Exhibit
10.43
CKEAR SKIES SOLAR,
INC.
2009 EQUITY INCENTIVE
PLAN
1.
Purpose of the Plan.
This 2009
Equity Incentive Plan (the "Plan") is intended as an incentive, to
retain in the employ of and as directors, officers and employees of
and consultants and advisors to Clear Skies Solar, Inc., a Delaware
corporation (the "Company"), and any Subsidiary of the Company,
within the meaning of Section 424(f) of the United States Internal
Revenue Code of 1986, as amended (the "Code"), persons of training,
experience and ability, to attract new directors, officers,
consultants, advisors and employees whose services are considered
valuable, to encourage the sense of proprietorship and to stimulate
the active interest of such persons in the development and
financial success of the Company and its Subsidiaries.
It is further
intended that certain options granted pursuant to the Plan shall
constitute incentive stock options within the meaning of Section
422 of the Code (the "Incentive Options") while certain other
options granted pursuant to the Plan shall be nonqualified stock
options (the "Nonqualified Options"). Incentive Options and
Nonqualified Options are hereinafter referred to collectively as
"Options."
The Company
intends that the Plan meet the requirements of Rule 16b-3 ("Rule
16b-3") promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and that transactions of the type
specified in subparagraphs (c) to (f) inclusive of Rule 16b-3 by
officers and directors of the Company pursuant to the Plan will be
exempt from the operation of Section 16(b) of the Exchange Act.
Further, the Plan is intended to satisfy the performance-based
compensation exception to the limitation on the Company's tax
deductions imposed by Section 162(m) of the Code with respect to
those Options for which qualification for such exception is
intended. In all cases, the terms, provisions, conditions and
limitations of the Plan shall be construed and interpreted
consistent with the Company's intent as stated in this Section
I.
2.
Administration of the Plan.
The Board of
Directors of the Company (the "Board") shall appoint and maintain
as administrator of the Plan a Committee (the "Committee")
consisting of two or more directors who are (i) "Independent
Directors" (as such term is defined under the rules of the NASDAQ
Stock Market), (ii) "Non-Employee Directors" (as such term is
defined in Rule 16b-3) and (iii) "Outside Directors" (as such term
is defined in Section 162(m) of the Code), which shall serve at the
pleasure of the Board. The Committee, subject to Sections 3, 5 and
6 hereof, shall have full power and authority to designate
recipients of Options and restricted stock ("Restricted Stock") and
to determine the terms and conditions of the respective Option and
Restricted Stock agreements (which need not be identical) and to
interpret the provisions and supervise the administration of the
Plan. The Committee shall have the authority, without limitation,
to designate which Options granted under the Plan shall be
Incentive Options and which shall be Nonqualified Options. To the
extent any Option does not qualify as an Incentive Option, it shall
constitute a separate Nonqualified Option.
Subject to the
provisions of the Plan, the Committee shall interpret the Plan and
all Options and Restricted Stock granted under the Plan, shall make
such rules as it deems necessary for the proper administration of
the Plan, shall make all other determinations necessary or
advisable for the administration of the Plan and shall correct any
defects or supply any omission or reconcile any inconsistency in
the Plan or in any Options or Restricted Stock granted under the
Plan in the manner and to the extent that the Committee deems
desirable to carry into effect the Plan or any Options or
Restricted Stock. The act or determination of a majority of the
Committee shall be the act or determination of the Committee and
any decision reduced to writing and signed by all of the members of
the Committee shall be fully effective as if it had been made by a
majority of the Committee at a meeting duly held for such purpose.
Subject to the provisions of the Plan, any action taken or
determination made by the Committee pursuant to this and the other
Sections of the Plan shall be conclusive on all parties.
In the event
that for any reason the Committee is unable to act or if the
Committee at the time of any grant, award or other acquisition
under the Plan does not consist of two or more Non-Employee
Directors, or if there shall be no such Committee, or if the Board
otherwise determines to administer the Plan, then the Plan shall be
administered by the Board, and references herein to the Committee
(except in the proviso to this sentence) shall be deemed to be
references to the Board, and any such grant, award or other
acquisition may be approved or ratified in any other manner
contemplated by subparagraph (d) of Rule 16b-3; provided, however,
that grants to the Company’s Chief Executive Officer or to
any of the Company’s other four most highly compensation
officers that are intended to qualify as performance-based
compensation under Section 162 (m) of the Code may only be granted
by the Committee.
3.
Designation of Optionees and Grantees.
The persons
eligible for participation in the Plan as recipients of Options
(the "Optionees") or Restricted Stock (the "Grantees" and together
with Optionees, the "Participants") shall include directors,
officers and employees of and consultants and advisors to, the
Company or any Subsidiary; provided that Incentive Options may only
be granted to employees of the Company and any Subsidiary. In
selecting Participants, and in determining the number of shares to
be covered by each Option or award of Restricted Stock granted to
Participants, the Committee may consider any factors it deems
relevant, including, without limitation, the office or position
held by the Participant or the Participant's relationship to the
Company, the Participant's degree of responsibility for and
contribution to the growth and success of the Company or any
Subsidiary, the Participant's length of service, promotions and
potential. A Participant who has been granted an Option or
Restricted Stock hereunder may be granted an additional Option or
Options, or Restricted Stock if the Committee shall so
determine.
4.
Stock Reserved for the Plan.
Subject to
adjustment as provided in Section 8 hereof, a total of 2,500,000
shares of the Company's common stock, par value $0.001 per share
(the "Stock"), shall be subject to the Plan. The maximum number of
shares of Stock that may be subject to Options granted under the
Plan to any individual in any calendar year shall not exceed
2,400,000 shares, and the method of counting such shares shall
conform to any requirements applicable to performance-based
compensation under Section 162(m) of the Code, if qualification as
performance-based compensation under Section 162(m) of the Code is
intended. The shares of Stock subject to the Plan shall consist of
unissued shares, treasury shares or previously issued shares held
by any Subsidiary of the Company, and such number of shares of
Stock shall be and is hereby reserved for such purpose. Any of such
shares of Stock that may remain unissued and that are not subject
to outstanding Options at the termination of the Plan shall cease
to be reserved for the purposes of the Plan, but until termination
of the Plan the Company shall at all times reserve a sufficient
number of shares of Stock to meet the requirements of the Plan.
Should any Option or award of Restricted Stock expire or be
canceled prior to its exercise or vesting in full or should the
number of shares of Stock to be delivered upon the exercise or
vesting in full of an Option or award of Restricted Stock be
reduced for any reason, the shares of Stock theretofore subject to
such Option or Restricted Stock may be subject to future Options or
Restricted Stock under the Plan, except where such reissuance is
inconsistent with the provisions of Section 162(m) of the Code
where qualification as performance-based compensation under Section
162(m) of the Code is intended.
5.
Terms and Conditions of Options.
Options granted
under the Plan shall he subject to the following conditions and
shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Committee shall
deem desirable:
(a) Option
Price. The purchase price of each share of Stock purchasable under
an Incentive Option shall be determined by the Committee at the
time of grant, but shall not be less than 100% of the Fair Market
Value (as defined below) of such share of Stock on the date the
Option is granted; provided, however, that with respect to an
Optionee who, at the time such Incentive Option is granted, owns
(within the meaning of Section 424(d) of the Code) more than 10% of
the total combined voting power of all classes of stock of the
Company or of any Subsidiary, the purchase price per share of Stock
shall be at least 110% of the Fair Market Value per share of Stock
on the date of grant. The purchase price of each share of Stock
purchasable under a Nonqualified Option shall not be less than 100%
of the Fair Market Value of such share of Stock on the date the
Option is granted. The exercise price for each Option shall be
subject to adjustment as provided in Section 8 below.
"Fair Market
Value" means the closing price on the final trading day immediately
prior to the grant date of the Stock on the principal securities
exchange on which shares of Stock are listed (if the shares of
Stock are so listed), or on the NASDAQ Stock Market or OTC Bulletin
Board (if the shares of Stock are regularly quoted on the NASDAQ
Stock Market or OTC Bulletin Board, as the case may be), or, if not
so listed, the mean between the closing bid and asked prices of
publicly traded shares of Stock in the over the counter market, or,
if such bid and asked prices shall not be available, as reported by
any nationally recognized quotation service selected by the
Company, or as determined by the Committee in a manner consistent
with the provisions of the Code. Anything in this Section 5(a) to
the contrary notwithstanding, in no event shall the purchase price
of a share of Stock be less than the minimum price permitted under
the rules and policies of any national securities exchange on which
the shares of Stock are listed.
(b) Option
Term. The term of each Option shall be fixed by the Committee, but
no Option shall be exercisable more than ten years after the date
such Option is granted and in the case of an Incentive Option
granted to an Optionee who, at the time such Incentive Option is
granted, owns (within the meaning of Section 424(d) of the Code)
more than 10% of the total combined voting power of all classes of
stock of the Company or of any Subsidiary, no such Incentive Option
shall be exercisable more than five years after the date such
Incentive Option is granted.
(c) Exercisability.
Subject to Section 5(j) hereof, Options shall be exercisable at
such time or times and subject to such terms and conditions as
shall be determined by the Committee at the time of grant;
provided, however, that in the absence of any Option vesting
periods designated by the Committee at the time of grant, Options
shall vest and become exercisable as to one- third of the total
number of shares subject to the Option on each of the first, second
and third anniversaries of the date of grant; and provided further
that no Options shall he exercisable until such time as any vesting
limitation required by Section 16 of the Exchange Act, and related
rules, shall be satisfied if such limitation shall be required for
continued validity of the exemption provided under Rule
16b-3(d)(3).
Upon the
occurrence of a "Change in Control" (as hereinafter defined), the
Committee may accelerate the vesting and exercisability of
outstanding Options, in whole or in part, as determined by the
Committee in its sole discretion. In its sole discretion, the
Committee may also determine that, upon the occurrence of a Change
in Control, each outstanding Option shall terminate within a
specified number of days after notice to the Optionee thereunder,
and each such Optionee shall receive, with respect to each share of
Company Stock subject to such Option, an amount equal to the excess
of the Fair Market Value of such shares immediately prior to such
Change in Control over the exercise price per share of such Option;
such amount shall he payable in cash, in one or more kinds of
property (including the property, if any, payable in the
transaction) or a combination thereof, as the Committee shall
determine in its sole discretion.
For purposes of
the Plan, unless otherwise defined in an employment agreement
between the Company and the relevant Optionee. a Change in Control
shall be deemed to have occurred if:
a tender offer (or series of related offers)
shall be made and consummated for the ownership of 50% or more of
the outstanding voting securities of the Company, unless as a
result of such tender offer more than 50% of the outstanding voting
securities of the surviving or resulting corporation shall be owned
in the aggregate by the stockholders of the Company (as of the time
immediately prior to the commencement of such offer), any employee
benefit plan of the Company or its Subsidiaries, and their
affiliates;
the Company shall be merged or consolidated with
another corporation, unless as a result of such merger or
consolidation more than 50% of the outstanding voting securities of
the surviving or resulting corporation shall be owned in the
aggregate by the stockholders of the Company (as of the time
immediately prior to such transaction), any employee benefit plan
of the Company or its Subsidiaries, and their
affiliates;
the Company
shall sell substantially all of its assets to another corporation
that is not wholly owned by the Company, unless as a result of such
sale more than 50% of such assets shall be owned in the aggregate
by the stockholders of the Company (as of the time immediately
prior to such transaction), any employee benefit plan of the
Company or its Subsidiaries and their affiliates; or
a Person (as
defined below) shall acquire 50% or more of the outstanding voting
securities of the Company (whether directly, indirectly,
beneficially or of record), unless as a result of such acquisition
more than 50% of the outstanding voting securities of the surviving
or resulting corporation shall be owned in the aggregate by the
stockholders of the Company (as of the time immediately prior to
the first acquisition of such securities by such Person), any
employee benefit plan of the Company or its Subsidiaries, and their
affiliates,
Notwithstanding
the foregoing, if Change of Control is defined in an employment
agreement between the Company and the relevant Optionee, then, with
respect to such Optionee, Change of Control shall have the meaning
ascribed to it in such employment agreement.
For purposes of this Section 5(c), ownership of
voting securities shall take into account and shall include
ownership as determined by applying the provisions of Rule
13d-3(d)(I)(i) (as in effect on the date hereof) under the Exchange
Act. In addition, for such purposes, "Person" shall have the
meaning given in Section 3(a)(9) of the Exchange Act, as modified
and used in Sections 13(d) and 14(d) thereof; provided, however,
that a Person shall not include (A) the Company or any of its
Subsidiaries; (B) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its
Subsidiaries; (C) an underwriter temporarily holding securities
pursuant to an offering of such securities; or (D) a corporation
owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportion as their ownership of stock of
the Company.
(d) Method
of Ex
