Exhibit
10.56


 


OPTION AGREEMENT UNDER THE 

FIRST WIND HOLDINGS INC. 2010 LONG TERM INCENTIVE PLAN


 


OPTION
AGREEMENT (this “Agreement”) granted effective as of [·], 2010, by First Wind Holdings Inc., a corporation
organized under the laws of the State of Delaware (the “Company”), to                                             (the
“Grantee”), who has been designated as a participant under and in
accordance with the terms of the First Wind Holdings Inc. 2010 Long Term
Incentive Plan (such plan, as it may be amended from time to time, to be
referenced as the “Plan”).


 


W I T N E S S E T H:


 


WHEREAS,
the Company has adopted the Plan, which provides for the grant of stock options
in respect of shares of the Company’s Stock (as later defined) to those
individuals selected by the Committee;


 


WHEREAS,
the Committee has determined that the Grantee is eligible under the Plan and
that it is to the advantage and interest of the Company to grant the stock
options provided for herein to the Grantee as an incentive for Grantee to
remain in the service of the Company or one of its Subsidiaries or Affiliates,
and to provide Grantee an incentive to increase the value of the Class A
Common Stock, $0.001 par value per share, of the Company (the “Stock”).


 


NOW,
THEREFORE:


 


SECTION 1.                                Stock
Option Grant.


 


The
Company hereby grants to the Grantee effective as of the date of this Agreement
stock options to purchase [·] shares of
Stock (the “Options”), subject to the terms and conditions hereinafter
set forth.  The option price of each such
Option is $[·] per share
(which is the Fair Market Value of the Stock on the date hereof) (the “Option
Price”).  The Options shall vest and
become exercisable [in            
equal installments on each of the first through            
anniversaries of the Grant Date]; provided that in no event shall the
Options be exercisable in whole or in part ten (10) years from the date
hereof (the “Option Term”).  Once
vested in accordance with the provisions of this Agreement, the Options may be
exercised, in whole or in part, at any time and from time to time prior to the
date such Options terminate.  The Options
are not intended to be incentive stock options under the Code.


 

















 


SECTION 2.                                Options
Subject to Plan.


 


The
Options shall be subject to all the terms and provisions of the Plan and the
Grantee shall abide by and be bound by all rules, regulations and
determinations of the Committee now or hereafter made in connection with the
administration of the Plan.  If there is
any inconsistency between this Agreement and the terms of the Plan, the terms
of the Plan shall govern.  Capitalized
terms not otherwise defined herein shall have the meanings set forth for such
terms in the Plan.


 


SECTION 3.                                Exercise.


 


Subject
to the provisions of Section 4, vested Options may be exercised in whole
or in part at any time during the Option Term, by giving written notice of
exercise to the Company specifying the number of shares of Stock as to which
the Option is being exercised.  Without limiting
the generality of the foregoing, payment of the Option Price with respect any
portion of any Option being exercised may be made: (i) in cash or
its equivalent; (ii) by exchanging shares of Stock owned by the
Grantee (which are not the subject of any pledge or other security interest); (iii) through
an arrangement with a broker approved by the Company whereby payment of the
exercise price is accomplished with the proceeds of the sale of Stock; or (iv) by
any combination of the foregoing, provided that the combined value of all cash
and cash equivalents paid and the Fair Market Value of any such Stock so
tendered to the Company, valued as of the time of such tender, is at least
equal to such Option Price multiplied by the number of shares of Stock for
which the Option is being exercised.  In
addition, the Committee may permit any Option to be exercised without payment
of the purchase price, in which case the Company’s sole obligation shall be to
issue to the Grantee the same number of shares of Stock as would have been
issued had such Option been Stock Appreciation Rights in respect of an
identical number of shares of Stock.  A
Grantee shall not have any rights to dividends or other rights of a shareholder
with respect to shares subject to the Option until the Grantee has exercised
such Option by paying for the shares being exercised (or the Company has
elected to net settle such Option) in accordance with this Section 3.


 


SECTION 4.                                Termination
of Options.


 


The
Options shall immediately terminate and may no longer be exercised if (i) the
Grantee ceases to provide services to the Company or one of its Subsidiaries;
or (ii) the Grantee becomes an employee of an entity that does not
qualify as a Subsidiary under the Plan; or (iii) the Grantee takes
a leave of absence without reinstatement rights, unless otherwise agreed in
writing between the Company or one of its Subsidiaries and the Grantee; except
that


 


(a)                                  If the Grantee’s
service with the Company (or any Subsidiary) terminates by reason of death, the
vesting of the Options shall be accelerated and the Options shall 


 


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remain
exercisable until (i) the eighteenth (18th) month anniversary of the Participant’s death or (ii) the
expiration of the Option Term, whichever is earlier;


 


(b)                                 If the Grantee’s
service with the Company (or any Subsidiary) terminates by reason of
Disability, the Options shall continue to vest in accordance with their terms
and any vested Options may be exercised, in each case, until (i) the
eighteenth (18th) month
anniversary of the Participant’s termination of service or (ii) the
expiration of the Option Term, whichever is earlier; provided, however,
that if the Grantee dies after such termination due to Disability and during
the period specified in this Section 4(b), the vesting of the Options
shall be accelerated and the Options shall remain exercisable until the later
of (x) the date otherwise determined under this Section 4(b) or
(y) the first anniversary of the date of the Grantee’s death;


 


(c)                                  If the Grantee’s
service with the Company (or any Subsidiary) terminates by reason of Normal or
Early Retirement, the Options shall continue to vest in accordance with their
terms and any vested Options may be exercised, in each case, until (i) eighteen
(18) moths following the Participant’s termination of service or (ii) the
expiration of the Option Term, whichever is earlier; provided, however,
that in the event the Grantee’s service terminates by reason of Early or Normal
Retirement during the period specified in this Section 4(c) and the
Grantee violates his obligations under Section 7(a) hereof, the
Company reserves the right, upon notice to the Grantee, to declare that the
Options shall be forfeited and of no further validity; and provided, further,
that if the Grantee dies after Retirement and during the period specified in
this Section 4(c), the vesting of the Options shall be accelerated and
Options shall remain exercisable until the later of (x) the date
otherwise determined under this Section 4(c) or (y) the
first anniversary of the date of the Grantee’s death;


 


(d)                                 If the Grantee’s
service with the Company and each Subsidiary to which Grantee provides services
is involuntarily terminated by the Company and each such Subsidiary without
Cause, any unvested Options shall thereupon terminate and any vested Options
may thereafter be exercised, to the extent they were exercisable at the time of
termination, (i) for a period of ninety (90) days from the date of such
termination of service or (ii) until the expiration of the Option Term,
whichever period is shorter; and


 


(e)                                  In the event of
a Change in Control of the Company, the Options shall become exercisable in
accordance with the Plan.


 


SECTION 5.                                Adjustments
in Common Stock.


 


In
the event of a merger, reorganization, consolidation, recapitalization, stock
dividend, stock split, extraordinary cash dividend, other change in corporate
structure affecting the Stock, or other event or transaction of a similar
nature that results in a material change in the value of the Stock, appropriate
adjustments may be made by the 


 


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Committee
in the number of shares, class or classes of securities and the Option Price
applicable in respect to the Options subject to this Agreement.


 


SECTION 6.                                Non-Transferability
of Options.


 


Unless
the Committee shall permit (on such terms and conditions as it shall
establish), the Options may not be transferred except by will or the laws of
descent and distribution to the extent provided herein.  During the lifetime of the Grantee the
Options may be exercised only by him or her (unless otherwise determined by the
Committee).


 


SECTION 7.                                Restrictive
Covenants; Release.


 


(a)                                  Covenant
Not to Compete.  In consideration of the receipt of the
Options granted pursuant to this Agreement and of the Grantee’s privilege to
participate in the Plan, the Grantee hereby agrees that while the Grantee is
providing services to the Company or any Subsidiary and for a period of two
years after the last date of the Grantee’s service for any of the Company or
any of its Subsidiaries, the Grantee shall not compete with the wind energy
development, ownership and operation engaged in or expected to be engaged in by
the Company or any of its Subsidiaries (the “Business”), as such
Business exists at any time during the term of the Agreement, within the United
States of America (including its territories and possessions), Canada or Mexico
(the “Territories”), either directly or indirectly, whether


 


(i)                                     by conducting
or supporting a business or enterprise in the Business, whether in a
managerial, operational, financial or other manner;


 


(ii)                                  by directly or
indirectly participating in another business or enterprise in the Business;


 


(iii)                               by employment,
consultancy, serving on a board of directors or similar governing body, or any
other technical, commercial or other activity with another business or
enterprise in the Business (other than teaching or serving in an advisory,
regulatory, or legislative entity or a trade association);


 


(iv)                              by inducing any
utility, any governmental authority or any customer, supplier, licensee,
licensor, co-developer, contractor or other business relation of or with the
Company or any of its Subsidiaries to cease doing business with the Company or
any such Subsidiary, or in any way interfere with the relationship between any
such utility, governmental authority, customer, supplier, licensee, licensor,
co-developer, contractor or other business relation and the Company or any such
Subsidiary;


 


(v)                                 by soliciting
or hiring employees of the Company or any such Subsidiary for another business;
and


 


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(vi)                              by challenging
any of the intellectual property rights or the know-how that is material for
the Business of the Company but not protected by registered intellectual
property rights or applications therefor;


 


provided, however, that the covenant in this Section 7(a) shall
not apply to (x) activities engaged in as a manager, officer,
director, employee, contractor, consultant, or direct or indirect equity owner
of the Company or any of its Subsidiaries (to the extent that such activities
are conducted for the benefit of the Company or any of its Subsidiaries) and
may be waived at any time by the Company for specific activities, but any such
waiver shall be restricted to the specific activity to which it expressly
relates and only for the duration of the relevant contract; or (y) the
passive holding of shares in companies listed on a stock exchange, provided
that such holding does not exceed one (1) percent of the aggregate issued
and outstanding shares of the relevant company.


 


(b)                                 Confidentiality.  The Grantee agrees that during, and at any
time after, the period during which the Grantee is providing services to the
Company or any of its Subsidiaries the Grantee shall keep in confidence and
trust all Confidential Information, and shall not use or disclose any such
Confidential Information without the prior written consent of the Company,
except as may be necessary in the ordinary course of performing the Grantee’s
duties to the Company or any of its Subsidiaries.


 


As used in this Agreement, “Confidential
Information” means non-public information belonging to the Company,
including, without limitation, financial information, reports, wind data and
energy production forecasts; inventions, improvements and other intellectual
property; trade secrets; know-how; designs, processes or formulae; software;
market or sales information or plans; customer lists; and business plans,
prospects and opportunities, in each case, whether such information is
developed by the Grantee in the course of the Grantee’s service with the
Company or any of its Subsidiaries or the Grantee had access to such
information as a result of the Grantee’s service with the Company or any of its
Subsidiaries.  Notwithstanding the
foregoing, Confidential Information shall not include information (i) in
the public domain, unless due to breach of the Grantee’s duties under this Section 7(b),
(ii) obtained by the Grantee from a third party prior to, or after
the termination of, the Grantee’s service with the Company and each of its
Subsidiaries, (iii) independently developed by the Grantee prior
to, or after the termination of, the Grantee’s service with the Company and
each of its Subsidiaries, or (iv) required to be disclosed by the
Grantee by legal or regulatory process.


 


(c)                                  Property.  The Grantee agrees that all documents,
records, data, apparatus, equipment and other physical property, whether or not
pertaining to Confidential Information, which are furnished to the Grantee by
the Company or any of its Subsidiaries or are produced by the Grantee in
connection with the Grantee’s service with the Company or any of its
Subsidiaries, shall be and remain the sole property of the Company.  The Grantee shall return to the Company all
such materials and property as 


 


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and
when requested by the Company.  In any
event, the Grantee shall return all such materials and property immediately upon
termination of the Grantee’s service for any reason.  The Grantee shall not retain with the Grantee
any such material or property or any copies thereof after such
termination.  Notwithstanding the
foregoing, the Grantee shall have access to such documents and records at
reasonable times and upon reasonable notice to the Company, in the event of a
dispute between the Company and the Grantee to which such documents and records
are reasonably related.


 


(d)                                 Business
Time.  The Grantee
shall devote 100% of the Grantee’s business time to the business and affairs of
the Company.


 


(e)                                  Potential
Unenforceability of Section 7(a) and Section 7(b).  Although the Grantee and the Company consider
the restrictions contained in Section 7(a) and Section 7(b) to
be reasonable, if a final, non-appealable judicial determination is made by a
court of competent jurisdiction that the time or territory or any other
restriction contained in Section 7(a) or Section 7(b) is an
unenforceable restriction against the Grantee, neither this Agreement nor the
provisions of Section 7(a) and Section 7(b) shall be
rendered void, but shall be deemed amended as to such restriction as such court
may judicially determine or indicate to be reasonable or, if such court does
not so determine or indicate, to the maximum extent that any pertinent statute
or judicial decision may indicate to be a reasonable restriction under the
circumstances.


 


(f)                                    Specific
Performance.  Recognizing
that irreparable damage shall result to the Company in the event of a breach or
threatened breach by the Grantee of any of the covenants and assurances
contained in this Section 7, and that the Company’s remedies at law for
any such breach or threatened breach shall be inadequate, the Company and its
successors and permitted assigns, in addition to such other remedies that may
be available to them, are entitled to, and the Grantee agrees not to oppose the
propriety of the Company’s request for, an injunction (as distinct from
remedies at law), including a mandatory injunction, to be issued by any court
of competent jurisdiction ordering compliance with this Agreement or enjoining
and restraining the Grantee, and each and every person or entity acting in
concert or participation with the Grantee, from the continuation of such breach.  For the purpose of clarity, the Grantee may
oppose on the merits the Company’s request for such an injunction.  The covenants and obligations of the Grantee
set forth in this Section 7 are in addition to and not in lieu of or
exclusive of any other obligations and duties of the Grantee to the Company,
whether express or implied in fact or in law.


 


(g)                                 Prior
Covenants.  The
covenants set forth in this Section 7 shall supersede and replace any
covenants related to the same subject matter contained in any agreement entered
into prior to the date hereof between the Grantee and the Company (or any
predecessor in interest to the Company) in connection with the grant to the
Grantee of Series B Units in First Wind Holdings LLC.


 


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SECTION 8.                                Miscellaneous.


 


(a)                                  General.  The Options (i) shall be binding
upon and inure to the benefit of any successor of the Company, (ii) shall
be governed by the laws of the State of Delaware, and any applicable laws of
the United States, and (iii) may not be amended without the written
consent of both the Company and the Grantee. 
Notwithstanding the foregoing, this Agreement may be amended from time
to time without the written consent of the Grantee as permitted by the Plan (or
its successor).  No contract or right of
employment or other right to provide services to or for the Company or any of
its Subsidiaries shall be implied by the Options.


 


(b)                                 Entire
Agreement.  This
Agreement, together with the Plan, constitutes the entire agreement with
respect to the Options granted hereunder.


 


(c)                                  Corporate
Reorganization.  If the
Options are assumed or new options are substituted therefor in any corporate
reorganization (including, but not limited to, any transaction of the type
referred to in Section 424(a) of the Internal Revenue Code of 1986,
as amended), service with such assuming or substituting Company or by a parent
Company or a subsidiary thereof shall be considered for all purposes of these
Options to be service with the Company.


 


(d)                                 Withholding.  The Company may require the Grantee to remit
to the Company an amount in cash sufficient to satisfy any applicable U.S.
federal, state and local and non-U.S. tax withholding or other similar charges
or fees that may arise in connection with the grant, vesting, exercise or
purchase of the Options.


 


(e)                                  Section and
Other Headings, etc.  The section and other headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.


 


(f)                                    Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.


 


SECTION 9.                                Securities
Law Requirements.


 


The
Company shall not be required to issue shares of Stock upon the exercise of the
Options unless and until (a) such shares have been duly listed upon
each stock exchange on which the Company’s Stock is then registered and (b) a
registration statement under the Securities Act of 1933 with respect to such
shares is then effective.  The Committee
may require the Grantee to furnish to the Company, prior to the issuance of any
shares of Stock in connection with the exercise of the Options, an agreement,
in such form as the Committee may from time to time deem appropriate, in which
the 


 


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Grantee
represents that the shares acquired by him upon such exercise are being
acquired for investment and not with a view to the sale or distribution
thereof.


 


IN
WITNESS WHEREOF, the Company has executed this Agreement as of the day and year
first above written.


 


 


	
   

  	
   

  	
  FIRST
  WIND HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Grantee

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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