Exhibit 10.2


 


CLEAN ENERGY FUELS CORP.


AMENDED AND RESTATED 2006 EQUITY INCENTIVE PLAN


 


1.              Purpose of the Plan.  The purpose of this Plan is
to encourage ownership in the Company by key personnel whose long-term service
the Company considers essential to its continued progress and, thereby,
encourage recipients to act in the stockholders’ interest and share in the
Company’s success.


 


2.              Definitions. 
As used herein, the following definitions shall apply:


 


“Act” shall mean the
Securities Act of 1933, as amended.


 


“Administrator” shall mean
the Board, any Committees, or such delegates as shall be administering the Plan
in accordance with Section 4 of the Plan.


 


“Affiliate” shall mean any
entity that is directly or indirectly in control of or controlled by the Company,
or any entity in which the Company has a significant ownership interest as
determined by the Administrator.


 


“Applicable Laws” shall mean
the requirements relating to the administration of stock plans under federal
and state laws; any stock exchange or quotation system on which the Company has
listed or submitted for quotation the Common Stock to the extent provided under
the terms of the Company’s agreement with such exchange or quotation system;
and, with respect to Awards subject to the laws of any foreign jurisdiction
where Awards are, or will be, granted under the Plan, to the laws of such
jurisdiction.


 


“Award” shall mean,
individually or collectively, a grant under the Plan of an Option, Stock Award,
SAR, or Cash Award.


 


“Awardee” shall mean a
Service Provider who has been granted an Award under the Plan.


 


“Award Agreement” shall mean
an Option Agreement, Stock Award Agreement, SAR Agreement, or Cash Award
Agreement, which may be in written or electronic format, in such form and with
such terms as may be specified by the Administrator, evidencing the terms and
conditions of an individual Award. Each Award Agreement is subject to the terms
and conditions of the Plan.


 


“Board” shall mean the Board
of Directors of the Company.


 


“Cash Award” shall mean a
bonus opportunity awarded under Section 13 pursuant to which a Participant
may become entitled to receive an amount based on the satisfaction of such
performance criteria as are specified in the agreement or other documents
evidencing the Award (the “Cash Award Agreement”).


 


“Change in Control” shall
mean any of the following, unless the Administrator provides otherwise:


 


(i)                                     any merger or
consolidation in which the Company shall not be the surviving entity (or
survives only as a subsidiary of another entity whose stockholders did not own
all or substantially all of the Common Stock in substantially the same
proportions as immediately before such transaction);


 


(ii)                                  the sale of all
or substantially all of the Company’s assets to any other person or entity
(other than a wholly-owned subsidiary of the Company);


 


(iii)                               the acquisition
of beneficial ownership of a controlling interest (including power to vote) in
the outstanding shares of Common Stock by any person or entity (including a “group”
as defined by or under Section 13(d)(3) of the Exchange Act);


 


(iv)                              the dissolution
or liquidation of the Company;


 


(v)                                 a contested
election of Directors, as a result of which or in connection with which the
persons who were Directors before such election or their nominees cease to
constitute a majority of the Board; or


 

















 


(vi)                              any other event
specified, at the time an Award is granted or thereafter, by the Board or a
Committee.


 


Notwithstanding the foregoing, the term “Change
in Control” shall not include any underwritten public offering of Shares
registered under the Act.


 


“Code” shall mean the
Internal Revenue Code of 1986, as amended.


 


“Committee” shall mean a
committee of Directors appointed by the Board in accordance with Section 4
of the Plan.


 


“Common Stock” shall mean
the common stock of the Company.


 


“Company” shall mean Clean
Energy Fuels Corp., a Delaware corporation, or its successor.


 


“Consultant” shall mean any
natural person, other than an Employee or Director, who performs bona fide
services for the Company or an Affiliate as a consultant or advisor.


 


“Conversion Award” has the
meaning set forth in Section 4(b)(xii) of the Plan.


 


“Director” shall mean a
member of the Board.


 


“Disability” shall mean
permanent and total disability as defined in Section 22(e)(3) of the
Code.


 


“Employee” shall mean an
employee of the Company or any Affiliate, and may include an Officer or
Director. Within the limitations of Applicable Law, the Administrator shall
have the discretion to determine the effect upon an Award and upon an
individual’s status as an Employee in the case of (i) any individual who
is classified by the Company or its Affiliate as leased from or otherwise
employed by a third party or as intermittent or temporary, even if any such
classification is changed retroactively as a result of an audit, litigation or
otherwise; (ii) any leave of absence approved by the Company or an
Affiliate; (iii) any transfer between locations of employment with the
Company or an Affiliate or between the Company and any Affiliate or between any
Affiliates; (iv) any change in the Awardee’s status from an employee to a
Consultant or Director; and (v) an employee who, at the request of the
Company or an Affiliate, becomes employed by any partnership, joint venture, or
corporation not meeting the requirements of an Affiliate in which the Company
or an Affiliate is a party.


 


“Exchange Act” shall mean
the Securities Exchange Act of 1934, as amended.


 


“Fair Market Value” shall
mean, unless the Administrator determines otherwise, as of any date, the
closing price for such Common Stock as of such date (or if no sales were
reported on such date, the closing price on the last preceding day for which a
sale was reported), as reported in such source as the Administrator shall
determine.


 


“Grant Date” shall mean the
date upon which an Award is granted to an Awardee pursuant to this Plan.


 


“Incentive Stock Option”
shall mean an Option intended to qualify as an incentive stock option within
the meaning of Section 422 of the Code.


 


“Nonstatutory Stock Option”
shall mean an Option not intended to qualify as an Incentive Stock Option.


 


“Officer” shall mean a
person who is an officer of the Company within the meaning of Section 16
of the Exchange Act.


 


“Option” shall mean a right
granted under Section 8 of the Plan to purchase a certain number of Shares
at such exercise price, at such times, and on such other terms and conditions
as are specified in the agreement or other documents evidencing the Award (the “Option
Agreement”). Both Options intended to qualify as Incentive Stock Options and
Nonstatutory Stock Options may be granted under the Plan.


 


“Participant” shall mean the
Awardee or any person (including any estate) to whom an Award has been assigned
or transferred as permitted hereunder.


 


“Plan” shall mean this Clean
Energy Fuels Corp. 2006 Equity Incentive Plan.


 


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“Prior Plan” shall mean the
Company’s 2002 Stock Option Plan authorizing up to 5,750,000 Shares for
issuance pursuant to stock options.


 


“Qualifying Performance
Criteria” shall have the meaning set forth in Section 14(b) of the
Plan.


 


“Related Corporation” shall
mean any parent or subsidiary (as those terms are defined in Section 424(e) and
(f) of the Code) of the Company.


 


“Service Provider” shall
mean an Employee, Officer, Director, or Consultant.


 


“Share” shall mean a share
of the Common Stock, as adjusted in accordance with Section 15 of the
Plan.


 


“Stock Award” shall mean an
award or issuance of Shares or Stock Units made under Section 11 of the
Plan, the grant, issuance, retention, vesting, and transferability of which is
subject during specified periods to such conditions (including continued
service or performance conditions) and terms as are expressed in the agreement
or other documents evidencing the Award (the “Stock Award Agreement”).


 


“Stock Appreciation Right”
or “SAR” shall mean an Award, granted alone or in connection with an Option,
that pursuant to Section 12 of the Plan is designated as a SAR. The terms
of the SAR are expressed in the agreement or other documents evidencing the
Award (the “SAR Agreement”).


 


“Stock Unit” shall mean a
bookkeeping entry representing an amount equivalent to the fair market value of
one Share, payable in cash, property or Shares. Stock Units represent an
unfunded and unsecured obligation of the Company, except as otherwise provided
for by the Administrator.


 


“Ten-Percent Stockholder”
shall mean the owner of stock (as determined under Section 424(d) of
the Code) possessing more than 10% of the total combined voting power of all
classes of stock of the Company (or any Related Corporation).


 


“Termination Date” shall
mean the date of a Participant’s Termination of Service, as determined by the
Administrator in its sole discretion.


 


“Termination of Service”
shall mean ceasing to be a Service Provider. However, for Incentive Stock
Option purposes, Termination of Service will occur when the Awardee ceases to
be an employee (as determined in accordance with Section 3401(c) of
the Code and the regulations promulgated thereunder) of the Company or one of
its Related Corporations. The Administrator shall determine whether any
corporate transaction, such as a sale or spin-off of a division or business
unit, or a joint venture, shall be deemed to result in a Termination of
Service.


 


3.                                      Stock Subject to the Plan.


 


(a)                                  Aggregate
Limits.


 


(i)                                     Basic
Limitation.  The maximum
aggregate number of Shares that may be issued under the Plan through Awards
shall be 10,890,500 plus the additional Shares described in Subsections (ii) and
(iii). The initial number in the preceding sentence shall consist of (A) the
number of Shares available for issuance, as of the effective date of the Plan,
under the Prior Plan; plus (B) those Shares that are issuable upon
exercise of options granted pursuant to the Prior Plan that expire or become
unexercisable for any reason without having been exercised in full after the
effective date of the Plan; plus (C) an additional increase of 1,000,000
Shares to be approved by the Company’s stockholders on the effective date of
the Plan. Notwithstanding the foregoing, the maximum aggregate number of Shares
that may be issued under the Plan through Incentive Stock Options is 6,390,500
Shares. The limitations of this Section 3(a)(i) shall be subject to
the adjustments provided for in Section 15 of the Plan.


 


(ii)                                  Annual
Increase in Shares.  As of the
first day of each Company fiscal year beginning in fiscal year 2007, the
maximum aggregate number of Shares that may be issued under the Plan through
Awards, and the maximum aggregate number of Shares that may be issued under the
Plan through Incentive Stock Options, shall each increase by a number equal to
the lesser of (A) 15% of the total number of Shares then outstanding, (B) 1,000,000
Shares, or (C) an amount determined by the Board.


 


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(iii)                               Additional
Shares.  Upon payment in Shares
pursuant to the exercise of an Award, the number of Shares available for
issuance under the Plan shall be reduced only by the number of Shares actually
issued in such payment. If any outstanding Award expires or is terminated or
canceled without having been exercised or settled in full, or if Shares
acquired pursuant to an Award subject to forfeiture or repurchase are forfeited
or repurchased by the Company, the Shares allocable to the terminated portion
of such Award or such forfeited or repurchased Shares shall again be available
to grant under the Plan. Notwithstanding the foregoing, the aggregate number of
Shares that may be issued under the Plan upon the exercise of Incentive Stock
Options shall not be increased for restricted Shares that are forfeited or
repurchased. Notwithstanding anything in the Plan or any Award Agreement to the
contrary, Shares attributable to Awards transferred under any Award transfer
program shall not be again available for grant under the Plan. The Shares
subject to the Plan may be either Shares reacquired by the Company, including
Shares purchased in the open market, or authorized but unissued Shares.


 


(b)                                 Code
Section 162(m) Limit.  Subject to the provisions of Section 15
of the Plan, the aggregate number of Shares subject to Awards granted under
this Plan during any calendar year to any one Awardee shall not exceed
2,000,000, except that in connection with his or her initial service, an
Awardee may be granted Awards covering up to an additional 2,000,000 Shares.
Notwithstanding anything to the contrary in the Plan, the limitations set forth
in this Section 3(b) shall be subject to adjustment under Section 15
of the Plan only to the extent that such adjustment will not affect the status
of any Award intended to qualify as “performance-based compensation” under Code
Section 162(m).


 


4.                                      Administration of the Plan.


 


(a)                               Procedure.


 


(i)                                     Multiple Administrative Bodies.  The Plan shall be administered by the Board
or one or more Committees, including such delegates as may be appointed under
paragraph (a)(iv) of this Section 4.


 


(ii)                                  Section 162(m).  To the extent that the Administrator
determines it to be desirable to qualify Awards granted hereunder as “performance-based
compensation” within the meaning of Section 162(m) of the Code,
Awards to “covered employees” within the meaning of Section 162(m) of
the Code or Employees that the Committee determines may be “covered employees”
in the future shall be made by a Committee of two or more “outside directors”
within the meaning of Section 162(m) of the Code.


 


(iii)                               Rule 16b-3.  To the extent desirable to qualify
transactions hereunder as exempt under Rule 16b-3 promulgated under the
Exchange Act (“Rule 16b-3”), Awards to Officers and Directors shall be
made in such a manner to satisfy the requirement for exemption under Rule 16b-3.


 


(iv)                              Other
Administration.  The Board
or a Committee may delegate to an authorized Officer or Officers of the Company
the power to approve Awards to persons eligible to receive Awards under the
Plan who are not (A) subject to Section 16 of the Exchange Act; or (B) at
the time of such approval, “covered employees” under Section 162(m) of
the Code.


 


(v)                                 Delegation
of Authority for the Day-to-Day Administration of the Plan.  Except to the extent prohibited by Applicable
Law, the Administrator may delegate to one or more individuals the day-to-day
administration of the Plan and any of the functions assigned to it in this
Plan. Such delegation may be revoked at any time.


 


(b)                                 Powers
of the Administrator.  Subject to
the provisions of the Plan and, in the case of a Committee or delegates acting
as the Administrator, subject to the specific duties delegated to such
Committee or delegates, the Administrator shall have the authority, in its sole
discretion:


 


(i)                                     to select the
Service Providers of the Company or its Affiliates to whom Awards are to be
granted hereunder;


 


(ii)                                  to determine
the number of shares of Common Stock to be covered by each Award granted
hereunder;


 


(iii)                               to determine
the type of Award to be granted to the selected Service Provider;


 


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(iv)                              to approve the
forms of Award Agreements for use under the Plan;


 


(v)                                 to determine
the terms and conditions, consistent with the terms of the Plan, of any Award
granted hereunder. Such terms and conditions include the exercise or purchase
price, the time or times when an Award may be exercised (which may or may not
be based on performance criteria), the vesting schedule, any vesting or
exercisability acceleration or waiver of forfeiture restrictions, the
acceptable forms of consideration, the term, and any restriction or limitation
regarding any Award or the Shares relating thereto, based in each case on such
factors as the Administrator, in its sole discretion, shall determine and may
be established at the time an Award is granted or thereafter;


 


(vi)                              to correct
administrative errors;


 


(vii)                           to construe and
interpret the terms of the Plan (including sub-plans and Plan addenda) and
Awards granted pursuant to the Plan;


 


(viii)                        to adopt rules and
procedures relating to the operation and administration of the Plan to
accommodate the specific requirements of local laws and procedures. Without
limiting the generality of the foregoing, the Administrator is specifically
authorized (A) to adopt the rules and procedures regarding the
conversion of local currency, withholding procedures, and handling of stock
certificates that vary with local requirements; and (B) to adopt sub-plans
and Plan addenda as the Administrator deems desirable, to accommodate foreign
laws, regulations and practice;


 


(ix)                                to prescribe,
amend and rescind rules and regulations relating to the Plan, including rules and
regulations relating to sub-plans and Plan addenda;


 


(x)                                   to modify or
amend each Award, including the acceleration of vesting, exercisability, or
both; provided, however, that any modification or amendment of an Award is subject
to Section 16 of the Plan and may not materially impair any outstanding
Award unless agreed to by the Participant;


 


(xi)                                to allow
Participants to satisfy withholding tax amounts by electing to have the Company
withhold from the Shares to be issued pursuant to an Award that number of
Shares having a Fair Market Value equal to the amount required to be withheld.
The Fair Market Value of the Shares to be withheld shall be determined in such
manner and on such date that the Administrator shall determine or, in the
absence of provision otherwise, on the date that the amount of tax to be
withheld is to be determined. All elections by a Participant to have Shares
withheld for this purpose shall be made in such form and under such conditions
as the Administrator may provide;


 


(xii)                             to authorize
conversion or substitution under the Plan of any or all stock options, stock
appreciation rights, or other stock awards held by service providers of an
entity acquired by the Company (the “Conversion Awards”). Any conversion or
substitution shall be effective as of the close of the merger or acquisition.
The Conversion Awards may be Nonstatutory Stock Options or Incentive Stock
Options, as determined by the Administrator, with respect to options granted by
the acquired entity. Unless otherwise determined by the Administrator at the
time of conversion or substitution, all Conversion Awards shall have the same
terms and conditions as Awards generally granted by the Company under the Plan;


 


(xiii)                          to authorize
any person to execute on behalf of the Company any instrument required to
effect the grant of an Award previously granted by the Administrator;


 


(xiv)                         to determine
whether Awards will be settled in Shares, cash, or in any combination thereof;


 


(xv)                            to determine
whether to provide for the right to receive dividends or dividend equivalents;


 


(xvi)                         to establish a
program whereby Service Providers designated by the Administrator can reduce
compensation otherwise payable in cash in exchange for Awards under the Plan;


 


(xvii)                      to impose such
restrictions, conditions, or limitations as it determines appropriate as to the
timing and manner of any resales by a Participant or other subsequent transfers
by the Participant of any Shares issued as a result of or under an Award,
including (A) restrictions under an insider trading policy, and (B) restrictions
as to the use of a specified brokerage firm for such resales or other
transfers;


 


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(xviii)                   to provide, either at the
time an Award is granted or by subsequent action, that an Award shall contain
as a term thereof, a right, either in tandem with the other rights under the
Award or as an alternative thereto, of the Participant to receive, without
payment to the Company, a number of Shares, cash, or a combination of both, the
amount of which is determined by reference to the value of the Award; and


 


(xix)                           to make all
other determinations deemed necessary or advisable for administering the Plan
and any Award granted hereunder.


 


(c)                                  Effect
of Administrator’s Decision.  All decisions, determinations and
interpretations by the Administrator regarding the Plan, any rules and
regulations under the Plan and the terms and conditions of any Award granted
hereunder, shall be final and binding on all Participants. The Administrator
shall consider such factors as it deems relevant, in its sole and absolute
discretion, to making such decisions, determinations and interpretations,
including the recommendations or advice of any officer or other employee of the
Company and such attorneys, consultants and accountants as it may select.


 


5.                                      Eligibility.Awards may be granted to Service Providers of the Company or any of its
Affiliates.


 


6.                                      Effective Date and Term of the Plan. The Plan shall be
effective as of the effective date of the registration statement for the
Company’s initial public offering, provided that the Company’s stockholders
have approved the Plan before such date. Unless terminated pursuant to Section 16,
the Plan shall continue in effect until the tenth anniversary of the earlier of
(i) the date of the Plan’s approval by the Board, or (ii) the date of
the Plan’s approval by the Company’s stockholders.


 


7.                                      Term of Award. The term of each Award shall be determined by the Administrator and
stated in the Award Agreement. In the case of an Option, the term shall be ten
years from the Grant Date or such shorter term as may be provided in the Award
Agreement.


 


8.                                      Options. The Administrator may grant an Option or provide for the grant of an
Option, from time to time in the discretion of the Administrator or
automatically upon the occurrence of specified events, including the
achievement of performance goals, and for the satisfaction of an event or
condition within the control of the Awardee or within the control of others.


 


(a)                                  Option
Agreement.  Each Option
Agreement shall contain provisions regarding (i) the number of Shares that
may be issued upon exercise of the Option; (ii) the type of Option; (iii) the
exercise price of the Shares and the means of payment for the Shares; (iv) the
term of the Option; (v) such terms and conditions on the vesting or
exercisability of an Option, or both, as may be determined from time to time by
the Administrator; (vi) restrictions on the transfer of the Option and
forfeiture provisions; and (vii) such further terms and conditions, in
each case not inconsistent with this Plan, as may be determined from time to
time by the Administrator.


 


(b)                                 Exercise
Price.  The per share exercise price
for the Shares to be issued pursuant to exercise of an Option shall be
determined by the Administrator, subject to the following:


 


(i)                                     In the case of
an Incentive Stock Option, the per Share exercise price shall be no less than
100% of the Fair Market Value per Share on the Grant Date. Notwithstanding the
foregoing, if any Incentive Stock Option is granted to a Ten-Percent
Stockholder, then the exercise price shall not be less than 110% of the Fair
Market Value of a share of Common Stock on the Grant Date.


 


(ii)                                  In the case of
a Nonstatutory Stock Option, the per Share exercise price shall be no less than
100% of the Fair Market Value per Share on the Grant Date. The per Share
exercise price may also vary according to a predetermined formula; provided,
that the exercise price never falls below 100% of the Fair Market Value per
Share on the Grant Date.


 


(iii)                               Notwithstanding
the foregoing, at the Administrator’s discretion, Conversion Awards may be
granted in substitution or conversion of options of an acquired entity, with a
per Share exercise price of less than 100% of the Fair Market Value per Share
on the date of such substitution or conversion.


 


(c)                                  Vesting
Period and Exercise Dates. 
Options granted under this Plan shall vest, be exercisable, or both, at
such times and in such installments during the Option’s term as determined by
the Administrator. The Administrator shall have the right to make the timing of
the ability to exercise any Option granted under this Plan subject to continued
service, the passage of time, or such performance requirements as deemed
appropriate by the Administrator. At any time after the grant of an Option, the
Administrator may reduce or eliminate any restrictions surrounding any
Participant’s right to exercise all or part of the Option.


 


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(d)                                 Form of
Consideration.  The
Administrator shall determine the acceptable form of consideration for
exercising an Option, including the method of payment, either through the terms
of the Option Agreement or at the time of exercise of an Option. The
consideration, determined by the Administrator (or pursuant to authority
expressly delegated by the Board, a Committee, or other person), and in the
form and amount required by applicable law, shall be actually received before
issuing any Shares pursuant to the Plan; which consideration shall have a
value, as determined by the Board, not less than the par value of such Shares.
Acceptable forms of consideration may include:


 


(i)                                     cash;


 


(ii)                                  check or wire
transfer;


 


(iii)                               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 that does not
exceed the aggregate exercise price of the Shares as to which said Option shall
be exercised;


 


(iv)                              consideration
received by the Company under a broker-assisted sale and remittance program
acceptable to the Administrator to the extent that this procedure would not
violate Section 402 of the Sarbanes-Oxley Act of 2002, as amended;


 


(v)                                 subject to any
conditions or limitations established by the Administrator, the Company’s
retention 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
not exceeding 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;


 


(vi)                              such other
consideration and method of payment for the issuance of Shares to the extent
permitted by Applicable Laws; or


 


(vii)                           any combination
of the foregoing methods of payment.


 


9.                                      Incentive Stock Option Limitations.


 


(a)                                  Eligibility.  Only employees (as determined in accordance
with Section 3401(c) of the Code and the regulations promulgated
thereunder) of the Company or any of its Related Corporations may be granted
Incentive Stock Options.


 


(b)                                 $100,000
Limitation. 
Notwithstanding the designation “Incentive Stock Option” in an Option
Agreement, if the aggregate Fair Market Value of the Shares with respect to which
Incentive Stock Options are exercisable for the first time by the Awardee
during any calendar year (under all plans of the Company and any of its Related
Corporations) exceeds $100,000, then the portion of such Options that exceeds
$100,000 shall be treated as Nonstatutory Stock Options. An Incentive Stock
Option is considered to be first exercisable during a calendar year if the
Incentive Stock Option will become exercisable at any time during the year,
assuming that any condition on the Awardee’s ability to exercise the Incentive
Stock Option related to the performance of services is satisfied. If the
Awardee’s ability to exercise the Incentive Stock Option in the year is subject
to an acceleration provision, then the Incentive Stock Option is considered
first exercisable in the calendar year in which the acceleration provision is
triggered. For purposes of this Section 9(b), Incentive Stock Options
shall be taken into account in the order in which they were granted. However,
because an acceleration provision is not taken into account before its
triggering, an Incentive Stock Option that becomes exercisable for the first
time during a calendar year by operation of such provision does not affect the
application of the $100,000 limitation with respect to any Incentive Stock
Option (or portion thereof) exercised before such acceleration. The Fair Market
Value of the Shares shall be determined as of the Grant Date.


 


(c)                                  Leave
of Absence.  For purposes
of Incentive Stock Options, 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 period of leave exceeds three months and the Awardee’s
right to reemployment is not provided by statute or contract, the Awardee’s employment
with the Company shall be deemed to terminate on the first day immediately
following such three-month period, and any Incentive Stock Option granted to
the Awardee shall cease to be treated as an Incentive Stock Option and shall
terminate upon the expiration of the three-month period starting on the date
the employment relationship is deemed terminated.


 


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(d)                                 Transferability.  The Option Agreement must provide that an
Incentive Stock Option cannot be transferable by the Awardee otherwise than by
will or the laws of descent and distribution, and, during the lifetime of such
Awardee, must not be exercisable by any other person. Notwithstanding the
foregoing, the Administrator, in its sole discretion, may allow the Awardee to
transfer his or her Incentive Stock Option to a trust where under Section 671
of the Code and other Applicable Law, the Awardee is considered the sole
beneficial owner of the Option while it is held in the trust. If the terms of
an Incentive Stock Option are amended to permit transferability, the Option
will be treated for tax purposes as a Nonstatutory Stock Option.


 


(e)                                  Exercise
Price.  The per Share exercise price of
an Incentive Stock Option shall be determined by the Administrator in
accordance with Section 8(b)(i) of the Plan.


 


(f)                                    Ten-Percent
Stockholder.  If any
Incentive Stock Option is granted to a Ten-Percent Stockholder, then the Option
term shall not exceed five years measured from the date of grant of such
Option.


 


(g)                                 Other
Terms.  Option Agreements evidencing
Incentive Stock Options shall contain such other terms and conditions as may be
necessary to qualify as Incentive Stock Options, to the extent determined
desirable by the Administrator, under the applicable provisions of Section 422
of the Code.


 


10.                               Exercise of Option.


 


(a)                                  Procedure
for Exercise; Rights as a Stockholder.


 


(i)                                     Any Option
granted hereunder shall be exercisable according to the terms of the Plan and
at such times and under such conditions as determined by the Administrator and
set forth in the respective Award Agreement.


 


(ii)                                  An Option shall
be deemed exercised when the Company receives (A) written or electronic
notice of exercise (in accordance with the Award Agreement) from the person
entitled to exercise the Option; (B) full payment for the Shares with
respect to which the related Option is exercised; and (C) with respect to
Nonstatutory Stock Options, payment of all applicable withholding taxes.


 


(iii)                               Shares issued
upon exercise of an Option shall be issued in the name of the Participant or,
if requested by the Participant, in the name of the Participant and his or her
spouse. Unless provided otherwise by the Administrator or pursuant to this
Plan, until the Shares are issued (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company), no
right to vote or receive dividends or any other rights as a stockholder shall
exist with respect to the Shares subject to an Option, notwithstanding the
exercise of the Option.


 


(iv)                              The Company
shall issue (or cause to be issued) such Shares as soon as administratively
practicable after the Option is exercised. An Option may not be exercised for a
fraction of a Share.


 


(b)                                 Effect
of Termination of Service on Options.


 


(i)                                     Generally.  Unless otherwise provided for by the
Administrator, if a Participant ceases to be a Service Provider, other than
upon the Participant’s death or Disability, the Participant may exercise his or
her Option within such period as is specified in the Award Agreement to the
extent that the Option is vested on the Termination Date (but in no event later
than the expiration of the term of such Option as set forth in the Award
Agreement). In the absence of a specified time in the Award Agreement, the
vested portion of the Option will remain exercisable for three months following
the Participant’s Termination Date. Unless otherwise provided by the
Administrator, if on the Termination Date the Participant is not vested as to
his or her entire Option, the Shares covered by the unvested portion of the
Option will automatically revert to the Plan. If after the Termination of
Service the Participant does not exercise his or her Option within the time
specified by the Administrator, the Option will automatically terminate, and
the Shares covered by such Option will revert to the Plan.


 


(ii)                                  Disability
of Awardee.  Unless
otherwise provided for by the Administrator, if a Participant ceases to be a
Service Provider as a result of the Participant’s Disability, the Participant
may exercise his or her Option within such period as is specified in the Award
Agreement to the extent the Option is vested on the Termination Date (but in no
event later than the expiration of the term of such Option as set forth in the
Award Agreement). In 


 


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the absence of a specified
time in the Award Agreement, the Option will remain exercisable for twelve
months following the Participant’s Termination Date. Unless otherwise provided
by the Administrator, if at the time of Disability the Participant is not
vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option will automatically revert to the Plan. If the Option is
not so exercised within the time specified herein, the Option will terminate,
and the Shares covered by such Option will automatically revert to the Plan.


 


(iii)                               Death
of Awardee.  Unless
otherwise provided for by the Administrator, if a Participant dies while a
Service Provider, the Option may be exercised following the Participant’s death
within such period as is specified in the Award Agreement to the extent that
the Option is vested on the date of death (but in no event may the Option be
exercised later than the expiration of the term of such Option as set forth in
the Award Agreement), by the Participant’s designated beneficiary, provided
such beneficiary has been designated before the Participant’s death in a form
acceptable to the Administrator. If no such beneficiary has been designated by
the Participant, then such Option may be exercised by the personal
representative of the Participant’s estate or by the person or persons to whom
the Option is transferred pursuant to the Participant’s will or in accordance
with the laws of descent and distribution. In the absence of a specified time
in the Award Agreement, the Option will remain exercisable for twelve months
following Participant’s death. Unless otherwise provided by the Administrator,
if at the time of death Participant is not vested as to his or her entire
Option, the Shares covered by the unvested portion of the Option will revert to
the Plan. If the Option is not so exercised within the time specified herein,
the Option will terminate, and the Shares covered by such Option will revert to
the Plan.


 


11.                               Stock Awards.


 


(a)                                  Stock
Award Agreement.  Each Stock
Award Agreement shall contain provisions regarding (i) the number of
Shares subject to such Stock Award or a formula for determining such number; (ii) the
purchase price, if any, of the Shares, and the means of payment for the Shares;
(iii) the performance criteria, if any, and level of achievement versus
these criteria that shall determine the number of Shares granted, issued,
retained, or vested, as applicable; (iv) such terms and conditions on the
grant, issuance, vesting, or forfeiture of the Shares, as applicable, as may be
determined from time to time by the Administrator; (v) restrictions on the
transferability of the Stock Award; and (vi) such further terms and
conditions in each case not inconsistent with this Plan as may be determined
from time to time by the Administrator.


 


(b)                                 Restrictions
and Performance Criteria.  The
grant, issuance, retention, and vesting of each Stock Award may be subject to
such performance criteria and level of achievement versus these criteria as the
Administrator shall determine, which criteria may be based on financial
performance, personal performance evaluations, or completion of service by the
Awardee.


 


Notwithstanding anything to
the contrary herein, the performance criteria for any Stock Award that is
intended to satisfy the requirements for “performance-based compensation” under
Section 162(m) of the Code shall be established by the Administrator
based on one or more Qualifying Performance Criteria selected by the
Administrator and specified in writing.


 


(c)                                  Forfeiture.  Unless otherwise provided for by the
Administrator, upon the Awardee’s Termination of Service, the unvested Stock
Award and the Shares subject thereto shall be forfeited, provided that to the
extent that the Participant purchased any Shares pursuant to such Stock Award,
the Company shall have a right to repurchase the unvested portion of such
Shares at the original price paid by the Participant.


 


(d)                                 Rights
as a Stockholder.  Unless
otherwise provided by the Administrator, the Participant shall have the rights
equivalent to those of a stockholder and shall be a stockholder only after
Shares are issued (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company) to the Participant.
Unless otherwise provided by the Administrator, a Participant holding Stock
Units shall be entitled to receive dividend payments as if he or she were an
actual stockholder.


 


12.                               Stock
Appreciation Rights.  Subject to the
terms and conditions of the Plan, a SAR may be granted to a Service Provider at
any time and from time to time as determined by the Administrator in its sole
discretion.


 


(a)                                  Number
of SARs.  The
Administrator shall have complete discretion to determine the number of SARs
granted to any Service Provider.


 


(b)                                 Exercise
Price and Other Terms.  The
per SAR exercise price shall be no less than 100% of the Fair Market Value per
Share on the Grant Date. The Administrator, subject to the provisions of the
Plan, shall have complete discretion to determine the other terms and
conditions of SARs granted under the Plan.


 


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(c)           Exercise
of SARs.  SARs shall
be exercisable on such terms and conditions as the Administrator, in its sole
discretion, shall determine.


 


(d)           SAR
Agreement.  Each SAR
grant shall be evidenced by a SAR Agreement that will specify the exercise
price, the term of the SAR, the conditions of exercise, and such other terms
and conditions as the Administrator, in its sole discretion, shall determine.


 


(e)           Expiration
of SARs.  A SAR
granted under the Plan shall expire upon the date determined by the Administrator,
in its sole discretion, and set forth in the SAR Agreement. Notwithstanding the
foregoing, the rules of Section 10(b) will also apply to SARs.


 


(f)            Payment of
SAR Amount.  Upon
exercise of a SAR, the Participant shall be entitled to receive a payment from
the Company in an amount equal to the difference between the Fair Market Value
of a Share on the date of exercise over the exercise price of the SAR. This
amount shall be paid in cash, Shares of equivalent value, or a combination of
both, as the Administrator shall determine.


 


13.          Cash Awards.  Each Cash Award will confer
upon the Participant the opportunity to earn a future payment tied to the level
of achievement with respect to one or more performance criteria established by
the Administrator for a performance period.


 


(a)           Cash
Award.  Each Cash Award shall contain
provisions regarding (i) the performance goal or goals and maximum amount
payable to the Participant as a Cash Award; (ii) the performance criteria
and level of achievement versus these criteria that shall determine the amount
of such payment; (iii) the period as to which performance shall be
measured for establishing the amount of any payment; (iv) the timing of
any payment earned by virtue of performance; (v) restrictions on the alienation
or transfer of the Cash Award before actual payment; (vi) forfeiture
provisions; and (vii) such further terms and conditions, in each case not
inconsistent with the Plan, as may be determined from time to time by the
Administrator. The maximum amount payable as a Cash Award that is settled for
cash may be a multiple of the target amount payable, but the maximum amount
payable pursuant to that portion of a Cash Award granted under this Plan for
any fiscal year to any Awardee that is intended to satisfy the requirements for
“performance-based compensation” under Section 162(m) of the Code
shall not exceed $2.5 million.


 


(b)           Performance
Criteria.  The
Administrator shall establish the performance criteria and level of achievement
versus these criteria that shall determine the target and the minimum and
maximum amount payable under a Cash Award, which criteria may be based on
financial performance or personal performance evaluations or both. The
Administrator may specify the percentage of the target Cash Award that is
intended to satisfy the requirements for “performance-based compensation” under
Section 162(m) of the Code. Notwithstanding anything to the contrary
herein, the performance criteria for any portion of a Cash Award that is
intended to satisfy the requirements for “performance-based compensation” under
Section 162(m) of the Code shall be a measure established by the
Administrator based on one or more Qualifying Performance Criteria selected by
the Administrator and specified in writing.


 


(c)           Timing and
Form of Payment.  The
Administrator shall determine the timing of payment of any Cash Award. The
Administrator may specify the form of payment of Cash Awards, which may be cash
or other property, or may provide for an Awardee to have the option for his or
her Cash Award, or such portion thereof as the Administrator may specify, to be
paid in whole or in part in cash or other property.


 


(d)           Termination
of Service.  The
Administrator shall have the discretion to determine the effect of a Termination
of Service on any Cash Award due to (i) disability, (ii) retirement, (iii) death,
(iv) participation in a voluntary severance program, or (v) participation
in a work force restructuring.


 


14.          Other Provisions Applicable to Awards.


 


(a)           Non-Transferability
of Awards.  Unless
determined otherwise by the Administrator, an Award may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent and distribution, and may be exercised, during
the lifetime of the Participant, only by the Participant. If the Administrator
makes an Award transferable, either at the time of grant or thereafter, such
Award shall contain such additional terms and conditions as the Administrator
deems appropriate, and any transferee shall be bound by such terms upon
acceptance of such transfer.


 


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(b)           Qualifying
Performance Criteria.  For
purposes of this Plan, the term “Qualifying Performance Criteria” shall mean
any one or more of the following performance criteria, applied to either the
Company as a whole or to a business unit, Affiliate, Related Corporation, or
business segment, either individually, alternatively, or in any combination,
and measured either annually or cumulatively over a period of years, on an
absolute basis or relative to a preestablished target, to previous years’
results or to a designated comparison group, in each case as specified in the
Award by the Committee: (i) cash flow, (ii) earnings (including gross
margin, earnings before interest and taxes, earnings before taxes, and net
earnings), (iii) earnings per share, (iv) growth in earnings or
earnings per share, (v) stock price, (vi) return on equity or average
stockholders’ equity, (vii) total stockholder return, (viii) return
on capital, (ix) return on assets or net assets, (x) return on
investment, (xi) revenue, (xii) income or net income,
(xiii) operating income or net operating income, (xiv) operating
profit or net operating profit, (xv) operating margin, (xvi) return
on operating revenue, (xvii) market share, (xviii) contract awards or
backlog, (xix) overhead or other expense reduction, (xx) growth in
stockholder value relative to the moving average of the S&P 500 Index
or a peer group index, (xxi) credit rating, (xxii) strategic plan
development and implementation, (xxiii) improvement in workforce
diversity, (xxiv) EBITDA, (xxv) annual volume in gasoline gallon
equivalents, (xxvi) total sales in U.S. dollars, and (xxvii) any
other similar criteria.


 


(c)           Certification.  Before payment of any compensation under an
Award intended to qualify as “performance-based compensation” under Section 162(m) of
the Code, the Committee shall certify the extent to which any Qualifying
Performance Criteria and any other material terms under such Award have been
satisfied (other than in cases where such relate solely to the increase in the
value of the Common Stock).


 


(d)           Discretionary
Adjustments Pursuant to Section 162(m).  Notwithstanding satisfaction or completion of
any Qualifying Performance Criteria, to the extent specified at the time of
grant of an Award to “covered employees” within the meaning of Section 162(m) of
the Code, the number of Shares, Options or other benefits granted, issued,
retained, or vested under an Award on account of satisfaction of such
Qualifying Performance Criteria may be reduced by the Committee on the basis of
such further considerations as the Committee in its sole discretion shall
determine.


 


(e)           Section 409A.  Notwithstanding anything in the Plan to the
contrary, it is the Company’s intent that all Awards granted under this Plan
comply with Section 409A of the Code, and each Award shall be interpreted
in a manner consistent with that intention.


 


15.          Adjustments upon Changes in Capitalization, Dissolution, Merger or
Asset Sale.


 


(a)           Changes
in Capitalization.


 


(i)            The limitations set forth in
Section 3, the number and kind of Shares covered by each outstanding
Award, and the price per Share (but not the total price) subject to each
outstanding Award shall be proportionally adjusted to prevent dilution or
enlargement of rights under the Plan for any change in the outstanding Common
Stock subject to the Plan, or subject to any Award, resulting from any stock
splits, combination or exchange of Shares, consolidation, spin-off or
recapitalization of Shares or any capital adjustment or transaction similar to
the foregoing or any distribution to holders of Common Stock other than regular
cash dividends.


 


(ii)           The Administrator shall make
such adjustment in such manner as it may deem equitable and appropriate,
subject to compliance with Applicable Laws. Any determination, substitution or
adjustment made by the Administrator under this Section shall be
conclusive and binding on all persons. The conversion of any convertible
securities of the Company shall not be treated as a transaction requiring any
substitution or adjustment under this Section. Except as expressly provided
herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of Shares subject to an Award.


 


(b)           Dissolution
or Liquidation.  In the event
of the proposed dissolution or liquidation of the Company, the Administrator
shall notify each Participant as soon as practicable before the effective date
of such proposed transaction. The Administrator in its discretion may provide
for an Option to be fully vested and exercisable until ten days before such
proposed transaction. In addition, the Administrator may provide that any
restrictions on any Award shall lapse before the proposed transaction, provided
the proposed dissolution or liquidation takes place at the time and in the
manner contemplated. To the extent it has not been previously exercised, an
Award will terminate immediately before the consummation of such proposed
transaction.


 


11

















 


(c)           Change in
Control.  If there is
a Change in Control of the Company, as determined by the Board or a Committee,
then unless otherwise expressly provided in the Award Agreement, all Options
and SARs granted to Employees shall fully vest, and any restrictions on all Stock
Awards and Cash Awards granted to Employees shall lapse, as of the effective
date of the Change in Control. In any Award in which the Board has determined
not to permit full vesting upon a Change in Control, the Board or Committee or
Board of Directors of any surviving entity or acquiring entity may, in its
discretion, in the Award Agreement (i) provide for the assumption,
continuation or substitution (including an award to acquire substantially the
same type of consideration paid to the stockholders in the transaction in which
the Change in Control occurs) of, or adjustment to, all or any part of the
Awards; (ii) accelerate the vesting of all or any part of the Options and
SARs and terminate any restrictions on all or any part of the Stock Awards or
Cash Awards; (iii) provide for the cancellation of all or any part of the
Awards for a cash payment to the Participants; or (iv) provide for the
cancellation of all or any part of the Awards as of the closing of the Change
in Control; provided, that the Participants are notified that they must
exercise or redeem their Awards (including, at the discretion of the Board or
Committee, any unvested portion of such Award) at or before the closing of the
Change in Control.


 


16.          Amendment and Termination of the Plan.


 


(a)           Amendment
and Termination.  The
Administrator may amend, alter, or discontinue the Plan or any Award Agreement,
but any such amendment shall be subject to approval of the stockholders of the
Company in the manner and to the extent required by Applicable Law.


 


(b)           Effect of
Amendment or Termination.  No
amendment, suspension, or termination of the Plan shall materially impair the
rights of any Award, unless agreed otherwise between the Participant and the
Administrator. Termination of the Plan shall not affect the Administrator’s
ability to exercise the powers granted to it hereunder with respect to Awards
granted under the Plan before the date of such termination.


 


(c)           Effect of
the Plan on Other Arrangements.  Neither the adoption of the Plan by the Board
or a Committee nor the submission of the Plan to the stockholders of the
Company for approval shall be construed as creating any limitations on the
power of the Board or any Committee to adopt such other incentive arrangements
as it or they may deem desirable, including the granting of restricted stock or
stock options otherwise than under the Plan, and such arrangements may be
either generally applicable or applicable only in specific cases.


 


17.          Designation of Beneficiary.


 


(a)           An Awardee may
file a written designation of a beneficiary who is to receive the Awardee’s
rights pursuant to Awardee’s Award or the Awardee may include his or her Awards
in an omnibus beneficiary designation for all rights under the Awardee’s Awards
and all benefits under the Plan. To the extent that Awardee has completed a
designation of beneficiary such beneficiary designation shall remain in effect
with respect to any Award hereunder until changed by the Awardee to the extent
enforceable under Applicable Law.


 


(b)           The Awardee may change such
designation of beneficiary at any time by written notice. If an Awardee dies
and no beneficiary is validly designated under the Plan who is living at the
time of such Awardee’s death, the Company shall allow the executor or administrator
of the estate of the Awardee to receive the Awardee’s rights under the Awardee’s
Awards and all benefits under the Plan, or if no such executor or administrator
has been appointed (to the knowledge of the Company), the Company, in its
discretion, may allow the spouse or one or more dependents or relatives of the
Awardee to receive the Awardee’s rights under the Awardee’s Awards and all
benefits under the Plan to the extent permissible under Applicable Law.


 


18.          No Right to Awards or to Service. 
No person shall have any
claim or right to be granted an Award and the grant of any Award shall not be
construed as giving an Awardee the right to continue in the service of the
Company or its Affiliates. Further, the Company and its Affiliates expressly reserve
the right, at any time, to dismiss any Service Provider or Awardee at any time
without liability or any claim under the Plan, except as provided herein or in
any Award Agreement entered into hereunder.


 


19.          Preemptive Rights.   No Shares will be issued under the Plan in violation of any preemptive
rights held by any stockholder of the Company.


 


20.          Legal Compliance.  No Share will be issued pursuant to an Award under the Plan unless the
issuance and delivery of such Share, as well as the exercise of such Award, if
applicable, will comply with Applicable Laws. Issuance of Shares under the Plan
shall be subject to the approval of counsel for the Company with respect to
such compliance. Notwithstanding anything in the Plan to the contrary, the Plan
is intended to comply with the requirements of Section 409A of the Code
and shall be interpreted in a manner consistent with that intention.


 


12

















 


21.          Inability to Obtain Authority.  To the extent the Company is unable to or the Administrator deems that it
is not feasible to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company’s counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, the Company
shall be relieved of any liability with respect to the failure to issue or sell
such Shares as to which such requisite authority shall not have been obtained.


 


22.          Reservation of Shares.  The Company, during the term of this Plan, will at all times reserve and
keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.


 


23.          Notice.  Any written notice to the Company required by any provisions of this Plan
shall be addressed to the Secretary of the Company and shall be effective when
received.


 


24.          Governing Law; Interpretation of Plan and Awards.


 


(a)           This Plan and
all determinations made and actions taken pursuant hereto shall be governed by
the substantive laws, but not the choice of law rules, of the State of
Delaware.


 


(b)           If any provision of the Plan
or any Award granted under the Plan is declared to be illegal, invalid, or
otherwise unenforceable by a court of competent jurisdiction, such provision
shall be reformed, if possible, to the extent necessary to render it legal,
valid, and enforceable, or otherwise deleted, and the remainder of the terms of
the Plan and Award shall not be affected except to the extent necessary to
reform or delete such illegal, invalid, or unenforceable provision.


 


(c)           The headings preceding the
text of the sections hereof are inserted solely for convenience of reference,
and shall not constitute a part of the Plan, nor shall they affect its meaning,
construction or effect.


 


(d)           The terms of the Plan and
any Award shall inure to the benefit of and be binding upon the parties hereto
and their respective permitted heirs, beneficiaries, successors, and assigns.


 


(e)           All questions arising under
the Plan or under any Award shall be decided by the Administrator in its total
and absolute discretion. If the Participant believes that a decision by the
Administrator with respect to such person was arbitrary or capricious, the
Participant may request arbitration with respect to such decision. The review
by the arbitrator shall be limited to determining whether the Administrator’s
decision was arbitrary or capricious. This arbitration shall be the sole and
exclusive review permitted of the Administrator’s decision, and the Awardee
shall as a condition to the receipt of an Award be deemed to waive explicitly
any right to judicial review.


 


25.          Limitation on
Liability.  The Company and
any Affiliate or Related Corporation that is in existence or hereafter comes
into existence shall not be liable to a Participant, an Employee, an Awardee,
or any other persons as to:


 


(a)           The
Non-Issuance of Shares.  The
non-issuance or sale of Shares as to which the Company has been unable to
obtain from any regulatory body having jurisdiction the authority deemed by the
Company’s counsel to be necessary to the lawful issuance and sale of any shares
hereunder; and


 


(b)           Tax
Consequences.  Any tax
consequence expected, but not realized, by any Participant, Employee, Awardee
or other person due to the receipt, exercise or settlement of any Option or
other Award granted hereunder.


 


26.          Unfunded Plan.  Insofar
as it provides for Awards, the Plan shall be unfunded. Although bookkeeping
accounts may be established with respect to Awardees who are granted Stock
Awards under this Plan, any such accounts will be used merely as a bookkeeping
convenience. The Company shall not be required to segregate any assets that may
at any time be represented by Awards, nor shall this Plan be construed as
providing for such segregation, nor shall the Company or the Administrator be deemed
a trustee of stock or cash to be awarded under the Plan. Any liability of the
Company to any Participant with respect to an Award shall be based solely upon
any contractual obligations that may be created by the Plan; no such obligation
of the Company shall be deemed secured by any pledge or other encumbrance on
any property of the Company. Neither the Company nor the Administrator shall be
required to give any security or bond for the performance of any obligation
that may be created by this Plan.


 


13

















 


IN WITNESS WHEREOF, the
Company, by its duly authorized officer, has executed this Plan, effective as
of May 12, 2009.


 


	
   

  	
  CLEAN ENERGY FUELS CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew J. Littlefair

  
	
   

  	
  Its:

  	
  President and CEO

  



 


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