Exhibit 10.1.17
BEACON POWER CORPORATION
NON-QUALIFIED OPTION AGREEMENT
GRANTED UNDER SECOND AMENDED AND RESTATED 1998 STOCK INCENTIVE PLAN
This Agreement, dated as of July 24, 2000 (the "GRANT DATE"), is
between Beacon Power Corporation (the "COMPANY") and _____________________ (the
"OPTIONEE"), a consultant, service provider or other independent contractor of
the Company.
1. GRANT OF OPTION. This agreement evidences the grant by the COMPANY to
the Optionee, of an option to purchase, in whole or in part, on the terms
provided herein and in the Company's Second Amended and Restated 1998 Stock
Incentive Plan (the "PLAN"), the shares (the "SHARES") of common stock, $0.01
par value per share, of the Company ("COMMON STOCK") at an exercise price per
share, as set forth below:
SHARES: EXERCISE PRICE:
$ 8.20
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Unless earlier terminated, this option shall expire one day before the
10th anniversary of the Grant Date (the "FINAL EXERCISE DATE"). It is intended
that the option evidenced by this agreement shall be a non-qualified stock
option. Except as otherwise indicated by the context, the term "Optionee", as
used in this option, shall be deemed to include any person who acquires the
right to exercise this option validly under its terms.
2. VESTING SCHEDULE. Subject to the other terms of this Agreement
regarding the exercisability of this option, the shares covered by this
option shall vest and become exercisable as follows: one-half of the shares
covered by this option shall vest and become exercisable on the Grant Date
and the remaining one-half of the shares (the "REMAINING SHARES") covered by
this option shall vest and become exercisable on the first anniversary of the
Grant Date, provided that Optionee has been continuously providing services
to the Company from the Grant Date until the first anniversary of the Grant
Date. Should the Company discontinue accepting the services of the Optionee
at any time prior to the first anniversary of the Grant Date, and if the
Optionee is still providing services at that time, then the Remaining Shares
shall vest and become exercisable at that time.
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NUMBER OF SHARES
DATE
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NEWLY VESTED ON THE INDICATED DATE CUMULATIVE VESTED
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The right of exercise shall be cumulative so that to the extent the
option is not exercised in any period to the maximum extent permissible it shall
continue to be exercisable, in whole or in part, with respect to all shares for
which it is vested until the earlier of the Final Exercise Date or the
termination of this option under this Agreement or the Plan.
3. EXERCISE OF OPTION.
(a) FORM OF EXERCISE. Each election to exercise this option shall be in
writing, signed by the Optionee, and received by the Company at its principal
office, accompanied by a copy of this agreement and by payment in full as
provided below. The Optionee may purchase less than the number of shares covered
hereby, provided that no partial exercise of this option may be for any
fractional share or for fewer than 100 whole shares. Payment shall be as
follows:
(i) in cash or by check, payable to the order of the
Company;
(ii) in the sole discretion of the authorized administrator
of the Plan, (A) delivery of an irrevocable and unconditional undertaking by a
creditworthy broker to deliver promptly to the Company sufficient funds to pay
the exercise price or (B) delivery by the Optionee to the Company of a copy of
irrevocable and unconditional instructions to a creditworthy broker to deliver
promptly to the Company cash or a check sufficient to pay the exercise price;
(iii) at such time as the Common Stock is registered under the
Exchange Act, delivery of shares of Common Stock owned by the Optionee valued at
Fair Market Value, which Common Stock was owned by the Optionee at least six
months prior to such delivery;
(iv) to the extent permitted by the authorized administrator
of the Plan, in its sole discretion, by payment of such other lawful
consideration as the authorized administrator of the Plan may determine; or
(v) any combination of the above permitted forms of payment.
A certificate or certificates for the Common Shares purchased shall be
issued by the Company after the exercise of the option and payment therefor,
including the provision for any federal and state withholding taxes, and other
applicable employment taxes.
(b) TERMINATION OF OPTION UPON TERMINATION OF SERVICE PROVISION, DEATH
OR DISABILITY.
(i) FOR REASONS OTHER THAN BREACH OF CONDUCT, DEATH OR DISABILITY. Upon
the termination of Optionee's service provision to the Company for any reason
OTHER THAN a Breach of Conduct (as defined in subparagraph (iii) below) or death
or disability, any portion of this option that is not vested as described in
Section 2 hereof shall immediately terminate, and any portion that vested before
the service provision termination date shall continue to be exercisable until
the Final Exercise Date.
(ii) DEATH OR DISABILITY. If termination of service provision is by
reason of death or disability, any portion of this option which is not vested
before such termination of service provision shall immediately terminate.
However, no portion of the option is exercisable after the Final Exercise Date.
(iii) BREACH OF CONDUCT. In the event of a Breach of Conduct by
Optionee at any time while providing service to the Company or within two years
after termination of service provision, any portion of this option which has not
been exercised by the time of such Breach, whether or not vested under Section
2, shall immediately terminate upon written declaration by the authorized
administrator of the Plan. Such declaration shall be communicated in writing to
the Optionee. In addition, upon a Breach of Conduct, the Company may, in its
sole discretion, by written notice demand that any or all stock certificates for
Common Shares acquired pursuant to the exercise of this option, or any profit
realized from the sale or transfer of such Common Shares, be returned to the
Company within five (5) days of receipt of such notice, and any exercise price
paid by the Optionee shall be returned to Optionee by the Company immediately
thereafter, without interest. The Company shall be entitled to reimbursement of
reasonable attorney fees and expenses incurred in seeking to enforce its rights
under this paragraph.
"BREACH OF CONDUCT" shall mean activities which constitute a serious
breach of conduct as determined by the authorized administrator of the Plan in
its sole discretion, including, but not limited to: (i) the disclosure or misuse
of confidential information, trade secrets or other intellectual property of the
Company or third parties who have disclosed such information, secrets or
intellectual property to the Company or a company that controls, is controlled
by or is under common control with the Company (collectively, an "AFFILIATE");
(ii) activities in violation of the policies of the Company or any Affiliate,
including without limitation, the Company's xxxxxxx xxxxxxx policy; (iii) the
violation or breach of any material provision in any applicable contract or
agreement between the Optionee and the Company (or an Affiliate), including, for
example, a violation or breach which is grounds for discharge for cause; (iv)
engaging in conduct relating to the Optionee's service provision for which
either criminal or civil
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penalties have been sought; (v) engaging in activities which adversely affect or
which are contrary or harmful to the interests of the Company or Affiliate, or
(vi) in the event that the Optionee and Company have not signed a noncompetition
agreement (which therefore otherwise would govern issues of noncompetition),
engaging in competition with the Company or any Affiliate during service
provision or within one (1) year following termination of service provision to
the Company or Affiliate. The determination of Breach of Conduct shall be
determined by the authorized administrator of the Plan in good faith and in its
sole discretion.
4. RIGHT OF FIRST REFUSAL.
(a) If the Optionee proposes to sell, assign, transfer, pledge,
hypothecate or otherwise dispose of, by operation of law or otherwise
(collectively, "TRANSFER") any Shares acquired upon exercise of this option,
then the Optionee shall first give written notice of the proposed transfer (the
"TRANSFER NOTICE") to the Company. The Transfer Notice shall name the proposed
transferee and state the number of such Shares the Optionee proposes to transfer
(the "OFFERED SHARES"), the price per share and all other material terms and
conditions of the transfer.
(b) For 30 days following its receipt of such Transfer Notice, the
Company shall have the option to purchase all (but not less than all) of the
Offered Shares at the price and upon the terms set forth in the Transfer Notice.
In the event the Company elects to purchase all of the Offered Shares, it shall
give written notice of such election to the Optionee within such 30-day period.
Within 10 days after his receipt of such notice, the Optionee shall tender to
the Company at its principal offices the certificate or certificates
representing the Offered Shares, duly endorsed in blank by the Optionee or with
duly endorsed stock powers attached thereto, all in a form suitable for transfer
of the Offered Shares to the Company. Upon receipt of such certificate or
certificates, the Company shall deliver or mail to the Optionee a check in
payment of the purchase price for the Offered Shares; PROVIDED THAT if the terms
of payment set forth in the Transfer Notice were other than cash against
delivery, the Company may pay for the Offered Shares on the same terms and
conditions as were set forth in the Transfer Notice.
(c) At and after the time at which the Offered Shares are required to
be delivered to the Company for transfer to the Company pursuant to subsection
(b) above, the Company shall not pay any dividend to the Optionee on account of
such Shares or permit the Optionee to exercise any of the privileges or rights
of a stockholder with respect to such Offered Shares, but shall, in so far as
permitted by law, treat the Company as the owner of such Offered Shares.
(d) If the Company does not elect to acquire all of the Offered Shares,
the Optionee may, within the 30-day period following the expiration of the
option granted to the Company under subsection (b) above, transfer the Offered
Shares to the proposed transferee, PROVIDED THAT such transfer shall not be on
terms and conditions more favorable to the transferee than those contained in
the Transfer Notice. Notwithstanding any of the above, all Offered Shares
transferred pursuant to this Section 4 shall remain subject to the right of
first refusal set forth in this Section 4 and such transferee shall, as a
condition to such transfer, deliver to the Company a written instrument
confirming that such transferee shall be bound by all of the terms and
conditions of this Section 4.
(e) The following transactions shall be exempt from the provisions of
this Section 4:
(1) any transfer of Shares to or for the benefit of any
spouse, child or grandchild of the Optionee, or to a
trust for their benefit;
(2) any transfer pursuant to an effective registration
statement filed by the Company under the Securities
Act of 1933, as amended (the "Securities Act"); and
(3) any transfer of the Shares pursuant to the sale of
all or substantially all of the business of the
Company;
PROVIDED HOWEVER, that in the case of a transfer pursuant to clause (1) above,
such Shares shall remain subject to the right of first refusal set forth in this
Section 4 and such transferee shall, as a condition to such transfer, deliver to
the
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Company a written instrument confirming that such transferee shall be bound by
all of the terms and conditions of this Section 4.
(f) The Company may assign its rights to purchase Offered Shares in any
particular transaction under this Section 4 to one or more persons or entities.
(g) The provisions of this Section 4 shall terminate upon the earlier
of the following events.
(1) the closing of the sale of shares of Common Stock in an
underwritten public offering pursuant to an effective registration statement
filed by the Company under the Securities Act; or
(2) the sale of all or substantially all of the capital
stock, assets or business of the Company, by merger, consolidation, sale of
assets or otherwise.
(h) The Company shall not be required (i) to transfer on its books any
of the Shares which shall have been sold or transferred in violation of any of
the provisions set forth in this Section 4, or (ii) to treat as owner of such
Shares or to pay dividends to any, transferee to whom any such Shares shall have
been so sold or transferred.
5. AGREEMENT IN CONNECTION WITH PUBLIC OFFERING. The Optionee agrees, in
connection with the initial underwritten public offering of the Company's
securities pursuant to a registration statement under the Securities Act, (a)
not to sell, make short sale of, loan, grant any options for the purchase of, or
otherwise dispose of any shares of Common Stock held by the Optionee (other than
those shares included in the offering) without the prior written consent of the
Company or the underwriters managing such initial underwritten public offering
of the Company's securities for a period of 180 days from the effective date of
such registration statement, and (b) to execute any agreement reflecting clause
(a) above as may be requested by the Company or the managing underwriters at the
time of such offering.
6. WITHHOLDING. No Shares will be issued pursuant to the exercise of this
option unless and until the Optionee pays to the Company, or makes provision
satisfactory to the Company for payment of, any federal, state or local
withholding taxes required by law to be withheld in respect of this option.
7. NONTRANSFERABILITY OF OPTION. This option may not be sold, assigned,
transferred, pledged or otherwise encumbered by the Optionee, either voluntarily
or by operation of law, except by will or the laws of descent and distribution,
and, during the lifetime of the Optionee, this option shall be exercisable only
by the Optionee.
8. PROVISIONS OF THE PLAN. This option is subject to the provisions of
the Plan, a copy of which Optionee hereby acknowledges receiving with this
option.
9. NO RIGHT TO CONTINUED EMPLOYMENT. This option shall not confer upon the
Optionee any right with respect to continuance of service provision to the
Company, nor shall it interfere in any way with the right of the Company to
terminate the Optionee's service provision at any time.
10. COMPLIANCE WITH LAW AND REGULATIONS. This option and the obligation of
the Company to sell and deliver shares hereunder shall be subject to all
applicable federal and state laws, rules and regulations and to such approvals
by any government or regulatory agency as may be required. The Company shall not
be required to issue or deliver any certificates for Common Shares prior to (a)
the listing of such Common Shares on any stock exchange on which the Common
Shares may then be listed, and (b) the completion of any registration or
qualification of such Common Shares under any federal or state law, or any rule
or regulation of any government body which the Company shall, in its sole
discretion, determine to be necessary or advisable. Moreover, this option may
not be exercised if its exercise, or the receipt of Common Shares pursuant
thereto, would be contrary to applicable law.
11. NOTICES. Any notice hereunder to the Company shall be addressed to it
at its principal business office, 0X Xxxx Xxxxxx Xxxxxx, XX 00000, and any
notice hereunder to the Optionee shall be sent to the address reflected on
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the payroll records of the Company, subject to the right of either party to
designate at any time hereafter in writing some other address.
12. DELAWARE LAW TO GOVERN. This Agreement shall be construed and
administered in accordance with and governed by the laws of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as a
sealed instrument, as of the date first set forth above.
OPTIONEE: BEACON POWER CORPORATION
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SIGNATURE BY:
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SIGNATURE
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ADDRESS PRINT NAME, TITLE
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List of Beacon Power Corporation issues to consultants under
Non-Qualified Option Agreement.
Number of Shares Underlying
Name Option
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Xxx Xxxxxx 30,000
Xxxx Xxxxxxx 15,000
Reciprocal Designs 5,000
Xxxxxxx-Xxxxxx 30,000
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