Exhibit 10.2
NEITHER THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE
SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE A SECURITIES ACT
@ ) OR THE
SECURITIES LAWS OF ANY STATE. NEITHER THE SECURITIES
REPRESENTED HEREBY MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED NOR MAY THE SHARES BE ISSUED UPON EXERCISE UNLESS SUCH
SECURITIES AND SHARES ARE REGISTERED UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS OR THE COMPANY RECEIVES AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH SALE, TRANSFER,
PLEDGE OR ISSUANCE IS EXEMPT FROM REGISTRATION.
SINO CLEAN ENERGY, INC.
Non-statutory Stock Option Agreement
1.
Grant of Option. This Non-statutory Stock Option Agreement (the
“Agreement”) evidences the grant by Sino Clean Energy,
Inc., a Nevada corporation (the “Company”), on December
15, 2008 (the “Grant Date”) to Hon Wan Chan, also known
as Helice Chan, an officer of the Company (the
“Optionee”), of an option (the “Option”) to
purchase, in whole or in part, on the terms provided herein, a
total of 100,000 shares (the “Shares”) of common stock,
$0.001 par value per share, of the Company (“Common
Stock”) at an exercise price equal to the last reported sale
price per Share in the over-the-counter market on the Grant Date,
as reported by the Financial Industry Regulatory Authority’s
OTC Bulletin Board, the National Quotation Bureau Incorporated or
any similar organization or agency reporting prices in the
over-the-counter market per Share. Unless earlier
terminated, this Option shall expire at 5:00 p.m., Eastern time, on
December 14, 2010 (the “Final Exercise Date”).
It is intended that the
Option evidenced by this Agreement shall not be an incentive stock
option as defined in Section 422 of the Internal Revenue Code of
1986, as amended, and any regulations promulgated thereunder (the
“Code”). Except as otherwise indicated by
the context, the term “Optionee”, as used in this
Option, shall be deemed to include any person who acquires the
right to exercise this Option validly under its terms.
2.
Vesting Schedule. The Option shall vest and the Shares shall
be subject to exercise commencing on the Grant Date. The
right of exercise shall be cumulative so that to the extent the
Option is not exercised in any period to the maximum extent
permissible it shall continue to be exercisable, in whole or in
part, with respect to all Shares for which it is vested until the
earlier of the Final Exercise Date or the termination of this
Option under Section 3 hereof.
3.
Exercise of Option.
a. Form
of Exercise. Each election to exercise this Option shall be in
writing in the form of the Notice of Exercise attached hereto as
Appendix A, signed by the Optionee, and received by the Company at
its principal office, accompanied by this Agreement, and payment in
full by a check or money order made payable to the Company in the
amount of the exercise price and any withholding tax, as provided
under Section 5 hereof. The Optionee may purchase less
than the number of shares covered hereby, provided that no partial
exercise of this Option may be for any fractional share.
b. Continuous
Relationship with the Company Required. Except as otherwise
provided in this Section 3, this Option may not be exercised
unless the Optionee, at the time he or she exercises this Option,
is, and has been at all times since the Grant Date, an employee,
officer or director of, or consultant or advisor to, the Company or
any parent or subsidiary of the Company.
c. Termination
of Relationship with the Company. If the Optionee ceases
to have continuous relationship with the Company as described in
paragraph (b) above for any reason, then, except as provided in
paragraphs (d) and (e) below, the right to exercise this
Option shall terminate three (3) months after such cessation
(but in no event after the Final Exercise Date), provided that this
Option shall be exercisable only to the extent that the Optionee
was entitled to exercise this Option on the date of such
cessation. Notwithstanding the foregoing, if the
Optionee, prior to the Final Exercise Date, violates the
non-competition or confidentiality provisions of any employment
contract, confidentiality and nondisclosure agreement or other
agreement between the Optionee and the Company, the right to
exercise this Option shall terminate immediately upon written
notice to the Optionee from the Company describing such
violation.
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d. Exercise
Period Upon Death or Disability. If the Optionee dies or
becomes disabled (within the meaning of Section 22(e)(3) of
the Code) prior to the Final Exercise Date while he or she has a
continuous relationship with the Company as described in paragraph
(b) above and the Company has not terminated such relationship for
Cause as specified in paragraph (e) below, this Option shall be
exercisable, within the period of twelve (12) months following the
date of death or disability of the Optionee, by the Optionee (or in
the case of death by an authorized transferee), provided that this
Option shall be exercisable only to the extent that this Option was
exercisable by the Optionee on the date of his or her death or
disability, and further provided that this Option shall not be
exercisable after the Final Exercise Date.
e. Discharge
for Cause. If the Optionee, prior to the Final Exercise
Date, is discharged by the Company for Cause (as defined below),
the right to exercise this Option shall terminate immediately upon
the effective date of such discharge. “Cause” means, in
each case, as reasonably determined by the Company’s Board of
Directors and which determination shall be conclusive: (i)
conviction of, or entry of a pleading of guilty or no contest by,
Executive with respect to a felony or any lesser crime of which
fraud or dishonesty is a material element; (ii) Executive's willful
dishonesty towards the Company; (iii) Executive's willful and
continued failure to perform substantially all of his duties with
the Company, or a failure to follow the lawful direction of the
Board after the Board delivers a written demand for substantial
performance and Executive neglects to cure such a failure to the
reasonable satisfaction of the Board within five (5) business days
following receipt of such written demand; (iv) Executive's knowing
and intentional failure to comply with applicable laws with respect
to the execution of the Company's business operations or his
material breach of this Agreement; (v) Executive's theft, fraud,
embezzlement, dishonesty or similar conduct which has resulted or
is likely to result in material damage to the Company or any
subsidiaries and Affiliate; or (vi) Executive's habitual
intoxication or continued abuse of illegal drugs which materially
interferes with Executive's ability to perform his assigned duties
and responsibilities. The Optionee shall be considered
to have been discharged for Cause if the Company’s Board of
Directors determines, within thirty (30) days after the
Optionee’s resignation, that discharge for cause was
warranted.
4.
Company Right of First Refusal.
a. Notice
of Proposed Transfer. If the Optionee proposes to sell,
assign, transfer, pledge, hypothecate or otherwise dispose of, by
operation of law or otherwise (collectively,
“Transfer”) any Shares acquired upon exercise of this
Option, then the Optionee shall first give written notice of the
proposed transfer (the “Transfer Notice”) to the
Company. The Transfer Notice shall name the proposed
transferee and state the number of such Shares the Optionee
proposes to transfer (the “Offered Shares”), the price
per share and all other material terms and conditions of the
transfer.
b. Company
Right to Purchase. For thirty (30) days following its
receipt of such Transfer Notice, the Company shall have the option
to purchase all or part of the Offered Shares at the price and upon
the terms set forth in the Transfer Notice. In the event the
Company elects to purchase all or part of the Offered Shares, it
shall give written notice of such election to the Optionee within
such 30-day period. Within ten (10) days after his
receipt of such notice, the Optionee shall tender to the Company at
its principal offices the certificate or certificates representing
the Offered Shares to be purchased by the Company, duly endorsed in
blank by the Optionee or with duly endorsed stock powers attached
thereto, all in a form suitable for transfer of the Offered Shares
to the Company. Promptly following receipt of such
certificate or certificates, the Company shall deliver or mail to
the Optionee a check in payment of the purchase price for such
Offered Shares; provided
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