EXHIBIT 10.9
STOCK OPTION GRANT NOTICE AND
STOCK OPTION AGREEMENT
Environmental Service
Professionals,
Inc., a Nevada
corporation (the
"Company"), grants to
the holder
listed below ("Participant") an option to
purchase the number of shares of the Company's common stock, par value $0.001
("Shares") set forth below (the "Option") under its 2008 ESP Stock
and Incentive
Plan (the "Plan"). The
Option is subject to all of the terms and conditions set
forth in this Notice
and in the Stock
Option Agreement
attached as Exhibit
A
(the "Stock Option
Agreement") and the Plan, which are incorporated herein by
reference. Unless
otherwise defined herein, the terms defined in the Plan shall
have the same defined
meanings in this Grant Notice and the Stock Option
Agreement.
Participant:
________________________________
Grant Date:
________________________________
Total Number of Shares
Subject to the Option:
________________________________
Exercise Price per Share:
________________________________
Total Exercise Price:
________________________________
Expiration Date:
________________________________
Type of Option:
Incentive Stock Option /
Non-Qualified Stock Option
Vesting Schedule:
________________________________
________________________________
________________________________
By signing
below, Participant agrees to be bound by the terms and
conditions of the
Plan, the Stock
Option Agreement and this Grant Notice.
Participant has
reviewed the Stock
Option Agreement,
the Plan and this
Grant
Notice in their entirety, has had an opportunity to obtain the
advice of counsel
prior to executing
this Grant Notice and fully understands all provisions of
this Grant Notice, the
Stock Option Agreement and the Plan. Participant hereby
agrees to accept as binding, conclusive and final all decisions or
interpretations of the
Administrator
of the Plan upon any
questions arising
under the Plan or relating to the Option.
Environmental Service Professionals, Inc.
By:
-----------------------------------
-----------------------------------
Name/Title:
Participant
<PAGE>
EXHIBIT A
To Stock Option Grant Notice
To
Stock Option Agreement
The Company has granted to Participant an option under the Company's
2008 ESP Stock and Incentive Plan (the "Plan") to purchase the
number of Shares
indicated in the attached Stock Option Grant Notice (the "Grant
Notice").
ARTICLE 1
General
1.1 DEFINED TERMS.
Capitalized terms not
specifically defined
herein
shall have the meanings specified in the Plan and the Grant
Notice.
1.2 INCORPORATION OF
TERMS OF PLAN. The Option is subject to the terms
and conditions of the Plan which are incorporated herein by
reference.
ARTICLE 2
GRANT OF OPTION
2.1
GRANT OF OPTION. In
consideration
of Participant's past and/or
continued employment
with or service to the
Company or an
Affiliate and for
other good and valuable consideration, effective as of the Grant Date set
forth
in the Grant Notice
(the "Grant
Date"), the Company irrevocably grants to
Participant the Option to purchase any part or all of an aggregate
of the number
of Shares set forth in the Grant Notice, upon the terms and
conditions set forth
in the Plan and this
Agreement. Unless
designated
as a Non-Qualified Stock
Option in the Grant Notice, the Option shall be an Incentive Stock
Option to the
maximum extent permitted by law.
2.2 EXERCISE PRICE.
The exercise
price of the Shares
subject to the
Option shall be as set forth in the Grant Notice, without commission or other
charge; provided, however, that the price per share of the Shares
subject to the
Option shall not be
less than 100% of the Fair Market Value of a Share on the
Grant Date.
Notwithstanding the
foregoing, if this
Option is designated as an
Incentive Stock
Option and
Participant
owns (within the meaning of Section
424(d) of the Code)
more than 10% of the
total combined
voting power of all
classes of stock of the Company or any "subsidiary corporation" of the Company
or any "parent
corporation" of the
Company (each within the meaning of Section
424 of the Code), the
price per share of the Shares subject to the Option shall
not be less than 110% of the Fair Market Value of a Share on the
Grant Date.
2.3 CONSIDERATION TO THE COMPANY. In consideration of the grant of
the
Option by the Company,
Participant
agrees to render
faithful and efficient
services to the
Company and its Affiliates. Nothing in the Plan or this
Agreement shall confer
upon Participant any
right to continue in the employ or
-2-
<PAGE>
service of the Company or any Affiliate or shall interfere with or restrict in
any way the rights of the Company and its Affiliates, which rights are hereby
expressly reserved, to discharge or terminate the services of
Participant at any
time for any reason whatsoever, with or without Cause (as defined
in the Plan),
except to the extent expressly provided otherwise in a written
agreement between
the Company or its Affiliates and a Participant.
ARTICLE 3
PERIOD OF EXERCISABILITY
3.1 COMMENCEMENT OF EXERCISABILITY.
(a) Subject to Sections 3.3, 5.7, 5.9, and 5.14, the Option
shall become vested and exercisable in such amounts and at such
times
as are set forth in the Grant Notice.
(b) No portion of the
Option that has not
become vested and
exercisable at the date of Participant's Termination of Service shall
thereafter become
vested and
exercisable, except as
may be otherwise
provided by the
Administrator or as
set forth in a written
agreement
between the Company and Participant.
3.2 DURATION OF
EXERCISABILITY. The
installments provided
for in the
vesting schedule
set forth in the Grant Notice are cumulative. Each such
installment which
becomes vested and exercisable pursuant to the vesting
schedule set forth in the Grant Notice shall remain vested and
exercisable until
it becomes unexercisable under Section 3.3.
3.3 EXPIRATION OF OPTION. The Option may not be exercised to any
extent
by anyone after the first to occur of the following events:
(a) The expiration of ten years from the Grant Date;
(b) If this Option is designated as an Incentive Stock Option
and Participant
owned (within the meaning of Section 424(d) of the
Code), at the time the
Option was granted,
more than 10% of the total
combined voting
power of all
classes of stock of
the Company or any
"subsidiary
corporation" of the Company or any "parent corporation" of
the Company (each
within the meaning of Section 424 of the Code), the
expiration of five years from the Grant Date;
(c) The expiration of three months from the date of
Participant's Termination of Service, unless such termination
occurs by
reason of Participant's death, Disability or Participant's
discharge
for Cause;
(d) The expiration of one year from the date of Participant's
Termination of Service by reason of Participant's death or Disability;
or
(e) The date of
Participant's
Termination of Service
by the
Company or any of its Affiliates by reason of Participant's discharge
for Cause.
-3-
<PAGE>
Participant
acknowledges that an Incentive Stock Option exercised more
than three months after Participant's Termination of Employment,
other than by
reason of death or Disability, will be taxed as a Non-Qualified
Stock Option.
3.4 SPECIAL TAX
CONSEQUENCES.
Participant
acknowledges that, to
the
extent that the
aggregate Fair
Market Value (determined as of the time the
Option is granted) of all Shares with respect to which Incentive Stock Options,
including the Option,
are exercisable for
the first time by Participant in any
calendar year
exceeds $100,000, the Option and such other
options shall be
Non-Qualified Stock
Options to the extent necessary to comply with the
limitations imposed
by Section 422(d) of the Code. Participant further
acknowledges that the rule set forth in the preceding sentence shall be applied
by taking the Option and other Incentive Stock Options into account
in the order
in which they were granted, as determined under Section 422(d) of the Code
and
the Treasury Regulations thereunder.
ARTICLE 4
EXERCISE OF OPTION
4.1 PERSON ELIGIBLE TO EXERCISE. Except as provided in Sections
5.2(b)
and 5.2(c), during the
lifetime of Participant, only Participant may exercise
the Option
or any portion thereof. After the death of Participant, any
exercisable portion of the Option may, prior to the time when the
Option becomes
unexercisable under
Section 3.3, be exercised by Participant's personal
representative or
by any person empowered to do so under the deceased
Participant's
will or under the then applicable laws of descent and
distribution.
4.2 PARTIAL
EXERCISE. Any exercisable portion of the Option or the
entire Option, if then wholly exercisable, may be exercised in whole or in
part
at any time prior to
the time when the Option or portion thereof becomes
unexercisable under Section 3.3.
4.3 MANNER OF EXERCISE. The Option, or any exercisable portion
thereof,
may be exercised
solely by delivery to the Secretary of the Company or the
Secretary's office of
all of the following prior to the time when the Option or
such portion thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice
electronically or in writing signed by
Participant or any other person then entitled to exercise the
Option or
portion thereof,
stating that the Option or portion thereof is thereby
exercised, such notice
complying with all applicable rules established
by the Administrator.
Such notice shall be
substantially in the
form
attached as
Exhibit B to the Grant
Notice (or such other form as is
prescribed by the Administrator);
(b) The receipt by the Company of full payment for the Shares
with respect
to which the Option or
portion thereof is exercised,
including payment of
any applicable
withholding tax, which
may be in
one or more of the forms of consideration permitted under Section
4.4;
(c) A bona fide written representation and agreement, in such
form as is prescribed by the Administrator, signed by Participant or
the other person
then entitled to exercise such Option or portion
thereof, stating that
the Shares are being acquired for Participant's
own account,
for investment and without any present intention of
-4-
<PAGE>
distributing or
reselling said Shares
or any of them except as may be
permitted under the Securities Act of 1933 (the "Securities Act") and
then applicable
rules and regulations thereunder and any other
applicable law, and
that Participant or
other person then entitled to
exercise such Option
or portion thereof
will indemnify the Company
against and hold it free and harmless from any loss, damage,
expense or
liability resulting to
the Company if any sale or distribution of the
Shares by such person is contrary to the representation and agreement
referred to above. The Administrator may, in its absolute discretion,
take whatever
additional actions it
deems appropriate
to ensure the
observance and performance of such representation and agreement and
to
effect compliance
with the Securities Act and any other federal or
state securities
laws or regulations
and any other
applicable
law.
Without limiting the generality of the foregoing, the Administrator
may
require an opinion of counsel acceptable to it to the effect that any
subsequent transfer of
Shares acquired on an
Option exercise does not
violate the Securities Act, and may issue stop-transfer orders
covering
such Shares. Share certificates evidencing Shares issued on
exercise of
the Option shall bear an appropriate legend referring to the
provisions
of this subsection (c) and the agreements herein. The written
representation and
agreement referred to in the first sentence of this
subsection (c) shall,
however, not be required if the Shares to be
issued pursuant
to such exercise have been registered under
