Exhibit
10.44
CLEAR SKIES SOLAR, INC.
2009 EQUITY INCENTIVE
PLAN
FORM OF INCENTIVE STOCK OPTION
AGREEMENT
This INCENTIVE
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 key employee of the Company or of 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 an incentive stock option (“ISO”)
meeting the requirements of the Plan and section 422 of the
Internal Revenue Code of 1986, as amended (the “Code”),
and not a nonqualified stock option
(“NQSO”).
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”), or the Board of Directors in lieu of the
Committee, that on the Grant Date the exercise price was not less
than the greater of (i) 100% (110% for an Optionee who owns more
than 10% of the total combined voting power of all shares of stock
of the Company or of a Related Corporation - a “More-Than-10%
Owner”) 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 March 16, 2019 (the “Expiration Date”), which date
is not more than 10 years (five years in the case of a
More-Than-10% Owner) 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 continuously
employed as a key employee 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
|
The Committee
may accelerate any vesting date of the Option, in its discretion,
if it deems such acceleration to be desirable. Once the Option
becomes exercisable, it will remain exercisable until it is
exercised or until it terminates.
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 (which shall constitute a disqualifying disposition with
respect to this ISO); 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 such tax by disposing of Common Shares at exercise,
withholding cash from Optionee’s salary or other compensation
or such other means as the Committee considers appropriate to the
fullest extent permitted by applicable law. Nothing in the
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