OPTION
THIS OPTION AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER EITHER THE SECURI
TIES ACT OF 1933 (THE "ACT") OR APPLICABLE STATE SECURITIES LAWS
(THE "STATE ACTS") AND SHALL NOT BE SOLD, PLEDGED, HYPOTHECATED,
DONATED, OR OTHERWISE TRANSFERRED (WHETHER OR NOT FOR CONSIDER
ATION) BY THE HOLDER EXCEPT UPON THE ISSUANCE TO THE COMPANY OF
FAVORABLE OPINION OF COUNSEL OR SUBMISSION TO THE COMPANY OF SUCH
EVIDENCE AS MAY BE SATISFACTORY TO COUNSEL TO THE COMPANY, IN
EACH SUCH CASE, TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE
IN VIOLATION OF THE ACT AND THE STATE ACTS.
OPTION TO PURCHASE 100,000 SHARES OF COMMON STOCK
XXXXXXX-XXXX GOLD COMPANY, INC.
(A Nevada Corporation)
Not Transferable or Exercisable Except
upon Conditions Herein Specified
Void after 5:00 O'Clock P.M.,
Pacific Time, on November 01, 2002
Xxxxxxx-Xxxx Gold Company, Inc., a Nevada corporation (the "Company")
hereby certifies that Xxxxxxx X. Xxxx or her registered successors and permitted
assigns, registered on the books of the Company maintained for such purposes as
the registered holder hereof (the "Holder"), for value received, is entitled to
purchase from the Company the number of fully paid and non-assessable shares of
Common Stock of the Company, of the par value of $.001 per share (the "Shares"),
stated above at the purchase price of $.56 per Share (the "Exercise Price") (the
number of Shares and Exercise Price being subject to adjustment as hereinafter
provided) upon the terms and conditions herein provided.
1. Exercise of Option.
(a) Subject to subsection (b) of this Section 1, upon
presentation and surrender of this Option Certificate, with the attached
Purchase Form duly executed, at the principal office of the Company at 0000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx x'Xxxxx, Xxxxx 00000, or at such other
place as the Company may designate by notice to the Holder hereof, together with
a certified or bank cashier's check payable to the order of the Company in the
amount of the Exercise Price times the number of Shares being purchased, the
Company shall deliver to the Holder hereof, as promptly as practicable,
certificates representing the Shares being purchased. This Option may be
exercised in whole or in part; and, in case of exercise hereof in part only, the
Company, upon surrender hereof, will deliver to the Holder a new Option
Certificate or Option Certificates of like tenor entitling the Holder to
purchase the number of Shares as to which this Option has not been exercised.
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(b) This Option may be exercised in whole or in part at any
time after November 1, 1997 and prior to 5:00 o'clock P.M. Pacific Time, on
November 1, 2002.
2. Exchange and Transfer of Option. This Option at any time prior to
the exercise hereof, upon presentation and surrender to the Company, may be
exchanged, alone or with other Options of like tenor registered in the name of
the Holder, for another Option or other Options of like tenor in the name of
such Holder exercisable for the same aggregate number of Shares as the Option or
Options surrendered.
3. Rights and Obligations of Option Holder.
(a) The Holder of this Option Certificate shall not, by virtue
hereof, be entitled to any rights of a stockholder in the Company, either at law
or in equity; provided, however, in the event that any certificate representing
the Shares is issued to the Holder hereof upon exercise of this Option, such
Holder shall, for all purposes, be deemed to have become the holder of record of
such Shares on the date on which this Option Certificate, together with a duly
executed Purchase Form, was surrendered and payment of the Exercise Price was
made, irrespective of the date of delivery of such Share certificate. The rights
of the Holder of this Option are limited to those expressed herein and the
Holder of this Option, by its acceptance hereof, consents to and agrees to be
bound by and to comply with all the provisions of this Option Certificate,
including, without limitation, all the obligations imposed upon the Holder
hereof by Section 5 hereof. In addition, the Holder of this Option Certificate,
by accepting the same, agrees that the Company may deem and treat the person in
whose name this Option Certificate is registered on the books of the Company
maintained for such purpose as the absolute, true and lawful owner for all
purposes whatsoever, notwithstanding any notation of ownership or other writing
thereon, and the Company shall not be affected by any notice to the contrary.
(b) No Holder of this Option Certificate, as such, shall be
entitled to vote or receive dividends or to be deemed the holder of Shares for
any purpose, nor shall anything contained in this Option Certificate be
construed to confer upon any Holder of this Option Certificate, as such, any of
the rights of a stockholder of the Company or any right to vote, give or
withhold consent to any action by the Company, whether upon any
recapitalization, issue of stock, reclassification of stock, consolidation,
merger, conveyance or otherwise, receive notice of meetings or other action
affecting stockholders (except for notices provided for herein), receive
dividends, subscription rights, or otherwise, until this Option shall have been
exercised and the Shares purchasable upon the exercise thereof shall have become
deliverable as provided herein; provided, however, that any such exercise on any
date when the stock transfer books of the Company shall be closed shall
constitute the person or persons in whose name or names the certificate or
certificates for those Shares are to be issued as the record holder or holders
thereof for all purposes at the opening of business on the next succeeding day
on which such stock transfer books are open, and the Option surrendered shall
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not be deemed to have been exercised, in whole or in part as the case may be,
until the next succeeding day on which stock transfer books are open for the
purpose of determining entitlement to dividends on the Company's common stock.
4. Shares Underlying Option. The Company covenants and agrees that all
Shares delivered upon exercise of this Option shall, upon delivery and payment
therefor, be duly and validly authorized and issued, fully paid and
non-assessable, and free from all stamp-taxes, liens, and charges with respect
to the purchase thereof. In addition, the Company agrees at all time to reserve
and keep available an authorized number of Shares sufficient to permit the
exercise in full of this Option.
5. Disposition of Option or Shares.
(a) The holder of this Option Certificate and any transferee
hereof or of the Shares issuable upon the exercise of the Option Certificate, by
their acceptance hereof, hereby understand and agree that the Option, and the
Shares issuable upon the exercise hereof, have not been registered under either
the Securities Act of 1933 (the "Act") or applicable state securities laws (the
"State Acts") and shall not be sold, pledged, hypothecated, donated, or
otherwise transferred (whether or not for consideration) except upon the
issuance to the Company of a favorable opinion of counsel or submission to the
Company of such evidence as may be satisfactory to counsel to the Company, in
each such case, to the effect that any such transfer shall not be in violation
of the Act and the State Acts. It shall be a condition to the transfer of this
Option that any transferee hereof deliver to the Company its written agreement
to accept and be bound by all of the terms and conditions of this Option
Certificate.
(b) The stock certificates of the Company that will evidence
the shares of Common Stock with respect to which this Option may be exercisable
will be imprinted with a conspicuous legend in substantially the following form:
The shares represented by this Certificate have not been registered
under the Securities Act of 1933 (the "Act") or applicable state
securities laws (the "State Acts") and shall not be sold, pledged,
hypothecated, donated or otherwise transferred (whether or not for
consideration) by the holder except upon the issuance to the Company of
a favorable opinion of its counsel or submission to the Company of such
other evidence as may be satisfactory to counsel to the Company, in
each such case, to the effect that any such transfer shall not be in
violation of the Act and the State Acts.
The Company has not agreed to register any of the holder's shares of
Common Stock of the Company with respect to which this Option may be exercisable
for distribution in accordance with the provisions of the Act or the State Acts
and, the Company has not agreed to comply with any exemption from registration
under the Act or the State Acts for the resale of the holder's shares of Common
Stock of the Company with respect to which this Option may be exercised. Hence,
it is the understanding of the holders of this Option that by virtue of the
provisions of certain rules respecting "restricted securities" promulgated by
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the SEC, the shares of Common Stock of the Company with respect to which this
Option may be exercisable may be required to be held indefinitely, unless and
until registered under the Act and the State Acts, unless an exemption from such
registra tion is available, in which case the holder may still be limited as to
the number of shares of Common Stock of the Company with respect to which this
Option may be exercised that may be sold.
6. Adjustments. The number of Shares purchasable upon the exercise of
this Option is subject to adjustment from time to time upon the occurrence of
any of the events enumerated below.
(a) In case the Company shall: (i) pay a dividend in Shares,
(ii) subdivide its outstanding Shares into a greater number of Shares, (iii)
combine its outstanding Shares into a smaller number of Shares, or (iv) issue,
by reclassification of its Shares, any shares of its capital stock, the amount
of Shares purchasable upon the exercise of this Option immediately prior thereto
shall be adjusted so that the Holder shall be entitled to receive upon exercise
of the Option that number of Shares which such Holder would have owned or would
have been entitled to receive after the happening of such event had such Holder
exercised the Option immediately prior to the record date, in the case of such
dividend, or the effective date, in the case of any such subdivision,
combination or reclassification. An adjustment made pursuant to this subsection
(a) shall be made whenever any of such events shall occur, but shall become
effective retroactively after such record date or such effective date, as the
case may be, as to any exercise between such record date or effective date and
the date of happening of any such event.
(b) Notice to Option Holders of Adjustment. Whenever the
number of Shares purchasable hereunder is adjusted as herein provided, the
Company shall cause to be mailed to the Holder in accordance with the provisions
of this Section 6 a notice (i) stating that the number of Shares purchasable
upon exercise of this Option have been adjusted, (ii) setting forth the adjusted
number of Shares purchasable upon the exercise of this Option, and (iii) showing
in reasonable detail the computations and the facts, including the amount of
consideration received or deemed to have been received by the Company, upon
which such adjustments are based.
7. Fractional Shares. The Company shall not be required to issue any
fraction of a Share upon the exercise of this Option. If more than one Option
shall be surrendered for exercise at one time by the same Holder, the number of
full Shares which shall be issuable upon exercise thereof shall be computed on
the basis of the aggregate number of Shares with respect to which this Option is
exercised. If any fractional interest in a Share shall be deliverable upon the
exercise of this Option, the Company shall make an adjustment therefor in cash
equal to such fraction multiplied by the Exercise Price.
8. Loss or Destruction. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Option Certificate
and, in the case of any such loss, theft or destruction, upon delivery of an
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indemnity agreement or bond satisfactory in form, substance and amount to the
Company or, in the case of any such mutilation, upon surrender and cancellation
of this Option Certificate, the Company at its expense will execute and deliver,
in lieu thereof, a new Option Certificate of like tenor.
9. Survival. The various rights and obligations of the Holder hereof
as set forth herein shall survive the exercise of the Option represented hereby
and the surrender of this Option Certificate.
10. Notices. Whenever any notice, payment of any purchase price, or
other communication is required to be given or delivered under the terms of this
Option, it shall be in writing and delivered by hand delivery or United States
registered or certified mail, return receipt requested, postage prepaid, and
will be deemed to have been given or delivered on the date such notice, purchase
price or other communication is so delivered or posted, as the case may be; and,
if to the Company, it will be addressed to the address specified in Section 1
hereof, and if to the Holder, it will be addressed to the registered Holder at
its, his or her address as it appears on the books of the Company.
XXXXXXX-XXXX GOLD COMPANY, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------------
Xxxxxx Xxxxxxx, Chief Executive Officer
Date November 4, 1996
------------------------------------
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PURCHASE FORM
----------------, ----
TO: XXXXXXX-XXXX GOLD COMPANY, INC
The undersigned hereby irrevocably elects to exercise the attached
Option Certificate to the extent of ---------- shares of the Common Stock, par
value $.001 per share, of Xxxxxxx-Xxxx Gold Company, Inc. and hereby makes
payment of $----- in accordance with the provisions of Section 1 of the Option
Certificate in payment of the purchase price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name:
--------------------------------------------------------------
(Please typewrite or print in block letters)
Address:
-----------------------------------------------------------
-------------------------------
By
-----------------------------
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ASSIGNMENT FORM
For value received, the undersigned hereby sells, assigns, and
transfers to
Name
-----------------------------------------------------------------------
Address
--------------------------------------------------------------------
this Option and irrevocably appoints ------------------------------ attorney
(with full power of substitution) to transfer this Option on the books of the
Company.
Date:
------------------------- -----------------------------------
(Please sign exactly as name
appears on Option)
Taxpayer ID No.
-------------------
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