Exhibit 4.3
BROADWIND ENERGY,
INC.
2007 EQUITY INCENTIVE
PLAN
( AS AMENDED THROUGH JUNE 9,
2009)
SECTION 1.
DEFINITIONS
As used herein, the following terms
shall have the meanings indicated below:
(a)
“Administrator” shall mean the Board of Directors of
the Company (herein after referred to as the “Board”),
or one or more Committees appointed by the Board, as the case may
be.
(b)
“Affiliate(s)” shall mean a Parent or Subsidiary of the
Company.
(c)
“Award” shall mean any grant of an Option, Restricted
Stock or Restricted Stock Unit Award, Stock Appreciation Right or
Performance Award.
(d)
“Committee” shall mean a Committee of two or more
directors who shall be appointed by and serve at the pleasure of
the Board. To the extent necessary for compliance with
Rule 16b-3, or any successor provision, each of the members of
the Committee shall be a “non-employee director.”
Solely for purposes of this Section 1(d), “non-employee
director” shall have the same meaning as set forth in
Rule 16b-3, or any successor provision, as then in effect, of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended.
(e)
The “Company” shall mean Broadwind Energy, Inc., a
Delaware corporation.
(f)
“Fair Market Value” as of any date shall mean
(i) if such stock is listed on the Nasdaq Global Market,
Nasdaq Capital Market, or an established stock exchange, the price
of such stock at the close of the regular trading session of such
market or exchange on such date, as reported by The Wall Street
Journal or a comparable reporting service, or, if no sale of
such stock shall have occurred on such date, on the next date on
which there was a sale of stock; (ii) if such stock is not so
listed on the Nasdaq Global Market, Nasdaq Capital Market, or an
established stock exchange, the average of the closing
“bid” and “asked” prices quoted by the OTC
Bulletin Board, the National Quotation Bureau, or any comparable
reporting service on such date or, if there are no quoted
“bid” and “asked” prices on such date, on
the next date for which there are such quotes; or (iii) if
such stock is not publicly traded as of such date, the per share
value as determined by the Board, or the Committee, in its sole
discretion by applying principles of valuation with respect to the
Company’s Common Stock.
(g)
The “Internal Revenue Code” or “Code” is
the Internal Revenue Code of 1986, as amended from time to
time.
(h)
“Option” means an incentive stock option or
nonqualified stock option granted pursuant to the Plan.
(i)
“Parent” shall mean any corporation which owns,
directly or indirectly in an unbroken chain, fifty percent (50%) or
more of the total voting power of the Company’s outstanding
stock.
(j)
The “Participant” means (i) a key employee or
officer of the Company or any Affiliate to whom an incentive stock
option has been granted pursuant to Section 9; (ii) a
consultant or advisor to, or director, key employee or officer, of
the Company or any Affiliate to whom a nonqualified stock option
has been granted pursuant to Section 10; (iii) a
consultant or advisor to, or director, key employee or
officer, of the Company or any Affiliate to whom
a Restricted Stock or Restricted Stock Unit Award has been granted
pursuant to Section 11; (iv) a consultant or advisor to,
or director, key employee or officer, of the Company or any
Affiliate to whom a Performance Award has been granted pursuant to
Section 12; or (v) a consultant or advisor to, or
director, key employee or officer, of the Company or any Affiliate
to whom a Stock Appreciation Right has been granted pursuant to
Section 13.
(k)
“Performance Award” shall mean any Performance Shares
or Performance Units granted pursuant to Section 12
hereof.
(l)
“Performance Objective(s)” shall mean one or more
performance objectives established by the Administrator, in its
sole discretion, for Awards granted under this Plan.
Performance Objectives may include, but shall not be limited to,
any one, or a combination of, (i) revenue, (ii) net
income, (iii) earnings per share, (iv) return on equity,
(v) return on assets, (vi) increase in revenue,
(vii) increase in share price or earnings, (viii) return
on investment, or (ix) increase in market share, in all cases
including, if selected by the Administrator, threshold, target and
maximum levels.
(m)
“Performance Period” shall mean the period, established
at the time any Performance Award is granted or at any time
thereafter, during which any Performance Objectives specified by
the Administrator with respect to such Performance Award are to be
measured.
(n)
“Performance Share” shall mean any grant pursuant to
Section 12 hereof of an Award, which value, if any, shall be
paid to a Participant by delivery of shares of Common Stock of the
Company upon achievement of such Performance Objectives during the
Performance Period as the Administrator shall establish at the time
of such grant or thereafter.
(o)
“Performance Unit” shall mean any grant pursuant to
Section 12 hereof of an Award, which value, if any, shall be
paid to a Participant by delivery of cash upon achievement of such
Performance Objectives during the Performance Period as the
Administrator shall establish at the time of such grant or
thereafter.
(p)
The “Plan” means the Broadwind Energy, Inc. 2007
Equity Incentive Plan, as amended hereafter from time to time,
including the form of Agreements as they may be modified by the
Administrator from time to time.
(q)
“Restricted Stock Award” shall mean any grant of
restricted shares of Stock of the Company pursuant to
Section 11 hereof.
(r)
“Restricted Stock Unit Award” shall mean any grant of
restricted stock units pursuant to Section 11
hereof.
(s)
“Stock,” “Option Stock” or “Common
Stock” shall mean the common stock, $0.001 par value of the
Company reserved for Options and Awards pursuant to this
Plan.
(t)
“Stock Appreciation Right” shall mean a grant pursuant
to Section 13 hereof.
(u)
A “Subsidiary” shall mean any corporation of which
fifty percent (50%) or more of the total voting power of the
Company’s outstanding Stock is owned, directly or indirectly
in an unbroken chain, by the Company.
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SECTION 2.
PURPOSE
The purpose of the Plan is to
promote the success of the Company and its Affiliates by
facilitating the employment and retention of competent personnel
and by furnishing incentive to officers, directors, employees,
consultants, and advisors upon whose efforts the success of the
Company and its Affiliates will depend to a large
degree.
It is the intention of the Company
to carry out the Plan through the granting of Options which will
qualify as “incentive stock options” under the
provisions of Section 422 of the Internal Revenue Code, or any
successor provision, pursuant to Section 9 of this Plan;
through the granting of “nonqualified stock options”
pursuant to Section 10 of this Plan; through the granting of
Restricted Stock or Restricted Stock Unit Awards pursuant to
Section 11 of this Plan; through the granting of Performance
Awards pursuant to Section 12 of this Plan; and through the
granting of Stock Appreciation Rights pursuant to Section 13
of this Plan. Adoption of this Plan shall be and is expressly
subject to the condition of approval by the stockholders of the
Company within twelve (12) months before or after the adoption of
the Plan by the Board. Any incentive stock options granted
after adoption of the Plan by the Board shall be treated as
nonqualified stock options if stockholder approval is not obtained
within such twelve-month period.
SECTION 3.
EFFECTIVE DATE OF
PLAN
The Plan shall be effective as of
the date of adoption by the Board, subject to approval by the
stockholders of the Company as required in
Section 2.
SECTION 4.
ADMINISTRATION
The Plan shall be administered by
the Board or by a Committee which may be appointed by the Board
from time to time to administer the Plan (hereinafter collectively
referred to as the “Administrator”). Except as
otherwise provided herein, the Administrator shall have all of the
powers vested in it under the provisions of the Plan, including but
not limited to exclusive authority to determine, in its sole
discretion, whether an Award shall be granted; the individuals to
whom, and the time or times at which, Awards shall be granted; the
number of shares subject to each Award; the option price, if any;
and the performance criteria, if any, and any other terms and
conditions of each Award. The Administrator shall have full
power and authority to administer and interpret the Plan, to make
and amend rules, regulations and guidelines for administering the
Plan, to prescribe the form and conditions of the respective
agreements evidencing each Award (which may vary from Participant
to Participant), and to make all other determinations necessary or
advisable for the administration of the Plan. The
Administrator’s interpretation of the Plan, and all actions
taken and determinations made by the Administrator pursuant to the
power vested in it hereunder, shall be conclusive and binding on
all parties concerned.
No member of the Board or the
Committee shall be liable for any action taken or determination
made in good faith in connection with the administration of the
Plan. In the event the Board appoints a Committee as provided
hereunder, any action of the Committee with respect to the
administration of the Plan shall be taken pursuant to a majority
vote of the Committee members or pursuant to the written resolution
of all Committee members.
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SECTION 5.
PARTICIPANTS
The Administrator shall from time to
time, at its discretion and without approval of the stockholders,
designate those employees, officers, directors, consultants, and
advisors of the Company or of any Affiliate to whom Awards shall be
granted under this Plan; provided, however, that consultants or
advisors shall not be eligible to receive Awards hereunder unless
such consultant or advisor renders bona fide services to the
Company or any Affiliate and such services are not in connection
with the offer or sale of securities in a capital raising
transaction and do not directly or indirectly promote or maintain a
market for the Company’s securities. The Administrator
may grant additional Awards under this Plan to some or all
Participants then holding Awards, or may grant Awards solely or
partially to new Participants. In designating Participants, the
Administrator shall also determine the number of shares to be
optioned or awarded to each such Participant and the performance
criteria applicable to each Performance Award. The Administrator
may from time to time designate individuals as being ineligible to
participate in the Plan.
SECTION 6.
STOCK
The Stock to be issued under this
Plan shall consist of authorized but unissued shares of Common
Stock. Five million five hundred thousand (5,500,000) shares
of Common Stock shall be reserved and available for Awards under
the Plan; provided, however, that the total number of shares
reserved for Awards under this Plan shall be subject to adjustment
as provided in Section 14 of the Plan; and provided, further,
that all shares reserved and available under the Plan shall
constitute the maximum aggregate number of shares of Stock that may
be issued through incentive stock options. The following
shares of Stock shall continue to be reserved and available for
Awards granted pursuant to the Plan: (i) any outstanding Award
that expires for any reason, (ii) any portion of an
outstanding Option or Stock Appreciation Right that is terminated
prior to exercise, (iii) any portion of an Award that is
terminated prior to the lapsing of the risks of forfeiture on such
Award, (iv) shares of Common Stock used to pay the exercise
price under any Award, (v) shares of Common Stock used to
satisfy any tax withholding obligation attributable to any Award,
whether such shares are withheld by the Company or tendered by the
Participant, and (vi) shares of Stock covered by an Award to
the extent the Award is settled in cash.
SECTION 7.
DURATION OF
PLAN
Incentive stock options may be
granted pursuant to the Plan from time to time during a period of
ten (10) years from the effective date as defined in
Section 3. Other Awards may be granted pursuant to the
Plan from time to time after the effective date of the Plan and
until the Plan is discontinued or terminated by the
Administrator.
SECTION 8.
PAYMENT
Participants may pay for shares upon
exercise of Options granted pursuant to this Plan with cash,
personal check, certified check or, if approved by the
Administrator in its sole discretion, previously-owned shares of
the Company’s Common Stock, or any combination thereof.
Any stock so tendered as part of such payment shall be valued at
such stock’s then Fair Market Value, or such other form of
payment as may be authorized by the Administrator. The
Administrator may, in its sole discretion, limit the forms of
payment available to the Participant and may exercise such
discretion any time prior to the termination of the Option granted
to the Participant or upon any exercise of the Option by the
Participant. “Previously-owned shares” means
shares of the Company’s Common Stock which the Participant
has owned for at least six (6) months prior to the exercise of
the Option, or for such other period of time as may be required by
generally accepted accounting principles.
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With respect to payment in the form
of Common Stock of the Company, the Administrator may require
advance approval or adopt such rules as it deems necessary to
assure compliance with Rule 16b-3, or any successor provision,
as then in effect, of the General Rules and Regulations under
the Securities Exchange Act of 1934, if applicable.
SECTION 9.
TERMS AND CONDITIONS OF
INCENTIVE STOCK OPTIONS
Each incentive stock option granted
pursuant to this Section 9 shall be evidenced by a written
incentive stock option agreement (the “Option
Agreement”). The Option Agreement shall be in such form
as may be approved from time to time by the Administrator and may
vary from Participant to Participant; provided, however, that each
Participant and each Option Agreement shall comply with and be
subject to the following terms and conditions:
(a)
Number of Shares and Option Price . The Option
Agreement shall state the total number of shares covered by the
incentive stock option. Except as permitted by Code
Section 424(a), or any successor provision, the option price
per share shall not be less than one hundred percent (100%) of the
per share Fair Market Value of the Common Stock on the date the
Administrator grants the Option; provided, however, that if a
Participant owns stock possessing more than ten percent (10%) of
the total combined voting power of all classes of stock of the
Company or of its Parent or any Subsidiary, the option price per
share of an incentive stock option granted to such Participant
shall not be less than one hundred ten percent (110%) of the per
share Fair Market Value of the Company’s Common Stock on the
date of the grant of the Option. The Administrator shall have
full authority and discretion in establishing the option price and
shall be fully protected in so doing.
(b)
Term and Exercisability of Incentive Stock Option .
The term during which any incentive stock option granted under the
Plan may be exercised shall be established in each case by the
Administrator. Except as permitted by Code
Section 424(a), in no event shall any incentive stock option
be exercisable during a term of more than ten (10) years after
the date on which it is granted; provided, however, that if a
Participant owns stock possessing more than ten percent (10%) of
the total combined voting power of all classes of stock of the
Company or of its Parent or any Subsidiary, the incentive stock
option granted to such Participant shall be exercisable during a
term of not more than five (5) years after the date on which
it is granted.
The Option Agreement shall state
when the incentive stock option becomes exercisable and shall also
state the maximum term during which the Option may be
exercised. In the event an incentive stock option is
exercisable immediately, the manner of exercise of the Option in
the event it is not exercised in full immediately shall be
specified in the Option Agreement. The Administrator may
accelerate the exercisability of any incentive stock option granted
hereunder which is not immediately exercisable as of the date of
grant.
(c)
Nontransferability . No incentive stock option shall
be transferable, in whole or in part, by the Participant other than
by will or by the laws of descent and distribution. During
the Participant’s lifetime, the incentive stock option may be
exercised only by the Participant. If the Participant shall
attempt any transfer of any incentive stock option granted under
the Plan during the Participant’s lifetime, such transfer
shall be void and the incentive stock option, to the extent not
fully exercised, shall terminate.
(d)
No Rights as Stockholder . A Participant (or the
Participant’s successor or successors) shall have no rights
as a stockholder with respect to any shares covered by an incentive
stock option until the date the Participant is recorded on the
stock transfer books of the Company as the owner of the
Stock.
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No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other
property), distributions or other rights for which the record date
is prior to the date such transfer is actually recorded (except as
otherwise provided in Section 14 of the Plan).
(e)
Withholding . The Company or its Affiliate shall be
entitled to withhold and deduct from future wages of the
Participant all legally required amounts necessary to satisfy any
and all withholding and employment-related taxes attributable to
the Participant’s exercise of an incentive stock option or a
“disqualifying disposition” of shares acquired through
the exercise of an incentive stock option as defined in Code
Section 421(b). In the event the Participant is required
under the Option Agreement to pay the Company, or make arrangements
satisfactory to the Company respecting payment of, such withholding
and employment-related taxes, the Administrator may, in its
discretion and pursuant to such rules as it may adopt, require
the Participant to satisfy such obligation, in whole or in part, by
delivering shares of the Company’s Common Stock or by
electing to have the Company withhold Common Stock otherwise
issuable to the Participant as a result of the exercise of the
incentive stock option. Such shares shall have a Fair Market
Value equal to the minimum required tax withholding, based on the
minimum statutory withholding rates for federal and state tax
purposes, including payroll taxes, that are applicable to the
supplemental income resulting from such exercise. In no event
may the Company or any Affiliate withhold shares having a Fair
Market Value in excess of such statutory minimum required tax
withholding. The Participant’s election to deliver
shares or to have shares withheld for this purpose shall be made on
or before the date the incentive stock option is exercised or, if
later, the date that the amount of tax to be withheld is determined
under applicable tax law. Such election shall be approved by
the Administrator and otherwise comply with such rules as the
Administrator may adopt to assure compliance with Rule 16b-3,
or any successor provision, as then in effect, of the General
Rules and Regulations under the Securities Exchange Act of
1934, if applicable.
(f)
Other Provisions . The Option Agreement authorized
under this Section 9 shall contain such other provisions as
the Administrator shall deem advisable. Any such Option
Agreement shall contain such limitations and restrictions upon the
exercise of the Option as shall be necessary to ensure that such
Option will be considered an “incentive stock option”
as defined in Section 422 of the Internal Revenue Code or to
conform to any change therein.
SECTION 10.
TERMS AND CONDITIONS OF
NONQUALIFIED STOCK OPTIONS
Each nonqualified stock option
granted pursuant to this Section 10 shall be evidenced by a
written nonqualified stock option agreement (the “Option
Agreement”). The Option Agreement shall be in such form
as may be approved from time to time by the Administrator and may
vary fro
