Exhibit 10.2
DISTRIBUTED ENERGY SYSTEMS CORP
NON-STATUTORY STOCK OPTION
AGREEMENT
1. Grant of Option
.
Distributed Energy Systems Corp, a Delaware
corporation (the “Company”), hereby grants to [
] (the “Optionee”), an option, pursuant to the
Company’s 2003 Stock Option Plan (the “Plan”), to
purchase an aggregate of [
] shares of Common Stock (“Common Stock”) of the
Company at a price of [
] ($
) per share, purchasable as set forth in and subject to the terms
and conditions of this option and the Plan. Except where the
context otherwise requires, the term “Company” shall
include the parent and all present and future subsidiaries of the
Company as defined in Sections 424(e) and 424(f) of the Internal
Revenue Code of 1986, as amended or replaced from time to time (the
“Code”).
2. Exercise of Option and
Provisions for Termination .
(a) Vesting Schedule . Except
as otherwise provided in this Agreement, this option may be
exercised prior to the tenth anniversary of the date of grant (the
“Expiration Date”) in installments as to not more than
the number of shares set forth in the table below during the
respective installment periods set forth in the table
below.
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Exercise Period
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Number of Shares
as to which
Option is
Exercisable
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The right of exercise shall be cumulative so
that if the option is not exercised to the maximum extent
permissible during any exercise period, it shall be exercisable, in
whole or in part, with respect to all shares not so purchased at
any time prior to the Expiration Date or the earlier termination of
this option. Notwithstanding the foregoing, in the event of the
death of the Optionee while he or she is a director of the Company,
the vesting of this option shall accelerate such that this option
shall thereupon become fully exercisable, in whole or in part, with
respect to all of the shares subject hereto not previously
purchased pursuant to the provisions hereof. This option may not be
exercised at any time on or after the Expiration Date.
(b) Exercise Procedure .
Subject to the conditions set forth in this Agreement, this option
shall be exercised by the Optionee’s delivery of written
notice of exercise to the Treasurer of the Company, specifying the
number of shares to be purchased and the purchase price to be paid
therefor and accompanied by payment in full in accordance with
Section 3. Such exercise shall be effective upon receipt by the
Treasurer of the Company of such written notice together with the
required payment. The Optionee may purchase less than the number of
shares covered hereby, provided that no partial exercise of this
option may be for any fractional share.
(c) Exercise Period Upon
Death . If the Optionee dies prior to the Expiration Date, the
right to exercise this option shall terminate one year following
the date of death of the Optionee (but in no event after the
Expiration Date). In such event, this option shall be exercisable,
within the period of one year following the date of death of the
Optionee (but in no event after the Expiration Date), by the person
to whom this option is transferred by will or the laws of descent
and distribution, provided that this option shall be
exercisable only to the extent that this option was exercisable by
the Optionee on the date of his or her death. Except as otherwise
indicated by the context, the term “Optionee”, as used
in this option, shall be deemed to include the estate of the
Optionee or any person who acquires the right to exercise this
option by bequest or inheritance or otherwise by reason of the
death of the Optionee.
3. Payment of Purchase
Price
(a) Method of Payment .
Payment of the purchase price for shares purchased upon exercise of
this option shall be made (i) by delivery to the Company of cash or
a check to the order of the Company in an amount equal to the
purchase price of such shares, (ii) subject to the consent of the
Company, by delivery to the Company of shares of Common Stock of
the Company then owned by the Optionee having a fair market value
equal in amount to the purchase price of such shares, (iii) by any
other means which the Board of Directors determines are consistent
with the purpose of the Plan and with applicable laws and
regulations (including, without limitation, the provisions of Rule
16b-3 under the Securities Exchange Act of 1934 and Regulation T
promulgated by the Federal Reserve Board), or (iv) by any
combination of such methods of payment.
(b) Valuation of Shares or Other
Non-Cash Consideration Tendered in Payment of Purchase Price .
For the purposes hereof, the fair market value of any share of the
Company’s Common Stock or other non-cash consideration which
may be delivered to the Company in exercise of this option shall be
determined in good faith by the Board of Directors of the
Company.
(c) Delivery of Shares Tendered
in Payment of Purchase Price . If the Optionee exercises
options by delivery of shares of Common Stock of the Company, the
certificate or certificates representing the shares of
Common
