BEACON POWER CORPORATION
RESTRICTED STOCK UNIT AGREEMENT
This Restricted Stock Unit Agreement (the "Agreement"), dated as of March
11, 2004 (the "Effective Date"), is by and between Beacon Power Corporation
("Company") and _____________________ ("Employee"), an employee of Company.
WHEREAS, this Agreement is intended to provide Employee deferred
compensation in the form of restricted stock units (or "RSUs") that convert into
shares of Company's common stock, in lieu of a cash bonus, through establishing
and evaluating targets and awards for Employee, with Employee having the right
to convert his or her RSUs into shares at any time after such grant;
NOW THEREFORE, it is agreed as follows:
1. Accrual and Grant of Restricted Stock Unit Award.
(a) General. Subject to the terms and conditions of this Agreement and
pursuant to Company's Second Amended and Restated 1998 Stock Incentive
Plan (the "Plan"), Company hereby accrues, and thereafter to grant,
RSUs to Employee based on Employee's having achieved certain targets,
as described on the attached Schedule A with respect to 2003.
(b) Grants of Accrued RSUs. As RSUs have accrued for 2003 (as described
above in paragraph (a)), then on the four grant dates set forth in
Schedule B (each a "Grant Date"), the Company shall be considered to
have granted to the Employee one-fourth of the total of RSUs so
accrued. Thus, accruals from 2003 result in grants in 2004.
2. Conversion to Common Stock. Each RSU shall represent the right to receive
one (1) share of Common Stock, subject to the terms and conditions of this
Agreement. Employee shall have the right to convert each granted RSU into
one (1) share of Common Stock at any time on or after the applicable Grant
Date, by delivering written notice of such exercise to Company; provided,
that, if the applicable Grant Date occurs during a period in which Employee
is (a) subject to a lock-up agreement restricting Employee's ability to
sell Common Stock in the open market, (b) restricted from selling Common
Stock in the open market because a trading window is not available, in the
opinion of Company, or (c) trading is otherwise not appropriate, in the
opinion of Company, Employee's right to convert such granted RSUs into
shares of Common Stock shall be delayed until the date immediately
following the expiration of the lock-up agreement or the opening of a
trading window or confirmation by Company that trading is appropriate, as
the case may be.
3. Termination of Employment. Notwithstanding anything in this Agreement to
the contrary:
(a) RSUs That Are Already Accrued and Granted. If Employee's employment is
terminated by either party, Employee will retain all RSUs which have
already been granted (pursuant to the Grant Dates in Schedule B) to
4. Employee before the "Termination Notice Date", defined to mean the date on
which Employee notifies Company that Employee will resign (if earlier than
the date of resignation) or the date on which Company notifies Employee
that employment will be terminated (if earlier than the date of
termination). Also, Employee shall not have the right to receive a grant of
any RSUs with respect to the period after the Termination Notice Date.
(b) RSUs That Are Accrued, but Not Yet Granted, Before the Termination
Notice. If Employee's employment is terminated by Company, then
Employee shall also have the right to continue receiving grants with
respect to the accrual period ending on the Termination Notice Date
(including, if applicable, for the pro rata portion of any partial
quarter before such Termination Notice Date). Such grants shall occur
on the timetable specified in Schedule B. If the employment is
terminated by the Employee, then Employee will not be entitled to
receive grants of RSUs that might have accrued before Termination
Notice.
5. Nontransferability of Agreement and RSUs. This Agreement and the RSUs may
not be sold, assigned, transferred, pledged or otherwise encumbered by
Employee, either voluntarily or by operation of law, except by will or the
laws of descent and distribution. Notwithstanding the foregoing, Employee's
transfer to a revocable trust that is solely for the benefit of Employee
and Employee's spouse and/or issue during Employee's lifetime and transfer
under such trust at Employee's death to the trust's intended beneficiaries
shall not be deemed to be prohibited by the foregoing provisions. If any
person other than Employee, Employee's then current spouse, and Employee's
issue shall possess a vested interest in such trust during the lifetime of
Employee, such interest shall not be recognized hereunder as giving such
person any right to the benefit of any RSUs or the shares of Common Stock
issuable upon conversion thereof. In such event the RSUs shall revest in
Employee as if such transfer in trust had not occurred.
6. No Right to Continued Employment. This Agreement shall not confer upon
Employee any right with respect to continuance of employment by Company,
nor shall it interfere in any way with the right of Company to terminate
Employee's employment at any time.
7. No Right as Stockholder. Employee
shall not be entitled to vote any shares of Common Stock that may be
acquired through conversion of RSUs to Common Stock, shall not receive any
dividends attributed to such shares of Common Stock, and shall have no
other rights of a stockholder with respect to the RSUs unless and until the
Common Stock issuable upon conversion of the RSUs has been delivered to
Employee.
8. Compliance with Law and Regulations. This Agreement and the
obligation of Company to issue and deliver shares of Common Stock upon
conversion of the RSUs shall be subject to all applicable federal and state
laws, rules and regulations and to such approvals by any government or
regulatory agency as may be required. Moreover, the RSUs shall not be
converted to Common Stock if such conversion would be contrary to
applicable law.
9. Adjustment to Common Stock. In the event of any stock
split, stock dividend, recapitalization, reorganization, merger,
consolidation, combination, exchange of shares, liquidation, spin-off or
other similar change in capitalization or event, or any distribution to
holders of Common Stock other than a normal cash dividend, the number and
class of securities each RSU shall be convertible into under this Agreement
shall be appropriately adjusted by Company to the extent the Board shall
determine, in good faith, that such an adjustment is necessary and
appropriate. As used in this Agreement, "Board" shall mean Company's Board
of Directors. All references in this Agreement to the "Board" shall mean
the Board or a committee of the Board to the extent that the Board's powers
or authority under this Agreement have been delegated to a committee
pursuant to the Plan.
10. Withholding. Employee shall pay to Company, or
make provision satisfactory to Company for payment of, any taxes required
by law to be withheld in connection with this Agreement no later than each
Grant Date upon which Company grants RSUs to Employee. Employee may satisfy
such tax obligations by delivering to Company (i) cash in the form of wire
transfer or check or (ii) shares of Common Stock, including shares retained
from this Agreement, valued at their fair market value as determined by (or
in a manner approved by) Company in good faith or (iii) a combination of
(i) and (ii). Company may, to the extent permitted by law, deduct any such
tax obligations from any payment of any kind otherwise due to Employee.
11. Common Stock Reserved. Company shall at all times during the term of this
Agreement reserve and keep available such number of shares of Common Stock
as will be sufficient to satisfy the requirements of this Agreement.
12. Securities Act Exemption. The RSUs have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"). Employee hereby
confirms that Employee has been informed that any RSUs acquired hereunder
are restricted securities under the Securities Act and may not be resold or
transferred unless such RSUs are first registered under applicable
securities laws or unless an exemption from registration is available.
Company shall in no event be obligated to register any securities pursuant
to the Securities Act or to take any other affirmative action in order to
cause the issuance or transfer of RSUs acquired pursuant to this Agreement
to comply with any law or regulation of any governmental authority.
13. Delaware Law to Govern. This Agreement shall be construed and administered
in accordance with and governed by the laws of the State of Delaware
(without giving effect to any conflict or choice of laws provisions thereof
that would cause the application of the domestic substantive laws of any
other jurisdiction).
14. Notices. Any notice hereunder to Company shall be addressed to Company at
its principal business office, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000, and any notice hereunder to Employee shall be sent to the address
reflected on the payroll records of Company, subject to the right of either
party to designate at any time hereafter in writing some other address.
15. Amendment of Agreement. Company may amend, modify or terminate this
Agreement, provided that Employee's consent to such action shall be
required unless Company determines that the action, taking into account any
related action, would not materially and adversely affect Employee.
16. Successors and Assigns; No Third Party Beneficiaries. Except as otherwise
expressly provided herein, the provisions hereof shall inure to the benefit
of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto. There are no third party
beneficiaries of this Agreement.
17. Provisions of the Plan. This Agreement is subject to the provisions of the
Plan, a copy of which Employee hereby acknowledges receiving with this
Agreement.
18. Entire Agreement. This Agreement and the Plan constitute the full and
entire understanding and agreement of the parties with regard to the RSUs
and supersede in their entirety all other prior agreements, whether oral or
written, with respect thereto.
19. Severability; Titles and Subtitles; Gender; Singular and Plural;
Counterparts; Facsimile.
(a) In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be
affected or impaired thereby.
(b) The titles of the sections and subsections of this Agreement are for
convenience of reference only and are not to be considered in
construing this Agreement.
(c) The use of any gender in this Agreement shall be deemed to include the
other genders, and the use of the singular in this Agreement shall be
deemed to include the plural (and vice versa), wherever appropriate.
(d) This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together constitute one
instrument.
(e) Counterparts of this Agreement (or applicable signature pages hereof)
that are manually signed and delivered by facsimile transmission shall
be deemed to constitute signed original counterparts hereof and shall
bind the parties signing and delivering in such manner.
IN WITNESS WHEREOF, the parties have executed this Agreement as a sealed
instrument as of the Effective Date.
EMPLOYEE: BEACON POWER CORPORATION
By: By:
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Signature Signature
Name: Name:
Address: Title:
