XETHANOL CORPORATION STOCK OPTION AGREEMENT
Exhibit
10.1
XETHANOL
CORPORATION
THIS
STOCK OPTION AGREEMENT
(this
“Agreement”) is entered into as of this 9th day of October 2008 by and between
Xethanol Corporation, a Delaware corporation (the “Company”), and
______________________________ (the “Optionee”). Capitalized terms not defined
in this Agreement have the meanings given in the Xethanol Corporation 2005
Incentive Compensation Plan, as amended effective February 12, 2008 (the
“Plan”).
Background
A. On
the
date specified above, the Compensation Committee (the “Committee”) of the Board
of Directors of the Company granted to the Optionee an option (the “Option”) to
purchase the number of shares of the Company’s common stock, par value $0.001
per share (the “Stock”), as provided below.
B. In
consideration of the granting of the Option, the Optionee intends to remain
in
the employ of the Company or continue to provide services to the
Company.
C. The
Company and the Optionee desire to enter into a written agreement with respect
to the Option in accordance with the Plan.
Agreement
As
an
employment incentive and to encourage stock ownership, and also in consideration
of the mutual covenants contained in this Agreement, the parties to this
Agreement agree as follows:
1. Incorporation
of Plan.
This
Option is granted pursuant to the provisions of the Plan and the terms and
definitions of the Plan are incorporated into this Agreement by reference.
The
Company has delivered a copy of the Plan to the Optionee, who acknowledges
receipt of the Plan.
2. Grant
of Option.
Subject
to the terms, restrictions, limitations and conditions stated in this Agreement,
the Company hereby evidences its grant to the Optionee, not in lieu of salary
or
other compensation, of the right and option to purchase all or any part of
the
number of shares of the Company’s Stock provided on Schedule
A
attached
to this Agreement and incorporated into this Agreement by reference. The Option
shall vest and be exercisable in the amounts and at the time specified on
Schedule
A.
The
Option shall expire and shall not be exercisable on the date specified on
Schedule
A
or on
such earlier date as determined pursuant to Sections 8, 9, or 10 below.
Schedule
A
states
whether the Option is intended to be an Incentive Stock Option.
3. Purchase
Price.
The
price per share to be paid by the Optionee for the shares subject to this Option
(the “Exercise Price”) shall be as specified on Schedule
A.
4. Exercise
Terms.
The
Optionee must exercise the Option for at least the lesser of 100 shares or
the
number of shares of purchasable Stock as to which the Option remains
unexercised. If this Option is not exercised with respect to all or any part
of
the shares subject to this Option before it expires, the shares with respect
to
which this Option was not exercised shall no longer be subject to this
Option.
5. Option
Non-Transferable.
No
Option shall be transferable by an Optionee other than by will or the laws
of
descent and distribution. During the lifetime of an Optionee, Options shall
be
exercisable only by such Optionee (or by such Optionee’s guardian or legal
representative, should one be appointed).
6. Notice
of Exercise of Option.
This
Option may be exercised by the Optionee, or by the Optionee’s administrators,
executors or personal representatives, by a written notice (in substantially
the
form of the Notice of Exercise attached to this Agreement as Schedule
B)
signed
by the Optionee, or by such administrators, executors or personal
representatives, and delivered or mailed to the Company as specified in Section
15 below to the attention of the Chief Financial Officer or such other officer
as the Company may designate. Any such notice shall (a) specify the number
of
shares of Stock that the Optionee or the Optionee’s administrators, executors or
personal representatives, as the case may be, then elect to purchase under
this
Agreement, (b) contain such information as may be reasonably required pursuant
to Section 12 below, and (c) as authorized by the Committee, be accompanied
by
(x) a certified or cashier’s check payable to the Company in payment of the
total Exercise Price applicable to the shares of Stock being purchased, (y)
shares of Stock owned by the Optionee and duly endorsed or accompanied by stock
transfer powers having a Fair Market Value equal to the total Exercise Price
applicable to the shares of Stock being purchased, or (z) a certified or
cashier’s check accompanied by the number of shares of Stock whose Fair Market
Value when added to the amount of the check equals the total Exercise Price
applicable to the shares of Stock being purchased as provided in this Agreement.
Upon receipt of any such notice and accompanying payment, and subject to the
terms of this Agreement, the Company agrees to issue to the Optionee or the
Optionee’s administrators, executors or personal representatives, as the case
may be, stock certificates for the number of shares specified in such notice
registered in the name of the person exercising this Option; provided that
in
the discretion of the Committee, the Company may issue the shares specified
in
such notice in uncertificated, book-entry form as permitted by the Company’s
bylaws.
7. Adjustment
in Option.
The
number of shares subject to this Option, the Exercise Price and other matters
are subject to adjustment during the term of this Option in accordance with
Sections 9 and 10 of the Plan.
8. Termination
of Continuous Service.
(a) Except
as
otherwise specified in Schedule
A,
in the
event of the termination of the Optionee’s Continuous Service, other
than a
termination that is either (x) for Cause, (y) voluntary on the part of the
Optionee and without written consent of the Company, or (z) due to the
Optionee’s death or Disability or retirement, the Optionee may exercise this
Option at any time within 90 days after such termination to the extent of the
number of shares that were purchasable under this Agreement at the date of
such
termination. The Option shall not thereafter be or become
exercisable.
(b) Except
as
specified in Schedule
A,
in the
event of a termination of the Optionee’s Continuous Service that is either (x)
for Cause or (y) voluntary on the part of the Optionee and without the written
consent of the Company, this Option, to the extent not previously exercised,
shall terminate immediately and shall not thereafter be or become
exercisable.
(c) Unless
and to the extent otherwise provided in Schedule
A,
in the
event of the retirement of the Optionee at the normal retirement date as
prescribed from time to time by the Company or any subsidiary, the Optionee
shall continue to have the right to exercise this Option for shares which were
purchasable at the date of the Optionee’s retirement.
9. Disability
of Optionee.
In the
event of termination of the Optionee’s Continuous Service because of the
Optionee’s Disability, the Optionee (or his or her personal representative) may
exercise this Option within a period ending on the earlier of (a) the last
day
of the one-year period following the determination of the Optionee’s Disability
or (b) the expiration date of this Option, to the extent of the number of shares
that were purchasable under this Agreement at the date of such termination.
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10. Death
of Optionee.
Except
as otherwise provided in Schedule
A
with
respect to the rights of the Optionee upon termination of the Optionee’s
Continuous Service under Section 8 above, in the event of the Optionee’s death
while employed by the Company or any of its subsidiaries or within 90 days
after
a termination of the Optionee’s Continuous Service (if such termination was
neither (x) for Cause nor (y) voluntary on the part of the Optionee and without
the written consent of the Company), the heirs, executors or personal
representatives of the Optionee may exercise this Option at any time within
a
period ending on the earlier of (a) the last day of the one-year period
following the Optionee’s death or (b) the expiration date of this Option. If the
Optionee was an Employee of the Company at the time of death, this Option may
be
so exercised to the extent of the number of shares that were purchasable under
this Agreement at the date of death. If the Optionee’s Continuous Service
terminated prior to his or her death, this Option may be exercised only to
the
extent of the number of shares covered by this Option that were purchasable
under this Agreement at the date of such termination.
11. Compliance
with Regulatory Matters.
The
Optionee acknowledges that the issuance of Stock of the Company is subject
to
limitations imposed by federal and state law and the Optionee hereby agrees
that
the Company shall not be obligated to issue any shares of Stock upon exercise
of
this Option that would cause the Company to violate law or any rule, regulation,
order or consent decree of any regulatory authority (including the Securities
and Exchange Commission) having jurisdiction over the affairs of the Company.
The Optionee agrees that he or she will provide the Company with such
information as is reasonably requested by the Company or its counsel to
determine whether the issuance of Stock complies with the provisions described
by this Section 11.
12. Restriction
on Disposition of Stock.
The
Stock purchased pursuant to the exercise of an Incentive Stock Option shall
not
be transferred by the Optionee except pursuant to the Optionee’s will, or the
laws of descent and distribution, until the date that is the later of two
years after
the
grant of such Incentive Stock Option or one year after the transfer of the
shares to the Optionee pursuant to the exercise of such Incentive Stock
Option.
13. Withholding.
The
Optionee acknowledges that the Company shall require the Optionee to pay the
Company the amount of any federal, state, local or other tax or other amount
required by any governmental authority to be withheld and paid over by the
Company to such authority for the account of the Optionee. The Optionee agrees,
as a condition to the grant of the Option, to satisfy such
obligations.
14. Miscellaneous.
(a) This
Agreement shall be binding upon the parties to it and their representatives,
successors and assigns.
(b) This
Agreement shall be governed by the laws of the State of Georgia.
(c) Any
requests or notices to be given under this Agreement shall be deemed given,
and
any elections or exercises to be made or accomplished shall be deemed made
or
accomplished, upon actual delivery thereof to the designated recipient, or
three
days after deposit thereof in the United States mail, registered, return receipt
requested and postage prepaid, addressed, if to the Optionee, at the address
provided below and, if to the Company, to the executive offices of the Company
at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ NE, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(or to any successor address for the Company’s executive offices reflected in
the Company’s filings with the Securities and Exchange Commission); provided
that the Optionee may change his or her address by written notice as provided
in
this Section 15(c).
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(d) This
Option does not confer upon the Optionee any right with respect to continuance
of employment by the Company or by any of its subsidiaries.
(e) Except
as
permitted under the Plan, this Agreement may not be modified except in writing
executed by each of the parties to it.
(f) The
Background section on page 1 of this Agreement constitutes an integral part
of
this Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the Compensation Committee of the Board of Directors of the
Company has caused this Stock Option Agreement to be executed on behalf of
the
Company, and the Optionee has executed this Stock Option Agreement under seal,
all as of the day and year first above written.
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Xethanol
Corporation
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OPTIONEE
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By:
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By:
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Name:
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Name:
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Title:
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Address:
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SCHEDULE
A
TO
BETWEEN
XETHANOL
CORPORATION
AND
Dated:
October 9, 2008
1.
Number
of Shares Subject to Option: shares.
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2. This Option: (Check one)
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¨ is
an
Incentive Stock Option.
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x
is
not
an
Incentive Stock Option.
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3.
Option
Exercise Price:
$0.19
per share.
4.
Date
of Grant:
October
9, 2008
5. Option
Vesting Schedule:
The
Option shall vest and become exercisable as to the number of shares specified
below upon satisfaction of the vesting conditions described below, subject
to
the earlier termination or expiration of the Option as provided below:
(a) In
this
Schedule
A,
(x) the
term “Exchange” means the American Stock Exchange, or, if applicable, any
successor exchange on which the Company’s common stock is listed; and (y) the
term “Expiration Date” means October 9, 2015.
(b) One-half
of the Option shall vest and become exercisable if the closing price of the
Company’s common stock as reported on the Exchange equals or exceeds $1.50 per
share for ten consecutive trading days (the “Initial Threshold Price”) on or
before the third anniversary of the date of grant; provided that if the Initial
Threshold Price is not achieved on or before the third anniversary of the date
of grant, all of the Option shall terminate.
(c) If
and
only if the Initial Threshold Price is achieved on or before the third
anniversary of the date of grant, an additional one-fourth of the Option shall
vest and become exercisable if the closing price of the Company’s common stock
as reported on the Exchange equals or exceeds $2.00 per share for ten
consecutive trading days on or before the Expiration Date.
(d) If
and
only if the Initial Threshold Price is achieved on or before the third
anniversary of the date of grant, an additional one-fourth of the Option shall
vest and become exercisable if the closing price of the Company’s common stock
as reported on the Exchange equals or exceeds $2.50 per share for ten
consecutive trading days on or before the Expiration Date.
6. Option
Exercise Period:
The
Option shall expire and be void unless exercised on or before the Expiration
Date or on such earlier date with respect to the number of shares indicated
and
as determined pursuant to Section 5 above.
7. Effect
of Termination of Employment of Optionee
(if
different from that provided in Sections 8, 9 and 10 of the Stock Option
Agreement): Not applicable.
SCHEDULE
B
TO
BETWEEN
XETHANOL
CORPORATION
AND
NOTICE
OF
EXERCISE
The
undersigned hereby notifies Xethanol Corporation (the “Company”) of this
election to exercise the undersigned’s stock option to
purchase shares of
the Company’s common stock, par value $0.001 per share, pursuant to the Stock
Option Agreement between the undersigned and the Company dated October 9, 2008.
Accompanying this Notice of Exercise is (x) a certified or cashier’s check
payable to the Company in payment of the total Exercise Price applicable to
the
shares of Stock being purchased, (y) shares of Stock owned by the Optionee
and
duly endorsed or accompanied by stock transfer powers having a Fair Market
Value
equal to the total Exercise Price applicable to the shares of Stock being
purchased, or (z) a certified or cashier’s check accompanied by the number of
shares of Stock whose Fair Market Value when added to the amount of the check
equals the total Exercise Price applicable to the shares of Stock being
purchased, as provided in the Stock Option Agreement.
IN
WITNESS WHEREOF, the undersigned has executed this Notice of Exercise, effective
this _____ day of ______________, _______.
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OPTIONEE
[OR
OPTIONEE’S ADMINISTRATOR,
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EXECUTOR,
GUARDIAN OR LEGAL
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REPRESENTATIVE]
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By:
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Name:
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Position (if other than Optionee):
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