EXHIBIT 10.3
ABLE ENERGY, INC.
FORM OF NONSTATUTORY STOCK OPTION AGREEMENT
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THIS 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 Director of the Company
("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 a member of the Board of Directors of the
Company.
(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. 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
of Directors of the Company, 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 percent (85%) of the fair market value per share
of the Shares covered by this Option as of the date hereof.
4. TERM OF OPTION; CONTINUATION OF SERVICE. This Option shall
expire, and all rights hereunder to purchase the Shares shall terminate, ten
(10) years from the date hereof. This Option shall earlier terminate subject to
Sections 7 and 8 hereof upon, and as of the date of, the termination of
Optionee's employment if such termination occurs prior to the end of such ten
(10) year period. Nothing contained herein shall confer upon Optionee the right
to the
continuation of his or her employment by the Company or to interfere with the
right of the Company to terminate such employment or to increase or decrease the
compensation of Optionee from the rate in existence at the date hereof.
5. VESTING OF OPTION. Subject to the provisions of Sections 7 and 8
hereof, this Option shall become exercisable during the term that Optionee
serves as a Director of the Company in three (3) equal annual installments of
thirty-three and one-third percent (33 1/3%) of the Shares covered by this
Option, the first installment to be exercisable on the first anniversary of the
date of this Option, with an additional thirty-three and one-third percent (33
1/3%) of such Shares becoming exercisable on each of the two (2) successive
anniversary dates. 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, except as provided in Section 8
hereof.
7. TERMINATION OF SERVICE. If Optionee shall cease to serve as a
Director of the Company for any reason, no further installments shall vest
pursuant to Section 5, and the maximum number of Shares that Optionee may
purchase pursuant hereto shall be limited to the number of Shares that were
vested as of the date Optionee ceases to be a Director (to the nearest whole
Share). Thereupon, Optionee shall have the right to exercise this Option, at any
time during the remaining term hereof, to the extent, but only to the extent,
that this Option was exercisable as of the date Optionee ceases to be a
Director; provided, however, if Optionee is removed as a Director pursuant to
the Delaware corporation law, the foregoing right to exercise shall
automatically terminate on the date Optionee ceases to be a Director 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 in the employ
of the Company, Optionee's personal representative or the person entitled to
Optionee's rights hereunder may at any time within six (6) months 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 issuance of the Shares following exercise of this
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"), unless otherwise provided by the Board, this
Option shall terminate immediately prior to such date as is determined by the
Board, which date shall be no later than the consummation of such
Reorganization. In such event, if the entity which shall be the surviving entity
does not tender to Optionee an offer, for which it has no obligation to do so,
to substitute for any unexercised Option a stock option or capital stock of such
surviving of such surviving entity, as applicable, which on an equitable basis
shall provide the Optionee with substantially the same economic benefit as such
unexercised Option, then the Board may grant to such Optionee, in its sole and
absolute discretion and without obligation, the right for a period commencing
thirty (30) days prior to and ending immediately prior to the date determined by
the Board pursuant hereto for termination of the Option or during the remaining
term of the Option, whichever is the lesser, to exercise any unexpired Option or
Options without regard to the installment provisions of Section 5; provided,
however, that such exercise shall be subject to the consummation of such
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,
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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 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 and the
Delaware Securities Rules. 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
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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 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 at least
one year following the effective date of registration of such offering.
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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 BY REMOVAL.
For the purposes of this Section, a "REPURCHASE EVENT" shall mean an
occurrence of one of (i) termination of Optionee's service as a
director; (ii) death of Optionee; (iii) bankruptcy of 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, and upon mutual agreement of the Company and Optionee, the
Company may 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 REMOVAL. In the event Optionee is
removed as a director pursuant to Delaware Revised Statutes, or Optionee
voluntarily resigns as a director prior to the date upon which the last
installment of Shares becomes exercisable pursuant to Section 5, 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 removal or
resignation 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 such removal or
resignation, 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 or cessation of
services as director, 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 corporation law, the Company shall have
the right to purchase as
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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 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 other
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
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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.
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
hereof I am unmarried of 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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