THE SECURITIES REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE APPLICABLE SECURITIES LAWS OF ANY STATE AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED PURSUANT TO THE PROVISIONS OF SUCH...
THE
SECURITIES REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN
REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER
THE APPLICABLE SECURITIES LAWS OF ANY STATE AND MAY
BE
OFFERED AND SOLD ONLY IF REGISTERED PURSUANT TO THE
PROVISIONS
OF SUCH ACT OR SUCH LAWS OR IF AN EXEMPTION FROM
REGISTRATION
IS AVAILABLE.
THIS
OPTION AGREEMENT (Agreement) is entered into as of ____________,
200__ between Xx. X.X. Xxxxx( “Optionee”) and DGSE Companies, Inc., a Nevada
Corporation (the “Company”) with reference to the following facts:
A.
In
consideration for Optionee providing certain services between Optionee and
the
Company the Company desires to grant Optionee an option to purchase certain
shares of its common stock (Common Stock) on the terms and conditions contained
herein.
NOW
THEREFORE IN CONSIDERATION OF the foregoing and the mutual covenants and
conditions contained herein the parties agree as follows:
1.
Grant
of Option.
The
Company hereby grants to Optionee an option (the “Option”)
to purchase in whole or in part at any time or from time to time from the
Company _______ shares of Common Stock (the “Shares”) at an exercise price of
$______ per Share.
2.
Term
of Option.
The
Option shall expire at 5:00 p.m. Dallas, Texas time on
that
date that is 180 days from termination of employment for any reason (the
“Expiration Date”).
3.
Exercise
of Option.
The
Option may be exercised, in whole or in part, at any time or from time to time,
on or after the date hereof, by giving written notice to the Company no less
than five days before the Exercise Date (as defined below). Such notice (the
“Exercise Notice”) shall state: (a) the number of Shares with respect to which
the Option is being exercised; (b) the aggregate purchase price to be paid
for
such Shares;(c) the number of Shares which shall remain subject to the Option
after the Exercise Date; and (d) the date on which certificates evidencing
the
Shares to be acquired shall be delivered to Optionee (the “Exercise Date”). On
the Exercise Date, the Company shall deliver to Optionee a certificate
representing the Shares being purchased by Optionee and Optionee
shall deliver to the Company payment for such Shares which shall be by wire
transfer or certified or cashier's check or a number of shares of the common
stock of the Company (cashless exercise pursuant to Section 3(a)(9)) derived
by
dividing the net exercise price by the average bid price of the Company’s common
stock in the ten day period prior to exercise.
4.
Equitable
Adjustment.
The
number of shares and the purchase price per Share
set
forth in Section l above shall be equitably adjusted as necessary in the event
of any stock split reverse stock split recapitalization or other similar event
involving the capital stock of the Company.
5.
Representations
and Warranties by the Company.
The
Company represents and
warrants to Optionee that as of the date hereof and on the Exercise
Date:
5.1
Organization
and Standing.
The
Company is a corporation duly organized
validly existing and in good standing under the laws of the State of Nevada
with
all requisite corporate power and authority to enter into this Agreement to
own
and to lease its property and to carry on its business as now
conducted.
5.2
Authorization.
The
execution and delivery of this Agreement and the consummation
of the transactions contemplated herein have been duly authorized by all
required corporate action.
5.3
Enforceability.
This
Agreement constitutes the legal valid and binding
obligation of the Company and is enforceable against the Company in accordance
with its terms except as such enforcement is limited by bankruptcy, insolvency
and other similar laws affecting the enforcement of creditors' rights
generally.
5.4
Status
of the Shares.
The
Shares when issued and paid for by Optionee
as provided herein shall be validly issued fully paid and
non-assessable.
6.
Reservation
of the Shares.
The
Company agrees to reserve at all times during
the term of the Option a sufficient number of shares of Common Stock for the
exercise of the Option.
7.
Regulatory
Compliance.
The
issuance and sale of the Shares pursuant to the
exercise of the Option shall be subject to full compliance with all applicable
requirements of law and all certificates representing the Shares shall bear
any
legend required by applicable securities laws. The Company shall not be
obligated to issue the Shares unless they have been registered and qualified
under applicable federal and state securities laws or an exemption from such
registration and qualification is available and the Company at its option
receives an opinion of Optionee's counsel as to the availability of
such
exemption. Optionee acknowledges that upon request to exercise this option,
the
company will be required to file appropriate applications to regulatory body
for
the exchange upon which the company’s shares are listed and such application
must be approved prior to the physical issuance of such shares.
8.
Transferability.
This
Agreement and the Option may not be assigned transferred
or sold by Optionee.
9.
Further
Assurances.
The
Company and Optionee will upon the request of the
other
execute and deliver such documents and take such action reasonably necessary
or
desirable to more effectively complete and evidence the sale and transfer of
the
Shares.
10.
Survival
of Representations.
All
representations and warranties made herein and remedies for failure to perform
any obligation required to be performed shall survive the execution and delivery
of this Agreement.
11.
Miscellaneous.
11.1
Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements, arrangements, and understandings with respect
thereto. No representation, promise, inducement or statement of intention has
been made by any party hereto that is not embodied herein and no party shall
be
bound by or liable for any alleged representation, promise, inducement or
statement not so set forth herein.
2
11.2
Waiver.
No
failure on the part of either party hereto to exercise, and no delay in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof or as a waiver of any other right, power or remedy hereunder or the
performance of any obligation of the other party hereto; and no single or
partial exercise by either party hereto of any right, power or remedy hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right, power or remedy by such party.
11.3
Notice.
All
notices, requests, and other communications required or permitted
to be given hereunder shall be in writing and shall be deemed given (a) upon
receipt, if given by personal delivery, (b) upon confirmation of delivery,
if
given by electronic facsimile, or (c) upon the third business day following
mailing, if deposited in the United States Mail, certified mail, return receipt
requested, postage prepaid, addressed
as
follows:
|
If
to the Company:
|
DGSE
Companies, Inc.
0000
Xxxxxx Xxxx
Xxxxxx,
Xxxxx 00000
Attn:
Chief Financial Officer
Fax:
(000) 000-0000
|
|
If
to Optionee:
|
||
|
Xx.
X.X. Xxxxx
[omitted]
|
Either
party may change its or his address or fax number by providing notice of such
change to the other party in accordance herewith.
11.4
Controlling
Law.
This
Agreement shall be interpreted and enforced under
the
internal laws of the State of Delaware.
11.5
Construction.
In
construing this Agreement, none of the parties hereto
shall have any tern or provision construed against such party solely by reason
of such party having drafted the same.
11.6
Severability.
If any
sentence, paragraph, clause or combination of the
same
in this Agreement is held by a court or arbitration panel of competent
jurisdiction, to be unenforceable in any jurisdiction such sentence, paragraph,
clause or combination shall be unenforceable in the jurisdiction where it is
invalid and the remainder of this Agreement shall remain binding on the parties
in such jurisdiction as if such unenforceable provision had not been contained
herein. The enforceability of such sentence, paragraph, clause or combination
of
the same in this Agreement shall be otherwise unaffected and shall remain
enforceable in all other jurisdictions.
11.7
Modification.
This
Agreement may be modified, amended, superseded or
canceled and any part of the terms, covenants, representations, warranties
or
conditions
of the Agreement may be waived only by a written document executed by the party
or parties to be bound by any such modification, amendment, cancellation or
waiver.
11.8
Counterparts.
This
Agreement may be signed simultaneously in any number
of
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same document.
11.9
Effect
of Headings.
The
headings used in this Agreement are included
for convenience only and are not to be used in construing or interpreting this
Agreement.
3
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the
date first above written.
| DGSE Companies, Inc. | ||||
| By | ||||
| Its | ||||
| Optionee | ||||
|
By: |
||||
| Its: | ||||
