OPTION AGREEMENT AWARDING OPTIONS TO PURCHASE ______________ SHARES OF COMMON STOCK, PAR VALUE $0.0001 PER SHARE, ISSUED BY FUTUREFUEL CORP.
Exhibit
4.2
AWARDING
OPTIONS
TO
PURCHASE ______________ SHARES OF
COMMON
STOCK, PAR VALUE $0.0001 PER SHARE, ISSUED BY
This is to certify that
____________________ (“Participant”)
is entitled, upon the due exercise hereof at any time during the Exercise Period
(as defined below), to purchase, in whole or in part, from FutureFuel Corp., a
Delaware corporation (the “Company”),
_______________ shares (subject to adjustment as herein provided) of Common
Stock (as defined below) at the Exercise Price (as defined below) (subject to
adjustment as herein provided), all on the terms and conditions and pursuant to
the provisions hereinafter set forth.
This Option Agreement is entered into,
and the Options hereunder are granted, pursuant to that 2007 Omnibus Incentive
Plan of the Company as adopted on May 29, 2007 by the Company’s board of
directors and approved by the Company’s shareholders on June 26,
2007.
__________, 200_
1.
Definitions. For
purposes of this Agreement, the following capitalized terms have the following
meanings. In addition, capitalized terms used but defined herein have
the meanings ascribed to them in the Plan.
“Agreement”
means this Option Agreement.
“Business
Day” means a day other than a Saturday, Sunday or other day on which
commercial banks are authorized or required to close under the laws of the
United States of America or the State of Missouri.
“Code”
means the Internal Revenue Code of 1986.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock, par value $0.001 per share, of the
Company.
“Company”
means FutureFuel Corp., a Delaware corporation.
“$” or
“Dollar”
means United States of America dollars.
“Exercise
Period” means the period commencing on the date of this Agreement and
terminating at 5:00 p.m. St. Louis time on the Option Expiration
Date.
“Exercise
Price” means $_______ per Share, as such price may be adjusted from time
to time pursuant to Section 5.
“Notice of
Exercise” means the form of Notice of Exercise attached hereto as
Exhibit A.
“Option”
means an option granted under this Agreement to purchase Shares.
“Option Expiration
Date” means [insert date].
“Participant”
means the Person to whom Options have been granted as set forth on the first
page of this Agreement or to whom an Option has been assigned or transferred as
permitted hereunder.
“Plan”
means the Company’s 2007 Omnibus Incentive Plan.
“Shares”
means shares of Common Stock, and any class of stock of the Company now or
hereafter authorized into which such shares may be converted.
2.
Intent as to Nonqualified Stock Options. Each
Option is a Nonqualified Stock Option. The Options granted hereunder
are not intended to be considered “nonqualified deferred compensation” within
the meaning of §409A of the Code. It is also intended that the
receipt, transfer or exercise of the Options will be subject to taxation
pursuant to Code §83 and Treasury Regulation §1.83-7.
3.
Vesting. Options
granted hereunder vest as follows:
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Period
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Options
That
Have
Vested
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First
annual anniversary of this Agreement
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Second
annual anniversary of this Agreement
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Third
annual anniversary of this Agreement
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Notwithstanding
the preceding, any unvested Option becomes fully vested as set forth
below.
4.
Exercise of Option.
4.1.
Right to Exercise. Subject
to and upon compliance with the conditions of this Section 4, the
Participant has the right, at the Participant’s option and at any time and from
time to time during the Exercise Period, to exercise vested Options in whole or
in part. The aggregate number of Shares which may be
purchased
from time
to time during the Exercise Period by the Participant upon the exercise of the
vested Options is [insert number] Shares, subject to adjustment as provided in
Section 5.
4.2.
Notice of Exercise. To
exercise a vested Option, the Participant must deliver or cause to be delivered
to the Company at the Company’s principal office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary (or such other place as
the Company may specify by written notice to the Participant): (i) a Notice
of Exercise duly executed by the Participant and specifying the number of full
Shares to be purchased; (ii) an amount equal to the aggregate Exercise
Price for the number of full Shares as to which Options are then being
exercised; and (iii) this Agreement.
4.3.
Payment of Exercise Price. Payment
of the Exercise Price must be made, at the option of the Participant:
(i) by wire transfer to an account in a bank located in the United States
of America designated for such purpose by the Company; or (ii) by certified
or official bank check payable to the order of the Company. The
Company may also, at the Administrator’s option, to accept other consideration
as set forth in the Plan.
4.4.
Issuance of Shares. Upon
receipt of the Notice of Exercise and the aggregate Exercise Price set forth in
the Notice of Exercise, the Company will, as promptly as practicable and in any
event within ten Business Days thereafter, cause to be issued and delivered to
the Participant or to such other Person as is designated by the Participant in
the Notice of Exercise, one or more certificates representing the aggregate
number of full Shares issuable upon such exercise, which Shares must be
registered in the name of the Participant or such other Person.
4.5.
Effective Dates. Unless
otherwise requested by the Participant in the Notice of Exercise, for all
purposes vested Options will be deemed to have been exercised, the certificates
described in Section 4.4 will be deemed to have been issued and the
Participant will be deemed to have become the holder of record of the Shares
described in Section 4.4 as of the close of business in St. Louis on the
date the applicable Notice of Exercise, together with the payment of the
Exercise Price and this Agreement, are received by the Company.
4.6.
Partial Exercises. If
the vested Options are exercised in part, the Company will, at the time of
delivery of the applicable certificates for Shares (unless the Options have then
expired), issue and deliver to the Participant or the Person designated by the
Participant in the applicable Notice of Exercise, a new Agreement evidencing the
right of the Participant or such other Person to purchase the aggregate number
of Shares for which Options have not been exercised and otherwise in form and
substance identical to this Agreement, upon which this Agreement will be
canceled.
5.
Antidilution Provisions.
5.1.
Adjustment of the Number of Shares Purchasable and Adjustment of the Exercise
Price. The
Exercise Price in effect at any time and the number of Shares which may be
purchased upon the exercise of the Options will be subject to adjustment as set
forth in Section 17 of the Plan.
5.2.
No Requirement to Issue Fractional Shares. The
Company will not be required to issue fractional shares upon any exercise of a
vested Option. If any fractional interest in a Share would, but for
the provisions of this Section, be deliverable upon the exercise of a vested
Option, the Company will, in lieu of delivering any certificate of such
fractional interest, satisfy such fractional interest by paying to the
Participant any amount in Dollars equal (computed to the nearest cent) to the
appropriate fraction of the Current Market Price of a Share on the date of
exercise of the Option.
5.3.
Certificate as to Adjustment. The
Company will, from time to time, immediately after the occurrence of any event
which requires an adjustment or readjustment as provided in Section 5.1,
deliver to the Participant a certificate of a national firm of certified public
accountants appointed by the Company specifying the nature of the event
requiring the adjustment or readjustment, as applicable, and the amount of the
adjustment or readjustment necessitated thereby, including the resulting
Exercise Price, and setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based.
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6.
Corporate Actions; Reservation of Shares Issuable Upon the Exercise of the
Options.
6.1.
Corporate Actions. The
Company will: (i) take all such action as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and
nonassessable Shares upon the exercise of the Options and any required issuance
of additional Shares pursuant to Sections 5.1 and 5.2; and (ii) take
commercially reasonable efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof and take
all such other action as may be necessary to enable the Company to perform its
obligations under this Agreement.
6.2.
Reservation of Shares. The
Company will at all times reserve and keep available, solely for issuance, sale
and delivery upon the exercise of the Options, a number of Shares equal to the
number of full Shares issuable from time to time upon the exercise of the
Options. All Shares issuable upon the exercise of an Option will,
when issued upon such exercise: (i) be duly and validly authorized and
issued, fully paid and nonassessable; and (ii) be free from all taxes,
liens and charges with respect to the issue thereof other than any share
transfer taxes in respect of any transfer occurring contemporaneously with such
issue. The Company will not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any exercise
of an Option or transfer of the Shares issuable upon the exercise of an Option,
and the Company will not be required to issue or deliver any Shares issuable
upon the exercise of an Option until such tax or other charge has been paid or
it has been established to the Company’s satisfaction that no such tax or other
charge is due.
7.
Restrictions on Transfer.
7.1.
Transfers of Option. The
Participant may not transfer, directly or indirectly, voluntarily or
involuntarily, by operation of law (including a merger or consolidation),
judicial decree or otherwise (including a collateral pledge), this Agreement or
any Option or any right therein, without the Company’s prior written consent,
which consent may be given or withheld in the Company’s sole
discretion.
7.2.
Transfer of Shares. Subject
to compliance with applicable securities laws, the holder of any Shares issuable
upon the exercise of a vested Option (either in whole or in part), may transfer
such Shares, in whole or in part, without the Company’s consent.
7.3.
Notice of Transfers; Transfers. The
Participant or the holder of any Shares issuable upon the exercise of a vested
Option, by acceptance hereof or thereof, agrees to give written notice to the
Company prior to any proposed transfer of an Option or any interest herein, or
any such Shares which bear the legends described in Section 7.4, of its
intention to make such transfer, which notice must include a brief description
of such proposed transfer. If in the opinion of counsel to the
Company the proposed transfer may be effected without registration or
qualification under applicable securities laws, such counsel will, as promptly
as practicable, notify the Company and the Participant of such opinion and of
the terms and conditions, if any, to be observed in such
transfer. Provided the Company gives its consent as set forth in
Section 6.1 and subject to the restrictions, if any, in Section 7.2,
the Participant will be entitled to transfer an Option or such Shares in
accordance with the terms of the notice delivered to the Company and the opinion
of such counsel. In the event an Option is exercised as an incident
to such transfer, such exercise relates back and for all purposes of this
Agreement will be deemed to have occurred as of the date of such notice
regardless of delays incurred by reason of the provisions of this Section which
may result in the actual exercise on any later date.
7.4.
Legend on Certificates.
7.4.1.
Legend. In
case any Shares are issued upon the exercise in whole or in part of an Option
under such circumstances that no registration under the Securities Act is
required or effected, each certificate representing such Shares must bear on the
face thereof the following legend:
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The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended, and any transfer thereof is subject to
compliance with the registration requirements of the Securities Act of
1933, as amended, or an exemption therefrom.
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7.4.2.
Removal of Legend. If
the Company receives an opinion of counsel that the legend described in
Section 7.4.1 is no longer necessary on such certificate to protect the
Company from a violation of the Securities Act, the Company will, or will
instruct its transfer agent and registrar to, issue in lieu thereof a new
certificate or certificates for such Shares in the name of the Participant
without such legend on the face thereof. The Company is not obligated
to effect the registration of the Options or any Shares under the Securities
Act.
8.
Effect of the Administrator’s Decision. All
decisions, determinations and interpretations by the Administrator regarding
this Agreement, the Plan, any rules and regulations under the Plan and the terms
and conditions of any Option granted hereunder, are final and binding on all
Participants. The Administrator may consider such factors as it deems
relevant, in its sole and absolute discretion, to making such decisions,
determinations and interpretations including the recommendations or advice of
any officer or other employee of the Company and such attorneys, consultants and
accountants as it may select.
9.
Effect of Termination of Employment.
9.1.
Generally. Upon
a Participant’s Termination of Employment other than as a result of
circumstances otherwise described in this Section 9: (i) all vesting
with respect to the unvested Options ceases; (ii) any unvested Options
expire as of the date of such termination; and (iii) any unexercised vested
Options remain exercisable until the earlier of the Option Expiration Date or
the date that is 90 days after the date of such Termination of
Employment.
9.2.
For Cause. If
prior to the Option Expiration Date, a Participant’s employment or service, as
applicable, with the Employer is terminated by the Employer for Cause, all
unexercised Options (whether or not vested) immediately expire as of the date of
such Termination of Employment.
9.3.
Retirement. If
prior to the Option Expiration Date, a Participant’s employment or service, as
applicable, with the Employer terminates by reason of such Participant’s
retirement: (i) all vesting with respect to unvested Options ceases;
(ii) any unvested Options expire as of the date of such termination; and
(iii) any unexercised vested Options expire on the earlier of the Option
Expiration Date or the date that is 180 days after the date of such termination
due to such retirement of the Participant. Retirement will be
determined by the Administrator in accordance with the Company’s retirement
policy.
9.4.
Disability or Death. If
prior to the Option Expiration Date, a Participant’s employment or service, as
applicable, with the Employer terminates by reason of such Participant’s death
or Disability: (i) all vesting with respect to unvested Options ceases;
(ii) any unvested Options expire as of the date of such termination; and
(iii) any unexercised Options expire on the earlier of the Option
Expiration Date or the date that is 365 days after the date of such termination
due to death or Disability of the Participant.
9.5.
Divestiture. If
a Participant will cease to be an Employee because of a divestiture by the
Company, prior to such Termination of Employment, the Administrator may, in its
sole discretion, make some or all of the outstanding unvested Options become
fully vested and exercisable and may provide that any unexercised Options remain
exercisable for a period of time to be determined by the Administrator but not
later than the 15th day of
the third month following the date at which the Options would have otherwise
expired. The determination of whether a divestiture will occur will
be made by the Administrator in its sole discretion. If, after the
close of the divestiture, the Participant does not exercise the unexercised
Options within the time specified therein, such Options automatically
terminate.
9.6.
Work Force Restructuring or Similar Program. If
a Participant will cease to be an Employee because of a work force restructuring
or similar program, prior to such Termination of Employment, the Administrator
may, in its sole discretion, make some or all of the outstanding unvested
Options become fully vested and exercisable and may provide that any unexercised
Options remain exercisable for a period of time to be determined by the
Administrator but not later than the 15th day of
the third month following the date at which the Options would have otherwise
expired. The determination of whether a work force restructuring will
occur will be made by the Administrator in its sole discretion. If,
after Participant’s Termination of Employment, the Participant does not exercise
his unexercised Options within the time specified therein, such Options
automatically terminate.
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10.
General Provisions.
10.1.
Amendment and Modification. No
amendment, modification, supplement, termination, consent or waiver of any
provision of this Agreement, nor consent to any departure therefrom, will in any
event be effective unless the same is in writing and is signed by the
Participant and the Company.
10.2.
Captions. Captions
contained in this Agreement have been inserted herein only as a matter of
convenience and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provision hereof.
10.3.
Construction. Unless
the context of this Agreement clearly requires otherwise: (i) references to
the plural include the singular and vice versa; (ii) references to any
Person include such Person’s successors and assigns but, if applicable, only if
such successors and assigns are permitted by this Agreement;
(iii) references to one gender include all genders; (iv) “including”
is not limiting; (v) “or” has the inclusive meaning represented by the
phrase “or”; (vi) the words “hereof”, “herein”, “hereby”, “hereunder” and
similar terms in this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement; (vii) section references are to
this Agreement unless otherwise specified; (viii) reference to any
agreement (including this Agreement), document or instrument means such
agreement, document or instrument as amended or modified and in effect from time
to time in accordance with the terms thereof and, if applicable, the terms
hereof; and (ix) specific or general references to any law mean such law as
amended, modified, codified or reenacted, in whole or in part, and in effect
from time to time.
10.4.
Exhibits. All
of the Exhibits attached to this Agreement are deemed incorporated herein by
reference.
10.5.
Governing Law. This
Agreement and the rights and obligations of the parties hereunder are to be
governed by and construed and interpreted in accordance with the laws of the
State of Delaware applicable to contracts made and to be performed wholly within
Delaware, without regard to choice or conflict of laws rules.
10.6.
Invalidity. In
the event that any provision of this Agreement is declared to be illegal,
invalid or otherwise unenforceable by a court of competent jurisdiction, such
provision will be reformed, if possible, to the extent necessary to render it
legal, valid and enforceable, or otherwise deleted, and the remainder of the
terms of this Agreement will not be affected except to the extent necessary to
reform or delete such illegal, invalid or unenforceable provision.
10.7.
Limitation on Liability. The
Company and any Affiliate which is in existence or hereafter comes into
existence is not liable to a Participant or any other Person as to: (i) the
non-issuance or sale of Shares as to which the Company has been unable to obtain
from any regulatory body having jurisdiction the authority deemed by the
Company’s counsel to be necessary to the lawful issuance and sale of such Shares
hereunder; or (ii) any tax consequence expected, but not realized, by any
Participant or other Person due to the receipt, exercise or settlement of any
Option granted hereunder.
10.8.
No Right to Awards or to Employment. No
Person (including Participant) has any claim or right to be granted an
additional award under the Plan and the grant of the Options may not be
construed as giving Participant the right to continue in the employ of the
Company or its Affiliates. Further, the Company and its Affiliates
expressly reserve the right, at any time, to dismiss any Participant at any time
without liability or any claim under this Agreement, except as provided
herein.
10.9.
Notice. Any
written notice to the Company required by any provisions of this Agreement must
be addressed to the Corporate Secretary of the Company and is effective when
received.
10.10.
Participant Not a Shareholder. Except
as otherwise provided herein, prior to the exercise of an Option as set forth
herein, the Participant will not be entitled to any of the rights of a
shareholder of the Company by virtue of the Options, including the right as a
shareholder to: (i) vote or consent; or (ii) receive dividends or any
other distributions made to shareholders.
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10.11.
Reliance on Reports. The
Administrator is fully justified in relying, acting or failing to act, and is
not liable for having so relied, acted or failed to act in good faith, upon any
report made by the independent public accountant of the Company and its
Affiliates and upon any other information furnished in connection with this
Agreement by any Person other than the Administrator.
10.12.
Successors. The
terms of this Agreement inure to the benefit of and are binding upon the Company
and Participant and their respective permitted heirs, beneficiaries, successors
and assigns.
10.13.
Withholding Obligations. As
a condition to the exercise of any Option, the Administrator may require that
the Participant satisfy, through a cash payment by the Participant or, in the
discretion of the Administrator, through deduction or withholding from any
payment of any kind otherwise due to the Participant, or through such other
arrangements as are satisfactory to the Participant, the minimum amount of all
federal, state and local income and other taxes of any kind required or
permitted to be withheld in connection with such exercise. The
Administrator in its discretion may permit Shares to be used to satisfy tax
withholding requirements and such Shares will be valued at their Current Market
Price as of the settlement date of the Option. However, the aggregate
Current Market Price of the number of Shares that may be used to satisfy tax
withholding requirements may not exceed the minimum statutory required
withholding amount with respect to such Option.
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By:
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EXHIBIT
A
FORM
OF NOTICE OF EXERCISE
(To be
executed upon a partial or full exercise of the Options)
The undersigned registered Participant
of the within Options irrevocably exercises the within Options for and purchases
__________ shares of stock (the “Shares”)
of FutureFuel Corp. (the “Company”),
and agrees to make payment therefor in the amount of $____________, all at the
price and on the terms and conditions specified in the within
Agreement. The undersigned requests that a certificate (or ________
certificates in denominations of _______ shares) for Shares of the Company
hereby purchased be issued in the name of and delivered to the
undersigned. If such Shares do not include all of the Shares issuable
as provided in the within Agreement, the undersigned requests that a new
Agreement for the number of Shares of the Company not being purchased hereunder,
and otherwise in form and substance identical to the within Agreement, be issued
in the name of and delivered to the undersigned.
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Dated:
___________________, 200__
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[NAME
OF HOLDER]
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By:
___________________________________
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Name
Printed: __________________________
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Title:
_________________________________
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(Signature
of Registered Participant)
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Signature
Guaranteed:
______________________________________
By:
___________________________________
[Title]
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NOTICE:
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The
signature to this Notice of Exercise must correspond exactly with the name
of the Participant as specified on the face of the within
Agreement.
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The
signature to this Notice of Exercise must be guaranteed by a commercial
bank or trust company in the United States of America or by a member firm
of the New York Stock
Exchange.
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