EXHIBIT 10.2
ENTECH SOLAR, INC.
SEVENTH AMENDMENT AND RESTATEMENT OF
1999 INCENTIVE STOCK OPTION PLAN
ARTICLE
I
ESTABLISHMENT, PURPOSE, AND DURATION
1.1 Establishment of the
Plan. Entech Solar, Inc., a Delaware
corporation (the "COMPANY"), hereby establishes an incentive
compensation plan
for the Company and its subsidiaries to be known as the "Seventh
Amendment and
Restatement of 1999 Incentive Stock Plan", as set forth in this
document.
Unless otherwise defined herein, all capitalized terms shall have
the meanings
set forth in Section 2.1 herein. The Plan permits the grant of
Incentive Stock
Options, Non-qualified Stock Options and Restricted Stock.
The Plan was adopted by
the Board of Directors of the Company on April
30, 1999, and became effective on June 17, 1999 (the "EFFECTIVE
DATE"). The
Plan was amended in June 2001, in June 2003, in June 2004, in
September 2006, in
July 2007, and in June 2008.
1.2 Purpose of the
Plan. The purpose of the Plan is to
promote
the success of the Company and its subsidiaries by providing
incentives to Key
Personnel that will promote the identification of their personal
interest with
the long-term financial success of the Company and with growth in
shareholder
value. The Plan is designed to provide flexibility to the Company
including its
subsidiaries, in its ability to motivate, attract, and retain the
services of
Key Personnel upon whose judgment, interest, and special effort the
successful
conduct of its operation is largely dependent.
1.3 Duration of the Plan.
The Plan shall commence on the
Effective Date, as described in Section 1.1 herein, and shall
remain in effect,
subject to the right of the Board of Directors to terminate the
Plan at any time
pursuant to Article XI herein, until February 4, 2014, at which
time it shall
terminate except with respect to Awards made prior to, and
outstanding on, that
date which shall remain valid in accordance with their terms.
ARTICLE II
DEFINITIONS
2.1
Definitions. Except as otherwise defined in
the Plan, the
following terms shall have the meanings set forth below:
a. "Affiliate" and "Associate" shall have
the respective meanings
ascribed to such terms in Rule 12b-2 under the Securities Exchange
Act of 1934,
as amended (the "Exchange Act").
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b. "Agreement" means a written agreement
implementing the grant of
each Award signed by an authorized officer of the Company and by
the
Participant.
c. "Award" means, individually or
collectively, a grant under this
Plan of Incentive Stock Options, Non-qualified Stock Options and
Restricted
Stock.
d. "Award Date" or "Grant Date" means the
date on which an Award is
made by the Committee under this Plan.
e. "Beneficial Owner" shall have the
meaning ascribed to such term
in Rule 13d-3 under the Exchange Act.
f. "Board" or "Board of Directors"
means the Board of Directors of
the Company, unless otherwise indicated.
g. "Change in Control" shall be
deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall
have been
satisfied:
(i) any Person (other than the Company, any Subsidiary, a
trustee or
other fiduciary holding securities under any employee benefit plan
of the
Company, or its Subsidiaries), who or which, together with all
Affiliates and
Associates of such Person, is or becomes the Beneficial Owner,
directly or
indirectly, of securities of the Company representing 20% or more
of the
combined voting power of the Company's then outstanding securities;
or (ii) if,
at any time after the Effective Date, the composition of the Board
of Directors
of the Company shall change such that a majority of the Board of
the Company
shall no longer consist of Continuing Directors; or (iii) if at any
time, (1)
the Company shall consolidate with, or merge with, any other Person
and the
Company shall not be the continuing or surviving corporation, (2)
any Person
shall consolidate with or merge with the Company, and the Company
shall be the
continuing or surviving corporation and, in connection therewith,
all or part of
the outstanding Stock shall be changed into or exchanged for stock
or other
securities of any other Person or cash or any other property, (3)
the Company
shall be a party to a statutory share exchange with any other
Person after which
the Company is a subsidiary of any other Person, or (4) the Company
shall sell
or otherwise transfer 50% or more of the assets or earning power of
the Company
and its Subsidiaries (taken as a whole) to any Person or
Persons.
h. "Code" means the Internal Revenue Code
of 1986, as amended from
time to time.
i. "Committee" means the Board of
Directors of the Company or
committee established by the Board to administer the Plan pursuant
to Article
III herein, all of the members of which shall be "non-employee
directors" as
defined in Rule 16b-3, as amended, under the Exchange Act or any
similar or
successor rule. There shall be no fewer than two, nor more than
five, members on
the Committee. Unless otherwise determined by the Board of
Directors of the
Company, the Compensation Committee shall constitute the
Committee.
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j. "Company" means Entech Solar, Inc.
or any successor thereto
as provided in Article XIII herein.
k. "Continuing Director" means an
individual who was a member of the
Board of Directors of the Company on the Effective Date or whose
subsequent
nomination for election or re-election to the Board of Directors of
the Company
was recommended or approved by the affirmative vote of two-thirds
of the
Continuing Directors then in office.
l. "Exchange Act" means the
Securities Exchange Act of 1934, as
amended.
m.
"Fair Market Value" of a Share means the fair market value as
determined pursuant to a reasonable method adopted by the Committee
in good
faith for such purpose.
n. "Incentive Stock Option" or "ISO" means
an option to purchase
Stock, granted under Article VI herein, which is designated as an
incentive
stock option and is intended to meet the requirements of Section
422A of the
Code.
o. "Key Personnel" means an officer,
director, consultant or key
employee of the Company or its Subsidiaries, who, in the opinion of
the
Committee, can contribute significantly to the growth and
profitability of, or
perform services of major importance to, the Company and its
Subsidiaries.
p. "Non-qualified Stock Option" or "NQSO"
means an option to
purchase Stock, granted under Article VI herein, which is not
intended to be an
Incentive Stock Option.
q. "Option" means an Incentive Stock Option
or a Non-qualified Stock
Option.
r. "Participant" means a Key Personnel who
is granted an Award under
the Plan.
s. "Period of Restriction" means the period
during which the
transfer of Shares of Restricted Stock is restricted, pursuant to
Article VIII
herein.
t. "Person" shall have the meaning
ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d)
thereof,
including a "group" as defined in Section 13(d).
u. "Plan" means the Amended and Restated
Entech Solar, Inc. 1999
Incentive Stock Plan, as described and as hereafter from time to
time amended.
v. "Related Option" means an Option with
respect to which a Stock
Appreciation Right has been granted.
w.
"Restricted Stock" means an Award of Stock granted to a
Participant pursuant to Article VII herein.
x. "Stock" or "Shares" means the common
stock of the Company.
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y. "Subsidiary" shall mean a corporation at
least 50% of the total
combined voting power of all classes of stock of which is owned by
the Company,
either directly or through one or more of its Subsidiaries.
z. "Warrant Cancellation Agreement"
means the Warrant
Cancellation Agreement dated February 4, 2009, by and between the
Company and
the Quercus Trust.
ARTICLE
III
ADMINISTRATION
3.1 The Committee.
Except as otherwise reserved for
consideration and approval by the Board of Directors, the Plan
shall be
administered by the Committee which shall have all powers necessary
or desirable
for such administration.
(a) Subject
to the provisions of the Plan and the Warrant Cancellation
Agreement, the Committee shall have the following plenary powers:
(i) to
establish, amend or waive rules or regulations for the Plan's
administration;
(ii) except in those instances in which a dispute arises, to
construe and
interpret the Agreements and the Plan; and (iii) to make all
other
determinations and take all other actions necessary or advisable
for the
administration of the Plan.
(b) (1)
Subject to the provisions of the Plan and the Warrant
Cancellation Agreement, the Committee shall have the following
qualified powers
that shall be subject to approval, amendment and modification by
the Board of
Directors: (i) to determine the terms and conditions upon which the
Awards may
be made and exercised; (ii) to determine all terms and provisions
of each
Agreement, which need not be identical; (iii) to construe and
interpret the
Agreements and the Plan in the event of a dispute between the
Participant and
the Committee; and (iv) to accelerate the exercisability of any
Award or the
termination of any Period of Restriction.
(2) In
approving the Committee's determinations or other
recommendations under (b)(1), the Board of Directors may make such
amendments,
modifications or qualifications as it deems in the best interest of
the Company,
and the Board shall provide specific instructions to the Committee
for
implementation of the same.
(3) In its
sole discretion, the Board of Directors may waive by
resolution one or more of its approval rights under (b)(1) and
authorize the
Committee to proceed without seeking further approvals either on a
case by case
basis or permanently until further notice from the Board. Such
waiver shall be
communicated in writing to the Committee which shall maintain a
permanent record
of such waiver(s).
(4)
Notwithstanding the foregoing, the Quercus Designated Options
(as
defined in Section 4.1) shall comply with the terms and conditions
of the
Warrant Cancellation Agreement.
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(c) The express grant in
this Plan of any specific power to the
Committee shall not be construed as limiting any power or authority
of the
Committee, except as otherwise stated in paragraph 3.1(b).
3.2 Selection of
Participants. Subject to the rights of
the
Quercus Trust to designate awards of options to purchase up to
3,000,000 shares
of Stock pursuant to the Warrant Cancellation Agreement, the
Committee shall
have the authority to grant Awards under the Plan, from time to
time, to such
Key Personnel as may be selected by it. Each Award shall be
evidenced by an
Agreement.
3.3 Decisions
Binding. All determinations and decisions
made by
the Board or the Committee pursuant to the provisions of the Plan
shall be
final, conclusive and binding with respect to Options.
3.4 Rule 16b-3
Requirements. Notwithstanding any other
provision
of the Plan, the Board or the Committee may impose such conditions
on any Award,
and amend the Plan in any such respects, as may be required to
satisfy the
requirements of Rule 16b-3, as amended (or any successor or similar
rule), under
the Exchange Act.
3.5 Indemnification of
Committee. In addition to such other
rights of indemnification as they may have as directors or as
members of the
Committee, the members of the Committee shall be indemnified by the
Company
against reasonable expenses, including attorneys' fees, actually
and reasonably
incurred in connection with the defense of any action, suit or
proceeding, or in
connection with any appeal therein, to which they or any of them
may be a party
by reason of any action taken or failure to act under or in
connection with the
Plan or any Award granted or made hereunder, and against all
amounts reasonably
paid by them in settlement thereof or paid by them in satisfaction
of a judgment
in any such action, suit or proceeding, if such members acted in
good faith and
in a manner which they believed to be in, and not opposed to, the
best interests
of the Company and its Subsidiaries.
3.6 Certain
Determinations. In connection with the
Committee's
good faith determination of "Fair Market Value" as required herein,
the
Committee may, as guidance, take into consideration the book value
of the Common
Stock of the Company, the relationship between the traded price and
book value
of shares for financial institutions of similar size and similar
operating
results to the Company and its subsidiary bank, any reasonably
recent trades of
the Common Stock of the Company brought to the attention of the
Committee and
such additional relevant information as the Committee in its
judgment deems
necessary. In its sole discretion, the Committee may, but is not
obligated to,
consult with and/or engage an investment banker or other
appropriate advisor to
advise the Committee in connection with its good faith
determination of "Fair
