NEW GENERATION BIOFUELS HOLDINGS, INC.
Option
No.: _______
2007
OMNIBUS INCENTIVE PLAN
New
Generation Biofuels 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.
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 underlying this Option Agreement vests according to
Attachment
A, “Vesting Schedule”, provided you then continue in
Service. 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.
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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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2
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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) if assumed or substituted for, upon your
Involuntary Termination within the 12-month period following the
consummation of the Corporate Transaction.
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3
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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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4
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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.
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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5
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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.
6
Attachment
A
7
