XETHANOL CORPORATION RESTRICTED STOCK AGREEMENT
Exhibit
10.2
XETHANOL
CORPORATION
RESTRICTED
STOCK AGREEMENT
THIS
RESTRICTED STOCK 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 “Grantee”). 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 duly granted to the Grantee a Restricted Stock
Award
(the “Award”) under the Plan on the terms described in this
Agreement.
B. In
consideration of the issuance of the Award, the Grantee intends to remain in
the
employ of the Company or continue to provide services to the
Company.
C. The
Company and the Grantee desire to enter into a written agreement with respect
to
the Award 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
Award 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 Grantee, who acknowledges
receipt of the Plan.
2. Grant
of Restricted Stock.
Subject
to the terms, restrictions, limitations and conditions stated in this Agreement,
the
Company hereby evidences its grant to the Grantee the number of restricted
shares of the Company’s common stock, par value $0.001 per share (the
“Restricted Stock”), provided on Schedule
A
attached
to this Agreement and incorporated into this Agreement by reference.
3. Vesting.
Subject
to the terms, restrictions, limitations and conditions stated in this Agreement,
the Restricted Stock shall vest or shall be forfeited in the amounts and at
the
time specified on Schedule
A
based on
the level of achievement of the performance goals and applicable targets set
forth on Schedule
A.
4. Continued
Employment Required.
The
vesting schedule requires the Grantee’s Continuous Service from the date of
grant through each applicable vesting date as a condition to the vesting of
the
applicable installment of the Restricted Stock as specified on Schedule
A.
Employment for only a portion of the vesting period, even if a substantial
portion, will not entitle the Grantee to any proportionate vesting or avoid
or
mitigate a termination of rights and benefits upon or following a termination
of
the Grantee’s Continuous Service as provided in Section 7 below.
5. Rights
of a Stockholder.
From
and after the date of grant and for so long as the Restricted Stock is held
by
or for the benefit of the Grantee, and except to the extent restricted under
the
terms of the Plan and this Agreement, the Grantee shall have all the rights
of a
stockholder of the Company with respect to the Restricted Stock, including
but
not limited to the right to receive dividends, if applicable, and the right
to
vote such shares.
6. Adjustments
in Restricted Stock.
The
number of shares subject to this Award, any restrictions and forfeiture
conditions and other matters are subject to adjustment in accordance with
Sections 9 and 10 of the Plan.
7. Termination
of Continuous Service.
Except
as otherwise specified in Schedule
A,
in the
event of the termination of the Grantee’s Continuous Service for any reason,
whether with or without Cause, voluntarily or involuntarily, all rights of
the
Grantee to the then remaining shares of Restricted Stock (and, if applicable,
any dividends or other distributions with respect to the Restricted Stock)
that
are not vested on the date of the termination shall terminate and be forfeited
immediately.
8. Restrictions
on Transfer.
Before
shares of Restricted Stock become vested, neither the Restricted Stock nor
any
interest with respect to the Restricted Stock may be sold, transferred, pledged,
hypothecated, margined or otherwise encumbered by the Grantee except pursuant
to
the Grantee’s will, or the laws of descent and distribution. With respect to and
to the extent of shares of the Restricted Stock that have become fully vested
under the terms of this Agreement, the Grantee may freely sell or transfer
such
vested shares of the Restricted Stock, subject to limitations and conditions
of
Rule 144 under the Securities Act of 1933 if the Grantee is an “affiliate,” as
that term is defined in paragraph (a)(1) of Rule 144. The Grantee agrees that
the Restricted Stock will not be sold or otherwise disposed of in any manner
that would constitute a violation of any applicable federal or state securities
law.
9. Return
of Shares of Restricted Stock.
Upon
the occurrence of any forfeiture of shares of Restricted Stock under the terms
of this Agreement, such unvested, forfeited shares of Restricted Stock shall
be
automatically transferred to the Company, without any other action by the
Grantee, or the Grantee’s guardian or legal representative, should one be
appointed; no additional consideration shall be paid by the Company with respect
to such transfer. The Company may exercise its powers under Section 10(d)
below and take any other action necessary or advisable to evidence such
transfer. The Grantee, or the Grantee’s guardian or legal representative, as the
case may be, shall deliver any additional documents of transfer that the Company
may request to confirm the transfer of such unvested, forfeited
shares.
10. Stock
Certificates.
(a) Form
of Shares of Restricted Stock.
The
Company shall, in its discretion, issue the shares of Restricted Stock subject
to the Award either: (x) in certificate form as described in the following
sentence; or (y) in book entry form, registered in the name of the Grantee
with
notations regarding the applicable restrictions on transfer imposed under this
Agreement. Any certificates representing shares of the Restricted Stock shall
be
registered in the name of and issued to the Grantee, although the Company shall
hold the stock certificate or certificates until the Restricted Stock vests
in
accordance with the terms of this Agreement. Such stock certificate or
certificates shall be subject to such stop-transfer orders and other
restrictions as the Company may deem necessary or advisable under applicable
federal and state securities laws, and the Company may cause legends to be
placed on such certificate or certificates to make appropriate reference to
such
restrictions.
(b) Delivery
of Shares Upon Vesting.
Promptly after any shares of Restricted Stock become vested pursuant to Section
3 above and the satisfaction of any and all related tax withholding obligations
pursuant to Section 11 below, the Company shall, as applicable, either remove
the notations on any shares of Restricted Stock issued in book entry form which
have vested or deliver to the Grantee a certificate or certificates (without
legends) evidencing the number of shares of Restricted Stock which have vested
(or, in either case, such lesser number of shares as may be permitted pursuant
to Section 11 below). The Grantee, or the Grantee’s guardian or legal
representative, should one be appointed, shall deliver to the Company any
representations or other documents or assurances as the Company may deem
necessary or reasonably desirable to ensure compliance with all applicable
legal
and regulatory requirements. The shares so delivered shall no longer be
Restricted Stock for purposes of this Agreement.
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(c) Stock
Power; Power of Attorney.
Concurrent with the execution and delivery of this Agreement, the Grantee shall
deliver to the Company an executed stock power (or powers) in the form attached
to this Agreement as Schedule
B,
in
blank, with respect to the Restricted Stock. The Grantee, by acceptance of
the
Award, shall be deemed to appoint, and does so appoint by execution of this
Agreement, the Company and each of its authorized representatives as the
Grantee’s attorney(s) in fact to effect any transfer of unvested, forfeited
shares (or shares otherwise reacquired by the Company under this Agreement)
to
the Company as may be required pursuant to the Plan or this Agreement and to
execute such documents as the Company or such representatives deem necessary
or
advisable in connection with any such transfer.
(d) Postponement
of Issuance.
Notwithstanding any other provisions of this Agreement, the issuance or delivery
of any shares of Restricted Stock (whether subject to restrictions or
unrestricted) under this Agreement may be postponed for such period as may
be
required to comply with applicable requirements of any national securities
exchange or any requirements under any law or regulation applicable to the
issuance or delivery of such Shares. The Company shall not be obligated to
issue
or deliver any Shares if the issuance or delivery of such Shares shall
constitute a violation of any provision of any law or of any regulation of
any
governmental authority or any national securities exchange.
11. Withholding
of Tax.
The
Company shall reasonably determine the amount of any federal, state, local
or
other income, employment, or other taxes which the Company or any of its
affiliates may reasonably be obligated to withhold with respect to the grant,
vesting, making of an election under Section 83(b) of the Internal Revenue
Code
of 1986, as amended (the “Code”) or other event with respect to the Restricted
Stock. The Company may, in its sole discretion, withhold and/or reacquire a
sufficient number of shares of Restricted Stock in connection with the vesting
of such shares at their then Fair Market Value to satisfy the amount of any
such
withholding obligations that arise with respect to the vesting of such shares.
The Company may take such action(s) without notice to the Grantee and shall
remit to the Grantee the balance of any proceeds from withholding and/or
reacquiring such shares in excess of the amount reasonably determined to be
necessary to satisfy such withholding obligations. The Grantee shall have no
discretion as to the satisfaction of tax withholding obligations in such manner.
If, however, the Grantee makes an election under Section 83(b) of the Code
with
respect to the Restricted Stock, if any other withholding event occurs with
respect to the Restricted Stock other than the vesting of such stock, or if
the
Company for any reason does not satisfy the withholding obligations with respect
to the vesting of the Restricted Stock as provided above in this Section 11,
the
Company shall be entitled to require a cash payment by or on behalf of the
Grantee and/or to deduct from other compensation payable to the Grantee the
amount of any such withholding obligations.
12. Section
83(b) Election.
The
Grantee hereby acknowledges that, with respect to the grant of the Restricted
Stock, the Grantee may file an election with the Internal Revenue Service,
within 30 days of the date of grant, electing pursuant to Section 83(b) of
the
Code, to be taxed currently on the Fair Market Value of the Restricted Stock
on
the date of grant.
THE
GRANTEE HEREBY ACKNOWLEDGES THAT IT IS THE GRANTEE’S SOLE RESPONSIBILITY AND NOT
THE RESPONSIBILITY OF THE COMPANY TO TIMELY FILE AN ELECTION UNDER SECTION
83(b)
OF THE CODE, EVEN IF THE GRANTEE REQUESTS THE COMPANY OR ITS REPRESENTATIVE
TO
MAKE THIS FILING ON THE GRANTEE’S BEHALF.
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13. 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,
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 Grantee, 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 Grantee
may change his or her address by written notice as provided in this Section
14(c).
(d) This
Award does not confer upon the Grantee 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 Restricted Stock Agreement to be executed on behalf
of
the Company, and the Grantee has executed this Restricted Stock Agreement under
seal, all as of the day and year first above written.
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Xethanol Corporation
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GRANTEE
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By:
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By:
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Name:
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Name:
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Address:
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Address:
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SCHEDULE A
TO
RESTRICTED STOCK AGREEMENT
BETWEEN
XETHANOL CORPORATION
AND
Dated: October
9, 2008
1. Number
of Shares Subject to Award:
___________________
shares
of Restricted Stock.
2. Grant
Date Value of Award:
The
parties acknowledge that the closing price of the Company’s common stock listed
on the American Stock Exchange on the date on which shares of the Restricted
Stock were granted was $0.19 per share.
3. Vesting
Schedule:
The
Restricted
Stock shall
vest as to the number of shares specified below upon satisfaction of the vesting
conditions described below, subject to the earlier forfeiture of the Restricted
Stock 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 Restricted Stock shall vest 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 Restricted Stock shall be forfeited.
(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 Restricted
Stock shall vest 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 Restricted
Stock shall vest 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.
4. Effect
of Termination of Employment of Grantee
(if
different from that provided in Section 7 of the Restricted Stock Agreement):
Not applicable.
SCHEDULE
B
TO
RESTRICTED
STOCK
AGREEMENT
BETWEEN
XETHANOL
CORPORATION
AND
STOCK
POWER
FOR
VALUE
RECEIVED and pursuant to that certain Restricted Stock Agreement between
Xethanol Corporation, a Delaware corporation (the “Company”), and
___________________________ (the “Grantee”) dated as of October 9, 2008, the
Grantee hereby sells, assigns and transfers unto the Company, an aggregate
of
___________________ shares of common stock of the Company, standing in the
Grantee’s name on the books of the Company and, if such shares are in
certificate form, represented by stock certificate number(s)
_________________________________, to which this instrument is attached, and
hereby irrevocably constitutes and appoints __________________________ as his
or
her lawful attorney in fact and agent to transfer such shares on the books
of
the Company with full power of substitution in the premises. This Stock Power
is
coupled with an interest and is irrevocable.
IN
WITNESS WHEREOF, the undersigned has executed this Stock Power, effective this
_____ day of ______________, _______.