Exhibit 4.1
ASCENT SOLAR
TECHNOLOGIES, INC.
2008 RESTRICTED STOCK
PLAN
1. Purposes of the
Plan. The purposes of this 2008
Restricted Stock Plan are to attract and retain the best available
personnel for positions of substantial responsibility, to provide
additional incentives to Eligible Employees, Consultants and
Directors, and to promote the success of the Company’s
business.
2. Definitions.
As used herein, the following definitions
shall apply:
a.
“ Applicable Law
” means the legal requirements relating to the administration
of the Plan under applicable federal, state, local and foreign
corporate, tax and securities laws, and the rules and
requirements of any stock exchange or quotation system on which the
Common Stock is listed or quoted.
b.
“ Award ” means
an award of Covered Shares to a Grantee pursuant to Section 5
of the Plan.
c.
“ Award Agreement
” means the agreement, notice and/or terms or conditions by
which an Award is evidenced, documented in such form (including by
electronic communication) as may be approved by the
Committee.
d.
“ Board ” means
the Board of Directors of the Company.
e.
“ Change in Control
” means the happening of any of the following:
i.
any one person, or more than one
person acting as a group, acquires ownership of stock of the
Company that, together with stock held by such person or group,
possesses more than 50 percent of the total fair market value
or total voting power of the stock of the Company; provided,
however, that if any one person, or more than one person acting as
a group, is considered to own more than 50 percent of the
total fair market value or total voting power of the stock of the
Company, the acquisition of additional stock by the same person or
persons will not be considered a Change in Control. Notwithstanding
the foregoing, an increase in the percentage of stock of the
Company owned by any one person, or persons acting as a group, as a
result of a transaction in which the Company acquires its stock in
exchange for property will be treated as an acquisition of stock of
the Company for purposes of this subsection (i);
ii.
during any period of 12 consecutive
months, individuals who at the beginning of such period constituted
the Board (together with any new or replacement directors whose
election by the Board, or whose nomination for election by the
Company’s shareholders, was approved by a vote of at least a
majority of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the directors then in office;
or
iii.
any one person, or more than one
person acting as a group, acquires (or has acquired during the
12-month period ending on the date of the most recent acquisition
by the person or persons) assets from the Company, outside of the
ordinary course of business, that have a gross fair market value
equal to or more than 50 percent of the total gross fair
market value of all of the assets of the Company immediately prior
to such acquisition or acquisitions. For purposes of this
subsection (iii), “gross fair market value” means
the value of the assets of the Company, or the value of the assets
being disposed of, determined without regard to any liabilities
associated with such assets. Notwithstanding anything to the
contrary in this Agreement, the following shall not be treated as a
Change in Control under this subsection (iii): (A) a
transfer of assets from the Company to a shareholder of the Company
(determined immediately before the asset transfer); (B) a
transfer of assets from the Company to an entity, 50 percent
or more of the total value or voting power of which is owned,
directly or indirectly, by the Company; (C) a transfer of
assets from the Company to a person, or more than one person acting
as a group, that owns, directly or indirectly, 50 percent or
more of the total value or voting power of all the outstanding
stock of the Company; or (D) a transfer of assets from the
Company to an entity, at least 50 percent of the total value
or voting power of which is owned, directly or indirectly, by a
person described in (iii)(C) above.
f.
“ Code ” means
the Internal Revenue Code of 1986, as amended.
g.
“ Committee ”
means a committee of Directors appointed by the Board in accordance
with Section 4 of the Plan.
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h.
“ Common Stock ”
means the Common Stock, $0.0001 par value, of the
Company.
i.
“ Company ” means
Ascent Solar Technologies, Inc., a Delaware
corporation.
j.
“ Consultant ”
means any person, including an advisor, engaged by the Company or a
Parent or Subsidiary to render services to such entity
k.
“ Covered Share ”
means a Share that is subject to an Award.
l.
“ Date of Grant ”
means the date on which the Committee makes the determination
granting the Award, or such other later date as is determined by
the Committee.
m.
“ Date of Termination
” means the date on which a Grantee’s employment or
service as a Director, whichever is applicable,
terminates.
n.
“ Director ”
means a member of the Board.
o.
“ Eligible Employee
” means any person who is employed by the Company or any
Parent or Subsidiary of the Company.
p.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
q.
“ Fair Market Value
” means, as of any date, the value of Common Stock determined
as follows:
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 Committee.
r.
“ Grantee ” means
an individual to whom an Award has been granted.
s.
“ 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.
t.
“ Parent ” means
a corporation, whether now or hereafter existing, in an unbroken
chain of corporations ending with the Company if each of the
corporations other than the Company holds at least 50 percent
of the voting shares of one of the other corporations in such
chain.
u.
“ Plan ” means
this 2008 Ascent Solar Technologies, Inc. Restricted Stock
Plan, as it may be amended from time to time.
v.
“ 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.
w.
“ Section 16(b)
” means Section 16(b) of the Exchange
Act.
x.
“ Share ” means a
share of the Common Stock, as adjusted in accordance with
Section 7 of the Plan.
y.
“ Subsidiary ”
means a corporation, domestic or foreign, of which not less than
50 percent of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is
hereafter organized or acquired by the Company or a
Subsidiary.
3. Shares Subject to
the Plan. Subject to the provisions of
Section 7 of the Plan and except as otherwise provided in this
Section 3, the maximum aggregate number of Shares that may be
subject to Awards is initially 750,000 Shares. The Shares may be
authorized, but unissued, or reacquired Common Stock. If an Award
expires without having been vested in full the remaining
Shares
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that were subject to the Award shall
become available for future Awards under the Plan (unless the Plan
has terminated). The Board may from time to time determine the
appropriate methodology for calculating the number of Shares issued
pursuant to the Plan. No more than 200,000 Shares may be granted
pursuant to Awards to an individual Grantee in any calendar
year.
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4 .
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Administration of the
Plan.
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a.
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Multiple Administrative
Bodies. The Plan may be
administered by different Committees with respect to different
groups of Grantees.
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i.
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Section 162(m)
. To the
extent that the Committee determines it to be desirable to qualify
Awards 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.
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ii.
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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.
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iii.
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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.
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iv.
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Binding Effect
. The
Committee’s decisions, determinations and interpretations
shall be final and binding on all Grantees and any other holders of
Awards.
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b.
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Subject to the provisions of the
Plan, the Committee shall have the authority, in its sole and
absolute discretion:
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i.
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to determine the Fair Market Value
of the Common Stock, in accordance with Section 2(p) of
the Plan;
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ii.
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to select the Eligible Employees,
Consultants and Directors to whom Awards will be granted under the
Plan;
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iii.
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to determine whether, when, to what
extent and in what amounts Awards are granted under the
Plan;
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iv.
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to determine the number of Shares to
be covered by each Award granted under the Plan;
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v.
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to determine the forms of Award
Agreements, which need not be the same for each grant or for each
Grantee, for use under the Plan;
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vi.
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to determine the terms and
conditions, not inconsistent with the terms of the Plan, of any
Award granted under the Plan. Such terms and conditions, which need
not be the same for each grant or for each Grantee, include, but
are not limited to, any waiver of forfeiture restrictions, and any
restriction or limitation regarding any Award or the Shares
relating thereto, based in each case on such factors as the
Committee shall determine;
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vii.
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to construe and interpret the terms
of the Plan and Awards;
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viii.
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to prescribe, amend and rescind
rules and regulations relating to the Plan, including, without
limiting the generality of the foregoing, rules and
regulations relating to the operation and administration of the
Plan to accommodate the specific requirements of local and foreign
laws and procedures;
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ix.
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to modify or amend each Award
(subject to Section 9 of the Plan);
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x.
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to authorize any person to execute
on behalf of the Company any instrument required to effect the
grant of an Award previously granted by the Committee;
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xi.
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to determine the terms and
restrictions applicable to Awards;
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xii.
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to provide any notice or other
communication required or permitted by the Plan in either written
or electronic form; and
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xiii.
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to make all other determinations
deemed necessary or advisable for administering the
Plan.
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5.
Eligibility and General
Conditions of Awards.
a.
Eligibility. Awards may be granted to
Eligible Employees, Consultants and Directors. If otherwise
eligible, an Eligible Employee, Consultant or Director who has been
granted an Award may be granted additional Awards.
b.
Committee Action.
The Committee acting in its sole and
absolute discretion shall have the right to grant Awards to
Eligible Employees, Consultants and Directors under the Plan from
time to time. Subject to the terms of the Plan, the Committee may
grant Awards to any Eligible Employee, Consultant or Director, in
such amount and upon such terms and conditions as shall be
determined by the Committee in its sole and absolute discretion.
Each Award shall be evidenced by an Award Agreement, and to the
extent not set forth in the Plan, the terms and conditions of each
Award, which need not be the same for each grant or for each
Grantee, shall be set forth in an Award Agreement. Each Award
Agreement shall set forth the conditions, if any, under which the
Grantee’s interest in the Covered Shares will be
forfeited.
c.
Forfeiture
Conditions. The Committee may make each
grant of an Award (if, when and to the extent that the grant
becomes effective) subject to o
