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Exhibit 4a
STOCK OPTION AND PURCHASE AGREEMENT
THIS STOCK OPTION AND PURCHASE AGREEMENT (this "Agreement") is
made as of this 3 day of December, 1998 between Xxxxxxx X. Xxxxxxxxxx ("Seller")
and Nevada Energy Company, Inc. ("Buyer").
RECITALS
A. Pursuant to Section 1129 under Chapter 11 of Title 11 of
the United States Code, the Bankruptcy Code, a plan of reorganization of Buyer
(the "Plan") was confirmed on September 15, 1998 by Order of the United States
Bankruptcy Court for the District of Nevada, Case No. BK-97-30265-BMG.
B. The Plan contains a provision requiring Buyer to repurchase
the shares of Series B Preferred Stock of Buyer owned by Seller for a per share
price of 100,000 shares of Class A Common Stock and a twenty-four (24) month
option to purchase an additional 100,000 shares of Class A Common Stock at an
exercise price of $0.10 per share.
C. Seller owns two (2) shares of Series B Preferred Stock,
$0.01 par value per share (the "Stock"), of Buyer.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Stock Purchase. Seller shall sell, assign and transfer to
Buyer and Buyer shall purchase from Seller the Stock in exchange for a per share
price of 100,000 shares of Class A Common Stock of Buyer and a twenty-four (24)
month option to purchase an additional 100,000 shares of Class A Common Stock of
Buyer at an exercise price of $0.10 per share.
2. Payment. Buyer shall deliver certificates representing
200,000 shares of Class A Common Stock of Buyer in favor of Seller, concurrently
with the execution hereof, the receipt of which Seller hereby acknowledges. In
addition, Buyer hereby grants to Seller the right and option to purchase an
additional 200,000 shares of Class A Common Stock of Buyer subject to, and in
accordance with, the following terms and conditions (the "Option"):
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2.1. The purchase price at which Seller shall be entitled to
purchase shares of Class A Common Stock of Buyer upon exercise
of the Option shall be $0.10 per share.
2.2. The Option shall be exercisable to the extent and in the
manner provided herein for a period of twenty-four (24) months
from the date of this Agreement.
2.3. Subject to the terms and conditions of this Agreement,
including the limitation set forth in Section 2.2 above, the
Option may be exercised in whole at any time, or in part from
time to time, by delivery of written notice to the Buyer at
its principal executive office. Such notice shall state the
number of shares in respect of which the Option is being
exercised and shall be signed by Seller. If requested by
Buyer, Seller shall deliver this Agreement to the Secretary of
the Buyer who shall endorse thereon a notation of such
exercise.
2.4. The notice of exercise described in Section 2.3 above shall be
accompanied by the full purchase price for the shares in
respect of which the Option is being exercised, in cash or by
check.
2.5. Upon receipt of notice of exercise and full payment for the
shares in respect of which the Option is exercised, Buyer
shall take such action as may be necessary to effect the
transfer to Seller of the number of shares as to which such
exercise was effective.
2.6. Seller shall not be deemed to be the holder of, or to have any
of the rights of a holder with respect to any shares subject
to the Option until (i) the Option shall have been exercised
pursuant to the terms of this Agreement and Seller shall have
paid the full purchase price for the numbers of shares in
respect of
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which the Option is exercised, (ii) Buyer shall have issued
and delivered to Seller certificates evidencing the shares,
and (iii) Seller's name shall have been entered as a
stockholder of record on the books of Buyer, whereupon Seller
shall have full voting and other ownership rights with respect
to such shares.
2.7. Buyer shall take such action as is necessary to reserve a
sufficient number of shares of Class A Common Stock for
issuance upon exercise of the Option.
2.8. The Option shall not be transferable other than by will or by
the laws of descent and distribution. During the lifetime of
Seller, the Option shall be exercisable only by Seller. Any
shares that Seller acquires upon exercise of the Option may be
transferred freely upon registration under the Securities Act
and any applicable state securities laws, or pursuant to an
exemption from registration under the Securities Act of 1933
and applicable state securities laws.
2.9. Subject to the terms and conditions of this Agreement, upon
the effective date of the liquidation or dissolution of Buyer,
the Option shall continue in effect in accordance with its
terms and Seller shall be entitled to receive in respect of
all shares subject to the Option, upon exercise of the Option,
the same number and kind of stock, securities, cash, property
or other consideration that each holder of shares was entitled
to receive in such transaction.
2.10 If there shall be any capital reorganization, or
consolidation, or merger of the Buyer with any other entity,
or any sale of all or substantially all of the Buyer's
property
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and assets to any other entity, Buyer shall take appropriate
action to enable Seller to receive upon any subsequent
exercise of the Option, in whole or in part, in lieu of any
common shares of Buyer, the share or shares, securities,
interest or interests, or other assets as were issuable or
payable upon such reorganization, consolidation, merger, or
sale in respect of or in exchange for such common shares.
2.11 Each certificate representing Common Stock initially issued
upon exercise of an Option, unless at the time of the exercise
the Company has completed an initial public offering of its
Common Stock and the sale of shares to Seller pursuant to the
exercise of the Option has been registered under the
Securities Act, shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY
BE OFFERED AND SOLD ONLY IF SO REGISTERED OR
IN A MANNER EXEMPT FROM REGISTRATION UNDER
SUCH ACT. IN ADDITION, THE TRANSFER OF THESE
SECURITIES IS SUBJECT TO THE CONDITIONS SET
FORTH IN A STOCK OPTION AGREEMENT DATED
DECEMBER__, 1998 BETWEEN XXXXXXX X.
XXXXXXXXXX AND NEVADA ENERGY COMPANY, INC.
NO TRANSFER OF THESE SECURITIES SHALL BE
EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN
FULFILLED.
Certificates issued upon the transfer of any
such shares of Class A Common Stock shall
also bear this legend, unless Buyer shall
have waived the requirement of such legend.
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2.12 Seller hereby represents and warrants to Buyer that Seller is
acquiring the Option and any Class A Common Stock acquired by
him pursuant to the exercise of the Option for his own
account, for investment and not with a view to the sale or
distribution thereof, nor with any present intention to
distribute or sell the Class A Common Stock.
3. Surrender of Shares. Concurrently with the execution hereof, Seller
shall deliver to Buyer Certificate No. ___ which represents the Stock duly
endorsed for transfer to Buyer, receipt of which Buyer hereby acknowledges.
Seller further covenants and agrees to take any and all reasonable steps
necessary to transfer legal ownership of the Stock to Buyer.
4. Representation of Seller. Seller represents and warrants that he is
the sole owner, both of record and beneficially, of the Stock and the Stock is
free and clear of all claims, liens, charges and assessments of any kind
whatsoever.
5. Survival of Representation and Warranties. All representations and
warranties made hereunder shall survive the delivery of the Stock sold
hereunder.
6. Closing. Closing for this transaction shall occur on December __,
1998.
7. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the respective parties hereto, their legal representatives,
successors and assigns.
8. Entire Agreement. This Agreement is intended by the parties hereto
as a final expression of their agreement with respect to the subject matter
hereof, and is intended as a complete and exclusive agreement of the terms and
conditions of that agreement. This Agreement may not be modified, rescinded or
terminated orally, and no modification, rescission, termination or attempted
waiver of any of the terms, provisions or conditions hereof (including this
paragraph) shall be valid unless in writing and signed by the party against whom
the same is sought to be enforced.
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9. Non-Waiver. No delay or failure by any party to exercise any right
under this Agreement, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
10. Payment of Legal Expenses. Buyer shall pay all fees and expenses of
counsel incurred with respect to this Agreement.
11. Headings. Headings in this Agreement are for convenience only and
shall not be used to interpret or construe its provisions.
12. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first set forth above.
SELLER:
Xxxxxxx X. Xxxxxxxxxx
/s/ (Illegible) /s/ Xxxxxxx X. Xxxxxxxxxx
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Witness
BUYER:
Nevada Energy Company, Inc.
/s/ (Illegible) /s/ Xxxxxxx X. Xxxxxxxxxx
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Witness By: President
