OPTION
THIS OPTION AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER EITHER THE SECURI-
TIES ACT OF 1933 (THE "ACT") OR APPLICABLE STATE SECURITIES LAWS
(THE "STATE ACTS") AND SHALL NOT BE SOLD, PLEDGED, HYPOTHECATED,
DONATED, OR OTHERWISE TRANSFERRED (WHETHER OR NOT FOR CONSIDER-
ATION) BY THE HOLDER EXCEPT UPON THE ISSUANCE TO THE COMPANY OF
FAVORABLE OPINION OF COUNSEL OR SUBMISSION TO THE COMPANY OF SUCH
EVIDENCE AS MAY BE SATISFACTORY TO COUNSEL TO THE COMPANY, IN
EACH SUCH CASE, TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE
IN VIOLATION OF THE ACT AND THE STATE ACTS.
OPTION TO PURCHASE 100,000 SHARES OF COMMON STOCK
XXXXXXX-XXXX GOLD COMPANY, INC.
(A Nevada Corporation)
Not Transferable or Exercisable Except
upon Conditions Herein Specified
Void after 5:00 O'Clock P.M.,
Mountain Time, on June 1, 2001
Xxxxxxx-Xxxx Gold Company, Inc., a Nevada corporation (the
"Company") hereby certifies that Xxxxxxxx X. Xxxxxxxx or his
registered successors and permitted assigns thereof, registered
on the books of the Company maintained for such purposes as the
registered holder hereof (the "Holder"), for value received, is
entitled to purchase from the Company the number of fully paid
and non-assessable shares of Common Stock of the Company, of the
par value of $.001 per share (the "Shares"), stated above at the
purchase price of $.0625 per Share (the "Exercise Price") (the
number of Shares and Exercise Price being subject to adjustment
as hereinafter provided) upon the terms and conditions herein
provided.
1. Exercise of Option.
(a) Subject to subsection (b) of this Section 1, upon
presentation and surrender of this Option Certificate, with the
attached Purchase Form duly executed, at the principal office of
the Company at 0000 Xxxxxxxxxx Xxxxx, Xxxxx x'Xxxxx, Xxxxx
00000, or at such other place as the Company may designate by
notice to the Holder hereof, together with a certified or bank
cashier's check payable to the order of the Company in the amount
of the Exercise Price times the number of Shares being purchased,
the Company shall deliver to the Holder hereof, as promptly as
practicable, certificates representing the Shares being
purchased. This Option may be exercised in whole or in part;
and, in case of exercise hereof in part only, the Company, upon
surrender hereof, will deliver to the Holder a new Option
Certificate or Option Certificates of like tenor entitling the
Holder to purchase the number of Shares as to which this Option
has not been exercised.
(b) This Option may be exercised in whole or in part at any time
after June 1, 1996 and prior to 5:00 o'clock P.M. Mountain Time,
on June 1, 2001. In the event that, prior to June 1, 1996, the
Holder shall cease for any reason whatsoever to be a director of
the Company, except due to removal by the shareholders of the
Company, failure to be nominated for election at a meeting of the
Company's shareholders at which directors are to be elected, or
failure to be elected by the shareholders of the Company if
nominated for election at such a meeting, this Option shall
immediately and automatically be and become null and void and of
no further force or effect.
2. Exchange and Transfer of Option. This Option at any time
prior to the exercise hereof, upon presentation and surrender to
the Company, may be exchanged, alone or with other Options of
like tenor registered in the name of the Holder, for another
Option or other Options of like tenor in the name of such Holder
exercisable for the same aggregate number of Shares as the Option
or Options surrendered.
3. Rights and Obligations of Option Holder.
(a) The Holder of this Option Certificate shall not, by virtue
hereof, be entitled to any rights of a stockholder in the
Company, either at law or in equity; provided, however, in the
event that any certificate representing the Shares is issued to
the Holder hereof upon exercise of this Option, such Holder
shall, for all purposes, be deemed to have become the holder of
record of such Shares on the date on which this Option
Certificate, together with a duly executed Purchase Form, was
surrendered and payment of the Exercise Price was made,
irrespective of the date of delivery of such Share certificate.
The rights of the Holder of this Option are limited to those
expressed herein and the Holder of this Option, by its acceptance
hereof, consents to and agrees to be bound by and to comply with
all the provisions of this Option Certificate, including, without
limitation, all the obligations imposed upon the Holder hereof by
Section 5 hereof. In addition, the Holder of this Option
Certificate, by accepting the same, agrees that the Company may
deem and treat the person in whose name this Option Certificate
is registered on the books of the Company maintained for such
purpose as the absolute, true and lawful owner for all purposes
whatsoever, notwithstanding any notation of ownership or other
writing thereon, and the Company shall not be affected by any
notice to the contrary.
(b) No Holder of this Option Certificate, as such, shall be
entitled to vote or receive dividends or to be deemed the holder
of Shares for any purpose, nor shall anything contained in this
Option Certificate be construed to confer upon any Holder of this
Option Certificate, as such, any of the rights of a stockholder
of the Company or any right to vote, give or withhold consent to
any action by the Company, whether upon any recapitalization,
issue of stock, reclassification of stock, consolidation, merger,
conveyance or otherwise, receive notice of meetings or other
action affecting stockholders (except for notices provided for
herein), receive dividends, subscription rights, or otherwise,
until this Option shall have been exercised and the Shares
purchasable upon the exercise thereof shall have become
deliverable as provided herein; provided, however, that any such
exercise on any date when the stock transfer books of the Company
shall be closed shall constitute the person or persons in whose
name or names the certificate or certificates for those Shares
are to be issued as the record holder or holders thereof for all
purposes at the opening of business on the next succeeding day on
which such stock transfer books are open, and the Option
surrendered shall not be deemed to have been exercised, in whole
or in part as the case may be, until the next succeeding day on
which stock transfer books are open for the purpose of
determining entitlement to dividends on the Company's common
stock.
4. Shares Underlying Option. The Company covenants and agrees
that all Shares delivered upon exercise of this Option shall,
upon delivery and payment therefor, be duly and validly
authorized and issued, fully paid and non-assessable, and free
from all stamp-taxes, liens, and charges with respect to the
purchase thereof. In addition, the Company agrees at all time to
reserve and keep available an authorized number of Shares
sufficient to permit the exercise in full of this Option.
5. Disposition of Option or Shares.
(a) The holder of this Option Certificate and any transferee
hereof or of the Shares issuable upon the exercise of the Option
Certificate, by their acceptance hereof, hereby understand and
agree that the Option, and the Shares issuable upon the exercise
hereof, have not been registered under either the Securities Act
of 1933 (the "Act") or applicable state securities laws (the
"State Acts") and shall not be sold, pledged, hypothecated,
donated, or otherwise transferred (whether or not for consider-
ation) except upon the issuance to the Company of a favorable
opinion of counsel or submission to the Company of such evidence
as may be satisfactory to counsel to the Company, in each such
case, to the effect that any such transfer shall not be in
violation of the Act and the State Acts. It shall be a condition
to the transfer of this Option that any transferee hereof deliver
to the Company its written agreement to accept and be bound by
all of the terms and conditions of this Option Certificate.
(b) The stock certificates of the Company that will evidence the
shares of Common Stock with respect to which this Option may be
exercisable will be imprinted with a conspicuous legend in
substantially the following form:
The shares represented by this Certificate have not been
registered under the Securities Act of 1933 (the "Act") or
applicable state securities laws (the "State Acts") and shall not
be sold, pledged, hypothecated, donated or otherwise transferred
(whether or not for consideration) by the holder except upon the
issuance to the Company of a favorable opinion of its counsel or
submission to the Company of such other evidence as may be
satisfactory to counsel to the Company, in each such case, to the
effect that any such transfer shall not be in violation of the
Act and the State Acts.
The Company has not agreed to register any of the holder's shares
of Common Stock of the Company with respect to which this Option
may be exercisable for distribution in accordance with the
provisions of the Act or the State Acts and, the Company has not
agreed to comply with any exemption from registration under the
Act or the State Acts for the resale of the holder's shares of
Common Stock of the Company with respect to which this Option may
be exercised. Hence, it is the understanding of the holders of
this Option that by virtue of the provisions of certain rules
respecting "restricted securities" promulgated by the SEC, the
shares of Common Stock of the Company with respect to which this
Option may be exercisable may be required to be held
indefinitely, unless and until registered under the Act and the
State Acts, unless an exemption from such registration is avail-
able, in which case the holder may still be limited as to the
number of shares of Common Stock of the Company with respect to
which this Option may be exercised that may be sold.
6. Adjustments. The number of Shares purchasable upon the
exercise of this Option is subject to adjustment from time to
time upon the occurrence of any of the events enumerated below.
(a) In case the Company shall: (i) pay a dividend in Shares, (ii)
subdivide its outstanding Shares into a greater number of Shares,
(iii) combine its outstanding Shares into a smaller number of
Shares, or (iv) issue, by reclassification of its Shares, any
shares of its capital stock, the amount of Shares purchasable
upon the exercise of this Option immediately prior thereto shall
be adjusted so that the Holder shall be entitled to receive upon
exercise of the Option that number of Shares which such Holder
would have owned or would have been entitled to receive after the
happening of such event had such Holder exercised the Option
immediately prior to the record date, in the case of such
dividend, or the effective date, in the case of any such
subdivision, combination or reclassification. An adjustment made
pursuant to this subsection (a) shall be made whenever any of
such events shall occur, but shall become effective retroactively
after such record date or such effective date, as the case may
be, as to any exercise between such record date or effective date
and the date of happening of any such event.
(b) Notice to Option Holders of Adjustment. Whenever the number
of Shares purchasable hereunder is adjusted as herein provided,
the Company shall cause to be mailed to the Holder in accordance
with the provisions of this Section 6 a notice (i) stating that
the number of Shares purchasable upon exercise of this Option
have been adjusted, (ii) setting forth the adjusted number of
Shares purchasable upon the exercise of this Option, and (iii)
showing in reasonable detail the computations and the facts,
including the amount of consideration received or deemed to have
been received by the Company, upon which such adjustments are
based.
7. Fractional Shares. The Company shall not be required to issue
any fraction of a Share upon the exercise of this Option. If
more than one Option shall be surrendered for exercise at one
time by the same Holder, the number of full Shares which shall be
issuable upon exercise thereof shall be computed on the basis of
the aggregate number of Shares with respect to which this Option
is exercised. If any fractional interest in a Share shall be
deliverable upon the exercise of this Option, the Company shall
make an adjustment therefor in cash equal to such fraction
multiplied by the Exercise Price.
8. Loss or Destruction. Upon receipt of evidence satisfactory to
the Company of the loss, theft, destruction or mutilation of this
Option Certificate and, in the case of any such loss, theft or
destruction, upon delivery of an indemnity agreement or bond
satisfactory in form, substance and amount to the Company or, in
the case of any such mutilation, upon surrender and cancellation
of this Option Certificate, the Company at its expense will
execute and deliver, in lieu thereof, a new Option Certificate of
like tenor.
9. Survival. The various rights and obligations of the Holder
hereof as set forth herein shall survive the exercise of the
Option represented hereby and the surrender of this Option
Certificate.
10. Notices. Whenever any notice, payment of any purchase price,
or other communication is required to be given or delivered under
the terms of this Option, it shall be in writing and delivered by
hand delivery or United States registered or certified mail,
return receipt requested, postage prepaid, and will be deemed to
have been given or delivered on the date such notice, purchase
price or other communication is so delivered or posted, as the
case may be; and, if to the Company, it will be addressed to the
address specified in Section 1 hereof, and if to the Holder, it
will be addressed to the registered Holder at its, his or her
address as it appears on the books of the Company.
XXXXXXX-XXXX GOLD COMPANY, INC.
By /s/ Xxxxxx Xxxxxxx
Chief Executive Officer
Date: June 1, 1995
ATTEST:
By /s/ Xxxxxx X. Xxxxxxxx
Secretary
