Vertex Energy, Inc. S-8 







 


Exhibit
4.5


 


VERTEX
ENERGY, INC.


 


2020
EQUITY INCENTIVE PLAN


 


FORM
OF STOCK OPTION AGREEMENT


 


Unless
otherwise defined herein, the terms in the Stock Option Agreement (the “Option Agreement”) have the
same meanings as defined in the Vertex Energy, Inc. 2020 Equity Incentive Plan (as amended from time to time)(the “Plan”).


 


I.                NOTICE
OF STOCK OPTION GRANT


 


Optionee:  «Option_Holder»


 


Address: ___________________________________


 


You
have been granted an Option to purchase Common Stock of the Company (the “Option”), subject to the terms
and conditions of the Plan and this Option Agreement, as follows:


 


Grant
Date:  «Grant Date»


 


Vesting
Commencement Date:  «Vesting Start Date»


 


Exercise
Price per Share: $ «Exercise Price»


 


Total
Number of Shares Granted: «Options»


 


Total
Exercise Price: «Aggregate_Exercise_Price»


 


Type
of Option: «Incentive Stock Option/Non Qualified Stock Option» 


 


Expiration
Date: «Expiration Date»


 


Vesting
Schedule: 1/4th of such Options vest on the first, second, third and fourth anniversaries of the Grant
Date, subject to the terms hereof and the Plan.


 


To
the extent vested, this Option will be exercisable for three (3) months following the Termination of Service of Optionee, unless
termination is due to Optionee’s death or Disability, in which case this Option will be exercisable for twelve (12) months following
the Termination of Service of Optionee. In the event of termination due to Optionee’s death, the Company shall use commercially
reasonable efforts to notify Optionee’s estate of the exercisability of the Option following Optionee’s death. Notwithstanding
the foregoing sentence, in no event may this Option be exercised following the Termination of Service of Optionee as determined
by the Company’s Board to be for Cause or after the Expiration Date as provided above and this Option may be subject
to earlier termination as provided in the Plan.


 


“Cause”
has the meaning ascribed to such term or words of similar import in Optionee’s written employment or service contract with
the Company or its parent or any subsidiary and, in the absence of such agreement or definition, means Optionee’s (i) conviction
of, or plea of nolo contendere to, a felony or any other crime involving moral turpitude; (ii) fraud on or misappropriation
of any funds or property of the Company or its subsidiaries, or any affiliate, customer or vendor; (iii) personal dishonesty,
incompetence, willful misconduct, willful violation of any law, rule or regulation (other than minor traffic violations or similar
offenses), or breach of fiduciary duty which involves personal profit; (iv) willful misconduct in connection with Optionee’s
duties or willful failure to perform Optionee’s responsibilities in the best interests of the Company or its subsidiaries;
(v) illegal use or distribution of drugs; (vi) violation of any material rule, regulation, procedure or policy of the
Company or its subsidiaries, the violation of which could have a material detriment to the Company; or (vii) material breach
of any provision of any employment, non-disclosure, non-competition, non-solicitation or other similar agreement executed by Optionee
for the benefit of the Company or its subsidiaries, all as reasonably determined by the Company’s Board of Directors, which
determination will be conclusive.


 






    
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Legends.


 


(a)            
All certificates representing the Shares issued upon exercise of this Option shall, prior to such date as the Plan and Common
Stock hereunder are covered by a valid Form S-8 or similar U.S. federal registration statement, where applicable, have endorsed
thereon the following legend:


 


THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT
TO THE RELEVANT PROVISIONS OF U.S. FEDERAL, STATE AND FOREIGN SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER U.S. FEDERAL, STATE AND FOREIGN SECURITIES LAWS IS NOT REQUIRED.


 


(b)            
If the Option is an incentive stock option (ISO), then the following legend will be included:


 


THE
SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED UPON EXERCISE OF AN INCENTIVE STOCK OPTION, AND THE COMPANY MUST BE NOTIFIED
IF THE SHARES SHALL BE TRANSFERRED BEFORE THE LATER OF THE TWO (2) YEAR ANNIVERSARY OF THE DATE OF GRANT OF THE OPTION OR THE
ONE (1) YEAR ANNIVERSARY OF THE DATE ON WHICH THE OPTION WAS EXERCISED. THE REGISTERED HOLDER MAY RECOGNIZE ORDINARY INCOME IF
THE SHARES ARE TRANSFERRED BEFORE SUCH DATE.


 


II. AGREEMENT


 


1. Grant
of Option. The Administrator grants to the Optionee named in the Notice of Stock Option Grant in Part I of
this Option Agreement, an Option to purchase the number of Shares set forth in the Notice of Stock Option Grant, at the exercise
price per Share set forth in the Notice of Stock Option Grant (the “Exercise Price”), and subject to
the terms and conditions of the Plan, which is incorporated herein by reference. In the event of a conflict between the terms
and conditions of the Plan and this Option Agreement, the terms and conditions of the Plan prevail.


 


If
designated in the Notice of Stock Option Grant as an Incentive Stock Option, this Option is intended to qualify as an Incentive
Stock Option as defined in Code section 422. Nevertheless, to the extent that it exceeds the $100,000 rule of Code section 422(d),
this Option will be treated as a Nonstatutory/Non-Qualified Stock Option.


 


2. Exercise
of Option.


 


(a) Right
to Exercise. This Option is exercisable during its term in accordance with the Vesting Schedule set out in the Notice of Stock
Option Grant and with the applicable provisions of the Plan and this Option Agreement.


 






    
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(b) Method
of Exercise. This Option is exercisable by (i) delivery of an exercise notice in the form attached as Exhibit A (the
“Exercise Notice”) or in a manner and pursuant to procedures as the Administrator may determine, which
will state the election to exercise the Option, the number of Shares with respect to which the Option is being exercised, and
other representations and agreements as may be required by the Company and (ii) paying the Company in full the aggregate Exercise
Price as to all Shares being acquired, together with any applicable tax withholding.


 


This
Option will be deemed to be exercised upon receipt by the Company of a fully executed Exercise Notice accompanied by the aggregate
Exercise Price, together with any applicable tax withholding.


 


No
Shares will be issued pursuant to the exercise of an Option unless the issuance and exercise of Shares complies with applicable
state and federal laws (“Applicable Laws”). Assuming compliance, for income tax purposes the Shares
will be considered transferred to the Optionee on the date on which the Option is exercised with respect to the Shares.


 


3. Method
of Payment. The aggregate Exercise Price may be paid by any of the following, or a combination thereof, at the election of
the Optionee:


 


(a)
cash;


 


(b)
check;


 


(c)
to the extent not prohibited by Section 402 of the Sarbanes-Oxley Act of 2002, a promissory note;


 


(d)
other shares of Common Stock, provided Shares have a Fair Market Value on the date of surrender equal to the aggregate exercise
price of the Shares as to which said Option will be exercised;


 


(e)
by asking the Company to withhold Shares from the total Shares to be delivered upon exercise equal to the number of Shares having
a value equal to the aggregate Exercise Price of the Shares being acquired;


 


(f)
any combination of the foregoing methods of payment; or


 


(g) such
other consideration and method of payment for the issuance of Shares to the extent permitted by Applicable Laws.


 


4. Restrictions
on Exercise. This Option may not be exercised if the issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any Applicable Laws. The Company will be relieved of any liability
with respect to any delayed issuance of shares or its failure to issue shares if such delay or failure is necessary to comply
with Applicable Laws.


 


5. Non-Transferability
of Option. This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Optionee only by Optionee. The terms of the Plan and this Option Agreement are binding
upon the executors, administrators, heirs, successors and assigns of the Optionee.


 


6. Term
of Option. This Option may be exercised only within the term set out in the Notice of Stock Option Grant, and may be exercised
during the term only in accordance with the Plan and the terms of this Option.


 






    
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7. Tax
Obligations.


 


(a) Withholding
Taxes. Optionee agrees to arrange for the satisfaction of all Federal, state, local and foreign income and employment tax
withholding requirements applicable to the Option exercise. Optionee acknowledges and agrees that the Company may refuse to honor
the exercise and refuse to deliver the Shares if withholding amounts are not delivered at the time of exercise.


 


(b) Notice
of Disqualifying Disposition of ISO Shares. If the Option granted to Optionee is an Incentive Stock Option (“ISO”),
and if Optionee sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or before the later of (i) the
date two (2) years after the Grant Date, or (ii) the date one (1) year after the date of exercise, the Optionee must immediately
notify the Company of the disposition in writing. Optionee agrees that Optionee may be subject to income tax withholding by the
Company on the compensation income recognized by the Optionee.


 


(c) Code
Section 409A. Under Code section 409A, an Option that was granted with a per Share exercise price that is determined
by the Internal Revenue Service (the “IRS”) to be less than the Fair Market Value of a Share on the
Grant Date (a “discount option”) may be considered deferred compensation. An Option that is a discount
option may result in (i) income recognition by the Optionee prior to the exercise of the Option, (ii) an additional twenty percent
(20%) tax, and (iii) potential penalty and interest charges. Optionee acknowledges that the Company cannot and has not guaranteed
that the IRS will agree that the per Share Exercise Price of this Option equals or exceeds Fair Market Value of a Share on the
Grant Date in a later examination. Optionee agrees that if the IRS determines that the Option was granted with a per Share exercise
price that was less than the Fair Market Value of a Share on the Grant Date, Optionee will be solely responsible for any and all
resulting tax consequences.


 


8. No
Guarantee of Continued Service. OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE
HEREOF IS EARNED ONLY BY CONTINUING AS AN EMPLOYEE OR DIRECTOR AT THE WILL OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING
OR RETAINING OPTIONEE) AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER. OPTIONEE
FURTHER ACKNOWLEDGES AND AGREES THAT THIS OPTION AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET
FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN EMPLOYEE OR DIRECTOR FOR THE VESTING
PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH OPTIONEE’S RIGHT OR THE RIGHT OF THE COMPANY (OR
THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING OPTIONEE) TO TERMINATE OPTIONEE’S RELATIONSHIP AS AN EMPLOYEE OR DIRECTOR
AT ANY TIME, WITH OR WITHOUT CAUSE.


 


9. Notices.
All notices or other communications which are required or permitted hereunder will be in writing and sufficient if (i) personally
delivered or sent by telecopy, (ii) sent by nationally-recognized overnight courier or (iii) sent by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:


 


(a)
if to the Optionee, to the address (or telecopy number) set forth on the Notice of Stock Option Grant; and


 


(b)
if to the Company, to its principal executive office as specified in any report filed by the Company with the Securities and Exchange
Commission or to such address as the Company may have specified to the Optionee in writing, Attention: Corporate Secretary;


 


or
to any other address as the party to whom notice is to be given may have furnished to the other party in writing in accordance
herewith. Any communication will be deemed to have been given (i) when delivered, if personally delivered, or when telecopied,
if telecopied, (ii) on the first Business Day (as hereinafter defined) after dispatch, if sent by nationally-recognized overnight
courier and (iii) on the fourth Business Day following the date on which the piece of mail containing the communication is posted,
if sent by mail. As used herein, “Business Day” means a day that is not a Saturday, Sunday or a day
on which banking institutions in the city to which the notice or communication is to be sent are not required to be open.


 






    
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10. Specific
Performance. Optionee expressly agrees that the Company will be irreparably damaged if the provisions of this Option Agreement
and the Plan are not specifically enforced. Upon a breach or threatened breach of the terms, covenants and/or conditions of this
Option Agreement or the Plan by the Optionee, the Company will, in addition to all other remedies, be entitled to a temporary
or permanent injunction, without showing any actual damage, and/or decree for specific performance, in accordance with the provisions
hereof and thereof. The Administrator has the power to determine what constitutes a breach or threatened breach of this Option
Agreement or the Plan. The Administrator’s determinations will be final and conclusive and binding upon the Optionee.


 


11. No
Waiver. No waiver of any breach or condition of this Option Agreement will be deemed to be a waiver of any other or subsequent
breach or condition, whether of like or different nature.


 


12. Optionee
Undertaking. The Optionee agrees to take whatever additional actions and execute whatever additional documents the Company
may in its reasonable judgment deem necessary or advisable in order to carry out or effect one or more of the obligations or restrictions
imposed on the Optionee pursuant to the express provisions of this Option Agreement.


 


13. Modification
of Rights. The rights of the Optionee are subject to modification and termination in certain events as provided in this Option
Agreement and the Plan.


 


14. Governing
Law. This Agreement is governed by, and construed in accordance with, the laws of the State of Texas, without giving effect
to its conflict or choice of law principles that might otherwise refer construction or interpretation of this Agreement to the
substantive law of another jurisdiction.


 


15. Counterparts;
Facsimile Execution. This Option Agreement may be executed in one or more counterparts, each of which will be deemed to be
an original, but all of which together constitute one and the same instrument. Facsimile execution and delivery of this Option
Agreement is legal, valid and binding execution and delivery for all purposes.


 


16. Entire
Agreement. The Plan, this Option Agreement, and upon execution, the Exercise Notice, constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the
Company and Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest
except by means of a writing signed by the Company and Optionee.


 


17. Severability.
In the event one or more of the provisions of this Option Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provisions of this Option
Agreement, and this Option Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained
herein.


 


18. WAIVER
OF JURY TRIAL. THE OPTIONEE EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS OPTION AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN. 


 


[Remainder
of page left intentionally blank.]


 




    
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Optionee
acknowledges receipt of a copy of the Plan and represents that he or she is familiar with the terms and provisions thereof, and
accepts this Option subject to all of the terms and provisions thereof. Optionee has reviewed the Plan and this Option in their
entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option and fully understands all provisions
of the Option. Optionee agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator
upon any questions arising under the Plan or this Option. Optionee further agrees to notify the Company upon any change in the
residence address indicated below.


 


 


 


	OPTIONEE 	 	 	VERTEX
    ENERGY, INC.	 
	 	 	 	 	 
	 	 	 	 	 
	Signature	________________
	 	 	By:	 ________________

        
	 
	 	 	 	 	 
	Print Name:	«Option_Holder»	 	 	Print Name:	 ________________

        
	 
	 	 	 	 	 
	Address:	________________
	 	 	Address:	________________

        

        
	 
	 	________________	 	 	 	________________	 
	 	 	 	 	 	________________	 
	 	 	 	 	 
	 Date Signed:	________________

        
	 	 	Date Signed:	________________

        
	 


 




    
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EXHIBIT
A


 


2020
EQUITY INCENTIVE PLAN


 


EXERCISE
NOTICE


 


Vertex
Energy, Inc.


1331
Gemini Street, Suite 250


Houston,
Texas 77058


 


Attention:
Vertex Energy, Inc., Corporate Secretary


 


1.
       Exercise of Option. Effective as of today, _____________, _____, the undersigned
(“Optionee”) elects to exercise Optionee’s option to purchase ___________ shares of the Common
Stock (the “Shares”) of Vertex Energy, Inc. (the “Company”) under and pursuant
to the Vertex Energy, Inc. 2020 Equity Incentive Plan (the “Plan”) and the Stock Option Agreement dated
and effective _________ (the “Option Agreement”).


 


2.
       Delivery of Payment. Optionee herewith delivers to the Company the full purchase
price of the Shares, as set forth in the Option Agreement, and any and all withholding taxes due in connection with the exercise
of the Option.


 


3.
       Representations of Optionee. Optionee acknowledges that Optionee has received,
read and understood the Plan and the Option Agreement and agrees to abide by and be bound by their terms and conditions.


 


4.
       Rights as Stockholder. Until the issuance of the Shares (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 exists with respect to the Optioned Stock, notwithstanding the exercise of the
Option. Subject to the requirements of Section 6 below, the Shares will be issued to the Optionee as soon as
practicable after the Option is exercised in accordance with the Option Agreement. No adjustment will be made for a dividend or
other right for which the record date is prior to the date of issuance except as provided in the Plan.


 


5.
       Tax Consultation. Optionee understands that Optionee may suffer adverse tax consequences
as a result of Optionee’s purchase or disposition of the Shares. Optionee represents that Optionee has consulted with any
tax consultants Optionee deems advisable in connection with the purchase or disposition of the Shares and that Optionee is not
relying on the Company for any tax advice.


 


6.
       Refusal to Transfer. The Company will not (i) transfer on its books any Shares
that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Notice, or (ii) be required
to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom
such Shares have been so transferred.


 


7.
       Successors and Assigns. The Company may assign any of its rights under this Exercise
Notice to single or multiple assignees, and this Exercise Notice inures to the benefit of the successors and assigns of the Company.
Subject to the restrictions on transfer herein set forth, this Exercise Notice is binding upon Optionee and his or her heirs,
executors, administrators, successors and assigns.


 


8.
       Interpretation. Any dispute regarding the interpretation of this Exercise Notice
will be submitted by Optionee or by the Company forthwith to the Administrator for review at its next regular meeting. The resolution
of disputes by the Administrator will be final and binding on all parties.


 


9.
       Governing Law; Severability. This Exercise Notice is governed by, and construed
in accordance with, the laws of the State of Texas, without giving effect to its conflict or choice of law principles that might
otherwise refer construction or interpretation of this Exercise to the substantive law of another jurisdiction. In the event that
any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Exercise
Notice will continue in full force and effect.


 






    
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10.  Optionee
Representations.


 


(a)       With
respect to a transaction occurring prior to such date as the Plan and Common Stock thereunder are covered by a valid Form S-8
or similar U.S. federal registration statement, Optionee agrees that in no event shall Optionee make a disposition of any of the
Common Stock, unless and until: (i) Optionee shall have notified the Company of the proposed disposition and shall have furnished
the Company with a statement of the circumstances surrounding the proposed disposition; and (ii) Optionee shall have furnished
the Company with an opinion of counsel satisfactory to the Company to the effect that (A) such disposition will not require registration
or qualification of such Common Stock under applicable U.S. federal, state or foreign securities laws or (B) appropriate action
necessary for compliance with the U.S. federal, state or foreign securities laws has been taken; or (iii) the Company shall have
waived, expressly and in writing, its rights under clauses (i) and (ii) of this Subsection.


 


(b)       Optionee
understands that if a registration statement covering the Common Stock under the Securities Act is not in effect when Optionee
desires to sell the Common Stock, Optionee may be required to hold the Common Stock for an indeterminate period. Optionee also
acknowledges that Optionee understands that any sale of the Common Stock which might be made by Optionee in reliance upon Rule
144 under the Securities Act may be made only in limited amounts in accordance with the terms and conditions of that Rule.


 


11.       Other
Documents. Optionee hereby acknowledges receipt or the right to receive a document providing the information required by Rule
428(b)(1) promulgated under the Securities Act of 1933, as amended, including, but not limited to, the information required by
Part I of Form S-8, if applicable.


 


12.
       Notices. Any notice required or permitted hereunder will be provided in writing
and deemed effective if provided in the manner specified in the Option Agreement.


 


13.
       Further Instruments. The parties agree to execute any further instruments and
to take any further action as may be reasonably necessary to carry out the purposes and intent of the Option Agreement and this
Exercise Notice.


 


14.
       Entire Agreement. The Plan and Option Agreement are incorporated herein by reference.
This Exercise Notice, the Plan, and the Option Agreement constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Optionee with respect to
the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed
by the Company and Optionee.


  


[Signature
page follows.]


 




    
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	Submitted by:	 	 	
        Accepted by:

         
	 
	OPTIONEE	 	 	VERTEX ENERGY, INC.	 
	 	 	 	 	 
	
        Signature________________

        
	 	 	 	
        By: ________________

        
	 	 
	 	 	 	 	 
	
        Print Name: _______________

        
	 	 	 	
        Print Name: ________________

        
	 	 
	 	 	 	 	 
	
        Address: ________________

        
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	
        Date Received: ________________

        
	 	 




 


 


 






    
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