COMMERCE ENERGY GROUP 2006 STOCK INCENTIVE PLAN SAR Award Agreement Award No.
Exhibit 4.15
COMMERCE ENERGY GROUP
2006 STOCK INCENTIVE PLAN
2006 STOCK INCENTIVE PLAN
Award No.
You (the “Participant”) are hereby awarded Stock Appreciation Rights subject to the
terms and conditions set forth in this agreement (the “Award Agreement” or “Award”)
and in the Commerce Energy Group, Inc. 2006 Stock Incentive Plan (“Plan”). A copy of the
Plan is attached hereto as Exhibit A. A summary of the Plan appears in its Prospectus,
which is attached as Exhibit B. You should carefully review these documents, and consult
with your personal financial advisor, before exercising this Award. This Award is conditioned on
your execution of this Award Agreement.
By executing this Award Agreement, you agree to be bound by all of the Plan’s terms and
conditions as if they had been set out verbatim in this Award Agreement. In addition, you
recognize and agree that all determinations, interpretations, or other actions respecting the Plan
and this Award Agreement will be made by the Board of Directors (the “Board”) of Commerce
Energy Group, Inc. (the “Company”) or any Committee appointed by the Board to administer
the Plan, and shall (in the absence of manifest bad faith or fraud) be final, conclusive and
binding on all parties, including you and your heirs and representatives. Capitalized terms are
defined in the Plan or in this Award Agreement.
| 1. | Individualized Terms. This portion of your Award is being granted pursuant to Section 7 of the Plan, and shall have the following terms: |
Name of Participant |
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Date of Award |
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Number of Shares measuring
the value of this SAR
|
Shares (“SAR Shares”). | |
Base Price for SARs
|
$___.___per Share. | |
Vesting
|
At the rate of ___% on each of the next ___ [monthly] [quarterly] [annual] anniversaries of the Award Date; subject to acceleration as provided in the Plan and in Section 2 below, and to your Continuous Service not ending before the vesting date. |
| 2. | Accelerated Vesting; Change in Corporate Control. To the extent you have not previously vested in your rights with respect to this Award, your Award will become – |
| (a) | ___% vested if your Continuous Service ends due to your death or “disability” within the meaning of Section 409A of the Code; |
Stock Appreciation Rights Award
Commerce Energy Group, Inc.
2006 Stock Incentive Plan
Commerce Energy Group, Inc.
2006 Stock Incentive Plan
| (b) | ___% vested if your Continuous Service ends due to your retirement at or after you have attained the age of ___and completed at least ___full years of Continuous Service; | ||
| (c) | according to the following schedule if your Continuous Service ends due to an Involuntary Termination that occurs within the twelve months following a Change in Control: |
| Date on which Your Involuntary Termination | Portion of Your Award | |||
| Occurs (by reference to Date of Award) | As to which Vesting Accelerates | |||
Before 1st Anniversary |
0 | % | ||
Between 1st and 2nd Anniversary |
% | |||
After 2nd Anniversary |
% | |||
<Other desired schedule>
3. Vesting and Exercise of Your Award. No Shares will be issued and no cash will be paid
to you before your Award vests in accordance with Section 1 or 2 above and is exercised. To the
extent you have vested in this Award, you may exercise it at any time and from time to time in
accordance with the Plan, using the exercise form attached hereto as
Exhibit C. The amount you receive upon exercise will equal the product of –
| (a) | the number of SAR Shares that you designate for exercise, and | ||
| (b) | the excess of 100% of the Fair Market Value of a Share on the date of exercise over the Base Price stated in Section 1 above |
4. Form of Payments to You. The Company will make any payment to you under this Award in
the form of Shares, with cash paid in lieu of fractional Shares. Any Shares that you receive will
be free from vesting restrictions (but subject to such legends as the Company determines to be
appropriate). Notwithstanding the foregoing, the Company will not issue Share certificates to you
unless you have made arrangements satisfactory to the Compensation Committee to satisfy any
applicable tax withholding obligations.
5. Failure of Vesting Restrictions By executing this Award, you acknowledge and agree that
if your Continuous Service terminates under circumstances that do not result in accelerated vesting
pursuant to Section 2 above, you will irrevocably forfeit any and all unvested rights under this
Award, and this Award will immediately become null, void, and unenforceable.
[6. Long-term Consideration for Award. <OPTIONAL>. The Participant recognizes and
agrees that the Company’s key consideration in granting this Award is securing the long-term
commitment of the Participant to serve as [a key employee of the Company][a key employee of an
Affiliate of the Company][an officer of the Company][an officer of an Affiliate of the Company] who
will advance and promote the business interests and objectives of the Company Group. Accordingly,
the Participant agrees that this Award shall be subject to the terms and
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Stock Appreciation Rights Award
Commerce Energy Group, Inc.
2006 Stock Incentive Plan
Commerce Energy Group, Inc.
2006 Stock Incentive Plan
conditions set forth in Section 25 of the Plan (relating to the termination, rescission and
recapture if you violate certain commitments made therein to the Company Group), as well as to the
following terms and conditions as material and indivisible consideration for this Award:
(a) Fiduciary Duty. During his or her employment with the Company Group the
Participant shall devote his or her full energies, abilities, attention and business time to the
performance of his or her job responsibilities and shall not engage in any activity which conflicts
or interferes with, or in any way compromises, his or her performance of such responsibilities.
(b) Confidential Information. The Participant recognizes that by virtue of his or her
employment with the Company Group, he or she will be granted otherwise prohibited access to
confidential information and proprietary data which are not known, and not readily accessible to
the competitors of the Company Group. This information (the “Confidential Information”) includes,
but is not limited to, current and prospective customers; the identity of key contacts at such
customers; customers’ particularized preferences and needs; marketing strategies and plans;
financial data; personnel data; compensation data; proprietary procedures and processes; and other
unique and specialized practices, programs and plans of the Company Group and their respective
customers and prospective customers. The Participant recognizes that this Confidential Information
constitutes a valuable property of the Company Group, developed over a significant period of time
and at substantial expense. Accordingly, the Participant agrees that he or she shall not, at any
time during or after his or her employment with the Company Group, divulge such Confidential
Information or make use of it for his or her own purposes or the purposes of any person or entity
other than the Company Group.
(c) Non-Solicitation of Customers. The Participant recognizes that by virtue of his
or her employment with the Company Group he or she will be introduced to and involved in the
solicitation and servicing of existing customers of the Company Group and new customers obtained by
the Company Group during his or her employment. The Participant understands and agrees that all
efforts expended in soliciting and servicing such customers shall be for the permanent benefit of
the Company Group. The Participant further agrees that during his or her employment with the
Company Group the Participant will not engage in any conduct which could in any way jeopardize or
disturb any of the customer relationships of the Company Group. The Participant also recognizes
the legitimate interest of the Company Group in protecting, for a reasonable period of time after
his or her employment with the Company Group, the customers of the Company Group. Accordingly, the
Participant agrees that, for a period beginning on the date hereof and ending one (1) year after
termination of Participant’s employment with the Company Group, regardless of the reason for such
termination, the Participant shall not, directly or indirectly, without the prior written consent
of the Chief Executive Officer of the Company, market, offer, sell or otherwise furnish any
products or services similar to, or otherwise competitive with, those offered by the Company Group
to any customer of the Company Group.
(d) Non-Solicitation of Employees. The Participant recognizes the substantial
expenditure of time and effort which the Company Group devotes to the recruitment, hiring,
orientation, training and retention of its employees. Accordingly, the Participant agrees that,
for a period beginning on the date hereof and ending two (2) years after termination of
Participant’s employment with the Company Group, regardless of the reason for such termination, the
Participant shall not, directly or indirectly, for himself or herself or on behalf of any other
person or entity, solicit, offer employment to, hire or otherwise retain the services of any
employee of the
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Stock Appreciation Rights Award
Commerce Energy Group, Inc.
2006 Stock Incentive Plan
Commerce Energy Group, Inc.
2006 Stock Incentive Plan
Company Group. <ADDITIONAL ALTERNATIVE: NON-COMPETITION REQUIREMENT, TAILORED CAREFULLY TO
CONFORM WITH APPLICABLE LAW.>
(e) Survival of Commitments; Potential Recapture of Award and Proceeds. The
Participant acknowledges and agrees that the terms and conditions of this Section regarding
confidentiality and non-solicitation [and non-competition] shall survive both (i) the termination
of Participant’s employment with the Company for any reason, and (ii) the termination of the Plan,
for any reason. The Participant acknowledges and agrees that the grant of Options in this Award
Agreement is just and adequate consideration for the survival of the restrictions set forth herein,
and that the Company may pursue any or all of the following remedies if the Participant either
violates the terms of this Section or succeeds for any reason in invalidating any part of it (it
being understood that the invalidity of any term hereof would result in a failure of consideration
for the Award):
| (i) | declaration that the Award is null and void and of no further force or effect; | ||
| (ii) | recapture of any cash paid or Shares issued to the Participant, or any designee or beneficiary of the Participant, pursuant to the Award; | ||
| (iii) | recapture of the proceeds, plus reasonable interest, with respect to any Shares that are both issued pursuant to this Award and sold or otherwise disposed of by the Participant, or any designee or beneficiary of the Participant. |
The remedies provided above are not intended to be exclusive, and the Company may seek such other
remedies as are provided by law, including equitable relief.
(f) Acknowledgement. The Participant acknowledges and agrees that his or her
adherence to the foregoing requirements will not prevent him or her from engaging in his or her
chosen occupation and earning a satisfactory livelihood following the termination of his or her
employment with the Company.]
7. Investment Purposes. You acknowledge that you are receiving this SAR Award for
investment purposes only and without any present intention of selling or distributing the Award or
the Shares issued pursuant to the Award.
8. Designation of Beneficiary. Notwithstanding anything to the contrary contained herein
or in the Plan, following the execution of this Award Agreement, you may expressly designate a
beneficiary (the “Beneficiary”) to his or her interest in the SAR awarded hereby. You
shall designate the Beneficiary by completing and executing a designation of beneficiary agreement
substantially in the form attached hereto as Exhibit D (the “Designation of
Beneficiary”) and delivering an executed copy of the Designation of Beneficiary to the Company.
9. Restriction of Transfer. This Award Agreement may not be sold, pledged, or otherwise
transferred without the prior written consent of the Compensation Committee. Notwithstanding the
foregoing, the Participant may transfer this Award (i) by instrument to an inter vivos or
testamentary trust (or other entity) in which each beneficiary is a permissible gift recipient, as
such is set forth in subsection (ii) of this Section, or (ii) by gift to charitable institutions or
by gift or transfer for
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Stock Appreciation Rights Award
Commerce Energy Group, Inc.
2006 Stock Incentive Plan
Commerce Energy Group, Inc.
2006 Stock Incentive Plan
consideration to any of the following relatives of the Participant (or to an inter vivos trust,
testamentary trust or other entity primarily for the benefit of the following relatives of the
Participant): any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former
spouse, domestic partner, xxxxxxx, niece, nephew, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law, and shall include adoptive relationships. Any
transferee of the Participant’s rights shall succeed and be subject to all of the terms of this
Award Agreement and the Plan.
10. Taxes. By signing this Award Agreement, you acknowledge that you shall be solely
responsible for the satisfaction of any taxes that may arise (including taxes arising under
Sections 409A or 4999 of the Code), and that neither the Company nor the Administrator shall have
any obligation whatsoever to pay such taxes. In addition, you acknowledge that the Company may be
required to withhold amounts from payments due to you under applicable law.
11. Notices. Any notice or communication required or permitted by any provision of this
Award Agreement to be given to you shall be in writing and shall be delivered personally or sent by
certified mail, return receipt requested, addressed to you at the last address that the Company had
for you on its records. Each party may, from time to time, by notice to the other party hereto,
specify a new address for delivery of notices relating to this Award Agreement. Any such notice
shall be deemed to be given as of the date such notice is personally delivered or properly mailed.
12. Binding Effect. Except as otherwise provided in this Award Agreement or in the Plan,
every covenant, term, and provision of this Award Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legatees, legal representatives,
successors, transferees, and assigns.
13. Modifications. This Award Agreement may be modified or amended at any time, in
accordance with Section 15 of the Plan and provided that you must consent in writing to any
modification that adversely alters or impairs any rights or obligations under this Award Agreement.
14. Headings. Section and other headings contained in this Award Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope or
intent of this Award Agreement or any provision hereof.
15. Severability. Every provision of this Award Agreement and of the Plan is intended to
be severable. If any term hereof is illegal or invalid for any reason, such illegality or
invalidity shall not affect the validity or legality of the remaining terms of this Award
Agreement.
16. Counterparts. This Award Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument.
17. Plan Governs. By signing this Award Agreement, you acknowledge that you have received
a copy of the Plan and that your Award Agreement is subject to all the provisions contained in the
Plan, the provisions of which are made a part of this Award Agreement and your Award is subject to
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Stock Appreciation Rights Award
Commerce Energy Group, Inc.
2006 Stock Incentive Plan
Commerce Energy Group, Inc.
2006 Stock Incentive Plan
all interpretations, amendments, rules and regulations which from time to time may be promulgated
and adopted pursuant to the Plan. In the event of a conflict between the provisions of this Award
Agreement and those of the Plan, the provisions of the Plan shall control.
18. Governing Law. The laws of the State of Delaware shall govern the validity of this
Award Agreement, the construction of its terms, and the interpretation of the rights and duties of
the parties hereto.
19. Not a Contract of Employment. By executing this Award Agreement you acknowledge and
agree that (i) any person who is terminated before full vesting of an award, such as the one
granted to you by this Award, could claim that he or she was terminated to preclude vesting; (ii)
you promise never to make such a claim; (iii) nothing in this Award Agreement or the Plan confers
on you any right to continue an employment, service or consulting relationship with the [Company
and/or its Affiliates] [Company Group], nor shall it affect in any way your right or the right of
the [Company and/or its Affiliates] [Company Group], as applicable, to terminate your employment,
service, or consulting relationship at any time, with or without Cause; and (iv) the Company would
not have granted this Award to you but for these acknowledgements and agreements.
20. Employment Agreement Provision [OPTION IF EMPLOYEE HAS AN EMPLOYMENT AGREEMENT] By
executing this Award, you acknowledge and agree that your rights upon a termination of employment
before full vesting of this Award will be determined under Section ___of your employment
agreement with the Company and , dated as of ___, 20___.
BY YOUR SIGNATURE BELOW, along with the signature of the Company’s representative, you and the
Company agree that this Award is being made under and governed by the terms and conditions of this
Award and the Plan.
| Commerce Energy Group, Inc. | ||||||
| By: | ||||||
Title: |
||||||
The undersigned Participant hereby accepts the terms of this Award and the Plan.
| By: | ||||||
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EXHIBIT A
COMMERCE ENERGY GROUP, INC.
2006 STOCK INCENTIVE PLAN
2006 STOCK INCENTIVE PLAN
Plan Document
EXHIBIT B
COMMERCE ENERGY GROUP, INC.
2006 STOCK INCENTIVE PLAN
2006 STOCK INCENTIVE PLAN
Plan Prospectus
EXHIBIT C
COMMERCE ENERGY GROUP, INC.
2006 STOCK INCENTIVE PLAN
2006 STOCK INCENTIVE PLAN
Form of Stock Appreciation Rights Exercise
Attention:
|
Commerce Energy Group, Inc. | |
| 2006 Stock Incentive Plan Committee | ||
| 000 Xxxxx Xxxxxxxxx | ||
| Costa Mesa, California 92626 |
Dear Sir or Madam:
The undersigned elects to exercise his/her Stock Appreciation Rights with respect to ___
shares of Common Stock of Commerce Energy Group, Inc. (the “Company”) under and pursuant to an SAR
Agreement dated as of .
The undersigned recognizes and agrees that the Company will satisfy its obligations arising
from this exercise notice through issuing shares of its Common Stock, with the name or names to be
on the stock certificate or certificates and the address and Social Security Number of such
person(s) to be as follows:
Name: |
||
Address: |
||
Social Security Number |
||
| Very truly yours, | ||
Date
|
SAR Holder |
EXHIBIT D
COMMERCE ENERGY GROUP, INC.
2006 STOCK INCENTIVE PLAN
2006 STOCK INCENTIVE PLAN
Designation of Beneficiary
In connection with Award Agreements between Commerce Energy Group, Inc. (the
“Company”) and , an individual residing at (the
“Recipient”), the Recipient hereby designates the person specified below as the beneficiary
of the Recipient’s interest in Awards as defined in the Company’s 2006 Stock Incentive Plan (the
“Plan”). This designation shall remain in effect until revoked in writing by the
Recipient.
| Name of Beneficiary: | ||||||
| Address: | ||||||
| Social Security No.: | ||||||
This beneficiary designation relates to any and all of Recipient’s rights under the following
Award or Awards:
| o | any Award that Recipient has received under the Plan. | |||
| o | the Award that Recipient received pursuant to an award
agreement dated ___ ___, ___between Recipient and the Company. |
The Recipient understands that this designation operates to entitle the above-named
beneficiary to the rights conferred by an Award from the date this form is delivered to the Company
until such date as this designation is revoked in writing by the Recipient, including by delivery
to the Company of a written designation of beneficiary executed by the Recipient on a later date.
| Date: | ||||
| By: | ||||
| [Recipient Name] | ||||
Sworn to before me this
___day of , 200_
Notary Public
County of
State of
___day of , 200_
Notary Public
County of
State of
