EXHIBIT 4.3
SECOND AMENDED AND RESTATED
SUNPOWER CORPORATION 2005 STOCK INCENTIVE PLAN
(Adopted by the Board on August 12, 2005, amended by the Board on September 23, 2005, amended by the Board and the stockholders on October 5, 2005, amended by the Board and the stockholders on May 4, 2006, amended by the Board and the stockholders effective February 12, 2007, amended by the Board and the stockholders effective May 4, 2007, and amended by the Board and the stockholders on May 8, 2008).
(Reflects 2:1 Reverse Stock Split on November 10, 2005)
| | | | | Page |
| SECTION 1. | | | | A-1 |
| | | | | |
| SECTION 2. | | | | A-1 |
| (a) | | | | A-1 |
| (b) | | | | A-1 |
| (c) | | | | A-1 |
| (d) | | | | A-1 |
| (e) | | | | A-2 |
| (f) | | | | A-2 |
| (g) | | | | A-2 |
| (h) | | | | A-2 |
| (i) | | | | A-2 |
| (j) | | | | A-2 |
| (k) | | | | A-2 |
| (l) | | | | A-2 |
| (m) | | | | A-2 |
| (n) | | | | A-2 |
| (o) | | | | A-2 |
| (p) | | | | A-2 |
| (q) | | | | A-3 |
| (r) | | | | A-3 |
| (s) | | | | A-3 |
| (t) | | | | A-3 |
| (u) | | | | A-3 |
| (v) | | | | A-3 |
| (w) | | | | A-3 |
| (x) | | | | A-3 |
| (y) | | | | A-3 |
| (z) | | | | A-3 |
| (aa) | | | | A-3 |
| (bb) | | | | A-3 |
| (cc) | | | | A-3 |
| (dd) | | | | A-3 |
| (ee) | | | | A-3 |
| (ff) | | | | A-3 |
| (gg) | | | | A-3 |
| (hh) | | | | A-4 |
| | | | | |
| SECTION 3. | | | | A-4 |
| (a) | | | | A-4 |
| (b) | | | | A-4 |
| (c) | | | | A-4 |
| (d) | | | | A-4 |
| | | | | |
| SECTION 4. | | | | A-5 |
| (a) | | | | A-5 |
| (b) | | | | A-5 |
| (c) | | | | A-6 |
| (d) | | | | A-6 |
| (e) | | | | A-6 |
| | | | | |
| SECTION 5. | | | | A-6 |
| (a) | | | | A-6 |
| (b) | | | | A-6 |
| (c) | | | | A-6 |
| | | | | |
| SECTION 6. | | | | A-7 |
| (a) | | | | A-7 |
| (b) | | | | A-7 |
| (c) | | | | A-7 |
| (d) | | | | A-7 |
| (e) | | | | A-7 |
| | | | | |
| SECTION 7. | | | | A-7 |
| (a) | | | | A-7 |
| (b) | | | | A-7 |
| (c) | | | | A-7 |
| (d) | | | | A-7 |
| (e) | | | | A-7 |
| (f) | | | | A-8 |
| (g) | | | | A-8 |
| (h) | | | | A-8 |
| (i) | | | | A-8 |
| (j) | | | | A-8 |
| (k) | | | | A-8 |
| | | | | |
| SECTION 8. | | | | A-8 |
| (a) | | | | A-8 |
| (b) | | | | A-8 |
| (c) | | | | A-8 |
| (d) | | | | A-8 |
| (e) | | | | A-9 |
| (f) | | | | A-9 |
| (g) | | | | A-9 |
| | | | | |
| SECTION 9. | | | | A-9 |
| (a) | | | | A-9 |
| (b) | | | | A-9 |
| (c) | | | | A-9 |
| (d) | | | | A-9 |
| (e) | | | | A-9 |
| (f) | | | | A-9 |
| (g) | | | | A-9 |
| (h) | | | | A-9 |
| | | | | |
| SECTION 10. | | | | A-10 |
| (a) | | | | A-10 |
| (b) | | | | A-10 |
| (c) | | | | A-10 |
| (d) | | | | A-10 |
| (e) | | | | A-10 |
| (f) | | | | A-10 |
| (g) | | | | A-10 |
| | | | | |
| SECTION 11. | | | | A-10 |
| (a) | | | | A-10 |
| (b) | | | | A-11 |
| (c) | | | | A-11 |
| (d) | | | | A-11 |
| | | | | |
| SECTION 12. | | | | A-11 |
| (a) | | | | A-11 |
| (b) | | | | A-12 |
| | | | | |
| SECTION 13. | | | | A-12 |
| | | | | |
| SECTION 14. | | | | A-12 |
| (a) | | | | A-12 |
| (b) | | | | A-12 |
| (c) | | | | A-12 |
| | | | | |
| SECTION 15. | | | | A-12 |
| | | | | |
| SECTION 16. | | | | A-12 |
| (a) | | | | A-12 |
| (b) | | | | A-12 |
| | | | | |
| SECTION 17. | | | | A-13 |
| (a) | | | | A-13 |
| (b) | | | | A-13 |
| | | | | |
| SECTION 18. | | | | A-14 |
| | | | | |
| SECTION 19. | | | | A-14 |
| (a) | | | | A-14 |
| (b) | | | | A-14 |
| (c) | | | | A-14 |
| | | | | |
| SECTION 20. | | | | A-14 |
| | | | | |
| | | | | |
| | | | | |
SUNPOWER CORPORATION
SECOND AMENDED AND RESTATED SUNPOWER CORPORATION 2005 STOCK INCENTIVE PLAN
The Plan was adopted by the Board of Directors on August 12, 2005, and amended by the Board of Directors on September 23, 2005, and the Plan as so amended was approved by the shareholders of the Company on October 10, 2005, to be effective as of the date of the initial offering of Stock to the public pursuant to a registration statement filed by the Company with the Securities and Exchange Commission (the “Effective Date”), which was November 17, 2005. The Plan reflects the two for one reverse stock split effected on November 10, 2005. The Plan was subsequently amended by the Board of Directors and the shareholders of the Company on May 4, 2006, amended by the Board of Directors and the shareholders of the Company again effective February 12, 2007, amended by the Board of Directors and the shareholders of the Company effective May 4, 2007, and again amended by the Board of Directors and the shareholders of the Company effective May 8, 2008. The purpose of the Plan is to promote the long-term success of the Company and the creation of stockholder value by (a) encouraging Employees, Outside Directors and Consultants to focus on critical long-range objectives, (b) encouraging the attraction and retention of Employees, Outside Directors and Consultants with exceptional qualifications and (c) linking Employees, Outside Directors and Consultants directly to stockholder interests through increased stock ownership. The Plan seeks to achieve this purpose by providing for Awards in the form of restricted shares, stock units, options (which may constitute incentive stock options or nonstatutory stock options) or stock appreciation rights.
(i) Any “person” (as defined below) other than Cypress Semiconductor Corporation who by the acquisition or aggregation of securities, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company’s then outstanding securities ordinarily (and apart from rights accruing under special circumstances) having the right to vote at elections of directors (the “Base Capital Stock”); except that any change in the relative beneficial ownership of the Company’s securities by any person resulting solely from a reduction in the aggregate number of outstanding shares of Base Capital Stock, and any decrease thereafter in such person’s ownership of securities, shall be disregarded until such person increases in any manner, directly or indirectly, such person’s beneficial ownership of any securities of the Company; or
(ii) The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if persons who were not stockholders of the Company immediately prior to such merger, consolidation or other reorganization own immediately after such merger, consolidation or other reorganization 50% or more of the voting power of the outstanding securities of each of (A) the continuing or surviving entity and (B) any direct or indirect parent corporation of such continuing or surviving entity; or
(iii) The sale, transfer or other disposition of all or substantially all of the Company’s assets.
For purposes of subsection (d)(ii) above, the term “person” shall have the same meaning as when used in Sections 13(d) and 14(d) of the Exchange Act but shall exclude (1) a trustee or other fiduciary holding securities under an employee benefit plan maintained by the Company or a Parent or Subsidiary and (2) a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the Stock.
Any other provision of this Section 2(d) notwithstanding, a transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before
such transaction, and a Change in Control shall not be deemed to occur if the Company files a registration statement with the United States Securities and Exchange Commission for the initial offering of Stock to the public or if there is a spinoff of the Company by a Parent resulting in a dividend or distribution payable in Stock to the Parent’s stockholders.
(i) If the Stock was traded over-the-counter on the date in question but was not traded on The Nasdaq Stock Market LLC, then the Fair Market Value shall be equal to the last transaction price quoted for such date by the OTC Bulletin Board or, if not so quoted, shall be equal to the mean between the last reported representative bid and asked prices quoted for such date by the principal automated inter-dealer quotation system on which the Stock is quoted or, if the Stock is not quoted on any such system, by the Pink Sheets LLC;
(ii) If the Stock was traded on The Nasdaq Stock Market LLC, then the Fair Market Value shall be equal to the last reported sale price quoted for such date by The Nasdaq Stock Market LLC;
(iii) If the Stock was traded on a United States stock exchange on the date in question, then the Fair Market Value shall be equal to the closing price reported for such date by the applicable composite-transactions report; and
(iv) If none of the foregoing provisions is applicable, then the Fair Market Value shall be determined by the Committee in good faith on such basis as it deems appropriate.
In all cases, the determination of Fair Market Value by the Committee shall be conclusive and binding on all persons.
(p) “ Option ” shall mean an ISO or Nonstatutory Option granted under the Plan and entitling the holder to purchase Shares.
A corporation that attains the status of a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary commencing as of such date.
(i) To interpret the Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms relating to the Plan, including rules and regulations relating to sub-plans established for the purpose of satisfying applicable foreign laws including qualifying for preferred tax treatment under applicable foreign tax laws;
(iii) To authorize any person to execute, on behalf of the Company, any instrument required to carry out the purposes of the Plan;
(iv)To determine when Awards are to be granted under the Plan;
(v) To select the Offerees and Optionees;
(vi)To determine the number of Shares to be made subject to each Award;
(vii) To prescribe the terms and conditions of each Award, including (without limitation) the Exercise Price and Purchase Price, and the vesting or duration of the Award (including accelerating the vesting of Awards, either at the time of the Award or thereafter, without the consent of the Participant), to determine whether an Option is to be classified as an ISO or as a Nonstatutory Option, and to specify the provisions of the agreement relating to such Award;
(viii) To amend any outstanding Award agreement, subject to applicable legal restrictions and to the consent of the Participant if the Participant’s rights or obligations would be materially impaired;
(ix) To prescribe the consideration for the grant of each Award or other right under the Plan and to determine the sufficiency of such consideration;
(x) To determine the disposition of each Award or other right under the Plan in the event of a Participant’s divorce or dissolution of marriage;
(xi) To determine whether Awards under the Plan will be granted in replacement of other grants under an incentive or other compensation plan of an acquired business;
(xii) To correct any defect, supply any omission, or reconcile any inconsistency in the Plan or any Award agreement;
(xiii) To establish or verify the extent of satisfaction of any performance goals or other conditions applicable to the grant, issuance, exercisability, vesting and/or ability to retain any Award; and
(xiv) To take any other actions deemed necessary or advisable for the administration of the Plan.
Subject to the requirements of applicable law, the Committee may designate persons other than members of the Committee to carry out its responsibilities and may prescribe such conditions and limitations as it may deem appropriate, except that the Committee may not delegate its authority with regard to the selection for participation of or the granting of Options or other rights under the Plan to persons subject to Section 16 of the Exchange Act. All decisions, interpretations and other actions of the Committee shall be final and binding on all Offerees, all Optionees, and all persons deriving their rights from an Offeree or Optionee. No member of the Committee shall be liable for any action that he has taken or has failed to take in good faith with respect to the Plan, any Option, or any right to acquire Shares under the Plan.
(i) Each Outside Director who first joins the Board of Directors on or after the date of the Company’s 2008 annual meeting of stockholders shall receive, subject to approval of the Plan by the Company’s stockholders, a grant of 6,600 Stock Units (subject to adjustment under Section 11) on the date of his or her election to the Board of Directors. Twenty percent (20%) of such Stock Units granted under this Section 4(b)(i) shall vest and become exercisable on the first anniversary of the date of grant. The balance of such Stock Units (i.e. the remaining eighty percent (80%)) shall vest and become exercisable annually over a four-year period beginning on the day which is one year after the first anniversary of the date of grant, at an annual rate of 20% of the total number of Stock Units. Notwithstanding the foregoing, each such Stock Unit shall become vested if a Change in Control occurs with respect to the Company during the Outside Director’s Service.
(ii) On the first business day following the conclusion of each regular annual meeting of the Company’s stockholders, commencing with the Company’s 2008 annual meeting of stockholders, each Outside Director who was not elected to the Board for the first time at such meeting and who will continue serving as a member of the Board of Directors thereafter shall receive, subject to approval of the Plan by the Company’s stockholders, a grant of 4,000 Stock Units (subject to adjustment under Section 11), provided that such Outside Director has served on the Board of Directors for at least six months. Twenty-five percent (25%) of such Stock Units granted under this Section 4(b)(ii) shall vest and become exercisable quarterly over a one-year period, with the first twenty-five percent (25%) of such Stock Units vesting on the day that is the three-month anniversary of the date of grant. Notwithstanding the foregoing, each such Stock Unit granted under this Section 4(b)(ii) shall become vested if a Change in Control occurs with respect to the Company during the Outside Director’s Service.
(iii) Each Outside Director or non-employee director who is first appointed Chairman of the Board of Directors on or after the date of the Company’s 2008 annual meeting of stockholders, shall receive, subject to approval of the Plan by the Company’s stockholders, a grant of 10,000 Stock Units (subject to adjustment under Section 11) on the date of his or her appointment as Chairman of the Board of Directors. Twenty-five percent (25%) of such Stock Units granted under this Section 4(b)(iii) shall vest and become exercisable quarterly over a one-year period, with the first twenty-five percent (25%) of such Stock Units vesting on the day that is the three-month anniversary of the date of grant. Notwithstanding the foregoing, each such Stock Unit shall become vested if a Change in Control occurs with respect to the Company during the Service of the Chairman of the Board of Directors.
(iv) On the first business day following the conclusion of each regular annual meeting of the Company’s stockholders, commencing with the Company’s 2008 annual meeting, the Chairman of the Board of Directors shall receive, subject to approval of the Plan by the Company’s stockholders, a grant of 10,000 Stock Units (subject to adjustment under Section 11), provided that the Chairman of the Board of Directors has served on the Board of Directors for at least six months and will continue serving as Chairman of the Board of Directors thereafter. Twenty-five percent (25%) of such Stock Units granted under this Section 4(b)(iv) shall vest and become exercisable quarterly over a one-year period, with the first twenty-five percent (25%) of such Stock Units vesting on the day that is the three-month anniversary of the date of grant. Notwithstanding the foregoing, each such Stock Unit shall become vested if a Change in Control occurs with respect to the Company during the Service of the Chairman of Board of Directors.
(d) Attribution Rules. For purposes of Section 4(c) above, in determining stock ownership, an Employee shall be deemed to own the stock owned, directly or indirectly, by or for such Employee’s brothers, sisters, spouse, ancestors and lineal descendants. Stock owned, directly or indirectly, by or for a corporation, partnership, estate or trust shall be deemed to be owned proportionately by or for its stockholders, partners or beneficiaries.
(a) Basic Limitation. Shares offered under the Plan shall be authorized but unissued Shares or treasury Shares. The aggregate number of Shares authorized for issuance as Awards under the Plan shall not exceed 3,192,133 Shares, plus (i) any Shares subject to options granted under the Company’s 1988 Incentive Stock Plan and 1996 Stock Plan which lapse or otherwise terminate prior to being exercised subsequent to August 12, 2005, and plus (ii) any of the 105,000 Shares subject to non-plan options granted during 2004 that lapse or otherwise terminate prior to being exercised subsequent to August 12, 2005. Notwithstanding the foregoing, the number of Shares available for issuance under the Plan will be increased on the first day of each fiscal year beginning with the 2009 fiscal year, in an amount equal to the least of (x) 3% of the outstanding shares of all classes of common stock of the Company on the last day of the immediately preceding fiscal year, (y) 6,000,000 Shares, or (z) such number of Shares determined by the Board of Directors. The limitations of this Section 5(a) shall be subject to adjustment pursuant to Section 11. The number of Shares that are subject to Options or other Awards outstanding at any time under the Plan shall not exceed the number of Shares which then remain available for issuance under the Plan. The Company, during the term of the Plan, shall at all times reserve and keep available sufficient Shares to satisfy the requirements of the Plan. Notwithstanding the above, the aggregate number of shares actually issued or transferred by the Company upon the exercise of ISOs will not exceed fifteen million (15,000,000) shares.
SECTION 6. RESTRICTED SHARES.
such an Award may provide that the Options will not be exercisable unless the related SARs are forfeited. Subject to the foregoing in this Section 7(e), the Committee at its sole discretion shall determine when all or any installment of an Option is to become exercisable and when an Option is to expire.
(j) Restrictions on Transfer of Shares. Any Shares issued upon exercise of an Option shall be subject to such special forfeiture conditions, rights of repurchase, rights of first refusal and other transfer restrictions as the Committee may determine. Such restrictions shall be set forth in the applicable Stock Option Agreement and shall apply in addition to any general restrictions that may apply to all holders of Shares.
(b) Number of Shares. Each SAR Agreement shall specify the number of Shares to which the SAR pertains and shall provide for the adjustment of such number in accordance with Section 11.
(d) Voting and Dividend Rights . The holders of Stock Units shall have no voting rights. Prior to settlement or forfeiture, any Stock Unit awarded under the Plan may, at the Committee’s discretion, carry with it a right to dividend equivalents. Such right entitles the holder to be credited with an amount equal to all cash dividends paid on one Share while the Stock Unit is outstanding. Dividend equivalents may be converted into additional Stock Units. Settlement of dividend equivalents may be made in the form of cash, in the form of Shares, or in a combination of both. Prior to distribution, any dividend equivalents which are not paid shall be subject to the same conditions and restrictions (including without limitation, any forfeiture conditions) as the Stock Units to which they attach.
(i) The number of Options, SARs, Restricted Shares and Stock Units available for future Awards under Section 5;
(ii) The limitations set forth in Sections 5(a) and (b);
(iii) The number of Stock Units to be granted to Outside Directors under Section 4(b);
(iv) The number of Shares covered by each outstanding Option and SAR;
(v) The Exercise Price under each outstanding Option and SAR; or
(vi) The number of Stock Units included in any prior Award which has not yet been settled.
Except as provided in this Section 11, a Participant shall have no rights by reason of any issue by the Company of stock of any class or securities convertible into stock of any class, any subdivision or consolidation of shares of stock of any class, the payment of any stock dividend or any other increase or decrease in the number of shares of stock of any class.
(i) The continuation of the outstanding Awards by the Company, if the Company is a surviving corporation;
(ii) The assumption of the outstanding Awards by the surviving corporation or its parent or subsidiary;
(iii) The substitution by the surviving corporation or its parent or subsidiary of its own awards for the outstanding Awards;
(iv) Acceleration of the expiration date of the outstanding unexercised Awards to a date not earlier than thirty (30) days after notice to the Participant; or
(v) Settlement of the value of the outstanding Awards which have vested as of the consummation of such merger or other reorganization in cash or cash equivalents; in the sole discretion of the Company, settlement of the value of some or all of the outstanding Awards which have not vested as of the consummation of such merger or other reorganization in cash or cash equivalents on a deferred basis pending vesting; and the cancellation of all vested and unvested Awards as of the consummation of such merger or other reorganization.
(d) Reservation of Rights. Except as provided in this Section 11, an Optionee or Offeree shall have no rights by reason of any subdivision or consolidation of shares of stock of any class, the payment of any dividend or any other increase or decrease in the number of shares of stock of any class. Any issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number or Exercise Price of Shares subject to an Option. The grant of an Option pursuant to the Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, to merge or consolidate or to dissolve, liquidate, sell or transfer all or any part of its business or assets.
(i) Have cash that otherwise would be paid to such Participant as a result of the exercise of a SAR or the settlement of Stock Units credited to a deferred compensation account established for such Participant by the Committee as an entry on the Company’s books;
(ii) Have Shares that otherwise would be delivered to such Participant as a result of the exercise of an Option or SAR converted into an equal number of Stock Units; or
(iii) Have Shares that otherwise would be delivered to such Participant as a result of the exercise of an Option or SAR or the settlement of Stock Units converted into amounts credited to a deferred compensation account established for such Participant by the Committee as an entry on the Company’s books. Such amounts shall be determined by reference to the Fair Market Value of such Shares as of the date when they otherwise would have been delivered to such Participant.
The Company may grant awards under other plans or programs. Such awards may be settled in the form of Shares issued under this Plan. Such Shares shall be treated for all purposes under the Plan like Shares issued in settlement of Stock Units and shall, when issued, reduce the number of Shares available under Section 5.
Shares shall not be issued under the Plan unless the issuance and delivery of such Shares complies with (or is exempt from) all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and regulations and the regulations of any stock exchange on which the Company’s securities may then be listed, and the Company has obtained the approval or favorable ruling from any governmental agency which the Company determines is necessary or advisable. The Company shall not be liable to a Participant or other persons as to: (a) the non-issuance or sale of Shares as to which the Company has been unable to obtain from any regulatory body having jurisdiction the authority deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares under the Plan; and (b) any tax consequences expected, but not realized, by any Participant or other person due to the receipt, exercise or settlement of any Award granted under the Plan.
(c) To the extent applicable, it is intended that this Plan and any grants made hereunder comply with the provisions of Section 409A of the Code, so that the income inclusion provisions of Section 409A(a)(1) of the Code do not apply to the Participants. This Plan and any grants made hereunder shall be administered in a manner consistent with this intent. Any reference in this Plan to Section 409A of the Code will also include any regulations or any other formal guidance promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service.
(d) Neither a Participant nor any of a Participant’s creditors or beneficiaries shall have the right to subject any deferred compensation (within the meaning of Section 409A of the Code) payable under this Plan and grants hereunder to any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment. Except as permitted under Section 409A of the Code, any deferred compensation (within the meaning of Section 409A of the Code) payable to a Participant or for a Participant’s benefit under this Plan and grants hereunder may not be reduced by, or offset against, any amount owing by a Participant to the Company or any of its affiliates.
(e) If, at the time of a Participant’s separation from service (within the meaning of Section 409A of the Code), (i) the Participant shall be a specified employee (within the meaning of Section 409A of the Code and using the identification methodology selected by the Company from time to time) and (ii) the Company shall make a good faith determination that an amount payable hereunder constitutes deferred compensation (within the meaning of Section 409A of the Code) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A of the Code in order to avoid taxes or penalties under Section 409A of the Code, then the Company shall not pay such amount on the otherwise scheduled payment date but shall instead pay it, without interest, on the first business day of the seventh month after such six-month period.
(f) Notwithstanding any provision of this Plan and grants hereunder to the contrary, in light of the uncertainty with respect to the proper application of Section 409A of the Code, the Company reserves the right to make amendments to this Plan and grants hereunder as the Company deems necessary or desirable to avoid the imposition of taxes or penalties under Section 409A of the Code. In any case, a Participant shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on a Participant or for a Participant’s account in connection with this Plan and grants hereunder (including any taxes and penalties under Section 409A of the Code), and neither the Company nor any of its affiliates shall have any obligation to indemnify or otherwise hold a Participant harmless from any or all of such taxes or penalties.
(a) Transferability. Unless the agreement evidencing an Award (or an amendment thereto authorized by the Committee) expressly provides otherwise, no Award granted under this Plan, nor any interest in such Award, may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise transferred in any manner (prior to the vesting and lapse of any and all restrictions applicable to Shares issued under such Award), other than by will or the laws of descent and distribution; provided, however, that an ISO may be transferred or assigned only to the extent consistent with Section 422 of the Code. Any purported assignment, transfer or encumbrance in violation of this Section 17(a) shall be void and unenforceable against the Company.
(b) Qualifying Performance Criteria. The number of Shares or other benefits granted, issued, retainable and/or vested under an Award may be made subject to the attainment of performance goals for a specified period of time relating to one or more of the following performance criteria, either individually, alternatively or in any combination, applied to either the Company as a whole or to a business unit or Subsidiary, either individually, alternatively or in any combination, and measured either annually or cumulatively over a period of years, on an absolute basis or relative to a pre-established target, to previous years’ results or to a designated comparison group or index, in each case as specified by the Committee in the Award: (a) cash flow, (b) earnings per share, (c) earnings before interest, taxes and amortization, (d) return on equity, (e) total stockholder return, (f) share price performance, (g) return on capital, (h) return on assets or net assets, (i) revenue, (j) income or net income, (k) operating income or net operating income, (l) operating profit or net operating profit, (m) operating margin or profit margin, (n) return on operating revenue, (o) return on invested capital, or (p) market segment shares (“Qualifying Performance Criteria”). The Committee in an Award may provide for the adjustment of any evaluation of performance under a Qualifying Performance Criteria to exclude any objective and measurable events specified in the Award, including but not limited to any of the following events that occurs during a performance period: (i) asset write-downs, (ii) litigation
or claim judgments or settlements, (iii) the effect of changes in tax law, accounting principles or other such laws or provisions affecting reported results, (iv) accruals for reorganization and restructuring programs, (v) acceleration of amortization of debt issuance costs, (vi) stock-based compensation charges, (vii) purchase-accounting related charges, including amortization of intangible purchased assets, acquired in-process research and development charges, and similar charges associated with purchase accounting, (viii) any extraordinary nonrecurring items as described in Accounting Principles Board Opinion No. 30, and (ix) the related tax effects associated with each of the adjustments listed in clauses (i) through (viii) above. If applicable, the Committee shall determine the Qualifying Performance Criteria not later than the 90th day of the performance period, and shall determine and certify, for each Participant, the extent to which the Qualifying Performance Criteria have been met. The Committee may not in any event increase the amount of compensation payable under the Plan upon the attainment of a Qualifying Performance Goal to a Participant who is a “covered employee” within the meaning of Section 162(m) of the Code.
No provision of the Plan, nor any right or Option granted under the Plan, shall be construed to give any person any right to become, to be treated as, or to remain an Employee. The Company and its Subsidiaries reserve the right to terminate any person’s Service at any time and for any reason, with or without notice.
SECTION 20. EXECUTION.
To record the adoption of the Plan by the Board of Directors, the Company has caused its authorized officer to execute the same.
| | SUNPOWER CORPORATION |
| | | |
| | By: | |
| | Name: | |
| | Title: | |
SECOND AMENDED AND RESTATED
SUNPOWER CORPORATION 2005 STOCK INCENTIVE PLAN
NOTICE OF STOCK OPTION GRANT
You have been granted the following Option to purchase Class A Common Stock of SunPower Corporation (the “Company”) under the Second Amended and Restated SunPower Corporation 2005 Stock Incentive Plan (the “Plan”):
| Name of Optionee: | ________________ |
| Total Number of Option Shares Granted: | ________________ |
| Type of Option: | Incentive Stock Option |
| | Nonstatutory Stock Option |
| Exercise Price Per Share: | $ |
| Grant Date: | ________________ |
| Vesting Commencement Date: | ________________ |
| Vesting Schedule: | ________________ |
| Expiration Date: | ________________; this Option expires earlier if your Service terminates earlier, as described in the Stock Option Agreement. |
By your signature and the signature of the Company’s representative below, you and the Company agree that this Option is granted under and governed by the term and conditions of the Plan and the Stock Option Agreement, both of which are attached to and made a part of this document.
By signing this document you further agree that the Company may deliver by e-mail all documents relating to the Plan or this award (including without limitation, prospectuses required by the Securities and Exchange Commission) and all other documents that the Company is required to deliver to its security holders (including without limitation, annual reports and proxy statements). You also agree that the Company may deliver these documents by posting them on a website maintained by the Company or by a third party under contract with the Company. If the Company posts these documents on a website, it will notify you by e-mail.
| OPTIONEE: | SUNPOWER CORPORATION |
| | |
| | | By: | |
| Optionee’s Signature | |
| | | Title: | |
| Optionee’s Printed Name | |
SECOND AMENDED AND RESTATED
SUNPOWER CORPORATION 2005 STOCK INCENTIVE PLAN
STOCK OPTION AGREEMENT
| Tax Treatment | This Option is intended to be an incentive stock option under Section 422 of the Internal Revenue Code or a nonstatutory option, as provided in the Notice of Stock Option Grant. Even if this Option is designated as an incentive stock option, it shall be deemed to be a nonstatutory option to the extent required by the $100,000 annual limitation under Section 422(d) of the Internal Revenue Code. |
| Vesting | This Option becomes exercisable in installments, as shown in the Notice of Stock Option Grant. This Option will in no event become exercisable for additional shares after your service as an Employee or a Consultant has terminated for any reason. |
| Term | This Option expires in any event at the close of business at Company headquarters on the day before the 10th anniversary of the Grant Date, as shown on the Notice of Stock Option Grant (fifth anniversary for a more than 10% stockholder as provided under the Plan if this is an incentive stock option). This Option may expire earlier if your Service terminates, as described below. |
| Regular Termination | If your Service terminates for any reason except death or “Total and Permanent Disability” (as defined in the Plan), then this Option will expire at the close of business at Company headquarters on the date three (3) months after the date your Service terminates (or, if earlier, the Expiration Date). The Company has discretion to determine when your Service terminates for all purposes of the Plan and its determinations are conclusive and binding on all persons. |
| Death | If your Service terminates because of death, then this Option will expire at the close of business at Company headquarters on the date 12 months after the date your Service terminates (or, if earlier, the Expiration Date). During that period of up to 12 months, your estate or heirs may exercise the Option. |
| Disability | If your Service terminates because of your Total and Permanent Disability, then this Option will expire at the close of business at Company headquarters on the date 12 months after the date your Service terminates (or, if earlier, the Expiration Date). |
| Leaves of Absence | For purposes of this Option, your Service does not terminate when you go on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company in writing and if continued crediting of Service is required by the terms of the leave or by applicable law. But your Service terminates when the approved leave ends, unless you immediately return to active work. |
| | If you go on a leave of absence, then the vesting schedule specified in the Notice of Stock Option Grant may be adjusted in accordance with the Company’s leave of absence policy or the terms of your leave. If you commence working on a part-time basis, then the vesting schedule specified in the Notice of Stock Option Grant may be adjusted in accordance with the Company’s part-time work policy or the terms of an agreement between you and the Company pertaining to your part-time schedule. |
| Restrictions on Exercise | The Company will not permit you to exercise this Option if the issuance of shares at that time would violate any law or regulation. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance and sale of the Company stock pursuant to this Option shall relieve the Company of any liability with respect to the non-issuance or sale of the Company stock as to which such approval shall not have been obtained. However, the Company shall use its best efforts to obtain such approval. |
| Notice of Exercise | When you wish to exercise this Option you must notify the Company by completing the attached “Notice of Exercise of Stock Option” form and filing it with the Human Resources Department of the Company. Your notice must specify how many shares you wish to purchase. Your notice must also specify how your shares should be registered. The notice will be effective when it is received by the Company. If someone else wants to exercise this Option after your death, that person must prove to the Company’s satisfaction that he or she is entitled to do so. |
| Form of Payment | When you submit your notice of exercise, you must include payment of the Option exercise price for the shares you are purchasing. Payment may be made in the following form(s): |
| | • | Your personal check, a cashier’s check or a money order. |
| | • | Certificates for shares of Company stock that you own, along with any forms needed to effect a transfer of those shares to the Company. The value of the shares, determined as of the effective date of the Option exercise, will be applied to the Option exercise price. Instead of surrendering shares of Company stock, you may attest to the ownership of those shares on a form provided by the Company and have the same number of shares subtracted from the Option shares issued to you. However, you may not surrender, or attest to the ownership of shares of Company stock in payment of the exercise price if your action would cause the Company to recognize a compensation expense (or additional compensation expense) with respect to this Option for financial reporting purposes. |
| | • | By delivery on a form approved by the Committee of an irrevocable direction to a securities broker approved by the Company to sell all or part of your Option shares and to deliver to the Company from the sale proceeds an amount sufficient to pay the Option exercise price and any |
| | | withholding taxes. The balance of the sale proceeds, if any, will be delivered to you. The directions must be given by signing a special “Notice of Exercise” form provided by the Company. |
| | • | By delivery on a form approved by the Committee of an irrevocable direction to a securities broker or lender approved by the Company to pledge Option shares as security for a loan and to deliver to the Company from the loan proceeds an amount sufficient to pay the Option exercise price and any withholding taxes. The directions must be given by signing a special “Notice of Exercise” form provided by the Company. |
| | • | Any other form permitted by the Committee in its sole discretion. |
| | Notwithstanding the foregoing, payment may not be made in any form that is unlawful, as determined by the Committee in its sole discretion. |
| Withholding Taxes and Stock Withholding | You will not be allowed to exercise this Option unless you make arrangements acceptable to the Company to pay any withholding taxes that may be due as a result of the Option exercise. These arrangements may include withholding shares of Company stock that otherwise would be issued to you when you exercise this Option. The value of these shares, determined as of the effective date of the Option exercise, will be applied to the withholding taxes. |
| Restrictions on Resale | By signing this Agreement, you agree not to sell any Option shares at a time when applicable laws, Company policies or an agreement between the Company and its underwriters prohibit a sale. This restriction will apply as long as you are an employee, consultant or director of the Company or a subsidiary of the Company. |
| Transfer of Option | In general, only you can exercise this Option prior to your death. You cannot transfer or assign this Option, other than as designated by you by will or by the laws of descent and distribution, except as provided below. For instance, you may not sell this Option or use it as security for a loan. If you attempt to do any of these things, this Option will immediately become invalid. You may in any event dispose of this Option in your will. Regardless of any marital property settlement agreement, the Company is not obligated to honor a notice of exercise from your former spouse, nor is the Company obligated to recognize your former spouse’s interest in your Option in any other way. |
| | However, if this Option is designated as a nonstatutory stock option in the Notice of Stock Option Grant, then the Committee may, in its sole discretion, allow you to transfer this Option as a gift to one or more family members. For purposes of this Agreement, “family member” means a child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, or sister-in-law (including adoptive relationships), any individual sharing your household (other than a tenant or employee), a trust in which one or |
| | more of these individuals have more than 50% of the beneficial interest, a foundation in which you or one or more of these persons control the management of assets, and any entity in which you or one or more of these persons own more than 50% of the voting interest. |
| | In addition, if this Option is designated as a nonstatutory stock option in the Notice of Stock Option Grant, then the Committee may, in its sole discretion, allow you to transfer this option to your spouse or former spouse pursuant to a domestic relations order in settlement of marital property rights. |
| | The Committee will allow you to transfer this Option only if both you and the transferee(s) execute the forms prescribed by the Committee, which include the consent of the transferee(s) to be bound by this Agreement. |
| Retention Rights | Neither your Option nor this Agreement gives you the right to be retained by the Company or a subsidiary of the Company in any capacity. The Company and its subsidiaries reserve the right to terminate your Service at any time, with or without cause. |
| Stockholder Rights | You, or your estate or heirs, have no rights as a stockholder of the Company until you have exercised this Option by giving the required notice to the Company and paying the exercise price. No adjustments are made for dividends or other rights if the applicable record date occurs before you exercise this Option, except as described in the Plan. |
| Adjustments | In the event of a stock split, a stock dividend or a similar change in Company stock, the number of shares covered by this Option and the exercise price per share may be adjusted pursuant to the Plan. |
| Applicable Law | This Agreement will be interpreted and enforced under the laws of the State of Delaware (without regard to their choice-of-law provisions). |
| The Plan and Other Agreements | The text of the Plan is incorporated in this Agreement by reference. All capitalized terms in the Stock Option Agreement shall have the meanings assigned to them in the Plan. This Agreement and the Plan constitute the entire understanding between you and the Company regarding this Option. Any prior agreements, commitments or negotiations concerning this Option are superseded. This Agreement may be amended only by another written agreement, signed by both parties. |
BY SIGNING THE COVER SHEET OF THIS AGREEMENT,
YOU AGREE TO ALL OF THE TERMS AND CONDITIONS
DESCRIBED ABOVE AND IN THE PLAN.
SECOND AMENDED AND RESTATED
SUNPOWER CORPORATION 2005 STOCK INCENTIVE PLAN
NOTICE OF EXERCISE OF STOCK OPTION
You must sign this Notice on the last page before submitting
it to the Company
| OPTIONEE INFORMATION: | |
| | |
| Name: | | | Social Security Number: | |
| | | | | |
| Address: | | | Employee Number: | |
| OPTION INFORMATION: | |
| | |
| Date of Grant: | _______________, 200__ | Type of Stock Option: |
| Exercise Price per Share: $______________ | | Nonstatutory (NSO) |
Total number of shares of Class A Common Stock of SunPower Corporation (the “Company”) covered by option: __________ | | Incentive (ISO) |
EXERCISE INFORMATION:
Number of shares of Class A Common Stock of the Company for which option is being exercised now: . (These shares are referred to below as the “Purchased Shares.”)
Total exercise price for the Purchased Shares: $
Form of payment enclosed [check all that apply]:
| | Check for $ , payable to “SunPower Corporation” |
| | |
| | Certificate(s) for ______________ shares of Class A Common Stock of the Company that I have owned for at least six months or have purchased in the open market. (These shares will be valued as of the date when the Company receives this notice.) |
| | |
| | Attestation Form covering shares of Class A Common Stock of the Company. (These shares will be valued as of the date when the Company receives this notice.) |
Name(s) in which the Purchased Shares should be registered
[please check one box]:
| | In my name only | |
| | In the names of my spouse and myself as community property | My spouse’s name (if applicable): ____________________________________________ |
| | In the names of my spouse and myself as joint tenants with the right of survivorship | |
| | In the name of an eligible revocable trust | Full legal name of revocable trust: ____________________________________________ ____________________________________________ ____________________________________________ |
| The certificate for the Purchased Shares should be sent to the following address: | ____________________________________________ ____________________________________________ ____________________________________________ |
ACKNOWLEDGMENTS:
| 1. | I understand that all sales of Purchased Shares are subject to compliance with the Company’s policy on securities trades. |
| 2. | I hereby acknowledge that I received and read a copy of the prospectus describing the Second Amended and Restated SunPower Corporation 2005 Stock Incentive Plan and the tax consequences of an exercise. |
| 3. | In the case of a nonstatutory option, I understand that I must recognize ordinary income equal to the spread between the fair market value of the Purchased Shares on the date of exercise and the exercise price. I further understand that I am required to pay withholding taxes at the time of exercising a nonstatutory option. |
| 4. | In the case of an incentive stock option, I agree to notify the Company if I dispose of the Purchased Shares before I have met both of the tax holding periods applicable to incentive stock options (that is, if I make a disqualifying disposition). |
| 5. | I acknowledge that the Company has encouraged me to consult my own adviser to determine the form of ownership that is appropriate for me. In the event that I choose to transfer my Purchased Shares to a trust that does not satisfy the requirements of the Internal Revenue Service (i.e., a trust that is not an eligible revocable trust), I also acknowledge that the transfer will be treated as a “disposition” for incentive stock option tax purposes. As a result, the favorable incentive stock option tax treatment will be unavailable and other unfavorable tax consequences may occur. |
| SIGNATURE AND DATE: | |
| | | | __, 200_ |
SECOND AMENDED AND RESTATED
SUNPOWER CORPORATION 2005 STOCK INCENTIVE PLAN
NOTICE OF GRANT OF RESTRICTED STOCK
Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Notice of Grant.
Name:
You have been granted ______ Restricted Shares. Additional terms of this grant are as follows:
Date of Grant __________
Grant Number __________
Vesting Date: __________
| Vesting Schedule | __________ |
Expiration Date: N/A
You must sign and return this Notice of Grant to the Company prior to the Expiration Date. If you fail to do so, then the Award granted hereunder will be deemed null and void.
You will not receive a certificate representing the Restricted Shares upon vesting, unless and until you have made satisfactory arrangements with the Company with respect to the payment of any income, employment and other taxes which the Company determines must be withheld with respect to such Shares upon their vesting. You hereby agree to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions relating to the Plan and this Award.
By your signature below prior to the Expiration Date, you agree that this Notice of Grant, the form of Restricted Stock Agreement attached as Exhibit A hereto and the Second Amended and Restated SunPower Corporation 2005 Stock Incentive Plan constitute your entire agreement with respect to this Award and may not be modified adversely to your interest except by means of a writing signed by the Company and you.
GRANTEE:
_______________________________
Signature
________________________________
Print Name
SECOND AMENDED AND RESTATED
SUNPOWER CORPORATION 2005 STOCK INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
EXHIBIT A
1. Grant. The Company hereby grants to ________ (the “Grantee”) an award of Restricted Shares (“Restricted Shares”), as set forth in the Notice of Grant of Restricted Stock (the “Notice of Grant”) and subject to the terms and conditions in this Restricted Stock Agreement and the Second Amended and Restated SunPower Corporation 2005 Stock Incentive Plan (the “Plan”). Unless otherwise defined herein, the terms defined in the Plan and the Notice of Grant shall have the same defined meanings in this Restricted Stock Agreement.
2. Vesting Schedule. Subject to paragraph 3, the Restricted Shares awarded by this Restricted Stock Agreement will vest in the Grantee according to the vesting schedule specified in the Notice of Grant.
3. Forfeiture upon Termination of Service. Notwithstanding any contrary provision of this Restricted Stock Agreement or the Notice of Grant, if the Grantee terminates Service with the Company for any or no reason prior to vesting, the unvested Restricted Shares awarded by this Restricted Stock Agreement will thereupon be forfeited at no cost to the Company.
4. Issuance of Restricted Shares. The Shares subject to this grant of Restricted Shares shall be registered in the Grantee’s name and shall be fully paid and nonassessable. If any certificate or other evidence of ownership is issued, it shall bear an appropriate legend referring to the restrictions hereinafter set forth.
5. Grant is Not Transferable. The Shares subject to this grant of Restricted Shares and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process, unless the Restricted Shares are nonforfeitable as provided in Section 2 hereof; provided, however, that the Grantee’s rights with respect to such Shares may be transferred by will or pursuant to the laws of descent and distribution. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.
6. Rights as Stockholder; Dividends. Except as otherwise provided herein, from and after the Date of Grant, the Grantee shall have all of the rights of a shareholder with respect to the Restricted Shares covered by this Restricted Stock Agreement, including the right to vote such Restricted Shares and receive any dividends that may be paid thereon; provided, however,
that any additional Shares or other securities that the Grantee may become entitled to receive pursuant to a stock dividend, issuance of rights or warrants, stock split, combination of shares, recapitalization, merger, consolidation, separation, or reorganization or any other change in the capital structure of the Company shall be subject to the same restrictions as the Restricted Shares covered by this Restricted Stock Agreement.
7. No Effect on Employment. The Grantee’s employment with the Company and its Subsidiaries is on an at-will basis only. Accordingly, the terms of the Grantee’s employment with the Company and its Subsidiaries will be determined from time to time by the Company or the Subsidiary employing the Grantee (as the case may be), and the Company or the Subsidiary will have the right, which is hereby expressly reserved, to terminate or change the terms of the employment of the Grantee at any time for any reason whatsoever, with or without good cause or notice.
8. No Employment Contract. This award is a voluntary, discretionary bonus being made on a one-time basis and it does not constitute a commitment to make any future awards. This award of Restricted Shares and any payments made hereunder will not be considered salary or other compensation for purposes of any severance pay or similar allowance, except as otherwise required by law. Nothing in this Restricted Stock Agreement will give the Grantee any right to continue employment with the Company or any Subsidiary, as the case may be, or interfere in any way with the right of the Company or a Subsidiary to terminate the employment of the Grantee.
9. Address for Notices. Any notice to be given to the Company under the terms of this Restricted Stock Agreement will be addressed to the Company at 3939 North First Street, San Jose, California 95134, Attn: Treasury, or at such other address as the Company may hereafter designate in writing or electronically.
10. Taxes and Withholding. To the extent that the Company is required to withhold any federal, state, local or foreign tax in connection with any delivery of Shares pursuant to this Restricted Stock Agreement, and the amounts available to the Company are insufficient, it shall be a condition to the receipt of such delivery that the Grantee make arrangements satisfactory to the Company for payment of the balance of such taxes required to be withheld. Unless otherwise determined by the Committee, this tax withholding obligation shall be satisfied by the retention by the Company of Shares otherwise deliverable pursuant to this award; provided, however, that the Shares retained for payment of the tax must satisfy the minimum tax withholding amount permissible under the method that results in the least amount withheld.
11. Plan Governs. This Restricted Stock Agreement and the Notice of Grant are subject to all terms and provisions of the Plan. In the event of a conflict between one or more provisions of this Restricted Stock Agreement or the Notice of Grant and one or more provisions of the Plan, the provisions of the Plan will govern.
12. Committee Authority. The Committee will have the power to interpret the Plan and this Restricted Stock Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules
(including, but not limited to, the determination of whether or not any Restricted Shares have vested). All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon the Grantee, the Company and all other interested persons. No member of the Administrator will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Restricted Stock Agreement.
13. Amendments. Any amendment to the Plan shall be deemed to be an amendment to this Restricted Stock Agreement to the extent that the amendment is applicable hereto; provided, however, that no amendment shall adversely affect the rights of the Grantee under this Restricted Stock Agreement without the Grantee’s consent.
14. Severability. If any provision of this Restricted Stock Agreement or the application of any provision hereof to any person or circumstances is held invalid or unenforceable, the remainder of this Restricted Stock Agreement and the application of such provision in any other person or circumstances shall not be affected, and the provisions so held to be invalid or unenforceable shall be reformed to the extent (and only to the extent) necessary to make it enforceable and valid.
15. Governing Law. This Restricted Stock Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of Delaware, without giving effect to any principle of law that would result in the application of the law of any other jurisdiction.
SECOND AMENDED AND RESTATED
SUNPOWER CORPORATION 2005 STOCK INCENTIVE PLAN
NOTICE OF GRANT OF RESTRICTED STOCK UNITS
Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Notice of Grant.
Name:
You have been granted ______ Restricted Stock Units (“RSUs”). Additional terms of this grant are as follows:
You must sign and return this Notice of Grant to the Company prior to the Expiration Date. If you fail to do so, then the Award granted hereunder will be deemed null and void.
You will not receive a certificate representing the Shares upon the RSUs becoming nonforfeitable, unless and until you have made satisfactory arrangements with the Company with respect to the payment of any income, employment and other taxes which the Company determines must be withheld with respect to such Shares upon the RSUs becoming nonforfeitable. You hereby agree to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions relating to the Plan and this Award.
By your signature below prior to the Expiration Date, you agree that this Notice of Grant, the form of Restricted Stock Unit Agreement attached as Exhibit A hereto and the Second Amended and Restated SunPower Corporation 2005 Stock Incentive Plan constitute your entire agreement with respect to this Award and may not be modified adversely to your interest except by means of a writing signed by the Company and you.
GRANTEE: SUNPOWER CORPORATION
_________________________ By:
Signature Name:
Title:
_________________________
Print Name
SECOND AMENDED AND RESTATED
SUNPOWER CORPORATION 2005 STOCK INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
EXHIBIT A
1. Grant. The Company hereby grants to ________ (the “Grantee”) an award of Restricted Stock Units (“RSUs”), as set forth in the Notice of Grant of Restricted Stock Units (the “Notice of Grant”) and subject to the terms and conditions in this Restricted Stock Unit Agreement and the Second Amended and Restated SunPower Corporation 2005 Stock Incentive Plan, as may be amended from time to time (the “Plan”). The term “Restricted Stock Units” shall have the same meaning as that ascribed to the term “Stock Units” in the Plan. All terms used herein with initial capital letters and not otherwise defined herein or in the Notice of Grant that are defined in the Plan shall have the meanings assigned to them in the Plan.
2. Payment of RSUs. The RSUs covered by this Restricted Stock Unit Agreement shall become payable to Grantee if they become nonforfeitable in accordance with Section 3 (Vesting Schedule) hereof.
3. Vesting Schedule. Subject to Section 4 (Forfeiture upon Termination of Service), the Grantee’s right to receive the Shares subject to the RSUs awarded by this Restricted Stock Unit Agreement will vest in the Grantee according to the vesting schedule specified in the Notice of Grant.
4. Forfeiture upon Termination of Service. Notwithstanding any contrary provision of this Restricted Stock Unit Agreement or the Notice of Grant, if the Grantee terminates Service with the Company for any or no reason prior to vesting, the unvested RSUs awarded by this Restricted Stock Unit Agreement will thereupon be forfeited at no cost to the Company.
5. Form and Time of Payment of RSUs. Except as otherwise provided for in Section 8 (Adjustments), payment for the RSUs shall be made in form of the Shares at the time they become nonforfeitable in accordance with Section 3 (Vesting Schedule) hereof.
6. No Dividend Equivalents. The Grantee of RSUs shall not be entitled to dividend equivalents.
7. Grant is Not Transferable. Subject to the provisions of Section 10(f) of the Plan regarding the designation of beneficiaries, neither the RSUs granted hereby nor any interest therein or in the Shares related thereto shall be transferable other than by will or the laws of descent and distribution prior to payment.
8. Adjustments. In the event of any change in the aggregate number of outstanding Shares by reason of (a) any stock dividend, extraordinary dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Company, or (b) any
Change in Control, merger, consolidation, spin-off, split-off, spin-out, split-up, reorganization or partial or complete liquidation, or other distribution of assets, issuance of rights or warrants to purchase securities, or (c) any other corporate transaction or event having an effect similar to any of the foregoing, then the Board of Directors (or the Committee) shall adjust the number of RSUs then held by the Grantee in such manner as to prevent dilution or enlargement of the rights of the Grantee that otherwise would result from such event. Moreover, in the event of any such transaction or event, the Board of Directors (or the Committee), in its discretion, may provide in substitution for any or all of the Grantee’s rights under this Restricted Stock Unit Agreement such alternative consideration as it may determine to be equitable in the circumstances.
9. Compliance with Section 409A of the Code. To the extent applicable, it is intended that this Restricted Stock Unit Agreement and the Plan comply with the provisions of Section 409A of the Code, so that the income inclusion provisions of Section 409A(a)(1) do not apply to the Grantee. This Restricted Stock Unit Agreement and the Plan shall be administered in a manner consistent with this intent.
10. No Service Contract. The grant of the RSUs to the Grantee is a voluntary, discretionary bonus being made on a one-time basis and it does not constitute a commitment to make any future awards. The grant of the RSUs and any payments made hereunder will not be considered salary or other compensation for purposes of any severance pay or similar allowance, except as otherwise required by law. Nothing in this Restricted Stock Unit Agreement will give the Grantee any right to continue Service with the Company or any Subsidiary, as the case may be, or interfere in any way with the right of the Company or a Subsidiary to terminate the Service of the Grantee.
11. No Effect on Service. The Grantee’s Service with the Company and its Subsidiaries is on an at-will basis only. Accordingly, the terms of the Grantee’s Service with the Company and its Subsidiaries will be determined from time to time by the Company or the Subsidiary to which the Grantee provides Service (as the case may be), and the Company or the Subsidiary will have the right, which is hereby expressly reserved, to terminate or change the terms of the Service of the Grantee at any time for any reason whatsoever, with or without good cause or notice.
12. Address for Notices. Any notice to be given to the Company under the terms of this Restricted Stock Unit Agreement will be addressed to the Company at 3939 North First Street, San Jose, California 95134, Attn: Treasury, or at such other address as the Company may hereafter designate in writing or electronically.
13. Taxes and Withholding. To the extent that the Company is required to withhold any federal, state, local or foreign tax in connection with any delivery of Shares pursuant to this Restricted Stock Unit Agreement, and the amounts available to the Company are insufficient, it shall be a condition to the receipt of such delivery that the Grantee make arrangements satisfactory to the Company for payment of the balance of such taxes required to be withheld. Unless otherwise determined by the Committee, this tax withholding obligation shall be satisfied by the retention by the Company of Shares otherwise deliverable pursuant to this award; provided, however, that the Shares retained for payment of the tax must satisfy the minimum tax withholding amount permissible under the method that results in the least amount withheld.
14. Plan Governs. This Restricted Stock Unit Agreement and the Notice of Grant are subject to all terms and provisions of the Plan. In the event of a conflict between one or more provisions of this Restricted Stock Unit Agreement or the Notice of Grant and one or more provisions of the Plan, the provisions of the Plan will govern.
15. Committee Authority. The Committee will have the power to interpret the Plan and this Restricted Stock Unit Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any RSUs have vested). All actions taken and all interpretations and determinations made by the Committee in good faith will be final and binding upon the Grantee, the Company and all other interested persons. No member of the Committee will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Restricted Stock Unit Agreement.
16. Data Privacy. Information about the Grantee and the Grantee’s participation in the Plan may be collected, recorded, and held, used and disclosed for any purpose related to the administration of the Plan. The Grantee understands that such processing of this information may need to be carried out by the Company and its Subsidiaries and by third party administrators whether such persons are located within the Grantee’s country or elsewhere, including the United States of America. The Grantee consents to the processing of information relating to the Grantee and the Grantee’s participation in the Plan in any one or more of the ways referred to above.
17. Amendments. Any amendment to the Plan shall be deemed to be an amendment to this Restricted Stock Unit Agreement to the extent that the amendment is applicable hereto; provided, however, that no amendment shall adversely affect the rights of the Grantee under this Restricted Stock Unit Agreement without the Grantee’s consent.
18. Severability. If any provision of this Restricted Stock Unit Agreement or the application of any provision hereof to any person or circumstances is held invalid or unenforceable, the remainder of this Restricted Stock Unit Agreement and the application of such provision in any other person or circumstances shall not be affected, and the provisions so held to be invalid or unenforceable shall be reformed to the extent (and only to the extent) necessary to make it enforceable and valid.
19. Successors and Assigns. Without limiting Section 7 (Grant is Not Transferable) hereof, the provisions of this Restricted Stock Unit Agreement shall inure to the benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and assigns of the Grantee, and the successors and assigns of the Company.
20. Governing Law. This Restricted Stock Unit Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of Delaware, without giving effect to any principle of law that would result in the application of the law of any other jurisdiction.
SECOND AMENDED AND RESTATED
SUNPOWER CORPORATION 2005 STOCK INCENTIVE PLAN
NOTICE OF GRANT OF RESTRICTED STOCK UNITS
Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Notice of Grant.
You have been granted the number of Restricted Stock Units (“RSUs”) in the amount and on the date, and subject to the other terms indicated in the “Summary of Award” on the online acceptance web page.
You will not receive a certificate representing the Shares upon the RSUs becoming nonforfeitable, unless and until you have made satisfactory arrangements with the Company with respect to the payment of any income, employment and other taxes which the Company determines must be withheld with respect to such Shares upon the RSUs becoming nonforfeitable. You hereby agree to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions relating to the Plan and this Award.
By checking the boxes on Step 2 of the online acceptance, you agree that this Notice of Grant, the form of Restricted Stock Unit Agreement attached as Exhibit A hereto and the Second Amended and Restated SunPower Corporation 2005 Stock Incentive Plan constitute your entire agreement with respect to this Award and may not be modified adversely to your interest except by means of a writing signed by the Company and you.
SECOND AMENDED AND RESTATED
SUNPOWER CORPORATION 2005 STOCK INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
EXHIBIT A
1. Grant. The Company hereby grants you (the “Grantee”) an award of Restricted Stock Units (“RSUs”), as set forth in the Notice of Grant of Restricted Stock Units (the “Notice of Grant”) and subject to the terms and conditions in this Restricted Stock Unit Agreement and the Second Amended and Restated SunPower Corporation 2005 Stock Incentive Plan, as may be amended from time to time (the “Plan”). The term “Restricted Stock Units” shall have the same meaning as that ascribed to the term “Stock Units” in the Plan. All terms used herein with initial capital letters and not otherwise defined herein or in the Notice of Grant that are defined in the Plan shall have the meanings assigned to them in the Plan.
2. Payment of RSUs. The RSUs covered by this Restricted Stock Unit Agreement shall become payable to Grantee if they become nonforfeitable in accordance with Section 3 (Vesting Schedule) hereof.
3. Vesting Schedule. Subject to Section 4 (Forfeiture upon Termination of Service), the Grantee’s right to receive the Shares subject to the RSUs awarded by this Restricted Stock Unit Agreement will vest in the Grantee according to the vesting schedule specified separately by the Company to the Grantee.
4. Forfeiture upon Termination of Service. Notwithstanding any contrary provision of this Restricted Stock Unit Agreement or the Notice of Grant, if the Grantee terminates Service with the Company for any or no reason prior to vesting, the unvested RSUs awarded by this Restricted Stock Unit Agreement will thereupon be forfeited at no cost to the Company.
5. Form and Time of Payment of RSUs. Except as otherwise provided for in Section 8 (Adjustments), payment for the RSUs shall be made in form of the Shares at the time they become nonforfeitable in accordance with Section 3 (Vesting Schedule) hereof.
6. No Dividend Equivalents. The Grantee of RSUs shall not be entitled to dividend equivalents.
7. Grant is Not Transferable. Subject to the provisions of Section 10(f) of the Plan regarding the designation of beneficiaries, neither the RSUs granted hereby nor any interest therein or in the Shares related thereto shall be transferable other than by will or the laws of descent and distribution prior to payment.
8. Adjustments. In the event of any change in the aggregate number of outstanding Shares by reason of (a) any stock dividend, extraordinary dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Company, or (b) any
Change in Control, merger, consolidation, spin-off, split-off, spin-out, split-up, reorganization or partial or complete liquidation, or other distribution of assets, issuance of rights or warrants to purchase securities, or (c) any other corporate transaction or event having an effect similar to any of the foregoing, then the Board of Directors (or the Committee) shall adjust the number of RSUs then held by the Grantee in such manner as to prevent dilution or enlargement of the rights of the Grantee that otherwise would result from such event. Moreover, in the event of any such transaction or event, the Board of Directors (or the Committee), in its discretion, may provide in substitution for any or all of the Grantee’s rights under this Restricted Stock Unit Agreement such alternative consideration as it may determine to be equitable in the circumstances.
9. Compliance with Section 409A of the Code. To the extent applicable, it is intended that this Restricted Stock Unit Agreement and the Plan comply with the provisions of Section 409A of the Code, so that the income inclusion provisions of Section 409A(a)(1) do not apply to the Grantee. This Restricted Stock Unit Agreement and the Plan shall be administered in a manner consistent with this intent.
10. No Service Contract. The grant of the RSUs to the Grantee is a voluntary, discretionary bonus being made on a one-time basis and it does not constitute a commitment to make any future awards. The grant of the RSUs and any payments made hereunder will not be considered salary or other compensation for purposes of any severance pay or similar allowance, except as otherwise required by law. Nothing in this Restricted Stock Unit Agreement will give the Grantee any right to continue Service with the Company or any Subsidiary, as the case may be, or interfere in any way with the right of the Company or a Subsidiary to terminate the Service of the Grantee.
11. No Effect on Service. The Grantee’s Service with the Company and its Subsidiaries is on an at-will basis only. Accordingly, the terms of the Grantee’s Service with the Company and its Subsidiaries will be determined from time to time by the Company or the Subsidiary to which the Grantee provides Service (as the case may be), and the Company or the Subsidiary will have the right, which is hereby expressly reserved, to terminate or change the terms of the Service of the Grantee at any time for any reason whatsoever, with or without good cause or notice.
12. Address for Notices. Any notice to be given to the Company under the terms of this Restricted Stock Unit Agreement will be addressed to the Company at 3939 North First Street, San Jose, California 95134, Attn: Treasury, or at such other address as the Company may hereafter designate in writing or electronically.
13. Taxes and Withholding. To the extent that the Company is required to withhold any federal, state, local or foreign tax in connection with any delivery of Shares pursuant to this Restricted Stock Unit Agreement, and the amounts available to the Company are insufficient, it shall be a condition to the receipt of such delivery that the Grantee make arrangements satisfactory to the Company for payment of the balance of such taxes required to be withheld. Unless otherwise determined by the Committee, this tax withholding obligation shall be satisfied by the retention by the Company of Shares otherwise deliverable pursuant to this award; provided, however, that the Shares retained for payment of the tax must satisfy the minimum tax withholding amount permissible under the method that results in the least amount withheld.
14. Plan Governs. This Restricted Stock Unit Agreement and the Notice of Grant are subject to all terms and provisions of the Plan. In the event of a conflict between one or more provisions of this Restricted Stock Unit Agreement or the Notice of Grant and one or more provisions of the Plan, the provisions of the Plan will govern.
15. Committee Authority. The Committee will have the power to interpret the Plan and this Restricted Stock Unit Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any RSUs have vested). All actions taken and all interpretations and determinations made by the Committee in good faith will be final and binding upon the Grantee, the Company and all other interested persons. No member of the Committee will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Restricted Stock Unit Agreement.
16. Data Privacy. Information about the Grantee and the Grantee’s participation in the Plan may be collected, recorded, and held, used and disclosed for any purpose related to the administration of the Plan. The Grantee understands that such processing of this information may need to be carried out by the Company and its Subsidiaries and by third party administrators whether such persons are located within the Grantee’s country or elsewhere, including the United States of America. The Grantee consents to the processing of information relating to the Grantee and the Grantee’s participation in the Plan in any one or more of the ways referred to above.
17. Amendments. Any amendment to the Plan shall be deemed to be an amendment to this Restricted Stock Unit Agreement to the extent that the amendment is applicable hereto; provided, however, that no amendment shall adversely affect the rights of the Grantee under this Restricted Stock Unit Agreement without the Grantee’s consent.
18. Severability. If any provision of this Restricted Stock Unit Agreement or the application of any provision hereof to any person or circumstances is held invalid or unenforceable, the remainder of this Restricted Stock Unit Agreement and the application of such provision in any other person or circumstances shall not be affected, and the provisions so held to be invalid or unenforceable shall be reformed to the extent (and only to the extent) necessary to make it enforceable and valid.
19. Successors and Assigns. Without limiting Section 7 (Grant is Not Transferable) hereof, the provisions of this Restricted Stock Unit Agreement shall inure to the benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and assigns of the Grantee, and the successors and assigns of the Company.
20. Governing Law. This Restricted Stock Unit Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of Delaware, without giving effect to any principle of law that would result in the application of the law of any other jurisdiction.
