iii)||Any person who is a lineal ascendant or descendant of the Eligible Optionee or the Eligible Optionees spouse;|
|(iv)||Any brother or sister of the Eligible Optionee;|
|(v)||Any spouse of any individual described in subparagraph (iii) or (iv);|
|(vi)||A trustee of any trust which, at the applicable time, is 100% Actuarially Held for a Permitted Assignee or Assignees (ad defined in Paragraph 6(c));|
|(vii)||Any corporation in which, at the applicable time, each class of stock is 100% owned by a Permitted Assignee or Permitted Assignees;|
|(viii)||Any partnership in which, at the applicable time, each class of partnership interest is 100% owned by a Permitted Assignee or Permitted Assignees; or|
|(ix)||Any limited liability company or other form of incorporated or unincorporated business organization in which each class of stock, membership or other equity interest is 100% owned by a Permitted Assignee or Assignees.|
(b) Subsequent Assignees. This Paragraph 7 shall be fully applicable to all Permitted Assignees, and the provisions of this Paragraph 7 shall be fully applicable to any right or benefit transferred by an Eligible optionee to any Permitted Assignee as if such Permitted Assignee were an Eligible Participant; provided, however, that no Permitted Assignee shall be deemed an Eligible Optionee for determining the persons who constitute Permitted Assignees under Paragraph 7. Any Permitted Assignee acquiring a right or benefit
under this Plan shall execute and deliver to the Committee an Agreement pursuant to which such Permitted Assignee agrees to be bound by all of the terms and provisions of the plan, provided that the failure to execute and deliver such an Agreement shall not be deemed to relieve such Permitted Assignee of the restrictions imposed by the plan. Any attempted Disposition of a right or benefit under this plan in breach of this Paragraph 7, whether voluntary, involuntary, by operation of law or otherwise shall be null and void.
(c). Actuarially Held. In making the determination whether a trust is 100% Actuarially Held for permitted Assignee(s), a trust, at the applicable point in time, is 100% Actuarially Held for Permitted Assignee or Assignees when 100% of the actuarial value of the beneficial interests of the trust, except as provided in the following sentence, are held for a Permitted Assignee or Permitted Assignees. For purposes of making the determination described above, the possibility that an interest in a trust may be appointed pursuant to a special or general power of appointment shall be ignored; provided, that the actual exercise of any such power of appointment shall not be ignored.
8. The Optionee shall have no rights as a stockholder of the Company with respect to the Option Shares unless and until certificates evidencing such Option Shares shall have been issued by the Company to the Optionee. Until such time, the Optionee shall not be entitled to dividends or distributions in respect of any Option Shares or to vote such shares on any matter submitted to the shareholders of the Company. In addition, except as to such adjustments that from time to time be made by the Company or the Committee in accordance with Paragraph 14 of the Plan, no adjustment shall be made or required to be made in respect of dividends (ordinary or extraordinary, whether in cash, securities or any other property) or distributions paid or made by the Company or any other rights granted in respect of any Option Shares for which the record date for such payment, distribution or grant is prior to the date upon which certificates evidencing such Option Shares shall have been issued by the Company.
9. The Company may make such provisions as it may deem appropriate for the withholding of any taxes that it determines is required in connection with the Option granted pursuant hereto.
10. Upon the acquisition of any Option Shares pursuant to the exercise of the option granted pursuant hereto, the Optionee may be required to 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 Option Agreement. In addition, the certificates representing any Option Shares purchased upon the exercise of the Option will be stamped or otherwise imprinted with a legend in such form as the Company may require with respect to any applicable restrictions on sale or transfer, and the stock transfer records of the Company will reflect stop-transfer instructions, as appropriate, with respect to such shares.
11. Unless otherwise provided herein, any notice or other communication hereunder shall be in writing and shall be given by registered or certified mail. All notices of the exercise by the Optionee of the option granted pursuant hereto shall be directed to Omega Protein Corporation, Attention: Secretary, at the Companys current address. Any notice given by the Company to the
optionee directed to him at his address on file with the Company shall be effective to bind any other person who shall acquire rights hereunder. The Company shall be under no obligation whatsoever to advise or notify the Optionee of the existence, maturity or termination of any rights hereunder and the Optionee shall be deemed to have familiarized himself with all matters contained herein and in the Plan which may affect any of the Optionees rights or privileges hereunder.
12. Whenever the term Optionee is used herein under circumstances applicable to any other person or persons to whom this award may be assigned in accordance with the provisions of Paragraph 7, the term Optionee shall be deemed to include such person or persons. References to the masculine gender herein also include the feminine gender for all purposes.
13. Notwithstanding anything to the contrary contained herein, the Optionee agrees that the Optionee will not exercise the Option granted pursuant hereto, and that the Company will not be obligated to issue any Option Shares pursuant to this Option Agreement, if the exercise of the Option or the issuance of such shares would constitute a violation by the Optionee or by the Company of any provision of any law or regulation of any governmental authority or any national securities exchange or transaction quotation system.
14. This Option Agreement is subject to the Plan, a copy of which has been furnished to the optionee and for which the Optionee acknowledges receipt. The terms and provisions of the Plan (including any subsequent amendments thereto) are incorporated by reference herein. In the event of a conflict between any term or provision contained herein and a term or provision of the plan, the applicable terms and provisions of the Plan shall govern and prevail.
IN WITNESS WHEREOF, this Option Agreement has been executed as of the date first written above.