EXHIBIT 4.12
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COMMERCE GROUP CORP.
A Delaware Corporation
Three-Year Stock Option to Purchase
20,000 Shares of Commerce Group Corp.
Common Stock at a Price of $.75 Per Share
For value and consideration received on this 22nd day of October,
1998, Commerce Group Corp. (Commerce), a Delaware Corporation, whose
business address is 0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
grants a stock option (stock option agreement) to the Xxxxx and Xxxxxx
Xxxxx Living Trust (Option Holder), whose address is 0000 Xxxx Xxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxx 00000, under the following terms and
conditions:
1. Issue. Option Holder will have the right to purchase up to
twenty thousand (20,000) Commerce common shares, ten cents ($0.10) par
value, hereinafter referred to as "option shares," at a price (option
price) of seventy-five cents ($.75) per share, payable in cash.
Upon tender of the sum of U.S. fifteen thousand dollars
($15,000.00), Commerce agrees to issue to Option Holder, a total of
thirty thousand (20,000) Commerce validly issued nonassessable and fully
paid common shares, ten cents ($0.10) par value.
2. Exercise Date. Option Holder will have the right to purchase
the common shares at any time during a three (3) year period of time,
commencing from the date of this agreement and expiring on October 22,
2001.
3. Tender. At any time the Option Holder of this stock option
agreement, pursuant to the foregoing terms and conditions, shall exercise
the right to purchase these option shares, the Option Holder of said
stock option agreement shall surrender this stock option agreement for
said shares of option shares, accompanied by proper instruments of
surrender, to Commerce, at its principal office, accompanied by a written
notice to the effect that the Option Holder elects to exercise its stock
option agreement, and stating the name or names in which the certificate
or certificates for shares of option shares shall be issued. As promptly
as practicable, after the receipt of such notice and the surrender of
this stock option agreement, Commerce shall issue and deliver to Option
Holder or such other holder of the stock option agreement, or to the
written order of such holder, a new certificate or certificates for the
number of shares of option shares issuable upon surrendering of this
stock option agreement. Such issuance of option shares shall be deemed
to have been effected on the date on which such notice shall have been
received by Commerce and such stock option agreement shall have been
surrendered as hereinabove provided. All shares of option shares which
may be issued upon exercise of the stock option agreement, shall, upon
issuance, be validly issued, fully paid, and nonassessable by Commerce.
4. Partial Purchases. Option Holder will not have the right to
purchase the option shares in blocks of not less than the total amount of
option shares provided under the stock option agreement.
5. Notice of Change of Rights. Commerce agrees to notify Option
Holder as follows:
a. When Commerce shall declare a dividend (or make any other
distribution) on its option shares, payable otherwise than in cash
out of the consolidated earnings surplus of Commerce, its
subsidiaries, and the Commerce/Sanseb Joint Venture (Joint Venture);
or
b. When Commerce shall authorize the granting to the holders
of its common shares of rights to subscribe for or purchase any
shares of capital stock of any class or any other rights; or
c. Of any reclassification of the common shares of Commerce
other than a subdivision or a combination of its outstanding shares
of such stock, of any consolidation or merger to which Commerce is a
party and for which approval of any stockholders of Commerce is
required or of the sale or transfer of all or substantially all the
assets of Commerce, its subsidiaries, and the Joint Venture; or
d. Of the voluntary or involuntary dissolution, liquidation
or winding up of Commerce; then Commerce shall cause to be filed at
the office of Commerce, and shall cause to be mailed to the option
holders of this stock option agreement, at their addresses as they
shall then appear on the records of Commerce, at least ten days
prior to the record date specified below, a notice stating:
(1) the record date for such dividend, distribution or
rights or, if a record is not to be taken, the date as of which
the holders of the option shares of record to be entitled to
such dividend, distribution or rights are to be determined; or
(2) the date on which such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation
or winding up is expected to become effective, and the date as
of which it is expected that holders of the option shares of
record shall be entitled to exchange their option shares for
securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
6. Procedures. The Board of Directors of Commerce, or a committee
established by it, shall have the right, from time to time, to adopt
other specific rules of procedure to carry out the full intent of this
stock option agreement, and to do all reasonable acts necessary
therefore; provided that such rules and acts shall not violate the
specific terms of this stock option agreement.
7. Dividends. Until such time as the Option Holder purchases the
option shares under this stock option agreement, the Option Holder shall
not be entitled to receive such dividends and distributions as from time
to time may be declared by the Board of Directors of Commerce.
8. Voting. The Option Holders of this stock option agreement
shall have no voting rights.
9. Notice. The Option Holders of the stock option agreement shall
be entitled to any notice of shareholders' meetings.
10. Reservation of Common Stock. Commerce shall at all times
reserve and keep available out of its authorized but unissued common
shares, or shall authorize from time to time, an increase in such shares
if required, of such number of its duly authorized shares of common
stock, as shall be sufficient to effect the exercise of this stock option
agreement.
11. Registration. Option Holder, as owner of this stock option
agreement, by acceptance thereof, shall agree for itself and for all
subsequent owners, that before any disposition is made of this stock
option agreement or of the option shares, Option Holder shall give
written notice to Commerce describing briefly the manner of any such
proposed disposition. No such disposition shall be made unless and until
(1) Commerce has advised such owners that it has received an opinion from
its legal counsel satisfactory to it that no post-effective amendment to
Commerce's registration statement, if any, filed with the Securities and
Exchange Commission (Commission) under the Securities Act of 1933 (Act)
and no other registration under said Act is required to such disposition,
or (2) such post-effective amendment or such other registration has been
filed by Commerce and made effective by the Commission, provided,
however, that Commerce shall have no obligation to so file.
12. Restriction on Certificates. Each certificate for the option
shares to be issued hereunder, until the Option Holder has held this
stock option agreement for a period of two years, without the intent of
selling, transferring, or disposing them, shall bear a legend reading
substantially as follows:
"Neither this stock option agreement nor the shares of common stock
issuable upon the exercise of the stock option agreement have been
registered under the United States Securities Act of 1933; and the
common stock to be issued under the stock option agreement has been
acquired for investment and has not been registered under the
Securities Act of 1933 or the securities law of any state. Except
upon such registration, such securities may not be sold, pledged,
hypothecated or otherwise transferred unless the transferor delivers
to Commerce Group Corp., an opinion of counsel satisfactory to
Commerce Group Corp., its counsel, its transfer agent and its
counsel that registration is not required and such transfer will not
be in violation of the Securities Act of 1933 or any applicable
state securities laws or any rule of regulation thereunder."
13. Entire Agreement. This agreement is the entire, final and
complete agreement pertaining to the subject matter hereof, and it
supersedes and replaces all written and oral agreements heretofore made
or existing by and between the parties or their representatives insofar
as this subject matter is concerned. Neither party shall be bound by any
promises, representations or agreements except as are herein expressly
set forth.
14. Applicable Law. This agreement is being delivered in and shall
be governed by and construed and enforced in accordance with the laws of
the State of Wisconsin, United States.
15. Binding Effect. This agreement shall be binding upon and inure
to the benefit of all parties and all parties and their respective
successors, heirs, assigns, and legal representatives are subject to its
terms.
In Witness Whereof, Commerce has executed this stock option
agreement on the day and date first written above.
COMMERCE GROUP CORP.
/s/ Xxxxxx X. Xxxxxxxx
__________________________________________
By: Xxxxxx X. Xxxxxxxx, President
This stock option agreement is accepted by Xxxxx Xxxxx and Xxxxxx Xxxxx
on behalf of the Xxxxx and Xxxxxx Xxxxx Living Trust on the 22nd day of
October, 1998.
/s/ Xxxxx Xxxxx /s/ Xxxxxx Xxxxx
________________________________ _________________________________
Xxxxx Xxxxx Xxxxxx Xxxxx
