Exhibit 10.3
POWERSECURE INTERNATIONAL, INC.
INCENTIVE STOCK OPTION AGREEMENT
2008 Stock Incentive Plan
(Employees Only)
This INCENTIVE STOCK OPTION AGREEMENT
(this “ Agreement ”) is effective as of the date
set forth as the Grant Date in the attached Notice of Stock Option
Grant (the “Grant Date”), by and between , Inc., a
Delaware corporation (the “ Company ”), and the
individual named as the Optionee in the attached Notice of Stock
Option Grant (the “ Optionee ”).
Recitals
WHEREAS, the Company has adopted the
PowerSecure International, Inc. 2008 Stock Incentive Plan (as
amended and/or restated from time to time, the “ Plan
”); and
WHEREAS, pursuant to the provisions
of the Plan, the Board of Directors of the Company (the “
Board ”) has authorized a grant to the Optionee of an
option to purchase shares of Common Stock, par value $.01 per share
(the “ Common Stock ”), of the Company on the
terms and subject to the conditions set forth in this
Agreement;
Agreement
NOW, THEREFORE, in consideration of
the premises, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Grant of Option .
Upon the terms and subject to the conditions set forth in the Plan,
this Agreement and the attached Notice of Stock Option Grant, all
of which are incorporated herein by this reference the Company
grants to the Optionee the option (the “ Option
”) to purchase the number of shares of Common Stock set forth
on the attached Notice of Stock Option Grant (the “ Option
Shares ”) at the purchase price set forth on the attached
Notice of Stock Option Grant (the “ Exercise Price
”), which Exercise Price the Board of Directors has
determined to be equal to or greater than the fair market value of
the Common Stock on the Grant Date. Unless otherwise defined
herein, all terms defined in the Plan and used in this Agreement
shall have the same respective meanings in this Agreement. The
Option is intended to qualify as an incentive stock option under
Section 422 of the Internal Revenue Code of 1986, as amended
(the “ Code ”).
2. Vesting of Option .
The Option shall vest and become exercisable in accordance with the
vesting schedule set forth in the attached Notice of Stock Option
Grant (the “ Vesting Schedule ”).
3. Exercise of Option .
To the extent the Option has vested and become exercisable in
accordance with the Vesting Schedule, the Option may be exercised
by the Optionee (or by any other person permitted by Section 8
hereof to exercise the Option) in accordance with the following
provisions:
(a)
Method of Exercise . The Option may be exercised, in whole
or in part, by giving written notice of exercise to the Company at
its principal executive offices stating the
number
of Option Shares to be purchased upon such exercise, accompanied by
payment in full of the Exercise Price for the Option Shares to be
purchased. Payment of the Exercise Price shall be made by any of
the following methods, or a combination thereof, at the election of
the Optionee:
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(i) |
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Cash; |
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(ii) |
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Check, bank draft or money order made payable to the
Company; |
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(iii) |
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Delivery of shares of Common Stock already owned by the
Optionee, surrendered in proper form for transfer and valued at
their Fair Market Value (as defined in the Plan) on the date of
delivery; or |
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(iv) |
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Irrevocable instructions to a securities broker or dealer
acceptable to the Company to sell the Option Shares and deliver all
or part of the sales proceeds to the Company. |
(b)
Delivery of Certificates. After payment in full for the
Option Shares purchased pursuant to the exercise of the Option has
been received, the Company shall deliver to the Optionee (or his
designee) properly executed certificates representing such Option
Shares as promptly thereafter as is reasonably practicable.
(c)
Tax Withholding . In the event that the Company determines
that it is required to withhold any tax as a result of the exercise
of the Option, the Optionee, as a condition to the exercise of this
option, shall make arrangements satisfactory to the Company to
enable it to satisfy all withholding requirements. The Optionee
shall also make arrangements satisfactory to the Company to enable
it to satisfy any withholding requirements that may arise in
connection with the vesting or disposition of Option Shares
purchased by exercising this option.
4. Expiration of the
Option .
(a)
Expiration Date. The Option shall expire upon the
“Expiration Date” set forth in the attached Notice of
Stock Option Grant (the “ Expiration Date ”);
provided, however, that if the Optionee ceases to be an employee of
the Company or of any Subsidiary (as defined in the Plan) of the
Company prior to the Expiration Date, then the Optionee’s
right to exercise the Option, to the extent it is otherwise then
exercisable pursuant to Section 2 hereof, shall be limited as
provided in this Section 4.
(b)
Death . In the event of the death of the Optionee, the
Option may continue to be exercised, to the extent the Option is
otherwise exercisable on the date of the Optionee’s death
(and without any further vesting), by the Optionee’s estate,
personal representative or beneficiary, until the earlier of the
Expiration Date or one year after the date of death, on which date
the Option shall expire.
(c)
Disability . In the event the Optionee’s employment
with the Company is terminated due to a “permanent
disability” of the Optionee, then the Option may continue to
be exercised, to the extent the Option is otherwise exercisable on
the date of termination of
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employment (and without any further vesting), until the earlier of
the Expiration Date or one year after the date of termination, on
which date the Option shall expire. For purposes hereof, a “
permanent disability ” shall be deemed to be the
physical or mental inability of the Optionee to perform the
Optionee’s duties to the Company because of a physical or
mental disability expected to last for a continuous period of at
least one year.
(d)
Termination of Employment. In the event the Optionee’s
employment with the Company is terminated for any reason other than
those provided in Subsections (b) or (c) above, then the
Option may continue to be exercised, to the extent the Option is
otherwise exercisable on the date of termination (and without any
further vesting), until the earlier of the Expiration Date or the
date that is three months after the date of termination of
Optionee’s employment, on which date the Option shall expire.
For purposes of this Agreement, an Optionee shall be deemed to be
“ employed ” by the Company so long as the
Optionee is an employee, director, officer, consultant or advisor
of the Company or any Subsidiary (as defined in the Plan) of the
Company.
(e)
Transfer to Related Subsidiary. In the event the Optionee
ceases to be an employee of the Company in order to become an
employee of any subsidiary of the Company, or the Optionee
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