EXHIBIT 10.1.15
BEACON POWER CORPORATION
NON-QUALIFIED OPTION AGREEMENT
GRANTED UNDER AMENDED AND RESTATED 1998 STOCK INCENTIVE PLAN
This Agreement, dated as of _______________, ______ (the "GRANT DATE"),
is between Beacon Power Corporation (the "COMPANY") and _____________________
(the "OPTIONEE"), an employee, director, consultant or service provider or other
independent contractor of the Company.
1. GRANT OF OPTION. This agreement evidences the grant by Beacon Power
Corporation, a Delaware corporation (the "COMPANY") to the Optionee, of an
option to purchase, in whole or in part, on the terms provided herein and in the
Company's Amended and Restated 1998 Stock Incentive Plan (the "PLAN"), the
shares (the "SHARES") of common stock, $0.01 par value per share, of the Company
("COMMON STOCK") at an exercise price per share, as set forth below:
SHARES: EXERCISE PRICE:
$
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Unless earlier terminated, this option shall expire one day before its
10th anniversary (the "FINAL EXERCISE DATE"). It is intended that the option
evidenced by this agreement shall be a non-qualified stock option Except as
otherwise indicated by the context, the term "Optionee", as used in this option,
shall be deemed to include any person who acquires the right to exercise this
option validly under its terms.
2. VESTING SCHEDULE . Subject to the other terms of this Agreement regarding the
exercisability of this option, the shares covered by this option shall become
vest and become exercisable at the end of each of three consecutive 12 month
periods, as follows:
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NUMBER OF SHARES
DATE
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NEWLY VESTED ON THE INDICATED DATE CUMULATIVE VESTED
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The right of exercise shall be cumulative so that to the extent the
option is not exercised in any period to the maximum extent permissible it shall
continue to be exercisable, in whole or in part, with respect to all shares for
which it is vested until the earlier of the Final Exercise Date or the
termination of this option under this Agreement or the Plan.
3. EXERCISE OF OPTION .
(a) FORM OF EXERCISE. Each election to exercise this option shall be in
writing, signed by the Optionee, and received by the Company at its principal
office, accompanied by a copy of this agreement and by payment in full as
provided below. The Optionee may purchase less than the number of shares covered
hereby, provided that no partial exercise of this option may be for any
fractional share or for fewer than 100 whole shares. Payment shall be as
follows:
(i) in cash or by check, payable to the order of the Company;
(ii) in the sole discretion of the authorized administrator of
the Plan, (A) delivery of an irrevocable and unconditional undertaking by a
creditworthy broker to deliver promptly to the Company sufficient funds to pay
the exercise price or (B) delivery by the Optionee to the Company of a copy of
irrevocable and unconditional instructions to a creditworthy broker to deliver
promptly to the Company cash or a check sufficient to pay the exercise price;
(iii) at such time as the Common Stock is registered under the
Exchange Act, delivery of shares of Common Stock owned by the Optionee valued at
Fair Market Value, which Common Stock was owned by the Optionee at least six
months prior to such delivery;
(iv) to the extent permitted by the authorized administrator
of the Plan, in its sole discretion, by payment of such other lawful
consideration as the authorized administrator of the Plan may determine; or
(v) any combination of the above permitted forms of payment.
A certificate or certificates for the Common Shares purchased shall be
issued by the Company after the exercise of the option and payment therefor,
including the provision for any federal and state withholding taxes, and other
applicable employment taxes.
(b) CONTINUOUS RELATIONSHIP WITH THE COMPANY REQUIRED. Except as
otherwise provided in this Section 3, this option may not be exercised unless
the Optionee, at the time he or she exercises this option, is, and has been at
all times since the date of grant of this option, an employee, director,
consultant or service provider or other independent contractor of the Company or
any parent or subsidiary of the Company .
(c) TERMINATION OF OPTION UPON TERMINATION OF EMPLOYMENT, DEATH OR
DISABILITY.
(i) FOR REASONS OTHER THAN BREACH OF CONDUCT, DEATH OR DISABILITY. Upon
the termination of Optionee's employment with or service provision to the
Company for any reason OTHER THAN a Breach of Conduct (as defined in
subparagraph (iii) below)or death or disability, any portion of this option that
is not vested as described in Section 2 hereof shall immediately terminate, and
any portion that vested before the employment or service provision termination
date shall continue to be exercisable for three months following such
termination date. However, no portion of the option is exercisable after the
Final Exercise Date.
(ii) DEATH OR DISABILITY. If termination of employment or service
provision is by reason of death or disability, any portion of this option which
is not vested before such termination of employment or service provision shall
immediately terminate, and any remaining portion of this option shall terminate
if not exercised within one year following the date of death or commencement of
disability. However, no portion of the option is exercisable after the Final
Exercise Date.
(iii) BREACH OF CONDUCT. In the event of a Breach of Conduct by
Optionee at any time while employed by or providing service to the Company or
within two years after termination of employment or service provision, any
portion of this option which has not been exercised by the time of such Breach,
whether or not vested under Section 2, shall immediately terminate upon written
declaration by the authorized administrator of the Plan. Such declaration shall
be communicated in writing to the Optionee. In addition, upon a Breach of
Conduct, the Company may, in its sole discretion, by written notice demand that
any or all stock certificates for Common Shares acquired pursuant to the
exercise of this option, or any profit realized from the sale or transfer of
such Common Shares, be returned to the Company within five (5) days of receipt
of such notice, and any exercise price paid by the Optionee shall be returned to
Optionee by the Company immediately thereafter, without interest. The Company
shall be entitled to reimbursement of reasonable attorney fees and expenses
incurred in seeking to enforce its rights under this paragraph.
"BREACH OF CONDUCT" shall mean activities which constitute a serious
breach of conduct as determined by the authorized administrator of the Plan in
its sole discretion, including, but not limited to: (i) the disclosure or misuse
of confidential information, trade secrets or other intellectual property of the
Company or third parties who
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have disclosed such information, secrets or intellectual property to the Company
or a company that controls, is controlled by or is under common control with the
Company (collectively, an "AFFILIATE"); (ii) activities in violation of the
policies of the Company or any Affiliate, including without limitation, the
Company's xxxxxxx xxxxxxx policy; (iii) the violation or breach of any material
provision in any applicable contract or agreement between the Optionee and the
Company (or an Affiliate), including, for example, a violation or breach which
is grounds for discharge for cause; (iv) engaging in conduct relating to the
Optionee's employment or service provision for which either criminal or civil
penalties have been sought; (v) engaging in activities which adversely affect or
which are contrary or harmful to the interests of the Company or Affiliate, or
(vi) in the event that the Optionee and Company have not signed a noncompetition
agreement (which therefore otherwise would govern issues of noncompetition),
engaging in competition with the Company or any Affiliate during employment or
service provision or within one (1) year following termination of employment
with or service provision to the Company or Affiliate. The determination of
Breach of Conduct shall be determined by the authorized administrator of the
Plan in good faith and in its sole discretion.
4. RIGHT OF FIRST REFUSAL.
(a) If the Optionee proposes to sell, assign, transfer, pledge,
hypothecate or otherwise dispose of, by operation of law or otherwise
(collectively, "TRANSFER") any Shares acquired upon exercise of this option,
then the Optionee shall first give written notice of the proposed transfer (the
"TRANSFER NOTICE") to the Company. The Transfer Notice shall name the proposed
transferee and state the number of such Shares the Optionee proposes to transfer
(the "OFFERED SHARES"), the price per share and all other material terms and
conditions of the transfer.
(b) For 30 days following its receipt of such Transfer Notice, the
Company shall have the option to purchase all (but not less than all) of the
Offered Shares at the price and upon the terms set forth in the Transfer Notice.
In the event the Company elects to purchase all of the Offered Shares, it shall
give written notice of such election to the Optionee within such 30-day period.
Within 10 days after his receipt of such notice, the Optionee shall tender to
the Company at its principal offices the certificate or certificates
representing the Offered Shares, duly endorsed in blank by the Optionee or with
duly endorsed stock powers attached thereto, all in a form suitable for transfer
of the Offered Shares to the Company. Upon receipt of such certificate or
certificates, the Company shall deliver or mail to the Optionee a check in
payment of the purchase price for the Offered Shares; PROVIDED THAT if the terms
of payment set forth in the Transfer Notice were other than cash against
delivery, the Company may pay for the Offered Shares on the same terms and
conditions as were set forth in the Transfer Notice.
(c) At and after the time at which the Offered Shares are required to
be delivered to the Company for transfer to the Company pursuant to subsection
(b) above, the Company shall not pay any dividend to the Optionee on account of
such Shares or permit the Optionee to exercise any of the privileges or rights
of a stockholder with respect to such Offered Shares, but shall, in so far as
permitted by law, treat the Company as the owner of such Offered Shares.
(d) If the Company does not elect to acquire all of the Offered Shares,
the Optionee may, within the 30-day period following the expiration of the
option granted to the Company under subsection (b) above, transfer the Offered
Shares to the proposed transferee, PROVIDED THAT such transfer shall not be on
terms and conditions more favorable to the transferee than those contained in
the Transfer Notice. Notwithstanding any of the above, all Offered Shares
transferred pursuant to this Section 4 shall remain subject to the right of
first refusal set forth in this Section 4 and such transferee shall, as a
condition to such transfer, deliver to the Company a written instrument
confirming that such transferee shall be bound by all of the terms and
conditions of this Section 4.
(e) The following transactions shall be exempt from the provisions of
this Section 4:
(1) any transfer of Shares to or for the benefit of any
spouse, child or grandchild of the Optionee, or to a
trust for their benefit;
(2) any transfer pursuant to an effective registration
statement filed by the Company under the Securities
Act of 1933, as amended (the "Securities Act"); and
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(3) any transfer of the Shares pursuant to the sale of
all or substantially all of the business of the
Company;
PROVIDED HOWEVER, that in the case of a transfer pursuant to clause (1) above,
such Shares shall remain subject to the right of first refusal set forth in this
Section 4 and such transferee shall, as a condition to such transfer, deliver to
the Company a written instrument confirming that such transferee shall be bound
by all of the terms and conditions of this Section 4.
(f) The Company may assign its rights to purchase Offered Shares in any
particular transaction under this Section 4 to one or more persons or entities.
(g) The provisions of this Section 4 shall terminate upon the earlier
of the following events.
(1) the closing of the sale of shares of Common Stock in an
underwritten public offering pursuant to an effective registration statement
filed by the Company under the Securities Act; or
(2) the sale of all or substantially all of the capital stock,
assets or business of the Company, by merger, consolidation, sale of assets or
otherwise.
(h) The Company shall not be required (i) to transfer on its books any
of the Shares which shall have been sold or transferred in violation of any of
the provisions set forth in this Section 4, or (ii) to treat as owner of such
Shares or to pay dividends to any, transferee to whom any such Shares shall have
been so sold or transferred.
5. AGREEMENT IN CONNECTION WITH PUBLIC OFFERING. The Optionee agrees, in
connection with the initial underwritten public offering of the Company's
securities pursuant to a registration statement under the Securities Act, (a)
not to sell, make short sale of, loan, grant any options for the purchase of, or
otherwise dispose of any shares of Common Stock held by the Optionee (other than
those shares included in the offering) without the prior written consent of the
Company or the underwriters managing such initial underwritten public offering
of the Company's securities for a period of 180 days from the effective date of
such registration statement, and (b) to execute any agreement reflecting clause
(a) above as may be requested by the Company or the managing underwriters at the
time of such offering.
6. WITHHOLDING. No Shares will be issued pursuant to the exercise of this option
unless and until the Optionee pays to the Company, or makes provision
satisfactory to the Company for payment of, any federal, state or local
withholding taxes required by law to be withheld in respect of this option.
7. NONTRANSFERABILITY OF OPTION. This option may not be sold, assigned,
transferred, pledged or otherwise encumbered by the Optionee, either voluntarily
or by operation of law, except by will or the laws of descent and distribution,
and, during the lifetime of the Optionee, this option shall be exercisable only
by the Optionee.
8. PROVISIONS OF THE PLAN. This option is subject to the provisions of the Plan,
a copy of which Optionee hereby acknowledges receiving with this option.
9. NO RIGHT TO CONTINUED EMPLOYMENT. This option shall not confer upon the
Optionee any right with respect to continuance of employment or service
provision by the Company, nor shall it interfere in any way with the right of
the Company to terminate the Optionee's employment or service provision at any
time.
10. COMPLIANCE WITH LAW AND REGULATIONS. This option and the obligation of the
Company to sell and deliver shares hereunder shall be subject to all applicable
federal and state laws, rules and regulations and to such approvals by any
government or regulatory agency as may be required. The Company shall not be
required to issue or deliver any certificates for Common Shares prior to (a) the
listing of such Common Shares on any stock exchange on which the Common Shares
may then be listed, and (b) the completion of any registration or
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qualification of such Common Shares under any federal or state law, or any rule
or regulation of any government body which the Company shall, in its sole
discretion, determine to be necessary or advisable. Moreover, this option may
not be exercised if its exercise, or the receipt of Common Shares pursuant
thereto, would be contrary to applicable law.
11. NOTICES. Any notice hereunder to the Company shall be addressed to it at its
principal business office, 0X Xxxx Xxxxxx Xxxxxx, XX 00000, and any notice
hereunder to the Optionee shall be sent to the address reflected on the payroll
records of the Company, subject to the right of either party to designate at any
time hereafter in writing some other address.
12. DELAWARE LAW TO GOVERN. This Agreement shall be construed and administered
in accordance with and governed by the laws of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as a
sealed instrument, as of the date first set forth above.
OPTIONEE: BEACON POWER CORPORATION
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SIGNATURE BY:
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SIGNATURE
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ADDRESS PRINT NAME, TITLE
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