exv10w12



 






Exhibit 10.12




RENEGY HOLDINGS, INC.




2007 EQUITY INCENTIVE PLAN




NOTICE OF GRANT OF RESTRICTED STOCK




     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 Restricted Stock (the
“Notice of Grant”) and Terms and Conditions of Restricted Stock Grant, attached hereto as
Exhibit A (together, the “Agreement”).



	 	 	 	 	 	 	 
	 

	 	Participant:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 






     Participant has been granted the right to receive an Award of Restricted Stock, 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	 	$                                                                                           ]
	 
	 	 	 	 	 	 
	 

	 	Term/Expiration Date	 	 	 	 
	 

	 	 	 	 

	 	 






     Vesting Schedule:



     Subject to any acceleration provisions contained in the Plan or set forth below, the
Restricted Stock will vest and the Company’s right to repurchase the Restricted Stock will lapse
in accordance with the following schedule:



     [Vesting Schedule]



     [Participant must purchase the Shares before the Expiration Date or the Restricted Stock Award
will terminate and Participant will have no further right to purchase the Shares.]



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     By Participant’s signature and the signature of the Company’s representative below,
Participant and the Company agree that this Award of Restricted Stock 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 RESTRICTED STOCK GRANT




     1. Purchase of Stock. The Company hereby agrees to sell to the Participant named in
the Notice of Grant (the “Participant”) and Participant hereby agrees to purchase the number of
Shares (the “Restricted Stock”), at the per Share purchase price and as otherwise described in the
Notice of Grant, 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. The purchase price for the
Restricted Stock, if any, may be paid by delivery to the Company at the time of execution of this
Agreement in cash, a check, or some combination thereof, together with any applicable tax
withholding.



OR




          Grant of Restricted Stock. The Company hereby grants to the Participant named in the
Notice of Grant (the “Participant”) under the Plan for past services and as a separate incentive in
connection with his or her services and not in lieu of any salary or other compensation for his or
her services, the number of Shares (the “Restricted Stock”), at the per Share purchase price and as
otherwise described in the Notice of Grant, 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.




     2. Escrow of Shares.



          (a) All Shares of Restricted Stock will, upon execution of this Agreement, be delivered and
deposited with an escrow holder designated by the Company (the “Escrow Holder”). The Shares of
Restricted Stock will be held by the Escrow Holder until such time as the Shares of Restricted
Stock vest or the date Participant ceases to be a Service Provider.




          (b) The Escrow Holder will not be liable for any act it may do or omit to do with respect to
holding the Shares of Restricted Stock in escrow while acting in good faith and in the exercise of
its judgment.




          (c) Upon Participant’s termination as a Service Provider for any reason, the Escrow Holder,
upon receipt of written notice of such termination, will take all steps necessary to accomplish the
transfer of the unvested Shares of Restricted Stock to the Company. Participant hereby appoints
the Escrow Holder with full power of substitution, as Participant’s true and lawful
attorney-in-fact with irrevocable power and authority in the name and on behalf of Participant to
take any action and execute all documents and instruments, including, without limitation, stock
powers which may be necessary to transfer the certificate or certificates evidencing such unvested
Shares of Restricted Stock to the Company upon such termination.




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          (d) The Escrow Holder will take all steps necessary to accomplish the transfer of Shares of
Restricted Stock to Participant after they vest following Participant’s request that the Escrow
Holder do so.




          (e) Subject to the terms hereof, Participant will have all the rights of a stockholder with
respect to the Shares while they are held in escrow, including without limitation, the right to
vote the Shares and to receive any cash dividends declared thereon.




          (f) In the event of any dividend or other distribution (whether in the form of cash, Shares,
other securities, or other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of
Shares or other securities of the Company, or other change in the corporate structure of the
Company affecting the Shares, the Shares of Restricted Stock will be increased, reduced or
otherwise changed, and by virtue of any such change Participant will in his or her capacity as
owner of unvested Shares of Restricted Stock be entitled to new or additional or different shares
of stock, cash or securities (other than rights or warrants to purchase securities); such new or
additional or different shares, cash or securities will thereupon be considered to be unvested
Shares of Restricted Stock and will be subject to all of the conditions and restrictions which were
applicable to the unvested Shares of Restricted Stock pursuant to this Agreement. If Participant
receives rights or warrants with respect to any unvested Shares of Restricted Stock, such rights or
warrants may be held or exercised by Participant, provided that until such exercise any such rights
or warrants and after such exercise any shares or other securities acquired by the exercise of such
rights or warrants will be considered to be unvested Shares of Restricted Stock and will be subject
to all of the conditions and restrictions which were applicable to the unvested Shares of
Restricted Stock pursuant to this Agreement. The Administrator in its absolute discretion at any
time may accelerate the vesting of all or any portion of such new or additional shares of stock,
cash or securities, rights or warrants to purchase securities or shares or other securities
acquired by the exercise of such rights or warrants.




          (g) The Company may instruct the transfer agent for its Common Stock to place a legend on the
certificates representing the Restricted Stock or otherwise note its records as to the restrictions
on transfer set forth in this Agreement.




     3. Vesting Schedule. Except as provided in Section 4, and subject to Section 5, the
Shares of Restricted Stock awarded by this Agreement will vest in accordance with the vesting
provisions set forth in the Notice of Grant. Shares of Restricted Stock 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.



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



     5. Forfeiture upon Termination of Status as a Service Provider. Notwithstanding any
contrary provision of this Agreement, the balance of the Shares of Restricted Stock that have



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not vested at the time of Participant’s termination as a Service Provider for any reason will
be forfeited and automatically transferred to and reacquired by the Company at no cost to the
Company upon the date of such termination and Participant will have no further rights thereunder.
Participant will not be entitled to a refund of the price paid for the Shares of Restricted Stock,
if any, returned to the Company pursuant to this Section 5. Participant hereby appoints the Escrow
Agent with full power of substitution, as Participant’s true and lawful attorney-in-fact with
irrevocable power and authority in the name and on behalf of Participant to take any action and
execute all documents and instruments, including, without limitation, stock powers which may be
necessary to transfer the certificate or certificates evidencing such unvested Shares to the
Company upon such termination of service.



     6. Death of Participant. Any distribution or delivery to be made to Participant under
this Agreement will, if Participant is then deceased, be made to Participant’s designated
beneficiary, or if no beneficiary survives Participant, the administrator or executor of
Participant’s estate. Any such transferee must furnish the Company with (a) written notice of his
or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity
of the transfer and compliance with any laws or regulations pertaining to said transfer.



     7. Withholding of Taxes. Notwithstanding any contrary provision of this Agreement, no
certificate representing the Shares of Restricted Stock may be released from the escrow established
pursuant to Section 5, 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 will 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 any applicable Shares otherwise
are scheduled to vest pursuant to Sections 3 or 4, Participant will permanently forfeit such Shares
and the Shares will be returned to the Company at no cost to the Company.



     8. 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 or the Escrow Agent. Except as provided in Section 2(f), 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.



     9. No Guarantee of Continued Service. PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE
VESTING OF THE SHARES OF RESTRICTED STOCK 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 THIS RESTRICTED
STOCK OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES



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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.



     10. 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.



     11. Grant is Not Transferable. Except to the limited extent provided in Section 6,
the unvested Shares subject to this grant and the rights and privileges conferred hereby will not
be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and will not be subject to sale under execution, attachment or similar process. Upon
any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of any unvested Shares of
Restricted Stock subject to this grant, or any right or privilege conferred hereby, or upon any
attempted sale under any execution, attachment or similar process, this grant and the rights and
privileges conferred hereby immediately will become null and void.



     12. 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.



     13. Additional Conditions to Release from Escrow. The Company will not be required to
issue any certificate or certificates for Shares hereunder or release such Shares from the escrow
established pursuant to Section 2 prior to fulfillment of all the following conditions: (a) the
admission of such Shares to listing on all stock exchanges on which such class of stock is then
listed; (b) the completion of any registration or other qualification of such Shares under any
state or federal law or under the rulings or regulations of the Securities and Exchange Commission
or any other governmental regulatory body, which the Administrator will, in its absolute
discretion, deem necessary or advisable; (c) the obtaining of any approval or other clearance from
any state or federal governmental agency, which the Administrator will, in its absolute discretion,
determine to be necessary or advisable; and (d) the lapse of such reasonable period of time
following the date of grant of the Restricted Stock as the Administrator may establish from time to
time for reasons of administrative convenience.



     14. 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.



     15. 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



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(including, but not limited to, the determination of whether or not any Shares of Restricted
Stock 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.



     16. Electronic Delivery. The Company may, in its sole discretion, decide to deliver
any documents related to the Shares of Restricted Stock awarded under the Plan or future Restricted
Stock 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.



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



     18. 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.



     19. 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. Notwithstanding
anything to the contrary in the Plan or this Agreement, the Company reserves the right to revise
this Agreement as it deems necessary or advisable, in its sole discretion and without the consent
of Participant, to comply with Section 409A or to otherwise avoid imposition of any additional tax
or income recognition under Section 409A in connection to this Award of Restricted Stock.



     20. Amendment, Suspension or Termination of the Plan. By accepting this Award,
Participant expressly warrants that he or she has received an Award of Restricted Stock 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.



     21. 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 Award of Restricted Stock 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 Award
of Restricted Stock is made and/or to be performed.




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