Exhibit 10.2


 


RESTRICTED
STOCK UNIT AGREEMENT


 


ENERNOC,
INC.


 


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


 


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


 


WHEREAS, pursuant to the
provisions of the Plan, the Company desires to grant to the Participant
restricted stock units (“RSUs”) related to the Company’s common stock, $.001 par value per share (“Common
Stock”), in accordance with the provisions of the Plan, all on the terms and
conditions hereinafter set forth;


 


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


 


NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:


 


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


 


2.             Vesting of Award.


 


Subject
to the terms and conditions set forth in this Agreement and the Plan, the Award
granted hereby shall vest as follows provided that the Participant remains
continuously employed by the Company or an Affiliate through the applicable
vesting 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 a
grant-by-grant basis.]  [Notwithstanding the foregoing, in the event
of a Change of Control (as defined below),    % of the RSUs
which would have vested in each vesting installment remaining under this Award
will be vested for purposes of Section 24(b) of the Plan unless this
Award has otherwise expired or been terminated pursuant to its terms or the
terms of the Plan.


 

















 


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


 


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


 


(ii)                                  Merger/Sale of Assets.  A merger or consolidation of the Company
whether or not approved by the Board of Directors, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the surviving
entity or the parent of such corporation) at least 50% of the total voting
power represented by the voting securities of the Company or such surviving
entity or parent of such corporation outstanding immediately after such
merger or consolidation, or the stockholders of the Company approve an
agreement for the sale or disposition by the Company of all or substantially
all of the Company’s assets; or


 


(iii)                               Change in Board Composition.  A
change in the composition of the Board of Directors, as a result of which fewer
than a majority of the directors are Incumbent Directors.  “Incumbent Directors” shall mean directors
who either (A) are directors of the Company as of [insert grant date], or (B) are
elected, or nominated for election, to the Board of Directors with the
affirmative votes of at least a majority of the Incumbent Directors at the time
of such election or nomination (but shall not include an individual whose
election or nomination is in connection with an actual or threatened proxy
contest relating to the election of directors to the Company).]


 


On
the vesting date set forth above, the Participant shall be entitled to receive
such number of shares of Common Stock equivalent to the number of RSUs set
forth opposite such vesting date provided that the Participant is employed by
the Company or an Affiliate on such vesting date.  Such shares of Common Stock shall thereafter
be delivered by the Company to the Participant in accordance with this
Agreement and the Plan and as required to comply with Section 409A of the
Code.  Notwithstanding the foregoing, if
the Participant is as of the vesting date a “specified employee” (as defined under Section 409A
of the Code) then such payment of shares of Common Stock, if required by Section 409A
of the Code, will be made six months after the date of such Separation from
Service (as defined in Section 409A of the Code).


 


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


 


3.             Prohibitions on Transfer and Sale.


 


This
Award (including any additional RSUs received by the Participant as a result of
stock dividends, stock splits or any other similar transaction affecting the
Company’s securities without receipt of consideration) shall not be
transferable by the Participant otherwise than by will or by the laws of
descent and distribution or pursuant to a qualified domestic relations order as
defined by the Code or 


 


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Title
I 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 be
issued, during the Participant’s lifetime, only to the Participant (or, in the
event of legal incapacity or incompetence, to the Participant’s guardian or
representative). This Award shall not be assigned, pledged or hypothecated in
any way (whether by operation of law or otherwise) and shall not be subject to
execution, attachment or similar process. 
Any attempted transfer, assignment, pledge, hypothecation or other
disposition of this Award or of any rights granted hereunder contrary to the
provisions of this Section 3, or the levy of any attachment or similar
process upon this Award shall be null and void.


 


4.             Adjustments. 
The Plan contains provisions covering the treatment of RSUs and shares
of Common Stock in a number of contingencies such as stock splits and
mergers.  Provisions in the Plan for
adjustment with respect to this Award and the related provisions with respect
to successors to the business of the Company are hereby made applicable
hereunder and are incorporated herein by reference.


 


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


 


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


 


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


 


The Participant
acknowledges and agrees that any income or other taxes due from the Participant
with respect to this Award or the shares of Common Stock to be issued pursuant
to this Agreement or otherwise sold shall be the Participant’s
responsibility.  Without limiting the
foregoing, the Participant agrees that the Participant will owe taxes at each
vesting date on the portion of the Award then vested and the Company shall be
entitled to immediate payment from the Participant of the amount of any tax
required to be withheld by the Company.  In connection with the foregoing, the
Participant agrees that if an arrangement to pay the withholding obligation in
cash has not been received by the Company prior to a vesting date, the Company
shall authorize a registered broker (the “Broker”) to sell on such vesting date
such number of shares of Common Stock otherwise deliverable to the Participant
on vesting of the Award as the Company instructs the Broker to sell to satisfy
the Company’s withholding obligation, after deduction of the Broker’s
commission, and the Broker shall remit to the Company the cash necessary in
order for the Company to satisfy its withholding obligation.  In connection with such sale of shares of
Common Stock, the Participant shall execute any such documents requested by
Broker in order to effectuate the sale of the shares of Common Stock and
payment of the withholding obligation to the Company.  The Company shall not deliver any shares of
Common Stock to the Participant until all withholdings have been made.


 


8.             Participant Acknowledgements and Authorizations.


 


The Participant
acknowledges the following:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


If to
the Company at the principal business office listed on the first page of
this Agreement.


 


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


 


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


 


11.           Governing Law.  This Agreement shall be construed and
enforced in accordance with the laws of the State of Delaware, without
giving effect to the conflict of law principles thereof.  For the purpose of litigating any dispute
that arises under this Agreement, whether at law or in equity, the parties
hereby consent to exclusive jurisdiction in the State of Massachusetts  and
agree that such litigation shall be conducted in the courts of Suffolk County,
Massachusetts or the federal courts of the United States for the District of
Massachusetts.


 


12.           Severability.  If any provision of this Agreement is held to
be invalid or unenforceable by a court of competent jurisdiction, then such
provision or provisions shall be modified to the extent necessary to make such
provision valid and enforceable, and to the extent that this is impossible,
then such provision shall be deemed to be excised from this Agreement, and the
validity, legality and enforceability of the rest of this Agreement shall not
be affected thereby.


 


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


 


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


 


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


 


[THE NEXT PAGE IS
THE SIGNATURE PAGE]


 


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


 


	
   

  	
  ENERNOC,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Participant:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:

  



 


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