H2DIESEL HOLDINGS, INC.
Option
No.: _______
H2DIESEL
HOLDINGS, INC.
2007
OMNIBUS INCENTIVE PLAN
H2Diesel
Holdings, Inc., a Florida corporation (the “Company”), hereby grants an option
to purchase shares of its common stock, $.001 par value, (the “Stock”) to the
optionee named below. Additional terms and conditions of the grant are set
forth
in this cover sheet and in the attachment (collectively the “Agreement”), and in
the Company’s 2007 Omnibus Incentive Plan (the “Plan”).
Grant
Date: __________________, 200__
Name
of
Optionee: _________________________________________________
Optionee’s
Employee Identification Number: _____-____-_____
Number
of
Shares Covered by Option: ______________
Option
Price per Share: $_____.___ (At
least 100% of Fair Market Value)
Vesting
Start Date: _________________, ____
By
signing this cover sheet, you agree to all of the terms and conditions described
in the attached Agreement and in the Plan, a copy of which is also attached.
You
acknowledge that you have carefully reviewed the Plan, and agree that the Plan
will control in the event any provision of this Agreement should appear to
be
inconsistent with the Plan. Certain capitalized terms used in this Agreement
are
defined in the Plan, and have the meaning set forth in the
Plan.
Optionee:
(Signature)
Company:
(Signature)
Title:
This
is
not a stock certificate or a negotiable instrument.
H2DIESEL
HOLDINGS, INC.
2007
OMNIBUS INCENTIVE PLAN
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Incentive
Stock Option
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This
option is intended to be an incentive stock option under Section
422 of
the Internal Revenue Code and will be interpreted accordingly. If
you
cease to be an employee of the Company, its parent or a subsidiary
("Employee") but continue to provide Service, this option will be
deemed a
nonstatutory stock option three months after you cease to be an Employee.
In addition, to the extent that all or part of this option exceeds
the
$100,000 rule of section 422(d) of the Internal Revenue Code, this
option
or the lesser excess part will be deemed to be a nonstatutory stock
option.
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Vesting
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This
option is only exercisable before it expires and then only with respect
to
the vested portion of the option. Subject to the preceding sentence,
you
may exercise this option, in whole or in part, to purchase a whole
number
of vested shares not less than 100 shares, unless the number of shares
purchased is the total number available for purchase under the option,
by
following the procedures set forth in the Plan and below in this
Agreement.
[Your
right to the Stock under this Restricted Stock Agreement vests as
to
one-third (1/3rd) of the total number of shares of Stock covered
by this
grant, as shown on the cover sheet, on the first anniversary of the
Vesting Date, provided you then continue in Service. Thereafter,
you will
vest in equal installments every month for the following 24 months.
The
resulting aggregate number of vested shares will be rounded down
to the
nearest whole number, and you cannot vest in more than the number
of
shares covered by this option.]
No
additional shares of Stock will vest after your Service has terminated
for
any reason.
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Term
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Your
option will expire in any event at the close of business at Company
headquarters on the day before the 10th anniversary of the Grant
Date, as
shown on the cover sheet. Your option will expire earlier if your
Service
terminates, as described below.
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Regular
Termination
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If
your Service terminates for any reason, other than death, Disability
or
Cause, then your option will expire at the close of business at Company
headquarters on the 90th day after your termination
date.
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Termination
for Cause
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If
your Service is terminated for Cause, then you shall immediately
forfeit
all rights to your option and the option shall immediately expire.
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2
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Death
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If
your Service terminates because of your death, then your option will
expire at the close of business at Company headquarters on the date
twelve
(12) months after the date of death. During that twelve month period,
your
estate or heirs may exercise the vested portion of your
option.
In
addition, if you die during the 90-day period described in connection
with
a regular termination (i.e., a termination of your Service not on
account
of your death, Disability or Cause), and a vested portion of your
option
has not yet been exercised, then your option will instead expire
on the
date twelve (12) months after your termination date. In such a case,
during the period following your death up to the date twelve (12)
months
after your termination date, your estate or heirs may exercise the
vested
portion of your option.
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Disability
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If
your Service terminates because of your Disability, then your option
will
expire at the close of business at Company headquarters on the date
twelve
(12) months after your termination date.
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Leaves
of Absence
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For
purposes of this option, your Service does not terminate when you
go on a
bona
fide
employee leave of absence that was approved by the Company in writing,
if
the terms of the leave provide for continued Service crediting, or
when
continued Service crediting is required by applicable law. However,
your
Service will be treated as terminating 90 days after you went on
employee
leave, unless your right to return to active work is guaranteed by
law or
by a contract. Your Service terminates in any event when the approved
leave ends unless you immediately return to active employee
work.
The
Company determines, in its sole discretion, which leaves count for
this
purpose, and when your Service terminates for all purposes under
the
Plan.
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Notice
of Exercise
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When
you wish to exercise this option, you must notify the Company by
filing
the proper “Notice of Exercise” form at the address given on the form.
Your notice must specify how many shares you wish to purchase (in
a parcel
of at least 100 shares generally). Your notice must also specify
how your
shares of Stock should be registered (e.g. in your name only or in
your
and your spouse’s names as joint tenants with right of survivorship). The
notice will be effective when it is received by the Company.
If
someone else wants to exercise this option after your death, that
person
must prove to the Company’s satisfaction that he or she is entitled to do
so.
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3
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Form
of Payment
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When
you submit your notice of exercise, you must include payment of the
option
price for the shares you are purchasing. Payment may be made in one
(or a
combination) of the following forms:
· Cash,
your personal check, a cashier’s check, a money order or another cash
equivalent acceptable to the Company.
· Shares
of Stock which have already been owned by you and which are surrendered
to
the Company. The value of the shares, determined as of the effective
date
of the option exercise, will be applied to the option price.
· By
delivery (on a form prescribed by the Company) of an irrevocable
direction
to a licensed securities broker acceptable to the Company to sell
Stock
and to deliver all or part of the sale proceeds to the Company in
payment
of the aggregate option price and any withholding
taxes.
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Withholding
Taxes
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You
will not be allowed to exercise this option unless you make acceptable
arrangements to pay any withholding or other taxes that may be due
as a
result of the option exercise or sale of Stock acquired under this
option.
In the event that the Company determines that any federal, state,
local or
foreign tax or withholding payment is required relating to the exercise
or
sale of shares arising from this grant, the Company shall have the
right
to require such payments from you, or withhold such amounts from
other
payments due to you from the Company or any Affiliate. Subject to
the
prior approval of the Company, which may be withheld by the Company,
in
its sole discretion, you may elect to satisfy this withholding obligation,
in whole or in part, by causing the Company to withhold shares of
Stock
otherwise issuable to you or by delivering to the Company shares
of Stock
already owned by you. The shares of Stock so delivered or withheld
must
have an aggregate Fair Market Value equal to the withholding obligation
and may not be subject to any repurchase, forfeiture, unfulfilled
vesting,
or other similar requirements.
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Corporate
Transaction
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Notwithstanding
the vesting schedule set forth above, upon the consummation of a
Corporate
Transaction, this option will become 100% vested (i) if it is not
assumed,
or equivalent options are not substituted for the options, by the
Company
or its successor, or (ii) upon your Involuntary Termination within
the
12-month period following the consummation of the Corporate Transaction.
Notwithstanding any other provision in this agreement, if assumed
or
substituted for, the option will expire one year after the date of
termination.
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“Involuntary
Termination” means termination of your Service by reason of (i) your
involuntary dismissal by the Company or its successor for reasons
other
than Cause; or (ii) your voluntary resignation for Good Reason as
defined
in any applicable employment or severance agreement, plan, or arrangement
between you and the Company, or if none, then as set forth in the
Plan
following (x) a
substantial adverse alteration in your title or responsibilities
from those in effect immediately prior to the Corporate Transaction;
(y) a
reduction in your annual base salary as
of immediately prior to the Corporate Transaction (or as the same
may be
increased from time to time)
or
a material reduction in your annual target bonus opportunity as of
immediately prior to the Corporate Transaction;
or (z) the relocation of your principal place of employment to a
location
more than 35 miles from your principal place of employment as of
the
Corporate Transaction or the Company's requiring you to be based
anywhere
other than such principal place of employment (or permitted relocation
thereof) except for required travel on the Company's business to
an extent
substantially consistent with your business travel obligations as
of
immediately prior to the Corporate Transaction.
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Transfer
of Option
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During
your lifetime, only you (or, in the event of your legal incapacity
or
incompetency, your guardian or legal representative) may exercise
the
option. You cannot transfer or assign this option. For instance,
you may
not sell this option or use it as security for a loan. If you attempt
to
do any of these things, this option will immediately become invalid.
You
may, however, dispose of this option in your will or it may be transferred
upon your death by the laws of descent and distribution.
Regardless
of any marital property settlement agreement, the Company is not
obligated
to honor a notice of exercise from your spouse, nor is the Company
obligated to recognize your spouse’s interest in your option in any other
way.
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Retention
Rights
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Neither
your option nor this Agreement give you the right to be retained
by the
Company (or any Parent, Subsidiaries or Affiliates) in any capacity.
The
Company (and any Parent, Subsidiaries or Affiliates) reserve the
right to
terminate your Service at any time and for any reason.
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Shareholder
Rights
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You,
or your estate or heirs, have no rights as a shareholder of the Company
until a certificate for your option’s shares has been issued (or an
appropriate book entry has been made). No adjustments are made for
dividends or other rights if the applicable record date occurs before
your
stock certificate is issued (or an appropriate book entry has been
made),
except as described in the Plan.
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5
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[Forfeiture
of Rights
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If
during your term of Service you should take actions in competition
with
the Company, the Company shall have the right to cause a forfeiture
of
your rights, including, but not limited to, the right to cause: (i) a
forfeiture of any outstanding option, and (ii) with respect to the
period commencing twelve (12) months prior to your termination of
Service
with the Company and ending twelve (12) months following such termination
of Service (A) a forfeiture of any gain recognized by you upon the
exercise of an option or (B) a forfeiture of any Stock acquired by
you
upon the exercise of an option (but the Company will pay you the
option
price without interest). Unless otherwise specified in an employment
or
other agreement between the Company and you, you take actions in
competition with the Company if you directly or indirectly, own,
manage,
operate, join or control, or participate in the ownership, management,
operation or control of, or are a proprietor, director, officer,
stockholder, member, partner or an employee or agent of, or a consultant
to any business, firm, corporation, partnership or other entity which
competes with any business in which the Company or any of its Affiliates
is engaged during your employment or other relationship with the
Company
or its Affiliates or at the time of your termination of Service.
Under the
prior sentence, ownership of less than 1% of the securities of a
public
company shall not be treated as an action in competition with the
Company.]
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Adjustments
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In
the event of a stock split, a stock dividend or a similar change
in the
Stock, the number of shares covered by this option and the option
price
per share shall be adjusted (and rounded down to the nearest whole
number)
pursuant to the Plan. Your option shall be subject to the terms of
the
agreement of merger, liquidation or reorganization in the event the
Company is subject to such corporate activity in accordance with
the terms
of the Plan.
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Applicable
Law
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This
Agreement will be interpreted and enforced under the laws of the
State of
Florida, other than any conflicts or choice of law rule or principle
that
might otherwise refer construction or interpretation of this Agreement
to
the substantive law of another jurisdiction.
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The
Plan
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The
text of the Plan is incorporated in this Agreement by reference.
This
Agreement and the Plan constitute the entire understanding between
you and
the Company regarding this option. Any prior agreements, commitments
or
negotiations concerning this option are
superseded.
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Data
Privacy
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In
order to administer the Plan, the Company may process personal data
about
you. Such data includes but is not limited to the information provided
in
this Agreement and any changes thereto, other appropriate personal
and
financial data about you such as home address and business addresses
and
other contact information, payroll information and any other information
that might be deemed appropriate by the Company to facilitate the
administration of the Plan.
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By
accepting this option, you give explicit consent to the Company to
process
any such personal data. You also give explicit consent to the Company
to
transfer any such personal data outside the country in which you
work or
are employed, including, with respect to non-U.S. resident Optionees,
to
the United States, to transferees who shall include the Company and
other
persons who are designated by the Company to administer the
Plan.
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Consent
to Electronic Delivery
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The
Company may choose to deliver certain statutory materials relating
to the
Plan in electronic form. By accepting this option grant you agree
that the
Company may deliver the Plan prospectus and the Company’s annual report to
you in an electronic format. If at any time you would prefer to receive
paper copies of these documents, as you are entitled to, the Company
would
be pleased to provide copies. Please contact [
]
at
[ ]
to
request paper copies of these documents.
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Certain
Dispositions
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If
you sell or otherwise dispose of Stock acquired pursuant to the exercise
of this option sooner than the one year anniversary of the date you
acquired the Stock, then you agree to notify the Company in writing
of the
date of sale or disposition, the number of share of Stock sold or
disposed
of and the sale price per share within 30 days of such sale or
disposition.
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By
signing the cover sheet of this Agreement, you agree to all of the terms and
conditions
described above and in the Plan.
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