EXHIBIT 4.1
SURGE GLOBAL ENERGY, INC.
DIRECTORS COMMON STOCK PURCHASE OPTION
Surge Global Energy, Inc. (hereinafter referred to as the "Company") a
Delaware Corporation, hereby grants to: XXXXX XXXXX (hereinafter referred to as
the "Holder"), the right and option to purchase, upon the terms and conditions
hereinafter set forth, 400,000 shares of the presently authorized but unissued
restricted Common Stock of the Corporation at an exercise price of $0.65 per
share. Options to purchase 150,000 shares of Common Stock vest and are
exercisable on the date hereof. The remainder of the Options shall vest and
become exercisable to purchase 125,000 shares of Common Stock at November 4,
2004; 125,000 options shall vest and are exercisable at November 4, 2005.
Notwithstanding the foregoing, all options shall vest and become exercisable
should the company have pretax operating profit of not less than $500,000 in the
preceding four quarters.
This Option shall be void and have no further force and effect after
the close of business on November 3, 2014. No fractional shares will be issued
upon the exercise of this Option. This Option is issued in accordance with the
acceptance of an appointment as a Director of Surge Global Energy, Inc. and
compensated in accordance with the Director's action at the Board meeting of
November 4, 2004.
This Option, or any part thereof, shall be exercised by properly
executing the annexed Subscription Form and by mailing the Option and the
executed Subscription Form to the principal executive office of the Corporation,
specifying the number of whole shares to be purchased and accompanied by payment
in full of the aggregate purchase price of the number of shares purchased.
This Option, and the rights and privileges conferred hereby shall not
be assignable or transferable except pursuant to the provisions of the
Securities Act of 1933, as amended (the "Act"), and the Rules and Regulations
thereunder. This Option shall be binding and inure to the benefit of the
Corporation and any successor to the Corporation and to the Holder's successors
and assigns.
The Holder, by acceptance hereof, acknowledges and agrees that:
(a) The Option represented by this certificate has not been registered
under the Act. This Option has been purchased for investment and not with a view
to distribution or resale, and may not be made subject to a security interest,
pledged, hypothecated, or otherwise transferred without an effective
registration statement for such Option under the Act or an opinion of counsel
for the Corporation that registration is not required under the Act. Any shares
issued upon the exercise of this Option shall bear the following legend reading
substantially as follows:
"No sale, offer to sell or transfer of the securities represented
by the certificate shall be made unless a registration statement
under the Federal Securities Act of 1933, as amended, with respect
to such securities is then in effect or an exemption from the
registration requirement of such Act is then in fact applicable to
such transfer."
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The foregoing legend shall not apply in the event that shares
issuable upon exercise of this Option have been registered on a
Form S-8 Registration Statement.
(b) Each notice of exercise of any portion of this Option must be
accompanied by a representation in writing signed by the Holder or its legal
representatives, as the case may be, that the shares of Common Stock are being
acquired in good faith for investment and not with a view to or for sale in
connection with, any resale or distribution thereof.
(c) In the event that the Corporation shall, at any time prior to the
expiration date of this Option and prior to the exercise thereof: (i) declare or
pay to the Holders of the Common Stock a dividend payable in any kind of shares
of stock of the Corporation; or (ii) change or divide or otherwise reclassify
its Common Stock into the same or a different number of shares with or without
par value, or into shares of any class or classes; or (iii) consolidate or merge
with, or transfer its property as an entirety or substantially as an entirety
to, any other corporation; or (iv) make any distribution of its assets to
Holders of its Common Stock as a liquidation or partial liquidation dividend or
by way of return of capital; then, upon the subsequent exercise of this Option,
the Holder thereof shall receive for the exercise price, in addition to or in
substitution for the share of Common Stock to which it would otherwise be
entitled upon such exercise, such additional shares of stock or scrip of the
Corporation, or such reclassified shares of stock of the Corporation, or such
shares of the securities or property of the Corporation resulting from such
consolidation or merger or transfer, or such assets of the Corporation, which it
would have been entitled to receive had it exercised this Option prior to the
happening of any of the foregoing events.
(d) This Option does not confer upon the Holder thereof any right
whatsoever as a stockholder of the Corporation. Upon the exercise of this Option
the subscription form on the back hereof must be duly executed and the
accompanying instructions for recording of stock filled in.
(e) The Company agrees to purchase Directors & Officers Liability
Insurance within 30 days of the signing of this agreement or Xxxxx Xxxxx
reserves the right to resign from the board.
DATED: November 4, 2004 SURGE GLOBAL ENERGY, INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
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Xxxxxxxxx X. Xxxxxx, Vice President
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Director
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Note: This Directors Common Stock Purchase Option replaces a prior version which
incorrectly stated the expiration date as November 3, 2009 instead of November
3, 2014.
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