f8k121709ex10ii_windtamer.htm


     

    
      


      Exhibit
10.2

       

      WINDTAMER
CORPORAION

      2008
EQUITY INCENTIVE PLAN

       

      RESTRICTED
STOCK AGREEMENT

       

       

      
        
          
            

          

        

         

        


      

      Mr. Mark
Matthews

      8 Chablis
Drive

      Fairport,
NY 14450-4609

      


      This
Agreement confirms the grant of Restricted Stock to you effective as of December 17, 2009 (the
“Effective Date”) under the WindTamer Corporation 2008 Equity Incentive Plan, as
may be Amended and Restated (the “Plan”), upon the terms and conditions
described herein.

       

      1. Grant of Restricted
Stock.  Pursuant to action of the Compensation Committee of the
Board of Directors, WindTamer Corporation (the “Company”) hereby grants you
under the Plan an aggregate of 25,000 shares of Restricted
Stock of the Company’s Common Stock (the “Restricted Shares”), subject to the
terms and conditions hereinafter set forth and as set forth in that certain
Employment Agreement, dated as of December 17, 2009, between you and the Company
(the “Employment Agreement”). To the extent that there is any inconsistency
between the Employment Agreement and the terms of this Agreement, the terms of
the Employment Agreement shall govern.

       

      2. Closing.  The
transfer of the Restricted Shares shall occur simultaneously with the execution
of this Agreement. Concurrently with the execution of this Agreement, the
Company may issue one or more certificates in physical form or book entry
representing the Restricted Shares (which, in the case of physical certificates,
shall be held by the Company pursuant to paragraph 6 below until the applicable
Restrictions (as defined in paragraph 3 below) have lapsed).

       

      3. Restrictions.  The
Restricted Shares are being awarded to you subject to (i) the transfer and
forfeiture restrictions set forth in this paragraph 3 below (the
“Restrictions”), which shall lapse after the expiration of the vesting periods
described in paragraph 4 below, (ii) satisfaction of the tax withholding
requirements set forth in paragraph 8 below, and (iii) compliance with the
Company’s Insider Trading Policy.

       

      (a) Transfer.  You may
not directly or indirectly, by operation of law or otherwise, voluntarily or
involuntarily, alienate, attach, sell, assign, pledge, encumber, charge or
otherwise transfer any of the Restricted Shares still subject to Restrictions,
except for such assignments as are allowed under the Plan, provided that, in all
cases, such transferee executes a written consent to be bound by the terms of
this Agreement.

       

      (b) Forfeiture.  Subject
to exceptions as may be determined by the Compensation Committee of the Board of
Directors, if your continuous employment or consulting relationship with the
Company or any majority-owned subsidiary of the Company shall terminate for any
reason, all Restricted Shares for which the Restrictions have not lapsed at such
time shall be returned to or canceled by the Company, and shall be deemed to
have been forfeited by you. Upon a forfeiture of your Restricted Shares, the
Company will not be obligated to pay you any consideration whatsoever for the
forfeited Restricted Shares.

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      4. Lapse
of Restrictions.

       

      (a) The
Restrictions shall lapse to the extent the Restricted Shares have become vested,
as follows:  all of the shares shall vest in full on January 5,
2010.

       

      (b) All of
the Restricted Shares shall become vested and the Restrictions shall lapse with
respect to any unvested Restricted Shares upon a Change in Control (as defined
in the Plan).

       

      (c) All of
the Restricted shall become vested and the Restrictions shall lapse with respect
to any unvested Restricted Shares as provided in Section 9 of the Employment
Agreement.

       

      (d) To the
extent the Restrictions shall have lapsed under this paragraph 4 with respect to
any portion of the Restricted Shares, those shares (“Vested Shares”) will be
free of the terms and conditions of this Agreement except those terms and
conditions contained in paragraph 8 below; provided, however, that such Vested
Shares shall remain subject to the terms and conditions of the Company’s Insider
Trading Policy.

       

      5. Adjustments.  The
terms “Restricted Shares” and “Vested Shares” shall include any shares or other
securities that you receive or become entitled to receive under Section 14
of the Plan as a result of your ownership of the original Restricted
Shares.

       

      6. Custody. Any certificates
representing the Restricted Shares (other than Vested Shares) shall be deposited
with the Company. The Company is hereby authorized to effectuate the transfer
into its name of all certificates representing the Restricted Shares that are
forfeited or otherwise transferred to the Company pursuant to either paragraph 3
above or paragraph 8 below.

       

      7. Voting
and Other Rights.

       

      (a) Upon the
registration of the Restricted Shares in your name, you shall have all of the
rights and status as a stockholder of the Company with respect to the Restricted
Shares, including the right to vote such shares and to receive dividends or
other distributions thereon. All such rights and status as a stockholder of the
Company with respect to the Restricted Shares shall terminate if the Restricted
Shares are forfeited pursuant to either paragraph 3 above or paragraph 8
below.

       

      (b) The grant
of the Restricted Shares to you does not confer upon you any right to continue
in the employ of the Company.

       

      8. Withholding
Taxes.  The award or other transfer of the Restricted Shares,
and the lapse of Restrictions on the Restricted Shares, shall be conditioned
further on any applicable withholding taxes being paid by you in the form and
manner reasonably acceptable to the Company.

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      9. Incorporation of Plan
Provisions.  This Agreement is made pursuant to the Plan and is
subject to all the terms and provisions of the Plan as if the same were fully
set forth herein. Capitalized terms not otherwise defined herein shall have the
meanings set forth for such terms in the Plan. To the extent that there is any
inconsistency between this Agreement and the terms of the Plan, the terms of
this Agreement shall govern.   To the extent that there is any
inconsistency between the Employment Agreement and the terms of the Plan, the
terms of the Employment Agreement shall govern.

       

      10. Stock Power.  At
the Company’s request, you hereby agree to promptly execute any document,
including a stock power endorsed in blank, that is necessary to comply with the
terms of this Agreement.

       

      11. Successors.  This
Agreement shall be binding upon and inure to the benefit of any successor of the
Company and your successors, assigns and estate, including your executors,
administrators and trustees.

       

      12. Restriction on
Transfer.  Unless and until the shares represented by this
award are registered under the Securities Act, all certificates representing the
shares and any certificates subsequently issued in substitution therefor and any
certificate for any securities issued pursuant to any stock split, share
reclassification, stock dividend or other similar capital event shall bear
legends in substantially the following form:

       

      


      “THESE
SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE QUALIFIED UNDER THE SECURITIES
ACT OF 1933 (THE “SECURITIES ACT“) OR UNDER THE APPLICABLE SECURITIES LAWS OF
ANY STATE. NEITHER THESE SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION
UNDER THE SECURITIES ACT OR ANY APPLICABLE SECURITIES LAWS OF ANY STATE, UNLESS
PURSUANT TO EXEMPTIONS THEREFROM.“

      


      You agree
to such transfer restrictions.  The certificates shall bear such other
legend or legends as the Company and its counsel deem necessary or appropriate.
Appropriate stop transfer instructions with respect to the shares may, at the
Company’s discretion, be placed with the Company's transfer agent.

      


      13. Amendment or Modification,
Waiver.  No provision of this Agreement may be amended or
waived unless such amendment or waiver is agreed to in writing and signed by
each party hereto. No waiver by either party hereto of any breach by another
party hereto of any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of a similar of dissimilar condition
or provision at the same time, any prior time or any subsequent
time.

       

      14. Notices.  Each
notice relating to this Agreement shall be in writing and delivered in person or
by certified mail or overnight delivery to the proper address. Notices to
employees sent via e-mail shall be deemed to satisfy the requirements of this
paragraph 13. All notices to the Company shall be addressed to it
at:

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      WindTamer
Corporation

      156 Court
Street

      Geneseo,
NY 14454

      Attention:
Stock Option and Incentive Plan Administrator

      


      15. Severability.  If
any provision of this Agreement or the application of any such provision to any
party or circumstances shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the remainder of
this Agreement or the application of such provision to such person or
circumstances other than those to which it is so determined to be invalid and
unenforceable, shall not be affected thereby, and each provision hereof shall be
validated and shall be enforced to the fullest extent permitted by
law.

       

      16. Governing
Law.  This Agreement shall be construed and governed in
accordance with the laws of the state of New York, without regard to principles
of conflicts of laws.

       

      17. Headings.  All
descriptive headings of sections and paragraphs in this Agreement are intended
solely for convenience, and no provision of this Agreement is to be construed by
reference to the heading of any section or paragraph.

       

      18. Counterparts.  This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original but both of which together shall constitute one and the same
instrument.

       

      To
confirm your acceptance of the foregoing, please sign and date below under
“Accepted and Agreed” and return one copy of this Agreement to the
Company.

       

      WINDTAMER
CORPORATION

       

       

      By:                                                              
  

      Name:   Gerald
Brock

      Title:     Chief
Executive Officer

      


      ACCEPTED
AND AGREED:

      


      


                                                                                  

      Name:  Mark
Matthews

      


      


      Date:                                                        
         

    

     

     

     

     

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