Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
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3: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 157K
13: EX-10.10 Material Contract HTML 541K
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NOBLE
ENVIRONMENTAL POWER, INC. 2008 INCENTIVE AWARD PLAN
STOCK
OPTION GRANT NOTICE AND
STOCK OPTION AGREEMENT
Noble Environmental Power, Inc.,
a Delaware corporation (the “Company”), pursuant
to its 2008 Incentive Award Plan (the “Plan”), hereby
grants to the holder listed below (“Participant”), an
option to purchase the number of shares of the Company’s common stock, par
value $0.01 (“Stock”), set forth below (the
“Option”). This
Option is subject to all of the terms and conditions set forth herein and in
the Stock Option Agreement attached hereto as Exhibit A (the “Stock Option Agreement”) and the
Plan, which are incorporated herein by reference. Unless otherwise defined herein, the terms
defined in the Plan shall have the same defined meanings in this Grant Notice
and the Stock Option Agreement.
Participant:
Grant
Date:
Exercise
Price per Share:
$
Total
Exercise Price:
$
Total
Number of Shares
Subject to the Option:
shares
Expiration
Date:
[Insert Date that is Seven (7) Years From
Grant Date]
Type
of Option:
o Incentive Stock Option x Non-Qualified Stock Option
Vesting
Schedule:
Subject
to Section 3 of the Stock Option Agreement, and provided that the
Participant remains continuously in service as an Employee from the Grant
Date to the relevant date set forth below:
By his or her signature, the
Participant agrees to be bound by the terms and conditions of the Plan, the
Stock Option Agreement and this Grant Notice.
The Participant has reviewed the Stock Option Agreement, the Plan and
this Grant Notice in their entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Grant Notice and fully understands
all provisions of this Grant Notice, the Stock Option Agreement and the
Plan. Participant hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the
Committee upon any questions arising under the Plan or relating to the Option.
NOBLE ENVIRONMENTAL POWER, INC.
PARTICIPANT
By:
By:
Print
Name:
Print
Name:
Title:
Address:
Address:
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EXHIBIT
A
TO STOCK OPTION GRANT NOTICE
STOCK OPTION AGREEMENT
Pursuant to the Stock Option
Grant Notice (the “Grant Notice”) to which
this Stock Option Agreement (this “Agreement”) is attached,
Noble Environmental Power, Inc., a Delaware corporation (the “Company”), has granted to the Participant an
option under the Company’s 2008 Incentive Award Plan (the “Plan”) to
purchase the number of shares of Stock indicated in the Grant Notice.
ARTICLE
I.
GENERAL
1.1 Defined
Terms. Wherever the following terms
are used in this Agreement they shall have the meanings specified below, unless
the context clearly indicates otherwise.
Capitalized terms not specifically defined herein shall have the
meanings specified in the Plan and the Grant Notice.
(a) “Administrator” shall mean the Board
or the Committee responsible for conducting the general administration of the
Plan in accordance with Article 12 of the Plan.
(b) [Intentionally Omitted.]
(c) “Cause”shall
mean (i) Participant’s failure to substantially perform his or her duties as an
Employee, which failure is not remedied by the Participant within thirty (30)
days after receiving written notice from the Board specifying such failure; (ii) the
engagement by Participant in misconduct in the performance of his or her duties
as an Employee, which misconduct is materially injurious to the Company or any
of its Subsidiaries; (iii) the Participant admitting to, the Participant
being convicted of, the Participant entering of a plea of guilty or nolo contendere to, or the Participant
being indicted for, any felony or crime involving moral turpitude; (iv) the
Participant committing any act of fraud or dishonesty in connection with the
performance of his or her duties as an Employee or in the course of Participant’s
employment with the Company, which act is materially injurious to the Company
or any of its Subsidiaries; (v) the Participant using narcotics, alcohol,
or illicit drugs in a manner that has or may reasonably be expected to have a
detrimental effect on the performance by the Participant of his or her duties
as an Employee or on the reputation of the Company or any of its Subsidiaries;
or (vi) the Participant committing a material violation of any policy
sponsored by the Company or any of its Subsidiaries which results in injury to
the Company or any of its Subsidiaries.
Notwithstanding the foregoing: (X) if
the Participant is party to a written change in control severance agreement
with the Company (or its Subsidiary) which defines cause, then, during the
period of time beginning on the date of the Change in Control and ending twelve
(12) months thereafter (the “Severance Period”), “Cause” shall be
as such term is defined in the written change in control severance agreement,
provided that the written change in control severance agreement is in effect
during the Severance Period; (Y) if the Participant is party to a written
employment agreement with the Company (or its Subsidiary) which defines cause,
then for all periods of time in which the written change in control severance
agreement is not in effect and for all periods of time in which the written
change in control severance agreement is in effect other than the Severance
Period, “Cause” shall be as such term is defined in the written
employment agreement. For the avoidance
of doubt, if the Participant is party to a written change in control severance
agreement with the Company (or its Subsidiary) which defines cause, but is not
party to a written employment agreement with the Company (or its Subsidiary)
which defines cause,
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then,
for all periods of time in which the written change in control severance
agreement is not in effect and for all periods of time in which the written
change in control severance agreement is in effect other than the Severance
Period, “Cause” shall be as such term is defined in this Section 1.1(c)(i) through
(vi).
(e) [Intentionally Omitted.]
(f) “Termination of Employment” shall
mean the time when the employee-employer relationship between the Participant
and the Company or any Subsidiary is terminated for any reason, with or without
Cause, including, but not by way of limitation, a termination by resignation,
discharge, death, Disability or retirement, but excluding terminations where
there is a simultaneous reemployment or continuing employment of the
Participant by the Company or any Subsidiary.
The Administrator, in its absolute discretion, shall determine the
effect of all matters and questions relating to Termination of Employment,
including, but not by way of limitation, the question of whether a particular
leave of absence constitutes a Termination of Employment; provided, however,
that, if this Option is an Incentive Stock Option, unless otherwise determined
by the Administrator in its discretion, a leave of absence, change in status
from an employee to an independent contractor or other change in the
employee-employer relationship shall constitute a Termination of Employment if,
and to the extent that, such leave of absence, change in status or other change
interrupts employment for the purposes of Section 422(a)(2) of the
Code and the then applicable regulations and revenue rulings under said
Section.
1.2 Incorporation
of Terms of Plan. The Option is
subject to the terms and conditions of the Plan which are incorporated herein
by reference. In the event of any
inconsistency between the Plan and this Agreement, the terms of the Plan shall
control.
ARTICLE
II.
GRANT OF
OPTION
2.1 Grant
of Option. In consideration of the
Participant’s past and/or continued employment with the Company or a Subsidiary
and for other good and valuable consideration, effective as of the Grant Date
set forth in the Grant Notice (the “Grant Date”), the
Company irrevocably grants to the Participant the Option to purchase any part
or all of an aggregate of the number of shares of Stock set forth in the Grant
Notice, upon the terms and conditions set forth in the Plan and this
Agreement. Unless designated as a
Non-Qualified Stock Option in the Grant Notice, the Option shall be an
Incentive Stock Option to the maximum extent permitted by law.
2.2 Exercise
Price. The exercise price of the
shares of Stock subject to the Option shall be as set forth in the Grant
Notice, without commission or other charge; provided,
however, that the price per share
of the shares of Stock subject to the Option shall not be less than 100% of the
Fair Market Value of a share of Stock on the Grant Date. Notwithstanding the foregoing, if this Option
is designated as an Incentive Stock Option and the Participant owns (within the
meaning of Section 424(d) of the Code) more than 10% of the total
combined voting power of all classes of stock of the Company or any “subsidiary
corporation” of the Company or any “parent corporation” of the Company (each
within the meaning of Section 424 of the Code), the price per share of the
shares of Stock subject to the Option shall not be less than 110% of the Fair
Market Value of a share of Stock on the Grant Date.
2.3 Consideration
to the Company. In consideration of
the grant of the Option by the Company, the Participant agrees to render faithful
and efficient services to the Company or any Subsidiary. Nothing in the Plan or this Agreement shall
confer upon the Participant any right to continue in the employ of the Company
or any Subsidiary or shall interfere with or restrict in any way the rights of
the Company and its Subsidiaries, which rights are hereby expressly reserved,
to discharge or terminate
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the services of the Participant at any time for any reason
whatsoever, with or without Cause, except to the extent expressly provided
otherwise in a written agreement between the Company or a Subsidiary and the
Participant.
ARTICLE
III.
PERIOD
OF EXERCISABILITY
3.1 Commencement of Exercisability.
(a) Subject to
Sections 3.2, 3.3, 5.8 and 5.11, the Option shall become vested and exercisable
in such amounts and at such times as are set forth in the Grant Notice.
(b) No portion
of the Option which has not become vested and exercisable at the date of the
Participant’s Termination of Employment shall thereafter become vested and
exercisable, except as may be otherwise provided by the Administrator or as set
forth in a written agreement between the Company and the Participant.
(c) In the
event that a Change in Control occurs, Article 11 of the Plan shall govern
the treatment of the Option.
3.2 Duration
of Exercisability. The installments
provided for in the vesting schedule set forth in the Grant Notice are
cumulative. Each such installment which
becomes vested and exercisable pursuant to the vesting schedule set forth in
the Grant Notice shall remain vested and exercisable until it becomes
unexercisable under Section 3.3.
3.3 Expiration
of Option. The Option may not be
exercised to any extent by anyone after the first to occur of the following
events:
(a) The
expiration of seven (7) years from the Grant Date;
(b) If this
Option is designated as an Incentive Stock Option and the Participant owned
(within the meaning of Section 424(d) of the Code), at the time the
Option was granted, more than 10% of the total combined voting power of all
classes of stock of the Company or any “subsidiary corporation” of the Company
or any “parent corporation” of the Company (each within the meaning of Section 424
of the Code), the expiration of five (5) years from the Grant Date;
(c) Immediately
upon the Participant’s Termination of Employment for Cause, or upon the
Participant’s Termination of Employment due to resignation from the Company for
any reason;
(d) The
expiration of three (3) months from the date of the Participant’s
Termination of Employment without Cause, unless such termination occurs by
reason of the Participant’s death or Disability; or
(e) The
expiration of one (1) year from the date of the Participant’s Termination
of Employment by reason of the Participant’s death or Disability.
The Participant acknowledges
that an Incentive Stock Option exercised more than three (3) months after
the Participant’s Termination of Employment, other than by reason of death or
Disability, will be taxed as a Non-Qualified Stock Option.
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3.4 Special
Tax Consequences. The Participant
acknowledges that, to the extent that the aggregate Fair Market Value
(determined as of the time the Option is granted) of all shares of Stock with
respect to which Incentive Stock Options, including the Option, are exercisable
for the first time by the Participant in any calendar year exceeds $100,000,
the Option and such other options shall be Non-Qualified Stock Options to the extent
necessary to comply with the limitations imposed by Section 422(d) of
the Code. The Participant further
acknowledges that the rule set forth in the preceding sentence shall be
applied by taking the Option and other “incentive stock options” into account
in the order in which they were granted, as determined under Section 422(d) of
the Code and the Treasury Regulations thereunder.
ARTICLE
IV.
EXERCISE
OF OPTION
4.1 Person
Eligible to Exercise. Except as
provided in Sections 5.2(b), during the lifetime of the Participant, only the
Participant may exercise the Option or any portion thereof. After the death of the Participant, any
exercisable portion of the Option may, prior to the time when the Option
becomes unexercisable under Section 3.3, be exercised by the Participant’s
personal representative or by any person empowered to do so under the deceased
the Participant’s will or under the then-applicable laws of descent and
distribution.
4.2 Partial
Exercise. Any exercisable portion of
the Option or the entire Option, if then wholly exercisable, may be exercised
in whole or in part at any time prior to the time when the Option or portion
thereof becomes unexercisable under Section 3.3.
4.3 Manner
of Exercise. The Option, or any
exercisable portion thereof, may be exercised solely by delivery to the
Secretary of the Company (or any third party administrator or other person or
entity designated by the Company) of all of the following prior to the time
when the Option or such portion thereof becomes unexercisable under Section 3.3:
(a) An
exercise notice in a form specified by the Administrator, stating that the
Option or portion thereof is thereby exercised, such notice complying with all
applicable rules established by the Administrator;
(b) The receipt
by the Company of full payment for the shares of Stock with respect to which
the Option or portion thereof is exercised, including payment of any applicable
withholding tax, which may be in one or more of the forms of consideration
permitted under Section 4.4;
(c) Any other
written representations as may be required in the Administrator’s reasonable
discretion to evidence compliance with the Securities Act or any other
applicable law rule, or regulation; and
(d) In the
event the Option or portion thereof shall be exercised pursuant to Section 4.1
by any person or persons other than the Participant, appropriate proof of the
right of such person or persons to exercise the Option.
Notwithstanding
any of the foregoing, the Company shall have the right to specify all
conditions of the manner of exercise, which conditions may vary by country and
which may be subject to change from time to time.
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4.4 Method
of Payment. Payment of the exercise
price shall be by any of the following, or a combination thereof, at the
election of the Participant:
(a) Cash;
(b) Check;
(c) With the
consent of the Administrator, delivery of a notice that the Participant has
placed a market sell order with a broker with respect to shares of Stock then
issuable upon exercise of the Option, and that the broker has been directed to
pay a sufficient portion of the net proceeds of the sale to the Company in
satisfaction of the aggregate exercise price; provided,
that payment of such proceeds is then made to the Company upon settlement of
such sale;
(d) With the
consent of the Administrator, surrender of other shares of Stock which have a
Fair Market Value on the date of surrender equal to the aggregate exercise
price of the shares of Stock with respect to which the Option or portion
thereof is being exercised;
(e) With the
consent of the Administrator, surrender of shares of Stock issuable upon the
exercise of the Option having a Fair Market Value on the date of exercise equal
to the aggregate exercise price of the shares of Stock with respect to which
the Option or portion thereof is being exercised; or
(f) With the
consent of the Administrator, property of any kind which constitutes good and
valuable consideration.
4.5 Conditions to Issuance of Stock. The shares of Stock
deliverable upon the exercise of the Option, or any portion thereof, may be
either previously authorized but unissued shares of Stock or issued shares of
Stock which have then been reacquired by the Company. Such shares of Stock shall be fully paid and
nonassessable. The Company shall not be
required to issue or deliver any shares of Stock purchased upon the exercise of the Option or portion thereof prior to
fulfillment of all of the following conditions:
(a) The
admission of such shares of Stock to listing on all stock exchanges on which
such Stock is then listed;
(b) The
completion of any registration or other qualification of such shares of Stock
under any state or federal law or under rulings or regulations of the
Securities and Exchange Commission or of any other governmental regulatory
body, which the Administrator shall, in its absolute discretion, deem necessary
or advisable;
(c) The
obtaining of any approval or other clearance from any state or federal governmental
agency which the Administrator shall, in its absolute discretion, determine to
be necessary or advisable;
(d) The
receipt by the Company of full payment for such shares of Stock, including
payment of any applicable withholding tax, which may be in one or more of the
forms of consideration permitted under Section 4.4; and
(e) The lapse
of such reasonable period of time following the exercise of the Option as the
Administrator may from time to time establish for reasons of administrative
convenience.
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4.6 Rights
as Stockholder. The holder of the
Option shall not be, nor have any of the rights or privileges of, a stockholder
of the Company in respect of any shares of Stock purchasable upon the exercise
of any part of the Option unless and until such shares of Stock shall have been
issued by the Company to such holder (as evidenced by the appropriate entry on
the books of the Company or of a duly authorized transfer agent of the
Company). No adjustment will be made for
a dividend or other right for which the record date is prior to the date the
shares of Stock are issued, except as provided in Section 11.1 of the
Plan.
ARTICLE
V.
OTHER
PROVISIONS
5.1 Administration. The Administrator shall have the power to
interpret the Plan and this Agreement and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent
therewith and to interpret, amend or revoke any such rules. All actions taken and all interpretations and
determinations made by the Administrator in good faith shall be final and
binding upon Participant, the Company and all other interested persons. No member of the Committee or the Board shall
be personally liable for any action, determination or interpretation made in
good faith with respect to the Plan, this Agreement or the Option.
5.2 Option Not Transferable.
(a) The Option
may not be sold, pledged, assigned or transferred in any manner other than by
will or the laws of descent and distribution, unless and until the shares of
Stock underlying the Option have been issued, and all restrictions applicable
to such shares of Stock have lapsed.
Neither the Option nor any interest or right therein shall be liable for
the debts, contracts or engagements of Participant or his or her successors in
interest or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings
(including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect, except
to the extent that such disposition is permitted by the preceding sentence.
(b) During the
lifetime of Participant, only Participant may exercise the Option or any
portion thereof. After the death of
Participant, any exercisable portion of the Option may, prior to the time when
the Option becomes unexercisable under Section 3.3, be exercised by
Participant’s personal representative or by any person empowered to do so under
the deceased Participant’s will or under the then applicable laws of descent
and distribution.
5.3 Adjustments. The Participant acknowledges that the Option
is subject to modification and termination in certain events as provided in
this Agreement and Article 11 of the Plan.
5.4 Notices. Any notice to be given under the terms of
this Agreement to the Company shall be addressed to the Company in care of the
Secretary of the Company at the address given beneath the signature of the
Company’s authorized officer on the Grant Notice, and any notice to be given to
Participant shall be addressed to Participant at the address given beneath Participant’s
signature on the Grant Notice. By a
notice given pursuant to this Section 5.4, either party may hereafter
designate a different address for notices to be given to that party. Any notice which is required to be given to
Participant shall, if Participant is then deceased, be given to the person
entitled to exercise his or her Option pursuant to Section 4.1 by written
notice under this Section 5.4. Any
notice shall be deemed duly given when sent via email or when sent by certified
mail (return receipt requested) and deposited (with
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postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service.
5.5 Titles. Titles are provided herein for convenience
only and are not to serve as a basis for interpretation or construction of this
Agreement.
5.6 Governing
Law; Severability. The laws of the
State of Delaware shall govern the interpretation, validity, administration,
enforcement and performance of the terms of this Agreement regardless of the
law that might be applied under principles of conflicts of laws.
5.7 Conformity
to Securities Laws. The Participant
acknowledges that the Plan and this Agreement are intended to conform to the
extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and
Exchange Commission thereunder, and state securities laws and regulations. Notwithstanding anything herein to the contrary,
the Plan shall be administered, and the Option is granted and may be exercised,
only in such a manner as to conform to such laws, rules and
regulations. To the extent permitted by
applicable law, the Plan and this Agreement shall be deemed amended to the
extent necessary to conform to such laws, rules and regulations.
5.8 Amendments,
Suspension and Termination. To the
extent permitted by the Plan, this Agreement may be wholly or partially amended
or otherwise modified, suspended or terminated at any time or from time to time
by the Committee or the Board, provided,
that, except as may otherwise be provided by the Plan, no amendment,
modification, suspension or termination of this Agreement shall adversely
effect the Option in any material way without the prior written consent of the
Participant.
5.9 Successors
and Assigns. The Company may assign
any of its rights under this Agreement to single or multiple assignees, and
this Agreement shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer
herein set forth in Section 5.2, this Agreement shall be binding upon
Participant and his or her heirs, executors, administrators, successors and
assigns.
5.10 Notification
of Disposition. If this Option is
designated as an Incentive Stock Option, Participant shall give prompt notice
to the Company of any disposition or other transfer of any shares of Stock
acquired under this Agreement if such disposition or transfer is made (a) within
two years from the Grant Date with respect to such shares of Stock or (b) within
one year after the transfer of such shares of Stock to Participant. Such notice shall specify the date of such
disposition or other transfer and the amount realized, in cash, other property,
assumption of indebtedness or other consideration, by Participant in such
disposition or other transfer.
5.11 Limitations
Applicable to Section 16 Persons.
Notwithstanding any other provision of the Plan or this Agreement, if
Participant is subject to Section 16 of the Exchange Act, the Plan, the
Option and this Agreement shall be subject to any additional limitations set
forth in any applicable exemptive rule under Section 16 of the
Exchange Act (including any amendment to Rule 16b-3 of the Exchange Act) that
are requirements for the application of such exemptive rule. To the extent permitted by applicable law,
this Agreement shall be deemed amended to the extent necessary to conform to
such applicable exemptive rule.
5.12 Not a
Contract of Employment. Nothing in
this Agreement or in the Plan shall confer upon the Participant any right to
continue to serve as an Employee or other service provider of the Company or
any of its Subsidiaries.
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5.13 Entire Agreement. The Plan, the Grant Notice and this Agreement
(including all Exhibits thereto) constitute the entire agreement of the parties
and supersede in their entirety all prior undertakings and agreements of the
Company and Participant with respect to the subject matter hereof.
5.14 Section 409A. Notwithstanding any other provision of the
Plan, this Agreement or the Grant Notice, the Plan, this Agreement and the
Grant Notice shall be interpreted in accordance with, and incorporate the terms
and conditions required by, Section 409A of the U.S. Internal Revenue Code
of 1986, as amended (together with any Department
of Treasury regulations and other interpretive guidance issued thereunder,
including without limitation any such regulations or other guidance that may be
issued after the date hereof, “Section 409A”). The Committee
may, in its discretion, adopt such amendments to the Plan, this
Agreement or the Grant Notice or adopt
other policies and procedures (including amendments, policies and procedures with
retroactive effect), or take any other actions, as the Committee determines are
necessary or appropriate to comply with the requirements of Section 409A.
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Dates Referenced Herein and Documents Incorporated by Reference