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EXHIBIT 20. (a).
OPTION AGREEMENT
This OPTION AGREEMENT ("Agreement") made and entered into the 3rd day of
November, 1997, by and between Xxxxxxxxx Resources, Inc. (the "Company") and
Environmental Energy, Inc. ("Environmental").
WITNESSETH
WHEREAS, the Company's subsidiary, Xxxxxxxxx Petroleum, Inc., ("DPI")
and Environmental have this date entered into a letter agreement relative to
Environmental drilling certain oil and gas xxxxx with DPI.
WHEREAS, the Company has agreed to issue, in return for Environmental
participating in the drilling of oil and gas xxxxx with DPI pursuant to said
letter agreement, options ("Options") to Environmental to purchase up to an
aggregate of six million shares (6,000,000) of Common Stock (the "Shares") of
the Company.
NOW, THEREFORE, in consideration of the premises, the agreements
contained in the letter agreement dated November 3, 1997, and herein set forth,
and other good and valuable consideration, the receipts and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. GRANT. Environmental is hereby granted the right to purchase, from
the Company, at anytime commencing on the date of the issuance of the Option
Certificate up to SIX MILLION (6,000,000) Shares subject to it having earned
said options pursuant to the November 3, 1997 Letter Agreement (subject to
adjustment as provided in Section 10 hereto) at an initial exercise price
(subject to adjustment as provided in Section 10 hereof) of ONE DOLLAR AND
NO/CENTS (US $1.00) per Share (the "Exercise Price"). Each Option will entitle
Environmental or the registered holder thereof to purchase one Share at the
Exercise Price. The Options will be issued on this Agreement and each Option
shall be exercisable commencing on date of the issuance of the Option
Certificate. The Options shall expire five years from the date of the issuance
of the initial Option Certificate.
2. OPTION CERTIFICATES. The options certificates (the "Option
Certificates") to be delivered pursuant to this Agreement shall be in the form
set forth in Exhibit A attached hereto and made a part hereof, with such
appropriate insertions, omissions, substitutions, and other variations as
required or permitted by the Agreement.
3. REGISTRATION OF OPTIONS. The Options shall be numbered and
registered on the books of the Company when issued.
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4. EXERCISE OF OPTION - METHOD. The Options are initially exercisable
at the Exercise Price times the number of Shares (subject to adjustment as
provided in Section 10 hereof) set forth in Section 8 hereof payable by
certified or official bank check or wire transfer in New York Clearing House
funds. Upon surrender of a Option Certificate with the annexed Form of Election
to Purchase duly executed, together with payment of the appropriate aggregate
Exercise Price for the Shares purchased at the Company's principal offices,
presently located at 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000,
the registered holder of a Option Certificate ("Holder" or "Holders") shall be
entitled to receive a certificate or other evidence of ownership for the Shares
so purchased. The purchased rights represented by each Option Certificate are
exercisable at the option of the Holder thereof, in whole or in part. In the
case of the purchase of less than all the Shares purchasable under any Option
Certificate, The Company shall cancel said Option Certificate upon the surrender
thereof and shall execute and deliver a new Option Certificate of like tenor for
the balance of the Shares purchasable thereunder.
5. ISSUANCE OF CERTIFICATES. Upon exercise of the Options by the
Holder, the Company shall issuance of certificates for Shares or other
securities, properties or rights underlying such Options forthwith (and in any
event with ten (10) business days thereafter) without charge to the Holder
thereof of fees or expenses associated with the issuance thereof.
6. TRANSFER OF OPTIONS. The Options shall be transferable only on the
books of the Company maintained at its principal office, upon delivery thereof
duly endorsed by the Holder or by his duly authorized attorney or representative
accomplished by proper evidence of succession, assignment or authority to
transfer. Upon any registration transfer, the Company shall execute and deliver
any new Options to the person entitled to them.
7. RESTRICTION ON TRANSFER OF OPTIONS. The Holder of a Option
Certificate, by his acceptance thereof, covenants and agrees that the Options
are being acquired as an investment and not with a view to the distribution
thereof, and that the Options may not be sold, transferred, assigned,
hypothecated or otherwise disposed of ( a "Transfer"), in whole or in part,
except by will or operation of law, pursuant to an effective registration
statement under the Securities Act of 1933, (the "Act") or pursuant to an
exemption from registration under the Act. The Holder further agrees that the
Option Certificate shall contain the following restrictive legend:
"THE OPTIONS REPRESENTED BY THIS CERTIFICATE AND THE OTHER
SECURITIES ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN
REGISTERED MAY NOT BE OFFERED OR SOLD, TRANSFERRED OR ASSIGNED
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, (ii) TO THE EXTENT
APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER
SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY
SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT IS AVAILABLE OR (iv) BY WILL OR
OPERATION OF LAW."
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8. EXERCISE PRICE AND NUMBER OF SECURITIES. Except as otherwise
provided in Section 10 hereof, each of the Options is exercisable to purchase
one Share at an initial exercise price equal to the Exercise Price. The Exercise
Price and the number of Shares for which the Option may be exercised shall be
the price and number of Shares, which shall result from time to time for any and
all adjustments in accordance with the provisions of Section 10.
9. REGISTRATION RIGHTS.
9.1 While Xxxxxxxxx Resources, Inc. is not required to register the
Options or the underlying Common Stock; in the event that Xxxxxxxxx
Resources, Inc. files a stock registration statement during the
period when the Stock is restricted, the holders of the restricted
Stock will have "piggyback" rights to participate in the
registration, subject to the following terms and conditions:
(a) If at any time, during the period when the Stock is
restricted, Xxxxxxxxx Resources, Inc. files for
registration of its Common Stock or Preferred Stock under
the Securities Act of 1933 (the "Act"), in connection with
the public offering of such securities solely for cash on
a form that would also permit the registration of the
restricted Stock, Xxxxxxxxx Resources, Inc. will use its
best efforts to cause all of the restricted Stock; to be
registered subject to the provisions of Section 9.2 and
9.3,
9.2 Whenever required under this Section to use its best efforts to
effect the registration of any restricted Stock, Xxxxxxxxx
Resources, Inc. will, as expeditiously as reasonably possible:
(a.) Prepare and file with the Securities and Exchange
Commission ("SEC") a registration statement with respect
to such restricted Stock and use its best efforts to cause
such registration statement to become effective and remain
effective; provided, however, that in connection with any
proposed registration intended to permit an offering of
any securities from time to time (i.e., a so-called "shelf
registration"), Xxxxxxxxx Resources, Inc. shall in no
event be obligated to cause any such registration to
remain effective for more than one hundred eighty (180)
days;
(b.) Prepare and file with the SEC such amendments and
supplements to such registration statement and the
prospectus used in connection with such registration
statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of
all securities covered by such registration statement;
(c.) Furnish to the holders of the restricted Stock such
numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with requirements of the Act,
and such other documents as they may reasonably request in
order to facilitate the disposition of the Stock owned by
them;
(d.) Use its best efforts to register and qualify the
securities covered by the registration statement under
such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably appropriate for the
distribution of the securities covered by the registration
statement, provided that
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Xxxxxxxxx Resources, Inc. shall not be required in
connection herewith or as a condition hereto to qualify to
do business or to file a general consent to service of
process in any such states or jurisdictions, and further
provided that if any jurisdiction in which the securities
will be qualified shall require that expenses incurred in
connection with the qualification of the securities in
that jurisdiction be borne by the selling shareholders pro
rata, to the extent required by such jurisdiction;
9.3 In connection with any offering involving an underwriting of
shares being issued by Xxxxxxxxx Resources, Inc., Xxxxxxxxx shall
not be required to include any of the restricted Stockholders'
Stock in such underwriting unless they accept the terms of the
underwriting as agreed upon between Xxxxxxxxx Resources, Inc. and
the underwriters selected by it, and then only in such quantity as
will not, in the written opinion of the underwriters, jeopardize
the success of the offering by Xxxxxxxxx Resources, Inc. If the
total amount of restricted Stock to be included in such offering
exceeds the amount of securities that the underwriters reasonably
believe compatible with the success of the offering, Xxxxxxxxx
Resources, Inc. shall only be required to include in the offering
so many of the securities of the restricted Stockholders as the
underwriters believe will not jeopardize the success of the
offering (the securities so included to be apportioned pro rata
among the selling restricted Stockholders according to the total
amount of securities owned by said selling restricted Stockholders,
or in such other proportions as shall mutually be agreed to by such
selling restricted Stockholders), provided that no such reduction
shall be made with respect to any securities offered by Xxxxxxxxx
Resources, Inc.
10. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SHARES. The Exercise
Price in effect at any time and the number and kind of securities purchasable
upon the exercise of the Options or the securities underlying the Options shall
be subject to adjustment from time to time upon the happening of certain events
as follows:
10.1 SUBDIVISION AND COMBINATION. In event that the Company
shall (I) declare a dividend or make a distribution on its outstanding Shares;
(ii) subdivide or reclassify its outstanding Shares into a greater number of
Shares; or (iii) combine or reclassify its outstanding Shares into a small
number of Shares, the Exercise Price in effect at the time of the record date
for such dividend or distribution or of the effective date of such subdivision,
combination or reclassification shall be adjusted so that it shall equal the
price determined by multiplying the Exercise Price, by a fraction, the
denominator of which shall be the number of Shares outstanding after giving
effect to such action, and the numerator of which shall be the number of Shares
outstanding immediately prior to such action. Such adjustment shall be made
successively whenever any event listed above shall occur. In addition, if the
Company shall issue by reclassification of its Shares, or securities of the
Company, then the number of Shares purchasable upon the exercise of each Option
shall be adjusted so that the Holder shall be entitled to receive the kind and
number of Shares and other securities of the Company which
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such Holder would have owned or would have been entitled to receive immediately
after the happening of such event or any record date with respect thereto.
10.2 ADJUSTMENT IN NUMBER OF SECURITIES. Upon each adjustment of
the Exercise Price pursuant to the provisions of this Section 10, the number of
Option Securities issuable upon the exercise at the adjusted Exercise Price, of
each Option, shall be adjusted up to the nearest whole number of Shares by
multiplying a number equal to the Exercise Price, in effect immediately prior to
such adjustment by the number of the applicable Option Securities issuable upon
exercise of the Options immediately prior to such adjustment and dividing the
product so obtained by the adjusted Exercise Price.
10.3 DEFINITION OF SHARES. For the purposes of this Agreement, the
term "Shares" shall mean the (i) class of stock of the Company designated as
Ordinary Shares in the Company's Articles as of the date hereof, and (ii) any
other class of stock resulting form successive changes or reclassification of
such Shares consisting solely of changes in par value, or from par value to no
par value, or from no par value to par value.
10.4 MERGER OR CONSOLIDATION; SALE OR CONVEYANCE. In case of any
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger, which does not result in any
reclassification or change of the outstanding Shares, or a sale of all or
substantially all of the Company's property, assets or business as an entity,
the corporation formed by such consolidation or merger, or the purchaser in such
sale or conveyance, shall execute and deliver to each Holder a supplemental
option agreement providing that the Holder of each Option then outstanding shall
have the right thereafter (until the expiration of such Option) to receive, upon
exercise of such Option, the kind and amount of membership interests, shares of
stock and other securities and property receivable upon such consolidation or
merger, sale or conveyance to which the Holder would have been entitled if the
Holder had exercised such Option immediately prior to such consolidation or
merger, or sale or conveyance. Such supplemental option agreements shall
provided for adjustments that shall be identical to the adjustments provided in
this Section 10. The above provision of this subsection shall similarly apply to
successive consolidations and mergers, and sales and conveyances.
11. EXCHANGE AND REPLACEMENT OF OPTION CERTIFICATES. Each Option
Certificate is exchangeable, without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company for a new
Option Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Option Securities in such denominations as
shall be designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of any Option Certificate, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Options, if
mutilated, the Company will make and deliver a new Option Certificate of like
tenor, in lieu thereof.
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12. FRACTIONAL INTERESTS. The Company shall not be required to
issue certificates or other evidence of ownership representing fractions of
Shares or Other Securities upon the exercise of the Options, nor shall it be
required to issue scrip or pay cash in lieu of such fractional interests, it
being the intent of the parties that all fractional interests shall be
eliminated by rounding any fraction up to the nearest whole number of Shares or
other securities, properties or rights.
13. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
times reserve and solely for the purpose of issuance upon the exercise of the
Options, such number of Shares or other securities, properties or rights as
shall be issuable upon the exercise thereof and upon the exercise of any other
exercisable or convertible securities underlying the Options. Every transfer
agent and option agent (collectively "Transfer Agent") for the Shares and other
securities of the Company issuable upon the exercise of the Options will be
irrevocably authorized and directed at all times to reserve such number of
Shares and other securities as shall be requisite for such purpose. The Company
will keep a copy of this Agreement on file with every Transfer Agent for the
Shares and other securities of the Company issuable upon the exercise of the
Options. The Company will supply every such Transfer Agent with duly executed
stock and other certificates or evidence of ownership, as appropriate, for such
purpose. The Company covenants and agrees that, upon each exercise of the
Options and payment of the Holders Securities Exercise Price, all Shares and
other securities issuable upon such exercise shall be duly and validly issued,
fully paid, non-assessable and not subject to the preemptive or similar rights
of any member of the Company. As long as the Options shall be outstanding, the
Company shall use its best efforts to cause all and other securities issuable
upon the exercise of the Options and the securities underlying the securities
issuable upon exercise of the Options to be listed and/or quoted (subject to
official notice of issuance) on all securities exchanges or securities
associations on which the Shares or other securities issued to the public in
connection with the Company's initial public offering may then be listed and/or
quoted.
14. NOTICES TO OPTION HOLDERS. Nothing contained in this Agreement
shall be construed as conferring upon the Holders of the Options the right to
vote or to consent or to receive notice as a member in respect of any meetings
of members for the election of managers, officers or directors or any other
matter, or as having any rights whatsoever as a member of the Company. If,
however, at any time prior to the expiration of the Options and their exercise,
any of the following events shall occur:
(a) the Company shall take a record of its members or of the
holders of its for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its any
additional membership interests of any class or other securities issued or to be
issued by the Company, or securities convertible into or exchangeable for
membership interests of any class or other securities issued or to be issued by
the Company, or any option, right or option to subscribe therefor; or
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(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale or
conveyance of all or substantially all of its property, assets and business as
an entirety shall be proposed; then in any one or more of said events, the
Company shall give written notice to the registered holders of the Options of
such event at least thirty (30) days prior to the date fixed as a record date or
the date of closing the transfer books for the determination of the members
entitled to such dividend, distribution, convertible or exchangeable securities
or subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date or
the date of closing the transfer books, as the case may be. Failure to give such
notice or any defect therein shall not affect the validity of any action taken
in connection with the declaration or payment of any such dividend, or the
issuance of any convertible or exchangeable securities, or subscription rights,
options or options, or any proposed dissolution, liquidation, winding up or
sale.
15. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly made and sent when delivered, or five (5) days after mailing by registered
or certified mail, return receipt requested:
(a) if to the registered Holder of the Options, to the address
of such Holder as shown on the books of the Company; or
(b) if to the Company, to the address set forth in Section 4
hereof or to such other address as the Company may designate by notice to the
Holders.
16. SUPPLEMENTS, AMENDMENTS, ENTIRE AGREEMENT. This Agreement
contains the entire understanding between the parties hereto with respect to the
subject matter hereof and may not be modified or amended except by a writing
duly signed by the party against whom enforcement of the modification or
amendment is sought. The Company and the Holders may from time to time
supplement or amend this Agreement without the approval of any holders of Option
Certificates (other than the Placement Agent) in order to cure any ambiguity, to
correct or supplement any provision contained herein which may be defective or
inconsistent with any provisions herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and the
Holders may deem necessary or desirable and which the Company and the Holders
deem shall not adversely affect the interests of the holders of Option
Certificates.
17. SUCCESSORS. All of the covenants and provisions of this
Agreement shall be binding upon and inure to the benefit of the Company, the
Holders and their respective successors and assigns hereunder.
18. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All statements in
any schedule, exhibit or certificate or other instrument delivered by or on
behalf of the parties hereto, or in connection with the transactions
contemplated by this Agreement, shall be deemed to be representations and
warranties hereunder. Notwithstanding any investigations made by or on behalf of
the parties to this Agreement, all representations, warranties and agreements
made by the parties to this Agreement or pursuant hereto shall survive.
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19. GOVERNING LAW, SUBMISSION TO JURISDICTION. This Agreement and
each Option Certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of Kentucky and for all purposes shall be construed
in accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
20. SEVERABILITY. If any provision of this Agreement shall be held
to be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
21. CAPTIONS. The caption headings of the Sections of this
Agreement are for convenience of reference only and are not intended, nor should
they be construed as, a part of this Agreement and shall be given no substantive
effect.
22. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Holders and any other registered holder(s) of the Option Certificates or Option
Securities any legal or equitable right, remedy or claim under this Agreement;
and this Agreement shall be for the sole and exclusive benefit of the Company
and the Holders and any other holder(s) of the Option Certificates or Option
Securities
23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
IN WITNESS OF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
XXXXXXXXX RESOURCES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
President
ENVIRONMENTAL ENERGY, INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
President
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