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 (this “Agreement”) is entered into as of _________,200_ by and
between ________________( “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, the Company has previously granted the Optionee an option
to purchase certain shares of its common stock (the “Common Stock”). The option
agreement governing such option grant has been lost, stolen, or destroyed and
accordingly the Optionee and Company desire to enter into this replacement
Agreement pursuant to the Company’s 2004 Stock Option Plan (the
“Plan”).
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 confirms that it has previously granted 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. The Option is a non-qualified stock
option.
2.
Term
of Option.
The
Option shall expire upon the earlier to occur of (i) 5:00 p.m. Dallas,
Texas time on that date that is 180 days from termination of employment for
any
reason; and (ii) the termination of the Plan pursuant to Section 5(f)
thereof (such earlier date, 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.
4.
Adjustments
for Stock Split, Etc..
The
number of shares and the purchase price per Share set forth in Section l above
shall be adjusted in the event of any stock split, stock dividend, combination
or exchange of shares, reclassification, merger, consolidation, recapitalization
or other similar event involving the capital stock of the Company as set forth
in Section 3 and Section 4(b) of the Plan.
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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 may be
required to file appropriate applications to regulatory body for the exchange
upon which the Company’s shares are listed and, if so, 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 and the Plan constitute 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. The Optionee has reviewed Agreement and the Plan in their
entirety, has had an opportunity to obtain the advice of counsel before
executing this Agreement and fully understands all provisions of this Agreement
and the Plan.
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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 e-mail, 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 Executive Officer
Fax:
(000) 000-0000
If
to
Optionee, at the address specified on the signature page hereto.
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 Nevada.
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. The Optionee hereby agrees to accept as binding, conclusive,
and final all decisions or interpretations of the Board upon any questions
relating to this Agreement and the Plan.
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.
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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.
11.10
Electronic
Delivery.
The
Optionee agrees that the Company may deliver all documents relating to the
Plan
or this Option (including prospectuses required by the Securities and Exchange
Commission), and all other documents that the Company is required to deliver
to
its security holders or the Optionee (including annual reports, proxy statements
and financial statements), either by e-mail or by e-mail notice of a Web site
location where those documents have been posted. The Optionee may at any time
(i) revoke this consent to e-mail delivery of those documents; (ii) update
the
e-mail address for delivery of those documents; (iii) obtain at no charge a
paper copy of those documents, in each case by writing the Company at its
address for notices pursuant to Section 11.3 above. The Optionee may request
an
electronic copy of any of those documents by requesting a copy from the Chief
Financial Officer. The Optionee understands that an e-mail account and
appropriate hardware and software, including a computer or compatible cell
phone
and an internet connection, will be required to access documents delivered
by
e-mail.
11.11
Affidavit
of Loss.
The
Optionee certifies, represents and warrants to the Company that the following
is
true and correct with respect to any and all agreements that may have been
previously entered into relating to the Option:
a. Such
agreement(s) ha(s)(ve) been stolen or, despite a diligent search that Optionee
has conducted to locate such agreement(s), it or they remain lost or
missing.
b. Neither
the Option evidenced by such agreement(s), nor any interest therein, has been
directly or indirectly sold, assigned, devised, pledged or otherwise
transferred, whether or not for consideration.
c. In
the
event Optionee locates any such agreement, the Optionee agrees to surrender
them
promptly to the Company.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
DGSE
COMPANIES, INC.
_________________________________
OPTIONEE:
_________________________________
Name:
Address
for Notices:
_________________________________
_________________________________
_________________________________
Fax
No.:___________________________
Email:
_____________________________
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