**Exhibit 10.2**

 

**RESTRICTEDSTOCK UNIT AGREEMENT**

** **

**ENERNOC,INC.**

 

This Restricted StockUnit Agreement is made as of the            ****day of                     ,200    (the “Grant Date”), by and between EnerNOC, Inc., a Delaware corporation having itsprincipal place of business at 75 Federal Street, Suite 300, Boston,Massachusetts 02110 (the “Company”), and                              (the “Participant”).

 

WHEREAS, the Company hasadopted the 2007 Employee, Director and Consultant Stock Plan (the “Plan”) topromote the interests of the Company by providing an incentive for employees,directors and consultants of the Company or its Affiliates;

 

WHEREAS, pursuant to theprovisions of the Plan, the Company desires to grant to the Participantrestricted stock units (“RSUs”) related to the Company’s common stock, $.001 par value per share (“CommonStock”), in accordance with the provisions of the Plan, all on the terms andconditions hereinafter set forth;

 

WHEREAS, the Company andthe Participant understand and agree that any terms used and not defined hereinhave the meanings ascribed to such terms in the Plan.

 

NOW, THEREFORE, in consideration of the premises and the mutualcovenants contained herein and for other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the parties heretohereby agree as follows:

 

1.             Grant of Award. The Company herebygrants to the Participant an aggregate of                 RSUs (the “Award”) which represents a contingent entitlement of the Participantto receive shares of Common Stock, on the terms and conditions and subject toall the limitations set forth herein and in the Plan, which is incorporatedherein by reference.  The Participantacknowledges receipt of a copy of the Plan.

 

2.             Vesting of Award.

 

Subjectto the terms and conditions set forth in this Agreement and the Plan, the Awardgranted hereby shall vest as follows provided that the Participant remainscontinuously employed by the Company or an Affiliate through the applicablevesting date:

 
| **Number of RSUs**                                                         | ** ** | **Vesting Date**                                                                                                                    |
|----------------------------------------------------------------------------|------------|-------------------------------------------------------------------------------------------------------------------------------------|
|                                                                       |       |                                                                                                                                |
| 25%  of the RSUs                                                           |       | On  the first anniversary of the Grant Date                                                                                         |
|                                                                       |       |                                                                                                                                |
| An additional 2.0833% of the RSUs rounded down to  the nearest whole share |       | On  the first day of each calendar month following the first anniversary of the  Grant Date of this Agreement for thirty-six months |

 

**[Accelerated vesting on Change of Control to be determined on agrant-by-grant basis.] **[Notwithstanding the foregoing, in the eventof a Change of Control (as defined below),    % of the RSUswhich would have vested in each vesting installment remaining under this Awardwill be vested for purposes of Section 24(b) of the Plan unless thisAward has otherwise expired or been terminated pursuant to its terms or theterms of the Plan.

 

----

 

Change of Control means theoccurrence of any of the following events:

 

(i)                                     Ownership. Any “Person” (as such term is used in Sections 13(d) and 14(d) ofthe Securities Exchange Act of 1934, as amended) becomes the “Beneficial Owner”(as defined in Rule 13d-3 under said Act), directly or indirectly, ofsecurities of the Company representing 50% or more of the total voting powerrepresented by the Company’s then outstanding voting securities (excluding forthis purpose the Company or its Affiliates or any employee benefit plan of theCompany) pursuant to a transaction or a series of related transactions whichthe Board of Directors does not approve; or

 

(ii)                                  Merger/Sale of Assets.  A merger or consolidation of the Companywhether or not approved by the Board of Directors, other than a merger orconsolidation which would result in the voting securities of the Companyoutstanding immediately prior thereto continuing to represent (either byremaining outstanding or by being converted into voting securities of the survivingentity or the parent of such corporation) at least 50% of the total votingpower represented by the voting securities of the Company or such survivingentity or parent of such corporation outstanding immediately after suchmerger or consolidation, or the stockholders of the Company approve anagreement for the sale or disposition by the Company of all or substantiallyall of the Company’s assets; or

 

(iii)                               Change in Board Composition.  Achange in the composition of the Board of Directors, as a result of which fewerthan a majority of the directors are Incumbent Directors.  “Incumbent Directors” shall mean directorswho either (A) are directors of the Company as of [insert grant date], or (B) areelected, or nominated for election, to the Board of Directors with theaffirmative votes of at least a majority of the Incumbent Directors at the timeof such election or nomination (but shall not include an individual whoseelection or nomination is in connection with an actual or threatened proxycontest relating to the election of directors to the Company).]

 

Onthe vesting date set forth above, the Participant shall be entitled to receivesuch number of shares of Common Stock equivalent to the number of RSUs setforth opposite such vesting date provided that the Participant is employed bythe Company or an Affiliate on such vesting date.  Such shares of Common Stock shall thereafterbe delivered by the Company to the Participant in accordance with thisAgreement and the Plan and as required to comply with Section 409A of theCode.  Notwithstanding the foregoing, ifthe Participant is as of the vesting date a “specified employee” (as defined under Section 409Aof the Code) then such payment of shares of Common Stock, if required by Section 409Aof the Code, will be made six months after the date of such Separation fromService (as defined in Section 409A of the Code).

 

Except as otherwise setforth in this Agreement, if the Participant ceases to be employed for anyreason by the Company or an Affiliate prior to a vesting date, then as of thedate on which the Participant’s employment terminates, all unvested RSUssubject to this Award shall immediately be forfeited to the Company and thisAgreement shall terminate and be of no further force or effect.

 

3.             Prohibitions on Transfer and Sale.

 

ThisAward (including any additional RSUs received by the Participant as a result ofstock dividends, stock splits or any other similar transaction affecting theCompany’s securities without receipt of consideration) shall not betransferable by the Participant otherwise than by will or by the laws ofdescent and distribution or pursuant to a qualified domestic relations order asdefined by the Code or 

 

2

----

 

TitleI of the Employee Retirement Income Security Act or the rules thereunder.  Except as provided in the previous sentence,the shares of Common Stock to be issued pursuant to this Agreement shall beissued, during the Participant’s lifetime, only to the Participant (or, in theevent of legal incapacity or incompetence, to the Participant’s guardian orrepresentative). This Award shall not be assigned, pledged or hypothecated inany way (whether by operation of law or otherwise) and shall not be subject toexecution, attachment or similar process. Any attempted transfer, assignment, pledge, hypothecation or otherdisposition of this Award or of any rights granted hereunder contrary to theprovisions of this Section 3, or the levy of any attachment or similarprocess upon this Award shall be null and void.

 

4.             Adjustments. The Plan contains provisions covering the treatment of RSUs and sharesof Common Stock in a number of contingencies such as stock splits andmergers.  Provisions in the Plan foradjustment with respect to this Award and the related provisions with respectto successors to the business of the Company are hereby made applicablehereunder and are incorporated herein by reference.

 

5.             Securities Law Compliance.  The Participant specifically acknowledges andagrees that any sales of shares of Common Stock issued hereunder shall be soldin accordance with the requirements of the Securities Act of 1933, as amended.

 

6.             Rights as a Stockholder.  The Participant shall have no right as astockholder, including voting and dividend rights, with respect to the RSUssubject to this Agreement.

 

7.             Tax Liability of the Participant and Payment of Taxes.

 

The Participantacknowledges and agrees that any income or other taxes due from the Participantwith respect to this Award or the shares of Common Stock to be issued pursuantto this Agreement or otherwise sold shall be the Participant’sresponsibility.  Without limiting theforegoing, the Participant agrees that the Participant will owe taxes at eachvesting date on the portion of the Award then vested and the Company shall beentitled to immediate payment from the Participant of the amount of any taxrequired to be withheld by the Company.  In connection with the foregoing, theParticipant agrees that if an arrangement to pay the withholding obligation incash has not been received by the Company prior to a vesting date, the Companyshall authorize a registered broker (the “Broker”) to sell on such vesting datesuch number of shares of Common Stock otherwise deliverable to the Participanton vesting of the Award as the Company instructs the Broker to sell to satisfythe Company’s withholding obligation, after deduction of the Broker’scommission, and the Broker shall remit to the Company the cash necessary inorder for the Company to satisfy its withholding obligation.  In connection with such sale of shares ofCommon Stock, the Participant shall execute any such documents requested byBroker in order to effectuate the sale of the shares of Common Stock andpayment of the withholding obligation to the Company.  The Company shall not deliver any shares ofCommon Stock to the Participant until all withholdings have been made.

 

8.             Participant Acknowledgements and Authorizations.

 

The Participantacknowledges the following:

 

(a)           The Company is not by the Plan orthis Award obligated to continue the Participant as an employee, director orconsultant of the Company or an Affiliate.

 

(b)           The Plan is discretionary in natureand may be suspended or terminated by the Company at any time.

 

(c)           The grant of this Award is considereda one-time benefit and does not create a contractual or other right to receiveany other award under the Plan, benefits in lieu of awards or any otherbenefits in the future.

 

3

----

 

(d) The Plan is avoluntary program of the Company and future awards, if any, will be at the solediscretion of the Company, including, but not limited to, the timing of anygrant, the amount of any award, vesting provisions and purchase price, if any.

 

(e)           The value of this Award is anextraordinary item of compensation outside of the scope of any employment.  As such the Award is not part of normal orexpected compensation for purposes of calculating any severance, resignation,redundancy, end of service payments, bonuses, long-service awards, pension orretirement benefits or similar payments. The future value of the shares of Common Stock is unknown and cannot bepredicted with certainty.

 

(f)            The Participant authorizes his orher employer to furnish the Company (and any agent administering the Plan orproviding recordkeeping services) with such information and data as it shallrequest in order to facilitate the grant of the Award and the administration ofthe Plan, and the Participant waives any data privacy rights he or she may havewith respect to such information or the sharing of such information.

 

9.             Notices. Any notices required or permitted by the terms of this Agreement or thePlan shall be given by recognized courier service, facsimile, registered orcertified mail, return receipt requested, addressed as follows:

 

If tothe Company at the principal business office listed on the first page ofthis Agreement.

 

If to the Participant at the address set forth inthe Company’s employment directory, or to such other address or addresses ofwhich notice in the same manner has previously been given.  Any such notice shall be deemed to have beengiven on the earliest of receipt, one business day following delivery by thesender to a recognized courier service, or three business days followingmailing by registered or certified mail.

 

10.           Benefit of Agreement.  Subject to the provisions of the Plan and theother provisions hereof, this Agreement shall be for the benefit of and shallbe binding upon the heirs, executors, administrators, successors and assigns ofthe parties hereto.

 

11.           Governing Law.  This Agreement shall be construed andenforced in accordance with the laws of the State of Delaware**,**withoutgiving effect to the conflict of law principles thereof.  For the purpose of litigating any disputethat arises under this Agreement, whether at law or in equity, the partieshereby consent to exclusive jurisdiction in the State of Massachusetts****andagree that such litigation shall be conducted in the courts of Suffolk County,Massachusetts or the federal courts of the United States for the District ofMassachusetts.

 

12.           Severability.  If any provision of this Agreement is held tobe invalid or unenforceable by a court of competent jurisdiction, then suchprovision or provisions shall be modified to the extent necessary to make suchprovision valid and enforceable, and to the extent that this is impossible,then such provision shall be deemed to be excised from this Agreement, and thevalidity, legality and enforceability of the rest of this Agreement shall notbe affected thereby.

 

13.           Entire Agreement.  This Agreement, together with the Plan,constitutes the entire agreement and understanding between the parties heretowith respect to the subject matter hereof and supersedes all prior oral orwritten agreements and understandings relating to the subject matterhereof.  No statement, representation,warranty, covenant or agreement not expressly set forth in this Agreement shallaffect or be used to interpret, change or restrict the express terms andprovisions of this Agreement provided, however, in any event, this Agreementshall be subject to and governed by the Plan.

 

4

----

 

14.           Modifications and Amendments;Waivers and Consents.  The terms andprovisions of this Agreement may be modified or amended as provided in thePlan.  Except as provided in the Plan,the terms and provisions of this Agreement may be waived, or consent for thedeparture therefrom granted, only by written document executed by the partyentitled to the benefits of such terms or provisions.  No such waiver or consent shall be deemed tobe or shall constitute a waiver or consent with respect to any other terms orprovisions of this Agreement, whether or not similar.  Each such waiver or consent shall beeffective only in the specific instance and for the purpose for which it wasgiven, and shall not constitute a continuing waiver or consent.

 

15.           Counterparts.  This Agreement may be executed in one or morecounterparts, and by different parties hereto on separate counterparts, each ofwhich shall be deemed an original, but all of which together shall constituteone and the same instrument.

 

[THE NEXT PAGE ISTHE SIGNATURE PAGE]

 

5

----

 

IN WITNESS WHEREOF, theparties hereto have executed this Restricted Stock Unit Agreement as of the dayand year first above written.

 
| ** ** | **ENERNOC,  INC.** |
|------------|--------------------|
| ** ** | ** **         |
|       |               |
|       | By:                |   |
|       | Name:              |
|       | Title:             |
|       |               |
|       |               |
|       | Participant:       |
|       |               |
|       |               |
|       | Print Name:        |

 

6

----