US BIOENERGY CORPORATION STOCK OPTION AWARD TO Gordon W. Ommen
EXHIBIT 99.6
US BIOENERGY CORPORATION
STOCK OPTION AWARD TO
STOCK OPTION AWARD TO
Xxxxxx X. Xxxxx
THIS AGREEMENT is between US BioEnergy Corporation, (the “Company”) and the individual named above
(the “Optionee”). Pursuant to the Company’s 2005 Stock Incentive Plan (the “Plan”), the
Company and the Optionee hereby agree as follows:
| 1. | Grant. The Company grants to the Optionee under the Plan, and the Optionee accepts from the Company, the following Stock Option to purchase the Company’s Class A common stock (“Shares”): |
Date of Grant
|
January 28, 2005 | |
Number of Shares subject to the Stock Option
|
30,000 | |
Exercise Price per Share
|
$1.00 | |
Type of Stock Option
|
Non-qualified | |
Expiration Date of Stock Option
|
January 28, 2012 | |
Time and Amount of Shares Exercisable
|
10,000 on and after January 28, 2006 | |
| 20,000 on and after January 28, 2007 | ||
| 30,000 on and after January 28, 2008 |
| 2. | Incoporation of Plan. This Stock Option consists of this Award page, the separate Terms and Conditions for Stock Option Awards, which contains additional terms governing the acceleration of the exercise and earlier termination of the option. This Award and the Terms and Conditions are subject to the terms and conditions of the Plan and to all interpretations, amendment, rules and regulations established in connection with the Plan. Any capitalized terms shall be as defined in the Plan. In the event of any inconsistency between the Terms and Conditions and the Plan as so interpreted or amended, the Plan will control. |
| US BIOENERGY CORPORATION | ||||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Its: | Vice President | |||||
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ADDITIONAL TERMS AND CONDITIONS
OF NONQUALIFIED OPTIONS UNDER THE
US BIOENERGY CORPORATION 2005 STOCK INCENTIVE PLAN
OF NONQUALIFIED OPTIONS UNDER THE
US BIOENERGY CORPORATION 2005 STOCK INCENTIVE PLAN
1. Active Service. The Optionee must, in the case of an employee, be in the
employ of the Company, or in the case of a non-employee director or Consultant, be obligated to
serve in that capacity on the relevant dates specified in the Award on which the option first
becomes exercisable with respect to the Shares.
2. Change in Control. In the event the Optionee, in the case of an employee,
is in the employ of the Company, or in the case of a non-employee director or Consultant, is
obligated to serve in that capacity, on the effective date of a Change in Control of the Company,
then the Optionee may exercise this Option as to the total number of Shares remaining under this
Option, notwithstanding the installment exercise specified in the Award.
3. Termination of Option. Unless the Committee determines otherwise, the
period of exercise of the vested and exercisable portion of the Award shall end on the earliest of
the Expiration Date specified in the Award or any of the following:
3.1 Disability; death. If the Optionee ceases to be employed by (or in
the case of a non-employee director or Consultant, to render services to) the Company
or any subsidiary, by reason of the Optionee’s death or Disability, the vested
portion of the Award may thereafter be exercised, to the extent it was exercisable at
the time of death or Disability (or on such accelerated basis as the Committee shall
determine at or after grant), by the Optionee (or the legal representative of the
estate or the legatee of the Optionee under the will of the Optionee), but may not be
exercised more than one year after the date of such death or Disability; or
3.2 For Cause or Resignation. If an Optionee’s ceases to be employed by
(or in the case of a non-employee director or Consultant, to render services to) the
Company or any subsidiary and such termination is by the Company for Cause or by the
Optionee, the Award and all rights associated therewith, whether then exercisable or
not, will thereupon terminate immediately; or
3.3 Without Cause. If the Optionee ceases to be employed by (or in the
case of a Consultant, to provide services to) the Company or any subsidiary, and such
termination is by the Company for any reason other than death, Disability or for
Cause, the vested portion of the Award may thereafter be exercised, to the extent it
was exercisable at the time of such termination, for 90 days from the date of such
termination; or
3.4 Change in Control. In the event of a Change in Control of the
Company, on such earlier date as determined by the Committee in accordance with the
terms of the Plan.
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Neither the Plan nor the Award shall confer any right to continued service with the Company,
nor interfere with the right of the Optionee to resign or be removed as an employee, director or
Consultant of the Company.
4. Method of Exercise of Option. Subject to the terms of the Plan,
the option may be exercised in whole or in part by filing a written notice with the Secretary of
the Company at its headquarters prior to the Company’s close of business on the last business day
that occurs prior to the Expiration Date. Such notice shall specify the number of Shares which the
Optionee elects to purchase, and shall be accompanied by payment of the Exercise Price for such
Shares indicated by the election in cash, check or bank draft. The Committee, in its discretion,
may permit the Optionee to pay the Exercise Price by delivery of a promissory note or by delivering
Shares that have been held by the Optionee for at least six months, the Fair Market Value of which
is equal to the Exercise Price. The Option shall not be exercisable if and to the extent the
Company determines that such exercise would violate applicable state or Federal securities laws.
5. Withholding. All transfers and issuances under the Award are subject to
withholding of all applicable taxes if any. The Committee, in its discretion, and subject to such
requirements as the Committee may impose prior to the occurrence of tax withholding pursuant to the
Award, may permit the withholding obligations to be satisfied through cash payment by the Optionee,
through the surrender of Shares which the Optionee already owns, or through the surrender of Shares
to which the Optionee is otherwise entitled under the Plan; provided, however, that such Shares may
be used to satisfy not more than the Company’s minimum statutory withholding obligation (based on
minimum statutory withholding rates for Federal and state tax purposes, including payroll taxes,
that are applicable to such supplemental taxable income).
6. Status and Rights as a Shareholder. Neither the Optionee nor the
Optionee’s executor, administrator, heirs, or legatees, shall be or have any rights or privileges
of a shareholder of the Company in respect of the Shares transferable upon exercise of the Option
granted hereunder, unless the transferee has caused the Optionee’s name to be entered as the
shareholder of record on the books of the Company, and if Shares are in certificate form, such
certificates representing the Shares have been endorsed, transferred and delivered.
7. Limitations on Shares.
As a further condition to the Award and the issuance of Shares to the Optionee
upon exercise of the option, the Optionee agrees to the following:
7.0 Investment Intent.
7.1 Prior to the receipt of the certificates pursuant to the exercise of the
option granted hereunder, the Optionee shall, if required in the Company’s
discretion, demonstrate an intent to hold the Shares acquired by exercise of the
option for investment and not with a view to resale or distribution thereof to the
public, by delivering to the Company an investment certificate or letter in such form
as the Company may require.
7.2 Compliance with Securities Laws. Shares acquired upon exercise of
this Option may not be sold, transferred, pledged or otherwise disposed of unless the
Shares are eligible for resale pursuant to an effective registration under
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the Securities Act of 1933, or unless the Company has received an opinion of
counsel satisfactory to the Company that said registration is not required.
7.3 Lock-Up. In the event the Company advises the Optionee that it
plans an underwritten public offering of its Common Stock in compliance with the
Securities Act of 1933, as amended, and the underwriter(s) seek to impose
restrictions under which certain shareholders may not sell or contract to sell or
grant any option to buy or otherwise dispose of part or all of their stock purchase
rights of the underlying Common Stock, the Optionee will not, for a period not to
exceed 180 days from the effective date of the Company’s registration statement,
sell or contract to sell or grant an option to buy or otherwise dispose of any
shares of Stock acquired pursuant to the exercise of any Stock Option granted to
Optionee pursuant to the Plan or any of the underlying shares of Stock without the
prior written consent of the underwriter(s) or its representative(s).
7.4 Sales by Affiliates. The Optionee will comply with. Rule 145 of the
Securities Act of 1933 and any other restrictions imposed under other applicable
legal or accounting principles if the Optionee is an “affiliate” (as defined in such
applicable legal and accounting principles) at the time of the transaction, and the
Optionee will execute any documents necessary to ensure compliance with such rules.
The Company reserves the right to place a legend on any stock certificate issued upon the exercise
of a Stock Option pursuant to the Plan to assure compliance with this Section 7.
8. Tag Along Rights. If the holders of a majority of the voting
power of the Company’s capital stock desire to, collectively, sell or otherwise dispose of a
majority of the stock having such voting power (a “Sale Transaction”), they may give a notice (the
“Sale Notice”) to all shareholders who have acquired Shares by the exercise of any Stock Option
granted under the Plan. The holders of such Shares shall then be obligated to take, all lawful
action requested by the shareholders giving the Sale Notice to sell or transfer their Shares as a
part of the Sales Transaction for the same price per Share as is received by the shareholders
giving the Sales Notice. The actions requested may include, without limitation, the deposit of
certificates and duly executed stock powers with an escrow agent designated by the shareholders
giving the Sales Notice. The provisions of this Section 8 will terminate upon completion by the
Company of an initial public offering of its stock.
9. Right of Repurchase. In the event of the termination,
of the Optionee’s employment for any reason, the Company may, upon written notice at any time
thereafter, repurchase any Shares acquired by the Optionee pursuant to the exercise of any stock
option and the Optionee must sell any such shares to the Company, with the per Share price being
the Fair Market Value of the Shares as of the date of the termination of the Optionee’s employment,
or, in the case of a termination for Cause, an amount equal to the lesser of Fair Market Value or
the Exercise Price for the Shares. Such payment shall be made in the form of cash or promissory
note payable in no more than five annual installments and bearing a reasonable rate of interest.
The provisions of this Section 9 will terminate upon completion by the Company of an initial public
offering of its stock.
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