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Exhibit
10.40
POWER INTEGRATIONS,
INC.
IMMEDIATELY
EXERCISABLE
NONSTATUTORY STOCK OPTION
AGREEMENT
(EXECUTIVE)
THIS IMMEDIATELY EXERCISABLE
NONSTATUTORY STOCK OPTION AGREEMENT (the “ Option
Agreement ”) is made and entered into as of
XXXXX , by and between Power Integrations, Inc. and
XXXXXX (the “ Optionee
”).
The Company has granted to
the Optionee pursuant to the Power Integrations, Inc. 1997 Stock
Option Plan (the “ Plan ”) an option to
purchase certain shares of Stock, upon the terms and conditions set
forth in this Option Agreement (the “ Option
”). The Option shall in all respects be subject to the terms
and conditions of the Plan.
| 1. |
D EFINITIONS AND C
ONSTRUCTION . |
1.1 Definitions
. Whenever used herein, the following terms shall
have their respective meanings set forth below:
(a) “Date of Option
Grant” means XXXXX .
(b) “ Number of
Option Shares ” means XXX Stock, as adjusted
from time to time pursuant to Section 9.
(c) “ Exercise
Price ” means XXXX share of Stock, as adjusted
from time to time pursuant to Section 9.
(d) “ Initial
Exercise Date ” means the later of the Date of Option
Grant or the date the Optionee’s Service
commences.
(e) “ Initial
Vesting Date ” means the date occurring six
(6) months after (check one):
þ the Date of
Option Grant.
¨
, 2000.
(f) “ Vested
Shares ” means, on any relevant date, that portion of
the Number of Option Shares which has vested in accordance with the
vesting schedule set forth above in this Option Agreement. Provided
that the Optionee’s Service has not terminated prior to the
relevant date, an initial installment of shares will become Vested
Shares on the initial “Full Vest” date set forth in
Section 1.1(e) above, and thereafter the remaining shares will
become Vested Shares in substantially equal installments, with the
last such installment vesting on the last “Full Vest”
date set forth above. Notwithstanding the foregoing, vesting of the
shares subject to the Option shall be accelerated pursuant to the
relevant provisions of the Benefits Agreement (defined
below).
(g) “ Option
Expiration Date ” means the date ten (10) years
after the Date of Option Grant.
(h) “Benefits
Agreement” means the Executive Officer Benefits
Agreement between the Company and the Optionee dated April 19,
2002, and any amendments thereto.
(i) “
Board ” means the Board of Directors of the
Company. If one or more Committees have been appointed by the Board
to administer the Plan, “ Board ” also
means such Committee(s).
(j) “
Code ” means the Internal Revenue Code of 1986,
as amended, and any applicable regulations promulgated
thereunder.
(k) “
Company ” means Power Integrations, Inc., a
Delaware corporation, or any successor corporation
thereto.
(l) “
Consultant ” means any person, including an
advisor, engaged by a Participating Company to render services
other than as an Employee or a Director.
(m) “
Director ” means a member of the Board or of
the board of directors of any other Participating
Company.
(n) “
Disability ” means the inability of the
Optionee, in the opinion of a qualified physician acceptable to the
Company, to perform the major duties of the Optionee’s
position with the Participating Company group because of the
sickness or injury of the Optionee.
(o) “
Employee ” means any person treated as an
employee (including an officer or a Director who is also treated as
an employee) in the records of a Participating Company; provided,
however, that neither service as a Director nor payment of a
director’s fee shall be sufficient to constitute employment
for purposes of the Option Agreement.
(p) “ Exchange
Act ” means the Securities Exchange Act of 1934, as
amended.
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(q) “ Fair Market
Value ” means, as of any date, the value of a share
of Stock or other property as determined by the Board, in its sole
discretion, or by the Company, in its sole discretion, if such
determination is expressly allocated to the Company herein, subject
to the following:
(i) If, on such date, there
is a public market for the Stock, the Fair Market Value of a share
of Stock shall be the closing sale price of a share of Stock (or
the mean of the closing bid and asked prices of a share of Stock if
the Stock is so quoted instead) as quoted on the Nasdaq National
Market, the Nasdaq Small-Cap Market or such other national or
regional securities exchange or market system constituting the
primary market for the Stock, as reported in the Wall Street
Journal or such other source as the Company deems reliable. If
the relevant date does not fall on a day on which the Stock has
traded on such securities exchange or market system, the date on
which the Fair Market Value shall be established shall be the last
day on which the Stock was so traded prior to the relevant date, or
such other appropriate day as shall be determined by the Board, in
its sole discretion.
(ii) If, on such date, there
is no public market for the Stock, the Fair Market Value of a share
of Stock shall be as determined by the Board without regard to any
restriction other than a restriction which, by its terms, will
never lapse.
(r) “ Incentive
Stock Option ” means an Option intended to be (as set
forth in the Option Agreement) and which qualifies as an incentive
stock option within the meaning of Section 422(b) of the
Code.
(s) “
Insider ” means an officer or a Director of the
Company or any other person whose transactions in Stock are subject
to Section 16 of the Exchange Act.
(t) “
Nonstatutory Stock Option ” means an Option not
intended to be (as set forth in the Option Agreement) or which does
not qualify as an Incentive Stock Option.
(u) “ Parent
Corporation ” means any present or future
“parent corporation” of the Company, as defined in
Section 424(e) of the Code.
(v) “
Participating Company ” means the Company or
any Parent Corporation or Subsidiary Corporation.
(w) “
Participating Company Group ” means, at any
point in time, all corporations collectively which are then
Participating Companies.
(x) “ Securities
Act ” means the Securities Act of 1933, as
amended.
(y) “
Service ” means the Optionee’s employment
or service with the Participating Company Group, whether in the
capacity of an Employee, a Director or a Consultant. The
Optionee’s Service shall not be deemed to have terminated
merely because of a change in the capacity in which the Optionee
renders Service to the Participating Company Group or a change in
the Participating Company for which the Optionee renders such
Service, provided that there is no interruption or termination of
the Optionee’s Service. Furthermore, the Optionee’s
Service with the Participating Company Group shall not be deemed to
have
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terminated if the Optionee
takes any military leave, sick leave, or other bona fide leave of
absence approved by the Company; provided, however, that if any
such leave exceeds ninety (90) days, on the ninety-first
(91st) day of such leave the Optionee’s Service shall be
deemed to have terminated unless the Optionee’s right to
return to Service with the Participating Company Group is
guaranteed by statute or contract. Notwithstanding the foregoing,
unless otherwise designated by the Company or required by law, a
leave of absence shall not be treated as Service for purposes of
determining the Optionee’s Vested Ratio. The Optionee’s
Service shall be deemed to have terminated either upon an actual
termination of Service or upon the corporation for which the
Optionee performs Service ceasing to be a Participating Company.
Subject to the foregoing, the Company, in its sole discretion,
shall determine whether the Optionee’s Service has terminated
and the effective date of such termination. (NOTE: If the Option is
exercised more than three (3) months after the date on which
the Optionee ceased to be an Employee (other than by reason of
death or a permanent and total disability as defined in
Section 22(e)(3) of the Code), the Option will be treated as a
Nonstatutory Stock Option and not as an Incentive Stock Option to
the extent required by Section 422 of the Code.)
(z) “
Stock ” means the common stock of the Company,
as adjusted from time to time in accordance with
Section 9.
(aa) “ Subsidiary
Corporation ” means any present or future
“subsidiary corporation” of the Company, as defined in
Section 424(f) of the Code.
1.2 Construction
. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation
of any provision of this Option Agreement. Except when otherwise
indicated by the context, the singular shall include the plural and
the plural shall include the singular. Use of the term
“or” is not intended to be exclusive, unless the
context clearly requires otherwise.
2.1 Tax Status of
Option . This Option is intended to be a
Nonstatutory Stock Option and shall not be treated as an Incentive
Stock Option within the meaning of Section 422(b) of the
Code.
2.2 Election Under
Section 83(b) of the Code . If the Optionee
exercises this Option to purchase shares of Stock that are both
nontransferable and subject to a substantial risk of forfeiture,
the Optionee understands that the Optionee should consult with the
Optionee’s tax advisor regarding the advisability of filing
with the Internal Revenue Service an election under
Section 83(b) of the Code, which must be filed no later than
thirty (30) days after the date on which the Optionee
exercises the Option. Shares acquired upon exercise of the Option
are nontransferable and subject to a substantial risk of forfeiture
if, for example, (a) they are unvested and are subject to a
right of the Company to repurchase such shares at the
Optionee’s original purchase price if the Optionee’s
Service terminates, (b) the Optionee is an Insider and, under
certain circumstances, exercises the Option within six
(6) months of the Date of Option Grant (if a class of equity
security of the Company is registered under Section 12 of the
Exchange Act), or (c) the Optionee is subject to a restriction
on transfer to comply with “Pooling-of-Interests
Accounting” rules. Failure to file an election under
Section 83(b), if
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appropriate, may result in adverse tax
consequences to the Optionee. The Optionee acknowledges that the
Optionee has been advised to consult with a tax advisor prior to
the exercise of the Option regarding the tax consequences to the
Optionee of the exercise of the Option. AN ELECTION UNDER
SECTION 83(b) MUST BE FILED WITHIN 30 DAYS AFTER THE DATE ON
WHICH THE OPTIONEE PURCHASES SHARES. THIS TIME PERIOD CANNOT BE
EXTENDED. THE OPTIONEE ACKNOWLEDGES THAT TIMELY FILING OF A
SECTION 83(b) ELECTION IS THE OPTIONEE’S SOLE
RESPONSIBILITY, EVEN IF THE OPTIONEE REQUESTS THE COMPANY OR ITS
REPRESENTATIVE TO FILE SUCH ELECTION ON HIS OR HER
BEHALF.
All questions of
interpretation concerning this Option Agreement shall be determined
by the Board. All determinations by the Board shall be final and
binding upon all persons having an interest in the Option. Any
officer of a Participating Company shall have the authority to act
on behalf of the Company with respect to any matter, right,
obligation, or election which is the responsibility of or which is
allocated to the Company herein, provided the officer has apparent
authority with respect to such matter, right, obligation, or
election.
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E XERCISE OF
THE O PTION . |
4.1 Right to Exercise
. Except as otherwise provided herein, the Option
shall be exercisable on and after the Initial Exercise Date and
prior to the termination of the Option (as provided in
Section 6) in an amount not to exceed the Number of Option
Shares less the number of shares previously acquired upon exercise
of the Option, subject to the Optionee’s agreement that any
shares purchased upon exercise are subject to the Company’s
repurchase right set forth in Section 11.
4.2 Method of Exercise
. Exercise of the Option shall be by written notice
to the Company which must state the election to exercise the
Option, the number of whole shares of Stock for which the Option is
being exercised and such other representations and agreements as to
the Optionee’s investment intent with respect to such shares
as may be required pursuant to the provisions of this Option
Agreement. The written notice must be signed by the Optionee and
must be delivered in person, by certified or registered mail,
return receipt requested, by confirmed facsimile transmission, or
by such other means as the Company may permit, to the Chief
Financial Officer of the Company, or other authorized
representative of the Participating Company Group, prior to the
termination of the Option as set forth in Section 6,
accompanied by (i) full payment of the aggregate Exercise
Price for the number of shares of Stock being purchased and
(ii) an executed copy, if required herein, of the then current
form of escrow agreement referenced below. The Option shall be
deemed to be exercised upon receipt by the Company of such written
notice, the aggregate Exercise Price, and, if required by the
Company, such executed agreement.
4.3 Payment of Exercise
Price .
(a) Forms of
Consideration Authorized . Except as otherwise
provided below, payment of the aggregate Exercise Price for the
number of shares of Stock for
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which the Option is being
exercised shall be made (i) in cash, by check, or cash
equivalent, (ii) by tender to the Company of whole shares of
Stock owned by the Optionee having a Fair Market Value (as
determined by the Company without regard to any restrictions on
transferability applicable to such stock by reason of federal or
state securities laws or agreements with an underwriter for the
Company) not less than the aggregate Exercise Price, (iii) by
means of a Cashless Exercise, as defined in Section 4.3(c), or
(iv) by any combination of the foregoing.
(b) Tender of
Stock . Notwithstanding the foregoing, the Option
may not be exercised by tender to the Company of shares of Stock to
the extent such tender of Stock would constitute a violation of the
provisions of any law, regulation or agreement restricting the
redemption of the Company’s stock. The Option may not be
exercised by tender to the Company of shares of Stock unless such
shares either have been owned by the Optionee for more than six
(6) months or were not acquired, directly or indirectly, from
the Company.
(c) Cashless
Exercise . A “ Cashless Exercise
” means the assignment in a form acceptable to the Company of
the proceeds of a sale or loan with respect to some or all of the
shares of Stock acquired upon the exercise of the Option pursuant
to a program or procedure approved by the Company (including,
without limitation, through an exercise complying with the
provisions of Regulation T as promulgated from time to time by
the Board of Governors of the Federal Reserve System). The Company
reserves, at any and all times, the right, in the Company’s
sole and absolute discretion, to decline to approve or terminate
any such program or procedure.
4.4 Tax Withholding
. At the time the Option is exercised, in whole or in
part, or at any time thereafter as requested by the Company, the
Optionee hereby authorizes withholding from payroll and any other
amounts payable to the Optionee, and otherwise agrees to make
adequate provision for (including by means of a Cashless Exercise
to the extent permitted by the Company), any sums required to
satisfy the federal, state, local and foreign tax withholding
obligations of the Participating Company Group, if any, which arise
in connection with the Option, including, without limitation,
obligations arising upon (i) the exercise, in whole or in
part, of the Option, (ii) the transfer, in whole or in part,
of any shares acquired upon exercise of the Option, (iii) the
operation of any law or regulation providing for the imputation of
interest, or (iv) the lapsing of any restriction with respect
to any shares acquired upon exercise of the Option. The Optionee is
cautioned that the Option is not exercisable unless the tax
withholding obligations of the Participating Company Group are
satisfied. Accordingly, the Optionee may no
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