NEW GENERATION BIOFUELS HOLDINGS, INC.
Grant
No.: _____
2007
OMNIBUS INCENTIVE PLAN
New
Generation Biofuels Holdings, Inc., a Florida corporation (the “Company”),
hereby grants shares of its common stock, $.001 par value (the “Stock”), to the
Grantee named below, subject to the vesting conditions set forth in the
attachment. Additional terms and conditions of the grant are set
forth in this cover sheet and in the attachment (collectively, the “Agreement”)
and in the Company’s 2007 Omnibus Incentive Plan (the “Plan”).
Grant
Date:________ ___, _______
Name of
Grantee: __________________
Grantee's
Employee Identification Number: ______________
Number of
Shares of Stock Covered by Grant: ___________
Purchase
Price per Share of Stock: $_____.___
Vesting
Start Date: __________________, _____
By
signing this cover sheet, you agree to all of the terms and conditions described
in this Agreement and in the Plan, a copy of which is also
attached. You acknowledge that you have carefully reviewed the Plan,
and agree that the Plan will control in the event any provision of this
Agreement should appear to be inconsistent with the Plan. Certain
capitalized terms used in this Agreement are defined in the Plan, and have the
meaning set forth in the Plan.
Grantee: __________________________________________________________________________________________________________________
(Signature)
Company: __________________________________________________________________________________________________________________
(Signature)
Title: __________________________________________________________________________________________________________________
This is not a stock certificate or a
negotiable instrument.
2007
OMNIBUS INCENTIVE PLAN
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Restricted
Stock/ Nontransferability
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This
grant is an award of Stock in the number of shares set forth on the cover
sheet, at the purchase price set forth on the cover sheet, and subject to
the vesting conditions ("Restricted Stock"). The purchase price
is deemed paid by your prior services to the Company. To the extent not
yet vested, your Restricted Stock may not be transferred, assigned,
pledged or hypothecated, whether by operation of law or otherwise, nor may
the Restricted Stock be made subject to execution, attachment or similar
process.
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Vesting
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The
Company will issue your Restricted Stock in your name as of the Xxxxx
Date.
Your
right to the Stock under this Restricted Stock Agreement vests according
to Exhibit
A, “Vesting Schedule”, provided you then continue in
Service. The resulting aggregate number of vested shares will
be rounded down to the nearest whole number, and you cannot vest in more
than the number of shares covered by this award.
No
additional shares of Stock will vest after your Service has terminated for
any reason.
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Forfeiture
of Unvested Stock
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In
the event that your Service terminates for any reason, you will forfeit to
the Company all of the shares of Stock subject to this grant that have not
yet vested or with respect to which all applicable restrictions and
conditions have not lapsed.
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Issuance
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The
issuance of the Stock under this grant shall be evidenced in such a manner
as the Company, in its discretion, will deem appropriate, including,
without limitation, book-entry, registration or issuance of one or more
Stock certificates, with any unvested Restricted Stock bearing a legend
with the appropriate restrictions imposed by this Agreement. As
your interest in the Stock vests, the recordation of the number of shares
of Restricted Stock attributable to you will be appropriately
modified.
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Withholding
Taxes
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You
agree, as a condition of this grant, that you will make acceptable
arrangements to pay any withholding or other taxes that may be due as a
result of the payment of dividends or the vesting of Stock acquired under
this grant. In the event that the Company determines that any
federal, state, or local tax or withholding payment is required relating
to the payment of dividends or the vesting of shares arising from this
grant, the Company shall have the right to require such payments from you,
or withhold such amounts from other payments due to you from the Company
or any Affiliate. Subject to the prior approval of the
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2
| Company, which may be withheld by the Company, in its sole discretion, you may elect to satisfy this withholding obligation, in whole or in part, by causing the Company to withhold shares of Stock otherwise issuable to you or by delivering to the Company shares of Stock already owned by you. The shares of Stock so delivered or withheld must have an aggregate Fair Market Value equal to the withholding obligation and may not be subject to any repurchase, forfeiture, unfulfilled vesting, or other similar requirements. | |
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Section
83(b)
Election
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Under
Section 83 of the Internal Revenue Code of 1986, as amended (the "Code"),
the difference between the purchase price paid for the shares of Stock and
their Fair Market Value on the date any forfeiture restrictions applicable
to such shares lapse will be reportable as ordinary income at that
time. For this purpose, "forfeiture restrictions" include the
forfeiture as to unvested Stock described above. You may elect
to be taxed at the time the shares are acquired, rather than when such
shares cease to be subject to such forfeiture restrictions, by filing an
election under Section 83(b) of the Code with the Internal Revenue Service
within thirty (30) days after the Grant Date. You will have to
make a tax payment to the extent the purchase price is less than the Fair
Market Value of the shares on the Grant Date. No tax payment
will have to be made to the extent the purchase price is at least equal to
the Fair Market Value of the shares on the Grant Date. The form
for making this election is attached as Exhibit B
hereto. Failure to make this filing within the thirty (30) day
period will result in the recognition of ordinary income by you (in the
event the Fair Market Value of the shares as of the vesting date exceeds
the purchase price) as the forfeiture restrictions lapse.
YOU
ACKNOWLEDGE THAT IT IS YOUR SOLE RESPONSIBILITY, AND NOT THE COMPANY'S, TO
FILE A TIMELY ELECTION UNDER SECTION 83(b), EVEN IF YOU REQUEST THE
COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON YOUR
BEHALF. YOU ARE RELYING SOLELY ON YOUR OWN ADVISORS WITH
RESPECT TO THE DECISION AS TO WHETHER OR NOT TO FILE ANY 83(b)
ELECTION.
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Corporate
Transaction
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Notwithstanding
the vesting schedule set forth above, upon the consummation of a Corporate
Transaction, this award will become 100% vested (i) if it is not assumed,
or equivalent awards are not substituted for the award, by the Company or
its successor, or (ii) if assumed or substituted for, upon your
Involuntary Termination within the 12-month period following the
consummation of the Corporate Transaction.
“Involuntary Termination” means termination of your Service
by reason of (i) your involuntary dismissal by the Company or its
successor for reasons other than Cause; or (ii) your voluntary resignation
for Good Reason as defined in any applicable employment or
severance agreement, plan, or arrangement
between you and the Company, or if none, then as set forth in the Plan
following (x) a substantial adverse alteration in your title or
responsibilities from those in effect immediately prior to the Corporate
Transaction; (y) a reduction in your annual base salary as of immediately
prior to the Corporate Transaction (or as the same may be increased from
time to time) or a material
reduction in your annual target bonus opportunity as of immediately prior
to the Corporate Transaction; or (z) the
relocation of your principal place of employment to a location more than
35 miles from your principal place of employment as of the Corporate
Transaction or the Company's requiring you to be based anywhere other than
such principal place of employment (or permitted relocation thereof)
except for required travel on the Company's business to an extent
substantially consistent with your business travel obligations as of
immediately prior to the Corporate Transaction.
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Retention
Rights
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Neither
your award nor this Agreement give you the right to be retained by the
Company (or any Parent, Subsidiaries or Affiliates) in any
capacity. The Company (and any Parent, Subsidiaries or
Affiliates) reserve the right to terminate your Service at any time and
for any reason.
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Shareholder
Rights
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You
have the right to vote the Restricted Stock and to receive any dividends
declared or paid on such stock. Any distributions you receive
as a result of any stock split, stock dividend, combination of shares or
other similar transaction shall be deemed to be a part of the Restricted
Stock and subject to the same conditions and restrictions applicable
thereto. The Company may in its sole discretion require any
dividends paid on the Restricted Stock to be reinvested in shares of
Stock, which the Company may in its sole discretion deem to be a part of
the shares of Restricted Stock and subject to the same conditions and
restrictions applicable thereto. Except as described in the
Plan, no adjustments are made for dividends if the applicable record date
occurs before your stock certificate is issued.
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Adjustments
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In
the event of a stock split, a stock dividend or a similar change in the
Company Stock, the number of shares covered by this grant shall be
adjusted (and rounded down to the nearest whole number) pursuant to the
Plan. Your Restricted Stock shall be subject to the terms of
the agreement of merger, liquidation or reorganization in the event the
Company is subject to such corporate activity in accordance with the terms
of the Plan.
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Legends
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All
certificates representing the Stock issued in connection with this grant
shall, where applicable, have endorsed thereon the following
legend:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS
ON TRANSFER SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE
REGISTERED HOLDER, OR HIS OR HER PREDECESSOR IN INTEREST. A COPY OF SUCH
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE
FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY BY THE
HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS
CERTIFICATE.”
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Applicable
Law
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This
Agreement will be interpreted and enforced under the laws of the State of
Florida, other than any conflicts or choice of law rule or principle that
might otherwise refer construction or interpretation of this Agreement to
the substantive law of another jurisdiction.
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The
Plan
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The
text of the Plan is incorporated in this Agreement by
reference.
This
Agreement and the Plan constitute the entire understanding between you and
the Company regarding this grant of Restricted Stock. Any prior
agreements, commitments or negotiations concerning this grant are
superseded.
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Data
Privacy
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In
order to administer the Plan, the Company may process personal data about
you. Such data includes but is not limited to the information
provided in this Agreement and any changes thereto, other appropriate
personal and financial data about you such as home address and business
addresses and other contact information, payroll information and any other
information that might be deemed appropriate by the Company to facilitate
the administration of the Plan.
By
accepting this grant, you give explicit consent to the Company to process
a ny such personal data. You also give explicit consent to the
Company to transfer any such personal data outside the country in which
you work or are employed, including, with respect to non-U.S. resident
Grantees, to the United States, to transferees who shall include the
Company and other persons who are designated by the Company to administer
the Plan.
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Consent
to Electronic Delivery
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The
Company may choose to deliver certain statutory materials relating to the
Plan in electronic form. By accepting this grant you agree that
the Company may deliver the Plan prospectus and the Company’s annual
report to you in an electronic format. If at any time you would
prefer to receive paper copies of these documents, as you are entitled to,
the Company would be pleased to provide copies. Please contact
[ ] at
[ ]
to request paper copies of these documents.
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By signing the cover sheet of this
Agreement, you agree to all of the terms and conditions
described above and in the Plan.
6
EXHIBIT
A
EXHIBIT
B
ELECTION
UNDER SECTION 83(b) OF
THE
INTERNAL REVENUE CODE
The
undersigned hereby makes an election pursuant to Section 83(b) of the Internal
Revenue Code with respect to the property described below and supplies the
following information in accordance with the regulations promulgated
thereunder:
1. The
name, address and social security number of the undersigned:
Name: ________________________________________________________
Address: ________________________________________________________
Social
Security No.
: ______________________________________________
2. Description
of property with respect to which the election is being made:
____________ shares of common
stock, par value $.001 per share, New Generation Biofuels Holdings, Inc., a
Florida corporation, (the “Company”).
3. The
date on which the property was transferred is ____________ __,
200_.
4. The
taxable year to which this election relates is calendar year 200_.
5. Nature
of restrictions to which the property is subject:
The
shares of stock are subject to the provisions of a Restricted Stock Agreement
between the undersigned and the Company. The shares of stock are
subject to forfeiture under the terms of the Agreement.
6. The
fair market value of the property at the time of transfer (determined without
regard to any lapse restriction) was $__________ per share, for a total of
$__________.
7. The
amount paid by taxpayer for the property was $__________.
8. A
copy of this statement has been furnished to the Company.
Dated: _____________,
200__
Taxpayer’s
Signature
Taxpayer’s
Printed Name
PROCEDURES
FOR MAKING ELECTION
UNDER INTERNAL REVENUE CODE SECTION 83(b)
The following procedures must be followed with respect
to the attached form for making an election under Internal Revenue Code section
83(b) in order for the election to be effective:1
1. You
must file one copy of the completed election form with the IRS Service Center
where you file your federal income tax returns within 30 days after the
Grant Date of your Restricted Stock.
2. At
the same time you file the election form with the IRS, you must also give a copy
of the election form to the Secretary of the Company.
3. You
must file another copy of the election form with your federal income tax return
(generally, Form 1040) for the taxable year in which the stock is transferred to
you.
1. Whether
or not to make the election is your decision and may create tax consequences for
you. You are advised to consult your tax advisor if you are unsure
whether or not to make the election.
