STOCK OPTION AGREEMENT
Exhibit
10.8
THIS
AGREEMENT is made and entered into as of the date last below written by and
between CleanTech Biofuels, Inc., a Delaware corporation (the
“Company”), and _________________ (the
“Optionee”).
WHEREAS,
the Optionee was made a Director of the Company as of the ____ day of
__________, 2007; and
WHEREAS,
the Company, in order to induce the Optionee to accept a position as a Director
of the Company and to contribute to the success of the Company, agreed to grant
the Optionee an option to acquire a proprietary interest in the Company through
the purchase of shares of stock of the Company; and
WHEREAS,
the Company adopted the Company’s 2007 Stock Option Plan (the
“Plan”) under which the Company is authorized to grant stock
options to certain employees, directors and consultants of the Company;
and
WHEREAS,
the Committee (as defined in the Plan) has determined that the Company should,
in recognition of Optionee’s contributions, grant an option to the Optionee
pursuant to the terms of this Agreement and the Plan; and
WHEREAS,
the Optionee desires to accept the option.
NOW,
THEREFORE, in consideration of the mutual covenants set forth herein
and for other valuable consideration hereinafter set forth, the parties agree
as
follows:
1. Grant
of Option. The Company hereby grants a Qualified Stock
Option in the amount and subject to the terms provided in this Agreement (the
“Option”) effective as of the _____ day of __________, 2007
(the “Grant Date”). If the Option is a Nonqualified
Stock Option, the Option is not intended to be and shall not be treated as
a
qualified incentive stock option as defined under Section 422 of the Internal
Revenue Code of 1986, as amended (the “Code”). If
the Option is a Qualified Stock Option, the Option is intended to be and shall
be treated as a qualified incentive stock option as defined under Section 422
of
the Internal Revenue Code of 1986, as amended (the
“Code”). The foregoing notwithstanding, to the
extent the aggregate fair market value of stock with respect to which Qualified
Stock Options are exercisable for the first time by Optionee in any given
calendar year exceeds $100,000, such Qualified Stock Options shall be treated
as
Nonqualified Stock Options under the Plan. In such event,
Section 8 of this Agreement shall not apply to shares acquired
by Optionee as a result of the exercise of such Nonqualified Stock
Options.
2. Shares. The
shares of stock subject to the Option shall be the Company’s authorized but
unissued or reacquired Common Stock, $0.001 par value (the “Common
Stock”).
3. Number
of Shares. The number of shares of Common Stock which the
Optionee may purchase under the Option is _______.
4. Term
and Exercise of Option. The Option shall be first
exercisable with respect to one half (1/2) of the shares subject to the Option
commencing on the First Anniversary of Grant Date, with respect to another
one
half (1/2) of the shares subject to the Option commencing on the Second
Anniversary of Grant Date, if Optionee is a member of the Board of Directors
of
the Company as of each of such dates. The exercise period for the
Option shall end upon the earliest of the following:
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a.
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The
date three (3) months after the Optionee’s termination of Optionee as a
member of the Board of Directors of the Company for any reason other
than
retirement, disability, or death;
or
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b.
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The
date one-year after termination of the Optionee as a Member of the
Board
of Directors of the Company due to retirement or disability;
or
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c.
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The
date one (1) year after the Optionee’s death, if and only if the Optionee
was a member of the Board of Directors of the Company on the date
three
(3) months prior to the Optionee’s
death.
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d.
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The
date seven (7) years after the Grant
Date.
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To
the
extent the Option for any of the shares is not exercised within the foregoing
periods, the Option shall expire and thereafter shall be null and
void.
Notwithstanding
anything herein to the contrary, if Optionee is employed by the Company upon
the
effective date of any merger, consolidation, sale of all (or substantially
all)
of the assets of the Company, or other business combination involving the sale
or transfer of all (or substantially all) of the capital stock or assets of
the
Company in which the Company is not the surviving entity, or if it is the
surviving entity, either (i) it does not survive as an operating ongoing concern
in substantially the same line of business, or (ii) it is controlled by persons
or entities previously unaffiliated with the Company, the Option shall become
exercisable immediately prior to the consummation of any of the foregoing events
with respect to one hundred percent (100%) of the shares subject to the
Option.
5. Manner
of Exercise, Purchase Price, and Payment. Exercise of the
Option shall be made by delivery to the Company by Optionee (or other person
entitled to exercise the Option as provided hereunder) of (i) an executed
“Notice of Exercise of Stock Option and Record of Stock
Transfer”, in the form attached hereto as Exhibit A
and incorporated herein by reference, and (ii) payment of the aggregate purchase
price for shares purchased pursuant to the exercise. The price per
share of the Common Stock which the Optionee may purchase hereunder is
$0.15. The purchase price shall be payable in full in United States
dollars in cash or by certified check upon the exercise of the
Option.
6. Restriction
on Transfer. This Option is not transferable by the Optionee
other than by will or the laws of descent and distribution, and is exercisable,
during the Optionee’s lifetime, only by the Optionee. Upon the death
of the Optionee, the executors or administrators of the Optionee’s estate, or
any person or persons who shall have acquired the right to exercise the Option
by bequest, inheritance, or otherwise by reason of the death of the Optionee
shall have the right to exercise the Option, provided that such exercise occurs
not more than seven (7) years from the Grant Date and also within one (1) year
of the Optionee’s death.
7. Restrictions
on Exercise. The Option shall be exercisable subject to the
following restrictions:
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a.
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The
Optionee must be a director of the Company at all times during the
period
beginning on the Grant Date and ending three (3) months before the
earlier
of the date of exercise of the Option or the date of the Optionee’s death;
provided, however, that if the Optionee terminates employment with
the
Company due to retirement or disability, then the aforementioned
period
shall be extended to end thirty-six (36) months before the date of
exercise of the Option. If the Option is a Qualified Stock
Option, the foregoing notwithstanding, the Optionee recognizes and
acknowledges by the Optionee’s signature below that it is anticipated that
the favorable tax consequences afforded by Section 422 of the Code
will
only be available to the Optionee if the Optionee exercises the Option
within three (3) months of termination of employment with the Company
or,
in the event of the Optionee’s termination of employment due to
disability, within one (1) year of such termination;
and
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b.
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So
long as the Optionee remains a director of the Company, the Option
may be
exercised in whole or in part; provided, however, that the Optionee
shall
not exercise part of the Option for fewer than twenty-five (25) shares
at
one time unless the total number of shares subject to the Option
is fewer
than twenty-five (25), in which case the Optionee shall not exercise
the
Option for fewer than all of such
shares.
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8. Restriction
on Disposition of Common Stock. It is recognized that, under
current tax laws, if the Option is a Qualified Stock Option and the Optionee
disposes of Common Stock acquired pursuant to the Optionee’s exercise of the
Option within two (2) years after the Grant Date or within one (1) year after
the transfer of such Common Stock to the Optionee, then the Optionee must
recognize ordinary income, as opposed to capital gain, on such
disposition. Further, the Optionee hereby consents to enter into and
execute such agreements restricting the sale, assignment, transfer, or other
disposition of the Common Stock by Optionee as may be required by the Committee
and/or Board of Directors of the Company upon any exercise of the Option granted
hereunder.
9. Other
Restrictions. The Option shall be subject to all of the
terms, conditions, and restrictions of the Plan, the terms of which are
incorporated herein by reference. The Option shall in all respects be
interpreted in accordance with the Plan. To the extent the terms of
the Plan and this Agreement or any other document pertaining to the Option
are
inconsistent, the Plan shall prevail. The Committee shall interpret
and construe the Plan and this Agreement and its interpretations and
determinations shall be conclusive and binding on the parties hereto and any
other person claiming an interest hereunder, with respect to any issue
pertaining to the Option or the Plan.
10. Obligation
of the Optionee. The Optionee shall at no time be obligated
to exercise the Option.
11. Rights
as a Shareholder. The Optionee and any transferee of the
Option shall have no rights as a shareholder of the Company with respect to
any
shares of Common Stock which are the subject of the Option until the date of
transfer on the records of the Company of the shares of stock.
12. Adjustment
of and Changes in Stock of the Company. In the event of a
reorganization, recapitalization, change of shares, stock split, spin-off,
stock
dividend, reclassification, subdivision or combination of shares of stock of
the
Company, or the merger, consolidation, rights offering, or any other change
in
the corporate structure or shares of the Company, the Committee shall make
such
adjustment as it deems appropriate in the number and kind of shares of Common
Stock subject to the Option or in the option price; provided, however, that
no
such adjustment shall give the Optionee any additional benefits under the
Option.
13. Employment
Rights Not Affected. Neither the granting of the Option nor
its exercise shall be construed as granting to the Optionee any right with
respect to continuance of employment with the Company. Except as may
otherwise be limited by a written agreement between the Company and the
Optionee, the right of the Company to terminate at will the Optionee’s
employment with the Company at any time and for any reason whatsoever is
specifically reserved by the Company, and acknowledged by the
Optionee.
14. Amendment
of Option. The Option may be amended by the Board of
Directors of the Company or by the Committee at any time (i) if the Board or
the
Committee determines, in its sole discretion, that amendment is necessary or
advisable in light of any addition to or change in the Code or in the
regulations issued thereunder, or any federal or state securities law or other
law or regulation, which change occurs after the Grant Date and by its terms
applies to the Option; or (ii) other than in the circumstances described in
clause (i) or provided in the Plan, with the consent of the
Optionee. The foregoing notwithstanding, the Committee may, in its
sole discretion, cancel the Option at any time prior to the Optionee’s exercise
of the Option if, in the opinion of the Committee, the Optionee engages in
activities contrary to the interests of the Company.
15. Notice. Any
notice to the Company provided for in this Agreement shall be addressed to
it in
care of its Secretary at its executive offices at 0000 Xxxxxxx Xxxx., Xxxx
000,
Xx. Xxxxx, Xxxxxxxx 00000, and any notice to the Optionee shall be addressed
to
the Optionee at the current address shown on the payroll records of the Company,
or to such other address and to the attention of such other person(s) or
officer(s) as either party may designate by written notice. Any
notice shall be deemed to be duly given if and when properly addressed and
deposited, postage paid, in the United States mail or when hand delivered to
the
party to whom it is addressed.
16. Governing
Law. This Agreement shall be construed in accordance with
and shall be subject to the internal laws of the State of Missouri, except
to
the extent preempted by federal law.
17. Acknowledgment
of Receipt of Plan. By Optionee’s signature below, Optionee
hereby acknowledges receipt of a copy of the Plan.
IN
WITNESS WHEREOF, the Company has caused its duly authorized officers to
execute this Agreement and the Optionee has placed his signature hereon as
of
the ____ day of _______________, _____, and effective as of the Grant
Date.
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COMPANY:
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By:
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Title
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ATTEST:
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By:
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Title
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OPTIONEE:
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EXHIBIT
A
Xxxxx
XxXxx
Notice
of Exercise of Option
and
Record of Stock Transfer
I
hereby
exercise my Option granted by Xxxxx XxXxx subject to all the terms
and provisions set forth in the Stock Option Agreement dated August 14, 2007,
pertaining thereto and of the CleanTech Biofuels, Inc. 2007 Stock Option Plan
referred to therein, and notify you of my desire to purchase ____________ shares
of Common Stock, $0.001 par value of the Company (the “Common
Stock”) which were offered to me pursuant to said Stock Option
Agreement. Enclosed is my certified check in the sum of
$_____________ in full payment for such shares.
I
hereby
represent that I have previously received a Stock Option Agreement from the
Company and that I understand the terms and restrictions described
therein. I further represent that the ____________ shares of Common
Stock to be delivered to me pursuant to the above-mentioned exercise of the
Option granted to me on August 14, 2007 are being acquired by me as an
investment and not with a view to, or for sale in connection with, the
distribution of any of such shares.
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Dated:
_________________, ______
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___________________________________
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Optionee
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Receipt
Receipt
is hereby acknowledged of the delivery to me by Xxxxx XxXxx , on the
____ day of __________ , _____ of stock
certificates for ____________ shares of Common Stock purchased by me pursuant
to
the terms and conditions of the CleanTech Biofuels, Inc. 2007 Stock Option
Plan
referred to above, which shares were transferred to me on the Company’s stock
record books on the ______ day of
_____________ ,_____ .
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___________________________________
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Optionee
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