H2DIESEL HOLDINGS, INC.
Grant
No.: _____
H2DIESEL
HOLDINGS, INC.
2007
OMNIBUS INCENTIVE PLAN
H2Diesel
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)
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Company: | ||||
(Signature)
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Title:
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This
is not a stock certificate or a negotiable instrument.
H2DIESEL
HOLDINGS, INC.
2007
OMNIBUS INCENTIVE PLAN
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 described below ("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
as to
one-third (1/3rd) of the total number of shares of Stock covered
by this
grant, as shown on the cover sheet, on the first anniversary of
the
Vesting Date, provided you then continue in Service. Thereafter,
you will
vest in equal installments every month for the following 24 months.
If,
however, such vesting would occur during a period in which you
are (i)
subject to a lock-up agreement restricting your ability to sell
shares of
Stock in the open market or (ii) restricted from selling shares
of Stock
in the open market because you are not then eligible to sell under
the
Company’s xxxxxxx xxxxxxx or similar plan as then in effect (whether
because a trading window is not open or you are otherwise restricted
from
trading), vesting in such shares of Stock will be delayed until
the first
date on which you are no longer prohibited from selling shares
of Stock
due to a lock-up agreement or xxxxxxx xxxxxxx plan restriction
(the
“Vesting Date”), and provided, further, that you have been continuously in
Service to the Company or a Subsidiary from the Grant Date until
the
Vesting Date. The resulting aggregate number of vested shares of
Stock
will be rounded down to the nearest whole number, and you cannot
vest in
more than the number of shares covered by this grant.] 1/
No
additional shares of Stock will vest after your Service has terminated
for
any reason.
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1/
To be discussed.
2
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. 2
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Leaves
of Absence
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For
purposes of this option, your Service does not terminate when you
go on a
bona
fide
employee leave of absence that was approved by the Company in writing,
if
the terms of the leave provide for continued Service crediting,
or when
continued Service crediting is required by applicable law. However,
your
Service will be treated as terminating 90 days after you went on
employee
leave, unless your right to return to active work is guaranteed
by law or
by a contract. Your Service terminates in any event when the approved
leave ends unless you immediately return to active employee
work.
The
Company determines, in its sole discretion, which leaves count
for this
purpose, and when your Service terminates for all purposes under
the
Plan.
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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 as described above, 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 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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2
Discuss
whether vesting should be accelerated on death or
disability.
3
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
A
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. Notwithstanding any
other
provision in this Agreement, if assumed or substituted for, the
award will
expire one year after the date of termination of Service.
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4
“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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[Forfeiture
of Rights
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If
during your term of Service you should take actions in competition
with
the Company, the Company shall have the right to cause a forfeiture
of
your unvested Restricted Stock, and with respect to those shares
of
Restricted Stock vesting during the period commencing twelve (12)
months
prior to your termination of Service with the Company due to taking
actions in competition with the Company, the right to cause a forfeiture
of those vested shares of Stock.
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5
Unless
otherwise specified in an employment or other agreement between
the
Company and you, you take actions in competition with the Company
if you
directly or indirectly, own, manage, operate, join or control,
or
participate in the ownership, management, operation or control
of, or are
a proprietor, director, officer, stockholder, member, partner or
an
employee or agent of, or a consultant to any business, firm, corporation,
partnership or other entity which competes with any business in
which the
Company or any of its Affiliates is engaged during your employment
or
other relationship with the Company or its Affiliates or at the
time of
your termination of Service. Under the prior sentence, ownership
of less
than 1% of the securities of a public company shall not be treated
as an
action in competition with the Company.]
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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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6
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
any 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.
7
EXHIBIT
A
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, H2Diesel
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:
_____________, 2007
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:3
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.
3 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.