Form of Director Restricted Stock Agreement - Initial Grant

 

This Restricted Stock Agreement (this “Agreement”) entered into as of [See Schedule A], sets forth the terms and conditions of an award (this “Award”) of restricted stock granted by Ecosphere Technologies, Inc., a Delaware corporation (the “Company”), to [See Schedule A] (the “Recipient”) under the 2006 Equity Incentive Plan (the “Plan”).

 

               1.           The Plan. This Award is made pursuant to the Plan, the terms of which are incorporated in this Agreement.  Capitalized terms used in this Agreement that are not defined in this Agreement have the meanings as used or defined in the Plan.

 

2.            Award. The Recipient has been granted [See Schedule A] shares of restricted common stock (“Restricted Stock”) in connection with the Recipient providing service as a director, director advisor or board committee member.  All certificates issued shall contain an appropriate restrictive legend.  This Agreement replaces any and all restricted stock agreements between the parties, if any, with respect to this Award.

 

3.            Vesting.

(a)           The shares of Restricted Stock shall in equal annual increments over a three-year period with the first vesting date being one year from the date of this Agreement, subject to continued service in the capacity for which the Award were granted.  The Restricted Stock shall be unregistered unless the Company voluntarily files a registration statement covering such shares with the Securities and Exchange Commission. Notwithstanding any other provision in this Agreement, the Restricted Stock automatically vest on the date of a Change in Control, as defined under the Plan.

(b)           Notwithstanding any other provision of this Agreement, at the option of the Board of Directors or the Compensation Committee, all shares of Restricted Stock subject to this Agreement shall be immediately forfeited in the event of:

(1)           Purchasing or selling securities of the Company not in accordance with the Company’s inside information guidelines then in effect;

(2)           Breaching any duty of confidentiality including that required by the Company’s inside information guidelines then in effect;

(3)           Competing with the Company; or

 (4)             Recruitment of Company personnel after ceasing to be a director, director advisor or committee member.

4.           Anti-Dilution Provisions.  The Restricted Stock granted hereunder shall be subject to the Plan, including its anti-dilution provisions.

5.           Profits on the Sale of Certain Shares; Cancellation.  If any of the events specified in Section 3(b) of this Agreement occur within one year from the last day performing services for the Company in the capacity for which this Award was granted (the “Termination Date”), all profits earned from the Recipient’s sale of the Restricted Stock during the two-year period commencing one year prior to the Termination Date shall be forfeited and forthwith paid by the Recipient to the Company.  Further, in such event, the Company may at its option cancel the shares of Restricted Stock granted under this Agreement.  The Company’s rights under this Section do not l apse one year from the Termination Date but are a contract right subject to any appropriate statutory limitation period.

6.           Notices and Addresses.  All notices, offers, acceptance and any other acts under this  Agreement (except payment) shall be in writing, and shall be sufficiently given if delivered to the addressees in person, by FedEx or similar overnight next business day delivery, or by facsimile delivery followed by overnight next day delivery, as follows:

 

	The Recipient:
		Facsimile:
	The Company:	Ecosphere Technologies, Inc.
		3515 S.E. Lionel Terrace
		Stuart, Florida 34997
		Attention: Chief Financial Officer
		Facsimile: (772) 781-4778
	with a copy to:	Michael D. Harris, Esq.
		Harris Cramer LLP
		1555 Palm Beach Lakes Blvd., Suite 310
		West Palm Beach, FL 33401
		Facsimile:   ###-###-####

or to such other address as either of them, by notice to the other may designate from time to time.  The transmission confirmation receipt from the sender’s facsimile machine shall be evidence of successful facsimile delivery.  Time shall be counted to, or from, as the case may be, the delivery in person or by mailing.

7.           Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.  The execution of this Agreement may be by actual or facsimile signature.

 

11.            Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.

 

 

12.            Headings.  The headings in this Agreement are for the purpose of convenience only and are not intended to define or limit the construction of the provisions hereof.

 

 

[Signature Page To Follow]

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed and delivered as of the date aforesaid.

WITNESSES:			ECOSPHERE TECHNOLOGIES, INC.
		By:
			Adrian Goldfarb Chief Financial Officer
			RECIPIENT

 

 

Name: Charles Vinick

Date: December 22, 2009

Restricted Stock: 174,419 shares