Exhibit 4.1
ASCENT SOLAR
TECHNOLOGIES, INC.
SECOND AMENDED AND RESTATED
2005 STOCK OPTION PLAN
(Approved by Board of Directors on May 2, 2008;
Adopted by Stockholders on July 1, 2008)
1.
Purposes of the Plan.
The purposes of this 2005 Stock Option Plan
are:
·
to attract and retain the best
available personnel;
·
to provide additional incentive to
Employees, Directors and Consultants; and
·
to promote the success of the
Company’s business.
Options
granted under the Plan may be Incentive Stock Options or
Nonstatutory Stock Options, as determined by the Administrator at
the time of grant.
2.
Definitions.
As used herein, the following definitions
shall apply:
(a) “
Administrator “ means the Board or any of its
Committees as shall be administering the Plan, in accordance with
Section 4 of the Plan.
(b) “
Applicable Laws “ means the requirements relating to
the administration of stock option plans under U. S. state
corporate laws, U.S. federal and state securities laws, the Code,
any stock exchange or quotation system on which the Common Stock is
listed or quoted and the applicable laws of any foreign country or
jurisdiction where Options are, or will be, granted under the
Plan.
(c) “
Board “ means the Board of Directors of the
Company.
(d) “
Code “ means the Internal Revenue Code of 1986, as
amended.
(e) “
Committee “ means a committee of Directors appointed
by the Board in accordance with Section 4 of the
Plan.
(f) “
Common Stock “ means the common stock of the
Company.
(g) “
Company “ means Ascent Solar Technologies, Inc.,
a Delaware corporation.
(h) “
Consultant “ means any person, including an advisor,
engaged by the Company or a Parent or Subsidiary to render services
to such entity.
(i) “
Director “ means a member of the Board.
(j) “
Disability “ means total and permanent disability as
defined in Section 22(e)(3) of the Code.
(k) “
Employee “ means any person, including Officers and
Directors, employed by the Company or any Parent or Subsidiary of
the Company. A Service Provider shall not cease to be an Employee
in the case of (i) any leave of absence approved by the
Company or (ii) transfers between locations of the Company or
between the Company, its Parent, any Subsidiary, or any successor.
For purposes of Incentive Stock Options, no such leave may exceed
one hundred eighty (180) days, unless reemployment upon
expiration of such leave is guaranteed by statute or contract. If
reemployment upon expiration of a leave of absence approved by the
Company is not so guaranteed, on the one hundred eighty-first
(181 st ) day of such leave any Incentive Stock
Option held by the Optionee shall cease to be treated as an
Incentive Stock Option and shall be treated for tax purposes as a
Nonstatutory Stock Option. Neither service as a Director nor
payment of a director’s fee by the Company shall be
sufficient to constitute “employment” by the
Company.
(l) “
Exchange Act “ means the Securities Exchange Act of
1934, as amended.
(m) “
Fair Market Value “ means, as of any date, the value
of Common Stock determined as follows:
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(i) If
the Common Stock is listed on any established stock exchange or a
national market system, including without limitation the Nasdaq
Global Market or The Nasdaq Capital Market, its Fair Market Value
shall be the closing sales price for such stock (or the closing
bid, if no sales were reported) as quoted on such exchange or
system for the day of determination, as reported in The Wall
Street Journal or such other source as the Administrator deems
reliable;
(ii) If
the Common Stock is regularly quoted by a recognized securities
dealer but selling prices are not reported, the Fair Market Value
of a Share of Common Stock shall be the mean between the high bid
and low asked prices for the Common Stock on the day of
determination, as reported in The Wall Street Journal or
such other source as the Administrator deems reliable;
or
(iii) In
the absence of an established market for the Common Stock, the Fair
Market Value shall be determined in good faith by the
Administrator.
(n) “
Incentive Stock Option “ means an Option intended to
qualify as an incentive stock option within the meaning of
Section 422 of the Code and the regulations promulgated
thereunder.
(o) “
Nonstatutory Stock Option “ means an Option not
intended to qualify as an Incentive Stock Option.
(p) “
Notice of Grant “ means a written or electronic notice
evidencing certain terms and conditions of an individual Option
grant. The Notice of Grant is part of the Option
Agreement.
(q) “
Officer “ means a person who is an officer of the
Company within the meaning of Section 16 of the Exchange Act
and the rules and regulations promulgated
thereunder.
(r) “
Option “ means a stock option granted pursuant to the
Plan.
(s) “
Option Agreement “ means an agreement between the
Company and an Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is subject to the
terms and conditions of the Plan.
(t) “
Option Exchange Program “ means a program whereby
outstanding Options are surrendered in exchange for Options with a
lower exercise price.
(u) “
Optioned Stock “ means the Common Stock subject to an
Option.
(v) “
Optionee “ means the holder of an outstanding Option
granted under the Plan.
(w) “
Parent “ means a “parent corporation,”
whether now or hereafter existing, as defined in
Section 424(e) of the Code.
(x) “
Plan “ means this 2005 Stock Option Plan, as
amended.
(y) “
Rule 16b-3 “ means Rule 16b-3 of the
Exchange Act or any successor to Rule 16b-3, as in effect when
discretion is being exercised with respect to the Plan.
(z) “
Section 16(b) “ means
Section 16(b) of the Exchange Act.
(aa) “
Service Provider “ means an Employee, Director or
Consultant.
(bb) “
Share “ means a share of the Common Stock, as adjusted
in accordance with Section 12 of the Plan.
(cc) “
Subsidiary “ means a “subsidiary
corporation”, whether now or hereafter existing, as defined
in Section 424(f) of the Code.
3. Stock
Subject to the Plan. Subject to the
provisions of Section 12 of the Plan, the maximum aggregate
number of Shares which may be optioned and sold under the Plan is
one million five hundred thousand (1,500,000) Shares. The Shares
may be authorized, but unissued, or reacquired Common
Stock.
If
an Option expires or becomes unexercisable without having been
exercised in full, or is surrendered pursuant to an Option Exchange
Program, the unpurchased Shares which were subject thereto shall
become available for future grant or sale under the Plan (unless
the Plan has terminated); provided , however , that
Shares that have actually been issued under the Plan shall not be
returned to the Plan and shall not become available for future
distribution under the Plan.
4.
Administration of the
Plan.
(a)
Procedure.
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(i)
Multiple Administrative Bodies. The
Plan may be administered by different Committees with respect to
different groups of Service Providers.
(ii)
Section 162(m). To the extent
that the Administrator determines it to be desirable to qualify
Options granted hereunder as “performance-based
compensation” within the meaning of
Section 162(m) of the Code, the Plan shall be
administered by a Committee of two or more “outside
directors” within the meaning of Section 162(m) of
the Code.
(iii)
Rule 16b-3. To the extent
desirable to qualify transactions hereunder as exempt under
Rule 16b-3, the transactions contemplated hereunder shall be
structured to satisfy the requirements for exemption under
Rule 16b-3.
(iv)
Other Administration. Other than as
provided above, the Plan shall be administered by (A) the
Board or (B) a Committee, which committee shall be constituted
to satisfy Applicable Laws.
(b)
Powers of the Administrator.
Subject to the provisions of the Plan, and
in the case of a Committee, subject to the specific duties
delegated by the Board to such Committee, the Administrator shall
have the authority, in its discretion:
(i) to
determine the Fair Market Value;
(ii) to
select the Service Providers to whom Options may be granted
hereunder;
(iii) to
determine the number of shares of Common Stock to be covered by
each Option granted hereunder;
(iv) to
approve forms of agreement for use under the Plan;
(v) to
determine the terms and conditions, not inconsistent with the terms
of the Plan, of any Option granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the
time or times when Options may be exercised (which may be based on
performance criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation
regarding any Option or the shares of Common Stock relating
thereto, based in each case on such factors as the Administrator,
in its sole discretion, shall determine;
(vi) to
institute an Option Exchange Program;
(vii) to
construe and interpret the terms of the Plan and awards granted
pursuant to the Plan;
(viii) to
prescribe, amend and rescind rules and regulations relating to
the Plan, including rules and regulations relating to
sub-plans established for the purpose of qualifying for preferred
tax treatment under foreign tax laws;
(ix) to
modify or amend each Option (subject to Section 14(c) of
the Plan), including the discretionary authority to extend the
post-termination exercisability period of Options longer than is
otherwise provided for in the Plan;
(x) to
authorize any person to execute on behalf of the Company any
instrument required to effect the grant of an Option previously
granted by the Administrator; and
(xi) to
make all other determinations deemed necessary or advisable for
administering the Plan.
(c)
Effect of Administrator’s
Decision. The Administrator’s
decisions, determinations and interpretations shall be final and
binding on all Optionees and any other holders of
Options.
5.
Eligibility.
Nonstatutory Stock Options may be granted
to Service Providers. Incentive Stock Options may be granted only
to Employees.
6.
Limitations.
(a) Each
Option shall be designated in the Option Agreement as either an
Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate
Fair Market Value of the Shares with respect to which Incentive
Stock Options are exercisable for the first time by the Optionee
during any calendar year (under all plans of the Company and any
Parent or Subsidiary) exceeds $100,000, such Options shall be
treated as Nonstatutory Stock Options. For purposes of this
Section 6(a), Incentive Stock Options shall be taken into
account in the order in which they were granted. The Fair Market
Value of the Shares shall be determined as of the time the Option
with respect to such Shares is granted.
(b) Neither
the Plan nor any Option shall confer upon an Optionee any right
with respect to continuing the Optionee’s relationship as a
Service Provider with the Company, nor shall they interfere in any
way with the Optionee’s right or the Company’s right to
terminate such relationship at any time, with or without
cause.
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(c) No
Employee shall be granted, in any one fiscal year of the Company,
Options to purchase more than one hundred thousand (100,000)
Shares.
7. Term
of Plan. Subject to Section 18 of
the Plan, the Plan shall become effective upon its adoption by the
Board. It shall continue in effect for a term of ten
(10) years unless terminated earlier under Section 14 of
the Plan.
8. Term
of Option. The term of each Option
shall be stated in the Option Agreement; provided, however, that
the term shall be no more than ten (10) years from the date of
grant thereof. In the case of an Incentive Stock Option, the term
shall be ten (10) years from the date of grant or such shorter
term as may be provided in the Option Agreement. Moreover, in the
case of an Incentive Stock Option granted to an Optionee who, at
the time the Incentive Stock Option is granted, owns stock
representing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or any Parent
or Subsidiary, the term of the Incentive Stock Option shall be five
(5) years from the date of grant or such shorter term as may
be provided in the Option Agreement.
9. Option
Exercise Price and Consideration.
(a)
Exercise Price.
The per share exercise price for the Shares
to be issued pursuant to exercise of an Option shall be determined
by the Administrator, subject to the following:
(i) In
the case of an Incentive Stock Option
(A) granted
to an Employee who, at the time the Incentive Stock Option is
granted, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent
or Subsidiary, the per Share exercise price shall be no less than
110% of the Fair Market Value per Share on the date of
grant.
(B) granted
to any Employee other than an Employee described in
paragraph (A) immediately above, the per Share exercise
price shall be no less than 100% of the Fair Market Value per Share
on the date of grant.
(ii) In
the case of a Nonstatutory Stock Option
(A) granted
to a Service Provider who, at the time the Nonstatutory Stock
Option is granted, owns stock representing more than ten percent
(10%) of the voting power of all classes of stock of the Company or
any Parent or Subsidiary, the per Share exercise price shall be no
less than one hundred ten percent (110%) of the Fair Market Value
per Share on the date of grant.
(B) granted
to a Service Provider other than a Service Provider described in
paragraph (A) immediately above, or intended to qualify
as “performance-based compensation” within the meaning
of Section 162(m) of the Code, the per Share exercise
price shall be no less than 100% of the Fair Market Value per Share
on the date of grant.
(iii) Notwithstanding
the foregoing, Options may be granted with a per Share exercise
price of less than one hundred percent (100%) of the Fair Market
Value per Share on the date of grant pursuant to a merger or other
corporate transaction.
(b)
Waiting Period and Exercise Dates.
At the time an Option is granted, the
Administrator shall fix the period within which the Option may be
exercised and shall determine any conditions which must be
satisfied before the Option may be exercised.
(c)
Form of Consideration.
The Administrator shall determine the
acceptable form of consideration for exercising an Option,
including the method of payment. In the case of an Incentive Stock
Option, the Administrator shall determine the acceptable form of
consideration at the time of grant. Such consideration may consist
entirely of:
(i) cash;
(ii) check;
(iii) other
Shares which (A) in the case of Shares acquired upon exercise
of an option, have been owned by the Optionee for more than six
months on the date of surrender, and (B) have a Fair Market
Value on the date of surrender equal to the aggregate exercise
price of the Shares as to which said Option shall be
exercised;
(iv) consideration
received by the Company under a cashless exercise program, if
implemented by the Company in connection with the Plan;
(v) a
reduction in the amount of any Company liability to the Optionee,
including any liability attributable to the Optionee’s
participation in any Company-sponsored deferred compensation
program or arrangement;
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(vi) any
combination of the foregoing methods of payment; or
(vii) such
other consideration and method of payment for the issuance of
Shares to the extent permitted by Applicable Laws.
10.
Exercise of Option.
(a)
Procedure for Exercise; Rights as a
Stockholder. Any Option granted
hereunder shall be exercisable according to the terms of the Plan
and at such times and under such conditions as determined by the
Administrator and set forth in the Option Agreement. Unless
otherwise stated in the Option Agreement, Options shall become
exercisable at a rate one-third (1/3) per year over three
(3) years from the date the Options are granted, with
one-third (1/3) of the Shares under the Option vesting on each of
the first, second and third anniversaries of the date of grant.
Unless the Administrator provides otherwise, vesting of Options
granted hereunder shall be suspended during any unpaid leave of
absence. An Option may not be exercised for a fraction of a
Share.
An
Option shall be deemed exercised when the Company receives:
(i) written or electronic notice of exercise (in accordance
with the Option Agreement) from the person entitled to exercise the
Option, and (ii) full payment for the Shares with respect to
which the Option is exercised. Full payment may consist of any
consideration and method of payment authorized by the Administrator
and permitted by the Option Agreement and the Plan. Shares issued
upon exercise of an Option shall be issued in the name of the
Optionee or, if requested by the Optionee, in the name of the
Optionee and his or her spouse. Until the Shares are issued (as
evidenced by the appropriate entry on the books of the Company or
of a duly authorized transfer agent of the Company), no right to
vote or receive dividends or any other rights as a stockholder
shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. The Company shall issue (or cause to be
issued) such Shares promptly after the Option is exercised. No
adjustment will be made for a dividend or other right for which the
record date is prior to the date the Shares are issued, except as
provided in Section 12 of the Plan.
Exercising
an Option in any manner shall decrease the number of Shares
thereafter available, both for purposes of the Plan and for sale
under the Option, by the number of Shares as to which the Option is
exercised.
(b)
Termination of Relationship as a Service
Provider. If an Optionee ceases to be a
Service Provider, other than upon the Optionee’s death or
Disability, the Optionee may exercise his or her Option within
ninety (90) days of termination, or such longer period of time
as specified in the Option Agreement, to the extent that the Option
is vested on the date of termination (but in no event later than
the expiration of the term of such Option as set forth in the
Option Agreement). If, on the date of termination, the Optionee is
not vested as to his or her entire Option, the Shares covered by
the unvested portion of the Option shall revert to the Plan. If,
after termination, the Optionee does not exercise his or her Option
within the time specified by the Administrator, the Option shall
terminate, and the Shares covered by such Option shall revert to
the Plan.
(c)
Disability of Optionee.
If an Optionee ceases to be a Service
Provider as a result of the Optionee’s Disability, the
Optionee may exercise his or her Option within one (1) year of
termination, or
