EXHIBIT 10.1
BEACON POWER CORPORATION
DIRECTOR'S OPTION AGREEMENT
This Agreement, dated July 25 2005, (the "Grant Date") is between
Beacon Power Corporation (the "Company") and Xxxx Xxxxxxx (the "Participant") a
director of the Company.
1. Grant of Option. This Agreement evidences the grant by the Company to the
Optionee (as defined below), of an option to purchase, in whole or in part, on
the terms provided herein, the shares (the "Shares") of common stock, $0.01 par
value per share, of the Company ("Common Stock") at an exercise price per share,
as set forth below:
Shares: Exercise Price:
100,000 $1.235
Unless earlier terminated, this option shall expire one day before the
10th anniversary of the Grant Date (the "Final Exercise Date"). It is intended
that the option evidenced by this Agreement shall be a non-qualified stock
option. Except as otherwise indicated by the context, the term "Optionee", as
used in this option, shall be deemed to include the Participant and any person
who acquires the right to exercise this option validly under its terms.
2. Vesting Schedule. Subject to the other terms of this Agreement regarding the
exercisability of this option, the Shares covered by this option shall vest and
become exercisable as follows:
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Number of Shares Date
------------------------------------- ------------------------------------- ---------------------------------------
Newly vested on the indicated date Cumulative Vested
------------------------------------- ------------------------------------- ---------------------------------------
20,000 20,000 August 1, 2005
------------------------------------- ------------------------------------- ---------------------------------------
20,000 40,000 September 1, 2005
------------------------------------- ------------------------------------- ---------------------------------------
20,000 60,000 October 1, 2005
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20,000 80,000 November 1, 2005
------------------------------------- ------------------------------------- ---------------------------------------
20,000 100,000 December 1, 2005
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The right of exercise shall be cumulative so that to the extent the
option is not exercised in any period to the maximum extent permissible it shall
continue to be exercisable, in whole or in part, with respect to all Shares for
which it is vested until the earlier of the Final Exercise Date or the
termination of this option under this Agreement.
3. Exercise of Option .
(a) Form of Exercise. Each election to exercise this option shall be in
writing, signed by the Optionee, and received by the Company at its principal
office, accompanied by a copy of this agreement and by payment in full as
provided below. The Optionee may purchase less than the number of shares covered
hereby, provided that no partial exercise of this option may be for any
fractional share or for fewer than 100 whole shares. Payment shall be as
follows:
(i) in cash or by check, payable to the order of the Company;
(ii) in the sole discretion of the Board of Directors of the
Company, or its designee (the "Administrator"), (A) delivery of an irrevocable
and unconditional undertaking by a creditworthy broker to deliver promptly to
the Company sufficient funds to pay the exercise price or (B) delivery by the
Optionee to the Company of a copy of irrevocable and unconditional instructions
to a creditworthy broker to deliver promptly to the Company cash or a check
sufficient to pay the exercise price;
(iii) at such time as the Common Stock is registered under the
Securities Exchange Act of 1934, delivery of shares of Common Stock owned by the
Optionee valued at their fair market value as determined by (or in a manner
approved by) the Administrator in good faith, which Common Stock was owned by
the Optionee at least six months prior to such delivery;
(iv) to the extent permitted by the Administrator, in its sole
discretion, by payment of such other lawful consideration as the Administrator
may determine; or
(v) any combination of the above permitted forms of payment.
A certificate or certificates for the Common Stock purchased shall be
issued by the Company after the exercise of the option and payment therefor,
including the provision for any federal and state withholding taxes, and other
applicable taxes.
(b) Termination of Option upon Termination of Service, Death or
Disability.
(i) For Reasons other than Breach of Conduct, death or disability. Upon
the termination of Optionee's service as a director of the Company for any
reason other than a Breach of Conduct (as defined in subparagraph (iii) below)
or death or disability, any portion of this option that is not vested as
described in Section 2 hereof shall immediately terminate, and any portion that
vested before such service terminated shall continue to be exercisable until the
Final Exercise Date.
(ii) Death or disability. If termination of such service is by reason
of death or disability, any portion of this option which is not vested before
such termination of service shall immediately terminate. However, no portion of
the option is exercisable after the Final Exercise Date.
(iii) Breach of Conduct. In the event of a Breach of Conduct by
Optionee at any time while providing service to the Company or within two years
after termination of such service, any portion of this option which has not been
exercised by the time of such Breach of Conduct, whether or not vested under
Section 2, shall immediately terminate upon written declaration by the
Administrator. Such declaration shall be communicated in writing to the
Optionee. In addition, upon a Breach of Conduct, the Company may, in its sole
discretion, by written notice demand that any or all stock certificates for
Common Stock acquired pursuant to the exercise of this option, or any profit
realized from the sale or transfer of such Common Stock, be returned to the
Company within five (5) days of receipt of such notice, and any exercise price
paid by the Optionee shall be returned to Optionee by the Company immediately
thereafter, without interest. The Company shall be entitled to reimbursement of
reasonable attorney fees and expenses incurred in seeking to enforce its rights
under this paragraph.
"Breach of Conduct" shall mean activities which constitute a serious
breach of conduct as determined by the Administrator in its sole discretion,
including, but not limited to: (i) the disclosure or misuse of confidential
information, trade secrets or other intellectual property of the Company or
third parties who have disclosed such information, secrets or intellectual
property to the Company or a company that controls, is controlled by or is under
common control with the Company (collectively, an "Affiliate"); (ii) activities
in violation of the policies of the Company or any Affiliate, including without
limitation, the Company's xxxxxxx xxxxxxx policy; (iii) the violation or breach
of any material provision in any applicable contract or agreement between the
Optionee and the Company (or an Affiliate), including, for example, a violation
or breach which is grounds for discharge for cause; (iv) engaging in conduct
relating to the Optionee's service provision for which either criminal or civil
penalties have been sought; (v) engaging in activities which adversely affect or
which are contrary or harmful to the interests of the Company or Affiliate, or
(vi) in the event that the Optionee and Company have not signed a noncompetition
agreement (which therefore otherwise would govern issues of noncompetition),
engaging in competition with the Company or any Affiliate during service or
within one (1) year following termination of service provision to the Company or
Affiliate. The determination of Breach of Conduct shall be determined by the
Administrator in good faith and in its sole discretion.
4. Withholding. No Shares will be issued pursuant to the exercise of this option
unless and until the Optionee pays to the Company, or makes provision
satisfactory to the Company for payment of, any federal, state or local
withholding taxes required by law to be withheld in respect of this option.
5. Nontransferability of Option. This option may not be sold, assigned,
transferred, pledged or otherwise encumbered by the Optionee, either voluntarily
or by operation of law, except by will or the laws of descent and distribution,
and, during the lifetime of the Optionee, this option shall be exercisable only
by the Optionee.
6. Administration. The Administrator shall have authority to adopt, amend and
repeal such administrative rules, guidelines and practices relating to this
option and the Shares as it shall deem advisable. The Administrator may correct
any defect, supply any omission or reconcile any inconsistency in this option in
the manner and to the extent it shall deem expedient and it shall be the sole
and final judge of such expediency. All decisions by the Administrator shall be
made in the Administrator's sole discretion and shall be final and binding on
the Optionee. No person acting pursuant to the authority of or delegated by the
Administrator shall be liable for any action or determination relating to this
option made in good faith.
7. 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 security and exercise price per share subject
to this option shall be appropriately adjusted by the Company (or substituted
Awards may be made, if applicable) to the extent the Administrator shall
determine, in good faith, that such an adjustment (or substitution) is necessary
and appropriate. If this Section 7 applies and Section 8(a) also applies to any
event, Section 8(a) shall be applicable to such event, and this Section 7 shall
not be applicable.
8. General Provisions.
(a) Acquisition Events. Upon the occurrence of an Acquisition Event (as
defined below), or the execution by the Company of any agreement with respect to
an Acquisition Event, the Administrator shall take any one or more of the
following actions with respect to this option: (i) provide that this option
shall be assumed, or equivalent options shall be substituted, by the acquiring
or succeeding corporation (or an affiliate thereof); (ii) upon written notice to
the Optionee, provide that any unexercised portion of this option will become
exercisable in full as of a specified time (the "Acceleration Time") prior to
the Acquisition Event and will terminate immediately prior to the consummation
of such Acquisition Event, except to the extent exercised by the Optionee
between the Acceleration Time and the consummation of such Acquisition Event;
(iii) in the event of an Acquisition Event under the terms of which holders of
Common Stock will receive upon consummation thereof a cash payment for each
share of Common Stock surrendered pursuant to such Acquisition Event (the
"Acquisition Price"), provide that this option shall terminate upon consummation
of such Acquisition Event and the Optionee shall receive, in exchange therefor,
a cash payment equal to the amount (if any) by which (A) the Acquisition Price
multiplied by the number of shares of Common Stock subject to this option
(whether or not then exercisable), exceeds (B) the aggregate exercise price of
this option; and (iv) provide that this option (A) shall become exercisable,
realizable or vested in full, or shall be free of all conditions or
restrictions, as applicable to this option, prior to the consummation of the
Acquisition Event, or (B), if applicable, shall be assumed, or equivalent
options shall be substituted, by the acquiring or succeeding corporation (or an
affiliate thereof).
An "Acquisition Event" shall mean: (a) any merger or consolidation
which results in the voting securities of the Company outstanding immediately
prior thereto representing immediately thereafter (either by remaining
outstanding or by being converted into voting securities of the surviving or
acquiring entity) less than 50% of the combined voting power of the voting
securities of the Company or such surviving or acquiring entity outstanding
immediately after such merger or consolidation; (b) any sale of all or
substantially all of the assets of the Company; or (c) the complete liquidation
of the Company.
(b) Conditions on Delivery of Stock. The Company will not be obligated
to deliver any shares of Common Stock pursuant to this option or to remove
restrictions from shares previously delivered pursuant to this option until (i)
all conditions of this option have been met or removed to the satisfaction of
the Company, (ii) in the opinion of the Company's counsel, all other legal
matters in connection with the issuance and delivery of such shares have been
satisfied, including any applicable securities laws and any applicable stock
exchange or stock market rules and regulations, and (iii) the Optionee has
executed and delivered to the Company such representations or agreements as the
Company may consider appropriate to satisfy the requirements of any applicable
laws, rules or regulations.
(c) Acceleration. The Administrator may at any time provide that this
option shall become immediately exercisable in full or in part, that this option
may become exercisable in full or in part or free of some or all restrictions or
conditions, or otherwise realizable in full or in part, as the case may be.
9. Miscellaneous.
(a) No Rights as Stockholder. Subject to the provisions of this option,
the Optionee shall not have any rights as a stockholder with respect to any
shares of Common Stock to be distributed with respect to this option until
becoming the record holder of such shares. Notwithstanding the foregoing, in the
event the Company effects a split of the Common Stock by means of a stock
dividend and the exercise price of and the number of shares subject to this
option are adjusted as of the date of the distribution of the dividend (rather
than as of the record date for such dividend), then if the Optionee exercises
this option between the close of business on the record date for such stock
dividend and the close of business on the distribution date for such stock
dividend, the Optionee shall be entitled to receive, on the distribution date,
the stock dividend with respect to the shares of Common Stock acquired upon such
exercise, notwithstanding the fact that such shares were not outstanding as of
the close of business on the record date for such stock dividend.
(b) No Right to Continued Board Membership, Etc. This option shall not
confer upon the Optionee any right with respect to continuance on the Board of
Directors, nor shall it interfere in any way with the right of the Company to
terminate the Optionee's service on the Board at any time.
(c) Compliance with Law and Regulations. This option and the obligation
of the Company to sell and deliver shares hereunder 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. The Company shall not
be required to issue or deliver any certificates for Common Shares prior to (a)
the listing of such Common Shares on any stock exchange on which the Common
Shares may then be listed, and (b) the completion of any registration or
qualification of such Common Shares under any federal or state law, or any rule
or regulation of any government body which the Company shall, in its sole
discretion, determine to be necessary or advisable. Moreover, this option may
not be exercised if its exercise, or the receipt of Common Shares pursuant
thereto, would be contrary to applicable law.
(d) Notices. Any notice hereunder to the Company shall be addressed to
it at its principal business office, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000 and any notice hereunder to the Optionee shall be sent to the address
reflected on the records of the Company, subject to the right of either party to
designate at any time hereafter in writing some other address.
(e) Delaware Law to Govern. This Agreement shall be construed and
administered in accordance with and governed by the laws of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as a sealed
instrument, as of the date first set forth above.
Optionee: Xxxx Xxxxxxx BEACON POWER CORPORATION
/s/ Xxxx Xxxxxxx
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Signature By: /s/ F. Xxxxxxx Xxxx
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[address withheld] Signature
------------------------------- F. Xxxxxxx Xxxx, President & CEO
Address
