EXHIBIT 4.6
H POWER CORP.
NON-QUALIFIED STOCK OPTION AGREEMENT
Date Option Granted:
Name of Optionee:
THIS AGREEMENT made as of the date set forth above, between H POWER
CORP., a Delaware corporation (the "Company"), and _________________ (the
"Optionee").
The Board of Directors of the Company, or a duly appointed Stock Option
Committee (collectively the "Committee") thereof, has determined that it is to
the advantage and interest of the Company and its stockholders to grant the
option provided for herein to the Optionee as an inducement to remain in the
service of the Company and as an incentive for increased effort during such
service, and in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
The Company grants to the Optionee the right and option (the "Option")
to purchase on the terms and conditions hereinafter set forth all or any part of
an aggregate of ______ shares (the "Shares") of the presently authorized and
unissued common stock, $.001 par value, of the Company ("Stock") at the purchase
price of $_____ per share. The Option shall be exercisable as follows:
(a)
(b)
(c)
Nothing contained herein shall be construed to limit or restrict the
right of the Company to terminate the Optionee's employment at any time, with or
without cause, or to increase or decrease the Optionee's compensation from the
rate in existence at the time the Option is granted.
Without limiting the generality of the foregoing, the Option is subject
to the following terms and conditions:
1. EXERCISE
The right to exercise the Option granted hereunder shall be cumulative
to the extent that the right to exercise has accrued and has not been exercised.
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2. METHOD OF EXERCISE
The Option may be exercised from time to time by delivering to the
Secretary of the Company:
(a) a written notice specifying the number of shares to be
purchased, and
(b) payment in full of the Exercise Price, together with the
amount, if any, deemed necessary by the Company to enable it
to satisfy any income tax withholding obligations with respect
to the exercise (unless other arrangements acceptable to the
Company are made for the satisfaction of such withholding
obligations).
The Exercise Price shall be payable in cash or by bank or certified check or
shares of Common Stock of the Company or Options of the Company ("Cashless
Exercise") with a fair market value, equal to the Exercise Price for each Option
share to be purchased. For purposes of making payment of the aggregate Exercise
Price by Cashless Exercise, the fair market value of any share of Common Stock
shall be equal to the closing price of a share of Common Stock reported on
NASDAQ or other principal exchange on which the Common Stock is listed as of the
business day immediately prior to the day of exercise and the fair market value
of any Option shall be equal to the difference between the aforesaid closing
price per share and the Exercise Price of the Option, provided however, that if
at the time of determination the shares are not listed, then the fair market per
share shall be deemed to have a value as determined by a good faith
determination of the Board of Directors of the Company.
The Optionee may exercise the Option for less than the total number of
Shares for which the Option is exercisable, provided that a partial exercise may
not be for less than one hundred (100) Shares, except during the final year of
the Option, and shall not include any fractional Shares.
3. TERMINATION OF OPTION
The Option shall terminate and expire upon the earlier of:
(a) ____________________;
(b) The expiration of three months from the date of the Optionee's
termination of employment or directorship with the Company
other than by reason of termination for death;
(c) The expiration of one year from the date of the Optionee's
termination of employment or directorship with the Company or
one of its Subsidiaries by reason of death;
(d) The termination of the Option pursuant to Section 5 hereof.
A termination of employment or directorship by reason of the death,
retirement or permanent disability of the Optionee or otherwise shall not
accelerate or otherwise affect the number of Shares with respect to which the
Option may be exercised, and the Option may only
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be exercised with respect to the number of Shares for which it was exercisable
at the date of such termination of employment. In the event of the Optionee's
death, the Option may be exercised prior to its expiration or termination by his
personal representative, or if there is no personal representative, by his heir
or legatee.
Termination of employment or directorship (other than by reason of
death) for purposes hereof shall be the date of the Optionee's retirement under
the normal retirement policies of the Company or the Optionee's retirement with
the approval of the Committee because of disability other than permanent
disability; the date the Optionee receives notice or advice that his employment
or directorship is terminated; or the date the Optionee ceases to render his
services to the Company (absences for temporary illness and emergencies, and
vacations or leaves of absence approved in writing by the Committee excepted).
The fact that the Optionee may receive payment from the Company after
termination for vacation pay, for services rendered prior to termination, for
salary in lieu of notice, or for other benefits shall not affect the termination
date.
4. ADJUSTMENTS
If there are any changes in the capitalization of the Company affecting
in any manner the number or kind of outstanding shares of Stock of the Company,
whether such changes have been occasioned by reorganization, combination of
shares, declaration of stock dividends, stock splits, reclassifications or
recapitalizations of such stock, the merger or consolidation of the Company with
some other corporation (and provided the Option does not thereby terminate
pursuant to Section 5 hereof) or other similar transaction, then the number and
kind of Shares then subject to the Option and the price to be paid therefor
shall be appropriately adjusted by the Committee, provided, however, that in no
event shall any such adjustment result in the Company being required to sell or
issue a fractional share of stock.
5. CESSATION OF CORPORATE EXISTENCE
Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon a sale of substantially all the assets of the Company or of more than
80% of the then outstanding stock of the Company to another corporation or
entity, the Option granted hereunder shall terminate on the day before the
consummation of such transaction and the Committee shall have the right, but
shall not be obligated, to accelerate the time in which the Option may be
exercised, unless provision be made in writing in connection with such
transaction for the assumption of the Option or for the substitution for the
Option of a new option to purchase the stock of a successor employer
corporation, or a parent or subsidiary thereof, with appropriate adjustments as
to number and kind of shares and the option price thereof, in which event the
option granted herein shall continue in the manner and under the terms so
provided.
6. NON-TRANSFERABILITY
The Option is not assignable or transferable, either voluntarily or by
operation of law, otherwise than by will or by the laws of descent and
distribution, and is exercisable, during the Optionee's lifetime, only by the
Optionee.
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7. WAIVER OF SHAREHOLDER RIGHTS
The Optionee or other person entitled to exercise the Option shall have
no rights as a stockholder with respect to any shares subject hereto until the
Optionee or such person has become the holder of record of such shares and no
adjustment (except such adjustments as may be effected pursuant to the
provisions of Section 4 hereof) shall be made for dividends or distributions of
rights in respect of such shares for which the record date is prior to the date
on which the Optionee or such person becomes the holder of record.
8. REPRESENTATIONS BY OPTIONEE
As a condition to exercise of any Option, the Optionee hereby
represents, warrants and agrees that he will not make any sale, transfer or
other disposition of said Stock except in compliance with the Securities Act of
1933, as amended.
9. METHOD OF ACCEPTANCE
This Agreement is addressed to the Optionee in duplicate and shall not
be effective until the Optionee executes the acceptance set out below and
returns one copy to the Company, thereby acknowledging that he has read and
agreed to all the terms and conditions of the Option.
EXECUTED this ___ day of ______________
H POWER CORP.
By:_______________________________
ACCEPTED:
__________________________________
Optionee
SCHEDULE OF OPTIONEES
Number of
Shares/Excercise
Name Date of Xxxxx Xxxxx Vesting Schedule
Xxxx-Xxx Xxxxxxxxx December 22, 125,000/$3.00 a. 62,500 shares from Dec. 22,
1999 1999 through Dec. 22, 2004
b. 62,500 shares from Dec. 22,
2000 through Dec. 22, 2004
Xxxxxx X. Xxxxxxx December 22, 225,000/$3.00 a. 75,000 shares from Oct. 31, 2000
1999 through Dec. 22, 2004
b. 75,000 shares from Oct. 31, 2001
through Dec. 22, 2004
c. 75,000 shares from Oct 31, 2002
through Dec. 22, 2004
Xxxxxxx X. Xxxx December 22, 250,000/$3.00 a. 83,330 shares from Dec. 5, 2000
1999 through Dec. 22, 2004
b. 83,335 shares from Dec. 5, 2001
through Dec. 22, 2004
c. 83,335 shares from Dec. 5, 2002
through Dec. 22, 2004
Xxxxxxx X. Xxxx February 3, 125,000/$16.00 a. 41,665 shares from Dec. 5, 2000
2000 through Dec. 22, 2004
b. 41,665 shares from Dec. 5, 2001
through Dec. 22, 2004
c. 41,670 shares from Dec. 5, 2002
through Dec. 22, 2004
H. Xxxxx Xxxxxxx December 22, 500,000/$3.00 a. 250,000 shares from Oct. 6, 2000
1999 through Dec. 22, 2004
b. 250,000 shares from Oct. 6, 2001
through Dec. 22, 2004
