Exhibit 10.1


 


FORM OF


 


EXECUTIVE NON-QUALIFIED STOCK OPTION AGREEMENT FOR
EXCHANGED OPTION GRANTS


 


ENERNOC, INC.


 


AGREEMENT made as of the
21st day of January 2009, between EnerNOC, Inc.
(the “Company”), a Delaware corporation,
                          
and
                              
(the “Participant”).


 


WHEREAS, in connection
with the Company’s offer to exchange certain eligible option grants for new
option grants, the Company desires to grant to the Participant an Option to
purchase shares of its common stock, $.001 par value per share (the “Shares”),
under and for the purposes set forth in the Company’s 2007 Employee, Director
and Consultant Stock Plan (the “Plan”);


 


WHEREAS, the Company and
the Participant understand and agree that any terms used and not defined herein
have the same meanings as in the Plan; and


 


WHEREAS, the Company and
the Participant each intend that the Option granted herein shall be a
Non-Qualified Option.


 


NOW, THEREFORE, in
consideration of the mutual covenants hereinafter set forth and for other good
and valuable consideration, the parties hereto agree as follows:


 


1.                                       GRANT
OF OPTION.


 


The Company hereby grants
to the Participant the right and option to purchase all or any part of an
aggregate of
                              
Shares, on the terms and conditions and subject to all the limitations set
forth herein, under United States securities and tax laws, and in the Plan,
which is incorporated herein by reference. 
The Participant acknowledges receipt of a copy of the Plan.


 


2.                                       PURCHASE
PRICE.


 


The purchase price of the
Shares covered by the Option shall be $11.47 per Share, subject to adjustment,
as provided in the Plan, in the event of a stock split, reverse stock split or
other events affecting the holders of Shares after the date hereof (the “Purchase
Price”).  Payment shall be made in
accordance with Paragraph 9 of the Plan.


 


3.                                       EXERCISABILITY
OF OPTION.


 


Subject
to the terms and conditions set forth in this Agreement and the Plan, the
Option granted hereby shall become exercisable as follows:


 

















 


	
  January 21, 2010:

  	
   

  	
             
  Shares

  
	
   

  	
   

  	
   

  
	
  On
  the first day of each

  calendar month following

  January 21, 2010:

  	
   

  	
  An additional 2.0833%
  of the Shares rounded down to the nearest whole share

  



 


The foregoing rights are
cumulative and are subject to the other terms and conditions of this Agreement
and the Plan.


 


Notwithstanding the foregoing, in the event of a
Change of Control (as defined below),     % of the Shares
which would have vested in each vesting installment remaining under this Option
will be vested for purposes of Section 24(B) of the Plan unless this
Option 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).


 


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4.                                       TERM
OF OPTION.


 


This Option shall
terminate five years from the date of this Agreement, but shall be subject to
earlier termination as provided herein or in the Plan.


 


If the Participant ceases
to be an employee, director or consultant of the Company or of an Affiliate
(for any reason other than the death or Disability of the Participant or
termination of the Participant for “cause”, the Option may be exercised, if it
has not previously terminated, within three months after the date the
Participant ceases to be an employee, director or consultant of the Company or
an Affiliate, or within the originally prescribed term of the Option, whichever
is earlier, but may not be exercised thereafter.  In such event, the Option shall be
exercisable only to the extent that the Option has become exercisable and is in
effect at the date of such cessation of service.


 


Notwithstanding the
foregoing, in the event of the Participant’s Disability or death within three
months after the termination of service, the Participant or the Participant’s
Survivors may exercise the Option within one year after the date of the
Participant’s termination of service, but in no event after the date of
expiration of the term of the Option.


 


In the event the Participant’s
service is terminated by the Company or an Affiliate for “cause”, the
Participant’s right to exercise any unexercised portion of this Option shall
cease immediately as of the time the Participant is notified his or her service
is terminated for “cause,” and this Option shall thereupon terminate.  Notwithstanding anything herein to the
contrary, if subsequent to the Participant’s termination, but prior to the
exercise of the Option, the Board of Directors of the Company determines that,
either prior or subsequent to the Participant’s termination, the Participant
engaged in conduct which would constitute “cause,” then the Participant shall
immediately cease to have any right to exercise the Option and this Option
shall thereupon terminate.


 


In the event of the
Disability of the Participant, as determined in accordance with the Plan, the
Option shall be exercisable within one year after the Participant’s termination
of service or, if earlier, within the term originally prescribed by the
Option.  In such event, the Option shall
be exercisable:


 


(a)                                  to
the extent that the Option has become exercisable but has not been exercised as
of the date of Disability; and


 


(b)                                 in
the event rights to exercise the Option accrue periodically, to the extent of a
pro rata portion through the date of Disability of any additional vesting
rights that would have accrued on the next vesting date had the Participant not
become Disabled.  The proration shall be
based upon the number of days accrued in the current vesting period prior to
the date of Disability.


 


In the event of the death
of the Participant while an employee, director or consultant of the Company or
of an Affiliate, the Option shall be exercisable by the Participant’s Survivors
within one year after the date of death of the Participant or, if earlier,
within the originally prescribed term of the Option.  In such event, the Option shall be
exercisable:


 


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(x)                                   to
the extent that the Option has become exercisable but has not been exercised as
of the date of death; and


 


(y)                                 in
the event rights to exercise the Option accrue periodically, to the extent of a
pro rata portion through the date of death of any additional vesting rights
that would have accrued on the next vesting date had the Participant not
died.  The proration shall be based upon
the number of days accrued in the current vesting period prior to the
Participant’s date of death.


 


5.                                       METHOD
OF EXERCISING OPTION.


 


Subject to the terms and
conditions of this Agreement, the Option may be exercised by written notice to
the Company or its designee, in substantially the form of Exhibit A
attached hereto.  Such notice shall state
the number of Shares with respect to which the Option is being exercised and
shall be signed by the person exercising the Option.  Payment of the purchase price for such Shares
shall be made in accordance with Paragraph 9 of the Plan.  The Company shall deliver such Shares as soon
as practicable after the notice shall be received, provided, however, that the
Company may delay issuance of such Shares until completion of any action or
obtaining of any consent, which the Company deems necessary under any
applicable law (including, without limitation, state securities or “blue sky”
laws).  The Shares as to which the Option
shall have been so exercised shall be registered in the Company’s share
register in the name of the person so exercising the Option (or, if the Option
shall be exercised by the Participant and if the Participant shall so request
in the notice exercising the Option, shall be registered in the Company’s share
register in the name of the Participant and another person jointly, with right
of survivorship) and shall be delivered as provided above to or upon the
written order of the person exercising the Option.  In the event the Option shall be exercised,
pursuant to Section 4 hereof, by any person other than the Participant,
such notice shall be accompanied by appropriate proof of the right of such
person to exercise the Option.  All Shares
that shall be purchased upon the exercise of the Option as provided herein
shall be fully paid and nonassessable.


 


6.                                       PARTIAL
EXERCISE.


 


Exercise of this Option
to the extent above stated may be made in part at any time and from time to
time within the above limits, except that no fractional share shall be issued
pursuant to this Option.


 


7.                                       NON-ASSIGNABILITY.


 


The Option 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 Title I of the Employee Retirement Income Security Act
or the rules thereunder.  Except as
provided above in this paragraph, the Option shall be exercisable, during the
Participant’s lifetime, only by the Participant (or, in the event of legal
incapacity or incompetency, by the Participant’s guardian or representative)
and 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
the Option or of any rights granted hereunder contrary to 


 


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the provisions of this Section 7,
or the levy of any attachment or similar process upon the Option shall be null
and void.


 


8.                                       NO
RIGHTS AS STOCKHOLDER UNTIL EXERCISE.


 


The Participant shall
have no rights as a stockholder with respect to Shares subject to this
Agreement until registration of the Shares in the Company’s share register in
the name of the Participant.  Except as
is expressly provided in the Plan with respect to certain changes in the
capitalization of the Company, no adjustment shall be made for dividends or
similar rights for which the record date is prior to the date of such
registration.


 


9.                                       ADJUSTMENTS.


 


The Plan contains
provisions covering the treatment of Options in a number of contingencies such
as stock splits and mergers.  Provisions
in the Plan for adjustment with respect to stock subject to Options 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;
provided, however, that in the event of a Change of Control (as defined in Section 3
above)
              %
of the Shares which would have vested in each vesting installment remaining
under this Option will be vested for purposes of Section 24(B) of the
Plan.


 


10.                                 TAXES.


 


The Participant
acknowledges that upon exercise of the Option the Participant will be deemed to
have taxable income measured by the difference between the then fair market
value of the Shares received upon exercise and the price paid for such Shares
pursuant to this Agreement.  The Participant
acknowledges that any income or other taxes due from him or her with respect to
this Option or the Shares issuable pursuant to this Option shall be the
Participant’s responsibility.


 


The Participant agrees
that the Company may withhold from the Participant’s remuneration, if any, the
minimum statutory amount of federal, state and local withholding taxes
attributable to such amount that is considered compensation includable in such
person’s gross income.  At the Company’s
discretion, the amount required to be withheld may be withheld in cash from
such remuneration, or in kind from the Shares otherwise deliverable to the
Participant on exercise of the Option. 
The Participant further agrees that, if the Company does not withhold an
amount from the Participant’s remuneration sufficient to satisfy the Company’s
income tax withholding obligation, the Participant will reimburse the Company
on demand, in cash, for the amount under-withheld.


 


11.                                 PURCHASE
FOR INVESTMENT.


 


Unless the offering and
sale of the Shares to be issued upon the particular exercise of the Option
shall have been effectively registered under the Securities Act of 1933, as now
in force or hereafter amended (the “1933 Act”), the Company shall be under no
obligation to issue the Shares covered by such exercise unless and until the
following conditions have been fulfilled:


 


(a)                                  The
person(s) who exercise the Option shall warrant to the Company, at the
time of such exercise, that such person(s) are acquiring such Shares for
their own 


 


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respective accounts, for
investment, and not with a view to, or for sale in connection with, the
distribution of any such Shares, in which event the person(s) acquiring
such Shares shall be bound by the provisions of the following legend which
shall be endorsed upon the certificate(s) evidencing the Shares issued
pursuant to such exercise:


 


“The shares represented
by this certificate have been taken for investment and they may not be sold or
otherwise transferred by any person, including a pledgee, unless (1) either
(a) a Registration Statement with respect to such shares shall be
effective under the Securities Act of 1933, as amended, or (b) the Company
shall have received an opinion of counsel satisfactory to it that an exemption
from registration under such Act is then available, and (2) there shall
have been compliance with all applicable state securities laws;” and


 


(b)                                 If
the Company so requires, the Company shall have received an opinion of its
counsel that the Shares may be issued upon such particular exercise in
compliance with the 1933 Act without registration thereunder.  Without limiting the generality of the
foregoing, the Company may delay issuance of the Shares until completion of any
action or obtaining of any consent, which the Company deems necessary under any
applicable law (including without limitation state securities or “blue sky”
laws).


 


12.                                 RESTRICTIONS
ON TRANSFER OF SHARES.


 


12.1                           The
Participant agrees that in the event the Company proposes to offer for sale to
the public any of its equity securities and such Participant is requested by
the Company and any underwriter engaged by the Company in connection with such
offering to sign an agreement restricting the sale or other transfer of Shares,
then it will promptly sign such agreement and will not transfer, whether in
privately negotiated transactions or to the public in open market transactions
or otherwise, any Shares or other securities of the Company held by him or her
during such period as is determined by the Company and the underwriters, not to
exceed 180 days following the closing of the offering, plus such additional
period of time as may be required to comply with Marketplace Rule 2711 of
the National Association of Securities Dealers, Inc. or similar rules thereto
(such period, the “Lock-Up Period”). 
Such agreement shall be in writing and in form and substance reasonably
satisfactory to the Company and such underwriter and pursuant to customary and
prevailing terms and conditions.  Notwithstanding
whether the Participant has signed such an agreement, the Company may impose
stop-transfer instructions with respect to the Shares or other securities of
the Company subject to the foregoing restrictions until the end of the Lock-Up
Period.


 


12.2                           The
Participant acknowledges and agrees that neither the Company, its shareholders
nor its directors and officers, has any duty or obligation to disclose to the
Participant any material information regarding the business of the Company or
affecting the value of the Shares before, at the time of, or following a
termination of the employment of the Participant by the Company, including,
without limitation, any information concerning plans for the Company to make a
public offering of its securities or to be acquired by or merged with or into
another firm or entity.


 


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13.                                 NO
OBLIGATION TO MAINTAIN RELATIONSHIP.


 


The Company is not by the
Plan or this Option obligated to continue the Participant as an employee,
director or consultant of the Company or an Affiliate. The Participant
acknowledges: (i) that the Plan is discretionary in nature and may be
suspended or terminated by the Company at any time; (ii) that the grant of
the Option is a one-time benefit which does not create any contractual or other
right to receive future grants of options, or benefits in lieu of options; (iii) that
all determinations with respect to any such future grants, including, but not
limited to, the times when options shall be granted, the number of shares
subject to each option, the option price, and the time or times when each
option shall be exercisable, will be at the sole discretion of the Company; (iv) that
the Participant’s participation in the Plan is voluntary; (v) that the
value of the Option is an extraordinary item of compensation which is outside
the scope of the Participant’s employment contract, if any; and (vi) that
the Option 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.


 


14.                                 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:

  	
   

  
	
   

  	
  EnerNOC, Inc.

  
	
   

  	
  Attn: Chief Financial
  Officer

  
	
   

  	
  75 Federal Street,
  Suite 300

  
	
   

  	
  Boston, MA 02110

  



 


If to the Participant:


 


 


 


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 upon the earlier of receipt, one
business day following delivery to a recognized courier service or three
business days following mailing by registered or certified mail.


 


15.                                 GOVERNING
LAW.


 


This Agreement shall be
construed and enforced in accordance with the law of the Commonwealth of
Massachusetts without giving effect to the conflict of law principles thereof. For
the purpose of litigating any dispute that arises under this Agreement, the
parties hereby consent to exclusive jurisdiction in the State of Massachusetts  and agree that such litigation shall


 


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be conducted in the courts of Suffolk County, Massachusetts  or the federal courts of the United States for the District
of Massachusetts.


 


16.                                 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.


 


17.                                 ENTIRE
AGREEMENT.


 


This Agreement, together
with the Plan, embodies 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.


 


18.                                 MODIFICATIONS
AND AMENDMENTS.


 


The terms and provisions
of this Agreement may be modified or amended as provided in the Plan.


 


19.                                 WAIVERS
AND CONSENTS.


 


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.


 


20.                                 DATA
PRIVACY.


 


By entering into this
Agreement, the Participant: (i) authorizes the Company and each Affiliate,
and any agent of the Company or any Affiliate administering the Plan or
providing Plan recordkeeping services, to disclose to the Company or any of its
Affiliates such information and data as the Company or any such Affiliate shall
request in order to facilitate the grant of options and the administration of
the Plan; (ii) waives any data privacy rights he or she may have with
respect to such information; and (iii) authorizes the Company and each
Affiliate to store and transmit such information in electronic form.


 


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IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
duly authorized officer, and the Participant has hereunto set his or her hand,
all as of the day and year first above written.


 


	
   

  	
  ENERNOC, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
  Title

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Participant

  



 


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Exhibit A


 


NOTICE OF EXERCISE OF NON-QUALIFIED STOCK OPTION


 


TO:                            EnerNOC, Inc.


 


IMPORTANT NOTICE: This
form of Notice of Exercise may only be used at such time as the Company has
filed a Registration Statement with the Securities and Exchange Commission
under which the issuance of the Shares for which this exercise is being made is
registered and such Registration Statement remains effective.


 


Ladies and Gentlemen:


 


I hereby exercise my
Non-Qualified Stock Option to purchase
                  
shares (the “Shares”) of the common stock, $.001 par value, of EnerNOC, Inc.  (the “Company”), at the exercise price of $                  per
share, pursuant to and subject to the terms of that certain Non-Qualified Stock
Option Agreement between the undersigned and the Company dated January 21,
2009.


 


I understand the nature
of the investment I am making and the financial risks thereof. I am aware that
it is my responsibility to have consulted with competent tax and legal advisors
about the relevant national, state and local income tax and securities laws
affecting the exercise of the Option and the purchase and subsequent sale of
the Shares.


 


I am paying the option
exercise price for the Shares as follows:


 


 


Please issue the Shares
(check one):


 


o to me; or


 


o to me and
                                                        ,
as joint tenants with right of survivorship,


 


at the following address:


 


 


 


A-1

















 


My mailing address
for shareholder communications, if different from the address listed above, is:


 


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Participant
  (signature)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Social Security
  Number

  



 


A-2