EXHIBIT 10.8
STOCK OPTION AGREEMENT
Xxx X. Xxxx
Stock Option Agreement made this 4th day of May, 1998, between Tatonka
Energy, Inc., an Oklahoma corporation ("Company") and Xxx X. Xxxx, ("Optionee").
WHEREAS, The Company desires to provide the Optionee with an
opportunity to acquire a proprietary interest in the business of the Company
and, through stock ownership, an increased personal interest in its continued
success and progress:
NOW, THEREFORE, in consideration of the premises, the mutual covenants
hereinafter set forth, and other good and valuable consideration, the Company
and Optionee agree as follows:
1. The Company hereby grants to the Optionee the option to purchase an
aggregate of 2,500,000 shares of Company's Common Stock, par value of $0.0001
(as presently constituted), on the terms and conditions hereinafter set forth,
at the purchase price of $0.075 per share as presently constituted (250,000
shares at $0.75 per share, after the effectiveness of the proposed 1-for-10
reverse stock split).
2. The Option shall be exercisable in whole or in part at any time, or
from time to time, upon notice given to the Company by the Optionee of such
exercise of the Option as provided below.
3. (a) The Option shall be exercisable as to not less than 10,000
shares, as presently constituted (1,000 shares, after the effectiveness of the
proposed 1-for-10 reverse stock split), or a multiple thereof, or the remaining
shares covered by the Option if less than such minimum. Notice shall be given to
the Company by the Optionee of such exercise of the Option as provided below.
(b) The purchase price of any shares as to which the Option
shall be exercised shall be paid in full at the time of such exercise or, except
as hereinafter provided, may, at the election of the Optionee, be paid in
installments, in which case the first installment shall be paid at the time of
such exercise. In the event that the purchase price of such shares shall be paid
in full at the time of such exercise, such shares shall be issued as fully paid
and nonassessable shares. In the event, however, that the Optionee shall elect
to pay the purchase price of such shares in installments:
(i) such shares shall be issued as partly paid and assessable
shares,
(ii) the first installment shall be amount equal to not less
than 20% of such purchase price,
(iii) the unpaid balance of such purchase price shall be paid
(without interest) in equal installments, the first installment at the end of 12
months commencing with the date of such exercise and subsequent installments at
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the end of each successive 12-month interval until the balance is paid in full
(the Optionee to have the right of prepaying at any such time the latest
maturing installment or installments of such purchase price then remaining
unpaid), or may be prepaid in whole at any time, provided, however, that any
unpaid balance of the purchase price shall be due and payable forthwith upon any
termination of the Option as hereinafter provided,
(iv) each installment paid in respect of such shares after the
first installment shall be applied to the partial payment of such shares as
nearly as possible in an equal amount,
(v) such shares shall not be assigned or transferred (except
by will or operation of law) and the certificates issued therefor shall bear a
legend indicating that such share are not assignable or transferrable,
(vi) any dividend on the Common Stock shall be paid on such
shares in direct proportion to the percentage of the purchase price therefor
which shall have been paid by the record date for such dividend,
(vii) each certificate for such shares shall, immediately upon
issue, be delivered to the Company, endorsed in blank by the Optionee or
accompanied by a separate stock power so endorsed, in pledge as security for the
unpaid balance of the purchase price of the shares represented by such
certificate,
(viii) such shares shall be subject to assessment and call in
accordance with the laws of the State of Texas; further the Company shall have
the right, by notice to that effect, without the necessity of any such call or
assessment, to require the prepayment, in whole at any time or in part from time
to time of the unpaid balance of the purchase price of such shares or any of
them, whether or not prepayment shall be required of any other person holding
partly paid shares, and
(ix) when the balance of the purchase price of such shares
which shall be represented by any certificate shall have been paid in full, such
certificate shall be promptly released from pledge, stamped full paid,
nonassessable, and transferable, and delivered to the Optionee in person or my
certified mail, of if the Company so desires, such certificate shall be promptly
released from pledge and surrendered to the Company, and a new certificate for
full paid and nonassessable shares shall be promptly delivered to the Optionee
by certified mail in lieu thereof.
(c) In the event that there shall be a default in the payment
when due hereunder of any installment, or of any call, assessment, or prepayment
required by the Company, with respect to any partly paid shares, and such
default shall not be cured within thirty days after written notice thereof by
the Company, the Company shall have the right to take such of the following
actions as it shall deem desirable in its sole discretion:
(i) To cancel the Option and all other options granted to the
Optionee under the Company's "Stock Option Agreement";
(ii) To take by forfeiture all right, title, and interest
of the Optionee in and to such partly paid shares;
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(iii) To (A) determine that the unpaid balance of the purchase
price of all partly paid shares issued hereunder is immediately due and payable,
without further demand or notice of any kind, in which case such balance shall
thereupon be due and payable; (B) sell, as full paid, nonassessable, and
transferable shares, all shares then pledged hereunder, either at the Stock
Exchange or any public or private sale, without further notice or advertising of
any kind, and buy all or any part of such shares at such sale free from any
right or equity of redemption; (C) charge the Optionee with the entire expense
of such sale; and (D) apply the proceeds of such sale against the balance of the
purchase price owed for all partly paid shares issued hereunder and the expense
of such sale, with the remainder, if any, to be paid over to the Optionee;
provided, however, that if such proceeds shall not be sufficient to liquidate
such balance and expenses in full, the Optionee shall remain liable to the
Company for any unliquidated portion of such balance and expense; and
(iv) To take such other action (including extending the time
for payment of such installment, call, assessment, or prepayment) as shall be
permitted by law. The rights granted to the Company hereunder shall be in
addition to and not in lieu of any other rights or remedies the Company may have
as a result of such default.
(d) Anything herein contained to the contrary notwithstanding,
the purchase price of any shares as to which the Option shall be exercised after
the termination of the Optionee's employment (by retirement, death, or
otherwise) shall be paid in full at the time of exercise of the Option with
respect to such shares.
4. The Option may not be assigned, transferred (except as aforesaid),
pledged, or hypothecated in any way (whether by operation of law or otherwise),
and shall not be subject to execution, attachment, or similar process. Any
attempted assignment, transfer, pledge, hypothecation, or other disposition of
the Option contrary to the provision hereof, and the levy of any attachment or
similar process upon the Option, shall be null and void and without effect. The
Company shall have the right to terminate the Option, in the event of any such
assignment, transfer, pledge, hypothecation, other disposition of the Option, or
levy of attachment or similar process, by notice to that effect to the person
then entitled to exercise the Option, provide, however, that termination of the
Option thereunder shall not prejudice any rights or remedies which the Company
or a subsidiary corporation may have under this Agreement or otherwise.
5. (a) Subject to the terms and conditions of this Agreement, the
Option shall be exercisable by notice to the Company. Each such notice shall
state the election to exercise the Option and the number of shares in respect of
which it is being exercised,
(ii) state whether the shares in respect of which the Option
is being exercised are being paid for in full or will be paid for in
installments,
(iii) be signed by the person or persons exercising the Option
and, in the event that the Option is being exercised by any person or persons
other than the Optionee, be accompanied by proof, satisfactory to counsel for
the Company, of the right of such person or persons to exercise the Option, and
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(iv) be accompanied by a check payable to the order of the
Company in an amount equal to the purchase price of the shares in respect of
which the Option is being exercised or the first installment of such purchase
price, depending upon whether such shares are being paid for in full or will be
paid for in installments.
The Option shall not be deemed to have been exercised unless all the
preceding provisions of this paragraph shall have been complied with, and for
all purposes of this Agreement the date of the exercise of the Option with
respect to any particular shares shall be the date on which such notice, proof
(if required), and check shall have all been mailed by certified mail or
delivered to the Company. The certificate or certificates for the shares as to
which the Option shall have ben so exercised shall be registered in the name of
the persons or persons so exercising the Option and shall be delivered to or
upon the written order of the person or persons exercising the Option within
fifteen days after receipt by the Company of such notice, proof (if required),
and check. Such delivery shall be made at the office of the Company, or at such
other place as the Company shall thereof have designated by notice.
(b) In the event that the purchase price of any shares as to
which the Option shall be exercised shall be payable in installments, each
installment shall be accompanied by a notice to the Company of the payment of
such installment.
6. Each notice relating to this Agreement shall be in writing and
delivered in person or by certified mail to the Company at its office, attention
of the Secretary. All notices to the Optionee or other person shall be delivered
to the Optionee or such other person or persons at the Optionee's address below
specified.
7. Neither this Option nor the shares of Common Stock issuable upon
exercise hereof, have been registered under the Securities Act of 1933, as
amended, or any state securities laws. The Optionee, by accepting this Option,
represents and warrants that he is acquiring this Option for his own account for
investment and not with a view to or for sale in connection with any
distribution thereof except in conformity with the provisions of the Securities
Act of 1933, as amended, and the Rules and Regulations promulgated thereunder,
and applicable state securities laws, and further agrees that this Option may
not be sold or transferred in the absence of an effective registration statement
under the Securities Act of 1933, and applicable state securities laws, or an
opinion of counsel which opinion and which counsel shall be satisfactory to the
Company to the effect that there is an exemption from such registration. In
addition, the Optionee agrees to deliver to the Company a similar written
statement in the form of the Investment Letter attached hereto with respect to
any shares of Common Stock purchased upon the exercise of this Option unless
such shares have at the time of issuance been registered under the Securities
Act of 1933, as amended, and applicable state securities laws, or the Optionee
can demonstrate the availability of federal and state exemptions from
registration and qualification not requiring same.
8. Any dispute or disagreement which shall arise under; as a result of,
or in any way relate to the interpretation or construction of this Agreement
shall be determined by the by arbitration under the rules of the American
Arbitration Association, under the rules of that body. Any such determination
made hereunder shall be final, binding and conclusive for all purposes.
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9. This Agreement shall be governed by the laws of the State of Texas.
10. This Agreement shall inure to the benefit of and be binding upon
each successor and assign of the Company. All obligations imposed upon the
Optionee, and all rights granted to the Company, hereunder or as stipulated in
the Plan shall be binding upon the Optionee's heirs, legal representatives and
successors.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed in its name by its President and attested by its Secretary on the day
and year first above written, and the Optionee has hereunto set his hand and
seal on the day and year specified below.
TATONKA ENERGY, INC.
By --------------------------
Xxxxxx X. Xxxxxx, President
Attest:
------------------------------
, Secretary
-----------------------------
Xxx X. Xxxx, Optionee
-----------------------------
Address
Date:
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Investment Letter
To: PhyMed, Inc.
(formerly, Tatonka Energy, Inc.)
In connection with my purchase of shares of Common Stock of PhyMed,
Inc. pursuant to the exercise of a Stock Option Agreement, I hereby represent
that I am acquiring said shares for my own account for investment and not with a
view to or for sale in connection with any distribution of said shares.
Dated: , 199
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(Signature)
------------------------------------
(Printed or Typed Name)
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