exv10w10



 





Exhibit 10.10




RENEGY HOLDINGS, INC.




2007 EQUITY INCENTIVE PLAN




NOTICE OF GRANT OF STOCK OPTION




     Unless otherwise defined herein, the terms defined in the 2007 Equity Incentive Plan (the
“Plan”) will have the same defined meanings in this Notice of Grant of Stock Option (the “Notice of
Grant”) and Terms and Conditions of Stock Option Grant, attached hereto as Exhibit A
(together, the “Agreement”).



	 	 	 	 	 	 	 
	 

	 	Participant:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	 

	 	 







     Participant has been granted an Option to purchase Common Stock of the Company, subject to the
terms and conditions of the Plan and this Agreement, as follows:





	 	 	 	 	 	 	 
	 

	 	Grant Number
	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Date of Grant	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Vesting Commencement Date	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Number of Shares Granted	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Exercise Price per Share
	 	$          
                 
                 
                 
           
                	 	 
	 
	 	 	 	 	 	 
	 

	 	Total Exercise Price
	 	$          
                 
                 
                 
           
                	 	 
	 
	 	 	 	 	 	 
	 

	 	Type of Option
	 	___  Incentive Stock Option	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	___  Nonstatutory Stock Option	 	 
	 
	 	 	 	 	 	 
	 

	 	Term/Expiration Date	 	 	 	 
	 

	 	 	 	 	 	 





     Vesting Schedule:



     Subject to accelerated vesting as set forth below or in the Plan, this Option will be
exercisable, in whole or in part, in accordance with the following schedule:



     [Twenty-five percent (25%) of the Shares subject to the Option will vest twelve (12) months
after the Vesting Commencement Date, and one forty-eighth (1/48th) of the Shares subject
to the Option will vest each month thereafter on the same day of the month as the Vesting
Commencement Date (and if there is no corresponding day, on the last day of the month), subject to
Participant continuing to be a Service Provider through each such date.]



 









 





     Termination Period:



     This Option will be exercisable for [three (3) months] after Participant ceases to be a
Service Provider, unless such termination is due to Participant’s death or Disability, in which
case this Option will be exercisable for [twelve (12) months] after Participant ceases to be a
Service Provider. Notwithstanding the foregoing, in no event may this Option be exercised after
the Term/Expiration Date as provided above and may be subject to earlier termination as provided in
Section 13(c) of the Plan.



     By Participant’s signature and the signature of the Company’s representative below,
Participant and the Company agree that this Option is granted under and governed by the terms and
conditions of the Plan and this Agreement. Participant has reviewed the Plan and this Agreement in
their entirety, has had an opportunity to obtain the advice of counsel prior to executing this
Agreement and fully understands all provisions of the Plan and Agreement. Participant hereby
agrees to accept as binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions relating to the Plan and Agreement. Participant further agrees to
notify the Company upon any change in the residence address indicated below.



	 	 	 
	PARTICIPANT

	 	RENEGY HOLDINGS, INC.
	 
	 	 
	 

	 	 
	Signature

	 	By
	 
	 	 
	 

	 	 
	Print Name

	 	Title
	 
	 	 
	Address:
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 





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EXHIBIT A




TERMS AND CONDITIONS OF STOCK OPTION GRANT




     1. Grant. The Company hereby grants to the Participant named in the Notice of Grant
(the “Participant”) an option (the “Option”) to purchase the number of Shares, as set forth in the
Notice of Grant, at the exercise price per Share set forth in the Notice of Grant (the “Exercise
Price”), subject to all of the terms and conditions in this Agreement and the Plan, which is
incorporated herein by reference. Subject to Section 18(c) of the Plan, in the event of a conflict
between the terms and conditions of the Plan and the terms and conditions of this Agreement, the
terms and conditions of the Plan will prevail.



     If designated in the Notice of Grant as an Incentive Stock Option (“ISO”), this Option is
intended to qualify as an ISO under Section 422 of the Code. However, if this Option is intended
to be an ISO, to the extent that it exceeds the $100,000 rule of Code Section 422(d) it will be
treated as a Nonstatutory Stock Option (“NSO”).



     2. Vesting Schedule. Except as provided in Section 3, the Option awarded by this
Agreement will vest in accordance with the vesting provisions set forth in the Notice of Grant.
Shares scheduled to vest on a certain date or upon the occurrence of a certain condition will not
vest in Participant in accordance with any of the provisions of this Agreement, unless Participant
will have been continuously a Service Provider from the Date of Grant until the date such vesting
occurs.



     3. Administrator Discretion. The Administrator, in its discretion, may accelerate the
vesting of the balance, or some lesser portion of the balance, of the unvested Option at any time,
subject to the terms of the Plan. If so accelerated, such Option will be considered as having
vested as of the date specified by the Administrator.



     4. Exercise of Option. This Option may be exercised only within the term set out in
the Notice of Grant, and may be exercised during such term only in accordance with the Plan and the
terms of this Agreement.



          This Option is exercisable by delivery of an exercise notice, in the form attached as
Exhibit B (the “Exercise Notice”) or in a manner and pursuant to such procedures as the
Administrator may determine, which will state the election to exercise the Option, the number of
Shares in respect of which the Option is being exercised (the “Exercised Shares”), and such other
representations and agreements as may be required by the Company pursuant to the provisions of the
Plan. The Exercise Notice will be completed by Participant and delivered to the Company. The
Exercise Notice will be accompanied by payment of the aggregate Exercise Price as to all Exercised
Shares together with any applicable tax withholding. This Option will be deemed to be exercised
upon receipt by the Company of such fully executed Exercise Notice accompanied by such aggregate
Exercise Price.



     5. Method of Payment. Payment of the aggregate Exercise Price will be by any of the
following, or a combination thereof, at the election of Participant:



          (a) cash;




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          (b) check;




          (c) consideration received by the Company under a formal cashless exercise program adopted by
the Company in connection with the Plan; or




          (d) surrender of other Shares, provided that such Shares have a Fair Market Value on the date
of surrender equal to the aggregate Exercise Price of the Exercised Shares and that accepting such
Shares, in the sole discretion of the Administrator, will not result in any adverse accounting
consequences to the Company.




     6. Tax Obligations.



          (a) Withholding of Taxes. Notwithstanding any contrary provision of this Agreement,
no certificate representing the Shares will be issued to Participant, unless and until satisfactory
arrangements (as determined by the Administrator) will have been made by Participant with respect
to the payment of income, employment and other taxes which the Company determines must be withheld
with respect to such Shares. To the extent determined appropriate by the Company in its
discretion, it shall have the right (but not the obligation) to satisfy any tax withholding
obligations by reducing the number of Shares otherwise deliverable to Participant. If Participant
fails to make satisfactory arrangements for the payment of any required tax withholding obligations
hereunder at the time of the Option exercise, Participant acknowledges and agrees that the Company
may refuse to honor the exercise and refuse to deliver Shares if such withholding amounts are not
delivered at the time of exercise.




          (b) Notice of Disqualifying Disposition of ISO Shares. If the Option granted to
Participant herein is an ISO, and if Participant sells or otherwise disposes of any of the Shares
acquired pursuant to the ISO on or before the later of (i) the date two (2) years after the Grant
Date, or (ii) the date one (1) year after the date of exercise, Participant will immediately notify
the Company in writing of such disposition. Participant agrees that Participant may be subject to
income tax withholding by the Company on the compensation income recognized by Participant.




          (c) Section 409A. Under Section 409A, an option that vests after December 31, 2004
that was granted with a per Share exercise price that is determined by the Internal Revenue Service
(the “IRS”) to be less than the Fair Market Value of a Share on the date of grant (a “Discount
Option”) may be considered “deferred compensation.” A Discount Option may result in (i) income
recognition by Participant prior to the exercise of the option, (ii) an additional twenty percent
(20%) federal income tax, and (iii) potential penalty and interest charges. The Discount Option
may also result in additional state income, penalty and interest charges to the Participant.
Participant acknowledges that the Company cannot and has not guaranteed that the IRS will agree
that the per Share exercise price of this Option equals or exceeds the Fair Market Value of a Share
on the Date of Grant in a later examination. Participant agrees that if the IRS determines that
the Option was granted with a per Share exercise price that was less than the Fair Market Value of
a Share on the date of grant, Participant will be solely responsible for Participant’s costs
related to such a determination.




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     7. Rights as Stockholder. Neither Participant nor any person claiming under or
through Participant will have any of the rights or privileges of a stockholder of the Company in
respect of any Shares deliverable hereunder unless and until certificates representing such Shares
will have been issued, recorded on the records of the Company or its transfer agents or registrars,
and delivered to Participant. After such issuance, recordation and delivery, Participant will have
all the rights of a stockholder of the Company with respect to voting such Shares and receipt of
dividends and distributions on such Shares.



     8. No Guarantee of Continued Service. PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE
VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE
PROVIDER AT THE WILL OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING
PARTICIPANT) AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THE OPTION OR ACQUIRING SHARES
HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS
CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR
IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY
PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE
COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) TO TERMINATE PARTICIPANT’S
RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.



     9. Address for Notices. Any notice to be given to the Company under the terms of this
Agreement will be addressed to the Company at Renegy Holdings, Inc., [ADDRESS], or at such other
address as the Company may hereafter designate in writing.



     10. Grant is Not Transferable. This Option may not be transferred in any manner
otherwise than by will or by the laws of descent or distribution and may be exercised during the
lifetime of Participant only by Participant.



     11. Binding Agreement. Subject to the limitation on the transferability of this grant
contained herein, this Agreement will be binding upon and inure to the benefit of the heirs,
legatees, legal representatives, successors and assigns of the parties hereto.



     12. Additional Conditions to Issuance of Stock. If at any time the Company will
determine, in its discretion, that the listing, registration or qualification of the Shares upon
any securities exchange or under any state or federal law, or the consent or approval of any
governmental regulatory authority is necessary or desirable as a condition to the issuance of
Shares to Participant (or his or her estate), such issuance will not occur unless and until such
listing, registration, qualification, consent or approval will have been effected or obtained free
of any conditions not acceptable to the Company. The Company will make all reasonable efforts to
meet the requirements of any such state or federal law or securities exchange and to obtain any
such consent or approval of any such governmental authority. Assuming such compliance, for income
tax purposes the Exercised Shares will be considered transferred to Participant on the date the
Option is exercised with respect to such Exercised Shares.



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     13. Plan Governs. This Agreement is subject to all terms and provisions of the Plan.
In the event of a conflict between one or more provisions of this Agreement and one or more
provisions of the Plan, the provisions of the Plan will govern. Capitalized terms used and not
defined in this Agreement will have the meaning set forth in the Plan.



     14. Administrator Authority. The Administrator will have the power to interpret the
Plan and this Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke any such rules
(including, but not limited to, the determination of whether or not any Shares subject to the
Option have vested). All actions taken and all interpretations and determinations made by the
Administrator in good faith will be final and binding upon Participant, the Company and all other
interested persons. No member of the Administrator will be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or this Agreement.



     15. Electronic Delivery. The Company may, in its sole discretion, decide to deliver
any documents related to Options awarded under the Plan or future Options that may be awarded under
the Plan by electronic means or request Participant’s consent to participate in the Plan by
electronic means. Participant hereby consents to receive such documents by electronic delivery and
agrees to participate in the Plan through any on-line or electronic system established and
maintained by the Company or another third party designated by the Company.



     16. Captions. Captions provided herein are for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.



     17. Agreement Severable. In the event that any provision in this Agreement will be
held invalid or unenforceable, such provision will be severable from, and such invalidity or
unenforceability will not be construed to have any effect on, the remaining provisions of this
Agreement.



     18. Modifications to the Agreement. This Agreement constitutes the entire
understanding of the parties on the subjects covered. Participant expressly warrants that he or
she is not accepting this Agreement in reliance on any promises, representations, or inducements
other than those contained herein. Modifications to this Agreement or the Plan can be made only in
an express written contract executed by a duly authorized officer of the Company.



     19. Amendment, Suspension or Termination of the Plan. By accepting this Award,
Participant expressly warrants that he or she has received an Option under the Plan, and has
received, read and understood a description of the Plan. Participant understands that the Plan is
discretionary in nature and may be amended, suspended or terminated by the Company at any time.



     20. Governing Law. This Agreement will be governed by the laws of the State of
[Arizona], without giving effect to the conflict of law principles thereof. For purposes of
litigating any dispute that arises under this Option or this Agreement, the parties hereby submit
to and consent to the jurisdiction of the State of [Arizona], and agree that such litigation will
be conducted in the courts of [                    ] County, [Arizona], or the federal courts for the
United States for the District of [Arizona], and no other courts, where this Option is made and/or
to be performed.



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EXHIBIT B




RENEGY HOLDINGS, INC.




2007 EQUITY INCENTIVE PLAN




EXERCISE NOTICE




Renegy Holdings, Inc.

[ADDRESS]



Attention:                     




     1. Exercise of Option. Effective as of today,                     , ___, the
undersigned (“Purchaser”) hereby elects to purchase                      shares (the “Shares”) of the
Common Stock of Renegy Holdings, Inc. (the “Company”) under and pursuant to the 2007 Equity
Incentive Plan (the “Plan”) and the Stock Option Agreement dated ___ (the “Agreement”). The
purchase price for the Shares will be $                    , as required by the Agreement.



     2. Delivery of Payment. Purchaser herewith delivers to the Company the full purchase
price of the Shares and any required tax withholding to be paid in connection with the exercise of
the Option.



     3. Representations of Purchaser. Purchaser acknowledges that Purchaser has received,
read and understood the Plan and the Agreement and agrees to abide by and be bound by their terms
and conditions.



     4. Rights as Stockholder. Until the issuance (as evidenced by the appropriate entry
on the books of the Company or of a duly authorized transfer agent of the Company) of the Shares,
no right to vote or receive dividends or any other rights as a stockholder will exist with respect
to the Shares subject to the Option, notwithstanding the exercise of the Option. The Shares so
acquired will be issued to Participant as soon as practicable after exercise of the Option. No
adjustment will be made for a dividend or other right for which the record date is prior to the
date of issuance, except as provided in Section 13 of the Plan.



     5. Tax Consultation. Purchaser understands that Purchaser may suffer adverse tax
consequences as a result of Purchaser’s purchase or disposition of the Shares. Purchaser
represents that Purchaser has consulted with any tax consultants Purchaser deems advisable in
connection with the purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.



     6. Entire Agreement; Governing Law. The Plan and Agreement are incorporated herein by
reference. This Exercise Notice, the Plan and the Agreement constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede in their entirety all prior



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undertakings and agreements of the Company and Purchaser with respect to the subject matter
hereof, and may not be modified adversely to the Purchaser’s interest except by means of a writing
signed by the Company and Purchaser. This agreement is governed by the internal substantive laws,
but not the choice of law rules, of the State of [Arizona].




	 	 	 
	Submitted by:

	 	Accepted by:
	 
	 	 
	PURCHASER

	 	RENEGY HOLDINGS, INC.
	 
	 	 
	 

	 	 
	Signature

	 	By
	 
	 	 
	 

	 	 
	Print Name

	 	Its
	 
	 	 
	Address:
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 

	 	Date Received







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