Exhibit 10.2
ADVANCED ENERGY INDUSTRIES, INC.
AMENDED AND RESTATED 2003 NON-EMPLOYEE DIRECTORS’
STOCK OPTION PLAN
Adopted February 12, 2003
AMENDED AND RESTATED FEBRUARY 15, 2006
AMENDED AND RESTATED FEBRUARY 21, 2007
1. PURPOSE. The purpose
of the Plan is to attract and retain the services of experienced
and knowledgeable non-employee directors of Advanced Energy
Industries, Inc., and to provide an incentive for such directors to
increase their proprietary interests in the Company’s
long-term success and progress.
2. DEFINITIONS. Whenever
the following terms are used in the Plan, they shall have the
meaning indicated below, unless a different meaning is required by
the context.
(a) “Administrator”
means the administrative committee described in
Section 3.
(b) “Board” means
the board of directors of the Company.
(c) “Company” means
Advanced Energy Industries, Inc., a Delaware corporation.
(d) “Non-Employee
Director” means any member of the Board who is a
“non-employee director” within the meaning of
Rule 16b-3(b)(3)(i) under Section 16 of the Securities
Exchange Act of 1934 (“1934 Act”).
(e) “Plan” means
this Advanced Energy Industries, Inc. Amended and Restated 2003
Non-Employee Directors’ Stock Option Plan.
(f) “Share” means
one share of common stock of the Company.
3. ADMINISTRATION. The
Plan shall be administered by a committee selected by the Board
consisting of at least 2 individuals each of whom is either
(i) a member of the Board and not a Non-Employee Director or
(ii) a senior officer of the Company who is not a member of
the Board. Subject to the provisions of the Plan, the Administrator
shall have the authority to determine all other matters relating to
administration and operation of the Plan. All questions of
interpretation, implementation, and application of the Plan shall
be determined by the Administrator in its sole discretion. Such
determinations shall be final and binding on all persons.
4. SHARES SUBJECT TO THE
PLAN. The maximum number of Shares that may be issued pursuant
to awards granted under the Plan is seven hundred fifty thousand
(750,000), subject to adjustment as provided in Section 6(b) and
subject to limited re-issuance as indicated below. If an award
expires, is surrendered, or in the case of options becomes
unexercisable without having been exercised in full, the unissued
or retained Shares shall become available for future grant under
the Plan. Other Shares that actually have been issued under the
Plan pursuant to an award shall not be returned to the Plan and
shall not become available for future grant under the Plan.
5. ELIGIBILITY. A
Non-Employee Director may receive awards under this Plan on the
terms and conditions set forth in Sections 6 and 7. No other
person may benefit under this Plan.
6. GENERAL TERMS AND
CONDITIONS.
(a) Automatic
Grants . On and after the date of the annual meeting
of the Company’s stockholders to be held in 2007, and subject
to adjustment under Section 6(b), a Non-Employee Director will
automatically receive fifteen thousand (15,000) Restricted Stock
Units on the date first elected or appointed as a member of the
Board and (ii) six thousand (6,000) Restricted Stock Units on
any date re-elected (or first elected after an appointment) as a
member of the Board by the Company’s stockholders. In
addition, any incumbent Non-Employee Director who is re-elected at
the 2007 annual meeting of stockholders will receive ten thousand
(10,000) Restricted Stock Units upon such re-election. Any such
grant will be subject to the terms and conditions set forth in this
Plan, and will be evidenced by written notice in such form as the
Administrator shall determine. Pursuant to Section 7, the form
of award granted may be changed from time to time by resolution of
the Board of Directors.
(b) Changes in
Capitalization or Corporate Transaction . In the
event of any merger, consolidation, reorganization,
recapitalization, stock dividend, stock split, reverse stock split,
separation, liquidation or other change in the corporate structure
or capitalization affecting the Shares, appropriate adjustment
shall be made by the Administrator in the kind, price, and number
of shares of stock (including, but not limited to, the maximum
number of Shares reserved under the Plan) that are or may become
subject to the Plan. If in connection with the change the Company
ceases to exist, the surviving or successor entity must either
assume the Company’s rights and obligations with respect to
outstanding awards or substitute for outstanding awards
substantially equivalent awards for equity interests in the entity.
If there is no surviving or successor entity, a Non-Employee
Director’s outstanding option shall become fully vested and
exercisable as of the date seven (7) calendar days before the
change. Restricted Stock
and
Restricted Stock Units shall vest upon consummation of the change.
The exercise of any option that was permissible solely by reason of
the change shall be conditioned upon consummation of the change.
Options that are neither assumed, substituted nor exercised as of
the time of the change shall terminate and cease to be
outstanding.
(c) Amendment
. The Administrator shall have the power to modify, extend,
or renew an outstanding award granted under this Plan, in a manner
consistent with the terms of the Plan, provided that any such
action may not significantly impair the award holder’s rights
without his or her consent. However, the Company will not reduce
the exercise price of any outstanding option or cancel outstanding
options and grant replacement options with a lower exercise price
without the prior approval of the shareholders.
7. AWARDS.
(a) Awards may take the form of
Restricted Stock Units, Restricted Stock and/or Stock Options. The
form of award granted under the Plan may be changed from time to
time by resolution of the Board of Directors. Restricted Stock
Units will be granted upon approval of this amended and restated
Plan.
(b) Restricted Stock Units
i) Vesting .
Restricted Stock Units shall vest over a period of time to be
established by the Administrator at the time of grant. Each award
of Restricted Stock Units may be subject to a different vesting
schedule. At the time of the grant, the Administrator may, in its
sole discretion, prescribe restrictions in addition to or other
than the expiration of the vesting period, including the
satisfaction of corporate or individual performance objectives,
which may be applicable to all or any portion of the Restricted
Stock Units.
ii) Payment for Shares
. At the time Shares are issued to the Non-Employee Director
pursuant to Restricted Stock Units, the Non-Employee Director shall
be required, to the extent required by applicable law, to purchase
such Shares from the Company at a purchase price equal to the
aggregate par value of the Shares represented by such Restricted
Stock. The purchase price, if any, shall be payable in cash or, in
the discretion of the Administrator, in consideration for past
Services rendered to the Company or for such other form of
consideration determined by the Administrator.
iii) Withholding Taxes
. The Company shall have the right to deduct from the Shares
issuable pursuant to Restricted Stock Units, or to accept from the
Non-Employee Director the tender of, a number of whole Shares
having a fair market value, as determined by the Administrator,
equal to all or any part of the federal, state, local and foreign
taxes, if any, required by law to be withheld by the Company with
respect to the Restricted Stock Units or the Shares acquired
pursuant thereto. Alternatively or in addition, in its sole
discretion, the Company shall have the right to require
Non-Employee Director, through payroll withholding, cash payment or
otherwise, to make adequate provision for any such tax withholding
obligations of the Company arising in connection with the
Restricted Stock Units or the Shares acquired pursuant
thereto.
iv) Termination of
Service . Unless otherwise provided in an Award
Agreement or in writing after the Award Agreement is issued, upon
the termination of the Non-Employee Director’s Service, any
Restricted Stock Units held by such Non-Employee Director that have
not vested, or with respect to which all applicable restrictions
and conditions have not lapsed, shall immediately be deemed
forfeited. Upon forfeiture of Restricted Stock Units, the grantee
shall have no further rights with respect to such award.
v) Transferability
. Restricted Stock Units granted under the Plan are not
transferable by the Non-Employee Director; provided, however, that
a restricted stock unit may be transferred upon the approval of the
Administrator (in its sole discretion) by appropriate instrument
pursuant to a domestic relations order described in
Rule 16a-12 of the 1934 Act or to an inter vivos or
testamentary trust in which the option is to be passed to the
Non-Employee Director’s beneficiaries upon the Non-Employee
Director’s death or by gift to his or her immediate family
(consisting of the Non-Employee Director’s child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, sibling,
mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, including adoptive
relationships). Any other purported transfer shall be null and
void.
vi) Rights of a Holder
. A Non-Employee Director shall have no rights as a
shareholder with respect to the Shares covered by his or her
Restricted Stock Units until the date of the issuance to him or her
of a share certificate for the Shares, and no adjustment will be
made for dividends or other rights for which the record date is
prior to the date the certificate is issued. A holder of Restricted
Stock Units shall have no rights other than those of a general
creditor of the Company. Restricted Stock Units shall represent an
unfunded and unsecured obligation of the Company, subject to the
terms and conditions of the applicable award agreement.
(c) Restricted Stock
i) Vesting . An award under
this section may condition the vesting of Shares on the performance
of future services by the eligible person, and may alternatively or
additionally condition the vesting of Shares on such other
performance-related conditions that the Administrator shall impose
in its sole discretion.
