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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d) of
The
Securities Exchange Act of 1934
Date of Report (Date of
earliest event reported): December 15, 2023 (December
11, 2023)
ASCENT SOLAR
TECHNOLOGIES, INC.
(Exact name of registrant
as specified in its charter)
Delaware |
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001-32919 |
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20-3672603 |
(State or other jurisdiction of incorporation) |
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(Commission File Number) |
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(I.R.S. Employer Identification No.) |
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12300 Grant Street |
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Thornton, CO 80241 |
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(Address of principal executive offices) |
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(720) 872-5000 |
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(Registrant’s telephone number, including area code) |
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Not Applicable
(Former name, former address,
and former fiscal year, if changed since last report.)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Common |
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ASTI |
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Nasdaq Capital
Market |
Indicate by check mark whether
the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule
12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 3.01. Notice of Delisting or Failure to Satisfy
a Continued Listing Rule or Standard; Transfer of Listing
On December 11, 2023, Ascent Solar Technologies, Inc.
(the “Company”) received a written notice (the “Notice”) from the Listing Qualifications Department of The Nasdaq
Stock Market (“Nasdaq”) indicating that the Company is not in compliance with the $1.00 Minimum Bid Price requirement set
forth in Nasdaq Listing Rule 5550(a)(2) for continued listing on The Nasdaq Capital Market (the “Bid Price Requirement”).
The Notice does not result in the immediate delisting
of the Company’s common stock from The Nasdaq Capital Market.
The Nasdaq Listing Rules require listed securities
to maintain a minimum bid price of $1.00 per share and, based upon the closing bid price of the Company’s common stock for the 30
consecutive business days for the period October 27 through December 8, 2023, the Company no longer meets this requirement.
The Notice indicated that the Company will be provided
180 calendar days (or June 10, 2024) in which to regain compliance. If at any time during this 180 calendar day period the bid price of
the Company’s common stock closes at or above $1.00 per share for a minimum of ten consecutive business days, the Nasdaq staff (the
“Staff”) will provide the Company with a written confirmation of compliance and the matter will be closed.
Alternatively, if the Company fails to regain compliance
with Rule 5550(a)(2) prior to the expiration of the initial 180 calendar day period, the Company may be eligible for an additional 180
calendar day compliance period, provided (i) it meets the continued listing requirement for market value of publicly held shares and all
other applicable requirements for initial listing on The Nasdaq Capital Market (except for the Bid Price Requirement) and (ii) it provides
written notice to Nasdaq of its intention to cure this deficiency during the second compliance period by effecting a reverse stock split,
if necessary. In the event the Company does not regain compliance with Rule 5550(a)(2) prior to the expiration of the initial 180 calendar
day period, and if it appears to the Staff that the Company will not be able to cure the deficiency, or if the Company is not otherwise
eligible, the Staff will provide the Company with written notification that its securities are subject to delisting from The Nasdaq Capital
Market. At that time, the Company may appeal the delisting determination to a Hearings Panel.
The Company intends to monitor the closing bid price
of its common stock and is considering its options to regain compliance with the Bid Price Requirement. The Company’s receipt of
the Notice does not affect the Company’s reporting requirements with the Securities and Exchange Commission.
Item 5.02. Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
As described below, the Company held its 2023
Annual Meeting of Stockholders on December 14, 2023. At the Annual Meeting, the Company’s stockholders approved the Company’s
2023 Equity Incentive Plan. The 2023 Plan became effective immediately upon stockholder approval at the Annual Meeting.
A summary of the material terms of the 2023 Plan
is set forth in the Company’s definitive proxy statement on Schedule 14A for the Annual Meeting filed with the U.S. Securities and
Exchange Commission on October 23, 2023 (the “Proxy Statement”). The summaries of the 2023 Plan set forth in the
Proxy Statement are qualified in their entirety by reference to the full text of the 2023 Plan, a copy of which is filed as Exhibit 10.1
to this Current Report on Form 8-K, and incorporated herein by reference.
Item
5.07. Submission of Matters to a Vote of Security Holders.
On December 5, 2023, the Company convened its
2023 Annual Meeting of Stockholders. At the Annual Meeting, there was not a sufficient number of shares of the Company’s common
stock present or represented by proxy in order to a constitute quorum. The Company adjourned the Annual Meeting without the transaction
of any business. On December 14, 2023, the Company reconvened the Annual Meeting.
The matters voted upon at the Annual Meeting and
the results of such voting are set forth below.
Proposal 1 -
Election of two Class A directors to serve a three year term ending in 2026, two Class B directors to serve a two year term ending in
2025 and one Class C director to serve a one year term ending in 2024, in each case until their respective successors are duly elected
and qualified.
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Nominee | |
Votes For | | |
Against | | |
Abstain | | |
Broker Non-Votes | |
Forrest Reynolds (Class A) | |
| 291,524 | | |
| 26,624 | | |
| 200,864 | | |
| 463,841 | |
Louis Berezovsky (Class A) | |
| 291,571 | | |
| 26,581 | | |
| 200,860 | | |
| 463,841 | |
Gregory Thompson (Class B) | |
| 291,551 | | |
| 26,602 | | |
| 200,859 | | |
| 463,841 | |
Paul Warley (Class B) | |
| 266,569 | | |
| 26,578 | | |
| 225,865 | | |
| 463,841 | |
David Peterson (Class A) | |
| 291,655 | | |
| 26,497 | | |
| 200,860 | | |
| 463,841 | |
All five director nominees were duly elected.
Proposal 2 - Ratification of appointment
of independent registered accounting firm – Haynie & Company
Votes For |
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Votes Against |
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Abstain |
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Broker Non-Votes |
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726,173 |
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54,913 |
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201,767 |
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0 |
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Proposal 2 was approved.
Proposal 3 – Approval of the
Company’s 2023 Equity Incentive Plan
Votes For |
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Votes Against |
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Abstain |
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Broker Non-Votes |
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272,295 |
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46,463 |
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200,254 |
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463,841 |
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Proposal 3 was approved.
Proposal 4 – Approval, on an
advisory basis, the compensation of the Company’s Named Executive Officers
Votes For |
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Votes Against |
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Abstain |
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Broker Non-Votes |
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270,983 |
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47,354 |
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200,675 |
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463,841 |
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Proposal 4 was approved.
Proposal 5 – Advisory vote on
the frequency of holding the vote on the compensation of the Company’s Named Executive Officers
One Year |
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Two Years |
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Three Years |
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Abstain |
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Broker Non-Votes |
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284,595 |
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707 |
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10,911 |
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222,799 |
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463,841 |
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One year frequency was approved by the stockholders.
Item 9.01. Financial Statements and Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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ASCENT SOLAR TECHNOLOGIES, INC. |
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December 15, 2023 |
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By: |
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/s/ Jin Jo |
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Name: Jin Jo |
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Title: Chief Financial Officer |
Exhibit 10.1
ASCENT SOLAR TECHNOLOGIES, INC.
2023 EQUITY INCENTIVE PLAN
1.GENERAL.
(a)Eligible
Award Recipients. Employees, Directors and Consultants are eligible to receive Awards.
(b)Available
Awards. The Plan provides for the grant of the following Awards: (i) Incentive Stock Options, (ii) Nonstatutory Stock Options, (iii)
Stock Appreciation Rights, (iv) Restricted Stock Awards, (v) Restricted Stock Unit Awards, (vi) Performance Stock Awards, (vii) Performance
Cash Awards, and (viii) Other Stock Awards.
(c)Purpose.
The Plan, through the grant of Awards, is intended to help the Company secure and retain the services of eligible award recipients, provide
incentives for such persons to exert maximum efforts for the success of the Company and any Affiliate, and provide a means by which the
eligible recipients may benefit from increases in value of the Common Stock.
2.ADMINISTRATION.
(a)Administration
by Board. The Board will administer the Plan. The Board may delegate administration of the Plan to a Committee or Committees, as provided
in Section 2(c).
(b)Powers
of Board. The Board will have the power, subject to, and within the limitations of, the express provisions of the Plan:
(i)To
determine: (A) who will be granted Awards; (B) when and how each Award will be granted; (C) what type of Award will be granted; (D) the
provisions of each Award (which need not be identical), including when a person will be permitted to exercise or otherwise receive cash
or Common Stock under the Award; (E) the number of shares of Common Stock subject to, or the cash value of, an Award; and (F) the Fair
Market Value applicable to a Stock Award.
(ii)To
construe and interpret the Plan and Awards granted under it, and to establish, amend and revoke rules and regulations for administration
of the Plan and Awards. The Board, in the exercise of these powers, may correct any defect, omission or inconsistency in the Plan or in
any Award Agreement or in the written terms of a Performance Cash Award, in a manner and to the extent it will deem necessary or expedient
to make the Plan or Award fully effective.
(iii)To
settle all controversies regarding the Plan and Awards granted under it.
(iv)To
accelerate, in whole or in part, the time at which an Award may be exercised or vest (or the time at which cash or shares of Common Stock
may be issued in settlement thereof).
(v)To
suspend or terminate the Plan at any time. Except as otherwise provided in the Plan or an Award Agreement, suspension or termination of
the Plan will not materially impair a Participant’s rights under the Participant’s then-outstanding Award without the Participant’s
written consent, except as provided in subsection (viii) below.
(vi)To
amend the Plan in any respect the Board deems necessary or advisable, including, without limitation, by adopting amendments relating to
Incentive Stock Options and certain nonqualified deferred compensation under Section 409A of the Code and/or bringing the Plan or Awards
granted under the Plan into compliance with the requirements for Incentive Stock Options or ensuring that they are exempt from, or compliant
with, the requirements for nonqualified deferred compensation under Section 409A of the Code, subject to the limitations, if any, of applicable
law. If required by applicable law or listing requirements, and except as provided in Section 9(a) relating to Capitalization Adjustments,
the Company will seek stockholder approval of any amendment of the Plan that (A) materially increases the number of shares of Common Stock
available for issuance under the Plan, (B) materially expands the class of individuals eligible to receive Awards under the Plan, (C)
materially increases the benefits accruing to Participants under the Plan, (D) materially reduces the price at which shares of Common
Stock may be issued or purchased under the Plan, (E) materially extends the term of the Plan, or (F) materially expands the types of Awards
available for issuance under the Plan. Except as otherwise provided in the Plan or an Award Agreement, no amendment of the Plan will materially
impair a Participant’s rights under an outstanding Award without the Participant’s written consent.
(vii)To
submit any amendment to the Plan for stockholder approval, including, but not limited to, amendments to the Plan intended to satisfy the
requirements of (A) Section 422 of the Code regarding “incentive stock options” or (B) Rule 16b-3.
(viii)To
approve forms of Award Agreements for use under the Plan and to amend the terms of any one or more Awards, including, but not limited
to, amendments to provide terms more favorable to the Participant than previously provided in the Award Agreement, subject to any specified
limits in the Plan that are not subject to Board discretion; provided, however, that a Participant’s rights under any Award
will not be impaired by any such amendment unless (A) the Company requests the consent of the affected Participant, and (B) such Participant
consents in writing. Notwithstanding the foregoing, (1) a Participant’s rights will not be deemed to have been impaired by any such
amendment if the Board, in its sole discretion, determines that the amendment, taken as a whole, does not materially impair the Participant’s
rights, and (2) subject to the limitations of applicable law, if any, the Board may amend the terms of any one or more Awards without
the affected Participant’s consent (A) to maintain the qualified status of the Award as an Incentive Stock Option under Section
422 of the Code; (B) to change the terms of an Incentive Stock Option, if such change results in impairment of the Award solely because
it impairs the qualified status of the Award as an Incentive Stock Option under Section 422 of the Code; (C) to clarify the manner of
exemption from, or to bring the Award into compliance with, Section 409A of the Code; or (D) to comply with other applicable laws or listing
requirements.
(ix)Generally,
to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the best interests of the Company
and that are not in conflict with the provisions of the Plan or Awards.
(x)To
adopt such procedures and sub-plans as are necessary or appropriate to permit participation in the Plan by Employees, Directors or Consultants
who are foreign nationals or employed outside the United States (provided that Board approval will not be necessary for immaterial modifications
to the Plan or any Award Agreement that are required for compliance with the laws of the relevant foreign jurisdiction).
(xi)To
effect, with the consent of any adversely affected Participant, (A) the reduction of the exercise, purchase or strike price of any outstanding
Stock Award; (B) the cancellation of any outstanding Stock Award and the grant in substitution therefor of a new (1) Option or SAR, (2)
Restricted Stock Award, (3) Restricted Stock Unit Award, (4) Other Stock Award, (5) cash and/or (6) other valuable consideration determined
by the Board, in its sole discretion, with any such substituted award (x) covering the same or a different number of shares of Common
Stock as the cancelled Stock Award and (y) granted under the Plan or another equity or compensatory plan of the Company; or (C) any other
action that is treated as a repricing under generally accepted accounting principles.
(c)Delegation
to Committee.
(i)General.
The Board may delegate some or all of the administration of the Plan to a Committee or Committees. If administration of the Plan is delegated
to a Committee, the Committee will have, in connection with the administration of the Plan, the powers theretofore possessed by the Board
that have been delegated to the Committee, including the power to delegate to a subcommittee of the Committee any of the administrative
powers the Committee is authorized to exercise (and references in this Plan to the Board will thereafter be to the Committee or subcommittee,
as applicable). Any delegation of administrative powers will be reflected in resolutions, not inconsistent with the provisions of the
Plan, adopted from time to time by the Board or Committee (as applicable). The Board may retain the authority to concurrently administer
the Plan with the Committee and may, at any time, revest in the Board some or all of the powers previously delegated.
(ii)Rule
16b-3 Compliance. The Committee may consist solely of two or more Non-Employee Directors, in accordance with Rule 16b-3.
(d)Delegation
to an Officer. The Board may delegate to one (1) or more Officers the authority to do one or both of the following (i) designate Employees
who are not Officers to be recipients of Options and SARs (and, to the extent permitted by applicable law, other Stock Awards) and, to
the extent permitted by applicable law, the terms of such Awards, and (ii) determine the number of shares of Common Stock to be subject
to such Stock Awards granted to such Employees; provided, however, that the Board resolutions regarding such delegation will specify
the total number of shares of Common Stock that may be subject to the Stock Awards granted by such Officer and that such Officer may not
grant a Stock Award to himself or herself. Any such Stock Awards will be granted on the form of Stock Award Agreement most recently approved
for use by the Committee or the Board, unless otherwise provided in the resolutions approving the delegation authority. The Board may
not delegate authority to an Officer who is acting solely in the capacity of an Officer (and not also as a Director) to determine the
Fair Market Value pursuant to Section 13(x)(iii) below.
(e)Effect
of Board’s Decision. All determinations, interpretations and constructions made by the Board in good faith will not be subject
to review by any person and will be final, binding and conclusive on all persons.
3.SHARES SUBJECT TO THE PLAN.
(a)Share
Reserve. Subject to Section 9(a) relating to Capitalization Adjustments, and the following sentence regarding the annual increase,
the aggregate number of shares of Common Stock that may be issued pursuant to Stock Awards will not exceed 525,000 new shares (after giving
effect to the Company’s reverse stock split implemented on or about September 11, 2023) (the “Share Reserve”).
In addition, the Share Reserve will automatically increase
on January 1st of each year, for a period of not more than ten years, commencing on January 1, 2025 and ending on (and including) January
1, 2033, in an amount equal to 5% of the total number of shares of Capital Stock outstanding on December 31st of the preceding calendar
year. Notwithstanding the foregoing, the Board may act prior to January 1st of a given year to provide that there will be no January 1st
increase in the Share Reserve for such year or that the increase in the Share Reserve for such year will be a lesser number of shares
of Common Stock than would otherwise occur pursuant to the preceding sentence.
For clarity, the Share Reserve in this Section 3(a)
is a limitation on the number of shares of Common Stock that may be issued pursuant to the Plan. Accordingly, this Section 3(a) does not
limit the granting of Stock Awards except as provided in Section 7(a). Shares may be issued in connection with a merger or acquisition
as permitted by NASDAQ Listing Rule 5635(c) or, if applicable, NYSE Listed Company Manual Section 303A.08, AMEX Company Guide Section
711 or other applicable rule, and such issuance will not reduce the number of shares available for issuance under the Plan.
(b)Reversion
of Shares to the Share Reserve. If a Stock Award or any portion thereof (i) expires or otherwise terminates without all of the shares
covered by such Stock Award having been issued or (ii) is settled in cash (i.e., the Participant receives cash rather than stock),
such expiration, termination or settlement will not reduce (or otherwise offset) the number of shares of Common Stock that may be available
for issuance under the Plan. If any shares of Common Stock issued pursuant to a Stock Award are forfeited back to or repurchased by the
Company because of the failure to meet a contingency or condition required to vest such shares in the Participant, then the shares that
are forfeited or repurchased will revert to and again become available for issuance under the Plan. Any shares reacquired by the Company
in satisfaction of tax withholding obligations on a Stock Award or as consideration for the exercise or purchase price of a Stock Award
will again become available for issuance under the Plan.
(c)Incentive
Stock Option Limit. Subject to the provisions of Section 9(a) relating to Capitalization Adjustments, the aggregate maximum number
of shares of Common Stock that may be issued pursuant to the exercise of Incentive Stock Options will be 525,000 shares of Common Stock.
(d)Other
Limitations. Subject to the provisions of Section 9(a) relating to Capitalization Adjustments, the following limitations shall apply.
(i)A
maximum of 250,000 shares of Common Stock subject to Options, SARs and Other Stock Awards whose value is determined by reference to an
increase over an exercise or strike price of at least 100% of the Fair Market Value on the date the Stock Award is granted may be granted
to any one Participant during any one calendar year.
(ii)A
maximum of 250,000 shares of Common Stock subject to Performance Stock Awards may be granted to any one Participant during any one calendar
year (whether the grant, vesting or exercise is contingent upon the attainment during the Performance Period of the Performance Goals).
(iii)A
maximum of $750,000 may be granted as a Performance Cash Award to any one Participant during any one calendar year.
(e)Limitation
on Grants to Non-Employee Directors. The maximum number of shares of Common Stock subject to Stock Awards granted under the Plan or
otherwise with respect to any period commencing on the date of the Company’s Annual Meeting of Stockholders for a particular year
and ending on the day immediately prior to the date of the Company’s Annual Meeting of Stockholders for the next subsequent year
to any Non-Employee Director, will not exceed 250,000 shares.
(f)Source
of Shares. The stock issuable under the Plan will be shares of authorized but unissued or reacquired Common Stock, including shares
repurchased by the Company on the open market or otherwise.
4.ELIGIBILITY.
(a)Eligibility
for Specific Stock Awards. Incentive Stock Options may be granted only to employees of the Company or a “parent corporation”
or “subsidiary corporation” thereof (as such terms are defined in Sections 424(e) and 424(f) of the Code). Stock Awards other
than Incentive Stock Options may be granted to Employees, Directors and Consultants; provided, however, that Stock Awards may not
be granted to Employees, Directors and Consultants who are providing Continuous Service only to any “parent” of the Company,
as such term is defined in Rule 405 of the Securities Act, unless (i) the stock underlying such Stock Awards is treated as “service
recipient stock” under Section 409A of the Code (for example, because the Stock Awards are granted pursuant to a corporate transaction
such as a spin off transaction), (ii) the Company, in consultation with its legal counsel, has determined that such Stock Awards are otherwise
exempt from Section 409A of the Code, or (iii) the Company, in consultation with its legal counsel, has determined that such Stock Awards
comply with the distribution requirements of Section 409A of the Code.
(b)Ten
Percent Stockholders. A Ten Percent Stockholder will not be granted an Incentive Stock Option unless the exercise price of such Option
is at least 110% of the Fair Market Value on the date of grant and the Option is not exercisable after the expiration of five years from
the date of grant.
5.PROVISIONS RELATING TO OPTIONS
AND STOCK APPRECIATION RIGHTS.
Each Option or SAR will be in such form and will contain
such terms and conditions as the Board deems appropriate. All Options will be separately designated Incentive Stock Options or Nonstatutory
Stock Options at the time of grant, and, if certificates are issued, a separate certificate or certificates will be issued for shares
of Common Stock purchased on exercise of each type of Option. If an Option is not specifically designated as an Incentive Stock Option,
or if an Option is designated as an Incentive Stock Option but some portion or all of the Option fails to qualify as an Incentive Stock
Option under the applicable rules, then the Option (or portion thereof) will be a Nonstatutory Stock Option. The provisions of separate
Options or SARs need not be identical; provided, however, that each Award Agreement will conform to (through incorporation of provisions
hereof by reference in the applicable Award Agreement or otherwise) the substance of each of the following provisions:
(a)Term.
Subject to the provisions of Section 4(b) regarding Ten Percent Stockholders, no Option or SAR will be exercisable after the expiration
of ten years from the date of its grant or such shorter period specified in the Award Agreement.
(b)Exercise
Price. Subject to the provisions of Section 4(b) regarding Ten Percent Stockholders, the exercise or strike price of each Option or
SAR will be not less than 100% of the Fair Market Value of the Common Stock subject to the Option or SAR on the date the Award is granted.
Notwithstanding the foregoing, an Option or SAR may be granted with an exercise or strike price lower than 100% of the Fair Market Value
of the Common Stock subject to the Award if such Award is granted pursuant to an assumption of or substitution for another option or stock
appreciation right pursuant to a Corporate Transaction and in a manner consistent with the provisions of Section 409A of the Code and,
if applicable, Section 424(a) of the Code. Each SAR will be denominated in shares of Common Stock equivalents.
(c)Purchase
Price for Options. The purchase price of Common Stock acquired pursuant to the exercise of an Option may be paid, to the extent permitted
by applicable law and as determined by the Board in its sole discretion, by any combination of the methods of payment set forth below.
The Board will have the authority to grant Options that do not permit all of the following methods of payment (or otherwise restrict the
ability to use certain methods) and to grant Options that require the consent of the Company to use a particular method of payment. The
permitted methods of payment are as follows:
(i)by
cash, check, bank draft or money order payable to the Company;
(ii)pursuant
to a program developed under Regulation T as promulgated by the Federal Reserve Board that, prior to the issuance of the stock subject
to the Option, results in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions to pay the aggregate
exercise price to the Company from the sales proceeds;
(iii)by
delivery to the Company (either by actual delivery or attestation) of shares of Common Stock;
(iv)if
an Option is a Nonstatutory Stock Option, by a “net exercise” arrangement pursuant to which the Company will reduce the number
of shares of Common Stock issuable upon exercise by the largest whole number of shares with a Fair Market Value that does not exceed the
aggregate exercise price; provided, however, that the Company will accept a cash or other payment from the Participant to the extent
of any remaining balance of the aggregate exercise price not satisfied by such reduction in the number of whole shares to be issued. Shares
of Common Stock will no longer be subject to an Option and will not be exercisable thereafter to the extent that (A) shares issuable upon
exercise are used to pay the exercise price pursuant to the “net exercise,” (B) shares are delivered to the Participant as
a result of such exercise, and (C) shares are withheld to satisfy tax withholding obligations; or
(v)in
any other form of legal consideration that may be acceptable to the Board and specified in the applicable Award Agreement.
(d)Exercise
and Payment of a SAR. To exercise any outstanding SAR, the Participant must provide written notice of exercise to the Company in compliance
with the provisions of the Stock Appreciation Right Agreement evidencing such SAR. The appreciation distribution payable on the exercise
of a SAR will be not greater than an amount equal to the excess of (A) the aggregate Fair Market Value (on the date of the exercise of
the SAR) of a number of shares of Common Stock equal to the number of Common Stock equivalents in which the Participant is vested under
such SAR, and with respect to which the Participant is exercising the SAR on such date, over (B) the aggregate strike price of the number
of Common Stock equivalents with respect to which the Participant is exercising the SAR on such date. The appreciation distribution may
be paid in Common Stock, in cash, in any combination of the two or in any other form of consideration, as determined by the Board and
contained in the Award Agreement evidencing such SAR.
(e)Transferability
of Options and SARs. The Board may, in its sole discretion, impose such limitations on the transferability of Options and SARs as
the Board will determine. In the absence of such a determination by the Board to the contrary, the following restrictions on the transferability
of Options and SARs will apply:
(i)Restrictions
on Transfer. An Option or SAR will not be transferable except by will or by the laws of descent and distribution (or pursuant to subsections
(ii) and (iii) below), and will be exercisable during the lifetime of the Participant only by the Participant. The Board may permit transfer
of the Option or SAR in a manner that is not prohibited by applicable tax and securities laws. Except as explicitly provided in the Plan,
neither an Option nor a SAR may be transferred for consideration.
(ii)Domestic
Relations Orders. Subject to the approval of the Board or a duly authorized Officer, an Option or SAR may be transferred pursuant
to the terms of a domestic relations order, official marital settlement agreement or other divorce or separation instrument as permitted
by Treasury Regulations Section 1.421-1(b)(2). If an Option is an Incentive Stock Option, such Option may be deemed to be a Nonstatutory
Stock Option as a result of such transfer.
(iii)Beneficiary
Designation. Subject to the approval of the Board or a duly authorized Officer, a Participant may, by delivering written notice to
the Company, in a form approved by the Company (or the designated broker), designate a third party who, on the death of the Participant,
will thereafter be entitled to exercise the Option or SAR and receive the Common Stock or other consideration resulting from such exercise.
In the absence of such a designation, upon the death of the Participant, the executor or administrator of the Participant’s estate
will be entitled to exercise the Option or SAR and receive the Common Stock or other consideration resulting from such exercise. However,
the Company may prohibit designation of a beneficiary at any time, including due to any conclusion by the Company that such designation
would be inconsistent with the provisions of applicable laws.
(f)Vesting
Generally. The total number of shares of Common Stock subject to an Option or SAR may vest and become exercisable in periodic installments
that may or may not be equal. The Option or SAR may be subject to such other terms and conditions on the time or times when it may or
may not be exercised (which may be based on the satisfaction of Performance Goals or other criteria) as the Board may deem appropriate.
The vesting provisions of individual Options or SARs may vary. The provisions of this Section 5(f) are subject to any Option or SAR provisions
governing the minimum number of shares of Common Stock as to which an Option or SAR may be exercised.
(g)Termination
of Continuous Service. Except as otherwise provided in the applicable Award Agreement or other agreement between the Participant and
the Company, if a Participant’s Continuous Service terminates (other than for Cause and other than upon the Participant’s
death or Disability), the Participant may exercise his or her Option or SAR (to the extent that the Participant was entitled to exercise
such Award as of the date of termination of Continuous Service) within the period of time ending on the earlier of (i) the date three
months following the termination of the Participant’s Continuous Service (or such longer or shorter period specified in the applicable
Award Agreement), and (ii) the expiration of the term of the Option or SAR as set forth in the Award Agreement. If, after termination
of Continuous Service, the Participant does not exercise his or her Option or SAR (as applicable) within the applicable time frame, the
Option or SAR will terminate.
(h)Extension
of Termination Date. If the exercise of an Option or SAR following the termination of the Participant’s Continuous Service (other
than for Cause and other than upon the Participant’s death or Disability) would be prohibited at any time solely because the issuance
of shares of Common Stock would violate the registration requirements under the Securities Act, then the Option or SAR will terminate
on the earlier of (i) the expiration of a total period of time (that need not be consecutive) equal to the applicable post termination
exercise period after the termination of the Participant’s Continuous Service during which the exercise of the Option or SAR would
not be in violation of such registration requirements, and (ii) the expiration of the term of the Option or SAR as set forth in the applicable
Award Agreement. In addition, unless otherwise provided in a Participant’s Award Agreement, if the sale of any Common Stock received
on exercise of an Option or SAR following the termination of the Participant’s Continuous Service (other than for Cause) would violate
the Company’s insider trading policy, then the Option or SAR will terminate on the earlier of (i) the expiration of a period of
months (that need not be consecutive) equal to the applicable post-termination exercise period after the termination of the Participant’s
Continuous Service during which the sale of the Common Stock received upon exercise of the Option or SAR would not be in violation of
the Company’s insider trading policy, or (ii) the expiration of the term of the Option or SAR as set forth in the applicable Award
Agreement.
(i)Disability
of Participant. Except as otherwise provided in the applicable Award Agreement or other agreement between the Participant and the
Company, if a Participant’s Continuous Service terminates as a result of the Participant’s Disability, the Participant may
exercise his or her Option or SAR (to the extent that the Participant was entitled to exercise such Option or SAR as of the date of termination
of Continuous Service), but only within such period of time ending on the earlier of (i) the date 12 months following such termination
of Continuous Service (or such longer or shorter period specified in the Award Agreement), and (ii) the expiration of the term of the
Option or SAR as set forth in the Award Agreement. If, after termination of Continuous Service, the Participant does not exercise his
or her Option or SAR within the applicable time frame, the Option or SAR (as applicable) will terminate.
(j)Death
of Participant. Except as otherwise provided in the applicable Award Agreement or other agreement between the Participant and the
Company, if (i) a Participant’s Continuous Service terminates as a result of the Participant’s death, or (ii) the Participant
dies within the period (if any) specified in the Award Agreement for exercisability after the termination of the Participant’s Continuous
Service for a reason other than death, then the Option or SAR may be exercised (to the extent the Participant was entitled to exercise
such Option or SAR as of the date of death) by the Participant’s estate, by a person who acquired the right to exercise the Option
or SAR by bequest or inheritance or by a person designated to exercise the Option or SAR upon the Participant’s death, but only
within the period ending on the earlier of (i) the date 18 months following the date of death (or such longer or shorter period specified
in the Award Agreement), and (ii) the expiration of the term of such Option or SAR as set forth in the Award Agreement. If, after the
Participant’s death, the Option or SAR is not exercised within the applicable time frame, the Option or SAR (as applicable) will
terminate.
(k)Termination
for Cause. Except as explicitly provided otherwise in a Participant’s Award Agreement or other individual written agreement
between the Company or any Affiliate and the Participant, if a Participant’s Continuous Service is terminated for Cause, the Option
or SAR will terminate immediately upon such Participant’s termination of Continuous Service, and the Participant will be prohibited
from exercising his or her Option or SAR from and after the time of such termination of Continuous Service.
(l)Non-Exempt
Employees. If an Option or SAR is granted to an Employee who is a non-exempt employee for purposes of the Fair Labor Standards Act
of 1938, as amended, the Option or SAR will not be first exercisable for any shares of Common Stock until at least six months following
the date of grant of the Option or SAR (although the Award may vest prior to such date). Consistent with the provisions of the Worker
Economic Opportunity Act, (i) if such non-exempt Employee dies or suffers a Disability, (ii) upon a Corporate Transaction in which such
Option or SAR is not assumed, continued, or substituted, (iii) upon a Change in Control, or (iv) upon the Participant’s retirement
(as such term may be defined in the Participant’s Award Agreement in another agreement between the Participant and the Company,
or, if no such definition, in accordance with the Company’s then current employment policies and guidelines), the vested portion
of any Options and SARs may be exercised earlier than six months following the date of grant. The foregoing provision is intended to operate
so that any income derived by a non-exempt employee in connection with the exercise or vesting of an Option or SAR will be exempt from
his or her regular rate of pay. To the extent permitted and/or required for compliance with the Worker Economic Opportunity Act to ensure
that any income derived by a non-exempt employee in connection with the exercise, vesting or issuance of any shares under any other Stock
Award will be exempt from the employee’s regular rate of pay, the provisions of this Section 5(l) will apply to all Stock Awards
and are hereby incorporated by reference into such Stock Award Agreements.
6.PROVISIONS OF STOCK AWARDS
OTHER THAN OPTIONS AND SARS.
(a)Restricted
Stock Awards. Each Restricted Stock Award Agreement will be in such form and will contain such terms and conditions as the Board will
deem appropriate. To the extent consistent with the Company’s bylaws, at the Board’s election, shares of Common Stock may
be (x) held in book entry form subject to the Company’s instructions until any restrictions relating to the Restricted Stock Award
lapse; or (y) evidenced by a certificate, which certificate will be held in such form and manner as determined by the Board. The terms
and conditions of Restricted Stock Award Agreements may change from time to time, and the terms and conditions of separate Restricted
Stock Award Agreements need not be identical. Each Restricted Stock Award Agreement will conform to (through incorporation of the provisions
hereof by reference in the agreement or otherwise) the substance of each of the following provisions:
(i)Consideration.
A Restricted Stock Award may be awarded in consideration for (A) cash, check, bank draft or money order payable to the Company, (B) past
or future services to the Company or an Affiliate, or (C) any other form of legal consideration that may be acceptable to the Board, in
its sole discretion, and permissible under applicable law.
(ii)Vesting.
Shares of Common Stock awarded under the Restricted Stock Award Agreement may be subject to forfeiture to the Company in accordance with
a vesting schedule to be determined by the Board.
(iii)Termination
of Participant’s Continuous Service. If a Participant’s Continuous Service terminates, the Company may receive through
a forfeiture condition or a repurchase right any or all of the shares of Common Stock held by the Participant that have not vested as
of the date of termination of Continuous Service under the terms of the Restricted Stock Award Agreement.
(iv)Transferability.
Rights to acquire shares of Common Stock under the Restricted Stock Award Agreement will be transferable by the Participant only upon
such terms and conditions as are set forth in the Restricted Stock Award Agreement, as the Board will determine in its sole discretion,
so long as Common Stock awarded under the Restricted Stock Award Agreement remains subject to the terms of the Restricted Stock Award
Agreement.
(v)Dividends.
A Restricted Stock Award Agreement may provide that any dividends paid on Restricted Stock will be subject to the same vesting and forfeiture
restrictions as apply to the shares subject to the Restricted Stock Award to which they relate.
(b)Restricted
Stock Unit Awards. Each Restricted Stock Unit Award Agreement will be in such form and will contain such terms and conditions as the
Board will deem appropriate. The terms and conditions of Restricted Stock Unit Award Agreements may change from time to time, and the
terms and conditions of separate Restricted Stock Unit Award Agreements need not be identical. Each Restricted Stock Unit Award Agreement
will conform to (through incorporation of the provisions hereof by reference in the Agreement or otherwise) the substance of each of the
following provisions:
(i)Consideration.
At the time of grant of a Restricted Stock Unit Award, the Board will determine the consideration, if any, to be paid by the Participant
upon delivery of each share of Common Stock subject to the Restricted Stock Unit Award. The consideration to be paid (if any) by the Participant
for each share of Common Stock subject to a Restricted Stock Unit Award may be paid in any form of legal consideration that may be acceptable
to the Board, in its sole discretion, and permissible under applicable law.
(ii)Vesting.
At the time of the grant of a Restricted Stock Unit Award, the Board may impose such restrictions on or conditions to the vesting of the
Restricted Stock Unit Award as it, in its sole discretion, deems appropriate.
(iii)Payment.
A Restricted Stock Unit Award may be settled by the delivery of shares of Common Stock, their cash equivalent, any combination thereof
or in any other form of consideration, as determined by the Board and contained in the Restricted Stock Unit Award Agreement.
(iv)Additional
Restrictions. At the time of the grant of a Restricted Stock Unit Award, the Board, as it deems appropriate, may impose such restrictions
or conditions that delay the delivery of the shares of Common Stock (or their cash equivalent) subject to a Restricted Stock Unit Award
to a time after the vesting of such Restricted Stock Unit Award.
(v)Dividend
Equivalents. Dividend equivalents may be credited in respect of shares of Common Stock covered by a Restricted Stock Unit Award, as
determined by the Board and contained in the Restricted Stock Unit Award Agreement. At the sole discretion of the Board, such dividend
equivalents may be converted into additional shares of Common Stock covered by the Restricted Stock Unit Award in such manner as determined
by the Board. Any additional shares covered by the Restricted Stock Unit Award credited by reason of such dividend equivalents will be
subject to all of the same terms and conditions of the underlying Restricted Stock Unit Award Agreement to which they relate.
(vi)Termination
of Participant’s Continuous Service. Except as otherwise provided in the applicable Restricted Stock Unit Award Agreement, such
portion of the Restricted Stock Unit Award that has not vested will be forfeited upon the Participant’s termination of Continuous
Service.
(c)Performance
Awards.
(i)Performance
Stock Awards. A Performance Stock Award is a Stock Award (covering a number of shares not in excess of that set forth in Section 3(d)
above) that is payable (including that may be granted, may vest or may be exercised) contingent upon the attainment during a Performance
Period of certain Performance Goals. A Performance Stock Award may, but need not, require the Participant’s completion of a specified
period of Continuous Service. The length of any Performance Period, the Performance Goals to be achieved during the Performance Period,
and the measure of whether and to what degree such Performance Goals have been attained will be conclusively determined by the Committee,
in its sole discretion. In addition, to the extent permitted by applicable law and the applicable Award Agreement, the Board may determine
that cash may be used in payment of Performance Stock Awards.
(ii)Performance
Cash Awards. A Performance Cash Award is a cash award (for a dollar value not in excess of that set forth in Section 3(d) above) that
is payable contingent upon the attainment during a Performance Period of certain Performance Goals. A Performance Cash Award may also
require the completion of a specified period of Continuous Service. At the time of grant of a Performance Cash Award, the length of any
Performance Period, the Performance Goals to be achieved during the Performance Period, and the measure of whether and to what degree
such Performance Goals have been attained will be conclusively determined by the Committee, in its sole discretion. The Board may specify
the form of payment of Performance Cash Awards, which may be cash or other property, or may provide for a Participant to have the option
for his or her Performance Cash Award, or such portion thereof as the Board may specify, to be paid in whole or in part in cash or other
property.
(iii)Board
Discretion. The Board retains the discretion to reduce or eliminate the compensation or economic benefit due upon attainment of Performance
Goals and to define the manner of calculating the Performance Criteria it selects to use for a Performance Period. Partial achievement
of the specified criteria may result in the payment or vesting corresponding to the degree of achievement as specified in the Stock Award
Agreement or the written terms of a Performance Cash Award.
(d)Other
Stock Awards. Other forms of Stock Awards valued in whole or in part by reference to, or otherwise based on, Common Stock, including
the appreciation in value thereof (e.g., options or stock rights with an exercise price or strike price less than 100% of the Fair Market
Value of the Common Stock at the time of grant) may be granted either alone or in addition to Stock Awards provided for under Section
5 and the preceding provisions of this Section 6. Subject to the provisions of the Plan, the Board will have sole and complete authority
to determine the persons to whom and the time or times at which such Other Stock Awards will be granted, the number of shares of Common
Stock (or the cash equivalent thereof) to be granted pursuant to such Other Stock Awards and all other terms and conditions of such Other
Stock Awards.
7.COVENANTS OF THE COMPANY.
(a)Availability
of Shares. The Company will keep available at all times the number of shares of Common Stock reasonably required to satisfy then-outstanding
Awards.
(b)Securities
Law Compliance. The Company will seek to obtain from each regulatory commission or agency as necessary, such authority as may be required
to grant Stock Awards and to issue and sell shares of Common Stock upon exercise, vesting or settlement of the Stock Awards; provided,
however, that this undertaking will not require the Company to register under the Securities Act or other securities or applicable
laws, the Plan, any Stock Award or any Common Stock issued or issuable pursuant to any such Stock Award. If, after reasonable efforts
and at a reasonable cost, the Company is unable to obtain from any such regulatory commission or agency the authority that counsel for
the Company deems necessary or advisable for the lawful issuance and sale of Common Stock under the Plan, the Company will be relieved
from any liability for failure to issue and sell Common Stock upon exercise, vesting or settlement of such Stock Awards unless and until
such authority is obtained. A Participant will not be eligible for the grant of an Award or the subsequent issuance of cash or Common
Stock pursuant to the Award if such grant or issuance would be in violation of any applicable law.
(c)No
Obligation to Notify or Minimize Taxes. The Company will have no duty or obligation to any Participant to advise such holder as to
the tax treatment or time or manner of exercising such Stock Award. Furthermore, the Company will have no duty or obligation to warn or
otherwise advise such holder of a pending termination or expiration of an Award or a possible period in which the Award may not be exercised.
The Company has no duty or obligation to minimize the tax consequences of an Award to the holder of such Award.
8.MISCELLANEOUS.
(a)Use
of Proceeds from Sales of Common Stock. Proceeds from the sale of shares of Common Stock pursuant to Awards will constitute general
funds of the Company.
(b)Corporate
Action Constituting Grant of Awards. Corporate action constituting a grant by the Company of an Award to any Participant will be deemed
completed as of the date of such corporate action, unless otherwise determined by the Board, regardless of when the instrument, certificate,
or letter evidencing the Award is communicated to, or actually received or accepted by, the Participant. In the event that the corporate
records (e.g., Board consents, resolutions or minutes) documenting the corporate action constituting the grant contain terms (e.g., exercise
price, vesting schedule or number of shares) that are inconsistent with those in the Award Agreement or related grant documents as a result
of a clerical error in the papering of the Award Agreement or related grant documents, the corporate records will control and the Participant
will have no legally binding right to the incorrect term in the Award Agreement or related grant documents.
(c)Stockholder
Rights. No Participant will be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of
Common Stock subject to an Award unless and until (i) such Participant has satisfied all requirements for exercise of, or the issuance
of shares of Common Stock under, the Award pursuant to its terms, and (ii) the issuance of the Common Stock subject to such Award has
been entered into the books and records of the Company.
(d)No
Employment or Other Service Rights. Nothing in the Plan, any Award Agreement or any other instrument executed thereunder or in connection
with any Award granted pursuant thereto will confer upon any Participant any right to continue to serve the Company or an Affiliate in
the capacity in effect at the time the Award was granted or will affect the right of the Company or an Affiliate to terminate (i) the
employment of an Employee with or without notice and with or without cause, (ii) the service of a Consultant pursuant to the terms of
such Consultant’s agreement with the Company or an Affiliate, or (iii) the service of a Director pursuant to the bylaws of the Company
or an Affiliate, and any applicable provisions of the corporate law of the state or foreign jurisdiction in which the Company or the Affiliate
is domiciled or incorporated, as the case may be.
(e)Change
in Time Commitment. In the event a Participant’s regular level of time commitment in the performance of his or her services
for the Company and any Affiliates is reduced (for example, and without limitation, if the Participant is an Employee of the Company and
the Employee has a change in status from a full-time Employee to a part-time Employee or takes an extended leave of absence) after the
date of grant of any Award to the Participant, the Board has the right in its sole discretion to (x) make a corresponding reduction in
the number of shares or cash amount subject to any portion of such Award that is scheduled to vest or become payable after the date of
such change in time commitment, and (y) in lieu of or in combination with such a reduction, extend the vesting or payment schedule applicable
to such Award. In the event of any such reduction, the Participant will have no right with respect to any portion of the Award that is
so reduced or extended.
(f)Incentive
Stock Option Limitations. To the extent that the aggregate Fair Market Value (determined at the time of grant) of Common Stock with
respect to which Incentive Stock Options are exercisable for the first time by any Optionholder during any calendar year (under all plans
of the Company and any Affiliates) exceeds $100,000 (or such other limit established in the Code) or otherwise does not comply with the
rules governing Incentive Stock Options, the Options or portions thereof that exceed such limit (according to the order in which they
were granted) or otherwise do not comply with such rules will be treated as Nonstatutory Stock Options, notwithstanding any contrary provision
of the applicable Option Agreement(s).
(g)Investment
Assurances. The Company may require a Participant, as a condition of exercising or acquiring Common Stock under any Award, (i) to
give written assurances satisfactory to the Company as to the Participant’s knowledge and experience in financial and business matters
and/or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and experienced in financial and
business matters and that such Participant is capable of evaluating, alone or together with the purchaser representative, the merits and
risks of exercising the Award; and (ii) to give written assurances satisfactory to the Company stating that the Participant is acquiring
Common Stock subject to the Award for the Participant’s own account and not with any present intention of selling or otherwise distributing
the Common Stock. The foregoing requirements, and any assurances given pursuant to such requirements, will be inoperative if (A) the issuance
of the shares upon the exercise or acquisition of Common Stock under the Award has been registered under a then currently effective registration
statement under the Securities Act, or (B) as to any particular requirement, a determination is made by counsel for the Company that such
requirement need not be met in the circumstances under the then applicable securities laws. The Company may, upon advice of counsel to
the Company, place legends on stock certificates issued under the Plan as such counsel deems necessary or appropriate in order to comply
with applicable securities laws, including, but not limited to, legends restricting the transfer of the Common Stock.
(h)Withholding
Obligations. Unless prohibited by the terms of an Award Agreement, the Company may, in its sole discretion, satisfy any federal, state
or local tax withholding obligation relating to an Award by any of the following means or by a combination of such means: (i) causing
the Participant to tender a cash payment; (ii) withholding shares of Common Stock from the shares of Common Stock issued or otherwise
issuable to the Participant in connection with the Award; provided, however, that no shares of Common Stock are withheld with a
value exceeding the maximum amount of tax required to be withheld by law (or such lesser amount as may be necessary to avoid classification
of the Stock Award as a liability for financial accounting purposes); (iii) withholding cash from an Award settled in cash; (iv) withholding
payment from any amounts otherwise payable to the Participant; or (v) by such other method as may be set forth in the Award Agreement.
(i)Electronic
Delivery. Any reference herein to a “written” agreement or document will include any agreement or document delivered electronically,
filed publicly at www.sec.gov (or any successor website thereto) or posted on the Company’s intranet (or other shared electronic
medium controlled by the Company to which the Participant has access).
(j)Deferrals.
To the extent permitted by applicable law, the Board, in its sole discretion, may determine that the delivery of Common Stock or the payment
of cash, upon the exercise, vesting or settlement of all or a portion of any Award may be deferred and may establish programs and procedures
for deferral elections to be made by Participants. Deferrals by Participants will be made in accordance with Section 409A of the Code.
Consistent with Section 409A of the Code, the Board may provide for distributions while a Participant is still an employee or otherwise
providing services to the Company. The Board is authorized to make deferrals of Awards and determine when, and in what annual percentages,
Participants may receive payments, including lump sum payments, following the Participant’s termination of Continuous Service, and
implement such other terms and conditions consistent with the provisions of the Plan and in accordance with applicable law.
(k)Compliance
with Section 409A of the Code. Unless otherwise expressly provided for in an Award Agreement, the Plan and Award Agreements will be
interpreted to the greatest extent possible in a manner that makes the Plan and the Awards granted hereunder exempt from Section 409A
of the Code, and, to the extent not so exempt, in compliance with Section 409A of the Code. If the Board determines that any Award granted
hereunder is not exempt from and is therefore subject to Section 409A of the Code, the Award Agreement evidencing such Award will incorporate
the terms and conditions necessary to avoid the consequences specified in Section 409A(a)(1) of the Code, and to the extent an Award Agreement
is silent on terms necessary for compliance, such terms are hereby incorporated by reference into the Award Agreement. Notwithstanding
anything to the contrary in this Plan (and unless the Award Agreement specifically provides otherwise), if the shares of Common Stock
are publicly traded, and if a Participant holding an Award that constitutes “deferred compensation” under Section 409A of
the Code is a “specified employee” for purposes of Section 409A of the Code, no distribution or payment of any amount that
is due because of a “separation from service” (as defined in Section 409A of the Code without regard to alternative definitions
thereunder) will be issued or paid before the date that is six months following the date of such Participant’s “separation
from service” (as defined in Section 409A of the Code without regard to alternative definitions thereunder) or, if earlier, the
date of the Participant’s death, unless such distribution or payment can be made in a manner that complies with Section 409A of
the Code, and any amounts so deferred will be paid in a lump sum on the day after such six month period elapses, with the balance paid
thereafter on the original schedule.
(l)Clawback/Recovery.
All Awards granted under the Plan will be subject to recoupment in accordance with any clawback policy that the Company is required to
adopt pursuant to the listing standards of any national securities exchange or association on which the Company’s securities are
listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other applicable law. In addition,
the Board may impose such other clawback, recovery or recoupment provisions in an Award Agreement as the Board determines necessary or
appropriate, including but not limited to a reacquisition right in respect of previously acquired shares of Common Stock or other cash
or property upon the occurrence of an event constituting Cause. No recovery of compensation under such a clawback policy will be an event
giving rise to a right to resign for “good reason” or “constructive termination” (or similar term) under any agreement
with the Company.
9.ADJUSTMENTS UPON CHANGES
IN COMMON STOCK; OTHER CORPORATE EVENTS.
(a)Capitalization
Adjustments. In the event of a Capitalization Adjustment, the Board will appropriately and proportionately adjust: (i) the class(es)
and maximum number of securities subject to the Plan pursuant to Section 3(a), (ii) the class(es) and maximum number of securities by
which the share reserve is to increase automatically each year pursuant to Section 3(a), (iii) the class(es) and maximum number of securities
that may be issued pursuant to the exercise of Incentive Stock Options pursuant to Section 3(c), (iv) the class(es) and maximum number
of securities that may be awarded to any person pursuant to Sections 3(d), and (v) the class(es) and number of securities and price per
share of stock subject to outstanding Stock Awards. The Board will make such adjustments, and its determination will be final, binding
and conclusive.
(b)Dissolution.
Except as otherwise provided in the Stock Award Agreement, in the event of a Dissolution of the Company, all outstanding Stock Awards
(other than Stock Awards consisting of vested and outstanding shares of Common Stock not subject to a forfeiture condition or the Company’s
right of repurchase) will terminate immediately prior to the completion of such Dissolution, and the shares of Common Stock subject to
the Company’s repurchase rights or subject to a forfeiture condition may be repurchased or reacquired by the Company notwithstanding
the fact that the holder of such Stock Award is providing Continuous Service; provided, however, that the Board may, in its sole
discretion, cause some or all Stock Awards to become fully vested, exercisable and/or no longer subject to repurchase or forfeiture (to
the extent such Stock Awards have not previously expired or terminated) before the Dissolution is completed but contingent on its completion.
(c)Transaction.
The following provisions shall apply to Stock Awards in the event of a Transaction unless otherwise provided in the instrument evidencing
the Stock Award or any other written agreement between the Company or any Affiliate and the Participant or unless otherwise expressly
provided by the Board at the time of grant of a Stock Award. In the event of a Transaction, then, notwithstanding any other provision
of the Plan, the Board shall take one or more of the following actions with respect to Stock Awards, contingent upon the closing or completion
of the Transaction:
(i)arrange
for the surviving corporation or acquiring corporation (or the surviving or acquiring corporation’s parent company) to assume or
continue the Stock Award or to substitute a similar stock award for the Stock Award (including, but not limited to, an award to acquire
the same consideration paid to the stockholders of the Company pursuant to the Transaction);
(ii)arrange
for the assignment of any reacquisition or repurchase rights held by the Company in respect of Common Stock issued pursuant to the Stock
Award to the surviving corporation or acquiring corporation (or the surviving or acquiring corporation’s parent company);
(iii)accelerate
the vesting, in whole or in part, of the Stock Award (and, if applicable, the time at which the Stock Award may be exercised) to a date
prior to the effective time of such Transaction as the Board shall determine (or, if the Board shall not determine such a date, to the
date that is five days prior to the effective date of the Transaction), with such Stock Award terminating if not exercised (if applicable)
at or prior to the effective time of the Transaction;
(iv)arrange
for the lapse, in whole or in part, of any reacquisition or repurchase rights held by the Company with respect to the Stock Award;
(v)cancel
or arrange for the cancellation of the Stock Award, to the extent not vested or not exercised prior to the effective time of the Transaction,
in exchange for such cash consideration, if any, as the Board, in its sole discretion, may consider appropriate; and
(vi)make
a payment, in such form as may be determined by the Board equal to the excess, if any, of (A) the value of the property the Participant
would have received upon the exercise of the Stock Award immediately prior to the effective time of the Transaction, over (B) any exercise
price payable by such holder in connection with such exercise. For clarity, this payment may be zero ($0) if the value of the property
is equal to or less than the exercise price. Payments under this provision may be delayed to the same extent that payment of consideration
to the holders of Common Stock in connection with the Transaction is delayed as a result of escrows, earn outs, holdbacks or other contingencies.
The Board need not take the same action or actions
with respect to all Stock Awards or portions thereof or with respect to all Participants. The Board may take different actions with respect
to the vested and unvested portions of a Stock Award.
(d)Change
in Control. A Stock Award may be subject to additional acceleration of vesting and exercisability upon or after a Change in Control
as may be provided in the Stock Award Agreement for such Stock Award or as may be provided in any other written agreement between the
Company or any Affiliate and the Participant, but in the absence of such provision, no such acceleration will occur.
10.PLAN TERM; EARLIER TERMINATION
OR SUSPENSION OF THE PLAN.
The Plan shall become effective (the “Effective
Date”) on October 5, 2023. The Board may suspend or terminate the Plan at any time. No Incentive Stock Options may be granted
after the tenth anniversary of the earlier of (i) the date the Plan is adopted by the Board (the “Adoption Date”),
or (ii) the date the Plan is approved by the stockholders of the Company. No Awards may be granted under the Plan while the Plan is suspended
or after it is terminated.
The Plan was adopted by the Board on October 5, 2023.
The Plan was approved by the stockholders of the Company on December 11, 2023.
In addition, no Stock Award will be exercised (or,
in the case of a Restricted Stock Award, Restricted Stock Unit Award, Performance Stock Award, or Other Stock Award, no Stock Award will
be granted) and no Performance Cash Award will be settled unless and until the Plan has been approved by the stockholders of the Company,
which approval will be within 12 months after the date the Plan is adopted by the Board.
12.CHOICE OF LAW.
The law of the State of Delaware will govern all questions
concerning the construction, validity and interpretation of this Plan, without regard to that state’s conflict of laws rules.
13.DEFINITIONS. As used
in the Plan, the following definitions will apply to the capitalized terms indicated below:
(a)“Affiliate”
means, at the time of determination, any “parent” or “subsidiary” of the Company as such terms are defined in
Rule 405 of the Securities Act. The Board will have the authority to determine the time or times at which “parent” or “subsidiary”
status is determined within the foregoing definition.
(b)“Award”
means a Stock Award or a Performance Cash Award.
(c)“Award
Agreement” means a written agreement between the Company and a Participant evidencing the terms and conditions of an Award.
(d)“Board”
means the Board of Directors of the Company.
(e)“Capital
Stock” means each and every class of common stock of the Company, regardless of the number of votes per share.
(f)“Capitalization
Adjustment” means any change that is made in, or other events that occur with respect to, the Common Stock subject to the
Plan or subject to any Stock Award after the Effective Date without the receipt of consideration by the Company through merger, consolidation,
reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, large nonrecurring cash dividend,
stock split, reverse stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or any
similar equity restructuring transaction, as that term is used in Statement of Financial Accounting Standards Board Accounting Standards
Codification Topic 718 (or any successor thereto). Notwithstanding the foregoing, the conversion of any convertible securities of the
Company will not be treated as a Capitalization Adjustment.
(g)“Cause”
shall have the meaning ascribed to such term in any written agreement between the Participant and the Company defining such term and,
in the absence of such agreement, such term means, with respect to a Participant, the occurrence of any of the following events: (i) such
Participant’s commission of any felony or any crime involving fraud, dishonesty or moral turpitude under the laws of the United
States or any state thereof; (ii) such Participant’s attempted commission of, or participation in, a fraud or act of dishonesty
against the Company; (iii) such Participant’s intentional, material violation of any contract or agreement between the Participant
and the Company or of any statutory duty owed to the Company; (iv) such Participant’s unauthorized use or disclosure of the Company’s
confidential information or trade secrets; or (v) such Participant’s gross misconduct. The determination that a termination of the
Participant’s Continuous Service is either for Cause or without Cause shall be made by the Company, in its sole discretion. Any
determination by the Company that the Continuous Service of a Participant was terminated with or without Cause for the purposes of outstanding
Awards held by such Participant shall have no effect upon any determination of the rights or obligations of the Company or such Participant
for any other purpose.
(h)“Change
in Control” means the occurrence, in a single transaction or in a series of related transactions, of any one or more of
the following events:
(i)any
Exchange Act Person becomes the Owner, directly or indirectly, of securities of the Company representing more than 50% of the combined
voting power of the Company’s then outstanding securities other than by virtue of a merger, consolidation or similar transaction.
Notwithstanding the foregoing, a Change in Control will not be deemed to occur (A) on account of the acquisition of securities of the
Company directly from the Company, (B) on account of the acquisition of securities of the Company by an investor, any affiliate thereof
or any other Exchange Act Person that acquires the Company’s securities in a transaction or series of related transactions the primary
purpose of which is to obtain financing for the Company through the issuance of equity securities, (C) on account of the acquisition of
securities of the Company by any individual who is, on the Adoption Date, either an executive officer or a Director (either, an “Adoption
Investor”) and/or any entity in which an Adoption Investor has a direct or indirect interest (whether in the form of voting
rights or participation in profits or capital contributions) of more than 50% (collectively, the “Adoption Entities”)
or on account of the Adoption Entities continuing to hold shares that come to represent more than 50% of the combined voting power of
the Company’s then outstanding securities as a result of the conversion of any class of the Company’s securities into another
class of the Company’s securities having a different number of votes per share pursuant to the conversion provisions set forth in
the Company’s Certificate of Incorporation; or (D) solely because the level of Ownership held by any Exchange Act Person (the “Subject
Person”) exceeds the designated percentage threshold of the outstanding voting securities as a result of a repurchase or
other acquisition of voting securities by the Company reducing the number of shares outstanding, provided that if a Change in Control
would occur (but for the operation of this sentence) as a result of the acquisition of voting securities by the Company, and after such
share acquisition, the Subject Person becomes the Owner of any additional voting securities that, assuming the repurchase or other acquisition
had not occurred, increases the percentage of the then outstanding voting securities Owned by the Subject Person over the designated percentage
threshold, then a Change in Control will be deemed to occur;
(ii)there
is consummated a merger, consolidation or similar transaction involving (directly or indirectly) the Company and, immediately after the
consummation of such merger, consolidation or similar transaction, the stockholders of the Company immediately prior thereto do not Own,
directly or indirectly, either (A) outstanding voting securities representing more than 50% of the combined outstanding voting power of
the surviving Entity in such merger, consolidation or similar transaction or (B) more than 50% of the combined outstanding voting power
of the parent of the surviving Entity in such merger, consolidation or similar transaction, in each case in substantially the same proportions
as their Ownership of the outstanding voting securities of the Company immediately prior to such transaction; provided, however,
that a merger, consolidation or similar transaction will not constitute a Change in Control under this prong of the definition if the
outstanding voting securities representing more than 50% of the combined voting power of the surviving Entity or its parent are owned
by the Adoption Entities;
(iii)there
is consummated a sale, lease, exclusive license or other disposition of all or substantially all of the consolidated assets of the Company
and its Subsidiaries, other than a sale, lease, license or other disposition of all or substantially all of the consolidated assets of
the Company and its Subsidiaries to an Entity, more than 50% of the combined voting power of the voting securities of which are Owned
by stockholders of the Company in substantially the same proportions as their Ownership of the outstanding voting securities of the Company
immediately prior to such sale, lease, license or other disposition; provided, however, that a sale, lease, exclusive license or
other disposition of all or substantially all of the consolidated assets of the Company and its Subsidiaries will not constitute a Change
in Control under this prong of the definition if the outstanding voting securities representing more than 50% of the combined voting power
of the acquiring Entity or its parent are owned by the Adoption Entities;
(iv)the
stockholders of the Company approve or the Board approves a plan of complete dissolution or liquidation of the Company, or a complete
dissolution or liquidation of the Company will otherwise occur, except for a liquidation into a parent corporation; or
(v)individuals
who, on the Adoption Date, are members of the Board (the “Incumbent Board”) cease for any reason to constitute
at least a majority of the members of the Board; provided, however, that if the appointment or election (or nomination for election)
of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such
new member will, for purposes of this Plan, be considered as a member of the Incumbent Board.
Notwithstanding the foregoing definition or any other
provision of the Plan, the term Change in Control will not include a sale of assets, merger or other transaction effected exclusively
for the purpose of changing the domicile of the Company and the definition of Change in Control (or any analogous term) in an individual
written agreement between the Company or any Affiliate and the Participant will supersede the foregoing definition with respect to Awards
subject to such agreement; provided, however, that if no definition of Change in Control or any analogous term is set forth in
such an individual written agreement, the foregoing definition will apply.
(i)“Code”
means the Internal Revenue Code of 1986, as amended, including any applicable regulations and guidance thereunder.
(j)“Committee”
means a committee of one or more Directors to whom authority has been delegated by the Board in accordance with Section 2(c).
(k)“Common
Stock” means, as of the Adoption Date, the common stock of the Company, having one vote per share.
(l)“Company”
means Ascent Solar Technologies, Inc., a Delaware corporation.
(m)“Consultant”
means any person, including an advisor, who is (i) engaged by the Company or an Affiliate to render consulting or advisory services and
is compensated for such services, or (ii) serving as a member of the board of directors of an Affiliate and is compensated for such services.
However, service solely as a Director, or payment of a fee for such service, will not cause a Director to be considered a “Consultant”
for purposes of the Plan. Notwithstanding the foregoing, a person is treated as a Consultant under this Plan only if a Form S-8 Registration
Statement under the Securities Act is available to register either the offer or the sale of the Company’s securities to such person.
(n)“Continuous
Service” means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Director or
Consultant, is not interrupted or terminated. A change in the capacity in which the Participant renders service to the Company or an Affiliate
as an Employee, Consultant or Director or a change in the entity for which the Participant renders such service, provided that there is
no interruption or termination of the Participant’s service with the Company or an Affiliate, will not terminate a Participant’s
Continuous Service; provided, however, that if the Entity for which a Participant is rendering services ceases to qualify as an
Affiliate, as determined by the Board, in its sole discretion, such Participant’s Continuous Service will be considered to have
terminated on the date such Entity ceases to qualify as an Affiliate. To the extent permitted by law, the Board or the chief executive
officer of the Company, in that party’s sole discretion, may determine whether Continuous Service will be considered interrupted
in the case of (i) any leave of absence approved by the Board or chief executive officer, including sick leave, military leave or any
other personal leave, or (ii) transfers between the Company, an Affiliate, or their successors. Notwithstanding the foregoing, a leave
of absence will be treated as Continuous Service for purposes of vesting in an Award only to such extent as may be provided in the Company’s
leave of absence policy, in the written terms of any leave of absence agreement or policy applicable to the Participant, or as otherwise
required by law.
(o)“Corporate
Transaction” means the consummation, in a single transaction or in a series of related transactions, of any one or more
of the following events:
(i)a
sale or other disposition of all or substantially all, as determined by the Board, in its sole discretion, of the consolidated assets
of the Company and its Subsidiaries;
(ii)a
sale or other disposition of more than 50% of the outstanding securities of the Company;
(iii)a
merger, consolidation or similar transaction following which the Company is not the surviving corporation; or
(iv)a
merger, consolidation or similar transaction following which the Company is the surviving corporation but the shares of Common Stock outstanding
immediately preceding the merger, consolidation or similar transaction are converted or exchanged by virtue of the merger, consolidation
or similar transaction into other property, whether in the form of securities, cash or otherwise.
(p)“Director”
means a member of the Board.
(q)“Disability”
means, with respect to a Participant, the inability of such Participant to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to
last for a continuous period of not less than 12 months, as provided in Sections 22(e)(3) and 409A(a)(2)(c)(i) of the Code, and will be
determined by the Board on the basis of such medical evidence as the Board deems warranted under the circumstances.
(r)“Dissolution”
means when the Company, after having executed a certificate of dissolution with the State of Delaware (or other applicable state), has
completely wound up its affairs. Conversion of the Company into a Limited Liability Company (or any other pass-through entity) will not
be considered a “Dissolution” for purposes of the Plan.
(s)“Employee”
means any person employed by the Company or an Affiliate. However, service solely as a Director, or payment of a fee for such services,
will not cause a Director to be considered an “Employee” for purposes of the Plan.
(t)“Entity”
means a corporation, partnership, limited liability company or other entity.
(u)“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(v)“Exchange
Act Person” means any natural person, Entity or “group” (within the meaning of Section 13(d) or 14(d) of the
Exchange Act), except that “Exchange Act Person” will not include (i) the Company or any Subsidiary of the Company, (ii) any
employee benefit plan of the Company or any Subsidiary of the Company or any trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any Subsidiary of the Company, (iii) an underwriter temporarily holding securities pursuant to a registered
public offering of such securities, (iv) an Entity Owned, directly or indirectly, by the stockholders of the Company in substantially
the same proportions as their Ownership of stock of the Company; or (v) any natural person, Entity or “group” (within the
meaning of Section 13(d) or 14(d) of the Exchange Act) that, as of the Adoption Date, is the Owner, directly or indirectly, of securities
of the Company representing more than 50% of the combined voting power of the Company’s then outstanding securities.
(w)“Fair
Market Value” means, as of any date, the value of the Common Stock determined as follows:
(i)If
the Common Stock is listed on any established stock exchange or traded on any established market, the Fair Market Value of a share of
Common Stock will be, unless otherwise determined by the Board, the closing sales price for such stock as quoted on such exchange or market
(or the exchange or market with the greatest volume of trading in the Common Stock) on the date of determination, as reported in a source
the Board deems reliable.
(ii)Unless
otherwise provided by the Board, if there is no closing sales price for the Common Stock on the date of determination, then the Fair Market
Value will be the closing selling price on the last preceding date for which such quotation exists.
(iii)In
the absence of such markets for the Common Stock, the Fair Market Value will be determined by the Board in good faith and in a manner
that complies with Sections 409A and 422 of the Code.
(x)“Incentive
Stock Option” means an option granted pursuant to Section 5 of the Plan that is intended to be, and qualifies as, an “incentive
stock option” within the meaning of Section 422 of the Code.
(y)[Reserved].
(z)“Non-Employee
Director” means a Director who either (i) is not a current employee or officer of the Company or an Affiliate, does not
receive compensation, either directly or indirectly, from the Company or an Affiliate for services rendered as a consultant or in any
capacity other than as a Director (except for an amount as to which disclosure would not be required under Item 404(a) of Regulation S-K
promulgated pursuant to the Securities Act (“Regulation S-K”)), does not possess an interest in any other transaction
for which disclosure would be required under Item 404(a) of Regulation S-K, and is not engaged in a business relationship for which disclosure
would be required pursuant to Item 404(b) of Regulation S-K; or (ii) is otherwise considered a “non-employee director” for
purposes of Rule 16b-3.
(aa)“Nonstatutory Stock Option”
means any Option granted pursuant to Section 5 of the Plan that does not qualify as an Incentive Stock Option.
(bb)“Officer”
means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act.
(cc)“Option” means
an Incentive Stock Option or a Nonstatutory Stock Option to purchase shares of Common Stock granted pursuant to the Plan.
(dd)“Option Agreement”
means a written agreement between the Company and an Optionholder evidencing the terms and conditions of an Option grant. Each Option
Agreement will be subject to the terms and conditions of the Plan.
(ee)“Optionholder”
means a person to whom an Option is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Option.
(ff)“Other Stock Award”
means an award based in whole or in part by reference to the Common Stock which is granted pursuant to the terms and conditions of Section
6(d).
(gg)“Other Stock Award Agreement”
means a written agreement between the Company and a holder of an Other Stock Award evidencing the terms and conditions of an Other Stock
Award grant. Each Other Stock Award Agreement will be subject to the terms and conditions of the Plan.
(hh)“Own,” “Owned,”
“Owner,” “Ownership” A person or Entity will be deemed to “Own,” to have
“Owned,” to be the “Owner” of, or to have acquired “Ownership” of securities if such person or Entity,
directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares voting power, which
includes the power to vote or to direct the voting, with respect to such securities.
(ii)“Participant”
means a person to whom an Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Stock Award.
(jj)“Performance Cash Award”
means an award of cash granted pursuant to the terms and conditions of Section 6(c)(ii).
(kk)Performance Criteria” means
the one or more criteria that the Board will select for purposes of establishing the Performance Goals for a Performance Period. The Performance
Criteria that will be used to establish such Performance Goals may be based on any one of, or combination of, the following as determined
by the Board: (i) earnings (including earnings per share and net earnings); (ii) earnings before interest, taxes and depreciation; (iii)
earnings before interest, taxes, depreciation and amortization; (iv) earnings before interest, taxes, depreciation, amortization and legal
settlements; (v) earnings before interest, taxes, depreciation, amortization, legal settlements and other income (expense); (vi) earnings
before interest, taxes, depreciation, amortization, legal settlements, other income (expense) and stock-based compensation; (vii) earnings
before interest, taxes, depreciation, amortization, legal settlements, other income (expense), stock-based compensation and changes in
deferred revenue; (viii) earnings before interest, taxes, depreciation, amortization, legal settlements, other income (expense), stock-based
compensation, other non-cash expenses and changes in deferred revenue; (ix) total stockholder return; (x) return on equity or average
stockholder’s equity; (xi) return on assets, investment, or capital employed; (xii) stock price; (xiii) margin (including gross
margin); (xiv) income (before or after taxes); (xv) operating income; (xvi) operating income after taxes; (xvii) pre-tax profit; (xviii)
operating cash flow; (xix) sales or revenue targets; (xx) increases in revenue or product revenue; (xxi) expenses and cost reduction goals;
(xxii) improvement in or attainment of working capital levels; (xxiii) economic value added (or an equivalent metric); (xxiv) market share;
(xxv) cash flow; (xxvi) cash flow per share; (xxvii) cash balance; (xxviii) cash burn; (xxix) cash collections; (xxx) share price performance;
(xxxi) debt reduction; (xxxii) implementation or completion of projects or processes; (xxxiii) stockholders’ equity; (xxxiv) capital
expenditures; (xxxv) financings; (xxxvi) operating profit or net operating profit; (xxxvii) workforce diversity; (xxxviii) growth of net
income or operating income; (xxxix) employee retention; (xl) initiation of studies by specific dates; (xli) budget management; (xlii)
submission to, or approval by, a regulatory body of an applicable filing or a product; (xliii) regulatory milestones; (xliv) progress
of internal research or development programs; (xlv) progress of partnered programs; (xlvi) partner satisfaction; (xlvii) milestones related
to research development, product development and manufacturing; (xlviii) expansion of sales in additional geographies or markets; (xlix)
research progress, including the development of programs; (l) strategic partnerships or transactions (including in-licensing and out-licensing
of intellectual property); (li) filing of patent applications and granting of patents; and (lii) any other measures of performance selected
by the Board.
(ll)“Performance Goals”
means, for a Performance Period, the one or more goals established by the Board for the Performance Period based upon the Performance
Criteria. Performance Goals may be based on a Company-wide basis, with respect to one or more business units, divisions, Affiliates, or
business segments, and in either absolute terms or relative to the performance of one or more comparable companies or the performance
of one or more relevant indices. Unless specified otherwise by the Board (i) in the Award Agreement at the time the Award is granted or
(ii) in such other document setting forth the Performance Goals at the time the Performance Goals are established, the Board will appropriately
make adjustments in the method of calculating the attainment of Performance Goals for a Performance Period as follows: (1) to exclude
restructuring and/or other nonrecurring charges; (2) to exclude exchange rate effects; (3) to exclude the effects of changes to generally
accepted accounting principles; (4) to exclude the effects of any statutory adjustments to corporate tax rates; (5) to exclude the effects
of any items that are unusual in nature or occur infrequently as determined under generally accepted accounting principles; (6) to exclude
the dilutive effects of acquisitions or joint ventures; (7) to assume that any business divested by the Company achieved performance objectives
at targeted levels during the balance of a Performance Period following such divestiture; (8) to exclude the effect of any change in the
outstanding shares of common stock of the Company by reason of any stock dividend or split, stock repurchase, reorganization, recapitalization,
merger, consolidation, spin-off, combination or exchange of shares or other similar corporate change, or any distributions to common stockholders
other than regular cash dividends; (9) to exclude the effects of stock based compensation and the award of bonuses under the Company’s
bonus plans; (10) to exclude costs incurred in connection with potential acquisitions or divestitures that are required to be expensed
under generally accepted accounting principles; (11) to exclude the goodwill and intangible asset impairment charges that are required
to be recorded under generally accepted accounting principles; (12) to exclude the effect of any other unusual, non-recurring gain or
loss or other extraordinary item; and (13) to exclude the effects of the timing of acceptance for review and/or approval of submissions
to any regulatory body. In addition, the Board retains the discretion to reduce or eliminate the compensation or economic benefit due
upon attainment of Performance Goals and to define the manner of calculating the Performance Criteria it selects to use for such Performance
Period. Partial achievement of the specified criteria may result in the payment or vesting corresponding to the degree of achievement
as specified in the Stock Award Agreement or the written terms of a Performance Cash Award.
(mm)“Performance Period”
means the period of time selected by the Board over which the attainment of one or more Performance Goals will be measured for the purpose
of determining a Participant’s right to and the payment of a Stock Award or a Performance Cash Award. Performance Periods may be
of varying and overlapping duration, at the sole discretion of the Board.
(nn)“Performance Stock Award”
means a Stock Award granted under the terms and conditions of Section 6(c)(i).
(oo)“Plan”
means this Ascent Solar Technologies, Inc. 2023 Equity Incentive Plan.
(pp)“Restricted Stock Award”
means an award of shares of Common Stock which is granted pursuant to the terms and conditions of Section 6(a).
(qq)“Restricted Stock Award
Agreement” means a written agreement between the Company and a holder of a Restricted Stock Award evidencing the terms and
conditions of a Restricted Stock Award grant. Each Restricted Stock Award Agreement will be subject to the terms and conditions of the
Plan.
(rr)“Restricted Stock Unit Award”
means a right to receive shares of Common Stock which is granted pursuant to the terms and conditions of Section 6(b).
(ss)“Restricted Stock Unit Award
Agreement” means a written agreement between the Company and a holder of a Restricted Stock Unit Award evidencing the terms
and conditions of a Restricted Stock Unit Award grant. Each Restricted Stock Unit Award Agreement will be subject to the terms and conditions
of the Plan.
(tt)“Rule 16b-3”
means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3, as in effect from time to time.
(uu)“Securities Act”
means the Securities Act of 1933, as amended.
(vv)“Stock Appreciation Right”
or “SAR” means a right to receive the appreciation on Common Stock that is granted pursuant to the terms and
conditions of Section 5.
(ww)“Stock Appreciation Right
Agreement” means a written agreement between the Company and a holder of a Stock Appreciation Right evidencing the terms
and conditions of a Stock Appreciation Right grant. Each Stock Appreciation Right Agreement will be subject to the terms and conditions
of the Plan.
(xx) “Stock
Award” means any right to receive Common Stock granted under the Plan, including an Incentive Stock Option, a Nonstatutory
Stock Option, a Restricted Stock Award, a Restricted Stock Unit Award, a Stock Appreciation Right, a Performance Stock Award or any Other
Stock Award.
(yy)“Stock Award Agreement”
means a written agreement between the Company and a Participant evidencing the terms and conditions of a Stock Award grant. Each Stock
Award Agreement will be subject to the terms and conditions of the Plan.
(zz)“Subsidiary”
means, with respect to the Company, (i) any corporation of which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, stock of any other class
or classes of such corporation will have or might have voting power by reason of the happening of any contingency) is at the time, directly
or indirectly, Owned by the Company, and (ii) any partnership, limited liability company or other entity in which the Company has a direct
or indirect interest (whether in the form of voting or participation in profits or capital contribution) of more than 50%.
(aaa)“Ten Percent Stockholder”
means a person who Owns (or is deemed to Own pursuant to Section 424(d) of the Code) stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or any Affiliate.
(bbb)“Transaction”
means a Corporate Transaction or a Change in Control.
23
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