FORM OF INCENTIVE STOCK OPTION AGREEMENT
OPTIONEE:
OPTION
NUMBER:
DATE
OF
GRANT:
EXERCISE
PRICE:
COVERED
SHARES:
O2DIESEL
CORPORATION
2004
STOCK INCENTIVE PLAN
1. Definitions.
In this
Agreement, capitalized terms used herein and not defined elsewhere herein shall
have the following meanings:
1.1 “Affiliate”
means a corporation, partnership, business trust, limited liability company
or
other form of business organization at least a majority of the total combined
voting power of all classes of stock or other equity interests of which is
owned
by the Company either directly or indirectly.
1.2 “Agreement”
means this Stock Option Agreement.
1.3 “Board”
means the Board of Directors of the Company.
1.4 “Cause”
means the Optionee’s (a) failure to substantially perform his duties (other than
by reason of disability) with respect to the Company or any of its Affiliates,
(b) engaging in conduct injurious to the Company or any of its Affiliates,
(c) breach of fiduciary duty to the Company or any of its Affiliates, (d)
dishonesty, fraud, alcohol or illegal drug abuse, or misconduct with respect
to
the business or affairs of the Company or any of its Affiliates,
(e) willful violation of the policies of the Company or any of its
Affiliates after receiving written notice of such violation, or (f) conviction
of a felony or crime involving moral turpitude. All determinations of Cause
hereunder shall be made by the Committee in its discretion and shall be binding
for all purposes hereunder.
1.5 “Change
of Control” means, and shall be deemed to have occurred, if:
(a) any
Person, excluding employee benefit plans of the Company or any of its
Affiliates, is or becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, which Rules shall apply for purposes of this
clause (a) whether or not the Company is subject to the Exchange Act), directly
or indirectly, of Company securities representing fifty percent (50%) or more
of
the combined voting power of the Company’s then outstanding securities (“Voting
Power”);
(b) the
Company consummates a merger, consolidation, share exchange, division or other
reorganization or transaction of the Company (a “Fundamental Transaction”) with
any other corporation, other than a Fundamental Transaction that results in
the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least sixty percent (60%)
of
the combined Voting Power immediately after such Fundamental Transaction of
(i)
the Company’s outstanding securities, (ii) the surviving entity’s
outstanding securities, or (iii) in the case of a division, the outstanding
securities of each entity resulting from the division; or
(c) the
shareholders of the Company approve a plan of complete liquidation or winding-up
of the Company or an agreement for the sale or disposition (in one transaction
or a series of transactions) of all or substantially all of the Company’s
assets; provided,
however,
that
the term “Change of Control” does not include any transaction or series of
transactions principally for bona fide equity financing purposes in which cash
is received by the Company or indebtedness is cancelled or converted or a
combination thereof, including but not limited to, a public offering of capital
stock of the Company that is effected pursuant to a registration statement
filed
with, and declared effective by, the Securities and Exchange Commission under
the Securities Act of 1933.
1.6 “Code”
means the Internal Revenue Code of 1986, as amended.
1.7 “Committee”
means the Compensation Committee of the Board or such other committee(s),
subcommittee(s) or person(s) appointed by the Board to administer the Plan
or to
make and/or administer specific Awards hereunder. If no such appointment is
in
effect at any time, “Committee” shall mean the Board.
1.8 “Common
Stock” means the common stock, par value $0.0001 per share, of the
Company.
1.9 “Company”
means O2Diesel Corporation, a Washington corporation, and any successor
thereto.
1.10 “Covered
Shares” means the shares of Common Stock subject to the Option.
1.11 “Date
of
Exercise” means the date on which the Company receives notice pursuant to
Section 5.1 of the exercise, in whole or in part, of the
Option.
1.12 “Date
of
Expiration” means the date on which the Option shall expire, which shall be the
earliest of the following times:
(a) the
date
of the first notification to the Optionee that the Optionee’s Service is
terminated by the Company or an Affiliate for Cause;
(b) thirty
days after termination of the Optionee’s Service for any reason other than by
the Company or an Affiliate for Cause, Retirement, death or Disability;
provided, however, that if the Optionee dies within thirty (30) days of such
termination, the Option shall be exercisable for a period of one (1) year after
such termination;
(c) three
years after termination of the Optionee’s Service with the Company or an
Affiliate by reason of death, Disability or Retirement; or
(d) ten
years
after the Date of Grant.
1.13 “Date
of
Grant” means the date set forth at the beginning of this Agreement.
1.14 “Disability”
means total and permanent disability under Section 22(e)(3) of the Code or
the
Optionee’s becoming entitled to long-term disability benefits under the
long-term disability plan or policy of the Company and/or its Affiliates that
covers the Optionee.
1.15 “Exchange
Act” means the Securities Exchange Act of 1934, as amended.
1.16 “Fair
Market Value” means an amount equal to the then fair market value of a Share as
determined by the Committee pursuant to a reasonable method adopted in good
faith for such purpose, or, unless otherwise determined by the Committee, if
the
Common Stock is traded on a securities exchange or automated dealer quotation
system, fair market value shall be the last sale price for a Share, as of the
relevant date, on such securities exchange or automated dealer quotation system
as reported by such source as the Committee may select.
1.17 “Option”
means the stock option granted to the Optionee in Section 2 of this
Agreement.
1.18 “Optionee”
means the person identified on page 1 of this Agreement.
1.19 “Exercise
Price” means the dollar amount per share of Common Stock set forth on
page 1 of this Agreement, as it may be adjusted from time to time pursuant
to Section 4 hereof.
1.20 “Person”
means the term “person” within the meaning of Section 3(a)(9) of the Exchange
Act, as modified and used in Sections 13(d)(3) and 14(d) thereof.
1.21 “Plan”
means the O2Diesel Corporation 2004 Stock Incentive Plan, as amended from time
to time.
1.22 “Retirement”
means the Optionee’s termination of Service (other than for Cause) on or after
attaining age 55 and completing ten years of Service.
1.23 “Service”
means, if the Optionee is (a) an employee of the Company and/or any of its
Affiliates (as determined by the Committee in its discretion), the Optionee’s
service as an employee of the Company and/or any of its Affiliates, (b) a member
of the Board of Directors of the Company or any of its Affiliates but not an
employee of the Company or any of its Affiliates (as determined by the Committee
in its discretion), the Optionee’s service as a member of such Board of
Directors, or (c) a consultant or independent contractor to the Company or
any
of its Affiliates (as determined by the Committee in its discretion) and is
not
described in the preceding clause (b), the Optionee’s service as a consultant or
independent contractor to the Company and/or any of its Affiliates. The
Optionee’s Service shall not be treated as having terminated if the capacity in
which the Optionee provides Service, as described in the preceding sentence,
changes, provided that the Optionee’s Service is continuous notwithstanding such
change.
1.24 “Unvested
Shares” means Unvested Shares as defined in Section 3.3
hereof.
2. Grant
of Option.
Pursuant to the Plan and subject to the terms of this Agreement, the Company
hereby grants to the Optionee, as of the Date of Grant, the Option to purchase
from the Company that number of shares identified as the “Covered Shares” on
page 1 of this Agreement, exercisable at the Exercise Price.
3. Terms
of the Option.
3.1 Type
of Option.
The
Option is intended to be an incentive stock option under Section 422 of the
Code; provided, however, that to the extent that, during any calendar year,
the
Option becomes exercisable for the first time with respect to Shares having
an
aggregate fair market value in excess of the limit imposed by Section 422(d)
of
the Code or all or any portion of the Option does not otherwise qualify as
an
incentive stock option under Section 422 of the Code, (a) the Option shall
be
treated as a nonstatutory stock option and not as an incentive stock option,
and
(b) upon any exercise of the Option, the Optionee shall be required to designate
the extent to which the exercise of the Option is with respect to that portion,
if any, of the Option that is a nonstatutory stock option and that portion,
if
any, of the Option that is an incentive stock option. If, as of the same date,
the Optionee exercises the Option with respect to a portion of the Option that
is an incentive stock option and with respect to a portion of the Option that
is
a nonstatutory stock option, the Company shall issue separate certificates
to
the Optionee representing (i) those Shares that were acquired pursuant to the
exercise of an incentive stock option (which Shares shall be identified on
the
Company’s stock transfer records as such), and (ii) those Shares that were
acquired pursuant to the exercise of a nonstatutory stock option.
3.2 Option
Period; Exercisability.
The
Option may be exercised in whole shares during the period commencing on the
Date
of Grant and terminating on the Date of Expiration, as follows:
(a) beginning
on the first anniversary after the Date of Grant, the Option may be exercised
as
to a maximum of thirty-four percent (34%) of the Covered Shares;
(b) beginning
on the first day of each month thereafter, the Option may be exercised as to
an
additional sixteen and one-half percent (16.5%) of the Covered Shares until
the
Option is exercisable as to all of the Covered Shares.
Notwithstanding
the foregoing, in the event of a Change of Control, or in the event of
termination of the Optionee’s Service by reason of Disability, Retirement, or
Death, the Option shall thereupon become exercisable at any time prior to the
Date of Expiration, as to the full number of Covered Shares. In no event shall
the number of Covered Shares as to which the Option is exercisable increase
after termination of the Optionee’s Service.
3.3 Early
Exercise.
Notwithstanding the provisions of Section 3.2 of this Agreement, the Option
may,
at any time prior to the Date of Expiration, be exercised, in whole or in part,
as to Covered Shares with respect to which the Option is not exercisable
pursuant to the provisions of Section 3.2 of this Agreement (“Unvested Shares”)
by delivering a written notice of exercise pursuant to Section 5.1 of this
Agreement; provided, however, that as a condition to exercising the Option
as to
Unvested Shares, the Optionee shall execute a Restricted Stock Purchase
Agreement substantially in the form attached hereto as Exhibit B, and the
Unvested Shares as to which the Option is exercised shall be subject to the
terms of such agreement. Notwithstanding
the foregoing provision of this Section 3.3, the number of Unvested Shares
as to
which the Option is exercisable for the first time during any calendar year
pursuant to this Section 3.3 shall be reduced (but not below zero) so that
after
taking into account the number of Covered Shares as to which the Option becomes
exercisable pursuant to Section 3.2 hereof for the first time during the same
calendar year does not result in the Option being treated as an option that
is
not an incentive stock option (within the meaning of Section 422 of the Code)
with respect to any of the Unvested Shares as to which the Option would
otherwise be exercisable pursuant to this Section 3.3 during that calendar
year.
In no event shall the number of Covered Shares as to which the Option becomes
exercisable pursuant to Section 3.2 be reduced as the result of the preceding
sentence.
3.4 Nontransferability.
The
Option is not transferable by the Optionee other than by will or by the laws
of
descent and distribution, and is exercisable, during the Optionee’s lifetime,
only by the Optionee, or, in the event of the Optionee’s legal disability, by
the Optionee’s legal representative.
3.5 Payment
of the Exercise Price.
The
Optionee, upon exercise, in whole or in part, of the Option, may pay the
Exercise Price by any or all of the following means, either alone or in
combination:
(a) cash
or
check payable to the order of the Company; or
(b) if,
at
the time of exercise, the Common Stock is listed for trading on a national
securities exchange or automated dealer quotation system, delivery (either
actual or constructive) of shares of unencumbered Common Stock (provided that
such shares, if acquired under the Option or under any other option or award
granted under the Plan or any other plan sponsored or mentioned by the Company,
have been held by the Optionee for at least six months or such other period
as
determined by the Committee) that have an aggregate Fair Market Value on the
Date of Exercise equal to that portion of the Exercise Price being paid by
delivery of such shares; or
(c) if,
at
the time of exercise, the Common Stock is listed for trading on a national
securities exchange or automated dealer quotation system, and in accordance
with
such rules as may be specified by the Committee, delivery to the Company of
a
properly executed exercise notice and irrevocable instructions to a registered
securities broker promptly to deliver to the Company cash equal to the Exercise
Price for that portion of the Option being exercised; or
(d) with
the
approval of the Company (which approval may be withheld in the Company’s sole
discretion), by delivery to the Company of a fully recourse promissory note
executed by the Optionee evidencing the Optionee’s obligation to make future
cash payment thereof and secured by a pledge of the shares of Common Stock
received upon exercise of the Option, bearing interest at a rate fixed by the
Committee and having such other terms and conditions as the Committee may
specify in its discretion.
4. Capital
Adjustments.
The
number of Covered Shares as to which the Option has not been exercised, the
Exercise Price, and the type of stock or other consideration to be received
on
exercise of the Option shall be subject to such adjustment or change, if any,
as
the Committee in its sole discretion deems appropriate to reflect such events
as
stock dividends, split-ups, spin-offs, recapitalizations, reclassifications,
combinations or exchanges of shares, mergers, consolidations, liquidations,
or
the like, of or by the Company. Any adjustment determined to be appropriate
by
the Committee shall be conclusive and shall be binding on the
Optionee.
5. Exercise.
5.1 Notice.
The
Option shall be exercised, in whole or in part (but in no event for less than
one hundred (100) Covered Shares or the number of Covered Shares remaining
subject to the Option, if less) by the delivery to the Company of written notice
of such exercise, in such form as the Committee may from time to time prescribe,
accompanied by full payment (or means of full payment permitted by
Section 3.5 hereof) of the Exercise Price with respect to that portion of
the Option being exercised. Until the Committee notifies the Optionee to the
contrary, the form attached to this Agreement as Exhibit A shall be used to
exercise the Option.
5.2 Withholding.
The
Company’s obligation to issue or deliver shares of Common Stock upon the
exercise of the Option (and, if shares of Common Stock are subject to a
Restricted Stock Purchase Agreement substantially in the form attached as
Exhibit B, the Company’s obligation to deliver shares released from the
Company’s Repurchase Right (as defined in the Restricted Stock Purchase
Agreement)) shall be subject to the satisfaction of any applicable federal,
state and local tax withholding requirements. The Optionee may satisfy any
such
withholding obligation by any of the following means or by a combination of
such
means: (a) tendering a cash payment; (b) if at the time the withholding
obligation arises, the Common Stock is listed for trading on a national
securities exchange or automated dealer quotation system, authorizing the
Company to withhold shares of Common Stock (other than Unvested Shares) from
the
shares otherwise issuable to the Optionee upon exercise of the Option; or (c)
if
at the time the withholding obligation arises, the Common Stock is listed for
trading on a national securities exchange or automated dealer quotation system,
delivering to the Company already-owned and unencumbered shares of Common Stock.
For purposes of this Section 5.2, shares of Common Stock that are withheld
or
delivered to satisfy applicable withholding taxes shall be valued at their
Fair
Market Value on the date the withholding tax obligation arises, and in no event
shall the aggregate Fair Market Value of the shares of Common Stock withheld
and/or delivered pursuant to this Section 5.2 exceed the minimum amount of
taxes
required to be withheld in connection with exercise of the Option.
5.3 Effect.
The
exercise, in whole or in part, of the Option shall cause a reduction in the
number of Covered Shares as to which the Option may be exercised in an amount
equal to the number of shares of Common Stock as to which the Option is
exercised.
6. Representations.
The
Optionee agrees that, upon the issuance of any shares of Common Stock upon
the
exercise of the Option, the Optionee will, upon the request of the Company,
represent and warrant in writing that the Optionee (a) has received and
reviewed a copy of the Plan; (b) is capable of evaluating the merits and
risks of exercising the Option and acquiring the shares and able to bear the
economic risks of such investment; (c) has made such investigation as he or
she deems necessary and appropriate of the business and financial prospects
of
the Company and (d) is acquiring the shares for investment only and not
with a view to resale or other distribution thereof. The Optionee shall make
such other representations and warranties that the Committee may request for
the
purpose of complying with applicable law.
7. Transfer
of Shares.
The
Optionee hereby agrees to notify the Company in writing within 30 days
after the date of any disposition of shares of Common Stock acquired upon
exercise of the Option within two (2) years after the Date of Grant or within
one (1) year after such shares were transferred to the Optionee, which notice
shall state the number of shares sold or transferred, the date the shares were
sold or transferred, and the sale price.
8. Legends.
The
Optionee agrees that the certificates evidencing the shares of Common Stock
issued upon exercise of the Option may include any legend which the Committee
deems appropriate to reflect the transfer and other restrictions contained
in
the Plan, this Agreement, or to comply with applicable laws.
9. Rights
as Stockholder.
The
Optionee shall have no rights as a stockholder with respect to any shares of
Common Stock subject to the Option until and unless a certificate or
certificates representing such shares are issued to the Optionee pursuant to
this Agreement.
10. Service.
Neither
the grant of the Option evidenced by this Agreement nor any term or provision
of
this Agreement shall constitute or be evidence of any understanding, express
or
implied, on the part of the Company to employ or retain the Optionee for any
period.
11. Subject
to the Plan.
The
Option evidenced by this Agreement and the exercise thereof are subject to
the
terms and conditions of the Plan, which is incorporated by reference and made
a
part hereof, but the terms of the Plan shall not be considered an enlargement
of
any rights or benefits under this Agreement. In addition, the Option is subject
to any rules and regulations promulgated by the Committee.
12. Governing
Law.
The
validity, construction, interpretation and enforceability of this agreement
shall be determined and governed by the laws of the State of Delaware without
giving effect to the principles of conflicts of laws.
13. Severability.
If any
provision of this Agreement shall be held to be invalid, illegal or
unenforceable in any material respect, such provision shall be replaced with
a
provision that is as close as possible in effect to such invalid, illegal or
unenforceable provision, and still be valid, legal and enforceable, and the
validity, legality and enforceability of the remainder of this Agreement shall
not in any way be affected or impaired thereby.
IN
WITNESS WHEREOF, the Company has caused this Agreement to be signed on its
behalf by the undersigned, thereunto duly authorized, effective as of the Date
of Grant.
|
ATTEST:
____________________________
|
O2Diesel Corporation
By: ____________________________
|
Accepted and agreed to as of the Date of Grant:
|
|
_______________________________
Optionee
|
“EXHIBIT
A”
EXERCISE
OF OPTION
Board
of
Directors
O2Diesel
Corporation
000
Xxxxxxxxx Xxxxx
Xxxxxx,
Xxxxxxxx 00000
Gentlemen:
The
undersigned, the Optionee under the Stock Option Agreement (“Agreement”)
identified as Option No. ____ granted pursuant to the O2Diesel Corporation
2004 Stock Incentive Plan, hereby irrevocably elects to exercise the Option
granted in the Agreement to purchase ___ shares of Common Stock of O2Diesel
Corporation, par value $0.0001 per share (the “Option Shares”), and herewith
makes payment of $
in the
form of (check all that apply and if more than one is checked, indicate the
amount to be paid by each payment method):
|
[
]
Cash or Check:
|
_______________ |
|
[
]
Common Stock:
|
_______________ |
|
[
]
Brokerage Transaction:
|
_______________ |
The
undersigned hereby elects to satisfy applicable withholding requirements by
(check all that apply and, if more than one is checked, indicate the amount
to
be withheld by each withholding method):
|
[
]
Cash or Check:
|
_______________ |
|
[
]
Withholding of Common Stock:
|
_______________ |
|
[
]
Delivery of Common Stock:
|
_______________ |
If
applicable pursuant to Section 3.1 of the Agreement, Optionee elects that
__________ of the Option Shares shall be treated as being acquired pursuant
to
the exercise of an incentive stock option and _______ of the Option shares
shall
be treated as acquired pursuant to the exercise of a nonqualified stock option
that is not an incentive stock option.
Capitalized
terms used herein but not defined shall have the meanings ascribed to such
terms
in the Agreement:
The
undersigned hereby represents as follows:
1. The
Optionee has received and reviewed a copy of the Plan and the statutory
prospectus relating to the Plan.
|
Date: __________________
|
________________________________
(Signature
of Optionee)
|
Date
received by O2Diesel Corporation: __________________
Received
by: ________________________
Note:
Shares of Common Stock being delivered in payment of all or any part of the
Exercise Price must be represented by certificates registered in the name of
the
Optionee and duly endorsed by the Optionee and by each and every other co-owner
in whose name the shares may also be registered.
EXHIBIT
B
RESTRICTED
STOCK PURCHASE AGREEMENT
THIS
AGREEMENT is made between _____________ (“Purchaser”) and O2Diesel
Corporation (the “Company”), as of __________________, 200_.
RECITALS
WHEREAS,
pursuant to the exercise of the Option granted to Purchaser under the O2Diesel
Corporation 2004 Stock Incentive Plan and pursuant to the Stock Option Agreement
(the “Option Agreement”) dated [ , 2006] by and between the Company and
Purchaser with respect to such grant, which Option Agreement is hereby
incorporated by reference, Purchaser has elected to exercise the Option as
to
__________ of the Unvested Shares (the “Covered Unvested Shares”) pursuant to
Section 3.3 of the Option Agreement.
WHEREAS,
as required by the Option Agreement, as a condition to Purchaser’s election to
exercise the Option with respect to Unvested Shares, Purchaser must execute
this
Restricted Stock Purchase Agreement, which sets forth the rights and obligations
of the parties with respect to Unvested Shares acquired upon exercise of the
Option.
NOW,
THEREFORE, in consideration of the covenants and agreements herein contained
and
for other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Capitalized
Terms.
Capitalized terms used herein and not defined shall have the meanings ascribed
to such terms in the Option Agreement.
2. Issuance
of Shares.
Upon
exercise of the Option with respect to the Covered Unvested Shares, such Covered
Unvested Shares shall be issued in the name of the Purchaser and deposited
with
the Company together with a stock assignment duly endorsed in blank,
substantially in the form attached hereto as Attachment -1.
3. Repurchase
Right.
3.1 Upon
the
termination of the Optionee’s Service with the Company and its Affiliates for
any reason, including for Cause, death, Retirement, or Disability, the Company
shall have the right and option to purchase from Purchaser, or Purchaser’s
personal representative, as the case may be, all of the Purchaser’s Covered
Unvested Shares (other than any such shares that have been released from the
Company’s Repurchase Right pursuant to Section 3.4 hereof) as of the date on
which the Optionee’s Service terminates at the Exercise Price paid by the
Purchaser for such Covered Unvested Shares in connection with the exercise
of
the Option (the “Repurchase Right”).
3.2 The
Company may exercise its Repurchase Right by delivering personally or by
certified mail, to Purchaser or Purchaser’s legal representative, as the case
may be, within ninety (90) days of the date on which the Optionee’s Service
terminates, a notice in writing indicating the Company’s intention to exercise
the Repurchase Right and setting forth a date for closing not later than thirty
(30) days from the mailing of such notice. The closing shall take place at
such
location as may be designated by the Company. At the closing, the Company shall
deliver the purchase price for the Covered Unvested Shares being purchased
by
the Company, and such Covered Unvested Shares shall be transferred from the
Purchaser to the Company.
3.3 If
the
Company does not elect to exercise the Repurchase Right conferred above by
giving the requisite notice within ninety (90) days following the date on which
the Optionee’s Service with the Company or an Affiliate terminates, the
Repurchase Right shall terminate.
3.4 One
hundred percent (100%) of the Covered Unvested Shares shall initially be subject
to the Repurchase Right. The Covered Unvested Shares shall be released from
the
Repurchase Right at the time that the Option would have first become exercisable
as to such shares, not taking into account Section 3.3 of the Option Agreement.
If this Agreement covers less than all of the Unvested Shares covered by the
Option as of the date of this Agreement, the Covered Unvested Shares shall
be
deemed to be the first Covered Shares as to which the Option becomes
exercisable. Fractional Shares shall be rounded to the nearest whole
Share.
3.5 Upon
written request of Purchaser, but no more than once per calendar year, unless
the Company’s Repurchase Right has been exercised, the Company shall deliver to
Purchaser a certificate or certificates representing such number of shares
of
Common Stock as have been released from the Company’s Repurchase Right pursuant
to Section 3.4 hereof and not theretofore delivered to the Optionee, which
shares of Common Stock shall remain subject to the terms of the Option
Agreement. Within one hundred twenty (120) days of the date on which the
Optionee’s Service terminates, the Company shall deliver to Purchaser a
certificate or certificates representing the aggregate number of shares held
or
issued pursuant to this Agreement and not purchased by the Company or its
assignees pursuant to exercise of the Company’s Repurchase Right, which shares
shall remain subject to the terms of the Option Agreement.
4. Ownership,
Voting Rights, Duties.
This
Agreement shall not affect in any way the ownership, voting rights or other
rights or duties of Purchaser, except as specifically provided herein.
5. Legends.
The
share certificate evidencing the Covered Unvested Shares issued hereunder shall
be endorsed with the following legend (in addition to any legends required
under
the Option Agreement and applicable state securities laws):
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS
UPON
TRANSFER AND RIGHTS OF REPURCHASE AS SET FORTH IN A RESTRICTED STOCK PURCHASE
AGREEMENT BETWEEN O2DIESEL CORPORATION AND THE STOCKHOLDER, A COPY OF WHICH
IS
ON FILE WITH THE SECRETARY OF THE COMPANY.
6. Capital
Events.
6.1 The
number of Covered Unvested Shares and the Company’s purchase price for the
Covered Unvested Shares pursuant to the Repurchase Right shall be subject to
such equitable adjustment or change, as determined by the Board, to reflect
such
events as stock dividends, stock splits, recapitalizations, mergers,
consolidations or reorganizations of or by the Company.
6.2 In
the
event of any stock dividend, stock split, recapitalization, or other change
affecting the Common Stock as a class that is effected without receipt of
consideration, any new, substituted, or additional securities or other property
that is by reason of such event distributed with respect to the Covered Unvested
Shares (other than any such shares that have been released from the Company’s
Repurchase Right pursuant to Section 3.4 hereof), Shares shall be
immediately delivered to the Company and shall be covered by the Repurchase
Right, as adjusted or changed pursuant to Section 6.1 hereof.
7. Notices.
Notices
required hereunder shall be given in person or by registered mail to the address
of Purchaser shown on the records of the Company, and to the Company at its
principal executive office.
8. Survival
of Terms.
This
Agreement shall apply to and bind Purchaser and the Company and their respective
permitted assignees and transferees, heirs, legatees, executors, administrators
and legal successors.
9. Section
83(b) Election.
Purchaser represents that Purchaser has consulted any tax advisor(s) Purchaser
deems advisable in connection with the purchase of the Unvested Shares or the
filing of the election under Section 83(b) of the Code and similar tax
provisions under State law) and agrees that Purchaser is (a) solely responsible
for filing any such election(s) and (b) will promptly provide the Company with
a
copy of any such election that is filed. Not later than ten days after filing
an
election under Section 83(b) of the Code with respect to Unvested Shares,
Purchaser shall provide a copy of such election to the Committee and shall
make
arrangements satisfactory to the Company, in accordance with Section 5.2 of
the
Option Agreement, for the satisfaction of any applicable tax withholding
requirements arising from the filing of such election.
10. Representations.
Purchaser has reviewed with Purchaser’s own tax advisors the federal, state,
local and foreign tax consequences of this investment and the transactions
contemplated by this Agreement. Purchaser is relying solely on such advisors
and
not on any statements or representations of the Company or any of its agents.
Purchaser understands that Purchaser (and not the Company) shall be responsible
for Purchaser’s own tax liability that may arise as a result of this investment
or the transactions contemplated by this Agreement. Purchaser acknowledges
that
it is Purchaser’s sole responsibility, and not the Company’s, to file timely the
election under Section 83(b).
11. Binding
Effect.
This
Agreement shall be binding upon the heirs, executors, administrators, successors
and permitted assigns of the parties hereto.
12. Governing
Law.
The
validity, construction, interpretation and enforceability of this Restricted
Stock Purchase Agreement shall be determined and governed by the laws of the
State of Delaware without giving effect to principles of conflicts of law.
13. Severability.
If any
provision of this Agreement shall be held to be invalid, illegal or
unenforceable in any material respect, such provision shall be replaced with
a
provision that is as close as possible in effect to such invalid, illegal or
unenforceable provision, and still be valid, legal and enforceable, and the
validity, legality and enforceability of the remainder of this Agreement shall
not in any way be affected or impaired thereby.
IN
WITNESS WHEREOF, this Agreement is deemed made as of the date first set forth
above.
|
O2Diesel
Corporation
By:
________________________________
Title:
_______________________________
PURCHASER
____________________________________
[Name]
Address:
____________________________________
____________________________________
|
ATTACHMENT
1
to
Restricted Stock Purchase Agreement
ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR
VALUE
RECEIVED, I, _____________________, hereby sell, assign, and transfer unto
____________________ (________) shares of the Common Stock of O2Diesel
Corporation standing in my name of the books of said corporation represented
by
Certificate No. ____ herewith and do hereby irrevocably constitute and appoint
__________________ to transfer the said stock on the books of the within named
corporation with full power of substitution in the premises.
This
Stock Assignment may be used only in accordance with the Restricted Stock
Purchase Agreement between O2Diesel Corporation and the undersigned dated
______________.
|
Dated:
_______________
|
Signature:
______________________________
Name
|
INSTRUCTIONS: Please
do not fill in any blanks other than the signature line. The purpose of this
assignment is to enable the Company to exercise the Repurchase Right, as set
forth in the Restricted Stock Purchase Agreement, without requiring additional
signatures on the part of the Purchaser.
