EXHIBIT 10.18
NUVERA FUEL CELLS, INC.
2000 STOCK INCENTIVE PLAN
1. Purposes of the Plan.
The purposes of this 2000 Stock Incentive Plan of NUVERA FUEL CELLS, INC.
(the "Company") are to promote the interests of the Company and its
stockholders by strengthening the Company's ability to attract, motivate, and
retain employees, directors, and consultants of exceptional ability and to
provide a means to encourage stock ownership and a proprietary interest in the
Company to selected employees, directors, and consultants of the Company upon
whose judgment, initiative, and efforts the financial success and growth of the
business of the Company largely depend.
2. Definitions.
(a) "Award" shall mean any Option, Other Stock-Based Award or award
of Restricted Stock granted under the Plan.
(b) "Award Agreement" shall mean any written agreement, contract or
other instrument or document evidencing any Award granted under the Plan,
which may, but need not, be executed or acknowledged by a Participant.
(c) "Board" means the Board of Directors of the Company.
(d) "Change of Control" shall mean the first to occur of:
(i) an individual, corporation, partnership, group, associate or
other entity or "person", as such term is defined in Section 14(d) of
the Securities Exchange Act of 1934 (the "Exchange Act"), other than
Arthur D. Little, Inc., De Nora New Energy Investments B.V. , any
non-natural person 100% of the capital stock of which is owned by
Norfin S.p.A., the Company or any employee benefit plan(s) sponsored
by the Company, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
66-2/3% or more of the combined voting power of the Company's
outstanding securities ordinarily having the right to vote at
elections of directors;
(ii) individuals who constitute the Board of Directors of the
Company on the effective date of the Plan (the "Incumbent Board")
cease for any reason to constitute at least a majority thereof,
provided that any Approved Director, as hereinafter defined, shall
be, for purposes of this subsection (ii), considered as though such
person were a member of the Incumbent Board. An "Approved Director",
for purposes of this subsection (ii), shall mean any person becoming
a director subsequent to the effective date of the Plan whose
election, or nomination for election by the Company's shareholders,
was approved by a vote of at least three-quarters of the directors
comprising the Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Company in which such
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person is named as a nominee of the Company for director), but shall
not include any such individual whose initial assumption of office
occurs as a result of either an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of an individual, corporation,
partnership, group, associate or other entity or "person" other than
the Board;
(iii) the approval by the shareholders of the Company of a plan
or agreement providing (A) for a merger or consolidation of the
Company other than with a wholly-owned subsidiary and other than a
merger or consolidation that 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) more than 65% of the
combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, or (B) for a sale, exchange or other disposition of
all or substantially all of the assets of the Company. If any of the
events enumerated in this subsection (iii) occurs, the Committee
shall determine the effective date of the Change of Control resulting
therefrom for purposes of the Plan.
(iv) In addition to the events described in subsections (i),
(ii) and (iii), it shall be a "Change of Control" for purposes hereof
for any Participant principally employed in the business of a
Designated Business Unit, as hereinafter defined, if an event
described in subsections (i), (ii) or (iii) shall occur, except that
for purposes of this subsection (iv), references in such subsections
to the "Company" shall be deemed to refer to the Designated Business
Unit in the business of which the Participant is principally
employed. A Change in Control described in this subsection (iv) shall
apply only to a Participant employed principally by the affected
Designated Business Unit. For purposes of this subsection (iv),
"Designated Business Unit" shall mean Nuvera Fuel Cells Europe,
S.r.l. and any other business unit identified as a Designated
Business Unit by the Committee from time to time.
(e) "Committee" means the Finance Committee of the Board; provided,
that the Board by resolution duly adopted may at any time or from time to
time determine to assume any or all of the functions of the Committee
under the Plan, and during the period of effectiveness of any such
resolution, references herein to the "Committee" will mean the Board
acting in such capacity.
(f) "Common Stock" means the Common Stock, $.01 par value, of the
Company.
(g) "Company" means NUVERA FUEL CELLS, INC., a Delaware corporation.
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(h) "Eligible Person" means any person who, at the time of the grant
of an Option or Restricted Stock Award, is an employee, director, or
consultant of the Company or any subsidiary.
(i) "Fair Market Value" means the value of a share of Common Stock as
of the relevant time of reference, as determined as follows. If the Common
Stock is then publicly traded, Fair Market Value will be (i) the most
recent closing price of a share of Common Stock on the principal national
securities exchange on which the Common Stock is traded, if the Common
Stock is then traded on a national securities exchange; or (ii) the most
recent closing price of the Common Stock reported in The NASDAQ Stock
Market's National Market, if the Common Stock is not then traded on a
national securities exchange; or (iii) the average of the closing bid and
asked prices for the Common Stock quoted by an established quotation
service for over-the-counter securities, if the Common Stock is not then
traded on a national securities exchange or reported in The NASDAQ Stock
Market's National Market. If the Common Stock is not then publicly traded,
Fair Market Value will be the fair value of a share of the Common Stock as
determined by the Board or the Committee, taking into consideration such
factors as it deems appropriate, which may include recent sale and offer
prices of Common Stock in arms'-length transactions.
(j) "Participant" means any Eligible Person selected to receive an
Award hereunder.
(k) "Restricted Stock Award" means a right to the grant or purchase,
at a price determined by the Committee, of Common Stock which is
nontransferable and subject to substantial risk of forfeiture until
specific conditions of continuing employment or performance are met.
(l) "Incentive Stock Option" means an Option intended to qualify as
an "incentive stock option" under Section 422 of the Internal Revenue Code
and regulations thereunder or any successor provision thereto.
(m) "Option" means an Incentive Stock Option or a nonqualified stock
option awarded under this Plan.
(n) "Other Stock-Based Award" shall mean an award granted under
Section 8 of this Plan.
(o) "Plan" means this Nuvera Fuel Cells, Inc. 2000 Stock Incentive
Plan, as it may be amended and/or restated and in effect from time to
time.
(p) "Substitute Awards" shall mean Awards granted in assumption of,
or in substitution for, outstanding awards previously granted by a company
acquired by the Company or with which the Company combines.
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3. Shares of Common Stock Subject to the Plan.
(a) Subject to adjustment in accordance with the provisions of
Section 3 and Section 8 of the Plan, the aggregate number of shares of
Common Stock that may be issued pursuant to Awards under the Plan will not
exceed an aggregate of 176,124 shares of Common Stock. Subject to
adjustment as provided in Section 3(e), no participant may receive Options
and/or stock appreciation rights under the Plan in any calendar year that
relate to more than 20,000 Shares.
(b) The shares of Common Stock to be delivered under the Plan will be
made available, at the discretion of the Committee, from authorized but
unissued shares of Common Stock and/or from previously issued shares of
Common Stock reacquired by the Company.
(c) If, after the effective date of the Plan, any Shares covered by
an Award (other than a Substitute Award) or to which such an Award
relates, are forfeited, or if such an Award otherwise terminates without
the delivery of Shares or of other consideration, then the Shares covered
by such Award, or to which such Award relates, to the extent of any such
forfeiture or termination, shall again be, or shall become, available for
issuance under the Plan.
(d) In the event that any Option or other Award granted hereunder
(other than a Substitute Award) is exercised through the delivery of
Shares, or in the event that withholding tax liabilities arising from such
Option or Award are satisfied by the withholding of Shares by the Company,
the number of Shares available for Awards under the Plan shall be
increased by the number of Shares so surrendered or withheld.
(e) In the event that the Committee shall determine that 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, issuance of warrants or other rights to purchase Shares or other
securities of the Company, or other similar corporate transaction or event
affects the Shares such that an adjustment is determined by the Committee
to be appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the
Plan, then the Committee shall, in such manner as it may deem equitable,
adjust any or all of (i) the number and type of Shares (or other
securities or property) which thereafter may be made the subject of
Awards, including the aggregate and individual limits specified in Section
3(a), (ii) the number and type of Shares (or other securities or property)
subject to outstanding Awards, and (iii) the grant, purchase, or exercise
price with respect to any Award or, if deemed appropriate, make provision
for a cash payment to the holder of an outstanding Award; provided,
however, that the number of Shares subject to any Award denominated in
Shares shall always be a whole number.
(f) Shares underlying Substitute Awards shall not reduce the number
of Shares remaining available for issuance under the Plan.
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4. Administration of the Plan.
(a) The Plan will be governed by and interpreted and construed in
accordance with the internal laws of the State of Delaware (without
reference to principles of conflicts or choice of law). The captions of
sections of the Plan are for reference only and will not affect the
interpretation or construction of the Plan.
(b) The Plan will be administered by the Committee, which will
consist of two or more persons. The Committee has and may exercise such
powers and authority of the Board as may be necessary or appropriate for
the Committee to carry out its functions as described in the Plan. The
Committee will determine the Eligible Persons to whom, and the time or
times at which, Awards may be granted and the number of shares subject to
each Award. The Committee also has authority (i) to interpret the Plan,
(ii) to determine the terms and provisions of the Award Agreements, and
(iii) to make all other determinations necessary or advisable for Plan
administration. The Committee has authority to prescribe, amend, and
rescind rules and regulations relating to the Plan. All interpretations,
determinations, and actions by the Committee will be final, conclusive,
and binding upon all parties.
(c) No member of the Committee will be liable for any action taken or
determination made in good faith by the Committee with respect to the Plan
or any Award under it.
5. Grants, Eligibility.
(a) The Committee will determine and designate from time to time
those Eligible Persons who are to be granted Awards, the type of each
Option and/or Award to be granted and the number of shares covered thereby
or issuable upon exercise thereof, and the number of shares covered by
each Award. Each Award will be evidenced by an Award Agreement which may
include any other terms and conditions not inconsistent with the Plan, as
the Committee may determine.
(b) Holders of options and other types of Awards granted by a company
acquired by the Company or with which the Company combines are eligible
for grant of Substitute Awards hereunder.
6. Terms and Conditions of Stock Options.
(a) The price at which Common Stock may be purchased by a Participant
under an Option, the term of an Option and the other terms and conditions
relating thereto will be determined by the Committee.
(b) Each Option will be exercisable at such time or time, during such
periods, and for such numbers of shares as is determined by the Committee
and set forth in the applicable Award Agreement (subject to acceleration
by the Committee, in its discretion).
(c) Unless the Committee otherwise determines (whether at the time
the Option is granted or otherwise), upon the exercise of an Option, the
purchase price will be
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payable in full in cash. The Committee shall determine the time or times
at which an Option may be exercised in whole or in part, and the method or
methods by which, and the form or forms, including, without limitation,
cash, Shares, other Awards, or other property, or any combination thereof,
having a Fair Market Value on the exercise date equal to the relevant
exercise price, in which, payment of the exercise price with respect
thereto may be made or deemed to have been made.
(d) No fractional shares will be issued pursuant to the exercise of
an Option, nor will any cash payment be made in lieu of fractional shares.
7. Terms and Conditions of Restricted Stock Awards.
(a) All shares of Common Stock subject to Restricted Stock Awards
granted or sold pursuant to the Plan may be issued or transferred to the
Participant for such consideration (which may consist wholly of services)
as the Committee may determine, and will be subject to the following
conditions:
(i) The shares may not be sold, transferred, or otherwise
alienated or hypothecated until the restrictions, if any, are removed
or expire, unless the Committee determines otherwise.
(ii) The Committee may provide in the applicable Award Agreement
that the certificates representing shares subject to Restricted Stock
Awards granted or sold pursuant to the Plan will be held in escrow by
the Company until the restrictions on the shares lapse in accordance
with the provisions of subsection (b) of this Section 7.
(iii) Each certificate representing shares subject to Restricted
Stock Awards granted or sold pursuant to the Plan may bear a legend
making appropriate reference to the restrictions, if any, imposed.
(iv) The Committee may impose other conditions on any shares
subject to Restricted Stock Awards granted or sold pursuant to the
Plan as it may deem advisable, including without limitation,
restrictions under the Securities Act of 1933, as amended, under the
requirements of any stock exchange or securities quotations system
upon which such shares or shares of the same class are then listed,
and under any blue sky or other securities laws applicable to such
shares.
(b) Any restrictions imposed under subparagraph (a) above upon
Restricted Stock Awards will lapse at such time or times, and/or upon the
achievement of such predetermined performance objectives, as is or are
determined by the Committee and set forth in the applicable Award
Agreement (subject to acceleration by the Committee, in its discretion).
(c) Subject to the provisions of subparagraphs (a) and (b) above, the
holder will have all rights of a shareholder with respect to the shares
covered by Restricted Stock Awards granted or sold, including the right to
receive all dividends and other distributions paid or made with respect
thereto; provided, however, that if requested by
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the Company, he or she will execute an irrevocable proxy or enter into a
voting agreement with the Company as determined by the Committee for the
purpose of granting the Company or its nominee the right to vote all
shares that remain subject to restrictions under this Section 7 in the
same proportions (for and against) as the outstanding voting shares of the
Company that are not subject to such restrictions are voted by the other
shareholders of the Company on any matter, unless the Committee determines
otherwise.
8. Other Stock-Based Awards.
The Committee is hereby authorized to grant to Participants such other
Awards (including, without limitation, stock appreciation rights and rights to
dividends and dividend equivalents) that are denominated or payable in, valued
in whole or in part by reference to, or otherwise based on or related to,
Shares (including, without limitation, securities convertible into Shares) as
are deemed by the Committee to be consistent with the purposes of the Plan.
Subject to the terms of the Plan, the Committee shall determine the terms and
conditions of such Awards. Shares or other securities delivered pursuant to a
purchase right granted under this Section 8 shall be purchased for such
consideration, which may be paid by such method or methods and in such form or
forms, including, without limitation, cash, Shares, other securities, other
Awards, or other property, or any combination thereof, as the Committee shall
determine, the value of which consideration, as established by the Committee,
shall, except in the case of Substitute Awards, not be less than the Fair
Market Value of such Shares or other securities as of the date such purchase
right is granted.
9. General Provisions.
(a) Nothing in the Plan or in any instrument executed pursuant to the
Plan will confer upon any Participant any right to continue in the employ
of or as a director of or consultant to the Company or any of its
Subsidiaries or affect the right of the Company or any Subsidiary to
terminate the employment, directorship, or consulting relationship of any
Participant at any time, with or without cause.
(b) No shares of Common Stock will be issued or transferred pursuant
to an Award unless and until all then applicable requirements imposed by
federal and state securities and other laws, rules and regulations and by
any regulatory agencies having jurisdiction, and by any stock exchanges or
securities quotations systems upon which the Common Stock may be listed,
have been fully met. As a condition precedent to the issuance of shares
pursuant to the grant or exercise of an Award, the Company may require the
Participant to take any reasonable action to meet such requirements.
(c) No Participant and no beneficiary or other person claiming under
or through such Participant will have any right, title, or interest in or
to any shares of Common Stock allocated or reserved under the Plan or
subject to any Award, except as to such shares of Common Stock, if any,
that have been issued or transferred to such Participant.
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(d) The Committee may adopt rules regarding the withholding of
federal, state, or local taxes of any kind required by law to be withheld
with respect to payments and delivery of shares to Participants under the
Plan. The Company shall be authorized to withhold from any Award granted
or any payment due or transfer made under any Award or under the Plan or
from any compensation or other amount owing to a Participant the amount
(in cash, shares of Common Stock, other securities, other Awards, or other
property) of withholding taxes due in respect of an Award, its exercise,
or any payment or transfer under such Award or under the Plan and to take
such other action (including, without limitation, providing for elective
payment of such amounts in cash, shares of Common Stock, other securities,
other Awards or other property by the Participant) as may be necessary in
the opinion of the Company to satisfy all obligations for the payment of
such taxes.
(e) The Committee may cancel, with the consent of the Participant,
all or a portion of any Option granted under the Plan to be conditioned
upon the granting to the Participant of a new Option for the same or such
different number of shares as the Option surrendered, or may require such
voluntary surrender as a condition to a grant of a new Option to such
Participant. Subject to the provisions of Section 6(d), such new Option
will be exercisable at such time or time, during such periods, and for
such numbers of shares, and in accordance with any other terms or
conditions, as are specified by the Committee at the time the new Option
is granted, all determined in accordance with the provisions of the Plan
without regard to the price, period of exercise, or any other terms or
conditions of the Option surrendered.
(f) Nothing contained in the Plan shall prevent the Company from
adopting or continuing in effect other or additional compensation
arrangements, and such arrangements may be either generally applicable or
applicable only in specific cases.
(g) Unless the provisions of an Award Agreement shall specifically
provide that this Section 9(g) shall not apply, upon a Change in Control,
all Awards shall become fully vested and exercisable, and any restrictions
applicable to any Award shall automatically lapse.
10. Amendment and Termination.
(a) Except to the extent prohibited by applicable law and unless
otherwise expressly provided in an Award Agreement or in the Plan, the
Board may amend, alter, suspend, discontinue, or terminate the Plan or any
portion thereof at any time; provided, however, that no such amendment,
alteration, suspension, discontinuation or termination shall be made
without (i) shareholder approval if such approval is necessary to comply
with any tax or regulatory requirement for which or with which the Board
deems it necessary or desirable to qualify or comply or (ii) the consent
of the affected Participant, if such action would adversely affect the
rights of such Participant under any outstanding Award. Notwithstanding
anything to the contrary herein, the Committee may amend the Plan in such
manner as may be necessary to enable the Plan to achieve its stated
purposes in any jurisdiction outside the United States in a tax-efficient
manner and in compliance with local rules and regulations.
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(b) The Committee may waive any conditions or rights under, amend any
terms of, or amend, alter, suspend, discontinue or terminate, any Award
theretofore granted, prospectively or retroactively, without the consent
of any relevant Participant or holder or beneficiary of an Award,
provided, however, that no such action shall impair the rights of any
affected Participant or holder or beneficiary under any Award theretofore
granted under the Plan.
(c) The Committee shall be authorized to make adjustments in the
terms and conditions of, and the criteria included in, Awards in
recognition of unusual or nonrecurring events (including, without
limitation, the events described in Section 3(e) affecting the Company, or
the financial statements of the Company, or of changes in applicable laws,
regulations or accounting principles, whenever the Committee determines
that such adjustments are appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made
available under the Plan.
(d) Any provision of the Plan or any Award Agreement to the contrary
notwithstanding, the Committee may cause any Award granted hereunder to be
canceled in consideration of a cash payment or alternative Award made to
the holder of such canceled Award equal in value to the Fair Market Value
of such canceled Award.
(e) The Committee may correct any defect, supply any omission, or
reconcile any inconsistency in the Plan or any Award in the manner and to
the extent it shall deem desirable to carry the Plan into effect.
11. Effective Date of Plan and Duration of Plan.
The effective date of the Plan is September 14, 2000, the date on which it
was approved by the Board and shareholders of the Company. No Award may be
granted under the Plan after the tenth anniversary of such effective date.
However, unless otherwise expressly provided in the Plan or in an applicable
Award Agreement, any Award theretofore granted may extend beyond such date, and
the authority of the Committee to amend, alter, adjust, suspend, discontinue,
or terminate any such Award, or to waive any conditions or rights under any
such Award, and the authority of the Board to amend the Plan, shall extend
beyond such date.
