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EXHIBIT 10.2
SURGE GLOBAL ENERGY, INC.
NOTICE OF GRANT OF STOCK OPTION
Non-Plan Option
William Greene (the
“ Optionee ”) has been
granted an option (the “
Option ”) to purchase certain
shares of Stock of Surge Global Energy, Inc., a Delaware
corporation, pursuant to the Stock Option
Agreement attached hereto (the “
Agreement ”), as
follows:
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Date of Option Grant:
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July
17, 2007
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Number of Option Shares:
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200,000
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Initial Exercise Date:
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Date
of Option Grant
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Initial Vesting Date:
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Date
of Option Grant
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Option Expiration Date:
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The
date ten (10) years after the Date of Option Grant.
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Tax Status of Option:
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Nonstatutory Stock Option . (Enter
“Incentive” or
“Nonstatutory.” If blank, this Option will
be a Nonstatutory Stock Option.)
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Vested Shares:
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Except
as provided in the Stock Option Agreement, the
number ofvested Shares (disregarding any resulting
fractional share) as of anydate as determined by multiplying the
Number of Option Shares by the “ Vested
Ratio ” determined as of such date as
follows:
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Vested
Ratio
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On
Initial Vesting Date
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200,000
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Other Vesting Provisions:
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None.
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Exceptions to Provisions of
Stock Option Agreement:
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None.
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By
their signatures below, the Company and the Optionee agree
that the Option is governed by this Notice and by the
provisions of the Stock Option Agreement (except as otherwise
set forth opposite Exceptions to Provisions of Stock Option
Agreement), which is attached to and made a part of this
document. The Optionee acknowledges receipt of a
copy of the Stock Option Agreement, represents that the
Optionee has read and is familiar with its provisions, and
hereby accepts the Option subject to all of its terms and
conditions.
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SURGE
GLOBAL ENERGY, INC.
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OPTIONEE:
William Greene
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By:
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Signature
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Print
Name:
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Date
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ATTACHMENTS: Stock
Option Agreement
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Address
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THE
SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT
BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE
STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE
PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF
SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100,
25102, OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT
ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING
OBTAINED, UNLESS THE SALE IS SO EXEMPT.
THE
SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR DISTRIBUTION
THEREOF. NO SUCH SALE OR DISPOSITION MAY BE
EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES
ACT OF 1933
SURGE GLOBAL ENERGY, INC.
STOCK OPTION AGREEMENT
Non-Plan Option
Surge
Global Energy, Inc., a Delaware corporation, has granted to
the individual (the " Optionee ")
named in the Notice of Grant of Stock Option (the "
Notice ") to which this Stock Option
Agreement (the " Option Agreement ")
is attached an option (the " Option
") to purchase certain shares of Stock upon the terms and
conditions set forth in the Notice and this Option
Agreement. By signing the Notice, the Optionee:
(a) represents that the Optionee has read and is familiar
with the terms and conditions of the Notice and this Option
Agreement, including the Effect of Termination of Service set
forth in Section 7, (b) accepts the Option subject
to all of the terms and conditions of the Notice and this
Option Agreement, (c) agrees to accept as binding,
conclusive and final all decisions or interpretations of the
Board upon any questions arising under the Notice or this
Option Agreement, and (d) acknowledges receipt of a copy
of the Notice and this Option Agreement.
1.
Definitions and Construction
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1.1
Definitions . Whenever used
herein, the following terms shall have their respective
meanings set forth below:
(a) "
Board " means the Board of Directors
of the Company, or a committee of the Board duly appointed to
administer this Option and having such powers as shall be
specified by the Board.
(b) "
Code " means the Internal Revenue
Code of 1986, as amended, and any applicable regulations
promulgated thereunder.
(c) "
Company " means Surge Global Energy,
Inc., a Delaware corporation, or any successor corporation
thereto.
(d) "
Consultant " means a person engaged
to provide consulting or advisory services (other than as an
Employee or a Director) to a Participating Company, provided
that the identity of such person, the nature of such services
or the entity to which such services are provided would not
preclude the Company from offering or selling securities to
such person pursuant to this Agreement in reliance on either
the exemption from registration provided by Rule 701 under the
Securities Act or, if the Company is required to file reports
pursuant to Section 13 or 15(d) of the Exchange Act,
registration on a Form S-8 Registration Statement under the
Securities Act.
(e) "
Director " means a member of the
Board or of the board of directors of any other Participating
Company.
(f) "
Disability " means the inability of
the Optionee, in the opinion of a qualified physician
acceptable to the Company, to perform the major duties of the
Optionee's position with the Participating Company Group
because of the sickness or injury of the
Optionee.
(g) "
Employee " means any person treated
as an employee (including an officer or a Director who is also
treated as an employee) in the records of a Participating
Company; provided, however, that neither service as a Director
nor payment of a director's fee shall be sufficient to
constitute employment for purposes of this
Agreement. The Company shall determine in good
faith and in the exercise of its discretion whether an
individual has become or has ceased to be an Employee and the
effective date of such individual's employment or termination
of employment, as the case may be.
(h) "
Exchange Act " means the Securities
Exchange Act of 1934, as amended.
(i) "
Fair Market Value " means, as of any
date, the value of a share of Stock or other property as
determined by the Board, in its discretion, or by the Company,
in its discretion, if such determination is expressly
allocated to the Company herein, subject to the
following:
(i) If,
on such date, the Stock is listed on a national or regional
securities exchange or market system, the Fair Market Value of
a share of Stock shall be the closing price of a share of
Stock (or the mean of the closing bid and asked prices of a
share of Stock if the Stock is so quoted instead) as quoted on
the Nasdaq National Market, The Nasdaq SmallCap Market or such
other national or regional securities exchange or market
system constituting the primary market for the Stock, as
reported in The Wall Street Journal or such other
source as the Company deems reliable. If the
relevant date does not fall on a day on which the Stock has
traded on such securities exchange or market system, the date
on which the Fair Market Value shall be established shall be
the last day on which the Stock was so traded prior to the
relevant date, or such other appropriate day as shall be
determined by the Board, in its discretion.
(ii) If,
on such date, the Stock is not listed on a national or
regional securities exchange or market system, the Fair Market
Value of a share of Stock shall be as determined by the Board
in good faith without regard to any restriction other than a
restriction which, by its terms, will never
lapse.
(j) "
Incentive Stock Option " means an
Option intended to be (as set forth in the Option Agreement)
and which qualifies as an incentive stock option within the
meaning of Section 422(b) of the Code.
(k) "
Insider " means an officer or a
Director of the Company or any other person whose transactions
in Stock are subject to Section 16 of the Exchange
Act.
(l) "
Nonstatutory Stock Option " means an
Option not intended to be (as set forth in the Option
Agreement) or which does not qualify as an Incentive Stock
Option.
(m) "
Parent Corporation " means any
present or future "parent corporation" of the Company, as
defined in Section 424(e) of the Code.
(n) "
Participating Company " means the
Company or any Parent Corporation or Subsidiary
Corporation.
(o) "
Participating Company Group " means,
at any point in time, all corporations collectively which are
then Participating Companies.
(p) "
Securities Act " means the
Securities Act of 1933, as amended.
(q) "
Service " means the Optionee's
employment or service with the Participating Company Group,
whether in the capacity of an Employee, a Director or a
Consultant. The Optionee's Service shall not be
deemed to have terminated merely because of a change in the
capacity in which the Optionee renders Service to the
Participating Company Group or a change in the Participating
Company for which the Optionee renders such Service, provided
that there is no interruption or termination of the Optionee's
Service. Furthermore, the Optionee's Service with
the Participating Company Group shall not be deemed to have
terminated if the Optionee takes any military leave, sick
leave, or other bona fide leave of absence approved by the
Company; provided, however, that if any such leave exceeds
ninety (90) days, on the ninety-first (91st) day of such leave
the Optionee's Service shall be deemed to have terminated
unless the Optionee's right to return to Service with the
Participating Company Group is guaranteed by statute or
contract. Notwithstanding the foregoing, unless
otherwise designated by the Company or required by law, a
leave of absence shall not be treated as Service for purposes
of determining vesting under this Option
Agreement. The Optionee's Service shall be deemed
to have terminated either upon an actual termination of
Service or upon the corporation for which the Optionee
performs Service ceasing to be a Participating
Company. Subject to the foregoing, the Company, in
its discretion, shall determine whether the Optionee's Service
has terminated and the effective date of such
termination.
(r) "
Stock " means the common stock of
the Company, as adjusted from time to time in accordance with
Section 9.
(s) "
Subsidiary Corporation " means any
present or future "subsidiary corporation" of the Company, as
defined in Section 424(f) of the Code.
1.2
Construction . Captions and titles
contained herein are for convenience only and shall not affect
the meaning or interpretation of any provision of this Option
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.
2.
Tax Status of Option . This
Option is intended to be a Nonstatutory Stock Option and shall
not be treated as an Incentive Stock Option within the meaning
of Section 422(b) of the Code.
3.
Administration .
All
questions of interpretation concerning this Option Agreement
shall be determined by the Board. All
determinations by the Board shall be final and binding upon
all persons having an interest in the Option. Any
officer of a Participating Company shall have the authority to
act on behalf of the Company with respect to any matter,
right, obligation, or election which is the responsibility of
or which is allocated to the Company herein, provided the
officer has apparent authority with respect to such matter,
right, obligation, or election.
4.
Exercise of the Option .
4.1
Right to Exercise . Except as
otherwise provided herein, the Option shall be exercisable on
and after the Initial Exercise Date and prior to the
termination of the Option (as provided in Section 6) in
an amount not to exceed the Number of Vested Shares
(determined in accordance with the Notice) less the number of
shares previously acquired upon exercise of the
Option.
4.2
Method of Exercise . Exercise of
the Option shall be by written notice to the Company in the
form of Exhibit A hereto (the " Exercise
Notice ") which must state the election to
exercise the Option, the number of whole shares of Stock for
which the Option is being exercised and such other
representations and agreements as to the Optionee's investment
intent with respect to such shares as may be required pursuant
to the provisions of this Option Agreement. 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
Financial Officer of the Company, or other authorized
representative of the Participating Company Group, 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 shares of Stock being
purchased. The Option shall be deemed to be
exercised upon receipt by the Company of such written notice,
the aggregate Exercise Price, and, if required by the Company,
such executed agreement.
4.3
Payment of Exercise Price . Except
as otherwise provided below, payment of the aggregate Exercise
Price for the number of shares of Stock for which the Option
is being exercised shall be made (i) in cash, by check,
or cash equivalent, (ii) by means of a Cashless Exercise,
as defined below, or (iii) by any combination of the
foregoing. Optionee shall be responsible for filing
any reports of remittance or other foreign exchange filings
required in order to pay the exercise price. A "
Cashless Exercise " means the
delivery of a properly executed notice together with
irrevocable instructions to a broker in a form acceptable to
the Company providing for the assignment to the Company of the
proceeds of a sale or loan with respect to some or all of the
shares of Stock acquired upon the exercise of the Option
pursuant to a program or procedure approved by the Company
(including, without limitation, through an exercise complying
with the provisions of Regulation T as promulgated from time
to time by the Board of Governors of the Federal Reserve
System). The Company reserves, at any and all
times, the right, in the Company's sole and absolute
discretion, to decline to approve or terminate any such
program or procedure.
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 (including by means of a Cashless Exercise to
the extent permitted by the Com
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