esph_ex1021.htm


    EXHIBIT
10.21

    


    UNIT PURCHASE
AGREEMENT

    


    THIS UNIT PURCHASE AGREEMENT (this
“Agreement”),
dated as of November 9, 2009, by and among ECOSPHERE ENERGY SERVICES, LLC,
a Delaware limited liability company (the “Company”), and FIDELITY NATIONAL FINANCIAL,
INC., a Delaware corporation (the “Buyer”).

     

    WITNESSETH

    


    WHEREAS, the Company and the
Buyer are executing and delivering this Agreement in reliance upon an exemption
from securities registration pursuant to Section 4(2) and/or Rule 506 of
Regulation D (“Regulation D”) as
promulgated by the U.S. Securities and Exchange Commission (the “SEC”) under the
Securities Act of 1933, as amended (the “Securities
Act”);

     

    WHEREAS, the Buyer is seeking
to make an equity investment in the Company; and

     

    WHEREAS, the parties desire
that, upon the terms and subject to the conditions contained herein, the Company
shall issue and sell to
 the Buyer, as
provided herein, and the Buyer shall purchase for a purchase price of $7,500,000
(the “Purchase
Price”) 24,208 Class C units of the Company (the “Units”).

     

    NOW, THEREFORE, in
consideration of the mutual covenants and other agreements contained in this
Agreement the Company and the Buyer hereby agree as follows:

     

    1.      PURCHASE AND SALE OF SHARES
AND WARRANTS.

     

    (a)           Purchase of the
Units.  Subject to the satisfaction (or waiver) of the terms
and conditions of this Agreement, the Buyer agrees to purchase at the Closing
(as defined below) and the Company agrees to sell and issue to the Buyer at the
Closing, the Units.  At the Closing, (i) the Buyer shall deliver to
the Company the Purchase Price for the Units to be issued and sold to the Buyer
at the Closing and (ii) the Company shall deliver to the Buyer, the Units
which the Buyer is purchasing at the Closing, free from all taxes, liens and
charges with respect to the issue thereof.

     

    (b)           Closing
Dates.  The closing of the transactions contemplated herein
(“Closing”)
shall take place at 2:00 P.M. Eastern Standard Time two business days after the
satisfaction of the conditions to the Closing set forth herein and in Sections 5
and 6 below (or such other date as is mutually agreed to by the Company and the
Buyer) (the “Closing
Date”), with such Closing Date anticipated to be November 9,
2009.  The Closing shall occur at the offices of the Company (or such
other place as is mutually agreed to by the Company and the Buyer).

     

    2.      BUYER’S REPRESENTATIONS AND
WARRANTIES.

     

    Buyer
represents and warrants that:

     

    (a)           Investment
Purpose.  The Buyer is acquiring the Units for its own account
for investment only and not with a view towards, or for resale in connection
with, the public sale or distribution thereof, except pursuant to sales
registered or exempted under the Securities Act; provided, however, that by
making the representations herein, the Buyer reserves the right to dispose of
the Units at any time in accordance with or pursuant to an effective
registration statement covering such Units or an available exemption under the
Securities Act, subject to the terms and restrictions contained in this
Agreement.  The Buyer does not presently have any agreement or
understanding, directly or indirectly, with any person (as hereinafter defined)
to distribute any of the Units.

     

    
      
         


      

      
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    (b)           Accredited Investor
Status.  The Buyer is an “Accredited Investor”
as that term is defined in Rule 501(a)(3) of Regulation D.

     

    (c)           Reliance on
Exemptions.  The Buyer understands that the Units are being
offered and sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that the
Company is relying in part upon the truth and accuracy of, and the Buyer’s
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Buyer set forth herein in order to determine the
availability of such exemptions and the eligibility of the Buyer to acquire the
Units.

     

    (d)           No Governmental
Review.  The Buyer understands that no United States federal or
state agency or any other government or governmental agency has passed on or
made any recommendation or endorsement of the Units, or the fairness or
suitability of the investment in the Units, nor have such authorities passed
upon or endorsed the merits of the offering of the Units.

     

    (e)           Transfer or
Resale.  The Buyer understands that (i) the Units have not been
and are not being registered under the Securities Act or any state securities
laws, and may not be offered for sale, sold, assigned or transferred unless (A)
subsequently registered thereunder or (B) the Buyer shall have delivered to the
Company an opinion of in-house or outside counsel, in a generally acceptable
form, to the effect that such Units to be sold, assigned or transferred may be
sold, assigned or transferred pursuant to an exemption from such registration
requirements and (ii) neither the Company nor any other person is under any
obligation to register the Units under the Securities Act or any state
securities laws or to comply with the terms and conditions of any exemption
thereunder.

     

    (f)           Legends.  The
Buyer agrees to the imprinting, so long as is required by this Section 2, of a
restrictive legend in substantially the following form:

     

    THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS.  THE SECURITIES HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TOWARD RESALE AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF IN-HOUSE OR OUTSIDE COUNSEL,
IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
OR APPLICABLE STATE SECURITIES LAWS.

     

    
      
         


      

      
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    (g)           Authorization,
Enforcement.  The Buyer has full power and authority (including
full corporate or other entity power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of the Buyer, enforceable in accordance
with its terms and conditions, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors’ rights and
remedies.  The Buyer need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions contemplated by this
Agreement. The execution, delivery and performance of this Agreement and all
other agreements contemplated hereby have been duly authorized by
Seller.

     

     (h)           Experience of
Buyer.  The Buyer, either alone or together with its
representatives, has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Units, and has so evaluated the merits and
risks of such investment.  The Buyer is able to bear the economic risk
of an investment in the Units and, at the present time, is able to afford a
complete loss of such investment.

     

     
(i)           Information.  The
Buyer has been furnished all materials (excluding any material nonpublic
information) relating to the business, finances and operations of the Company
and its subsidiaries and materials relating to the offer and sale of the Units
that have been requested by the Buyer.  The Buyer has been afforded
the opportunity to ask questions of the Company and has received what the Buyer
believes to be satisfactory answers to any such inquiries.  The Buyer
understands that its investment in the Units involves a high degree of
risk.

    


    3.      THE COMPANY’S
REPRESENTATIONS AND WARRANTIES

     

    Except as
set forth under the corresponding section of the disclosure schedule attached
hereto (the “Disclosure Schedule”)
(which Disclosure Schedule shall be deemed a part hereof and to qualify any
representation or warranty otherwise made herein to the extent of such
disclosure), the Company hereby makes the representations and warranties set
forth below to the Buyer, which representations and warranties shall be true and
correct as of the Closing Date as well as on the date hereof:

     

    (a)           Subsidiaries.  All
of the direct and indirect subsidiaries of the Company are set forth on Section 3(a) of the
Disclosure Schedule.  Except as set forth on Section 3(a) of the
Disclosure Schedule, the Company owns, directly or indirectly, all of the
equity interests of each subsidiary free and clear of any liens, and all the
issued and outstanding equity interests of each subsidiary are validly issued
and are fully paid, non-assessable and free of preemptive and similar rights to
subscribe for or purchase equity interests.

     

    
      
         


      

      
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    (b)           Organization and
Qualification.  The Company and its subsidiaries are limited
liability companies duly organized, validly existing and in good standing under
the laws of the jurisdiction in which they are formed, and have the requisite
corporate or other entity power to own their properties and to carry on their
business as now being conducted.  Each of the Company and its
subsidiaries is duly qualified as a foreign limited liability company to do
business and is in good standing in every jurisdiction in which the nature of
the business conducted by it makes such qualification necessary, except to the
extent that the failure to be so qualified or be in good standing would not have
or reasonably be expected to result in (i) a material adverse effect on the
legality, validity or enforceability of this Agreement or any transaction
contemplated thereby, (ii) a material adverse effect on the results of
operations, assets, business, condition or prospects (financial or otherwise) of
the Company and the subsidiaries, taken as a whole, or (iii) a material adverse
effect on the Company’s ability to perform in any material respect on a timely
basis its obligations under this Agreement or any transaction contemplated
thereby (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such
power and authority or qualification.

     

    (c)           Authorization,
Enforcement. The Company has full power and authority (including full
corporate or other entity power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of the Company, enforceable in
accordance with its terms and conditions, except as such enforceability may be
limited by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors’ rights and
remedies.  The Company need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions contemplated by this
Agreement. The execution, delivery and performance of this Agreement and all
other agreements contemplated hereby have been duly authorized by the
Company.

     

    (d)           Capitalization.  The
capitalization of the Company is set forth on Section 3(d) of the
Disclosure Schedule, including but not limited to, all options, warrants,
and securities convertible into units of the Company. All of the outstanding
units of the Company are validly issued, fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws, and none of
such outstanding units was issued in violation of any preemptive rights or
similar rights to subscribe for or purchase units of thee
Company.  Except as disclosed in Section 3(d) of the
Disclosure Schedule: (i) none of the Company's units are subject to
preemptive rights or any other similar rights or any liens or encumbrances
suffered or permitted by the Company; (ii) there are no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into, or exercisable
or exchangeable for, any units of the Company or any of its subsidiaries, or
contracts, commitments, understandings or arrangements by which the Company or
any of its subsidiaries is or may become bound to issue additional units of the
Company or any of its subsidiaries or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, or exercisable or exchangeable for, any
units of the Company or any of its subsidiaries; (iii) there are no outstanding
debt securities, notes, credit agreements, credit facilities or other
agreements, documents or instruments evidencing indebtedness of the Company or
any of its subsidiaries or by which the Company or any of its subsidiaries is or
may become bound; (iv) there are no financing statements securing obligations,


     

    
      
         


      

      
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    either
singly or in the aggregate, filed in connection with the Company or any of its
subsidiaries; (v) there are no outstanding securities or instruments of the
Company or any of its subsidiaries which contain any redemption or similar
provisions, and there are no contracts, commitments, understandings or
arrangements by which the Company or any of its subsidiaries is or may become
bound to redeem a security of the Company or any of its subsidiaries; (vi) there
are no securities or instruments containing anti-dilution or similar provisions
that will be triggered by the issuance of the Units; and (vii) the Company does
not have any equity appreciation rights or "phantom stock" plans or agreements
or any similar plan or agreement.  The Company has furnished to the
Buyer true, correct and complete copies of the Company's Certificate of
Formation, as amended and as in effect on the date hereof (the “Certificate of
Formation”), and the Company's operating agreement, as amended and as in
effect on the date hereof (the “Operating
Agreement”), and the terms of all securities convertible into, or
exercisable or exchangeable for, units of the Company and the material rights of
the holders thereof in respect thereto.  The Board of Managers and the
members of the Company have approved and consented to the sale and issuance of
the Units to Buyer pursuant to the terms and conditions of this
Agreement.  In addition, each of the members of the Company has waived
its preemptive rights under Section 3.1 of the Operating Agreement with respect
to the sale and issuance of the Units to Buyer.  No further approval
or authorization of any member, the Board of Managers of the Company or others
is required for the issuance and sale of the Units.  Except the
Operating Agreement, there are no member agreements, voting agreements or other
similar agreements with respect to the Company’s units to which the Company is a
party or, to the knowledge of the Company, between or among any of the Company’s
members.

     

    (e)           Issuance of
Units.  The issuance of the Units is duly authorized, validly
issued, and free from all taxes, liens and charges with respect to the issue
thereof.

     

    (f)           No
Conflicts.   Except as disclosed in Section 3(f) of the
Disclosure Schedule, the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the issuance of
the Units) will not (i) result in a violation of any certificate of formation,
any certificate of designations or other constituent documents of the Company or
any of its subsidiaries, any equity interest of the Company or any of its
subsidiaries or operating agreement of the Company or any of its subsidiaries or
(ii) conflict with, or constitute a default (or an event which with notice or
lapse of time or both would become a default) in any respect under, or give to
others any rights of termination, amendment, acceleration or cancellation of,
any agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree applicable to the Company or any of its
subsidiaries or by which any property or asset of the Company or any of its
subsidiaries is bound or affected.  The business of the Company and
its subsidiaries is not being conducted, and shall not be conducted in violation
of any law, ordinance, or regulation of any governmental
entity.  Except as specifically contemplated by this Agreement and as
required under the Securities Act and any applicable state securities laws, the
Company is not required to obtain any consent, authorization or order of, or
make any filing or registration with, any court or governmental agency in order
for it to execute, deliver or perform any of its obligations under or
contemplated by this Agreement in accordance with the terms hereof or
thereof.  All consents, authorizations, orders, filings and
registrations which the Company is required to obtain pursuant to the preceding
sentence have been obtained or effected on or prior to the date
hereof.  The Company and its subsidiaries are unaware of any facts or
circumstance, which might give rise to any of the foregoing.

     

    
      
         


      

      
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    (g)           Financial
Statements.

     

    (i)           The
financial statements of the Company for the period commencing on the Company’s
inception and ending September 30, 2009, attached hereto as Section 3(g)(i) of the
Disclosure Schedule, comply with applicable accounting requirements as in
effect when prepared.  Such financial statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved (“GAAP”), except as may
be otherwise specified in such financial statements or the notes thereto, and
fairly present in all material respects the financial position of the Company
and its consolidated subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended; provided,
however, that the Company’s financial statements are subject to normal year-end
adjustments and lack of footnotes and other presentation items.

     

    (ii)           Except
as set forth in Section 3(g)(ii) of the
Disclosure Schedule, the Company does not  have any
indebtedness, liabilities, obligations, responsibilities, fines, penalties and
sanctions, absolute or contingent, matured or unmatured, liquidated or
unliquidated, foreseen or  unforeseen, joint, several or individual
asserted or unasserted, accrued or unaccrued, known or unknown, whenever
arising, including any costs, expenses, interests, reasonable attorneys' fees,
disbursements and expense of counsel, expert and consulting fees and costs
related thereto or to the investigation or defense thereof, which in the
aggregate for all such items exceed $100,000.

     

    (iii)           All
notes and accounts receivable of the Company and its subsidiaries are reflected
properly on their books and records, are valid receivables subject to no setoffs
or counterclaims, are current and, to the Company’s knowledge,
collectible.

     

    (h)           Intellectual Property
Rights.

     

    (i)           The
Company and each of its subsidiaries own or possess adequate rights or licenses
to use all trademarks, trade names, service marks, service mark registrations,
service names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights necessary to
conduct their respective businesses as now conducted.

     

    (ii)           There
are no infringements by the Company or its subsidiaries of trademark, trade name
rights, patents, patent rights, copyrights, inventions, licenses, service names,
service marks, service mark registrations, trade secret or other similar rights
of others, and, to the knowledge of the Company there is no claim, action or
proceeding being made or brought against, or to the Company’s knowledge, being
threatened against, the Company or its subsidiaries regarding trademark, trade
name, patents, patent rights, invention, copyright, license, service names,
service marks, service mark registrations, trade secret or other infringement;
and the Company and its subsidiaries are unaware of any facts or circumstances
which might give rise to any of the foregoing, except with respect to any of the
preceding which, in the aggregate, would not have or reasonably be expected to
result in a Material Adverse Effect.

     

    
      
         


      

      
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    (iii)           Section 3(h) of the
Disclosure Schedule identifies (A) each patent or registration that has
been issued to the Company or any of its subsidiaries with respect to any of its
intellectual property; (B) each pending patent application or application for
registration that the Company or any of its subsidiaries has made with respect
to any of its intellectual property; and (C) each license, agreement, or other
permission that Company or any of its subsidiaries has granted to any third
party with respect to any of its intellectual property.

     

    (i)           Environmental
Laws.  The Company and each of its subsidiaries are (i) in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental Laws”),
(ii) have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit,
license or approval.

     

    (j)           Title and Condition of
Assets.  All real property and facilities held under lease by
the Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries. The Company and its subsidiaries own or lease all
machinery, equipment, and other tangible assets necessary for the conduct of
their business as presently conducted.  Each such tangible asset is
free from defects (patent and latent), has been maintained in accordance with
normal industry practice, is in good operating condition and repair (subject to
normal wear and tear), and is suitable for the purposes for which it presently
is used and presently is proposed to be used.

     

    (k)           Insurance.  The
Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
management of the Company believes to be prudent and customary in the businesses
in which the Company and its subsidiaries are engaged.  Neither the
Company nor any such subsidiary has been refused any insurance coverage sought
or applied for and neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not materially
and adversely affect the condition, financial or otherwise, or the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole.

     

    (l)           Regulatory
Permits.  The Company and each of its subsidiaries possess all
material certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit.

     

    
      
         


      

      
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    (m)           No Material Adverse
Breaches, etc.  Neither the Company nor its subsidiaries are is
subject to any charter, corporate or other legal restriction, or any judgment,
decree, order, rule or regulation.  Except as disclosed in Section 3(m) of the
Disclosure Schedule, neither the Company nor any of its subsidiaries are
in breach of any contract or agreement.

     

    (n)           Tax
Status.  The Company and each of its subsidiaries have made and
filed all federal and state income and all other material tax returns, reports
and declarations required by any jurisdiction to which it is subject and (unless
and only to the extent that the Company and each of its subsidiaries has set
aside on its books provisions reasonably adequate for the payment of all unpaid
and unreported taxes) has paid all taxes and other governmental assessments and
charges that are material in amount, shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith
and has set aside on its books provision reasonably adequate for the payment of
all taxes for periods subsequent to the periods to which such returns, reports
or declarations apply.  There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the
officers of the Company know of no basis for any such claim.

     

    (o)           Certain
Contracts.  Section 3(o) of the
Disclosure Schedule lists all written contracts and other written
agreements to which the Company or any of its subsidiaries is a party and the
performance of which will involve consideration in excess of $100,000. The
Company has delivered to the Buyer a correct and complete copy of each contract
or other agreement (as amended to date) listed in Section 3(o) of the
Disclosure Schedule.   The Company is not in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any agreement or instrument disclosed in Section 3(o) of the
Disclosure Schedule.  No supplier of the Company or any of its
subsidiaries has indicated that it shall stop, or decrease the rate of,
supplying materials, products or services to the Company or any of its
subsidiaries, and no customer the Company or any of its subsidiaries has
indicated that it shall stop, or decrease the rate of, buying materials,
products or services from the Company or any of its subsidiaries.

     

    (p)           Rights of First
Refusal.  Other than as set forth on Section 3(p) of the
Disclosure Schedule, the Company is not obligated to offer the units
offered hereunder on a right of first refusal basis or otherwise to any third
parties including, but not limited to, current or former members of the Company,
underwriters, brokers, agents or other third parties.  Any and all
such rights have been fully complied with or waived with respect to the sale and
issuance of the Units to Buyer.

     

    (q)           Employee
Relations.  Neither the Company nor any of its subsidiaries are
involved in any material labor dispute or, to the knowledge of the Company or
any of its subsidiaries, is any such dispute threatened.  None of the
Company’s or its subsidiaries’ employees is a member of a union and the Company
and its subsidiaries believe that their relations with their employees are
good.

     

    
      
         


      

      
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    (r)           Compliance with The Foreign
Corrupt Practices Act and Export Control and Anti-Boycott
Laws

     

    (i)           The
Company and its subsidiaries and their representatives have not, to obtain or
retain business, directly or indirectly offered, paid or promised to pay, or
authorized the payment of, any money or other thing of value (including any fee,
gift, sample, travel expense or entertainment) or any commission payment, to:
(A) any person who is an official, officer, agent, employee or representative of
any governmental body or of any existing or prospective customer (whether
government owned or nongovernment owned); (B) any political party or official
thereof; (C) any candidate for political or political party office; or (D) any
other individual or entity; while knowing or having reason to believe that all
or any portion of such money or thing of value would be offered, given, or
promised, directly or indirectly, to any such official, officer, agent,
employee, representative, political party, political party official, candidate,
individual, or any entity affiliated with such customer, political party or
official or political office.

     

    (ii)           Each
transaction is properly and accurately recorded on the books and records of the
Company and its subsidiaries, and each document upon which entries in the
Company’s books and records are based is complete and accurate in all
respects.  The Company and its subsidiaries maintains a system of
internal accounting controls adequate to insure that the Company and its
subsidiaries maintain no off-the-books accounts and that the Company’s or any
subsidiary’s assets are used only in accordance with the Company’s management
directives.

     

    (iii)           The
Company and its subsidiaries has at all times been in compliance with all legal
requirements relating to export control and trade embargoes.

     

    (iv)           The
Company and its subsidiaries has not violated the anti-boycott prohibitions
contained in 50 U.S.C.  sect.  2401 et seq.  or
taken any action that can be penalized under Section 999 of the Internal Revenue
Code of 1986, as amended.

     

    (s)           Transactions with
Affiliates.  Other than as set forth on Section 3(s) of the
Disclosure Schedule, neither the Company nor any if its subsidiaries is a
party, directly or indirectly, to any contract, agreement or lease with, or any
other commitment to, (i) any affiliate of the Company or any if its
subsidiaries, (ii) any affiliate of such an individual or entity or (ii) any
manager, director, officer or employee of the Company or any of its
affiliates.

     

    (t)           Product
Warranty. Each product
manufactured, sold, leased, or delivered by the Company or any of its
subsidiaries has been in conformity with all applicable contractual commitments
and all express and implied warranties, and neither the Company nor any of its
subsidiaries has any liability (and there is no basis for any present or future
action, suit, proceeding, hearing, investigation, charge, complaint, claim, or
demand against any of them giving rise to any liability) for replacement or
repair thereof or other damages in connection therewith.

     

    
      
         


      

      
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    (u)           Technology License
Agreement.  That certain Technology License Agreement, dated
July 15, 2009 (the “Technology License
Agreement”), by and between the Company and Ecosphere Technologies, Inc.
(“ETI”) is in
full force and effect and neither the Company nor ETI is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in the Technology License Agreement.  The License
Fee (as defined in the Technology License Agreement) has been paid in full and
the Company has no obligation or liability to pay any further amount to ETI with
respect to the licenses granted under the Technology License
Agreement.  The Technology License Agreement grants to the Company the
right to use the Licensed Technology (as defined in the Technology License
Agreement) in the Field of Use (as defined in the Technology License Agreement)
throughout the world as set forth in the License Agreement.

     

    4.      COVENANTS.

     

    (a)           Best
Efforts.  Each party shall use its reasonable best efforts to
timely satisfy each of the conditions to be satisfied by it as provided in
Sections 5 and 6 of this Agreement.

     

    (b)           Use of
Proceeds.  The Company will use the proceeds from the sale of
the Units as set forth in Schedule 4(b) attached hereto.

     

    The
Company shall not deviate by more than $250,000 from the use of proceeds
described in this Section 4(b) without the prior written consent of the
Buyer.

     

    (c)           Fees and
Expenses.  Each party shall pay all of its costs and expenses
incurred by such party in connection with the negotiation, investigation,
preparation, execution and delivery of this Agreement.

     

    (d)           Further
Assurances.  At any time or from time to time upon the request
of a party, the other party will, at its expense, promptly execute, acknowledge
and deliver such further documents and do such other acts and things as the
requesting party may reasonably request in order to effect fully the purposes of
this Agreement, including providing the requesting party with any information
reasonably requested.

     

    (e)           Board of Managers
Positions.  Effective at Closing, Brent Bickett  will
be appointed to be a member of the Company’s board of managers (the “Board of Managers”)
as the Class C
Designee (as defined in the Amendment).

     

    5.      CONDITIONS TO THE COMPANY’S
OBLIGATION TO SELL.

     

    The
obligation of the Company hereunder to issue and sell the Units to the Buyer at
the Closing is subject to the satisfaction, at or before the Closing Date, of
each of the following conditions, provided that these conditions are for the
Company’s sole benefit and may be waived by the Company at any time in its sole
discretion:

     

    (a)           The
Buyer shall have executed this Agreement and delivered the same to the
Company;

     

    
      
         


      

      
        10

        
          

        

      

      
         


      

    

     

    (b)           The
Buyer shall have delivered to the Company the Purchase Price for the Units by
wire transfer of immediately available U.S. funds pursuant to the wire
instructions provided by the Company;

     

    (c)           The
Buyer shall have executed that certain Addendum Agreement attached as Exhibit B
to the Operating Agreement and delivered the same to the Company;

     

    (d)           The
Buyer and all other members of the Company shall have executed the Amendment to
the Operating Agreement in the form attached hereto as Exhibit A (the “Amendment”) and
delivered the same to the Company; and

     

    (e)           The
representations and warranties of the Buyer shall be true and correct as of the
date when made and as of the Closing Date as though made at that time (except
for representations and warranties that speak as of a specific date), and the
Buyer shall have performed, satisfied and complied with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing Date.

     

    6.      CONDITIONS TO THE BUYER’S
OBLIGATION TO PURCHASE.

     

    The
obligation of the Buyer to purchase the Units at the Closing is subject to the
satisfaction, at or before the Closing Date, of each of the following
conditions, provided that these conditions are for the Buyer’s sole benefit and
may be waived by the Buyer at any time in its sole discretion:

     

    (a)           The
Company shall have executed this Agreement and delivered the same to the
Buyer;

     

    (b)           The
Company shall have delivered to the Buyer a certificate evidencing the
Units;

     

    (c)           The
Company and all other members of the Company shall have executed the Amendment
and delivered the same to the Buyer;

     

    (d)           The
Company shall have caused ETI to execute a letter agreement in the form attached
hereto as Exhibit
B providing the Buyer with an advance exclusivity period to negotiate
financing with regard to any future water filtration opportunities in other than
the Field of Use (as defined in the License Agreement) (the “Letter Agreement”)
and delivered the same to the Buyer; 

     

    (e)           Brent
Bickett shall have been appointed to the Board of Managers as the Class C
Designee;

     

    (f)           ETI
shall be the managing member of the Company as of the Closing Date;

     

    (g)           John
Kuelbs shall be the Chairman of the Board of Managers as of the Closing
Date;

     

    
      
         


      

      
        11

        
          

        

      

      
         


      

    

     

    (h)           John
Kuelbs shall have acquired (for services and upon conversion of his note to the
Company) 3,185 Class C units of the Company on or prior to the Closing
Date;

     

    (i)           The
members of the Board of Managers as of the date of this Agreement shall be the
Board of Managers of the Company as of the Closing Date;

     

    (j)           The
representations and warranties of the Company shall be true and correct as of
the date when made and as of the Closing Date as though made at that time
(except for representations and warranties that speak as of a specific date),
and the Company shall have performed, satisfied and complied with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing Date;

     

    (k)           The
Company shall have delivered to the Buyer a certificate, executed by a duly
authorized officer or manager of the Company and dated as of the Closing Date,
(i) certifying that the conditions specified in Section 3(c) above are satisfied
in all material respects; (ii) attaching a true and correct copy of the
Certificate of Formation; and (iii) attaching a true and correct copy of the
Operating Agreement;

     

    (l)           The
Company shall have executed and delivered to Clean Water Partners, LLC, a
Delaware limited liability company, that certain Amended and Restated
Replacement Secured Note in the form attached hereto as Exhibit C;

     

    (m)           ETI,
the Company and EES Operating, LLC shall have executed and delivered to each
other that certain letter agreement regarding the guaranty by EES Operating, LLC
of certain obligations of ETI and the related indemnity in the form attached
hereto as Exhibit D (the “ETI Indemnity
Letter”)

     

    7.      INDEMNIFICATION.

     

    (a)           In
consideration of the Buyer’s execution and delivery of this Agreement and
acquiring the Units, and in addition to all of the Company’s other obligations
under this Agreement, the Company shall defend, protect, indemnify and hold
harmless the Buyer and its affiliates and representatives (collectively, the
“Buyer
Indemnitees”) from and against any and all actions, causes of action,
suits, claims, losses, costs, penalties, fees, liabilities and damages, and
expenses in connection therewith (irrespective of whether any such Buyer
Indemnitee is a party to the action for which indemnification hereunder is
sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified
Liabilities”), incurred by the Buyer Indemnitees or any of them as a
result of, or arising out of, or relating to (a) any misrepresentation or breach
of any representation or warranty made by the Company in this Agreement or any
other certificate, instrument or document contemplated hereby or thereby, (b)
any breach of any covenant, agreement or obligation of the Company contained in
this Agreement or any other certificate, instrument or document contemplated
hereby or thereby, or (c) any cause of action, suit or claim brought or made
against such Buyer Indemnitee and arising out of or resulting from the
execution, delivery, performance or enforcement of this Agreement or any other
instrument, document or agreement executed pursuant hereto by any of the parties
hereto, any transaction financed or to be financed in whole or in part, directly
or indirectly, with the proceeds of the issuance of the Units or the status of
the Buyer or holder of the Units, as a buyer of units in the
Company.

     

    
      
         


      

      
        12

        
          

        

      

      
         


      

    

     

    (b)           Notwithstanding
the indemnification obligations in Section 7(a) above, in no event shall the
Company be obligated to indemnify the Buyer for any Indemnified Liabilities in
excess of the Purchase Price; provided, however, if the
Indemnified Liabilities for which the Buyer Indemnitees are entitled to
indemnification arise out or relate to any environmental claim or to any
violation of an Environmental Law (“Environmental Indemnified
Liabilities”) the Company shall be obligated to indemnify the Buyer
Indemnitees to the full extent of such Environmental Indemnified Liabilities,
notwithstanding that such Environmental Indemnified Liabilities exceed the
Purchase Price.

     

    (c)           
In consideration of the Company’s execution and delivery of this Agreement, and
in addition to all of the Buyer’s other obligations under this Agreement, each
Buyer, severally but not jointly shall defend, protect, indemnify and hold
harmless the Company and its subsidiaries and all of their officers, directors,
employees, representatives and agents (including, without limitation, those
retained in connection with the transactions contemplated by this Agreement)
(collectively, the “Company Indemnitees”)
from and against any and all Indemnified Liabilities incurred by the Company
Indemnitees or any of them as a result of, or arising out of, or relating to (a)
any misrepresentation or breach of any representation or warranty made by such
Buyer in this Agreement, instrument or document contemplated hereby or thereby
executed by such Buyer, (b) any breach of any covenant, agreement or obligation
of such Buyer(s) contained in this Agreement or any other certificate,
instrument or document contemplated hereby or thereby executed by the Buyer, or
(c) any cause of action, suit or claim brought or made against such Company
Indemnitee based on material misrepresentations or due to a material breach and
arising out of or resulting from the execution, delivery, performance or
enforcement of this Agreement or any other instrument, document or agreement
executed pursuant hereto by any of the parties hereto, except to the extent the
same arises from or relates to the acts or omissions of the Company Indemnitees
(other than acts contemplated pursuant to this Agreement).

     

    8.      GOVERNING LAW:
MISCELLANEOUS.

     

    (a)           Governing
Law.  This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Florida without regard to the
principles of conflict of laws.  The parties further agree that any
action between them shall be heard in Palm Beach County, Florida, and expressly
consent to the jurisdiction and venue of the State Court of Florida, sitting in
Palm Beach County and the United States District Court for the Southern District
of Florida sitting in Palm Beach County, Florida for the adjudication of any
civil action asserted pursuant to this Paragraph.

     

    (b)           Counterparts.  This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other
party.

     

    
      
         


      

      
        13

        
          

        

      

      
         


      

    

     

    (c)           Headings.  The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.

     

    (d)           Severability.  If
any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.

     

    (e)           Entire Agreement,
Amendments.  This Agreement supersedes all other prior oral or
written agreements between the Buyer, the Company, their affiliates and persons
acting on their behalf with respect to the matters discussed herein, and this
Agreement and the instruments referenced herein contain the entire understanding
of the parties with respect to the matters covered herein and therein and,
except as specifically set forth herein or therein, neither the Company nor the
Buyer makes any representation, warranty, covenant or undertaking with respect
to such matters.  No provision of this Agreement may be waived or
amended other than by an instrument in writing signed by the party to be charged
with enforcement.

     

    (f)           Notices.  Any
notices, consents, waivers, or other communications required or permitted to be
given under the terms of this Agreement must be in writing and will be deemed to
have been delivered (i) upon receipt, when delivered personally; (ii) upon
confirmation of receipt, when sent by facsimile; (iii) three (3) days after
being sent by U.S. certified mail, return receipt requested, or (iv) one (1) day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same.  The
addresses and facsimile numbers for such communications shall be:

     

    
      	
              If
      to the Company, to:

            	
              Ecosphere
      Energy Services, LLC

            
	 
      	
              3515
      Southeast Lionel Terrace

            
	 
      	
              Stuart,
      FL 34997

            
	 
      	
              Facsimile:
      (772) 781-4778

            
	 
      	
              Attention:
      Dennis McGuire

            
	 
      	 
      
	
              With
      a copy to:

            	
              Michael
      D. Harris, Esq.

            
	 
      	
              Harris
      Cramer LLP

            
	 
      	
              1555
      Palm Beach Lakes Boulevard, Suite 310

            
	 
      	
              West
      Palm Beach, FL 33401-2327

            
	 
      	
              Facsimile:
      (561) 659-0701

            
	 
      	 
      
	
              If
      to the Buyer, to:

            	
              Fidelity
      National Financial, Inc.

            
	 
      	
              601
      Riverside Avenue

            
	 
      	
              Jacksonville,
      Florida 32204

            
	 
      	
              Facsimile:
      (904) 357-1029

            
	 
      	
              Attention:
      Chief Legal Officer

            


    

     

    
      
         


      

      
        14

        
          

        

      

      
         


      

    

     

    
      	 
      	 
      
	
              With
      a copy to:

            	
              Fidelity
      National Financial, Inc.

            
	 
      	
              4050
      Calle Real, Suite 200

            
	 
      	
              Santa
      Barbara, California 93110

            
	 
      	
              Facsimile:
      (850) 696-7831

            
	 
      	
              Attention:
      Executive Vice President, Legal

            


    

     

    Each
party shall provide five (5) days’ prior written notice to the other party of
any change in address or facsimile number.

     

    (g)           Successors and
Assigns.  This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and
assigns.  Neither the Company nor the Buyer shall assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the other party hereto; provided, however, the Company
shall have the right to assign its rights and obligations under this Agreement
to a purchaser of all or substantially all of its assets or a successor by
merger or similar reorganization.

     

    (h)           No Third Party
Beneficiaries.  This Agreement is intended for the benefit of
the parties hereto and their respective permitted successors and assigns, and is
not for the benefit of, nor may any provision hereof be enforced by, any other
person.

     

    (i)           Survival.  Unless
this Agreement is terminated under Section 8(l), all representations and
warranties contained in this Agreement or made in writing by or on behalf of any
party in connection with the transactions contemplated by this Agreement shall
survive the execution and delivery of this Agreement and the Closing for a
period of two years from the date hereof.

     

    (j)           Publicity.  The
Company and the Buyer shall have the right to approve, before issuance any press
release or any other public statement with respect to the transactions
contemplated hereby made by any party; provided, however, that the Company shall
be entitled, without the prior approval of the Buyer, to issue any press release
or other public disclosure with respect to such transactions required under
applicable securities or other laws or regulations (the Company shall use
reasonable commercial efforts to consult the Buyer in connection with any such
press release or other public disclosure prior to its release and Buyer shall be
provided with a copy thereof upon release thereof).

     

    (k)           Further
Assurances.  Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.

     

    (l)           Termination.  In
the event that the Closing shall not have occurred with respect to the Buyer on
or before November 20, 2009 due to the Company’s or the Buyer’s failure to
satisfy the conditions set forth in Sections 5 or 6 above (and the non-breaching
party’s failure to waive such unsatisfied condition(s)), the non-breaching party
shall have the option to terminate this Agreement with respect to such breaching
party at the close of business on such date.

     

    
      
         


      

      
        15

        
          

        

      

      
         


      

    

     

    (m)           Brokerage.  The
parties represent that no broker, agent, finder or other party has been retained
by it in connection with the transactions contemplated hereby and that, except
for the finder’s fee payable to John Kuelbs (which finder’s fee shall be payable
solely by the Company), no other fee or commission has been agreed by the
Company to be paid for or on account of the transactions contemplated
hereby.

     

     

     

     

     

     

     

     

    [REMAINDER
PAGE INTENTIONALLY LEFT BLANK]

     

    
      
         


      

      
        16

        
          

        

      

      
         


      

    

    


    IN WITNESS WHEREOF, the Buyer and the Company
have caused their respective signature page to this Unit Purchase Agreement to
be duly executed as of the date first written above.

     

    
      	 
      	
              COMPANY:

               

            	 
	 
      	ECOSPHERE
      ENERGY SERVICES, LLC	 
	 
      	 	 
      	 
	 
      	By: 	
                                                                      

            	 
	 
      	Name:	 
	 
      	Title:	 
	 
      	 	 
      	 
	 
      	BUYER:	 
	 
      	 	 
      	 
	 
      	FIDELITY
      NATIONAL FINANCIAL, INC.	 
	 
      	 	 
      	 
	 
      	By: 	
                                                                         

            	 
	 
      	Name:	 
	 
      	Title:	 


    

     

    G:\Ecosphere\Ecosphere
Energy Services, LLC\Agreements\Unit Purchase Agreement - Final.doc

     

    
      
         


      

      
        17

        
          

        

      

      
         


      

    

     

    EXHIBIT
A

    


    FIRST
AMENDMENT TO

    AMENDED
AND RESTATED

    LIMITED
LIABILITY COMPANY AGREEMENT

    OF

     

    ECOSPHERE
ENERGY SERVICES, LLC

     

    THIS FIRST AMENDMENT (this
“Amendment”) is made and entered into, effective as of the 9th day of November,
2009, by and among Ecosphere Energy Services, LLC, a Delaware limited liability
company (the “Company”), Ecosphere Technologies, Inc., a Delaware corporation
(“ETI”), as the sole holder of the Class A Units, Clean Water Partners, LLC, a
Delaware limited liability company (“CWP”), as the sole holder of the Class B
Units, Fidelity National Financial, Inc., a Delaware corporation (“Fidelity”),
as a holder of Class C Units, and John Kuelbs (“Kuelbs”) as a holder of Class C
Units.  All capitalized words and terms not defined in this Amendment
have the meaning contained in the Agreement (as defined below).

    


    WITNESSETH:

    


    WHEREAS, the Company, ETI and
CWP entered into that certain Amended and Restated Limited Liability Company
Agreement of Ecosphere Energy Services, LLC dated July 15, 2009 (the
“Agreement”);

    


    WHEREAS, Fidelity and Kuelbs
have acquired Class C Units in the Company and are being admitted as Members of
the Company; and

    


    WHEREAS, pursuant to Section
13.4 of the Agreement, the Members have agreed to modify the Agreement and
incorporate the provisions set forth herein.

    


    NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein, and other
good and valuable consideration, the adequacy and receipt of which is hereby
acknowledged, the parties agree as follows:

    


    1.           RECITALS.  The
recitals set forth above are true and correct and are incorporated herein by
reference.

    


    2.           AGREEMENT BEING AMENDED AND
ADMISSION OF FIDELITY AND KUELBS AS MEMBERS.  The agreement
being amended by this Amendment is that certain Amended and Restated Limited
Liability Company Agreement of Ecosphere Energy Services, LLC dated July 15,
2009.  Each of the Company, ETI and CWP hereby acknowledges and
consents to the issuance of the Class C Units to Fidelity and Kuelbs and the
admission of Fidelity and Kuelbs as Members of the Company as set forth herein
and waives any rights it may have with respect to the issuance of such Class C
Units to Fidelity and Kuelbs pursuant to Section 3.1(b) of the
Agreement.

     

    
      
         


      

      
        18

        
          

        

      

      
         


      

    

    


    3.           AMENDMENTS.  The
Agreement is hereby amended as follows:

    


    A.           Section 3.1(a).    Section
3.1(a) of the Agreement shall be deleted in its entirety and the following
inserted in lieu thereof:

    


    (a)           The
Membership Interests shall be divided into three classes of Units called “Class A
Units,” “Class B
Units,” and “Class C
Units” each having the rights, obligations and other features provided to
Members generally, subject to such other rights, obligations and other features
relating to such class as is set forth in this Agreement.  The Company
is authorized to issue up to an aggregate of 1,000,000 Units.  Schedule 1 lists
each Member’s respective ownership of the Units, including the class of Unit (to
the extent applicable).

    


    B.           Section
3.4(a).     Section 3.4(a) of the Agreement shall be
amended by adding the following sentence at the end of the
paragraph:

    


    The
number of Units may be increased pursuant to Sections 3.7 and 3.10.

    


    C.           Section 3.7(a).    Section
3.7(a) of the Agreement shall be amended by adding the following sentence at the
end of the paragraph:

    


    Schedule 1 shall be
amended from time to time by the Managing Member to reflect changes in the
ownership of Units and Membership Interests.

    


    D.           Section 6.1(b).    Section
6.1(b) of the Agreement shall be deleted in its entirety and the following
inserted in lieu thereof:

    


    (b)           Subject
to the provisions of Sections 6.1(d) and 6.1(e), the Board shall have sole
discretion to determine the timing of any distribution and the aggregate amounts
available for such distribution. Subject to Section 6.1(b)(iii), each
distribution made by the Company, regardless of the source or character of the
assets to be distributed, shall be made to the Members in accordance with the
following order and priority.

    


    (i)    First, to the
Members holding the Class A Units and the Members holding the Class C Units in
the following percentages:

     

    (A)    78.4973% to
the Members holding Class A Units, pro rata based upon their respective
Percentage Interests, and

    


    (B)    21.5027% to
the Members holding Class C Units, pro rata based upon their respective
Percentage Interests,

    


    until the
cumulative total amount of all prior and current distributions to Members
holding Class A Units under this Section 6.1(b)(i) equals $7,575,758 (including
any distributions made pursuant to Section 12.2 by reference to this Section
6.1(b)(i));

     

    
      
         


      

      
        19

        
          

        

      

      
         


      

    

    


    (ii)           Second,
subject to Section 6.1(b)(iii), to the Members in accordance with their
Percentage Interests; and

    


    (iii)           In
the event of an Inside Significant Event, the order and priority of any
distribution of the net proceeds from the Inside Significant Event shall be as
follows:

    


    (A)           First,
to the Members holding the Class A Units and the Members holding the Class C
Units in the following percentages:

    


    (1)           78.4973%
to the Members holding Class A Units, pro rata based upon their respective
Percentage Interests, and

    


    (2)           21.5027%
to the Members holding Class C Units, pro rata based upon their respective
Percentage Interests,

    


    until the
cumulative total amount of all prior and current distributions to Members
holding Class A Units under Section 6.1(b)(i) and this Section 6.1(b)(iii)(A)
equals $7,575,758;

    


    (B)           Second,
unless an Outside Significant Event (as defined in the Contribution Agreement)
has occurred and ETI has received a payment of $4,000,000 pursuant to Section
5.8(b) of the Contribution Agreement, to the Members holding the Class A Units
and the Members holding the Class C Units in the following
percentages:

    


    (1)           78.4973%
to the Members holding Class A Units, pro rata based upon their respective
Percentage Interests, and

    


    (2)           21.5027%
to the Members holding Class C Units, pro rata based upon their respective
Percentage Interests,

    


    until the
sum of cumulative total amount of all prior and current distributions to Members
holding Class A Units under this Section 6.1(b)(iii)(B) equals $12,121,212;
and

    


    (C)    Third, to the
Members in accordance with their Percentage Interests.

     

    
      
         


      

      
        20

        
          

        

      

      
         


      

    

    


    E.           Section 6.2(a).    Section
6.2(a) of the Agreement shall be deleted in its entirety and the following
inserted in lieu thereof:

    


    (a)           General Profit and Loss
Allocations.    After giving effect to the allocation
provisions in Section 6.2(b), Profits and Losses shall be allocated as
follows.

    


    (i)           Profits.    For each
fiscal year of the Company or other applicable period, Profits (and all items
included in the computation thereof) shall be allocated among the Members as
follows:

    


    (A)           First,
subject to Section 6.2(a)(i)(D), one hundred percent (100%) to the Members, in
proportion to and to the extent of the excess, if any, of (1) the cumulative
Losses allocated to each such Member under Section 6.2(a)(ii) for prior fiscal
years or other allocation periods, over (2) the cumulative Profits allocated to
each Member pursuant to this Section 6.2(a)(i)(A) for all prior fiscal years or
other allocation periods. Profits should be allocated to the Members under this
Section 6.2(a)(i)(A) in the reverse order that the applicable Losses were
allocated to such Members under Section 6.2(a)(ii) during prior fiscal years or
other allocation periods;

    


    (B)           Second,
subject to Section 6.2(a)(i)(D), to the Members holding the Class A Units and
the Members holding the Class C Units in the following percentages:

    


    (1)           78.4973%
to the Members holding Class A Units, pro rata based upon their respective
Percentage Interests, and

    


    (2)           21.5027%
to the Members holding Class C Units, pro rata based upon their respective
Percentage Interests,

    


    until the
cumulative total amount of all prior and current allocations to the Members
holding Class A Units under this Section 6.2(a)(i)(B) equals
$7,575,758;

    


    (C)           Third,
subject to Section 6.2(a)(i)(D), to the Members in accordance with their
Percentage Interests; and

    


    (D)           In
the event of an Inside Significant Event:

    


    (1)           
First, one hundred percent (100%) to the Members in proportion to and to the
extent of the excess, if any, of (I) the cumulative Losses allocated to each
such Member under Section 6.2(a)(ii) for prior fiscal years or other allocation
periods, over (II) the cumulative Profits allocated to each Member pursuant to
Section 6.2(a)(i)(A) and this Section 6.2(a)(i)(D)(1) for all prior fiscal years
or other allocation periods. Profits should be allocated to the Members under
this Section 6.2(a)(i)(D)(1) in the reverse order that the applicable Losses
were allocated to such Members under Section 6.2(a)(ii) during prior fiscal
years or other allocation periods;

     

    
      
         


      

      
        21

        
          

        

      

      
         


      

    

    


    (2)           Second,
to the Members holding the Class A Units and the Members holding the Class C
Units in the following percentages:

    


    (I)           78.4973%
to the Members holding Class A Units, pro rata based upon their respective
Percentage Interests, and

    


    (II)           21.5027%
to the Members holding Class C Units, pro rata based upon their respective
Percentage Interests,

    


    until the
cumulative total amount of all prior and current allocations to the Members
holding the Class A Units under Section 6.2(a)(i)(B) and this Section
6.2(a)(i)(D)(2) equals $7,575,758;

    


    (3)           Third,
unless an Outside Significant Event (as defined in the Contribution Agreement)
has occurred and ETI has received a payment of $4,000,000 in accordance with
Section 5.8(b) of the Contribution Agreement, to the Members holding the Class A
Units and the Members holding the Class C Units in the following
percentages:

    


    (I)           78.4973%
to the Members holding Class A Units, pro rata based upon their respective
Percentage Interests, and

    


    (II)           21.5027%
to the Members holding Class C Units, pro rata based upon their respective
Percentage Interests,

    


    until the
sum of cumulative total amount of all prior and current allocations to the
Members holding the Class A Units under this Section 6.2(a)(i)(D)(3) equals
$12,121,212; and

     

    
      
         


      

      
        22

        
          

        

      

      
         


      

    

    


    (4)           Fourth,
to the Members in accordance with their Percentage Interests.

    


    (ii)           Losses. For each
fiscal year of the Company or other applicable period, Losses (and all items
included in the computation thereof) shall be allocated among the Members as
follows:

    


    (A)           First,
to the Members holding Class A Units, the Members holding Class B Units and the
Members holding Class C Units, pro rata based upon their respective Percentage
Interests, until the Capital Accounts of any such class of Members has been
reduced to zero; then to the Members holding such other classes of Units (whose
Capital Accounts have not yet been reduced to zero), pro rata based upon their
respective Percentage Interests, until the Capital Accounts of either of such
class of Units has been reduced to zero; and then to the Members holding the
remaining such class of Units (whose Capital Accounts have not yet been reduced
to zero)  until their Capital Accounts have been reduced to zero;
and

    


    (B)           Second,
to the Members in accordance with their Percentage

    Interests.

    


    F.           Section 7.3.    Section 7.3
of the Agreement shall be deleted in its entirety and the following inserted in
lieu thereof:

    


    7.3           Tag-Along Rights. Except for a
Disposition described in clause (b), clause (c), or clause (d) of the definition
of Permitted Disposition, if any Member (the “Disposing
Member”) should agree to Dispose of any Units to a Person or Persons in a
single transaction or in a series of related transactions, then the Disposing
Member shall provide written notice thereof to the Company and the other
Members, which notice shall include sufficient detail as to the identity of the
prospective acquiror, Units to be Disposed of and the terms and conditions
thereof (the “Disposition
Notice”), in which case each other Member shall have the right to Dispose
of the same percentage of its Units as the Disposing Member is proposing to
Dispose of in such Disposition by providing written notice of such exercise to
the Disposing Members (the “Tag
Notice”) and  the Company within 30 days after receipt of the
Disposition Notice. If a Member exercises its right hereunder to participate in
such Disposition, then, notwithstanding any other provision herein to the
contrary, the Disposing Member shall not be permitted to Dispose of Units in
such proposed Disposition unless the proposed transferee agrees to acquire all
of the Units described in the Tag Notice of any participating Members (or if the
proposed transferee does not wish to acquire more than the Units of the
Disposing Member, then the proposed transferee must acquire such number of Units
from the Disposing Member and the participating Members in proportion to their
respective Percentage Interests), in each case on the same terms and conditions
as set forth in the Disposition Notice.

     

    
      
         


      

      
        23

        
          

        

      

      
         


      

    

    


    G.           Section 7.4(a).    Section
7.4(a) of the Agreement shall be deleted in its entirety and the following
inserted in lieu thereof:

    


    (a)           If
any Member (the “Selling
Member”) at any time proposes to Dispose of (including a Disposition to
another Member) all or any of its Units (the “Offered
Units”), the Disposition of which would not result in a Disposition
described in clause (b), clause (c), or clause (d) of the definition of
Permitted Disposition, then in addition to complying with the provisions of
Section 7.1, Section 7.2, Section 7.3 and Section 7.5, if applicable, such
Member shall promptly give written notice thereof (the “ROFR Transfer
Notice”) to the Company and the other Members. The ROFR Transfer Notice
shall set forth all relevant information with respect to the proposed
Disposition (the “Third Party
Offer”), including the name and address of the prospective transferee,
the Units that are the subject of the proposed Disposition, the price to be paid
for such Units, and any other terms and conditions of the proposed Disposition.
The other Members (the “Non-Selling
Members”) shall have the preferential right (the “ROFR”) to
acquire, for the same purchase price, and on the same terms and conditions as
set forth in the ROFR Transfer Notice, such Offered Units.

    


    H.           Section 8.2(b).    The
introductory paragraph of Section 8.2(b) of the Agreement shall be deleted in
its entirety and the following inserted in lieu thereof:

     

    (b)           Notwithstanding
anything else contained herein, the Company shall not, and shall cause its
Subsidiaries to not, unless approved by at least six Directors (at least one of
which must be a Class B Designee and at least one of which must be a Class C
Designee) at a meeting of the Directors duly called and held:

    


    I.           Section
8.2(b)(ii).    Section 8.2(b)(ii) of the Agreement shall
be deleted in its entirety and the following inserted in lieu
thereof:

     

    (ii)           merge
or consolidate with any Person, after which merger or consolidation (A) Persons
who were not, directly or indirectly, equity interest owners, members, option
holders or warrant holders of the Company immediately prior thereto own or
control more than 50% of the direct or indirect voting power or economic
interest of the surviving entity and (B) if the Company is not the surviving
entity, the constituent documents of the surviving entity do not provide rights,
obligations and other features of the Class B Units and the Class C Units (or
such security or securities that is or are issued to holders of the Class B
Units and Class C Units in such merger or consolidation) comparable to the
rights, obligations and other features of Class B Units and Class C Units, as
applicable, under this Agreement;

     

    
      
         


      

      
        24

        
          

        

      

      
         


      

    

    


    J.           Section
8.2(b)(x).    Section 8.2(b)(x) of the Agreement shall
be deleted in its entirety and the following inserted in lieu
thereof:

     
 

    (x)           enter
into, amend, modify or supplement or permit any Subsidiary to enter into, amend,
modify or supplement, any agreement, transaction, commitment or arrangement with
any Member or any of its Affiliates for the manufacture or production of any of
equipment and systems for EcosBrine, the EcosFrac Process, and the Ozonix
Process (as defined in the License Agreement) that is an exclusive or an
all-requirements agreement or arrangement;

    


    K.           Section
8.2(c)(i).    Section 8.2(c)(i) of the Agreement shall
be deleted in its entirety and the following inserted in lieu
thereof:

     

    (i)           The
Board shall consist of natural persons who need not be Members or residents of
the State of Delaware.  Subject to the remaining provisions of this
Section 8.2, the Board shall consist of (a) five nominees designated
by the holders of a majority of the Class A Units (the “Class A
Designees”), (b) three nominees designated by the holders of a
majority of the Class B Units (the “Class B
Designees”) and (c) one nominee designated by the holders of a majority
of the Class C Units (the “Class C
Designee”).

    


    L.           Section
8.2(c)(iii).    Section 8.2(c)(iii) of the Agreement
shall be deleted in its entirety and the following inserted in lieu
thereof:

    


    (iii)           The
holders of a majority of each of the Class A Units, the Class B Units and the
Class C Units shall have the right to designate alternate Directors elected as
Class A Designees, Class B Designees, and Class C Designees, respectively, who
may replace any absent, disqualified, removed or resigned Director who is a
Class A Designee, a Class B Designee, or a Class C Designee, respectively, at
any meeting of the Board.

    


    M.           Section 8.2(g).    Section
8.2(g) of the Agreement shall be deleted in its entirety and the following
inserted in lieu thereof:

    


    (g)           A
quorum for the transaction of business at a meeting of the Board shall exist
when at least six of the Directors (at least one of which must be a Class A
Designee, at least one of which must be a Class B Designee and at least one of
which must be a Class C Designee) are present in person, by proxy or by
telephone. If a quorum is not present at a duly called meeting, such meeting may
be adjourned and called again thereafter, provided that no less than 24 hours
notice is given to all the Directors in the manner specified in Section 8.2(h).
A quorum for the transaction of business at such second meeting shall exist when
a majority of the Directors are present in person, by proxy or by telephone.
Except as otherwise set forth herein, all decisions of the Board shall require
the affirmative vote of a majority of the Directors present in person, by proxy
or by telephone at any meeting of the Board at which a quorum is
present.

     

    
      
         


      

      
        25

        
          

        

      

      
         


      

    

    


    N.           Section 8.2(h).    Section
8.2(h) of the Agreement shall be deleted in its entirety and the following
inserted in lieu thereof:

    


    (h)           The
Board may hold its meetings, have an office and keep the books of
the

    Company
in such place or places, within or without the State of Delaware, as the Board
may from time to time determine by resolution. At all meetings of the Board
business shall be transacted in such order as shall from time to time be
determined by resolution of the Board. Each Director shall have one vote; provided, however, that any Class A
Designee or Class B Designee shall be able to cast up to five votes or three
votes that would otherwise be cast by the other Class A Designees or Class B
Designees, respectively, at any meeting if (i)any other Class A Designees or the
other Class B Designees, respectively, are not present at such meeting (and such
absent Class A Designees or Class B Designees, as applicable, shall be deemed to
have given a proxy to vote at such meeting to the present Class A Designees or
Class B Designee, as applicable) or (ii) if there are any vacancies among the
Class A Designees or Class B Designees, respectively. It is understood and
agreed that a Class A Designee casting votes pursuant to this Section 8.2(h)
shall only cast votes for other Class A Designees and that a Class B Designee
casting votes pursuant to this Section 8.2(h) shall only cast votes for other
Class B Designees. For quorum purposes the presence of any Class A Designee or
Class B Designee shall count as

    the
presence of all Class A Designees or Class B Designees,
respectively.

    


    O.           Section 8.2(i).    Section
8.2(i) of the Agreement shall be deleted in its entirety and the following
inserted in lieu thereof:

    


    (i)           The
Board shall meet no less than four times per year.  Regular meetings
of the Board may be held by teleconference in accordance with Section 8.2(l)(v)
or at such place or places as shall be designated from time to time by
resolution of the Board.  Special meetings of the Board may be called
by the Chairman of the Board, if any, or by a majority of any of the Class A
Designees, Class B Designees or Class C Designees on at least three days
personal, written, telegraphic or email notice to each Director, with such
notice containing a statement of the purposes for such special
meeting.

    


    P.           Section 8.2(m).    A new Section
8.2(m) shall be added to the Agreement as follows:

     

    
      
         


      

      
        26

        
          

        

      

      
         


      

    

    


    (m)           Notwithstanding
anything contained herein to the contrary (including, but  not limited
to, Section 8.3(e)), (i) in the event that the Company or any Subsidiary of the
Company has a claim for a default or a breach by ETI or any of its Affiliates
pursuant to (x) the License Agreement or (y) any agreement with ETI or any of
its Affiliates for the manufacture or production of any of equipment and systems
for EcosBrine, the EcosFrac Process, and the Ozonix Process (other than the
Company or any Subsidiary of the Company) (ii) in the event it is necessary for
EES to enforce its rights under that certain letter dated November 9, 2009
between EES and ETI regarding Obligations under the Guaranty Agreement (the “ETI
Indemnity Letter”)  and (iii) in connection with the approval by the
Company of the manufacturing agreement to be entered into pursuant to Section
8.8(b) (each, an “ETI Conflict
Matter”), then any Class B Designee or Class C Designee may call a
meeting of the Board, with notice sent to the respective designees including the
Class A Designee (except that the attendance of the Class A Designee shall not
be a requirement in order to establish a quorum for that meeting), to determine
whether the Company will enforce its rights under the relevant agreement in
respect of such alleged default or breach, enforce the ETI Indemnity Letter or
approve the manufacturing agreement, as applicable.  The Class A
Designees shall have the right to attend and participate in any such meeting
(and nothing contained herein shall prevent them from calling a meeting with
respect to the same actions). The determination of whether the Company shall
enforce such rights against ETI or any of its Affiliates, enforce the ETI
Indemnity Letter or approve the manufacturing agreement, as applicable, shall be
made by the Class B Designees and C Designees (by majority vote, provided that
at least one Class B Designee and one Class C Designee shall approve the
action), provided that no action may be taken without a meeting by written
consent under Section 8.2(l)(iv) with regard to an ETI Conflict
Matter.  If a determination is made to enforce such rights, ETI shall
not act as the Managing Member with respect to and solely to the extent of such
ETI Conflict Matter and solely for the time necessary to resolve such ETI
Conflict Matter and the Class B Designees and the Class C Designees,
collectively (by majority action, provided that at least one Class B Designee
and one Class C Designee shall approve the action), shall act as the Managing
Member of the Company with respect to and solely to the extent of such ETI
Conflict Matter and solely for the time necessary to resolve such ETI Conflict
Matter.  Notwithstanding the preceding, (i) the Class B Designees
shall have only have the right to exercise the power and authority set forth in
this Section 8.2(m) until the first to occur of (x) a Change of Control
(substituting CWP for Company in the definition) of CWP and (y) the date upon
which CWP’s Percentage Interest ceases to be at least 16.5% and (ii) the Class C
Designees shall have only have the right to exercise the power and authority set
forth in this Section 8.2(m) until the Percentage Interest of the holders of
Class C units, in the aggregate, ceases to be at least 10.75%. Notwithstanding
the foregoing and anything to the contrary stated herein, ETI shall, regardless
of any action relating to an ETI Conflict Matter, be entitled to all of the
limitations on liability and protections afforded to a Managing Member of the
Company as set forth in the Agreement.  In addition, ETI shall
continue to serve as Managing Member of Company for all other matters unrelated
to the ETI Conflict Matter.

    


    Q.           Section 8.4.   Section 8.4 of the
Agreement shall be deleted in its entirety and the following inserted in lieu
thereof:

     

    
      
         


      

      
        27

        
          

        

      

      
         


      

    

    


    8.4   Officers;
Committees.

    


    (a)    The Board may
appoint certain agents of the Company to be referred to as “officers” of the
Company (and “Officers”
in this Agreement) and designate such titles (such as Chief Executive Officer,
President, Vice-President, Secretary and Treasurer) as are customary for
corporations under Delaware Law, and such Officers shall have the power,
authority and duties described by resolution of the Board or as are customary
for each such position. In addition to or in lieu of Officers, the Board may
authorize any person to take any action or perform any duties on behalf of the
Company (including any action or duty reserved to any particular Officer) and
any such person may be referred to as an “authorized person.” An employee or
other agent of the Company shall not be an authorized person unless specifically
appointed as such by the Board. The Board may form such committees and delegate
any responsibilities to such committees as it determines; provided, however, that any such
committee shall have at least one Class B Designee as a member and that the
Class C Designee shall have the right to be a member of such committee if the
Class C Designee elects.

    


    (b)           Notwithstanding
anything contained herein (including Section 8.2 and (a) above) and applicable
law, with respect to any action of the Board to appoint a Chief Executive
Officer, President, Chief Operating Officer, or Chief Financial Officer of the
Company (each an “Executive
Officer”), a majority of the Class B Designees and/or the Class C
Designees, voting separately as a Class,  shall have the right to
reject up to an aggregate of two appointments of any Executive Officer. (For
clarification, the two rejections could be made solely by either the Class B
Designees or the Class C Designee, or one rejection could be made by the Class B
Designees and one rejection could be made by the Class C Designee.)

    


    R.           Section 8.5(g).    A new Section
8.5(g) shall be added to the Agreement as follows:

    


    (g)           Notwithstanding
the foregoing, if a Director pursues a corporate opportunity of the Company or a
Subsidiary of the Company or if a Director pursues a business opportunity that
may have a competitive impact on the Company or a Subsidiary of the Company,
such Director shall recuse himself from any action taken by the Board of
Managers involving such opportunity or, if such recusal is not possible, such
Director shall resign as a Director of the Company.

    


    S.           Section 8.7.    A new Section
8.7 shall be added to the Agreement as follows:

     

    
      
         


      

      
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    8.7           Business Plan and
Budgets.

    


    (a)           No
later than October 15 of each Fiscal Year (except the First Fiscal year which
shall be no later than December 1), the Managing Member shall cause to be
delivered to the holders of the Class B Units and the Class C Units, a draft of
the Company’s business plan and projections for operations for the next fiscal
year (including the Operating Budget and the Capital Expenditure Budget) (for
each such fiscal year, the “Business
Plan”), such Business Plan to be in form and detail approved by: (i) the
holders of the Class B Units (by majority vote); and (ii) the holders of the
Class C Units (by majority vote).  No later than November 1 of such
Fiscal Year (except December 15 of the first Fiscal Year), the holders of the
Class B Units (by majority vote) and the holders of the Class C Units (by
majority vote) shall either (x) approve such Business Plan in the form submitted
to them or (y) provide to the Managing Member such Business Plan with such
amendments and modifications deemed necessary by them.  In the case of
(y), the Managing Member shall work in good faith with holders of the Class B
Units and the Class C Units to agree on a final Business Plan.  Such
Business Plan shall then be in effect for the next Fiscal Year and the Managing
Member shall comply in all respects with such Business Plan.

     

    (b)           The
Company will have an “Operating
Budget” which will control the operations of the Company in each Fiscal
Year.  (References throughout this Agreement to the “Operating
Budget” shall be deemed to refer to the then current year’s Operating
Budget.)  The Operating Budget shall be prepared by the Managing
Member in accordance with Section 8.7(a) and then approved by (i) the holders of
the Class B Units (by majority vote) and (ii) the holders of the Class C Units
(by majority vote).  The Operating Budget shall be based upon a
specified number of units required for the sale of services and/or products and
may not be changed or materially deviated from (i.e., increasing any expense
thereunder by more than fifteen percent (15%) of such expense, excluding any
increase based on and in proportion to an increase in the number of units
required for the sale of services and/or products) without prior written
approval by (i) the holders of the Class B Units (by majority vote); and (ii)
the holders of the Class C Units (by majority vote).  The Managing
Member shall implement the Operating Budget and shall be authorized, subject to
the provisions of Section 8.2(b), without the need for further approval by the
Directors (including the Class B Designees or the Class C Designees), to make
the expenditures and incur the obligations provided for in the Operating
Budget.  The Managing Member shall operate within the confines of the
Operating Budget and is not authorized to materially exceed the line item
expenses in the Operating Budget (i.e., increasing any expense thereunder by
more than fifteen percent (15%) of such expense, except to the extent such
increase is based on and in proportion to an increase in the number of units
required for the sale of services and/or products).

     

    
      
         


      

      
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    (c)           The
Company will have a “Capital
Expenditure Budget” which will control the capital expenditures of the
Company in each the Fiscal Year.  (References throughout this
Agreement to the “Capital
Expenditure Budget” shall be deemed to refer to the then current year’s
Capital Expenditure Budget.)  The Capital Expenditure Budget shall be
prepared by the Managing Member in accordance with Section 8.7(a) and then
approved by (i) the holders of the Class B Units (by majority vote) and (ii) the
holders of the Class C Units (by majority vote).  The Capital
Expenditure Budget shall be based upon a specified number of units required for
the sale of services and/or products and may not be changed or materially
deviated from (i.e., increasing any
expense thereunder by more than fifteen percent (15%) of such expense, excluding
any increase based on and in proportion to an increase in the number of units
required for the sale of services and/or products) without prior written
approval by (i) the holders of the Class B Units (by majority vote) and (ii) the
holders of the Class C Units (by majority vote).  The Managing Member
shall implement the Capital Expenditure Budget and shall be authorized, subject
to the provisions of Section 8.2(b), without the need for further approval by
the Directors (including the Class B Designees and the Class C Designees), to
make the expenditures and incur the obligations provided for in the Capital
Expenditure Budget.  The Managing Member shall operate within the
confines of the Capital Expenditure Budget and is not authorized to materially
exceed the line item expenses in the Capital Expenditure Budget (i.e.,
increasing any expense thereunder by more than fifteen percent (15%) of such
expense, except to the extent such increase is based on and in proportion to an
increase in the number of units required for the sale of services and/or
products).

     

    T.           Section
8.8.    A new Section 8.8 shall be added to the
Agreement as follows:

    


    8.8           Manufacture of
Products Using Licensed Technology.

     

    (a)           Between
the Closing Date and the date that the Company and ETI enter into an
arms’-length manufacturing and production agreement as described in Section
8.8(b) below, ETI shall continue to charge EES its costs (in a manner consistent
with past practice) to manufacture products using the Licensed Technology in
accordance with the general terms and conditions of that certain Operating
Agreement between ETI and the Company, without amendment.

     

    (b)           Each
of ETI and the Company hereby acknowledges and agrees that, subject to Sections
8.2(b)(x) and 8.2(m),  ETI and the Company shall attempt in good faith
to negotiate an arms’-length manufacture and production agreement containing
commercially reasonable terms and conditions to be entered into no later than
January 31, 2010.  If such manufacture and production agreement cannot
be negotiated and entered into by January 31, 2010, ETI shall charge the Company
a per unit price of no greater than $350,000 per unit for products using the
Licensed Technology based on production of 250 units.

     

    (c)           Notwithstanding
whether ETI or a third party is manufacturing and producing the products using
the Licensed Technology, through December 31, 2011, ETI shall make available to
the Company, at such times and places as may be reasonably requested by the
Company, fully-trained technical staff to support the Company in the
exploitation of the Licensed Technology in the Field of Use, including, without
limitation, support in the manufacture and production of products using the
Licensed Technology.  ETI shall be entitled to reasonable compensation
for such services, including reimbursement for all reasonable out-of-pocket
expenses and disbursements.

     

    
      
         


      

      
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    U.           Section
10.4.   Section 10.4 of the Agreement shall be
amended by adding the following sentence at the end of the
paragraph:

    


    This
Section 10.4 shall survive a Member’s sale, transfer or other disposition of all
of its Units.

    


    V.           Section
10.5.    Section 10.5 of the Agreement shall be
amended by adding the following sentences at the end of the
paragraph:

    


    Each
Member agrees to be bound by the restrictions set forth in this Section 10.5 for
a period of two (2) years following the date such Member no longer holds any
Units.

    


    W.          Section
12.1(a)(i).    Section 12.1(a)(i) of the Agreement shall
be deleted in its entirety and the following inserted in lieu
thereof:

    


    (i)           the
approval by at least five Directors (at least one of which must be a Class B
Designee and at least one of which must be a Class C Designee);

    


    X.           Section 13.4.    Section 13.4
of the Agreement shall be deleted in its entirety and the following inserted in
lieu thereof:

    


    13.4           Amendment or
Restatement. This Agreement shall not be altered, modified, amended or
changed (by merger or otherwise), or the compliance with any terms
or  provisions waived, except by an amendment or waiver approved by
Members holding a majority of each of the Class A Units, the Class B Units and
the Class C Units each voting separately as a class; provided, however, that (a) subject to
Section 8.2(b)(xi), any amendments to this Agreement necessary or appropriate in
connection with the issuance of additional Equity Interests or the admission of
additional Members may be effected by Members holding a majority of the Class A
Units; provided, further, however, that no amendments
may be made to Sections 3.1(b), 5.3, 7.3, 7.4, 8.2(b), 8.2(c)(i)(B), 10.5, 10.6,
10.7, 12.1(a)(i), the definitions of Change of Control” or “Excluded Issuances”
or this Section 13.4 without the approval of the holders of a majority of each
of the Class B Units and the Class C Units, voting separately as a Class, (b) no
modification of the terms of this Agreement that increases or extends any
financial obligation or liability of a Member shall be effective without the
prior written consent of such Member, (c) this Section 13.4 may not be amended
without the prior written consent of each Member and (d) this Agreement shall be
deemed to be automatically amended from time to time without further consent of
any party to the extent provided in an Addendum Agreement executed and delivered
by the parties thereto to reflect issuances and transfers of Units made in
compliance with this Agreement. Except as required by Law, no amendment,
modification, supplement, discharge or waiver of or under this Agreement shall
require the consent of any person not a party to this Agreement.

     

    
      
         


      

      
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    Y.           Schedule
1.  Schedule 1 of the Agreement shall be deleted in its
entirety and replaced with Schedule 1 attached hereto.

    


    Z.           Exhibit
A.  The following defined terms shall be added to Exhibit
A:

    


    “Outside
Significant Event” means the first to occur of any of the
following:

    


    (a) a
sale, redemption, transfer or other disposition of all or any portion of the
interests of CWP in the Company that results in proceeds to CWP of at least
$13,000,000;

    


    (b) a
recapitalization, merger, restructuring or other similar transaction (debt or
equity) (or series thereof) of or by CWP that results in distributions, loans,
advances or other payments, in the aggregate, of at least $13,000,000 by CWP to
the direct or indirect holders of interests in CWP;

    


    (c) any
other transaction (or series thereof), pursuant to which the direct
or

    indirect
holders of interests in CWP receive at least $13,000,000 with respect to or
arising in any way from their direct or indirect interest in CWP in cash or
other assets, other than as a result of CWP making distributions of cash it
received from the Company; or

    


    (d) any
combination of transactions described in subclauses (a), (b) and
(c)

    above
which, in the aggregate, results in the sum of (i) proceeds under subclause (a),
(ii) distributions, loans, advances or other payments under subclause (b) and
(iii) receipts under subclause (c) equaling at least $13,000,000.

    


    AA.           Exhibit
A.  The following defined terms set forth in Exhibit A shall be
amended:

    


    “Permitted
Disposition” means (a) any Disposition made pursuant to Section 7.3 or
Section 7.4; (b) the Disposition by a Member to an Affiliate of such Member; (c)
the Disposition by CWP to Fidelity, up to 2,000 Class B Units of the Company, on
or before January 31, 2010; or (d) the Disposition by Fidelity to one or more of
its officers or directors or the Disposition by one or more of its officers or
directors to Fidelity.

    


    4.            
BOARD.  Aaron
Horn shall serve as a Class A Designee until his removal or replacement in
accordance with this Agreement.  Brent Bickett shall serve as the
Class C Designee until his removal or replacement in accordance with this
Agreement.

     
 

    5.           
REAFFIRMATION.  In
the event of any conflict between the Agreement and this Amendment thereto, the
terms as contained in this Amendment shall control.  In all other
respects the Agreement is hereby ratified and confirmed.

    


    6.           
COUNTERPARTS.  This
Amendment may be executed in several counterparts and all so executed shall
constitute one agreement binding on all the parties hereto, notwithstanding that
all the parties are not a signatory to the original
counterpart.  Signatures may be original or facsimile.

    


    


    


    [Signature
Pages Attached]

    


    
      
         


      

      
        32

        
          

        

      

      
         


      

    

     

    IN WITNESS WHEREOF, the
parties hereto have duly executed this Amendment effective as of the date set
forth above.

     

     

     

     

    
      
        	 	COMPANY:	 
	 	 	 
	 	 	 
	 	ECOSPHERE
      ENERGY SERVICES, LLC	 
	 	 	 	 
	
                 

              	
                By:
      

              	__________________________________________	 
	 	 	______________________,
      Its_________________	 
	 	 	 	 
	 	CLASS A
MEMBER:	 
	 	 	 	 
	 	 	 	 
	 	ECOSPHERE
      TECHNOLOGIES, INC.	 
	 	 	 	 
	 	By:	__________________________________________	 
	 	 	______________________,
      ___________________	 
	 	 	 	 
	 	 	 	 
	 	CLASS B
MEMBER:	 
	 	 	 	 
	 	 	 	 
	 	CLEAN
      WATER PARTNERS, LLC	 
	 	 	 	 
	 	By:	__________________________________________	 
	 	 	______________________,
      ___________________	 
	 	 	 	 
	 	 	 	 
	 	CLASS C
    MEMBERS:	 
	 	 	 	 
	 	 	 	 
	 	FIDELITY
      NATIONAL FINANCIAL, INC.	 
	 	 	 	 
	 	By:
      	__________________________________________	 
	 	 	______________________,
      ___________________	 
	 	 	 	 
	 	________________________________________________	 
	 	JOHN
      A. KUELBS	 
	 	 	 	 


      

    

     

     

     

    
      
         


      

      
        33

        
          

        

      

      
         


      

    

     

    SCHEDULE
1

    MEMBERS; INITIAL CAPITAL
CONTRIBUTIONS

     

    
      	
               

              Member
      and Address

              for
      Notices

            	
               

              Class
      A Units

            	
               

              Class
      B Units

            	
               

              Class
      C Units

            	
               

              Capital
      Contributions

            	
               

              Percentage
      Interest

            
	
              Ecosphere
      Technologies, Inc.

              3515
      Southeast Lionel Terrace

              Stuart,
      FL 34997

              Attn:
      Mr. Dennis McGuire

              Fax:
      (772) 781-4778

               

            	
              67,000

            	
              N/A

            	
              N/A

            	
              As
      previously made

            	
              52.5932%

            
	
              Clean
      Water Partners, LLC

              126
      Central Ave.

              Whitefish,
      MT 59937

              Attn:
      Chad Wold

              Fax:
      (877) 855-1952

               

               

            	
              N/A

            	
              33,000

            	
              N/A

            	
              As
      previously made

            	
              25.9041%

            
	
              Fidelity
      National Financial, Inc.

              601
      Riverside Avenue

              Jacksonville,
      Florida 32204

              Facsimile:
      (904) 357-1029

              Attention:
      Chief Legal Officer

               

              With
      a copy to:

              4050
      Calle Real, Suite 200

              Santa
      Barbara, California 93110

              Attention:
      Executive Vice President, Legal

              Fax:
      (850) 696-7831

               

               

               

            	
              N/A

            	
              N/A

            	
              24,208

            	
              $7,500,000

            	
              19.0026%

            
	
              John
      A. Kuelbs

               611 S.
      White Chapel Blvd

              Southlake,
      TX 76092

              Fax:
      (___) ________

               

               

            	
              N/A

            	
              N/A

            	
              3,185

            	
              $350,000
      and Services Provided

            	
              2.5001%

            


    

    


    


    
      
         


      

      
        34

        
          

        

      

      
         


      

    

    \

    EXHIBIT
B

     

     Form
of Letter Agreement

    


    


    Fidelity
National Financial, Inc.

    601
Riverside Avenue

    Jacksonville,
Florida 32204

    


    Re:           EES
Unit Purchase Agreement - First Right

    


    Gentlemen,

     

    In
connection with that certain Unit Purchase Agreement between Ecosphere Energy
Services, LLC, a Delaware limited liability company (“EES”), and Fidelity
National Financial, Inc., a Delaware corporation (“Fidelity”), Ecosphere
Technologies, Inc., a Delaware corporation (“ETI”), a majority equity owner of
EES, has agreed to grant a first right of negotiation with respect to certain
financing by ETI. This letter shall confirm that ETI (or EES) shall provide you
with advance notice of its intent to pursue funding, to the extent necessary (as
determined by ETI in its sole discretion), for water filtration business
opportunities with respect to applications outside the Field of Use (as defined
in that certain License Agreement dated July 15, 2009 between ETI and
EES).  For a period of ten (10) days commencing with the date of such
notice (the “Exclusivity Period”), ETI shall negotiate exclusively with you to
obtain such financing.  If the parties, acting in good faith, cannot
agree upon the terms of such financing prior to the expiration of the
Exclusivity Period, then ETI shall have the right to pursue such financing from
other parties.

    


    If you
are in agreement with the terms and conditions set forth herein and in this
letter agreement, please sign below and return an executed copy of this letter
agreement to us.

     

     

    
      	 	Very truly
      yours,
	 	 
	 	 
	 	Ecosphere
      Technologies, Inc.
	 	 
	 	 
	 	By:
      _____________________________________
	 	__________,
      Its___________________________
	 	 
	 	Ecosphere
      Energy Services, LLC
	 	 
	 	 
	 	By:
      ______________________________________
	 	______________,
      Its________________________
	 	 


    

     

     

     

    
      
         


      

      
        35

        
          

        

      

      
         


      

    

     

    Fidelity
First Right

    Page
2

    


    


    


     

    
      	AGREED AND
      ACCEPTED:	 
	 	 
	FIDELITY
      NATIONAL FINANCIAL, INC.	 
	 	 
	 	 
	By:_____________________________________________	 
	Name: 	 
	Title:	 
	 	 


    

     

     

    


    
      
         


      

      
        36

        
          

        

      

      
         


      

    

     

    EXHIBIT
C

    


     Form
of Amended and Restated Replacement Secured Note

     

    THIS NOTE
HAS NOT BEEN REGISTERED UNDER THE FEDERAL OR ANY STATE SECURITIES LAWS AND MAY
NOT BE SOLD, TRANSFERRED OR HYPOTHECATED IN ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH LAWS AS MAY BE APPLICABLE OR, AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT AN EXEMPTION FROM SUCH APPLICABLE LAWS
EXIST.

    


    AMENDED AND
RESTATED

    REPLACEMENT SECURED
NOTE

    


     

    
      	$1,143,667.74 	 	 November 1,
    2009


    

     

     

    


    The
Makers (as hereinafter defined) executed and delivered to the Holder (as
hereinafter defined) a replacement secured note dated July 1, 2009, in the
original principal amount of $1,111,095.89 (the “Original Note”), and
the Makers and the Holder have agreed to amend and restate the Original Note as
follows:

     

    THIS
AMENDED AND RESTATED REPLACEMENT SECURED NOTE (this “Note”), is made as of
November 1, 2009 by Ecosphere Energy Services, LLC, a Delaware limited liability
company (“Holdings”), and EES
Operating Company, LLC, a Delaware limited liability company (“EES”, and together
with Holdings, the “Makers”), to and in favor of Clean Water Partners, LLC, a
Delaware limited liability company (the “Holder”).

     

    This Note shall amend, modify and
restate in its entirety (but shall not constitute a novation of), the Original
Note, and the conditions contained in this Note shall supersede and control the
terms, covenants, agreements, rights, obligations and conditions contained in
the Original Note.

    


    FOR VALUE RECEIVED, the Makers hereby
promise to pay to the order of the Holder, at c/o Chad Wold, Esq., 122 Central
Avenue, Whitefish, MT 59937, or at such other office as Holder designates in
writing to the Makers, the principal sum of  One Million One Hundred
Forty-Three Thousand Six Hundred Sixty-Seven and 74/100
Dollars  ($1,143,667.74) together with interest thereon computed at
the annual rate of ten percent (10%) from the date hereof until this Note has
been paid in full.

    


    Payments
in the amount of One Hundred Thousand Five Hundred Forty-Six Dollars and 56/100
($100,546.56) shall be payable monthly commencing on December 1, 2009 and
continuing on the first (1st) day of each and every month thereafter for the
next eleven (11) months.  The entire remaining principal balance and
interest shall be due and payable in full on or before November 1,
2010.

     

    
      
         


      

      
        37

        
          

        

      

      
         


      

    

     

    While in
default, this Note shall bear interest at the lesser of (i) the rate of 18% per
annum or (ii) such maximum rate of interest allowable under the laws of the
State of Florida. Payments shall be made in lawful money of the United
States.  This Note is secured by the Obligations and Collateral as set
forth in that certain Amended and Restated Credit Agreement dated July 15, 2009
(the “Agreement”) among
Holdings, EES, the Holder and Ecosphere Technologies, Inc., a Delaware
corporation.  Capitalized terms used, but not otherwise defined
herein, shall have the meaning ascribed to such terms in the
Agreement.

    


    1.           Event of
Default.  In the event either Holdings or EES shall commence
any case, proceeding or other action under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it as bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to its debts,
or seeking appointment of a receiver, custodian, trustee or other similar
official for it or for all or any substantial part of its assets; or there shall
be commenced against either Holdings or EES, any case, proceeding or other
action which results in the entry of an order for relief or any such
adjudication or appointment remains undismissed, undischarged or unbonded for a
period of 30 days; or there shall be commenced against either Holdings or EES
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, restraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 10 days from the entry thereof; or either Holdings or EES
shall make an assignment for the benefit of creditors; or Holdings or EES shall
be unable to, or shall admit in writing the inability to, pay its debts as they
become due; or Holdings or EES shall take any action indicating its consent to,
approval of, or acquiescence in, or in furtherance of, any of the foregoing;
then, or any time thereafter during the continuance of any of such events, the
entire unpaid balance of this Note then outstanding, together with accrued
interest thereon, if any, shall be and become immediately due and payable
without notice of demand by Holder.  This note is secured by the
Agreement and is subject to all of its provisions.

    


    2.           Prepayment.

    


    (a)           The
Makers, upon three days prior written notice to the Holder, may prepay, without
penalty or premium, the Note and any accrued interest to the date of
prepayment.  All prepayments shall be applied, first, to the payment
of accrued interest on this Note to the date of such payment and second, to the
payment of the principal amount of this Note.

    


    (b)           Upon
the sale, lease, transfer or other disposition (or series of related sales,
leases, transfers or other dispositions) of all or any Collateral, the Makers
shall promptly apply the cash proceeds thereof (net of any reasonable attorney’s
fees, reasonable accountant’s fees, reasonable brokerage fees and other
reasonable customary fees and expenses incurred in connection therewith and net
of taxes paid or reasonably expected to be payable as a result thereof) to the
prepayment of the Loan.

     

    
      
         


      

      
        38

        
          

        

      

      
         


      

    

     

    3.           Miscellaneous.

    


    (a)           This
Note is subject to, and is entitled to the benefits of, the Agreement and amends
and restates in its entirety (but does not constitute a novation of) the
Original Note.

    


    (b)           All
makers and endorsers now or hereafter becoming parties hereto jointly and
severally waive demand, presentment, notice of non-payment and
protest.

    


    (c)           This
Note may not be changed or terminated orally, but only with an agreement in
writing, signed by the parties against whom enforcement of any waiver, change,
modification, or discharge is sought with such agreement being effective and
binding only upon attachment hereto.

    


    (d)           This
Note and the rights and obligations of the Holder and of the undersigned shall
be governed and construed in accordance with the laws of the State of
Florida.

    


    


    IN WITNESS WHEREOF, the Makers have
caused this Note to be executed as of the date aforesaid.

     

     

    
      	 	Ecosphere
      Energy Services, LLC
	 	 
	 	 
	 	By:  _________________________________
	 	 
	 	 
	 	EES
      Operating Company, LLC
	 	 
	 	 
	 	By:_________________________________


    

     

    
      
         


      

      
        39

        
          

        

      

      
         


      

    

     

    EXHIBIT
D

    


     Form
of ETI Indemnity Letter

    


    November
__, 2009

    


    Ecosphere
Energy Services, LLC

    3515
Southeast Lionel Terrace

    Stuart,
Florida 34997

    


    Re:           Obligations
under Guaranty Agreement

    


    Gentlemen:

     

    Pursuant
to the terms and conditions of that certain Guaranty Agreement, dated November
17, 2008 (the “Guaranty Agreement”),
between Ecosphere Technologies, Inc. (“ETI”) and EES
Operating, LLC, as successor in interest to Ecosphere Energy Solutions, Inc.
(“EES”), EES
agreed to guarantee the payment and performance of the obligations of ETI under
that certain Secured Line of Credit Agreement, dated August 28, 2008, as amended
by the First Amendment to Secured Line of Credit Agreement, dated November 17,
2008 (as amended, the “Security
Agreement”).  EES is a wholly-owned subsidiary
of  Ecosphere Energy Services, LLC (the “Company”)

     

    ETI
hereby agrees that the total amount of the obligations of ETI for which EES is
obligated to guarantee under the Guaranty Agreement will not exceed the
obligations of ETI existing under the Security Agreement as of November __, 2009
(the “Effective
Date”) (as of the Effective Date, the obligations of ETI under the
Security Agreement equal One Million Seven Hundred Fifty-Nine Thousand Four
Hundred Forty-Four and 44/100 Dollars ($1,759,444.44), together with any
applicable interest, fees, costs, or expenses).  ETI hereby agrees not
to issue any promissory notes or incur any other indebtedness under the Security
Agreement or any other agreement that would be subject to the Guaranty Agreement
or that EES would otherwise be required to guarantee.

     

    To the
extent that EES is required pay any amount under the Guaranty Agreement and EES
does not have available funds to do so, ETI agrees to work with the holders of
the Class B Units and Class C Units of the Company to make a capital call on
terms and conditions satisfactory to the holders of the Class B Units and Class
C Units of the Company.

     

    Section
9.9 of the Guaranty Agreement provides for certain indemnification obligations
of ETI in the event that EES is required to pay any amounts under the Guaranty
Agreement.  ETI hereby agrees that ETI will pay any and all such
amounts to EES in cash upon demand by EES within 90 days.  If ETI does
not have sufficient cash to pay to EES such amounts, the Company shall have the
right to setoff, without limitation, against any and all amounts owing from the
Company to ETI.  If the amounts subject to setoff are insufficient to
fully and completely satisfy the obligations of ETI to EES, ETI hereby agrees to
work with the holders of the Class B Units and Class C Units of the Company to
determine a mutually satisfactory manner to pay such amount to EES and to
protect the interests of the holders of the Class B Units and Class C Units of
the Company.

     

    
      
         


      

      
        40

        
          

        

      

      
         


      

    

     

    If you
are in agreement with the terms and conditions set forth herein and in this
letter agreement, please sign below and return an executed copy of this letter
agreement to us.

     

     

    
      	 	ECOSPHERE
      TECHNOLOGIES, INC.
	 	 
	 	 
	 	By:____________________________________
	 	Name: Adrian G.
      Goldfarb
	 	Title: Chief
      financial Officer
	ACKNOWLEDGED AND
      AGREED:	 
	 	 
	 	 
	EES
      OPERATING, LLC	 
	 	 
	By:
      ____________________________________	 
	
              Name:
      __________________________________

            	 
	Title:
      ___________________________________	 
	 	 
	 	 
	ECOSPHERE
      ENERGY SERVICES, LLC	 
	 	 
	By:
      ____________________________________	 
	Name:
      __________________________________	 
	Title:
      ___________________________________	 


    

     

     

     

    
      
         


      

      
        41