Exhibit 10.1
AMERICAN SUPERCONDUCTOR
CORPORATION
2007 STOCK INCENTIVE PLAN, AS
AMENDED
1. Purpose
The purpose of this 2007 Stock
Incentive Plan, as amended (the “Plan”) of American
Superconductor Corporation, a Delaware corporation (the
“Company”), is to advance the interests of the
Company’s stockholders by enhancing the Company’s
ability to attract, retain and motivate persons who are expected to
make important contributions to the Company and by providing such
persons with equity ownership opportunities and performance-based
incentives that are intended to align their interests with those of
the Company’s stockholders. Except where the context
otherwise requires, the term “Company” shall include
any of the Company’s present or future parent or subsidiary
corporations as defined in Sections 424(e) or (f) of the
Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder (the “Code”) and any other
business venture (including, without limitation, joint venture or
limited liability company) in which the Company has a controlling
interest, as determined by the Board of Directors of the Company
(the “Board”).
2. Eligibility
All of the Company’s
employees, officers, consultants and advisors are eligible to
receive options, stock appreciation rights (“SARs”),
restricted stock, restricted stock units (“RSUs”) and
other stock-based awards (each, an “Award”) under the
Plan. Each person who receives an Award under the Plan is deemed a
“Participant”.
3. Administration and
Delegation
(a) Administration by Board of
Directors . The Plan will be administered by the Board. The
Board shall have authority to grant Awards and to adopt, amend and
repeal such administrative rules, guidelines and practices relating
to the Plan as it shall deem advisable. The Board may construe and
interpret the terms of the Plan and any Award agreements entered
into under the Plan. The Board 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 expedient to carry the
Plan into effect and it shall be the sole and final judge of such
expediency. All decisions by the Board shall be made in the
Board’s sole discretion and shall be final and binding on all
persons having or claiming any interest in the Plan or in any
Award. No director or person acting pursuant to the authority
delegated by the Board shall be liable for any action or
determination relating to or under the Plan made in good
faith.
(b) Appointment of Committees
. To the extent permitted by applicable law, the Board may delegate
any or all of its powers under the Plan to one or more committees
or subcommittees of the Board (a “Committee”). All
references in the Plan to the “Board” shall mean the
Board or a Committee of the Board or the officers referred to in
Section 3(c) to the extent that the Board’s powers or
authority under the Plan have been delegated to such Committee or
officers.
(c) Delegation to Officers .
To the extent permitted by applicable law, the Board may delegate
to one or more officers of the Company the power to grant Awards
(subject to any limitations under the Plan) to employees or
officers of the Company or any of its present or future subsidiary
corporations and to exercise such other powers under the Plan as
the Board may determine, provided that the Board shall fix the
terms of the Awards to be granted by such officers (including the
exercise price of such Awards, which may include a formula by which
the exercise price will be determined) and the maximum number of
shares subject to Awards that the officers may grant; provided
further, however, that no officer shall be authorized to grant
Awards to any “executive officer” of the Company (as
defined by Rule 3b-7 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) or to any
“officer” of the Company (as defined by Rule 16a-1
under the Exchange Act).
4. Stock Available for
Awards.
(a) Number of Shares
.
(1) Authorized Number of
Shares . Subject to adjustment under Section 9, Awards may
be made under the Plan for up to 6,000,000 shares of common stock,
$0.01 par value per share, of the Company (the “Common
Stock”). Shares issued under the Plan may consist in whole or
in part of authorized but unissued shares or treasury
shares.
(2) Fungible Share Pool . For
purposes of this Section 4(a), any Award (A) that is not
a Full-Value Award shall be counted against the number of shares
available for the future grant of Awards as one share for each
share of Common Stock subject to such Award, and (B) that is a
Full-Value Award and is granted on or after August 6, 2009
shall be counted against the number of shares available for the
future grant of Awards as two shares for each share of Common Stock
subject to such Full-Value Award. “Full-Value Award”
means any Restricted Stock Award (as defined below) or Other
Stock-Based Award (as defined below) with a per share price or per
unit purchase price lower than 100% of Fair Market Value (as
defined below) on the date of grant. To the extent a share that was
subject to an Award that counted as one share is returned to the
Plan pursuant to Section 4(a)(3), the number of shares
available for the future grant of Awards shall be credited with one
share. To the extent that a share that was subject to an Award that
counts as two shares is returned to the Plan pursuant to
Section 4(a)(3), the number of shares available for the future
grant of Awards shall be credited with two shares.
(3) Share Counting and Reacquired
Shares . For purposes of counting the number of shares
available for the grant of Awards under the Plan, all shares of
Common Stock covered by independent SARs shall be counted against
the number of shares available for the grant of Awards;
provided , however , that independent SARs that may
be settled in cash only shall not be so counted. If any Award
(A) expires or is terminated, surrendered or canceled without
having been fully exercised or is forfeited in whole or in part
(including as the result of shares of Common Stock subject to such
Award being repurchased by the Company at the original issuance
price pursuant to a contractual repurchase right), or
(B) results in any Common Stock not being issued (including as
a result of an independent SAR that was settleable either in cash
or in stock actually being settled in cash), the unused Common
Stock covered by such Award shall again be available for the grant
of Awards; provided , however , in the case of
Incentive Stock Options (as hereinafter defined), the foregoing
shall be subject to any limitations
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under the Code; and provided further, in the
case of independent SARs, that the full number of shares subject to
any stock-settled SAR shall be counted against the number of shares
available under the Plan regardless of the number of shares
actually used to settle such SAR upon exercise. The following
shares shall not be added back to the number of shares available
for the future grant of Awards: (i) shares of Common Stock
tendered to the Company by a Participant to (A) purchase
shares of Common Stock upon the exercise of an Award, or
(B) satisfy tax withholding obligations (including shares
retained from the Award creating the tax obligation); and
(ii) shares of Common Stock repurchased by the Company on the
open market using the proceeds from the exercise of an
Award.
(b) Section 162(m)
Per-Participant Award Limitation Under the Plan . Subject to
adjustment under Section 9, the maximum number of shares of
Common Stock with respect to which Awards may be granted to any
Participant under the Plan shall be 1,000,000 per calendar
year. For purposes of the foregoing limit, the combination of an
Option in tandem with an SAR (as each is hereafter defined) shall
be treated as a single Award. The per-Participant limit described
in this Section 4(b) shall be construed and applied
consistently with Section 162(m) of the Code or any successor
provision thereto, and the regulations thereunder (“Section
162(m)”).
(c) Substitute Awards . In
connection with a merger or consolidation of an entity with the
Company or the acquisition by the Company of property or stock of
an entity, the Board may grant Awards in substitution for any
options or other stock or stock-based awards granted by such entity
or an affiliate thereof. Substitute Awards may be granted on such
terms as the Board deems appropriate in the circumstances,
notwithstanding any limitations on Awards contained in the Plan.
Substitute Awards shall not count against the overall share limit
set forth in Section 4(a)(1) or any sub-limits contained in
the Plan, except as may be required by reason of Section 422
and related provisions of the Code.
5. Stock Options
(a) General . The Board may
grant options to purchase Common Stock (each, an
“Option”) and determine the number of shares of Common
Stock to be covered by each Option, the exercise price of each
Option and the conditions and limitations applicable to the
exercise of each Option, including conditions relating to
applicable federal or state securities laws, as it considers
necessary or advisable. An Option which is not intended to be an
Incentive Stock Option (as hereinafter defined) shall be designated
a “Nonstatutory Stock Option”.
(b) Incentive Stock Options .
An Option that the Board intends to be an “incentive stock
option” as defined in Section 422 of the Code (an
“Incentive Stock Option”) shall only be granted to
employees of the Company, any of the Company’s present or
future parent or subsidiary corporations as defined in
Section 424(e) or (f) of the Code, and any other entities
the employees of which are eligible to receive Incentive Stock
Options under the Code, and shall be subject to and shall be
construed consistently with the requirements of Section 422 of
the Code. The Company shall have no liability to a Participant, or
any other party, if an Option (or any part thereof) that is
intended to be an Incentive Stock Option is not an Incentive Stock
Option or for any action taken by the Board, including without
limitation the conversion of an Incentive Stock Option to a
Nonstatutory Stock Option.
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(c) Exercise Price . The
Board shall establish the exercise price of each Option and specify
such exercise price in the applicable option agreement. The
exercise price shall be not less than 100% of the Fair Market Value
(as defined below) on the date the Option is granted; provided that
if the Board approves the grant of an Option with an exercise price
to be determined on a future date, the exercise price shall be not
less than 100% of the Fair Market Value on such future
date.
(d) Duration of Options .
Each Option shall be exercisable at such times and subject to such
terms and conditions as the Board may specify in the applicable
option agreement; provided , however , that no Option
will be granted for a term in excess of 10 years.
(e) Exercise of Option .
Options may be exercised by delivery to the Company of a written
notice of exercise signed by the proper person or by any other form
of notice (including electronic notice) approved by the Board
together with payment in full as specified in Section 5(f) for
the number of shares for which the Option is exercised.
(f) Payment Upon Exercise.
Common Stock purchased upon the exercise of an Option granted under
the Plan shall be paid for as follows:
(1) in cash or by check, payable to
the order of the Company;
(2) except as the Board may
otherwise provide in an option agreement, by (i) delivery of
an irrevocable and unconditional undertaking by a creditworthy
broker to deliver promptly to the Company sufficient funds to pay
the exercise price and any required tax withholding or
(ii) delivery by the Participant to the Company of a copy of
irrevocable and unconditional instructions to a creditworthy broker
to deliver promptly to the Company cash or a check sufficient to
pay the exercise price and any required tax withholding;
(3) when the Common Stock is
registered under the Securities Exchange Act of 1934 (the
“Exchange Act”), by delivery of shares of Common Stock
owned by the Participant valued at their fair market value as
determined by (or in a manner approved by) the Board (“Fair
Market Value”), provided (i) such method of payment is
then permitted under applicable law, (ii) such Common Stock,
if acquired directly from the Company, was owned by the Participant
at least six months prior to such delivery and (iii) such
Common Stock is not subject to any repurchase, forfeiture,
unfulfilled vesting or other similar requirements;
(4) to the extent permitted by
applicable law and by the Board and provided for in the option
agreement, by (i) delivery of a promissory note of the
Participant to the Company on terms determined by the Board, or
(ii) payment of such other lawful consideration as the Board
may determine; or
(5) by any combination of the above
permitted forms of payment.
(g) Limitation on Repricing.
Unless such action is approved by the Company’s stockholders:
(1) no outstanding Option granted under the Plan may be
amended to provide an exercise price per share that is lower than
the then-current exercise price per share of such outstanding
Option (other than adjustments pursuant to Section 9) and
(2) the Board may not cancel any outstanding Option (whether
or not granted under the Plan) and grant in substitution
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therefor new Awards under the Plan covering the
same or a different number of shares of Common Stock and having an
exercise price per share lower than the then-current exercise price
per share of the cancelled Option.
6. Stock Appreciation Rights
.
(a) General . A Stock
Appreciation Right, or SAR, is an Award entitling the holder, upon
exercise, to receive an amount in cash or Common Stock or a
combination thereof (such form to be determined by the Board)
determined in whole or in part by reference to appreciation, from
and after the date of grant, in the fair market value of a share of
Common Stock. SARs may be based solely on appreciation in the fair
market value of Common Stock or on a comparison of such
appreciation with some other measure of market growth such as (but
not limited to) appreciation in a recognized market index. The date
as of which such appreciation or other measure is determined shall
be the exercise date unless another date is specified by the Board
in the SAR Award.
(b) Grants . SARs may be
granted in tandem with, or independently of, Options granted under
the Plan.
(1) Tandem Awards. When SARs
are expressly granted in tandem with Options, (i) the SAR will
be exercisable only at such time or times, and to the extent, that
the related Option is exercisable (except to the extent designated
by the Board in connection with a Reorganization Event) and will be
exercisable in accordance with the procedure required for exercise
of the related Option; (ii) the SAR will terminate and no
longer be exercisable upon the termination or exercise of the
related Option, except to the extent designated by the Board in
connection with a Reorganization Event and except that a SAR
granted with respect to less than the full number of shares covered
by an Option will not be reduced until the number of shares as to
which the related Option has been exercised or has terminated
exceeds the number of shares not covered by the SAR; (iii) the
Option will terminate and no longer be exercisable upon the
exercise of the related SAR; and (iv) the SAR will be
transferable only with the related Option.
(2) Independent SARs. A SAR
not expressly granted in tandem with an Option will become
exercisable at such time or times, and on such conditions, as the
Board may specify in the SAR Award.
(c) Exercise Price . The
Board shall establish the exercise price of each SAR and specify it
in the applicable SAR agreement. The exercise price shall not be
less than 100% of the Fair Market Value on the date the SAR is
granted; provided that if the Board approves the grant of a SAR
with an exercise price to be determined on a future date, the
exercise price shall be not less than 100% of the Fair Market Value
on such future date.
(d) Duration of SARs . Each
SAR shall be exercisable at such times and subject to such terms
and conditions as the Board may specify in the applicable SAR
agreement; provided , however , that no SAR will be
granted with a term in excess of 10 years.
(e) Exercise of SARs . SARs
may be exercised by delivery to the Company of a written notice of
exercise signed by the proper person or by any other form of notice
(including electronic notice) approved by the Board, together with
any other documents required by the Board.
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(f) Limitation on Repricing .
Unless such action is approved by the Company’s stockholders:
(1) no outstanding SAR granted under the Plan may be amended
to provide a exercise price per share that is lower than the
then-current exercise price per share of such outstanding SAR
(other than adjustments pursuant to Section 9) and
(2) the Board may not cancel any outstanding SAR (whether or
not granted under the Plan) and grant in substitution therefor new
Awards under the Plan covering the same or a different number of
shares of Common Stock and having a exercise price per share lower
than the then-current exercise price per share of the cancelled
SAR.
7. Restricted Stock; Restricted
Stock Units .
(a) General . The Board may
grant Awards entitling recipients to acquire shares of Common
St
