EXHIBIT 10.5
ABLE ENERGY, INC.
FORM OF STOCK AWARD AGREEMENT
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THIS STOCK AWARD 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 employee, director or consultant of the
Company named in Section 1(b). ("GRANTEE"):
In consideration of the covenants herein set forth, the parties hereto
agree as follows:
1. STOCK AWARD INFORMATION.
(a) Date of Award: ____________________
(b) Grantee: ____________________
(c) Number of Shares: ____________________
(d) Original Value: ____________________
2. ACKNOWLEDGEMENTS.
(a) Grantee is a [EMPLOYEE/DIRECTOR/CONSULTANT] of
the Company.
(b) The Company has adopted a 2005 Incentive Stock
Plan (the "PLAN") under which the Company's common stock ("Stock") may
be offered to directors, officers, employees and consultants 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; VALUE. The Company hereby grants to Grantee, upon and
subject to the terms and conditions herein stated, the number of shares of Stock
set forth in Section 1(c) (the "SHARES"), which Shares have a fair value per
share ("ORIGINAL VALUE") equal to the amount set forth in Section 1(d). For the
purpose of this Agreement, the terms "SHARE" or "SHARES" shall include the
original Shares plus any shares derived therefrom, regardless of the fact that
the number, attributes or par value of such Shares may have been altered by
reason of any recapitalization, subdivision, consolidation, stock dividend or
amendment of the corporate charter of the Company. The number of Shares covered
by this Agreement and the Original Value thereof shall be proportionately
adjusted for any increase or decrease in the number of issued shares resulting
from a recapitalization, 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.
4. INVESTMENT INTENT. Grantee represents and agrees that Grantee is
accepting the Shares for the purpose of investment and not with a view to, or
for resale in connection with, any distribution thereof; and that, if requested,
Grantee shall furnish to the Company a written statement to such effect,
satisfactory to the Company in form and substance. If the Shares are registered
under the Securities Act, Grantee shall be relieved of the foregoing
investment representation and agreement and shall not be required to furnish the
Company with the foregoing written statement.
5. RESTRICTION UPON TRANSFER. The Shares may not be sold,
transferred or otherwise disposed of and shall not be pledged or otherwise
hypothecated by the Grantee except as hereinafter provided.
(a) REPURCHASE RIGHT ON TERMINATION OTHER THAN FOR
CAUSE. For the purposes of this Section, a "REPURCHASE EVENT" shall mean
an occurrence of one of (i) termination of Grantee's employment [OR
SERVICE AS A DIRECTOR/CONSULTANT] by the Company, voluntary or
involuntary and with or without cause; (ii) retirement or death of
Grantee; (iii) bankruptcy of Grantee, 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 Grantee, to the extent that any of the
Shares are allocated as the sole and separate property of Grantee's
spouse pursuant thereto (in which case, this Section shall only apply to
the Shares so affected); or (v) any attempted transfer by the Grantee of
Shares, or any interest therein, in violation of this Agreement. Upon
the occurrence of a Repurchase Event, the Company shall have the right
(but NOT an obligation) to purchase all or any portion of the Shares of
Grantee, at a price equal to the fair value of the Shares as of the date
of the Repurchase Event.
(b) REPURCHASE RIGHT ON TERMINATION FOR CAUSE. In
the event Grantee's employment [OR SERVICE AS A DIRECTOR/CONSULTANT] is
terminated by the Company "FOR CAUSE" (as defined below), then the
Company shall have the right (but not an obligation) to purchase Shares
of Grantee at a price equal to the Original Value. Such right of the
Company to purchase Shares shall apply to 100% of the Shares for one (1)
year from the date of this Agreement; and shall thereafter lapse at the
rate of twenty percent (20%) of the Shares on each anniversary of the
date of this Agreement. In addition, the Company shall have the right,
in the sole discretion of the Board and without obligation, to
repurchase upon termination for cause all or any portion of the Shares
of Grantee, at a price equal to the fair value of the Shares as of the
date of termination, which right is not subject to the foregoing lapsing
of rights. Termination of employment [OR SERVICE AS A
DIRECTOR/CONSULTANT] "FOR CAUSE" means (i) as to employees or
consultants, termination for cause as contemplated by Title 53 of the
Delaware Revised Statutes and case law related thereto, or as defined in
the Plan, this Agreement or in any employment [OR CONSULTING] agreement
between the Company and Grantee, or (ii) as to directors, removal
pursuant to the Delaware corporation law. In the event the Company
elects to purchase 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 4(a) or 4(b) shall be exercised by giving notice
of exercise as provided herein to Grantee or the estate of Grantee, 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 Grantee 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 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 5.
(d) RIGHT OF FIRST REFUSAL. In the event Grantee
desires to transfer any Shares during his or her lifetime, Grantee shall
first offer to sell such Shares to the Company. Grantee 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 Grantee 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, Grantee 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 Grantee
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 Grantee's agreement to such restrictions and
the legending of his certificates with respect thereto. Notwithstanding
such restrictions, however, so long as the Grantee 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 5 to the contrary, the Grantee may transfer
Shares subject to this Agreement to his or her parents, spouse,
children, or grandchildren, or a trust for the benefit of the Grantee 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 Grantee herein shall in such cases refer mutatis
mutandis to the permitted transferee, except in the case of clause (iv)
of Section 5(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 Grantee and
the Company.
6. REPRESENTATIONS AND WARRANTIES OF THE GRANTEE. This Agreement
and the issuance and grant of the Shares hereunder is made by the Company in
reliance upon the express representations and warranties of the Grantee, which
by acceptance hereof the Grantee confirms that:
(a) The Shares granted to him pursuant to this
Agreement are being acquired by him for his 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 Act by reason of a specific exemption from the
registration provisions of the Act which depends, among other things,
upon the bona fide nature of his representations as expressed herein;
(b) The Shares must be held by him indefinitely
unless they are subsequently registered under the 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
(c) Grantee further represents that Grantee 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,
(d) Unless and until the Shares represented by this
Grant 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 STOCK AWARD 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.
(e) Grantee understands that he or she 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,
as of the date of grant, exceeds the price paid by Grantee, if any. The
acceptance of the Shares by Grantee shall constitute an agreement by
Grantee to report such income in accordance with then applicable law.
Withholding for federal or state income and employment tax purposes will
be made, if and as required by law, from Grantee's then current
compensation, or, if such current compensation is insufficient to
satisfy withholding tax liability, the Company may require Grantee to
make a cash payment to cover such liability.
7. STAND-OFF AGREEMENT. Grantee 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, Grantee 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. This Section 8
shall survive any termination of this Agreement.
8. TERMINATION OF AGREEMENT. This Agreement shall terminate on the
occurrence of any one of the following events: (a) written agreement of all
parties to that effect; (b) 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 of the Company; (c)
the closing of any public offering of common stock of the Company pursuant to an
effective registration statement under the Securities Act; or (d) dissolution,
bankruptcy, or insolvency of the Company.
9. AGREEMENT SUBJECT TO PLAN; APPLICABLE LAW. This Grant is made
pursuant to the Plan and shall be interpreted to comply therewith. A copy of
such Plan is available to Grantee, at no charge, at the principal office of the
Company. Any provision of this Agreement inconsistent with the Plan shall be
considered void and replaced with the applicable provision of the Plan. This
Grant shall be governed by the laws of the State of Delaware and subject to the
exclusive jurisdiction of the courts therein.
10. MISCELLANEOUS.
(a) NOTICES. Any notice required to be given
pursuant to this Agreement or the Plan shall be in writing and shall be
deemed to have been duly 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 Grantee at the last address provided by
Grantee for use in the Company's records.
(b) ENTIRE AGREEMENT. This instrument constitutes
the sole agreement of the parties hereto with respect to the Shares. Any
prior agreements, promises or representations concerning the Shares not
included or reference herein shall be of no force or effect. This
Agreement shall be binding on, and shall inure to the benefit of, the
Parties hereto and their respective transferees, heirs, legal
representatives, successors, and assigns.
(c) ENFORCEMENT. This Agreement shall be construed
in accordance with, and governed by, the laws of the State of Delaware
and subject to the exclusive jurisdiction of the courts located in St.
Xxxxx County, State of Delaware. If Grantee attempts to transfer any of
the Shares subject to this Agreement, or any interest in them in
violation of the terms of this Agreement, the Company may apply to any
court for an injunctive order prohibiting such proposed transaction, and
the Company may institute and maintain proceedings against Grantee to
compel specific performance of this Agreement without the necessity of
proving the existence or extent of any damages to the Company. Any such
attempted transaction shares in violation of this Agreement shall be
null and void.
(d) VALIDITY OF AGREEMENT. The provisions of this
Agreement may be waived, altered, amended, or repealed, in whole or in
part, only on the written consent of all parties hereto. It is intended
that each Section of this Agreement shall be viewed as separate and
divisible, and in the event that any Section shall be held to be
invalid, the remaining Sections shall continue to be in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY: ABLE ENERGY, INC.,
a Delaware corporation
By:____________________________
Name:__________________________
Title:_________________________
GRANTEE:
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 of
hereof I am unmarried Grantee hereby agrees to be bound by
the provisions of the foregoing STOCK
AWARD AGREEMENT
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Grantee Spouse of Grantee
