Exhibit 10.4
AMERICAN SUPERCONDUCTOR
CORPORATION
NON-STATUTORY STOCK OPTION
AGREEMENT
1. Grant of Option . American
Superconductor Corporation, a Delaware corporation (the
“Company”), hereby grants on this
day
of
,
to
(the “Optionee”) an option, pursuant to the
Company’s 1996 Stock Incentive 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. Non-Statutory Stock Option
. This option is not intended to qualify as an incentive stock
option within the meaning of Section 422 of the
Code.
3. 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
(hereinafter 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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Percentage of Shares as to which
Option is Exercisable
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Less than one year from (fill in date of
option) (the “Vesting Date”)
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At least one year but less than two years from
the Vesting Date
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At least two years but less than three years
from the Vesting Date
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At least three years but less than four years
from the Vesting Date
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At least four years but less than five years
from the Vesting Date
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At least five years from the Vesting
Date
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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. This option may not be exercised at any time on or
after the Expiration Date, except as otherwise provided in
Section 3(e) below.
(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 4. 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 or for fewer than
ten whole shares.
(c) Continuous Relationship with
the Company Required . Except as otherwise provided in this
Section 3, this option may not be exercised unless the
Optionee, at the time he or she exercises this option, is, and has
been at all times since the date of grant of this option, an
employee, officer or director of, or consultant or advisor to, the
Company (an “Eligible Optionee”).
(d) Termination of Relationship
with the Company . If the Optionee ceases to be an Eligible
Optionee for any reason, then, except as provided in paragraphs
(e) and (f) below, the right to exercise this option
shall terminate [60 days] after such cessation (but in no event
after the Expiration Date), provided that this option shall be
exercisable only to the extent that the Optionee was entitled to
exercise this option on the date of such cessation. Notwithstanding
the foregoing, if the Optionee, prior to the Expiration Date,
materially violates the non-competition or confidentiality
provisions of any employment contract, confidentiality and
nondisclosure agreement or other agreement between the Optionee and
the Company, the right to exercise this option shall terminate
immediately upon written notice to the Optionee from the Company
describing such violation.
(e) Exercise Period Upon Death or
Disability . If the Optionee dies or becomes disabled (within
the meaning of Section 22(e)(3) of the Code) prior to the
Expiration Date while he or she is an Eligible Optionee, or if the
Optionee dies within three months after the Optionee ceases to be
an Eligible Optionee (other than as the result of a termination of
such relationship by the Company for “cause” as
specified in paragraph (f) below), this option shall be
exercisable, within the period of [180 days] following the date of
death or disability of the Optionee (whether or not such exercise
occurs before the Expiration Date), by the Optionee or 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 or disability. Except
as otherwise indicated by the context, the term
2
“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.
(f) Discharge for Cause . If
the Optionee, prior to the Expiration Date, is discharged by the
Company for “cause” (as defined below), the right to
exercise this option shall terminate immediately upon such
cessation of employment. “Cause” shall mean willful
misconduct by the Optionee in connection with the Optionee’s
employment or willful failure to perform his or her
responsibilities in the best interests of the Company (including,
without limitation, breach by the Optionee of any provision of any
employment, consulting, advisory, nondisclosure, non-competition or
other similar agreement between the Optionee and the Company), as
determined by the Company, which determination shall be conclusive.
The Optionee shall be considered to have been discharged “for
cause” if the Company determines, within 30 days after the
Optionee’s resignation, that discharge for cause was
warranted.
4. 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 this
option by delivery of shares of Common Stock of the Company, the
certificate or certificates representing the shares of Common Stock
of the Company to be delivered shall be duly executed in blank by
the Optionee or shall be accompanied by a stock power duly executed
in blank suitable for purposes of transferring such shares to the
Company. Fractional shares of Common Stock of the Company will not
be accepted in payment of the purchase price of shares acquired
upon exercise of this option.
(d) Restrictions on Use of Option
Stock . Notwithstanding the foregoing, no shares of Common
Stoc
