SOLAR POWER, INC.
Exhibit
10.28
NEITHER
THIS OPTION NOR THE SECURITIES INTO WHICH THIS OPTION IS EXERCISABLE HAVE
BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM
THE REGISTRATION REQUIREMENTS THEREUNDER AND IN COMPLIANCE WITH APPLICABLE
STATE
SECURITIES OR BLUE SKY LAWS.
________________,
200__
[NAME
OF
PARTICIPANT]
[Address
of Participant]
Dear
Participant:
Pursuant
to the terms and conditions of the Solar Power, Inc. 2006 Equity Incentive
Plan (the
“Plan”), you have been granted a Non-Qualified
Stock Option to
purchase _________ shares
of
common stock (the “Option”) as outlined below.
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Granted
To:
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_____________________
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Grant
Date:
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_____________________
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Options
Granted:
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_____________________
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Exercise
Price per Share:
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_____________________
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Total
Cost to Exercise:
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_____________________
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Expiration
Date:
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_____________________
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Vesting
Schedule:
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____%
per year for __ years
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___%
on
__________
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___%
on
__________
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___%
on
__________
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___%
on
__________
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Any
portion of this Option not exercised prior to the Expiration Date will become
null and void.
This
Option grant is subject to all of the Terms and Conditions attached hereto
and
incorporated herein by reference. The capitalized terms used in this Option
will
have the same meanings as
set
forth in the Plan. A
Summary
of the Plan and a copy of the Plan is provided herewith.
SOLAR
POWER, INC. PARTICIPANT
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By:
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____________________________(signature)
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___________________________
(signature)
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_______________________________(title)
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Date:
___________
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Date:
_____________
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Notice:
All notices to be given by either party to the other will be in writing and
may
be transmitted by overnight courier; or mail, registered or certified, postage
prepaid with return receipt requested; or personal delivery; or facsimile
transmission, provided,
however, that notices of
change of address or facsimile
number will be effective only upon actual receipt by the other party. Notices
will be delivered to Solar Power, Inc., 0000 Xxxxxx Xxxxxxxx X.x.,
Xxxxxxx Xxx, XX 00000 Attn: Xxxxx Xxxxxxxx, and to the employee at the
last known address of the employee as provided to Solar Power,
Inc.
1
Term
And Conditions Of
Nonqualified
Stock Option Agreement
Solar
Power, Inc. is referred to as "Company" and Employee granted option is referred
to as "Participant".
1. Plan
Controls.
The
terms contained in the Plan are incorporated into and made a part of this
Option
and this Option will be governed by and construed in accordance with the
Plan.
In the event of any actual or alleged conflict between the provisions of
the
Plan and the provisions of this Option, the provisions of the Plan will be
controlling and determinative.
2. Manner
of Exercise.
The
Vested Portion of this Option may be exercised from time to time, in whole
or in
part, by
delivery to the Company at
its
principal office
of a
stock option exercise agreement (the “Exercise Agreement”) substantially
in the form attached hereto (the “Form”), which
need not be the same for each Participant, stating the number of Shares being
purchased, the restrictions imposed on the Shares purchased under such Exercise
Agreement, if any, and such representations and agreements regarding the
Participant’s investment intent and access to information and other matters, if
any, as may be required or desirable by the Company to comply with applicable
securities laws. The Form must
be
duly executed by Participant and be accompanied by payment in cash, or by
check
payable to the Company, in
full
for the Exercise Price for the number of Shares being purchased. Alternatively,
but only if the Administrator authorizes at the time of exercise at its sole
discretion, and where permitted by law (i) by surrender of shares of Stock
of
the Company that have been owned by the Participant for more than six (6)
months
or lesser period if the surrender of Shares is otherwise exempt from Section
16
of the Exchange Act and if such shares were purchased from the Company by
use of
a promissory note, such note has been fully paid with respect to such shares,
(ii) by forfeiture of Shares equal to the value of the exercise price pursuant
to a “deemed net-stock exercise” as provided for in the Plan, (iii) by broker
sale by following the required instructions therefore including as so authorized
by the Administrator and its sole discretion instructions to a broker to
deliver
promptly to the Company the amount of sale or loan proceeds necessary to
pay the
exercise price and the amount of any required tax or other withholding
obligations, or (iv) by any combination of the foregoing methods of payment
or
any other consideration or method of payment.
3. Privileges
Of Stock Ownership.
Participant will not have any of the rights of a stockholder with respect
to any
Shares until the Shares are issued to Participant. The Company will issue
(or
cause to be issued) such stock certificate promptly upon exercise of this
Option. All certificates for Shares or other securities delivered will be
subject to such stock transfer orders, legends and other restrictions as
the
Administrator may deem necessary or advisable, including restrictions under
any
applicable federal, state or foreign securities law, or any rules, regulations
and other requirements of the SEC or any stock exchange or automated quotation
system upon which the Shares may be listed or quoted. No adjustment will
be made
for a dividend or other right for which the record date is prior to the date
the
stock certificate is issued.
4. Notification
of Disposition.
Participant agrees to notify the Company in writing within 30 days of any
disposition of Xxxxxx acquired pursuant to the exercise of this Option.
5. Withholding
.
The
Company may require the Participant to remit to
the
Company by cash or check payable to the Company, an amount sufficient to
satisfy
federal, state and local taxes and FICA withholding requirements whenever
Shares
are to be issued upon exercise of this Option or Shares are forfeited pursuant
to the “deemed net-stock exercise”, or when under applicable tax laws,
Participant incurs tax liability in connection with the exercise or vesting
of
this Option. Any such payment must be made promptly when the amount of such
obligation becomes determinable.
In lieu
thereof, the Company may withhold the amount of such taxes from any other
sums
due or to become due from the Company as the Administrator will
prescribe.
To
the
extent permissible by law, and at its sole discretion, the Administrator
may
permit the Participant to satisfy any such withholding tax at the time of
exercise, in whole or in part, with shares of Stock up to an amount not greater
than the Company’s minimum statutory withholding rate for federal and state tax
purposes, including payroll taxes. The Administrator may exercise its
discretion, by (i) directing the Company to apply shares of Stock to which
the
Participant is entitled as a result of the exercise of this Option, or (ii)
delivering to the Company shares of Stock owned by the Participant for more
than
six (6) months, unless the delivery of the Shares is otherwise exempt from
Section 16 of the Exchange Act; but Participant may only satisfy his or her
withholding obligation with shares of Stock that are not subject to any
repurchase, forfeiture, unfulfilled vesting or other similar
requirements.
2
6. Exercise
After Certain Events.
6.1. Termination
of All Services.
If for
any reason other than Retirement, permanent and total Disability or death,
Participant terminates all services to the Company, as an employee, consultant,
advisor, or in a similar capacity, vested Options held at the date of such
termination may be exercised, in whole or in part, at any time within three
(3)
months after the date of such termination (but in no event after the earlier
of
(i) the expiration of this Option and (ii) 10 years from the Grant Date).
6.2 Retirement.
If
Participant ceases all services to the Company as an employee, consultant,
advisor or in a similar capacity as a result of Retirement, Participant need
not
exercise this Option within three (3) months of termination of such services
but
will be entitled to exercise vested Options held at the date of such termination
within the maximum term of this Option. The term “Retirement” as used herein
means such termination of services as will entitle Participant to early or
normal retirement benefits under any then existing pension or salary
continuation plans of the Company excluding 401(k) participants (except as
otherwise covered under other pension or salary continuation plans).
6.3 Permanent
Disability and Death.
If
Participant becomes permanently and totally Disabled while rendering services
to
the Company as an employee, consultant, advisor or in a similar capacity,
or
dies while employed by the Company (including as an Officer of the Company)
or
death occurs within three (3) months thereafter, vested Options then held
may be
exercised by Participant, Participant’s personal representative, or by the
person to whom this Option is transferred by will or the laws of descent
and
distribution, in whole or in part, at any time within 1 year after the
termination of services because of the Disability or death (but in no event
after the earlier of (i) the expiration date of this Option, and (ii) 10
years
from the Grant Date).
6.4 Cancellation
of Awards.
In the
event Participant’s services to the Company have been terminated for “Cause”, he
or she will immediately forfeit all rights to this Option. The determination
by
the Board that termination was for Cause will be final and conclusive. In
making
its determination, the Board will give Participant an opportunity to appear
and
be heard at a hearing before the full Board and present evidence on the
Participant's behalf.
7. Restrictions
on Transfer of Option.
This
Option will not be transferable by Participant other than by will or by the
laws
of descent and distribution and during the lifetime of Participant, only
Participant, his guardian or legal representative may exercise this
Option
except
that Participant may transfer this Option to a Spouse pursuant
to a
property settlement, agreement, or court order incident to a divorce. In
addition, at the discretion of the Administrator, this Option may be transferred
without payment of consideration to the following family members of Participant,
including adoptive relationships: a child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, sister-in-law, niece, nephew,
former spouse (whether by gift or pursuant to a domestic relations order),
any
person sharing the employee’s household (other than a tenant or employee), a
family-controlled partnership, corporation, limited liability company and
trust,
or a foundation in which family members heretofore described control the
management of assets. The assigned portion may only be exercised by the person
or persons who acquire a proprietary interest in this Option pursuant to
the
assignment. The terms applicable to the assigned portion will be the same
as
those in effect for this Option immediately prior to such assignment and
will be
set forth in such documents issued to the assignee as the Administrator may
deem
appropriate. A request to assign an Option may be made only by delivery to
the
Company of a written stock option assignment request in a form approved by
the
Administrator, stating the number of Options and Shares underlying Options
requested for assignment, that no consideration is being paid for the
assignment, identifying the proposed transferee, and containing such other
representations and agreements regarding the Participant’s investment intent and
access to information and other matters, if any, as may be required or desirable
by the Company to comply with applicable securities laws.
Participant
may designate a beneficiary to exercise this Option after Participant's death.
If
no
beneficiary has been designated or survives Participant, payment will be
made to
Participant’s estate. Subject to the foregoing, a beneficiary designation may be
changed or revoked by Participant at any time, provided the change or revocation
is filed with the Administrator.
8. Dissolution,
Liquidation and Merger.
3
8.1. Company
Not The Survivor.
In the
event of a dissolution or liquidation of the Company, a merger, consolidation,
combination or reorganization in which the Company is not the surviving
corporation, or a sale of substantially all of the assets of the Company
(as
determined in the sole discretion of the Board), the Administrator, in its
absolute discretion, may cancel this Option upon payment in cash or stock,
or
combination thereof, as determined by the Board, to Participant of the amount
by
which any cash and the fair market value of any other property which Participant
would have received as consideration for the Shares covered by this Option
if
the Option had been exercised before such liquidation, dissolution, merger,
consolidation, combination, reorganization or sale exceeds the Exercise Price
of
this Option or negotiate to have this Option assumed by the surviving
corporation. In addition to the foregoing, in the event of a dissolution
or
liquidation of the Company, or a merger, consolidation, combination or
reorganization, in which the Company is not the surviving corporation, the
Administrator, in its absolute discretion, may accelerate the time within
which
this Option may be exercised,
provided
however, that the Change of Control provisions of the Plan will control with
respect to acceleration in vesting in the event of a merger, consolidation,
combination or reorganization that results in a Change of Control as so defined.
8.2. Company
is the Survivor.
In the
event of a merger, consolidation, combination or reorganization in which
the
Company is the surviving corporation, the Board will determine the appropriate
adjustment of the number and kind of securities with respect to which
outstanding Options may be exercised, and the exercise price at which
outstanding Options may be exercised. The Board will determine, in its sole
and
absolute discretion, when the Company will be deemed to survive for purposes
of
the Plan.
9. No
Obligation To Employ.
Nothing
in the Plan or this Option will confer or be deemed to confer on any Participant
any right to continue in the employ of, or to continue any other relationship
with, the Company or a Subsidiary, or to limit in any way the right of the
Company or a Subsidiary, to terminate Participant's employment or other
relationship at any time, with or without cause.
10.
Compliance
With Code Section 162(m).
At all
times when the Administrator determines that compliance with Code Section
162(m)
is required or desired, this Option if granted to a Named Executive Officer
will
comply with the requirements of Section 162(m). In addition, in the event
that
changes are made to Section 162(m) to permit greater flexibility with respect
to
this Option, the Administrator may, subject to this provision make any
adjustments it deems appropriate.
11. Compliance
With Code Section 409A.
Notwithstanding any provision of the Plan to the contrary, if any provision
of
the Plan or this Option contravenes any regulations or Treasury guidance
promulgated under Code Section 409A or could cause this Option or any Award
to
be subject to the interest and penalties under Section 409A, such provision
of
the Plan, this Option will be modified to maintain, to the maximum extent
practicable, the original intent of the applicable provision without violating
the provisions of Section 409A. In addition, in the event that changes are
made
to Section 409A to permit greater flexibility with respect to this Option,
the
Administrator may make any adjustments it deems appropriate.
12. Code
Section 280G.
Notwithstanding any other provision of the Plan to the contrary, if the right
to
receive or benefit from this Option, either alone or together with payments
that
Participant has a right to receive from the Company, would constitute a
"parachute payment" (as defined in Code Section 280G), all such payments
will be
reduced to the largest amount that will result in no portion being subject
to
the excise tax imposed by Code Section 4999.
13. Securities
Law And Other Regulatory Compliance.
The
Company will not be obligated to issue any Shares upon exercise of this Option
unless such Shares are at that time effectively registered or exempt from
registration under the federal securities laws and the offer and sale of
the
Shares are otherwise in compliance with all applicable securities laws.
The
Company will be under no obligation to register the Shares with the SEC or
to
effect compliance with the registration, qualification or listing requirements
of any state securities laws, stock exchange or automated quotation system,
and
the Company will have no liability for any inability or failure to do so.
Upon
exercising all or any portion of this Option, Participant may be required
to
furnish representations or undertakings deemed appropriate by the Company
to
enable the offer and sale of the Shares or subsequent transfers of any interest
in such Shares to comply with applicable securities laws. Evidences of ownership
of Shares acquired upon exercise of this Option will bear any legend required
by, or useful for purposes of compliance with, applicable securities laws,
the
Plan or this Option.
14. Arbitration.
4
14. General.
Any
controversy, dispute, or claim arising out of or relating to this Option
which
cannot be amicably settled within thirty (30) days (or such longer period
as may
be mutually agreed upon) from the date either the Company or Participant
notifies the other in writing that such dispute or disagreement exists will
be
settled by arbitration. Said arbitration will be conducted in accordance
with
the Commercial Arbitration Rules of the American Arbitration
Association.
14.2 Injunctive
Actions.
Nothing
herein contained will bar the right of either the Company or Participant
to seek
to obtain injunctive relief or other provisional remedies against threatened
or
actual conduct that will cause loss or damages under the usual equity rules
including the applicable rules for obtaining preliminary injunctions and
other
provisional remedies.
15. Tax
Effect.
The
federal and state tax consequences of stock options are complex and subject
to
change. Each person should consult with his or her tax advisor before exercising
this Option or disposing of any Shares acquired upon the exercise of this
Option.
16. Entire
Agreement.
This
Option Grant including the Terms and Conditions and the Plan constitute the
entire contract between the Company and Participant hereto with regard to
the
subject matter hereof. They supersede any other agreements, representations
or
understandings (whether oral or written and whether express or implied),
which
relate to the subject matter hereof.
17. Severability.
In the
event that any portion of this Agreement is found to be unenforceable, the
remaining portions of this Agreement will remain valid and in full force
and
effect.
18. Choice
of Law.
This
Agreement will be governed by, and construed in accordance with, the laws
of the
State of California, as such laws are applied to contracts entered into and
performed in such State.
19. Binding
Effect.
This
Agreement will inure to the benefit of, and be binding upon, the parties
hereto
and their respective heirs, executors, and successors.
5
Notice
of Intent to Exercise Solar Power, Inc. Stock Options
To:
Stock Administrator
I
hereby give notice to Solar Power, Inc. of my intent to exercise the following
stock options on ______________, 200__:
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(A)
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(B)
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(C)
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(B
X C)
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Grant
Date
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#Options
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Strike
Price
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Payment
Due
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Method
of Payment
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_____
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Personal
Check
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_____
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Exchange
of Previously Owned Shares
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_____
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Deemed
Net-Stock Exercise
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_____
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Broker
Check (Same Day Sale)
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Brokerage
Company _________________________
Your
method of payment may result in a tax liability including alternative minimum
tax. You are
strongly
urged to consult your tax advisor before exercising your
options.
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____________________________________
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_____________________
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Signature
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Date
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____________________________________
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Name
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