MEXORO MINERALS LTD. NONQUALIFIED STOCK OPTION AGREEMENT
Exhibit 10.8
This Nonqualified Stock Option Agreement, dated September 21, 2009 (the “Agreement”), between
Mexoro Minerals Ltd., a Colorado corporation (the “Company”), with its principal office at C.
General Xxxxxx #706, Col. San Xxxxxx, Xxxxxxxxx, Xxxxxxxxx, 00000, Xxxxxx, and Xxxxxx Xxxxx
(“Optionee”).
1. Grant of Option. The Company hereby grants to Optionee effective as of September
21, 2009 (“Grant Date”), the right and option (“Option”) to purchase from the Company, for a price
equal to the exercise price determined as described below (“Exercise Price”), up to 1,000,000
shares of the Company’s common stock (“Shares”), as a nonqualified stock option (“Option”), which
Option shall be subject to the applicable terms and conditions set forth below and is being granted
pursuant to the Mexoro Minerals Ltd. 2009 Nonqualified Stock Option Plan (“Plan”), which Plan is
part of the Mexoro Minerals Ltd. Stock Compensation Program (“Program”).
2. Terms and Conditions of Option. The Option evidenced by this Agreement is subject
to the following terms and conditions, as well as the terms and conditions of Section 3 hereof.
a. Exercise Price. The Exercise Price is $0.36 per Share, which is the fair market
value per Share on the Grant Date as determined in accordance with the Plan.
b. Term of Option. The term of the Option over which the Option may be exercised
shall commence on the Grant Date and, subject to the provisions of Section 3(b) below,
shall terminate ten years thereafter.
c. Exercisability of Option. As to the total number of Shares with respect to
which the Option is granted, the Option shall be exercisable on the vesting date as
follows: 250,000 shares will vest and become exercisable on the 6th month anniversary of
the Grant Date, an additional 250,000 shares will vest and become exercisable on the 12th
month anniversary of the Grant Date, an additional 250,000 shares will vest and become
exercisable on the 18th month anniversary of the Grant Date and the remaining 250,000
shares will vest and become exercisable on the 24th month anniversary of the Grant Date.
3. Additional Terms and Conditions.
a. Exercise of Option; Payments for Shares. An Option may be exercised from time
to time with respect to all or any portion of the number of Shares with respect to which
the Option has become exercisable, in whole or in part, by
written notice to the Company at the Company’s then principal office, to the attention of
the Administrative Committee for the Mexoro Minerals Ltd. Nonqualified Stock Option Plan
(the “Committee”), substantially in the form of Exhibit A attached hereto. Notwithstanding
anything in this Agreement to the contrary, no Option may be exercised prior to the date on
which the Plan is approved by the Company’s shareholders. Any notice of exercise of the
Option shall be accompanied by payment of the full Exercise Price for the Shares being
purchased by certified or bank check payable to the order of Mexoro Minerals Ltd. or, as
may be allowed by the Committee, by delivery to the Company of a number of Shares already
owned by Optionee having a fair market value equal to such Exercise Price. In addition,
with the consent of the Committee, the Company may cooperate with Optionee in arranging a
“cashless exercise” of the Option through a broker approved by the Committee. The Option
shall not be exercised for any fractional Shares and no fractional Shares shall be issued
or delivered. The date of actual receipt by the Company of the notice of exercise shall be
treated as the date of exercise of the Option for the Shares being purchased.
b. Termination of Option. If Optionee’s term with the board of directors with the
Company or any Subsidiary terminates, the Option shall continue to be exercisable, to the
extent it is exercisable on the date such employment terminated, for three (3) months after
such termination, but in no event after the date the Option otherwise terminates. However,
if Optionee’s employment terminates because of Optionee’s death or disability, the Option
shall continue to be exercisable, to the extent it is exercisable on the date such
employment terminated, for twelve (12) months after such termination, but in no event after
the date the Option otherwise terminates.
c. Issuance of Shares; Registration; Withholding Taxes. As soon as practicable
after the exercise date of the Option, the Company shall cause to be issued and delivered
to Optionee, or for the Optionee’s account, a certificate or certificates for the Option
Shares purchased. The Company may postpone the issuance or delivery of the Shares until
(i) the completion of registration or other qualification of such Shares or transaction
under any state or federal law, rule or regulation, or any listing on any securities
exchange, as the Company shall determine to be necessary or desirable; (ii) the receipt by
the Company of such written representations or other documentation as the Company deems
necessary to establish compliance with all applicable laws, rules and regulations,
including applicable federal and state securities laws and listing requirements, if any;
and (iii) the payment to the Company, upon its demand, of any amount requested by the
Company to satisfy any federal, state or other governmental withholding tax requirements
related to the exercise of the Option. Optionee shall comply with any and all legal
requirements relating to Optionee’s resale or other disposition of any Shares acquired
under this Agreement. The certificates representing the Shares acquired pursuant to the
Option may bear such legend as described in Section 6 and as counsel to the Company
otherwise deems appropriate to assure compliance with applicable law.
d. Nontransferability of Options. The Option and this Agreement shall not be
assignable or transferable by Optionee other than by will or by the laws of descent and
distribution. During Optionee’s lifetime, the Option and all rights of Optionee under this
Agreement may be exercised only by Optionee (or by his guardian or legal representative).
If the Option is exercised after Optionee’s death, the Committee may require evidence
reasonably satisfactory to it of the appointment and qualification of Optionee’s personal
representatives and their authority and of the right of any heir or distributee to exercise
the Option.
e. Option is Nonqualified Stock Option. The Option granted hereunder is intended
to constitute a nonqualified stock option which is not an “incentive stock option”, as that
term is defined in Section 422 of the Internal Revenue Code of 1986, as amended.
4. Changes in Capitalization; Reorganization.
a. Adjustments. The number of shares of Common Stock which may be subject to
options under the Plan, the number of Shares subject to the Option, and the Exercise Price
shall be adjusted proportionately for any increase or decrease in the number of issued
shares of Common Stock by reason of stock dividends, split-ups, recapitalizations or other
capital adjustments. Notwithstanding the foregoing, (i) no adjustment shall be made,
unless the Committee determines otherwise, if the aggregate effect of all such increases
and decreases occurring in any fiscal year is to increase or decrease the number of issued
shares by less than five percent (5%); (ii) any right to purchase fractional shares
resulting from any such adjustment shall be eliminated; and (iii) the terms of this Section
4(a) are subject to the terms of Section 3(b) below.
b. Corporate Transactions. Pursuant to Article 13 of the Program, in the event of
(i) a dissolution or liquidation of the Company, (ii) merger or consolidation or
reorganization of the Company in which the Company is not the surviving corporation, (iii)
merger or consolidation or reorganization in which the Company is the surviving corporation
but after which the shareholders cease to own their shares in the Company, (iv) the sale of
substantially all of the assets of the Company, or (v) the acquisition, sale, or transfer
of more than fifty percent (50%) of the outstanding shares of the Company (herein referring
to (i) through (v) as “Corporate Transaction”), or (iv) the Board of Directors of the
Company proposes that the Company enter into a Corporate Transaction, then the Committee
may in its discretion take any or all of the following actions: (i) by written notice to
Optionee, provide that the Option shall be terminated unless exercised within thirty (30)
days (or such longer period as the Committee shall determine its discretion) after the date
of such notice; and (ii) accelerate the dates upon which any or all outstanding Options
granted to Optionee shall be exercisable.
Whenever deemed appropriate by the Committee, any action referred to in this Section 4(b)
may be made conditional upon the consummation of the applicable Corporate Transaction.
c. Committee Determination. Any adjustments or other action pursuant to this
Section 4 shall be made by the Committee, and the Committee’s determination as to what
adjustments shall be made or actions taken, and the extent thereof, shall be final and
binding.
5. No Rights as Shareholder. Optionee shall acquire none of the rights of a
shareholder of the Company with respect to the Shares until a certificate for the shares are issued
to Optionee upon the exercise of the Option. Except as otherwise provided in Section 4 above, no
adjustments shall be made for dividends, distributions or other rights (whether ordinary or
extraordinary, and whether in cash, securities or other property) for which the record date is
prior to the date such certificate is issued.
6. Legends. All certificates evidencing Shares purchased under this Agreement in an
unregistered transaction shall bear the following legend (and such other restrictive legends as are
required or deemed advisable under the provisions of any applicable law):
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED,
OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF
UNDER SUCH ACT OR AN OPINION OF COUNSEL, SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
If, in the opinion of the Company and it counsel, any legend placed on a stock certificate
representing Shares sold under this Agreement is no longer required, the holder of such certificate
shall be entitled to exchange such certificate for a certificate representing the same number of
Shares but without such legend.
7. Optionee Bound by Plan. Optionee hereby acknowledges receipt of a copy of the Plan
and acknowledges that Optionee shall be bound by its terms, regardless of whether such terms have
been set forth in the Agreement. Notwithstanding the foregoing, if there is an inconsistency
between the terms of the Plan and the terms of this Agreement, Optionee shall be bound by the terms
of the Plan.
8. Notices. Any notice or other communication made in connection with this Agreement
shall be deemed duly given when delivered in person or mailed by certified or registered mail,
return receipt requested, to Optionee at Optionee’s address listed above
or such other address of which Optionee shall have advised the Company by similar notice, or to the
Company at its then principal office, to the attention of the Committee.
9. Miscellaneous. This Agreement and the Plan set forth the parties’ final and entire
agreement with respect to the subject matter hereof, may not be changed or terminated orally and
shall be governed by and shall be construed in accordance with the laws of the State of Colorado
applicable to contracts made and to be performed in Colorado. This Agreement shall bind and benefit
Optionee, the heirs, distributees and personal representative of Optionee, and the Company and its
successors and assigns.
IN WITNESS WHEREOF, the parties have duly executed this Nonqualified Stock Option Agreement on
the date first above written.
| MEXORO MINERALS LTD. | OPTIONEE | |||||
By:
|
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| Title: President | Xxxxxx Xxxxx | |||||
EXHIBIT A
, 2009
Dear Sir/Madam:
Pursuant to the provisions of the Mexoro Minerals Ltd. Nonqualified Stock Option Agreement,
dated September 21, 2009 (the “Option Agreement”), whereby you have granted me the Option to
purchase up to 1,000,000 shares of common stock of Mexoro Minerals Ltd. (the “Company”), I hereby
notify you that I elect to exercise my option to purchase of the shares covered by the
Option at $0.36, the price determined in accordance with the Option Agreement. In full payment of
such price for the shares being purchased hereby, I am delivering to you
.
The undersigned hereby agrees to provide the Company, prior to the receipt of the shares being
purchased hereby, with such representations or certifications or payments that the Company may
require pursuant to the terms of the Plan and the Option Agreement.
Sincerely,
| Xxxxxx Xxxxx | ||||
Address: |
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(For notices, reports, dividend checks and communications to shareholders.)
