Non-Qualified Stock Option Agreement Issued to: ________________
Exhibit
10.9
Issued
to: ________________
1. Grant
of Option.
Xethanol Corporation (the “Company”)
hereby
grants, as of ____________,
_______
(“Date
of Grant”),
to
__________________
(the
“Optionee”)
an
option (the “Option”)
to
purchase up to _________
shares
(the
“Shares”)
of the
Company’s common stock, par value $.001 per share (the “Common
Stock”),
at an
exercise price per share equal to $______
(the
“Exercise
Price”).
The
Option has been granted on the terms and subject to the conditions set forth
herein. The Option is being issued pursuant to the Company’s 2005 Incentive
Compensation Plan (the “Plan”),
which
is incorporated herein by reference for all purposes. The Optionee hereby
acknowledges receipt of a copy of the Plan and agrees to be bound by all
of the
terms and conditions hereof and thereof and all applicable laws and regulations.
The Option is a Non-Qualified Stock Option, and not an Incentive Stock Option.
A total
of
______ of the Shares that may be obtained on exercise of the Option (the
“Excess
Shares”)
shall
be subject to approval by the Company’s stockholders of an amendment to the Plan
to increase the number of shares available for award thereunder. If the
Company’s stockholders do not approve an amendment to the Plan sufficient
to cover the Excess Shares, the Option will be void to the extent (and only
to
the extent) that the number of shares available for award under the Plan
is
insufficient to cover the Excess Shares in full, with the Excess Shares to
be
treated pro rata with all other shares underlying options granted in excess
of
the number of shares available for award under the Plan.
2. Definitions.
Unless
otherwise provided herein, capitalized terms used herein and not otherwise
defined herein shall have the meanings attributed thereto in the
Plan.
3.
Exercise
Schedule.
Subject
to the provisions of Sections 6 or 9 of this Agreement and of the Plan, the
Option is exercisable in installments as provided below, which shall be
cumulative. To the extent that the Option has become exercisable with respect
to
any Shares as provided below, the Option may thereafter be exercised by the
Optionee, in whole or in part, at any time and from time to time prior to
the
expiration of the Option as provided herein. The following table indicates
each
date (each, a “Vesting
Date”)
upon
which the Optionee shall be entitled to first exercise the Option with respect
to the Shares indicated beside the date, provided that the Continuous Service
of
the Optionee continues through the applicable Vesting Date:
|
Number
of Shares
|
Vesting
Date
|
The
Option shall vest incrementally on each Vesting Date and shall not
proportionately or partially vest during the period prior to any Vesting
Date
except as otherwise specifically provided herein.
4.
Method
of Exercise.
(a) The
vested portion of this Option shall be exercisable in whole or in part by
written notice which shall state the election to exercise the Option and
the
number of Shares for which the Option is being exercised and, unless the
issuance of the Shares upon the exercise of the Option has been registered
under
the Securities Act of 1933, as amended (the “Securities Act”), the written
notice of exercise shall include such representations, warranties and agreements
as the Company may reasonably require to the effect that the Shares are being
purchased for investment only and without any present intention to sell or
otherwise distribute such Shares and that such Shares will not be disposed
of in
transactions which, in the opinion of counsel to the Company, would violate
the
registration provisions of the Securities Act and the rules and regulations
thereunder. The certificate issued to evidence such Shares shall bear
appropriate legends summarizing these restrictions on the disposition thereof.
Such written notice shall be signed by the Optionee and shall be delivered
to
the Company in the manner set forth in Section 14.
(b) The
written notice shall be accompanied by payment of an amount equal to the
product
of (i) the Exercise Price multiplied by (ii) the number of Shares for which
the
Option is then being exercised, plus the amount of the withholding taxes
estimated in accordance with Section 5 to be due upon the purchase of such
number of Shares, unless the Committee shall have consented to the making
of
other arrangements with the Optionee. Payment of the Exercise Price for the
Shares upon any exercise of the Option shall be by certified check or by
the
surrender of that number of whole shares of Common Stock with a Fair Market
Value (as of the date of exercise) as shall equal the Exercise Price of the
Option.
(c) Delivery
of the notice of exercise shall constitute an irrevocable election to purchase
the Shares specified in the notice, and the date on which the Company receives
the notice accompanied by payment in full of the Exercise Price for the Shares
covered by the notice and the applicable withholding taxes shall be the date
as
of which the Shares so purchased shall be deemed to have been
issued.
(d) Notwithstanding
anything to the contrary herein, the Option shall not be exercisable if the
Company, at any time and in its sole discretion, shall determine that (a)
the
listing, registration or qualification of any Shares otherwise deliverable
upon
such exercise, upon any securities exchange or under any state or Federal
law,
or (b) the consent or approval of any regulatory body, is necessary or desirable
in connection with such exercise. In such event, such exercise shall be held
in
abeyance and shall not be effective unless and until such listing, registration,
qualification or approval shall have been effected or obtained free of any
conditions not acceptable to the Company.
5.
Withholding
Taxes.
(a) At
the
time of the exercise of all or any part of this Option, the Optionee shall
pay
to the Company (or otherwise make arrangements satisfactory to the Committee
for
the payment of) the amount of the Federal, state and local and foreign income
and employment taxes required, in the Company’s sole judgment, to be collected
or withheld with respect to the exercise of the Option. Such amount shall
be
paid to the Company in cash or by the surrender of that number of whole shares
of Common Stock with a Fair Market Value (as of the date of exercise) as
shall
equal but not exceed the minimum statutory amounts required to be collected
or
withheld by the Company with respect to the exercise of the Option.
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(b) At
the
time of any “disqualifying disposition” (as defined in Treas. Reg. Section
1.421-2(b)) of the Shares acquired upon exercise of this Option, the Optionee
shall pay to the Company (or otherwise make arrangements satisfactory to
the
Committee for the payment of the amount of the Federal, state and local and
foreign income and employment taxes required, in the Company’s sole judgment, to
be collected or withheld with respect to the disqualifying disposition of
the
Shares acquired upon exercise of the Option. Such amount shall be paid to
the
Company in cash or by the surrender of that number of whole shares of Common
Stock with a Fair Market Value (as of the date of exercise) as shall equal
but
not exceed the minimum statutory amounts required to be collected or withheld
by
the Company with respect to the exercise of the Option.
6.
Termination
of Option.
(a) Any
unexercised portion of the Option shall automatically and without notice
terminate and become null and void at the time of the earliest to occur of
the
following:
(i) the
fifth
(5th) anniversary of the date as of which the Option is granted [Insert:
“the
tenth (10th) anniversary” if this Option is being granted for service as a
director] for any reason other than (A) by the Company for Cause or (B) by
reason of the Optionee’s Disability or death; or
(ii) immediately
upon the termination of the Optionee’s Continuous Service with the Company for
Cause; or
(iii) twelve
months after the date on which the Optionee’s Continuous Service with the
Company is terminated by reason of a Disability; or
(iv) twelve
months after the date of termination of the Optionee’s Continuous Service with
the Company by reason of the Optionee’s death (or, if later, three months after
the date on which the Optionee shall die if such death shall occur during
the
one-year period specified in paragraph (iii) of this Section 6); or
(b) To
the
extent not previously exercised, (i) the Option shall terminate immediately
in
the event of (1) the liquidation or dissolution of the Company, or (2) any
reorganization, merger, consolidation or other form of corporate transaction
in
which the Company does not survive or the outstanding shares of Common Stock
are
converted into or exchanged for securities issued by another entity, or an
affiliate of such successor or acquiring entity, unless the successor or
acquiring entity, or an affiliate of such successor or acquiring entity,
assumes
the Option or substitutes an equivalent option or right pursuant to Section
10(c) of the Plan, and (ii) the Committee in its sole discretion may by written
notice (“cancellation
notice”)
cancel, effective upon the consummation of any corporate transaction described
in Subsection 8(b)(i) of the Plan in which the Company does survive, the
Option
(or portion thereof) that remains unexercised on such date. The Committee
shall
give written notice of any proposed transaction referred to in this Section
6(b)
a reasonable period of time prior to the closing date for such transaction
(which notice may be given either before or after approval of such transaction),
in order that the Optionee may have a reasonable period of time prior to
the
closing date of such transaction within which to exercise the Option if and
to
the extent that it then is exercisable (including any portion of the Option
that
may become exercisable upon the closing date of such transaction). The Optionee
may condition his exercise of the Option upon the consummation of a transaction
referred to in this Section 6(b).
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7.
Transferability.
The
Option granted hereby is not transferable otherwise than by will or under
the
applicable laws of descent and distribution, and during the lifetime of the
Optionee the Option shall be exercisable only by the Optionee. To exercise
the
Option upon the Optionee’s death, the persons who acquire the right to exercise
the Option must prove to the Committee’s satisfaction that they have duly
acquired the Option and that they have paid (or have provided for payment
of)
any taxes, such as estate, transfer, inheritance or death taxes, payable
with
respect to the Option or to the Shares to which it relates.
8.
No
Rights of Stockholders.
Neither
the Optionee nor any personal representative (or beneficiary) shall be, or
shall
have any of the rights and privileges of, a stockholder of the Company with
respect to any Shares issuable upon the exercise of the Option, in whole
or in
part, prior to the issuance thereof.
9.
Acceleration
of Exercisability of Option.
This
Option shall become immediately fully exercisable, prior to the Vesting Date
as
disclosed in Section 3 herein, in the event that:
(a) Prior
to
the termination of the Option pursuant to Section 6 hereof, and during the
Optionee’s Continuous Service, any transaction or series of transactions
constituting a Change in Control is consummated.
(b) The
termination of the Optionee’s Continuous Service by the Company is without
Cause.
10.
No
Right to Continued Employment.
Neither
the Option nor this Agreement shall confer upon the Optionee any right to
continued employment or service with the Company.
11.
Law
Governing.
This
Agreement shall be governed in accordance with and governed by the internal
laws
of the State of Delaware.
12.
Interpretation
/ Provisions of Plan Control.
This
Agreement is subject to all the terms, conditions, and provisions of the
Plan,
including, without limitation, the amendment provisions thereof, and to such
rules, regulations and interpretations relating to the Plan adopted by the
Committee as may be in effect from time to time. If and to the extent that
this
Agreement conflicts or is inconsistent with the terms, conditions and provisions
of the Plan, the Plan shall control, and this Agreement shall be deemed to
be
modified accordingly. The Optionee accepts the Option subject to all the
terms,
conditions and provisions of the Plan and this Agreement.
13.
Notices.
Any
notice under this Agreement shall be in writing and shall be deemed to have
been
duly given when delivered personally or when deposited in the United States
mail, registered, postage prepaid, and addressed in the case of the Company,
to
the Company’s Chief Financial Officer at 1185 Avenue of the Americas,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or if the Company should move its principal office,
to
such principal office, and, in the case of the Optionee, to the Optionee’s last
permanent address as shown on the Company’s records, subject to the right of
either party to designate some other addresses at any time hereafter in a
notice
satisfying the requirements of this Section.
4
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the ____
day
of ____________
_______.
[Signatures
on Following Page]
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COMPANY:
| XETHANOL CORPORATION | ||
| By: | ||
|
Xxxx
Xxxxxxx
Chief
Financial Officer
|
||
The
Optionee acknowledges receipt of a copy of the Plan and represents that he
or
she has reviewed the Plan and this Option Agreement in their entirety, is
familiar with and understands their terms, conditions and provisions, and
hereby
accepts this Option subject to all of the terms, conditions and provisions
of
the Plan and the Option Agreement.
| Dated: ____________, _______ | OPTIONEE: | |
| By: | ||
|
Name:
|
||
6
SUBSCRIPTION
FORM
(To
be
executed only upon exercise of Option)
The
undersigned, pursuant to the provisions set forth in the attached Option
agreement, hereby irrevocably elects to purchase ________ shares of Xethanol
Corporation Common Stock covered by such Option and herewith makes payment
of
$___________, representing the full purchase price for such shares at the
price
per share provided for in such Option.
| Dated: ____________, _______ | Name: | |||
| Signature: | ||||
| Address: | ||||
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