Exhibit 10.5
Execution Copy
ASCENT SOLAR TECHNOLOGIES,
INC.
INDUCEMENT AWARD
AGREEMENT
This INDUCEMENT AWARD AGREEMENT (the
“ Award Agreement ”) is made as of
August 3, 2009 by and between ASCENT SOLAR
TECHNOLOGIES, INC., a Delaware corporation (the “
Company ”), and Farhad Moghadam (the “
Optionee ”).
Subject to the Optionee’s
Amended and Restated Executive Employment Agreement dated as of
August 3, 2009 (the “ Employment Agreement
”), the parties agree as follows:
PART I: NOTICE OF
GRANT
1. Description of Stock Option
Grant . Farhad
Moghadam, the undersigned Optionee, has been granted an option the
(“ Option ”) to purchase common stock of the
Company (the “ Shares ”). The Option is not
subject to any existing equity incentive plan of the Company and is
intended to qualify as an “inducement award” under
Nasdaq Rule 5635(c)(4). Material terms of the Option
include:
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Date of
Grant:
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August 3,
2009
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Vesting
Commencement Date: (same as Date of Grant, if left
blank)
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August 3,
2009
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Exercise Price
per Share:
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$
(closing price on Date of Grant)
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Total Number of
Shares:
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200,000
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Type of
Option:
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Nonstatutory
Stock Option
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Expiration Date:
(10 years from Date of Grant, if
left blank)
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Vesting Schedule:
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August 3, 2010
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25%
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August 3,
2011
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25%
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August 3,
2012
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25%
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August 3,
2013
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25%
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2. Definitions
. The following
definitions shall apply in this Award Agreement:
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(a)
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“
Change of Control ” is defined in the Employment
Agreement.
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(b)
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“
Cause ” is defined in the Employment
Agreement.
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(c)
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“
Permanent Disability ” is defined in the Employment
Agreement.
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INDUCEMENT AWARD AGREEMENT
FARHAD MOGHADAM
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Execution Copy
3. Termination and Material
Events . Notwithstanding anything elsewhere in this Award
Agreement to the contrary:
(a) Termination Period .
Except as set forth below, this Option shall be exercisable for
ninety (90) days after Optionee ceases to be a director,
officer, employee or consultant of the Company (or a parent or
subsidiary of the Company); provided, however, that in no event may
this Option be exercised after the Expiration Date set forth in the
Notice of Grant.
(b) Termination Without Cause
. If the Optionee is terminated by the Company without Cause
pursuant to Section 5(b) of the Employment Agreement, and the
Optionee signs and does not revoke a release of claims with the
Company (in a form reasonably acceptable to the Company and
Optionee) and provided that such release of claims becomes
effective no later than sixty (60) days following the
termination date or such earlier date required by the release
agreement, the Company will cause any part of the Option which
would vest based on time during that the twelve month period after
the date of termination to vest and become exercisable on the
termination date.
(c) Disability of Optionee .
If Optionee suffers a Permanent Disability and the Employment
Agreement terminates as described in Section 5(c) of the
Employment Agreement, the Optionee may, to the extent the Option is
vested on the date of termination, exercise the Option within one
(1) year of termination (but in no event later than the
expiration of the term of such Option as set forth in the Award
Agreement). If, after termination, the Optionee does not exercise
his or her Option within the time specified herein, the Option
shall terminate.
(d) Death of Optionee
. If Optionee dies and the Employment Agreement terminates as
described in Section 5(d) of the Employment Agreement, the
Option may, to the extent that the Option is vested on the date of
death, be exercised within one (1) year following
Optionee’s death (but in no event later than the expiration
of the term of such Option as set forth in the Notice of Grant) by
the Optionee’s designated beneficiary, provided such
beneficiary has been designated prior to Optionee’s death in
a form acceptable to Company. If no such beneficiary has been
designated by the Optionee, then such Option may be exercised by
the personal representative of the Optionee’s estate or by
the person(s) to whom the Option is transferred pursuant to the
Optionee’s will or in accordance with the laws of descent and
distribution. If the Option is not so exercised within the time
specified herein, the Option shall terminate.
(i) Acceleration of Vesting
. Upon occurrence of a Change of Control, any part of the
Option outstanding and held by the Optionee as of the date of such
termination will vest in full as to 100% of the unvested portion of
the award.
(ii) Limitation on Payments .
Notwithstanding anything herein to the contrary, in the event of a
Change of Control, in no event shall the Optionee be entitled to
receive any amount which would result in the imposition of tax
imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended, or any similar state tax (collectively, the “
Excise Tax ”). In such a case, any payment due to the
Optionee shall automatically be reduced to the maximum amount that
may be received by the Optionee that will not trigger any Excise
Tax.
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(f)
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Adjustments
Upon Changes in Capitalization or Dissolution
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(i) Changes in Capitalization
. Subject to any required action by the stockholders of the
Company, the number of shares of common stock covered by the
Option, as well as the price per share of common stock covered by
each such Option, shall be
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INDUCEMENT AWARD AGREEMENT
FARHAD MOGHADAM
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Execution Copy
proportionately adjusted for any increase or
decrease in the number of issued shares of common stock of the
Company resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the common stock, or
any other increase or decrease in the number of issued shares of
common stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible
securities of the Company shall not be deemed to have been
“effected without receipt of consideration.” Such
adjustment shall be made by the Company’s board of directors
(or a committee thereof), whose determination in that respect shall
be final, binding and conclusive. Except as expressly provided
herein, no issuance by the Company of shares of stock of any class,
or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of common stock subject
to the Option.
(ii) Dissolution or
Liquidation . In the event of the proposed dissolution or
liquidation of the Company, the Company shall notify the Optionee
as soon as practicable prior to the effective date of such proposed
transaction. The Company in its sole discretion may provide for the
Optionee to have the right to exercise his Option until ten
(10) days prior to such transaction as to up to all of the
Shares covered thereby, including Shares as to which the Option
would not otherwise be exercisable. In addition, the Company may
provide that any Company repurchase option applicable to any Shares
purchased upon exercise of an Option shall lapse as to all such
Shares, provided the proposed dissolution or liquidation
takes place at the time and in the manner contemplated. To the
extent it has not been previously exercised, an Option will
terminate immediately prior to the consummation of such proposed
action.
PART II:
AGREEMENT
1. Grant of Option
. The Company hereby
grants to the Optionee an Option to purchase the number of Shares
set forth in the Notice of Grant, at the exercise price per Share
set forth in the Notice of Grant (the “ Exercise Price
”), subject to the terms of the Employment Agreement, which
are incorporated by reference herein.
2. Exercise of Option
.
(a) Right to Exercise . This
Option shall be exercisable during its term in accordance with the
Vesting Schedule set out in the Notice of Grant and with the
applicable provisions of this Award Agreement.
(b) Method of Exercise . This
Option shall be exercisable by delivery of an exercise notice in
the form attached as Exhibit A (the “ Exercise
Notice ”) which shall state the election to exercise the
Option, the number of Shares with respect to which the Option is
being exercised, and such other representations and agreements as
may be required by the Company. The Exercise Notice shall be
accompanied by payment of the aggregate Exercise Price as to all
exercised Shares. This Option shall be deemed to be exercised upon
receipt by the Company of such fully executed Exercise Notice
accompanied by the aggregate Exercise Price.
No Shares shall be issued pursuant
to the exercise of an Option unless such issuance and such exercise
complies with applicable laws and regulations. Assuming such
compliance, for income tax purposes the Shares shall be considered
transferred to the Optionee on the date on which the Option is
exercised with respect to such Shares.