f8k111309bex10ii_windtamer.htm


    Exhibit 10.2

    
 

    
       

      WindTamer
Corporation

       

      Stock
Option Award Agreement

       

       

      This
award agreement (this “Award
Agreement”), dated as of November 15, 2009, sets forth the terms and
conditions of an award of stock options to purchase with respect to shares
(“Shares”)
of Common Stock (“Common
Stock”) of WindTamer Corporation (the “Company”)
granted to you (the "Optionee")
by the Company under the WindTamer Corporation 2008 Equity Incentive Plan (the
“Plan”).

       

      In
consideration of the covenants set forth in this Agreement, the parties agree as
follows:

      


      1. Option
Information

       

      
        
          	
                  (a)
      Date of Grant:

                	
                  November
      15, 2009

                
	 
      	 
      
	
                  (b)
      Optionee:

                	
                  William
      Schmitz

                
	 
      	 
      
	
                  (c)
      Number of Shares:

                	
                  1,500,000

                
	 
      	 
      
	
                  (d)
      Exercise Price:

                	
                  Equal
      to the last trade on the first day of trading of the Company’s common
      stock on the OTC Bulletin Board.

                


        

         

      

      2. Acknowledgments

      


      (a)
Optionee is an Employee of the Company.

      


      (b) The
Board of Directors of the Company (the “Board”)
has authorized the granting to Optionee of a Nonstatutory Option (“Option“)
to purchase Shares of Common Stock upon the terms and conditions hereinafter
stated.

      


      3. Shares; Price

      


      The
Company hereby grants to Optionee the right to purchase, upon and subject to the
terms and conditions herein stated, the number of Shares of Common Stock set
forth in Section 1(c) above at the price per Share set forth in Section 1(d)
above (the “Exercise
Price“).

      


      4. Term of Option

      


      This
Option shall expire, and all rights under it to purchase the Shares, shall
terminate ten years from the date of this Award Agreement, unless terminated
earlier pursuant to the terms hereof.  Nothing contained in this Award
Agreement shall be construed to interfere in any way with the right of the
Company to terminate Optionee as an Employee the Company, or to increase or
decrease the compensation paid to Optionee from the rate in effect as of the
date of this Agreement.

       

      
        
           

        

        
          
          

          
            

          

        

        
           

        

      

      
 

      5. Vesting of Option

      


       

      Except as
provided in Paragraph 7, you shall become vested in the Options, and the Options
shall become exercisable, in the following installments on the following dates
(each, a “Vesting
Date”):

       

      
        
          	
                  (a)  

                	
                   250,000
      of the Options on the first anniversary of the Date of Grant as set forth
      in Section 1(a) above (“Date of
      Grant”);

                


        

         

      

      
        	
                (b)  

              	
                 250,000
      of the Options on the second anniversary of the Date of Grant;
      and

              


      

       

      
        	
                (c)  

              	
                1,000,000
      of the Options on the third anniversary of the Date of
    Grant.

              


      

       

      6. Exercise

      


      (a) This
Option shall be exercised by delivery to the Company of (a) written notice of
exercise stating the number of Shares being purchased (in whole shares only) and
such other information set forth on the form of Notice of Exercise attached to
this Agreement as Appendix
A, and (b) a check or cash in the amount of the Exercise Price of the
Shares covered by the notice (or such other consideration as has been approved
by the Board consistent with the Plan, including, without limitation, cashless
exercise as provided in Section 8(d)(v) of the Plan).

      


      (b)
Pursuant to Section 13 of the Plan, this Option shall not be assignable or
transferable, except by will or by the laws of descent and distribution, or by
gift or domestic relations orders to the Optionee’s Family Members who agree to
be bound by the terms of this Agreement. "Family Member" for purposes of this
Agreement, includes any child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law,
including adoptive relationships, any person sharing the employee's household
(other than a tenant or employee), a trust in which these persons have more than
fifty percent of the beneficial interest, a foundation in which these persons
(or the employee) control the management of assets, and any other entity in
which these persons (or the employee) own more than fifty percent of the voting
interests.

      


      7. Termination of
Service

      


      If
Optionee's service as an Employee of the Company terminates for any reason,
including, without limitation, death or disability, the provisions of Section 9
of that certain Employment Agreement, dated November 15, 2009, between Optionee
and the Company, as may be amended and restated from time to time, shall govern
subsequent vesting and rights to exercise the Options.

      


      8. No Rights as
Shareholder

      


      Optionee
shall have no rights as a shareholder with respect to the Shares covered by any
installment of this Option until the effective date of the issuance of shares
following exercise of this to Option, and no adjustment will be made for
dividends or other rights for which the record 

       

      
        
           

        

        
          2

          
            

          

        

        
           

        

         

        date is
prior to the date such stock certificate or certificates are issued except as
provided in Section 9 below.

      

      


      9. Recapitalization; Dissolution or
Change in Control

      


      (a)
Subject to any required action by the shareholders of the Company, the number of
Shares covered by this Award Agreement, and the Exercise Price thereof, shall be
proportionately adjusted as provided in Section 14(a) of the Plan.

      


      (b) In
the event of a proposed dissolution or liquidation of the Company, this Award
Agreement shall be governed by Section 14(b) of the Plan.

      


      (c) In
the event of a Change in Control of the Company, this Award Agreement shall be
governed by Section 14(c) of the Plan.  Notwithstanding anything to
the contrary contained in the Plan, upon a Change of Control all of the Options
shall become exercisable immediately prior to such Change of Control and none of
the Options shall be terminated without the prior written consent of the
Optionee.

      


      (d) The
grant of this Award Agreement shall not affect in any way the right or power of
the Company to make adjustments, reclassifications, reorganizations or changes
in its capital or business structure or to merge, consolidate, dissolve or
liquidate or to sell or transfer all or any part of its business or
assets.

      


      10. Taxation Upon Exercise of
Option

      


      Optionee
understands that, upon exercise of this Option, Optionee will recognize income,
for Federal and state income tax purposes, in an amount equal to the amount by
which the fair market value of the Shares, determined as of the date of
exercise, exceeds the Exercise Price. The acceptance of the Shares by Optionee
shall constitute an agreement by Optionee to report such income in accordance
with then applicable law and to cooperate with Company in establishing the
amount of such income and corresponding deduction to the Company for its income
tax purposes. Withholding for federal or state income and employment tax
purposes will be made, if and as required by law, from Optionee's then current
compensation, or, if such current compensation is insufficient to satisfy
withholding tax liability, the Company may require Optionee to make a cash
payment to cover the liability as a condition of the exercise of this
Option.

      


      11. Modification, Extension and Renewal
of Options

      


      The Board
or a Committee thereof may modify, extend or renew this Option or accept its
surrender (to the extent not yet exercised) and authorize the granting of a new
option in substitution for it (to the extent not yet exercised), subject at all
times to the Code and New York law.  Notwithstanding the provisions of
this Section 11, no modification shall, without the consent of the Optionee,
alter to the Optionee's detriment or impair any rights of Optionee hereunder,
except for the Board’ authority to make adjustments as provided in Section 9
above.

       

      
        
           

        

        
          3

          
            

          

        

        
           

        

      

       

      12. Restrictions on
Transfer

      


      Unless
and until the Shares represented by this Option are registered under the
Securities Act, all certificates representing the Shares and any certificates
subsequently issued in substitution therefore and any certificate for any
securities issued pursuant to any stock split, share reclassification, stock
dividend or other similar capital event shall bear legends in substantially the
following form:

      


      THESE
SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE QUALIFIED UNDER THE SECURITIES
ACT OF 1933 (THE “SECURITIES
ACT“) OR UNDER THE APPLICABLE SECURITIES LAWS OF ANY STATE. NEITHER THESE
SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OR
ANY APPLICABLE SECURITIES LAWS OF ANY STATE, UNLESS PURSUANT TO EXEMPTIONS
THEREFROM.

      


      The
certificates shall bear such other legend or legends as the Company and its
counsel deem necessary or appropriate. Appropriate stop transfer instructions
with respect to the Shares have been placed with the Company's transfer
agent.

      


      13. Notices

      


      Any
notice required to be given pursuant to this Option or the Plan shall be in
writing and shall be deemed to be delivered upon receipt or, in the case of
notices by the Company, 3 days after deposit in the U.S. mail, postage prepaid,
addressed to Optionee at the address last provided by Optionee for use in
Company records related to Optionee.

      


      14. Applicable Law

      


      This
Option has been granted, executed and delivered in the State of New York, and
the interpretation and enforcement shall be governed by the laws thereof and
subject to the exclusive jurisdiction of the courts therein.

       

       

       

      
 

      
        
           

        

        
          4

          
            

          

        

        
           

        

      

       

      IN WITNESS WHEREOF, the
parties hereto have executed this Option as of the date first above
written.

      


      


      WINDTAMER
CORPORATION

      


      


      By:           _/s/ Gerald E.
Brock_______

      Name:  Gerald
Brock

      Title:    Chief
Executive Officer

      


      


      Optionee

      


      


      _/s/ William
Schmitz_______

      Name:   William
Schmitz

       

       

       

       

      
        
           

        

        
          5

          
            

          

        

        
           

        

      

      
 

      APPENDIX
A

      


      NOTICE
OF EXERCISE OF STOCK OPTION

      


      To:           WindTamer
Corporation

      


      The undersigned is a holder of a stock
option (the "Option")
to purchase shares of WindTamer Corporation (the "Company")
Common Stock, $.0001 par value per share (the "Common
Stock"), issued pursuant to a WindTamer Corporation Stock Option Award
Agreement dated as of November ___, 2009 (the "Agreement").

      


      The undersigned hereby elects to
purchase ____________ shares of Common Stock pursuant to the terms of such
Option (the "Option
Shares"), and tenders herewith payment in full in the amount of $________
per share, for a total purchase price of $_______________, with the payment of
the purchase price being made in the form of _____________________, pursuant to
Section 6 of the Agreement.  The undersigned wishes to consummate the
purchase of the Option Shares by or before ________________.

      


      The undersigned also confirms and
acknowledges that he will not sell or transfer any Option Shares acquired
pursuant to the exercise of the Option until he requests and receives an opinion
of the Company's counsel to the effect that such proposed sale or transfer will
not result in a violation of the Securities Act of 1933, as amended, or any
applicable state securities law, or a registration statement covering the sale
or transfer of the Option Shares has been declared effective by the Securities
and Exchange Commission or appropriate state governmental authority, or he
obtains a no-action letter from the Securities and Exchange Commission or
appropriate state governmental authority with respect to the proposed
transfer.

      


      The undersigned acknowledges and agrees
that this purported exercise of the Option is conditioned on, and subject to,
(a) any compliance with requirements of applicable federal and state securities
laws deemed necessary by the Company, (b) to the undersigned's satisfaction of
all federal, state or local income and employment tax withholding requirements
applicable to this exercise, and (c) if the exercise is made in connection with
a Change of Control transaction, the vesting of the Option Shares may be
conditioned upon the consummation of the Change of Control if the Committee has
provided for this condition in its acceleration of the Option.

      


      Please issue a certificate or
certificates representing said Option Shares in the name of the undersigned or
in such other name as is specified below.  If the Option Shares are
being issued to any person other than the Optionee, evidence of the right of
such person to exercise the Option has been presented to the Company and has
been deemed satisfactory:

      


      
        
          	 
      	 
      
	 
      	
                  Name

                
	
                  Address:

                	 
      
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                  Social
      Security Number

                
	 
      	 
      
	
                  Date:

                	 
      


        



       

      6