EXHIBIT
10.1
ECOSPHERE TECHNOLOGIES,
INC.
NON-QUALIFIED STOCK OPTION
AGREEMENT
THIS STOCK OPTION AGREEMENT (the
“Agreement”) entered into this ___ day of November,
2007, between Ecosphere Technologies, Inc. (the
“Company”), and _____________ (the
“Optionee”).
WHEREAS, pursuant to the Management
Compensation Adjustment Plan (the “Plan”), the Optionee
was granted non-qualified stock options from the Company subject to
closing the UltraStrip Envirobotic Solutions, Inc. asset sale.
NOW THEREFORE, in consideration of the
mutual covenants and promises hereafter set forth and for other
good and valuable consideration, receipt of which is acknowledged,
the parties hereto agree as follows:
1.
Grant of Non-Qualified
Options . The Company
affirms that the Optionee has the right and option (the
“Options”) to purchase all or any part of an aggregate
of __________ shares of authorized but unissued or treasury common
stock of the Company on the terms and conditions herein set
forth.
The common stock shall be unregistered
unless the Company voluntarily files a registration statement
covering such shares with the Securities and Exchange Commission.
The Options are not intended to be Incentive Stock Options as
defined by Section 422 of the Internal Revenue Code of 1986, (the
“Code”) and are not issued under the Company’s
2006 Equity Incentive Plan.
2.
Price . The exercise price of the shares of common
stock subject to the Options shall be $0.15 per share.
3.
When Exercisable
. The Options are fully vested and
exercisable through July 31, 2012.
4.
Forfeiture of Options
.
Notwithstanding any other provision of
this Agreement, at the option of the Board of Directors, all
Options shall be immediately forfeited in the event of:
(1)
Where applicable, termination as an
employee of the Company for cause or fraud, theft, dishonesty or
violation of Company policy.
(2)
Purchasing or selling securities of the
Company without written authorization in accordance with the
Company's inside information guidelines then in effect;
(3)
Breaching any duty of confidentiality
including that required by the Company's inside information
guidelines then in effect;
(4)
Competing with the Company;
(5)
Where applicable, being unavailable for
consultation after termination of his relationship with the
Company's employ if such availability is a condition of any
agreement between the Company and the Optionee;
(6)
Recruitment of Company personnel after
termination of, whether such termination is voluntary or for
cause;
(7)
Failure to assign any invention or
technology to the Company if such assignment is a condition of any
agreements between the Company and the Optionee; and
(8)
A finding by the Company’s Board
that the Optionee has acted against the interests of the
Company.
5.
Profits on the Sale of Certain Shares;
Redemption . If any of
the events specified in Section 4 of this Agreement occur within
one year from the last date of employment with the Company (the
“Termination Date”) (or such longer period required by
any written employment agreement), all profits earned from the
Optionee’s sale of the Company's securities, including the
sale of shares of Common Stock underlying Options, during the
two-year period commencing one year prior to the Termination Date
shall be forfeited and forthwith paid by the Optionee to the
Company. Further, in such event, the Company may at its
option redeem shares of Common Stock acquired upon exercise of
Options. The Company's rights under this Section 5 do not
lapse one year from the Termination Date but are a contract right
subject to any appropriate statutory limitation period.
6.
Method of Exercise
. The Options shall be exercisable
by a written notice which shall:
(a)
state the election to exercise the
Options, the number of shares to be exercised, the person in whose
name the stock certificate or certificates for such shares of
common stock is to be registered, his address and social security
number (or if more than one, the names, addresses and social
security numbers of such persons);
(b)
contain such representations and
agreements as to the holder's investment intent with respect to
such shares of common stock as set forth in Section 9
hereof;
(c)
be signed by the person or persons
entitled to exercise the Options and, if the Options are being
exercised by any person or persons other than the Optionee, be
accompanied by proof, satisfactory to counsel for the Company, of
the right of such person or persons to exercise the
Options.
2
(d)
be accompanied by full payment of the
purchase or exercise price therefor in United States dollars by
check.
The certificate or certificates for
shares of common stock as to which the Options shall be exercised
shall be registered in the name of the person or persons exercising
the Options.
7.
Adjustments . Upon the occurrence of any of the following
events, the Optionee's rights with respect to Options granted to
him hereunder shall be adjusted as hereinafter provided unless
otherwise specifically provided in a written agreement between the
Optionee and the Company relating to such Options:
(a)
If the shares of common stock shall be
subdivided or combined into a greater or smaller number of shares
or if the Company shall issue any shares of its common stock as a
stock dividend on its outstanding common stock, the number of
shares of common stock deliverable upon the exercise of Options
shall be appropriately increased or decreased proportionately, and
appropriate adjustments shall be made in the purchase price per
share to reflect such subdivision, combination or stock
dividend.
(b)
If the Company is to be consolidated with
or acquired by another entity pursuant to an Acquisition, the board
of directors of any entity assuming the obligations of the Company
hereunder (the “Successor Board”) shall either (i) make
appropriate provision for the continuation of such Options by
substituting on an equitable basis for the shares then subject to
such Options the consideration payable with respect to the
outstanding shares of common st
