WINDTAMER CORPORATION (THE “COMPANY”) AMENDED STOCK AWARD AGREEMENT
Exhibit
10.4
WINDTAMER
CORPORATION (THE “COMPANY”)
AMENDED
STOCK AWARD AGREEMENT
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Name:
Xxxx Xxxxxxxx
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Plan:
2008 Equity Incentive Plan
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Address:
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Grant:
50,000 shares of Common Stock of the Company
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Xxxxx
Xxxxx: $1.00
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Signature:
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Grant
Date: November 1,
2008
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1. This
stock award granted hereunder is made pursuant to the Company’s 2008 Equity
Incentive Plan (the “Plan”) and is subject to all its terms and provisions.
Capitalized terms used herein shall have the meaning ascribed to them in the
Plan. Effective on the grant date written hereinabove (the “Grant Date”) you
have been granted the number of shares at the price designated above, in
accordance with the provisions of the Plan. The shares will vest according to
the following schedule:
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5,000
shares upon signing the consulting agreement (the “Consulting Agreement”)
between you and the Company;
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-
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5,000
shares upon completion of an internal budget and projections as required
by the Consulting Agreement;
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10,000
shares upon completion of a business plan as required by the Consulting
Agreement;
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15,000
shares for submission of three completed grant applications (5,000 for
each submission) to the applicable N.Y. agency/office, as determined by
the Company;
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15,000
shares for assistance in preparing presentations for and meeting with
potential customers and purchasers of the Company’s
products.
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The
sufficiency of your performance of each of these conditions will be determined
in the sole discretion of the Administrator of the Plan.
2. In
the event of the termination of your employment or service with the Company for
any reason other than Termination by Employer for “cause” as described in
Paragraph 3 below, whether such termination is occasioned by you or by the
Company (“Termination of Service”), your right to vest in your award under the
Plan, if any, will terminate effective as of the earlier of: (i) the date that
you give or are provided with written notice of Termination of Service, or (ii)
if you are an employee of the Company, the date that you are no longer actively
employed by the Company, regardless of any notice period or period of pay in
lieu of such notice required under any applicable statute or the common law
(each, the “Notice Period”). For greater clarity, you have no rights to vest in
your award during the Notice Period.
3. Notwithstanding
the foregoing, if your Termination of Service is by reason of “cause,” then your
award shall terminate concurrently with your Termination of Service. For this
purpose “cause” shall have the meaning as expressly defined in any
then-effective written agreement regarding your employment with the Company, or
as defined in Section 2(h) of the Plan.
4. The
shares will not be issued until vested.
5. The
shares will be issued upon your completing the issuance procedures established
by the Company and any applicable tax withholding to the Company. Payment may be
made in cash or such other method as the Company may permit from time to time as
set forth in the Plan.
6. The
shares may in the discretion of the Company be subject to such restrictions as
the Company may require such as rights of first refusal, rights of repurchase or
requirements that you consent not to transfer the shares for a period of time in
connection with any public offering of the shares.
7. The
Company has the authority to deduct or withhold, or require you to remit to the
Company, an amount sufficient to satisfy applicable federal and state taxes
arising from this award.
8. (a) The
Shares may not be sold, transferred or otherwise disposed of and shall not be
pledged or otherwise hypothecated by you except as provided in this
Agreement.
(b) This Agreement and the
issuance and grant of the shares under this Agreement are made by the Company in
reliance upon your express representations and warranties, which by acceptance
hereof you confirm, as follows:
(i) The shares granted to him or her
pursuant to this Agreement are being acquired by him or her for his or her own
account, for investment purposes, and not with a view to, or for sale in
connection with, any distribution of the shares. It is understood
that the shares have not been registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities Act which
depends, among other things, upon the bona fide nature of his or her
representations as expressed in this Agreement;
(ii) The shares must be held by him or
her indefinitely unless they are subsequently registered under the Securities
Act and any applicable state securities laws, or an exemption from such
registration is available. The Company is under no obligation to register the
shares or to make available any such exemption; and
(iii) You further represent that you
have had access to the financial statements or books and records of the Company,
have had the opportunity to ask questions of the Company concerning its
business, operations and financial condition and to obtain additional
information.
(iv) Unless and until the shares
represented by this award 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 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.”
You agree
to such transfer restrictions. The certificates shall bear 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.
(c) You agree 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, you 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 two years following the effective date of registration of such
offering.
9. You
acknowledge and consent to the collection, use, processing and transfer of
personal data as described in this paragraph. The Company, its affiliates or
your employer hold certain personal information, including your name, home
address and telephone number, date of birth, social security number or other
employee tax identification number, salary, nationality, job title, any shares
awarded, cancelled, purchased, vested, unvested or outstanding in your favor,
for the purpose of managing and administering the Plan (“Data”). The Company
will transfer Data to any third parties assisting the Company in the
implementation, administration and management of the Plan. These recipients may
be located anywhere in the United States. You authorize them to receive,
possess, use, retain and transfer the Data, in electronic or other form, for the
purposes of implementing, administering and managing your participation in the
Plan, including any requisite transfer of such Data as may be required for the
administration of the Plan or the subsequent holding of shares on your behalf to
a broker or other third party with whom you may elect to deposit any shares
acquired pursuant to the Plan. You may, at any time, review Data, require any
necessary amendments to it or withdraw the consent herein in writing by
contacting the Company; however, withdrawing the consent may affect your ability
to participate in the Plan.
10. Your
participation in the Plan is voluntary. The value of the award is an
extraordinary item of compensation outside the scope of your consulting
agreement, if any. As such, the option is not part of normal or expected
compensation for purposes of calculating any severance, resignation, redundancy,
end of service payments, bonuses, long-service awards, pensions or retirement
benefits or similar payments unless specifically and otherwise provided. Rather,
the award under the Plan represents an incentive for you to align your interests
with the interests of the Shareholders of the Company.
11. This
award is granted under and governed by the terms and conditions of the Plan. You
acknowledge and agree that the Plan is discretionary in nature and may be
amended, cancelled, or terminated by the Company, in its sole discretion, at any
time. The grant of shares under the Plan is a one-time benefit and does not
create any contractual or other right to receive a grant of shares or benefits
in lieu of shares in the future. Future grants of shares, if any, will be at the
sole discretion of the Company, including, but not limited to, the timing of the
grant, the number of shares, vesting provisions, and the exercise price. The
Plan has been introduced voluntarily by the Company and in accordance with the
provisions of the Plan may be terminated by the Company at any time. By
execution of this Agreement, you consent to the provisions of the Plan and this
Agreement. Defined terms used herein shall have the meaning set forth in the
Plan, unless otherwise defined herein. This Amended Stock Award
Agreement replaces and supersedes in its entirety that Stock Award Agreement
dated November 6, 2008, between the Company and Xxxx Xxxxxxxx.
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WINDTAMER
CORPORATION
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By:
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/s/ Xxxxxx X.
Xxxxx
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Its:
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President and CEO
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Date:
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December 30, 2008
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