Exhibit 99.5
CLEAN ENERGY FUELS CORP.
2006 EQUITY INCENTIVE PLAN
STOCK OPTION AGREEMENT
Unless otherwise
defined herein, capitalized terms shall have the meaning set forth
in the Clean Energy Fuels Corp. 2006 Equity Incentive Plan (the
“Plan”).
1.
Grant of
Option .
The Administrator hereby grants to the optionee named in the Notice
of Stock Option Grant (the “Optionee”) an option (the
“Option”) to purchase the number of Shares, as set
forth in the Notice of Stock Option Grant, at the exercise price
per Share set forth in the Notice of Stock Option Grant (the
“Exercise Price”), subject to the terms and conditions
of this Option Agreement and the Plan. This Option is
intended to be a Nonstatutory Stock Option (“NSO”) or
an Incentive Stock Option (“ISO”), as provided in the
Notice of Stock Option Grant.
2.
Exercise of
Option.
2.1
Vesting/Right to
Exercise . This Option is exercisable during its
term in accordance with the Vesting Schedule set forth in the
Notice of Stock Option Grant and the applicable provisions of this
Option Agreement and the Plan. In no event will this Option
become exercisable for additional Shares after a Termination of
Service for any reason (i.e., there will be no acceleration of
vesting of the Option upon a Termination of Service for any
reason).
2.2
Method of
Exercise . This Option is exercisable by
delivering to the Administrator a fully executed “Exercise
Notice” or by any other method approved by the
Administrator. The Exercise Notice shall provide that the
Optionee is electing to exercise the Option, the number of Shares
in respect of which the Option is being exercised (the
“Exercised Shares”), and such other representations and
agreements as may be required by the Administrator. Payment
of the full aggregate Exercise Price as to all Exercised Shares
must accompany the Exercise Notice, and such payment shall be made
as provided in Section 4 below. This Option shall be deemed
exercised upon receipt by the Administrator of such fully executed
Exercise Notice accompanied by such aggregate Exercise Price.
The Optionee is responsible for filing any reports of remittance or
other foreign exchange filings required in order to pay the
Exercise Price.
2.3
Term of
Option .
This Option may be exercised only within the term set out in the
Notice of Stock Option Grant, and may be exercised during such term
only in accordance with this Option Agreement and the
Plan.
3.
Limitation on
Exercise.
(A)
T he grant of this Option and the issuance
of Shares upon exercise of this Option are subject to compliance
with all Applicable Laws. This Option may not be exercised if
the issuance of Shares upon exercise would constitute a violation
of any Applicable Laws. In addition, this Option may not be
exercised unless (i) a registration statement under the Securities
Act of 1933, as amended (the “Securities Act”) is in
effect at the time of exercise of this Option with respect to the
Shares; or (ii) in the opinion of legal counsel to the Company, the
Shares
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issuable upon exercise
of this Option may be issued in accordance with the terms of an
applicable exemption from the registration requirements of the
Securities Act. The Optionee is cautioned that unless the
foregoing conditions are satisfied, the Optionee may not be able to
exercise the Option when desired even though the Option is
vested. As a further condition to the exercise of this
Option, the Company may require the Optionee to satisfy any
qualifications that may be necessary or appropriate, to evidence
compliance with any applicable law or regulation and to make any
representation or warranty with respect thereto as may be requested
by the Company. Any Shares that are issued will be
“restricted securities” as that term is defined in Rule
144 under the Securities Act, and will bear an appropriate
restrictive legend, unless they are registered under the Securities
Act. The Company is under no obligation to register the
Shares issuable upon exercise of this Option.
(B)
Special Termination
Period .
If exercise of the Option on the last day of the termination period
set forth in the Notice of Stock Option Grant is prevented by
operation of paragraph (A) of this Section 3, then this Option
shall remain exercisable until 14 days after the first date that
paragraph (A) no longer operates to prevent exercise of the
Option.
4.
Method of
Payment .
Payment of the aggregate Exercise Price shall be by any of the
following methods; provided, however, the payment shall be in
strict compliance with all procedures established by the
Administrator:
(a)
cash;
(b)
check or wire
transfer;
(c)
subject to any conditions
or limitations established by the Administrator, other Shares that
have a Fair Market Value on the date of surrender or attestation
equal to the aggregate Exercise Price;
(d)
consideration received by
the Company under a broker-assisted sale and remittance program
acceptable to the Administrator (Officers and Directors shall not
be permitted to use this procedure if this procedure would violate
Section 402 of the Sarbanes-Oxley Act of 2002, as
amended);
(e)
subject to any conditions
or limitations established by the Administrator, retention by the
Company of so many of the Shares that would otherwise have been
delivered upon exercise of the Option as have a Fair Market Value
on the exercise date equal to the aggregate exercise price of all
Shares as to which the Option is being exercised, provided that the
Option is surrendered and cancelled as to such Shares;
or
(f)
any combination of the
foregoing methods of payment.
5.
Leave of
Absence .
The Optionee shall not incur a Termination of Service when the
Optionee goes on a bona fide leave of absence, if the leave was
approved by the Company (or Affiliate employing him or her) in
writing and if continued crediting of service is required by the
terms of the leave or by applicable law. The Optionee shall
incur a Termination of Service when the approved leave ends,
however, unless the Optionee immediately returns to active
work.
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For purposes of
ISOs, no leave of absence may exceed three months, unless the right
to reemployment upon expiration of such leave is provided by
statute or contract. If the right to reemployment is not so
provided by statute or contract, the Optionee will be deemed to
have incurred a Termination of Service on the first day immediately
following such three-month period of leave for ISO purposes and
this Option shall cease to be treated as an ISO and shall terminate
upon the expiration of the
