Exhibit
10.45
CLEAR SKIES SOLAR, INC.
2009 EQUITY INCENTIVE
PLAN
NONQUALIFIED STOCK OPTION
AGREEMENT
This
NONQUALIFIED STOCK OPTION AGREEMENT (the “Option
Agreement”), dated as of
the day
of ,
20 (the “Grant Date”), is
between Clear Skies Solar, Inc., a Delaware corporation (the
“Company”),
and (the
“Optionee”), a consultant or advisor to the Company or
a Subsidiary of the Company (a “Related Corporation”),
pursuant to the Clear Skies Solar, Inc. 2009 Equity Incentive Plan
(the “Plan”).
WHEREAS, the
Company desires to give the Optionee the opportunity to purchase
shares of common stock of the Company, par value $0.001
(“Common Shares”) in accordance with the provisions of
the Plan, a copy of which is attached hereto;
NOW, THEREFORE,
in consideration of the mutual covenants hereinafter set forth and
for other good and valuable consideration, the parties hereto,
intending to be legally bound hereby, agree as follows:
1.
Grant of Option . The Company hereby grants to the Optionee
the right and option (the “Option”) to purchase all or
any part of an aggregate
of ( )
Common Shares. The Option is in all respects limited and
conditioned as hereinafter provided, and is subject in all respects
to the terms and conditions of the Plan now in effect and as it may
be amended from time to time (but only to the extent that such
amendments apply to outstanding options). Such terms and conditions
are incorporated herein by reference, made a part hereof, and shall
control in the event of any conflict with any other terms of this
Option Agreement. The Option granted hereunder is intended to be a
nonqualified stock option (“NQSO”) and not an
incentive stock option (“ISO”) as such term is defined
in section 422 of the Internal Revenue Code of 1986, as amended
(the “Code”).
2.
Exercise Price . The exercise price of the Common Shares
covered by this Option shall be
$ per share. It is the
determination of the committee administering the Plan (the
“Committee”) that on the Grant Date the exercise price
was not less than the greater of (i) 100% of the “Fair Market
Value” (as defined in the Plan) of a Common Share, or (ii)
the par value of a Common Share.
3.
Term . Unless earlier terminated pursuant to any provision
of the Plan or of this Option Agreement, this Option shall expire
on April 13, 2019 (the “Expiration Date”), which date
is not more than 10 years from the Grant Date. This Option shall
not be exercisable on or after the Expiration Date.
4.
Exercise of Option . The Option shall vest according to the
following schedule, provided that Optionee remains as a member of
the Chairman’s Advisory Council of the Company or a Related
Corporation from the date hereof through the applicable vesting
date:
|
Date Installment Becomes Exercisable
|
|
Number of Shares
|
|
|
|
|
Shares
|
|
|
|
an additional
|
Shares
|
|
|
|
an additional
|
Shares
|
5.
Method of Exercising Option . Subject to the terms and
conditions of this Option Agreement and the Plan, the Option may be
exercised by written notice to the Company at its principal office.
The form of such notice is attached hereto and shall state the
election to exercise the Option and the number of whole shares with
respect to which it is being exercised; shall be signed by the
person or persons so exercising the Option; and shall be
accompanied by payment of the full exercise price of such shares.
Only full shares will be issued.
The exercise
price shall be paid to the Company:
(a)
in cash, or by certified check, bank draft, or postal or
express money order;
(b)
through the delivery of Common Shares previously acquired by
the Optionee;
(c)
by delivering a properly executed notice of exercise of the
Option to the Company and a broker, with irrevocable instructions
to the broker promptly to deliver to the Company the amount
necessary to pay the exercise price of the Option;
(d)
in Common Shares newly acquired by the Optionee upon exercise
of the Option; or
(e)
in any combination of (a), (b), (c) or (d) above.
In the event
the exercise price is paid, in whole or in part, with Common
Shares, the portion of the exercise price so paid shall be equal to
the Fair Market Value of the Common Shares surrendered on the date
of exercise.
Upon receipt of
notice of exercise and payment, the Company shall deliver a
certificate or certificates representing the Common Shares with
respect to which the Option is so exercised. The Optionee shall
obtain the rights of a shareholder upon receipt of a certificate(s)
representing such Common Shares.
Such
certificate(s) shall be registered in the name of the person so
exercising the Option (or, if the Option is exercised by the
Optionee and if the Optionee so requests in the notice exercising
the Option, shall be registered in the name of the Optionee and the
Optionee’s spouse, jointly, with right of survivorship), and
shall be delivered as provided above to, or upon the written order
of, the person exercising the Option. In the event the Option is
exercised by any person after the death or disability (as
determined in accordance with Section 22(e)(3) of the Code) of the
Optionee, the notice shall be accompanied by appropriate proof of
the right of such person to exercise the Option. All Common Shares
that are purchased upon exercise of the Option as provided herein
shall be fully paid and non-assessable.
Upon exercise
of the Option, Optionee shall be responsible for all employment and
income taxes then or thereafter due (whether Federal, State or
local), and if the Optionee does not remit to the Company
sufficient cash (or, with the consent of the Committee, Common
Shares) to satisfy all applicable withholding requirements, the
Company shall be entitled to satisfy any withholding requirements
for any s
