EXHIBIT 10.4
ABLE ENERGY, INC.
FORM OF CONSULTANT NONSTATUTORY STOCK OPTION AGREEMENT
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THIS CONSULTANT NONSTATUTORY STOCK OPTION AGREEMENT ("AGREEMENT") is
made and entered into as of the date set forth below, by and between ABLE
ENERGY, INC., a Delaware corporation (the "COMPANY"), and the following
consultant to the Company (herein, the "OPTIONEE"):
In consideration of the covenants herein set forth, the parties hereto
agree as follows:
1. OPTION INFORMATION.
(a) Date of Option: ____________________
(b) Optionee: ____________________
(c) Number of Shares: ____________________
(d) Exercise Price: ____________________
2. ACKNOWLEDGEMENTS.
(a) Optionee is an independent consultant to the
Company, not an employee;
(b) The Board of Directors (the "BOARD" which term
shall include an authorized committee of the Board of Directors) and
shareholders of the Company have heretofore adopted a 2005 Incentive
Stock Plan (the "PLAN"), pursuant to which this Option is being granted;
and
(c) The Board has authorized the granting to
Optionee of a nonstatutory stock option ("OPTION") to purchase shares of
common stock of the Company ("STOCK") upon the terms and conditions
hereinafter stated and pursuant to an exemption from registration under
the Securities Act of 1933, as amended (the "SECURITIES ACT") provided
by Section 4(2) thereunder.
3. SHARES; PRICE. The Company hereby grants to Optionee the right
to purchase, upon and subject to the terms and conditions herein stated, the
number of shares of Stock set forth in Section 1(c) above (the "SHARES") for
cash (or other consideration as is authorized under the Plan and acceptable to
the Board, in their sole and absolute discretion) at the price per Share set
forth in Section 1(d) above (the "EXERCISE PRICE"), such price being not less
than eighty-five 85% of the fair market value per share of the Shares covered by
this Option as of the date hereof.
4. TERM OF OPTION. This Option shall expire, and all rights
hereunder to purchase the Shares, shall terminate five (5) years from the date
hereof. Nothing contained herein shall be construed to interfere in any way with
the right of the Company to terminate Optionee as a consultant to the Company,
or to increase or decrease the compensation paid to Optionee from the rate in
effect as of the date hereof.
5. VESTING OF OPTION. Subject to the provisions of Sections 7 and 8
hereof, this Option shall become exercisable during the period that Optionee
serves as a consultant of the Company in equal annual installments, each
installment covering a fraction of the Shares, the numerator of which is one (1)
and the denominator of which is the number of years in the term of this Option
(not to exceed 5). The first installment shall become exercisable on the first
anniversary of the date of this Option, and an additional installment shall
become exercisable on each successive anniversary date during the term of this
Option, except the last such anniversary date. The final installment shall
become exercisable ninety days prior to the expiration of the term of this
Option. The installments shall be cumulative (i.e., this option may be
exercised, as to any or all shares covered by an installment, at any time or
times after an installment becomes exercisable and until expiration or
termination of this option).
6. EXERCISE. This Option shall be exercised by delivery to the
Company of (a) written notice of exercise stating the number of Shares being
purchased (in whole shares only) and such other information set forth on the
form of Notice of Exercise attached hereto as APPENDIX A, (b) a check or cash in
the amount of the Exercise Price of the Shares covered by the notice (or such
other consideration as has been approved by the Board of Directors consistent
with the Plan) and (c) a written investment representation as provided for in
Section 13 hereof. This Option shall not be assignable or transferable, except
by will or by the laws of descent and distribution, and shall be exercisable
only by Optionee during his or her lifetime.
7. TERMINATION OF SERVICE. If Optionee's service as a consultant to
the Company terminates for any reason, no further installments shall vest
pursuant to Section 5, and Optionee shall have the right at any time within
thirty (30) days following such termination of services or the remaining term of
this Option, whichever is the lesser, to exercise in whole or in part this
Option to the extent, but only to the extent, that this Option was exercisable
as of the date Optionee ceased to be a consultant to the Company; provided,
however, if Optionee is terminated for reasons that would justify a termination
of employment "FOR CAUSE" as contemplated by Title 53 of the Delaware Revised
Statutes and case law related thereto, the foregoing right to exercise shall
automatically terminate on the date Optionee ceases to be a consultant to the
Company as to all Shares covered by this Option not exercised prior to
termination. Unless earlier terminated, all rights under this Option shall
terminate in any event on the expiration date of this Option as defined in
Section 4 hereof.
8. DEATH OF OPTIONEE. If the Optionee shall die while serving as a
consultant to the Company, Optionee's personal representative or the person
entitled to Optionee's rights hereunder may at any time within ninety (90) days
after the date of Optionee's death, or during the remaining term of this Option,
whichever is the lesser, exercise this Option and purchase Shares to the extent,
but only to the extent, that Optionee could have exercised this Option as of the
date of Optionee's death; provided, in any case, that this Option may be so
exercised only to the extent that this Option has not previously been exercised
by Optionee.
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9. NO RIGHTS AS SHAREHOLDER. Optionee shall have no rights as a
shareholder with respect to the Shares covered by any installment of this Option
until the effective date of the issuance of shares following exercise of this to
Option, and no adjustment will be made for dividends or other rights for which
the record date is prior to the date such stock certificate or certificates are
issued except as provided in Section 10 hereof.
10. RECAPITALIZATION. Subject to any required action by the
shareholders of the Company, the number of Shares covered by this Option, and
the Exercise Price thereof, shall be proportionately adjusted for any increase
or decrease in the number of issued shares resulting from a subdivision or
consolidation of shares or the payment of a stock dividend, or any other
increase or decrease in the number of such shares effected without receipt of
consideration by the Company; provided however that the conversion of any
convertible securities of the Company shall not be deemed having been "effected
without receipt of consideration by the Company."
In the event of a proposed dissolution or liquidation of the Company, a
merger or consolidation in which the Company is not the surviving entity, or a
sale of all or substantially all of the assets or capital stock of the Company
(collectively, a "REORGANIZATION"), this Option shall terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Board; provided, however, if Optionee shall be a consultant at the time such
Reorganization is approved by the stockholders, Optionee shall have the right to
exercise this Option as to all or any part of the Shares, without regard to the
installment provisions of Section 5, for a period beginning 30 days prior to the
consummation of such Reorganization and ending as of the Reorganization or the
expiration of this Option, whichever is earlier, subject to the consummation of
the Reorganization. In any event, the Company shall notify Optionee, at least 30
days prior to the consummation of such Reorganization, of his exercise rights,
if any, and that the Option shall terminate upon the consummation of the
Reorganization.
Subject to any required action by the shareholders of the Company, if
the Company shall be the surviving entity in any merger or consolidation, this
Option thereafter shall pertain to and apply to the securities to which a holder
of Shares equal to the Shares subject to this Option would have been entitled by
reason of such merger or consolidation, and the installment provisions of
Section 5 shall continue to apply.
In the event of a change in the shares of the Company as presently
constituted, which is limited to a change of all of its authorized Stock without
par value into the same number of shares of Stock with a par value, the shares
resulting from any such change shall be deemed to be the Shares within the
meaning of this Option.
To the extent that the foregoing adjustments relate to shares or
securities of the Company, such adjustments shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. Except as
hereinbefore expressly provided, Optionee shall have no rights by reason of any
subdivision or consolidation of shares of Stock of any class or the payment of
any stock dividend or any other increase or decrease in the number of shares of
stock of any class, and the number and price of Shares subject to
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this Option shall not be affected by, and no adjustments shall be made by reason
of, any dissolution, liquidation, merger, consolidation or sale of assets or
capital stock, or any issue by the Company of shares of stock of any class or
securities convertible into shares of stock of any class.
The grant of this Option shall not affect in any way the right or power
of the Company to make adjustments, reclassifications, reorganizations or
changes in its capital or business structure or to merge, consolidate, dissolve
or liquidate or to sell or transfer all or any part of its business or assets.
11. TAXATION UPON EXERCISE OF OPTION. Optionee understands that,
upon exercise of this Option, Optionee will recognize income, for Federal and
state income tax purposes, in an amount equal to the amount by which the fair
market value of the Shares, determined as of the date of exercise, exceeds the
Exercise Price. The acceptance of the Shares by Optionee shall constitute an
agreement by Optionee to report such income in accordance with then applicable
law and to cooperate with Company in establishing the amount of such income and
corresponding deduction to the Company for its income tax purposes. Withholding
for federal or state income and employment tax purposes will be made, if and as
required by law, from Optionee's then current compensation, or, if such current
compensation is insufficient to satisfy withholding tax liability, the Company
may require Optionee to make a cash payment to cover such liability as a
condition of the exercise of this Option.
12. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. The Board or
Committee, as described in the Plan, may modify, extend or renew this Option or
accept the surrender thereof (to the extent not theretofore exercised) and
authorize the granting of a new option in substitution therefore (to the extent
not theretofore exercised), subject at all times to the Plan, the Code.
Notwithstanding the foregoing provisions of this Section 12, no modification
shall, without the consent of the Optionee, alter to the Optionee's detriment or
impair any rights of Optionee hereunder.
13. INVESTMENT INTENT; RESTRICTIONS ON TRANSFER.
(a) Optionee represents and agrees that if Optionee
exercises this Option in whole or in part, Optionee will in each case
acquire the Shares upon such exercise for the purpose of investment and
not with a view to, or for resale in connection with, any distribution
thereof; and that upon such exercise of this Option in whole or in part,
Optionee (or any person or persons entitled to exercise this Option
under the provisions of Sections 7 and 8 hereof) shall furnish to the
Company a written statement to such effect, satisfactory to the Company
in form and substance. If the Shares represented by this Option are
registered under the Securities Act, either before or after the exercise
of this Option in whole or in part, the Optionee shall be relieved of
the foregoing investment representation and agreement and shall not be
required to furnish the Company with the foregoing written statement.
(b) Optionee further represents that Optionee has
had access to the financial statements or books and records of the
Company, has had the opportunity to ask
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questions of the Company concerning its business, operations and
financial condition, and to obtain additional information reasonably
necessary to verify the accuracy of such information.
(c) Unless and until the Shares represented by this
Option are registered under the Securities Act, all certificates
representing the Shares and any certificates subsequently issued in
substitution therefor and any certificate for any securities issued
pursuant to any stock split, share reclassification, stock dividend or
other similar capital event shall bear legends in substantially the
following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE QUALIFIED UNDER
THE SECURITIES ACT OF 1933 (THE 'SECURITIES ACT') OR UNDER THE
APPLICABLE OR SECURITIES LAWS OF ANY STATE. NEITHER THESE SECURITIES NOR
ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OR
ANY APPLICABLE SECURITIES LAWS OF ANY STATE, UNLESS PURSUANT TO
EXEMPTIONS THEREFROM.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO
THAT CERTAIN NONSTATUTORY STOCK OPTION AGREEMENT DATED ___________
BETWEEN THE COMPANY AND THE ISSUEE WHICH RESTRICTS THE TRANSFER OF THESE
SHARES WHICH ARE SUBJECT TO REPURCHASE BY THE COMPANY UNDER CERTAIN
CONDITIONS.
and/or such other legend or legends as the Company and its counsel deem
necessary or appropriate. Appropriate stop transfer instructions with respect to
the Shares have been placed with the Company's transfer agent.
14. STAND-OFF AGREEMENT. Optionee agrees that, in connection with
any registration of the Company's securities under the Securities Act, and upon
the request of the Company or any underwriter managing an underwritten offering
of the Company's securities, Optionee shall not sell, short any sale of, loan,
grant an option for, or otherwise dispose of any of the Shares (other than
Shares included in the offering) without the prior written consent of the
Company or such managing underwriter, as applicable, for a period of up to one
year following the effective date of registration of such offering.
15. RESTRICTION UPON TRANSFER. The Shares may not be sold,
transferred or otherwise disposed of and shall not be pledged or otherwise
hypothecated by the Optionee except as hereinafter provided.
(a) REPURCHASE RIGHT ON TERMINATION OTHER THAN FOR
CAUSE. For the purposes of this Section, a "REPURCHASE EVENT" shall mean
an occurrence of one of (i) termination of Optionee's service as a
consultant, voluntary or involuntary and with or without cause; (ii)
retirement or death of Optionee; (iii) bankruptcy of
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Optionee, which shall be deemed to have occurred as of the date on which
a voluntary or involuntary petition in bankruptcy is filed with a court
of competent jurisdiction; (iv) dissolution of the marriage of Optionee,
to the extent that any of the Shares are allocated as the sole and
separate property of Optionee's spouse pursuant thereto (in which case,
this Section shall only apply to the Shares so affected); or (v) any
attempted transfer by the Optionee of Shares, or any interest therein,
in violation of this Agreement. Upon the occurrence of a Repurchase
Event, the Company shall have the right (but not an obligation) to
repurchase all or any portion of the Shares of Optionee at a price equal
to the fair value of the Shares as of the date of the Repurchase Event.
(b) REPURCHASE RIGHT ON TERMINATION FOR CAUSE. In
the event Optionee's service as a consultant is terminated by the
Company "for cause" (as contemplated by Section 7), then the Company
shall have the right (but not an obligation) to repurchase Shares of
Optionee at a price equal to the Exercise Price. Such right of the
Company to repurchase Shares shall apply to 100% of the Shares for one
(1) year from the date of this Agreement; and shall thereafter lapse
ratably in equal annual increments on each anniversary of the date of
this Agreement over the term of this Option specified in Section 4. In
addition, the Company shall have the right, in the sole discretion of
the Board and without obligation, to repurchase upon any such
termination of service for cause all or any portion of the Shares of
Optionee, at a price equal to the fair value of the Shares as of the
date of termination, which right is not subject to the foregoing lapsing
of rights. In the event the Company elects to repurchase the Shares, the
stock certificates representing the same shall forthwith be returned to
the Company for cancellation.
(c) EXERCISE OF REPURCHASE RIGHT. Any repurchase
right under Paragraphs 15(a) or 15(b) shall be exercised by giving
notice of exercise as provided herein to Optionee or the estate of
Optionee, as applicable. Such right shall be exercised, and the
repurchase price thereunder shall be paid, by the Company within a
ninety (90) day period beginning on the date of notice to the Company of
the occurrence of such Repurchase Event (except in the case of
termination of employment or retirement, where such option period shall
begin upon the occurrence of the Repurchase Event). Such repurchase
price shall be payable only in the form of cash (including a check
drafted on immediately available funds) or cancellation of purchase
money indebtedness of the Optionee for the Shares. If the Company can
not purchase all such Shares because it is unable to meet the financial
tests set forth in the Delaware and/or Delaware corporation law, the
Company shall have the right to purchase as many Shares as it is
permitted to purchase under such sections. Any Shares not purchased by
the Company hereunder shall no longer be subject to the provisions of
this Section 15.
(d) RIGHT OF FIRST REFUSAL. In the event Optionee
desires to transfer any Shares during his or her lifetime, Optionee
shall first offer to sell such Shares to the Company. Optionee shall
deliver to the Company written notice of the intended sale, such notice
to specify the number of Shares to be sold, the proposed purchase price
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and terms of payment, and grant the Company an option for a period of
thirty days following receipt of such notice to purchase the offered
Shares upon the same terms and conditions. To exercise such option, the
Company shall give notice of that fact to Optionee within the thirty
(30) day notice period and agree to pay the purchase price in the manner
provided in the notice. If the Company does not purchase all of the
Shares so offered during foregoing option period, Optionee shall be
under no obligation to sell any of the offered Shares to the Company,
but may dispose of such Shares in any lawful manner during a period of
one hundred and eighty (180) days following the end of such notice
period, except that Optionee shall not sell any such Shares to any other
person at a lower price or upon more favorable terms than those offered
to the Company.
(e) ACCEPTANCE OF RESTRICTIONS. Acceptance of the
Shares shall constitute the Optionee's agreement to such restrictions
and the legending of his certificates with respect thereto.
Notwithstanding such restrictions, however, so long as the Optionee is
the holder of the Shares, or any portion thereof, he shall be entitled
to receive all dividends declared on and to vote the Shares and to all
other rights of a shareholder with respect thereto.
(f) PERMITTED TRANSFERS. Notwithstanding any
provisions in this Section 15 to the contrary, the Optionee may transfer
Shares subject to this Agreement to his or her parents, spouse,
children, or grandchildren, or a trust for the benefit of the Optionee
or any such transferee(s); provided, that such permitted transferee(s)
shall hold the Shares subject to all the provisions of this Agreement
(all references to the Optionee herein shall in such cases refer mutatis
mutandis to the permitted transferee, except in the case of clause (iv)
of Section 15(a) wherein the permitted transfer shall be deemed to be
rescinded); and provided further, that notwithstanding any other
provisions in this Agreement, a permitted transferee may not, in turn,
make permitted transfers without the written consent of the Optionee and
the Company.
(g) RELEASE OF RESTRICTIONS ON SHARES. All rights
and restrictions under this Section 15 shall terminate five (5) years
following the date of this Agreement, or when the Company's securities
are publicly traded, whichever occurs earlier.
16. NOTICES. Any notice required to be given pursuant to this Option
or the Plan shall be in writing and shall be deemed to be delivered upon receipt
or, in the case of notices by the Company, five (5) days after deposit in the
U.S. mail, postage prepaid, addressed to Optionee at the address last provided
by Optionee for use in Company records related to Optionee.
17. AGREEMENT SUBJECT TO PLAN; APPLICABLE LAW. This Option is made
pursuant to the Plan and shall be interpreted to comply therewith. A copy of
such Plan is available to Optionee, at no charge, at the principal office of the
Company. Any provision of this Option inconsistent with the Plan shall be
considered void and replaced with the applicable provision of the Plan. This
Option has been granted, executed and delivered in the State of Delaware, and
the interpretation and enforcement shall be governed by the laws thereof and
subject to the exclusive jurisdiction of the courts therein.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties hereto have executed this Option as of
the date first above written.
COMPANY: ABLE ENERGY, INC.,
a Delaware corporation
By:_____________________________
Name:___________________________
Title: _________________________
OPTIONEE:
By:_____________________________
(SIGNATURE)
Name:___________________________
(ONE OF THE FOLLOWING, AS APPROPRIATE, SHALL BE SIGNED)
I certify that as of the date By his or her signature, the spouse of
hereof I am unmarried Optionee hereby agrees to be bound by the
provisions of the foregoing INCENTIVE
STOCK OPTION AGREEMENT
-------------------------------- -----------------------------------------
Optionee Spouse of Optionee
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APPENDIX A
NOTICE OF EXERCISE
ABLE ENERGY, INC.
Re: Nonstatutory Stock Option
Notice is hereby given pursuant to Section 6 of my Nonstatutory Stock
Option Agreement that I elect to purchase the number of shares set forth below
at the exercise price set forth in my option agreement:
Nonstatutory Stock Option Agreement dated: ____________
Number of shares being purchased: ____________
Exercise Price: $____________
A check in the amount of the aggregate price of the shares being
purchased is attached.
I hereby confirm that such shares are being acquired by me for my own
account for investment purposes, and not with a view to, or for resale in
connection with, any distribution thereof. I will not sell or dispose of my
Shares in violation of the Securities Act of 1933, as amended, or any applicable
federal or state securities laws. Further, I understand that the exemption from
taxable income at the time of exercise is dependent upon my holding such stock
for a period of at least one year from the date of exercise and two years from
the date of grant of the Option.
I understand that the certificate representing the Option Shares will
bear a restrictive legend within the contemplation of the Securities Act and as
required by such other state or federal law or regulation applicable to the
issuance or delivery of the Option Shares.
I agree to provide to the Company such additional documents or
information as may be required pursuant to the Company's 2005 Incentive Stock
Plan.
By:_____________________________
(SIGNATURE)
Name:___________________________
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