BRUKER ENERGY & SUPERCON TECHNOLOGIES, INC. STOCK OPTION AGREEMENT UNDER 2009 STOCK OPTION PLAN
Exhibit 10.36
BRUKER ENERGY & SUPERCON TECHNOLOGIES, INC.
UNDER 2009 STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION
AGREEMENT entered into [Enter Date] by and between Bruker Energy & Supercon Technologies, Inc., a Delaware corporation with a principal place of business in Billerica, Massachusetts (the “Company”), and the undersigned (the “Optionee”) employee, officer, director, consultant or advisor of the Company or one of its subsidiaries (the Company and its subsidiaries herein together referred to as the “Company”).
1. The Company desires to grant the Optionee a non-qualified stock option under the Company’s 2009 Stock Option Plan (the “Plan”) to acquire shares of the Company’s common stock, $.01 par value per share (the “Shares”).
2. Section 6 of the Plan provides that each option is to be evidenced by an option agreement, setting forth the terms and conditions of the option.
ACCORDINGLY, in consideration of the premises and of the mutual covenants and agreements contained herein, the Company and the Optionee hereby agree as follows:
1. Grant of Option. The Company hereby irrevocably grants under the Plan and subject to the terms and conditions of the Plan to the Optionee a non-qualified stock option (the “Option”) to purchase all or any part of an aggregate of Shares on the terms and conditions hereinafter set forth. This option shall not be treated as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
2. Purchase Price. The purchase price (“Purchase Price”) for the Shares covered by the Option shall be $ per Share.
3. Time of Exercise of Option.
(a) The Option shall not be exerciseable prior to (1) year from grant. Thereafter, the Option shall only be exercisable as follows:
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Percentage of |
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Shares Becoming |
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Cumulative |
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Available for |
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Percentage |
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On or After |
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Exercise |
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Available |
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12 months |
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20 |
% |
20 |
% |
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24 months |
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20 |
% |
40 |
% |
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36 months |
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20 |
% |
60 |
% |
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48 months |
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20 |
% |
80 |
% |
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60 months |
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20 |
% |
100 |
% |
4. Term of Options; Exercisability.
(a) The Option shall expire not more than ten (10) years from the date of the granting thereof, but shall be subject to earlier termination as herein provided.
(b) The Option shall cease to vest as of the last day the Optionee ceases to have, for any reason whatsoever, the same relationship with the Company which was in existence on the date the Option was granted.
(c) Except as otherwise provided in this Section 4, if the Optionee ceases to have the same relationship with the Company which was in existence on the date the Option was granted, the Optionee’s ability to exercise the Option shall terminate as of the date the Optionee ceases to have such relationship with the Company, or on the date on which the Option expires by its terms, whichever occurs first, and the Option shall not be exercisable after such date. However, in the event the Optionee is an employee of the Company and is terminated for Cause (as hereinafter defined), the Optionee’s ability to exercise the Option shall terminate on the day the Optionee ceases to be an employee of the Company, or on the date on which the Option expires by its terms, whichever occurs first, and the Option shall not be exercisable after such date.
(d) As used herein, “Cause” shall mean the Optionee’s commission of a felony or a crime involving moral turpitude, the Optionee breaches any provision of an agreement with the Company, the Optionee shall have repeatedly been absent from work without satisfactory explanation therefor, or the Optionee shall have committed an improper act with respect to, or act of dishonesty against, the Company.
(e) If such termination of relationship is because the Optionee has become permanently disabled (within the meaning of Section 22(e)(3) of the Code), the Option shall terminate sixty (60) days from the date the Optionee ceases to have the same relationship with the Company which was in existence on the date the Option was granted, or on the date on which the Option expires by its terms, whichever occurs first, and the Option shall not be exercisable after such date.
(f) In the event of the death of the Optionee, the Option shall terminate ninety (90) days from the date of death, or on the date on which the Option expires by its terms, whichever occurs first, and the Option shall not be exercisable after such date.
(g) No partial exercise may be made for less than fifty (50) full Shares.
(h) In the event of the death of the Optionee, the Option may be exercised by the estate of the Optionee, or by any person or persons who acquired the right to exercise the Option by will or pursuant to the laws of descent and distribution as a result of the death of the Optionee, subject to Section 4(f) hereof.
5. Manner of Exercise of Option.
(a) To the extent that the right to exercise the Option has accrued and is in effect, the Option may be exercised in full or in part by giving written notice to the Company stating the number of Shares exercised and accompanied by payment in full for such Shares. Payment shall be wholly in cash or check payable to the order of the Company. Upon such exercise, delivery of a certificate for paid-up, non-assessable Shares shall be made at the principal office of the Company to the person exercising the Option, not more than thirty (30) days from the date of receipt of the notice by the Company.
(b) The Company shall at all times during the term of the Option reserve and keep available such number of Shares of its common stock as will be sufficient to satisfy the requirements of the Option. The Optionee shall not have any of the rights of a stockholder of the Company in respect of the Shares until one or more certificates for such Shares shall be delivered to him or her upon the due exercise of the Option.
6. Non-Transferability. The right of the Optionee to exercise the Option shall not be assignable or transferable by the Optionee otherwise than by will or the laws of descent and distribution, and the Option may be exercised during the lifetime of the Optionee only by him or her. The Option shall be null and void and without effect upon the bankruptcy of the Optionee or upon any attempted assignment or transfer, except as hereinabove provided, including without limitation any purported assignment, whether voluntary or by operation of law, pledge, hypothecation or other disposition contrary to the provisions hereof, or levy of execution, attachment, trustee process or similar process, whether legal or equitable, upon the Option.
7. Representation Letter and Investment Legend.
(a) In the event that for any reason the Shares to be issued upon exercise of the Option shall not be effectively registered under the Securities Act of 1933 (the “1933 Act”), upon any date on which the Option is exercised in whole or in part, the person exercising the Option shall give a written representation to the Company in the form attached hereto as Exhibit 1 and the Company shall place an “investment legend”, so-called, as described in Exhibit 1, upon any certificate for the Shares issued by reason of such exercise.
(b) The Company shall be under no obligation to qualify Shares or to cause a registration statement or a post-effective amendment to any registration statement to be prepared for the purposes of covering the issue of Shares.
8. Adjustments on Changes in Recapitalization, Reorganization and the Like. Adjustments on Changes in Recapitalization, Reorganization and the Like shall be made in accordance with Section 12 of the Plan, as in effect on the date of this Agreement.
9. No Special Rights. Nothing contained in the Plan or this Agreement shall be construed or deemed by any person under any circumstances to bind the Company to continue the employment or other relationship of the Optionee for the period within which this Option may be exercised.
10. Rights as a Shareholder. The Optionee shall have no rights as a shareholder with respect to any Shares which may be purchased by exercise of this Option unless and
until a certificate or certificates representing such Shares are duly issued and delivered to the Optionee. Except as otherwise expressly provided in the Plan, no adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued.
11. Withholding Taxes. Whenever Shares are to be issued upon exercise of this Option, the Company shall have the right to require the Optionee to remit to the Company an amount sufficient to satisfy all Federal, foreign, state and local withholding tax requirements prior to the delivery of any certificate or certificates for such Shares.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and its corporate seal to be hereto affixed by its officer thereunto duly authorized, and the Optionee has hereunto set his or her hand and seal, all as of the day and year first above written.
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OPTIONEE |
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BRUKER ENERGY & SUPERCON |
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TECHNOLOGIES, INC. |
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