ALLEGRO BIODIESEL CORPORATION STOCK OPTION AGREEMENT PURSUANT TO AMENDED AND RESTATED 2006 INCENTIVE COMPENSATION PLAN
Exhibit
10.1
NEITHER
THIS SECURITY NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (AS AMENDED, THE
“SECURITIES
ACT”)
OR UNDER THE SECURITIES LAWS OF ANY STATE. NEITHER THIS SECURITY NOR THE SHARES
OF STOCK ISSUED UPON EXERCISE HEREOF MAY BE TRANSFERRED, SOLD, OFFERED FOR
SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND EXEMPTION OR QUALIFICATION UNDER ANY APPLICABLE
STATE SECURITIES LAWS AND, IF REQUESTED BY THE COMPANY, DELIVERY TO THE COMPANY
OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED. ANY ATTEMPT TO TRANSFER, SELL, PLEDGE OR
HYPOTHECATE THIS SECURITY OR SUCH SHARES IN VIOLATION OF THESE RESTRICTIONS
SHALL BE VOID. THE TRANSFER OF THIS SECURITY AND THE SHARES OF STOCK ISSUABLE
UPON EXERCISE HEREOF ARE ALSO RESTRICTED BY THIS
AGREEMENT.
ALLEGRO
BIODIESEL CORPORATION
STOCK
OPTION AGREEMENT
PURSUANT
TO AMENDED AND RESTATED 2006 INCENTIVE COMPENSATION PLAN
___________________
(the
“Optionee”)
is
hereby granted an option (the “Option”)
to
purchase shares of the Common Stock of Allegro Biodiesel Corporation, a Delaware
corporation (the “Company”)
pursuant to this Stock Option Agreement (this “Agreement”)
and
the Company’s Amended and Restated 2006 Incentive Compensation Plan (as amended,
the “Plan”),
the
provisions of which are incorporated herein by reference.
1. TERMS
OF GRANT.
“Date
of Option Grant”
means
the date set forth on Appendix 1.
“Option
Shares”
means
the number of shares of the Common Stock, $0.01 per share, of the Company set
forth on Appendix 1.
“Exercise
Price”
means
the exercise price per share of Common Stock set forth on Appendix 1, which,
if
this Option is designated as an “Incentive Stock Option” in Appendix 1, price is
at least equal to the Fair Market Value of the Common Stock of the Company
on
the Date of Option Grant.
“Option
Expiration Date”
means
the fifth anniversary of the Date of Option Grant.
2. DEFINITIONS
AND CONSTRUCTION.
2.1 Definitions.
Unless
otherwise defined herein, capitalized terms shall have the meanings assigned
to
such terms in the Plan.
2.2 Construction.
Captions and titles contained herein are for convenience only and shall not
affect the meaning or interpretation of any provision of this Agreement. Except
when otherwise indicated by the context, the singular shall include the plural
and the plural shall include the singular. Use of the term “or” is not intended
to be exclusive, unless the context clearly requires otherwise.
3. TAX
CONSEQUENCES.
If
this
Option is designated an “Incentive Stock Option” in Appendix 1, the Option is
intended to constitute an “incentive stock option” as that term is used in Code
Section 422. To the extent that the aggregate fair market value (determined
at
the time of grant) of Option Shares with respect to which incentive stock
options are exercisable for the first time by the Participant during any
calendar year under all plans of the Company and its subsidiaries exceeds
$100,000, the options or portions thereof which exceed such limit (according
to
the order in which they were granted) shall be treated as nonstatutory stock
options. To the extent that the Option is exercised more than three months
following Optionee’s termination of employment with the Company, or, in the
event of Optionee’s death or Optionee’s termination of employment due to
disability (within the meaning of Section 22(e)(3) of the Code), more than
one
year following Optionee’s termination of employment, this Option shall be
treated as a nonstatutory stock option. It should be understood that there
is no
assurance that the Option will, in fact, be treated as an incentive stock option
irrespective of any designation in Appendix 1. The Optionee should consult
with
the Optionee’s own tax advisor regarding the tax effects of this Option (and, if
applicable, any requirements necessary to obtain favorable income tax treatment
under Code Section 422, including, but not limited to, holding period
requirements). If the Option is treated as an Incentive Stock Option in part
and
as a Nonstatutory Stock Option in part by reason of the limitation set forth
in
this Section 3, the Optionee may designate which portion of such Option the
Optionee is exercising.
4. EXERCISE
OF THE OPTION.
4.1 Vesting
and Right to Exercise.
Except
as otherwise provided herein, and prior to the termination of the Option (as
provided in Section 6), the Option shall vest with respect to one-third (1/3)
of
the Option Shares on each anniversary of the Date of Grant so that all of the
Option Shares shall have vested on the third anniversary of the Date of Grant,
in each case, subject to Optionee’s continued Service through the applicable
vesting date. This Option shall be exercisable to the extent it is vested until
the termination of the Option (as provided in Section 6).
4.2 Method
of Exercise.
Exercise of the Option shall be by written notice to the Company in the form
of
Exhibit
A
and
Exhibit
B
hereto
or in such other form(s) as may be required by the Company at the time of
exercise. The written notice must be signed by the Optionee and must be
delivered in person, by certified or registered mail, return receipt requested,
by confirmed facsimile transmission, or by such other means as the Company
may
permit, to the Chief Executive Officer of the Company, or other authorized
representative of the Company, prior to the termination of the Option as set
forth in Section 6, accompanied by full payment of the aggregate Exercise Price
for the number of Option Shares being purchased. Subject to Section 4.4 and
Section 4.6, the Option shall be deemed to be exercised upon receipt by the
Company of such written notice and the aggregate Exercise Price.
4.3 Payment
of Exercise Price.
(a) Forms
of Consideration Authorized.
Except
as otherwise provided below, payment of the aggregate Exercise Price for the
number of Option Shares for which the Option is being exercised shall be made
(i) in cash, by check or cash equivalent, (ii)
by
tender to the Company of whole shares of Common Stock owned by the Optionee
having a Fair Market Value not less than the aggregate Exercise Price (iii)
by
retention by the Company of that number of Option Shares (the “Retained
Shares”) having
an
aggregate Fair Market Value on the date of exercise equal to the aggregate
exercise price for all Option Shares for which the Option is being exercised,
so
that the Optionee receives the number of Option Shares for which the Option
is
exercised less the Retained Shares or (iv) by any combination of the foregoing.
If the Retained Shares include a fractional share, the Retained Shares will
be
rounded up to the nearest whole share.
(b) Limitations
on Forms of Consideration.
Notwithstanding the foregoing, the Option may not be exercised by tender to
the
Company of shares of Common Stock or Option Shares to the extent such tender,
or
attestation to the ownership, of Common Stock would constitute a violation
of
the provisions of any law, regulation or agreement restricting the redemption
of
the Company’s stock. The Option may not be exercised by tender to the Company of
shares of Common Stock unless such shares either have been owned by the Optionee
for more than six (6) months or were not acquired, directly or indirectly,
from
the Company.
4.4 Tax
Withholding.
At the
time the Option is exercised, in whole or in part, or at any time thereafter
as
requested by the Company, the Optionee hereby authorizes withholding from
payroll and any other amounts payable to the Optionee, and otherwise agrees
to
make adequate provision for any sums required to satisfy the federal, state,
local and foreign tax withholding obligations of the Company, if any, which
arise in connection with the Option, including, without limitation, obligations
arising upon (i) the exercise, in whole or in part, of the Option, (ii) the
transfer, in whole or in part, of any Option Shares acquired upon exercise
of
the Option, (iii) the operation of any law or regulation providing for the
imputation of interest, or (iv) the lapsing of any restriction with respect
to
any shares acquired upon exercise of the Option. The Optionee is cautioned
that
the Option is not exercisable unless the tax withholding obligations of the
Company are satisfied. Accordingly, the Optionee may not be able to exercise
the
Option when desired even though the Option is vested, and the Company shall
have
no obligation to issue a certificate for such shares.
4.5 Certificate
Registration.
The
certificate for the Option Shares as to which the Option is exercised shall
be
registered in the name of the Optionee, or, if applicable, the Optionee’s
heirs.
4.6 Restrictions
on Grant of the Option and Issuance of Shares.
The
grant of the Option and the issuance of Option Shares upon exercise of the
Option shall be subject to compliance with all applicable requirements of
federal, state or foreign law with respect to such securities. The Option may
not be exercised if the issuance of Option Shares upon exercise would constitute
a violation of any applicable federal, state or foreign securities laws or
other
law or regulations or the requirements of any stock exchange or market system
upon which the Common Stock may then be listed. THE OPTIONEE IS CAUTIONED THAT
THE OPTION MAY NOT BE EXERCISED UNLESS THE FOREGOING CONDITIONS ARE SATISFIED.
ACCORDINGLY, THE OPTIONEE MAY NOT BE ABLE TO EXERCISE THE OPTION WHEN DESIRED
EVEN THOUGH THE OPTION IS VESTED. The inability of the Company to obtain from
any regulatory body having jurisdiction the authority, if any, deemed by the
Company’s legal counsel to be necessary to the lawful issuance and sale of any
shares subject to the Option shall relieve the Company of any liability in
respect of the failure to issue or sell such shares as to which such requisite
authority shall not have been obtained. As a condition to the exercise of the
Option, the Company may require the Optionee to satisfy any qualifications
that
may be necessary or appropriate, to evidence compliance with any applicable
law
or regulation and to make any representation or warranty with respect thereto
as
may be requested by the Company.
4.7 Fractional
Shares.
The
Company shall not be required to issue fractional shares upon the exercise
of
the Option.
5. NONTRANSFERABILITY
OF THE OPTION AND OPTION SHARES.
The
Option may be exercised during the lifetime of the Optionee only by the Optionee
or the Optionee’s guardian or legal representative and may not be assigned or
transferred in any manner except by will or by the laws of descent and
distribution. Following the death of the Optionee, the Option, to the extent
provided in Section 7, may be exercised by the Optionee’s legal representative
or by any person empowered to do so under the deceased Optionee’s will or under
the then applicable laws of descent and distribution.
6. TERMINATION
OF THE OPTION.
[Current
provision: Except as provided in Section 7.2, the Option shall terminate and
may
no longer be exercised on the first to occur of (a) the Option Expiration Date,
(b) the later to occur of (i) the last day of the calendar year in which a
Change in Control occurs or (ii) 2½ months after the date of such Change in
Control or (c) the termination of the Optionee’s Service for Cause as described
in Section 7.]
[Proposed
provision for Board members: Except as otherwise provided in Section 7.2, the
Option shall terminate and may no longer be exercised upon the earlier of (a)
the Option Expiration Date or (b) expiration of twelve (12) months following
the date of the Optionee’s termination of membership on the Board for any
reason, or such longer period as the Board may determine in its discretion
on or
after the Date of Option Grant.]
[Proposed
provision for other service providers: Except as otherwise provided in Section
7.2, the Option shall terminate and may no longer be exercised upon the earlier
of (a) the Option Expiration Date or (b) (i) in the event of a termination
of
Optionee’s Service due to Optionee’s disability or Optionee’s death, the
expiration of twelve (12) months following the date of termination of Optionee’s
Service, (ii) in the event of a termination of Optionee’s Service for Cause
immediately upon such termination of Optionee’s Service or (iii) in the event of
a termination of Optionee’s Service for any reason other than Optionee’s death,
disability or Cause, the expiration of three (3) months following the date
of
termination of Optionee’s Service.]
7. EFFECT
OF TERMINATION OF SERVICE.
7.1 Option
Exercisability.
If the
Optionee’s employment with or service to the Company (“Service”) terminates for
any reason other than for Cause, the Option shall continue to be exercisable
pursuant to Section 4.1. If the Optionee’s Service is terminated for Cause, the
Option shall terminate and cease to be exercisable immediately upon such
termination of Service.
7.2 Extension
if Exercise Prevented by Law.
Notwithstanding the foregoing, if the exercise of the Option within the
applicable time periods set forth in Section 7.1 is prevented by the provisions
of Section 4.6, then to the extent permitted without penalty under Section
409A
of the Code, the Option shall remain exercisable until thirty (30) days after
the date the Optionee is notified by the Company that the Option is exercisable.
The Company makes no representation as to the tax consequences of any such
delayed exercise. The Optionee should consult with the Optionee’s own tax
advisor as to the tax consequences of any such delayed exercise.
8. RIGHTS
AS A STOCKHOLDER, EMPLOYEE OR CONSULTANT.
The
Optionee shall have no rights as a stockholder with respect to any shares
covered by the Option until the date of the issuance of a certificate for the
shares for which the Option has been exercised (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of
the
Company). No adjustment shall be made for dividends, distributions or other
rights for which the record date is prior to the date such certificate is
issued. Nothing in this Agreement shall confer upon the Optionee any right
to
continue in Optionee’s Service or interfere in any way with any right of the
Company to terminate the Optionee’s Service at any time.
9. LEGENDS.
The
Company may at any time place legends referencing this Agreement and any
applicable federal, state or foreign securities law restrictions on all
certificates representing Option Shares subject to the provisions of this
Agreement. The Optionee shall, at the request of the Company, promptly present
to the Company any and all certificates representing Option Shares acquired
pursuant to the Option in the possession of the Optionee in order to carry
out
the provisions of this Section 9. Unless otherwise specified by the Company,
legends placed on such certificates may include, but shall not be limited to,
the following:
9.1 “THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED
OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144
OR
RULE 701 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING
THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.”
9.2 “THE
TRANSFER, SALE, ASSIGNMENT, PLEDGE, MORTGAGE, HYPOTHECATION, ENCUMBRANCE, GIFT
OR OTHER DISPOSITION OF SHARES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED
BY
A STOCK OPTION AGREEMENT, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY.”
10. REPRESENTATIONS
AND WARRANTIES OF THE OPTIONEE.
10.1 Optionee
hereby confirms, that this Option is and the Option Shares will be acquired
for
investment for the Optionee’s own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof, and that the
Optionee has no present intention of selling, granting any participation in,
or
otherwise distributing such Option Shares. Optionee further represents that
he
does not presently have any contract, undertaking, agreement or arrangement
with
any Person to sell, transfer or grant participations to any Person, with respect
to this Option or any of the Option Shares.
10.2 Optionee
has had an opportunity to ask questions of and receive answers from the Company
regarding business, management and financial affairs of the Company and the
terms and conditions of the offering of this Option and the Option
Shares.
10.3 Optionee
understands that this Option and the Option Shares have not been registered
under the Securities Act, by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of
Optionee’s representations as expressed herein. Optionee understands that this
Option is and the Option Shares are “restricted securities” under applicable
federal and state securities laws and that, pursuant to these laws, the Optionee
must hold this Option and the Option Shares indefinitely unless they are
registered with the SEC and qualified by state authorities, or an exemption
from
such registration and qualification requirements is available. Optionee
acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Option
and
the Option Shares, and on requirements relating to the Company that are outside
of the Optionee’s control, and which the Company is under no obligation and may
not be able to satisfy.
11. RESTRICTIONS
ON TRANSFER OF SHARES.
No
shares
acquired upon exercise of the Option may be sold, exchanged, transferred
(including, without limitation, any transfer to a nominee or agent of the
Optionee), assigned, pledged, hypothecated or otherwise disposed of, including
by operation of law, in any manner which violates any of the provisions of
this
Agreement, and any such attempted disposition shall be void. The Company shall
not be required (a) to transfer on its books any shares which will have been
transferred in violation of any of the provisions set forth in this Option
Agreement or (b) to treat as owner of such shares or to accord the right to
vote
as such owner or to pay dividends to any transferee to whom such shares will
have been so transferred.
12. BINDING
EFFECT.
Subject
to the restrictions on transfer set forth herein, this Agreement shall inure
to
the benefit of and be binding upon the parties hereto and their respective
heirs, executors, administrators, successors and assigns.
13. TERMINATION
OR AMENDMENT.
The
Board
may terminate or amend the Plan or the Option at any time; provided, however,
that no such termination or amendment may adversely affect the Option or any
unexercised portion hereof without the consent of the Optionee unless such
termination or amendment is necessary to comply with any applicable law or
government regulation. No amendment or addition to this Agreement shall be
effective unless in writing.
14. NOTICES.
Any
notice required or permitted hereunder shall be given in writing and shall
be
deemed effectively given (except to the extent that this Option Agreement
provides for effectiveness only upon actual receipt of such notice) upon
personal delivery or upon deposit in the United States Post Office, by
registered or certified mail, with postage and fees prepaid, addressed to the
other party at the address set forth below or at such other address as such
party may designate in writing from time to time to the other
party.
15. INTEGRATED
AGREEMENT.
This
Agreement and the Plan constitute the entire understanding and agreement of
the
Optionee and the Company with respect to the subject matter contained herein
and
therein and there are no agreements, understandings, restrictions,
representations, or warranties among the Optionee and the Company with respect
to such subject matter other than those as set forth or provided for herein
or
therein. To the extent contemplated herein or therein, the provisions of this
Agreement shall survive any exercise of the Option and shall remain in full
force and effect.
16. APPLICABLE
LAW.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Delaware, or if the Company is reincorporated in another
state by merger or otherwise, the laws of such other state, and construed in
accordance therewith without giving effect to principles of conflicts of
law.
[Signature
Page Follows]
By
their
signatures below, the parties hereto agree that the Option is governed by the
terms and conditions of the Plan as in effect on the Date of Option Grant,
which
is attached hereto. The Optionee acknowledges receipt of a copy of the Plan,
represents that he or she is familiar with the provisions contained therein,
and
hereby accepts the Option subject to all of the terms and conditions
thereof.
| OPTIONEE | ALLEGRO BIODIESEL CORPORATION | ||
| _________________________________________ |
By:_________________________________________
Name:
▇. ▇▇▇▇▇ ▇▇▇▇▇, III
Title:
Chief Executive Officer
|
||
| Address: | |||
|
Address:
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|||
Attachment: Amended
and Restated 2006 Incentive Compensation Plan
EXHIBIT
A
OPTION
EXERCISE NOTICE
Allegro
Biodiesel Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
Los
Angeles, CA 90045
Attn:
Secretary
Ladies
and Gentlemen:
1. This
agreement (this “Agreement”) constitutes notice that, as of the date this notice
and payment of the exercise price is received by the Secretary of Allegro
Biodiesel Corporation (the “Company”),
the
undersigned (the “Optionee”) is electing to exercise the stock option (the
“Option”) granted under Company’s Amended and Restated 2006 Incentive
Compensation Plan (as may be amended from time to time, the “Plan”)
and
the Stock Option Agreement dated ______________ (the “Option Agreement”) as
identified below, and to purchase the number of shares (the “Shares”) for the
price set forth below:
|
Grant
Date of stock option:
|
_________________________
|
|
Number
of shares as to which option is
exercised:
|
_____________
|
|
Stock
certificate to be issued in name of:
|
________________________________________
|
|
Total
exercise price:
|
$____________
|
|
Cash
payment delivered with this election:
|
$____________
|
|
Value
of _____ shares of common stock
delivered with this election:1
|
$____________
|
2. Representations
of Optionee.
Optionee acknowledges that Optionee has received, read and understood the Plan
and the Option Agreement. Optionee agrees to abide by and be bound by their
terms and conditions.
3. Rights
as Stockholder.
Until
the stock certificate evidencing Shares purchased pursuant to the exercise
of
the Option is issued (as evidenced by the appropriate entry on the books of
the
Company or of a duly authorized transfer agent of the Company), no right to
vote
or receive dividends or any other rights as a stockholder shall exist with
respect to Shares subject to the Option, notwithstanding the exercise of the
Option. The Company shall issue (or cause to be issued) such stock certificate
promptly after the Option is exercised. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the
stock
certificate is issued, except as provided in Section 5.7 of the
Plan.
4. Transfer
Restrictions.
Any
transfer or sale of the Share is subject to restrictions on transfer imposed
by
any applicable state and federal securities laws. Any transfer or attempted
transfer of any of the Shares not in accordance with the terms of this Agreement
shall be void and the Company may enforce the terms of this Agreement by stop
transfer instructions or similar actions by the Company and its agents or
designees.
_________________
1 This
alternative applies only if shares meet the public trading requirements. Shares
must be valued in accordance with the terms of the option being exercised,
must
have been owned for the minimum period required in the option, and must be
owned
free and clear of any liens, claims, encumbrances or security interests.
Certificates must be endorsed or accompanied by an executed assignment separate
from the certificate.
5. Tax
Consultation.
Optionee understands that Optionee may suffer adverse tax consequences as a
result of Optionee’s purchase or disposition of the Shares. Optionee represents
that Optionee has consulted with any tax consultants Optionee deems advisable
in
connection with the purchase or disposition of the Shares and that Optionee
is
not relying on the Company for any tax advice.
6. Restrictive
Legends and Stop-Transfer Orders.
a. Legends.
Optionee understands and agrees that the Company shall cause the legends set
forth below or legends substantially equivalent thereto, to be placed upon
any
certificate(s) evidencing ownership of the Shares together with any other
legends that may be required by state or federal securities laws:
“THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED
OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144
OR
RULE 701 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING
THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.”
“THE
TRANSFER, SALE, ASSIGNMENT, PLEDGE, MORTGAGE, HYPOTHECATION, ENCUMBRANCE, GIFT
OR OTHER DISPOSITION OF SHARES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED
BY
A STOCK OPTION AGREEMENT, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY.”
b. Stop-Transfer
Notices.
Optionee agrees that, in order to ensure compliance with the restrictions
referred to herein, the Company may issue appropriate “stop transfer”
instructions to its transfer agent, if any, and that, if the Company transfers
its own securities, it may make appropriate notations to the same effect in
its own records.
c. Refusal
to Transfer.
The
Company shall not be required (i) to transfer on its books any Shares that
have been sold or otherwise transferred in violation of any of the provisions
of
this Agreement or (ii) to treat as owner of such Shares or to accord the
right to vote or pay dividends to any purchaser or other transferee to whom
such
Shares shall have been so transferred.
7. 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, this Agreement shall be binding upon Optionee and his or her heirs,
executors, administrators, successors and assigns.
8. Interpretation.
Any
dispute regarding the interpretation of this Agreement shall be submitted by
Optionee or by the Company forthwith to the Company’s Board of Directors or
committee thereof that is responsible for the administration of the Plan (the
“Administrator”), which shall review such dispute at its next regular meeting.
The resolution of such a dispute by the Administrator shall be final and binding
on the Company and on Optionee.
9. Governing
Law; Severability.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware excluding that body of law pertaining to conflicts of law.
Should any provision of this Agreement be determined by a court of law to be
illegal or unenforceable, the other provisions shall nevertheless remain
effective and shall remain enforceable.
10. Notices.
Any
notice required or permitted hereunder shall be given in writing and shall
be
deemed effectively given upon personal delivery or upon deposit in the United
States mail by certified mail, with postage and fees prepaid, addressed to
the
other party at its address as shown below beneath its signature, or to such
other address as such party may designate in writing from time to time to the
other party.
11. Further
Instruments.
The
Optionee hereby agrees to execute such further instruments and to take such
further action as may be reasonably necessary to carry out the purposes and
intent of this Agreement including, without limitation, the Investment
Representation Statement in the form attached to the Option Agreement as
Exhibit
B.
12. Delivery
of Payment.
The
Optionee herewith delivers to the Company the full Exercise Price for the
Shares, as well as any applicable withholding tax.
13. Entire
Agreement.
The
Plan and Option Agreement are incorporated herein by reference. This Agreement,
the Plan, the Option Agreement and the Investment Representation Statement
constitute the entire agreement of the parties and supersede in their entirety
all prior undertakings and agreements of the Company and Optionee with respect
to the subject matter hereof. Notwithstanding the foregoing, the Optionee agrees
(i) to provide such additional documents as the Company may require in
connection with the exercise of the Option, and (ii) to provide for the payment
to the Company (in the manner determined by the Company) of amounts required
to
satisfy the Company’s withholding obligation, if any, relating to this option
exercise.
|
Submitted
by:
|
Accepted
by:
ALLEGRO
BIODIESEL CORPORATION
|
|
_______________________________
Signature
|
By:
_______________________________
|
|
_______________________________
Print
Name
|
Its:
_______________________________
|
|
Address:
[
]
[
]
|
Date
Received: _____________________
|
EXHIBIT
B
INVESTMENT
REPRESENTATION STATEMENT
[This
form is to be completed at the time option is exercised,
unless
stock is publicly traded at that time.]
Effective
as of ___________________ [insert
date of option exercise]
(the
“Effective
Date”),
the
undersigned (“Optionee”)
has
elected to purchase __________ shares of the Common Stock, par value $0.01
per
share (the “Shares”),
of
Allegro Biodiesel Corporation, a Delaware corporation (the “Company”)
under
and pursuant to the Company’s Amended and Restated 2006 Incentive Compensation
Plan (the “Plan”) and the Stock Option Agreement dated ______________
[insert
grant date of option]
(the
“Option
Terms”).
The
Optionee hereby makes the following certifications, representations, warranties
and agreements with respect to the purchase of the Shares:
The
Optionee acknowledges that he or she is aware of the Company’s business affairs
and financial condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the Shares.
The Optionee represents and warrants to the Company that he or she is acquiring
these Shares for investment for the Optionee’s own account only and not with a
view to, or for resale in connection with, any “distribution” thereof within the
meaning of the Securities Act of 1933, as amended (the “Securities
Act”).
The
Optionee further acknowledges that the Shares have not been registered under
the
Securities Act, are deemed to constitute “restricted securities” under Rule 701
and Rule 144 promulgated under the Securities Act and must be held indefinitely
unless they are subsequently registered under the Securities Act and qualified
under any applicable state securities laws or an exemption from such
registration and qualification is available. The Optionee further acknowledges
that the Company is under no obligation to register the Shares.
The
Optionee further acknowledges that he or she is familiar with the provisions
of
Rule 701 and Rule 144, which Rules, in substance, permit limited public resale
of “restricted securities” acquired, directly or indirectly from the issuer
thereof, in a non-public offering subject to the satisfaction of certain
conditions. The Optionee understands that if the Company becomes subject to
the
reporting requirements of Section 13 or 15(d) of the Securities Exchange Act
of
1934, the Optionee will not be able to resell the Shares under Rule 701 (i)
until at least ninety (90) days after the Company became subject to such
reporting requirements (or any longer stand-off period, as discussed below,
may
require) and (ii) unless such resale satisfies those provisions of Rule 144
that
are specified in Rule 701(g)(3). Even if the Company is not subject to such
reporting requirements, the Shares may be resold in certain limited
circumstances subject to satisfaction of all of the applicable provisions of
Rule 144. The Optionee further acknowledges that in the event all of the
applicable requirements of Rule 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required in order to resell the Shares. The Optionee
understands that no assurances can be given that any such registration will
be
made or any such exemption will be available in such event.
The
Optionee further acknowledges and understands that all certificates representing
any of the Shares shall have endorsed thereon appropriate legends reflecting
the
foregoing limitations, as well as any legends reflecting any other restrictions
pursuant to the Company’s Articles of Incorporation, Bylaws, the Option Terms,
the Plan and/or applicable securities laws.
The
Optionee further agrees that, if so requested by the Company or any
representative of the underwriters (the “Managing
Underwriter”)
in
connection with any registration of the offering of any securities of the
Company under the Securities Act, the Optionee shall not sell or otherwise
transfer any Shares or other securities of the Company during the 180-day period
(subject to extension as may be required to comply with Rule 2711 of the
National Association of Securities Dealers, Inc. (or any successor rule
thereto)), or such other period as may be requested in writing by the Managing
Underwriter and agreed to in writing by the Company (the “Market
Standoff Period”),
following the effective date of a registration statement of the Company filed
under the Securities Act. Such restriction shall apply only to the first
registration statement of the Company to become effective under the Securities
Act that includes securities to be sold on behalf of the Company to the public
in an underwritten public offering under the Securities Act. The Company may
impose stop-transfer instructions with respect to securities subject to the
foregoing restrictions until the end of such Market Standoff
Period.
The
Optionee further acknowledge and agrees that the Company shall not be required
(i) to transfer on its books any Shares that have been sold or otherwise
transferred in violation of any of the representations, warranties, agreements
or other provisions contained in this Notice of Exercise or (ii) to treat as
owner of such Shares or to accord the right to vote or pay dividends to any
purchaser or other transferee to whom such Shares shall have been so
transferred.
______________________________
APPENDIX
1
|
Type
of Option:
|
o
Incentive Stock
Option
|
oNonstatutory
Stock Option
|
“Date
of Option Grant”
means
_____________________.
“Option
Shares”
means
_____________________.
“Exercise
Price”
means
_____________________.