EXHIBIT
10.4
ECOSPHERE TECHNOLOGIES,
INC.
NON-QUALIFIED STOCK OPTION
AGREEMENT
THIS STOCK OPTION AGREEMENT (the
“Agreement”) entered into this 1st day of February,
2008, between Ecosphere Technologies, Inc. (the
“Company”), and Jacqueline McGuire (the
“Optionee”).
WHEREAS, pursuant to the Warrant and
Option Exchange Offer (the “Offer”), the Optionee was
granted non-qualified stock options from the Company in exchange
for previously issued options or warrants.
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
irrevocably grants to the Optionee the right and option (the
“Options”) to purchase all or any part of an aggregate
of 80,000 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 is disclosed on the form of Option
annexed as Exhibit A.
3.
When Exercisable
. The Options are fully vested and
exercisable through January 31, 2011.
4.
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 7
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.
(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.
5.
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 stock in connection with the
Acquisition; or (ii) terminate all Options in exchange for a cash
payment equal to the excess of the fair market value of the shares
subject to such Options over the exercise price thereof.
(c)
In the event of a recapitalization or
reorganization of the Company (other than a transaction described
in Section 5(b) above) pursuant to which securities of the Company
or of another corporation are issued with respect to the
outstanding shares of common stock, the Optionee upon exercising
Options shall be entitled to receive for the purchase price paid
upon such exercise the securities he would have received if he had
exercised his Options prior to such recapitalization or
reorganization. !
(d)
Except as expressly provided herein, no
issuance by the Company of shares of common stock of any class or
securities convertible into shares of common 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 Options.
No adjustments shall be made for dividends or other
distributions paid in cash or in property other than securities of
the Company.
(e)
No fractional shares shall be issued and
the Optionee shall receive from the
2
Company cash in lieu of such fractional
shares.
(f)
The Board or the Successor Board shall
determine the specific adjustments to be made under this Section 5,
and its determination shall be conclusive. If the Optionee
receives securities or cash in connection with a corporate
transaction described in Section 5(a), (b) or (c) above as a result
of owning such restricted common stock, such securities or cash
shall be subject to all of the conditions and restrictions
applicable to the restricted common stock with respect to which
such securities or cash were issued, unless otherwise determined by
the Board or the Successor Board.
6.
Necessity to Become Holder of
Record . Neither the
Optionee, nor his estate, shall have any rights as a stockholder
with respect to any shares covered by the Options until such person
shall have become the holder of record of such shares. No
adjustment shall be made for cash dividends or cash distributions,
ordinary or extraordinary, in respect of such shares for which the
record date is prior to the date on wh
