TOM JENNEWEIN STOCK OPTION AGREEMENT
Exhibit
10.12
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XXXXXXXXX
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 Xxx Xxxxxxxxx (the
“Optionee”).
WHEREAS,
the Optionee was hired as Chief Financial Officer of the Company as of the
_____
day of August, 2007; and
WHEREAS,
the Company, in order to induce the Optionee to accept a position as Chief
Financial Officer 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
August, 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
800,000.
4. Term
and Exercise of Option. The Option
shall be first exercisable with respect to one third (1/3) of the shares subject
to the Option commencing on the First Anniversary of Grant Date, with respect
to
another one third (1/3) of the shares subject to the Option commencing on the
Second Anniversary of Grant Date and with respect to the final one third (1/3)
of the shares subject to the Option commencing on the Third Anniversary of
Grant
Date, if Optionee is an employee of the Company as of each of such dates;
provided, however, if Optionee’s employment is terminated for any
reason other than for Cause or without Good Reason, as such terms are defined
in
Optionee’s Employment Agreement, then one half (1/2) of the shares
subject to the Option shall immediately vest to the extent not already vested
at
such time. The exercise period for the Option shall end upon the
earliest of the following:
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a.
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Immediately
upon the termination of Optionee’s employment for Cause or without Good
Reason; or
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b.
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The
date three (3) months after the Optionee’s termination of Optionee as an
employee of the Company for any reason other than for Cause or without
Good Reason, retirement, disability, or death;
or
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c.
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The
date thirty-six (36) months after termination of the Optionee as
an
employee of the Company due to retirement or disability;
or
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d.
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The
date one (1) year after the Optionee’s death, if and only if the Optionee
was an employee of the Company on the date three (3) months prior
to the
Optionee’s death; or
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e.
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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 an employee 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 an employee 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 7320 Forsyth, 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: President
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ATTEST:
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By:
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Title:
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OPTIONEE:
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Xxx
Xxxxxxxxx
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EXHIBIT
A
Xxx
Xxxxxxxxx
Notice
of Exercise of Option
and
Record of Stock Transfer
I
hereby
exercise my Option granted by Xxx Xxxxxxxxx subject to all the terms and
provisions set forth in the Stock Option Agreement dated _______________, _____,
pertaining thereto and of the Xxx Xxxxxxxxx Incentive Stock Option Plan referred
to therein, and notify you of my desire to purchase ____________ shares of
Common Stock, $<__________> 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 and a copy
of
the Xxx Xxxxxxxxx Incentive Stock Option Plan 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
________________ 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 Xxx Xxxxxxxxx, on the
____ day of __________ _, ___ of stock
certificates for ____________ shares of Common Stock purchased by me pursuant
to
the terms and conditions of the Xxx Xxxxxxxxx Incentive 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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