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Exhibit 4d
STOCK OPTION AND PURCHASE AGREEMENT
THIS STOCK OPTION AND PURCHASE AGREEMENT (this "Agreement") is
made as of this 9th day of December, 1998 between Xxxxxxx Xxxxxxx ("Seller") and
Nevada Energy Company, Inc. ("Buyer").
RECITALS
A. Pursuant to Section 1129 under Chapter 11 of Title 11 of
the United States Code, the Bankruptcy Code, a plan of reorganization of Buyer
(the "Plan") was confirmed on September 15, 1998 by Order of the United States
Bankruptcy Court for the District of Nevada, Case No. BK-97-30265-BMG.
B. The Plan contains a provision requiring Buyer to repurchase
the shares of Series B Preferred Stock of Buyer owned by Seller for a per share
price of 100,000 shares of Class A Common Stock and a twenty-four (24) month
option to purchase an additional 100,000 shares of Class A Common Stock at an
exercise price of $0.10 per share.
C. Seller owns one (1) share of Series B Preferred Stock,
$0.01 par value per share (the "Stock"), of Buyer.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Stock Purchase. Seller shall sell, assign and transfer to
Buyer and Buyer shall purchase from Seller the Stock in exchange for a per share
price of 100,000 shares of Class A Common Stock of Buyer and a twenty-four (24)
month option to purchase an additional 100,000 shares of Class A Common Stock of
Buyer at an exercise price of $0.10 per share.
2. Payment. Buyer shall deliver certificates representing
100,000 shares of Class A Common Stock of Buyer in favor of Seller, concurrently
with the execution hereof, the receipt of which Seller hereby acknowledges. In
addition, Buyer hereby grants to Seller the right and option to purchase an
additional 100,000 shares of Class A Common Stock of Buyer subject to, and in
accordance with, the following terms and conditions (the "Option"):
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2.1. The purchase price at which Seller shall be entitled
to purchase shares of Class A Common Stock of Buyer
upon exercise of the Option shall be $0.10 per share.
2.2. The Option shall be exercisable to the extent and in
the manner provided herein for a period of
twenty-four (24) months from the date of this
Agreement.
2.3. Subject to the terms and conditions of this
Agreement, including the limitation set forth in
Section 2.2 above, the Option may be exercised in
whole at any time, or in part from time to time, by
delivery of written notice to the Buyer at its
principal executive office. Such notice shall state
the number of shares in respect of which the Option
is being exercised and shall be signed by Seller. If
requested by Buyer, Seller shall deliver this
Agreement to the Secretary of the Buyer who shall
endorse thereon a notation of such exercise.
2.4. The notice of exercise described in Section 2.3 above
shall be accompanied by the full purchase price for
the shares in respect of which the Option is being
exercised, in cash or by check.
2.5. Upon receipt of notice of exercise and full payment
for the shares in respect of which the Option is
exercised, Buyer shall take such action as may be
necessary to effect the transfer to Seller of the
number of shares as to which such exercise was
effective.
2.6. Seller shall not be deemed to be the holder of, or to
have any of the rights of a holder with respect to
any shares subject to the Option until (i) the Option
shall have been exercised pursuant to the terms of
this Agreement and Seller shall have paid the full
purchase price for the numbers of shares in respect
of
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which the Option is exercised, (ii) Buyer shall have
issued and delivered to Seller certificates
evidencing the shares, and (iii) Seller's name shall
have been entered as a stockholder of record on the
books of Buyer, whereupon Seller shall have full
voting and other ownership rights with respect to
such shares.
2.7. Buyer shall take such action as is necessary to
reserve a sufficient number of shares of Class A
Common Stock for issuance upon exercise of the
Option.
2.8. The Option shall not be transferable other than by
will or by the laws of descent and distribution.
During the lifetime of Seller, the Option shall be
exercisable only by Seller. Any shares that Seller
acquires upon exercise of the Option may be
transferred freely upon registration under the
Securities Act and any applicable state securities
laws, or pursuant to an exemption from registration
under the Securities Act of 1933 and applicable state
securities laws.
2.9. Subject to the terms and conditions of this
Agreement, upon the effective date of the liquidation
or dissolution of Buyer, the Option shall continue in
effect in accordance with its terms and Seller shall
be entitled to receive in respect of all shares
subject to the Option, upon exercise of the Option,
the same number and kind of stock, securities, cash,
property or other consideration that each holder of
shares was entitled to receive in such transaction.
2.10 If there shall be any capital reorganization, or
consolidation, or merger of the Buyer with any other
entity, or any sale of all or substantially all of
the Buyer's property
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and assets to any other entity, Buyer shall take
appropriate action to enable Seller to receive upon
any subsequent exercise of the Option, in whole or in
part, in lieu of any common shares of Buyer, the
share or shares, securities, interest or interests,
or other assets as were issuable or payable upon such
reorganization, consolidation, merger, or sale in
respect of or in exchange for such common shares.
2.11 Each certificate representing Common Stock initially
issued upon exercise of an Option, unless at the time
of the exercise the Company has completed an initial
public offering of its Common Stock and the sale of
shares to Seller pursuant to the exercise of the
Option has been registered under the Securities Act,
shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY
BE OFFERED AND SOLD ONLY IF SO REGISTERED OR
IN A MANNER EXEMPT FROM REGISTRATION UNDER
SUCH ACT. IN ADDITION, THE TRANSFER OF THESE
SECURITIES IS SUBJECT TO THE CONDITIONS SET
FORTH IN A STOCK OPTION AGREEMENT DATED
DECEMBER__, 1998 BETWEEN XXXXXXX XXXXXXX AND
NEVADA ENERGY COMPANY, INC. NO TRANSFER OF
THESE SECURITIES SHALL BE EFFECTIVE UNTIL
SUCH CONDITIONS HAVE BEEN FULFILLED.
Certificates issued upon the transfer of any
such shares of Class A Common Stock shall
also bear this legend, unless Buyer shall
have waived the requirement of such legend.
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2.12 Seller hereby represents and warrants to Buyer that
Seller is acquiring the Option and any Class A Common
Stock acquired by him pursuant to the exercise of the
Option for his own account, for investment and not
with a view to the sale or distribution thereof, nor
with any present intention to distribute or sell the
Class A Common Stock.
3. Surrender of Shares. Concurrently with the execution
hereof, Seller shall deliver to Buyer Certificate No. ___ which represents the
Stock duly endorsed for transfer to Buyer, receipt of which Buyer hereby
acknowledges. Seller further covenants and agrees to take any and all reasonable
steps necessary to transfer legal ownership of the Stock to Buyer.
4. Representation of Seller. Seller represents and warrants
that he is the sole owner, both of record and beneficially, of the Stock and the
Stock is free and clear of all claims, liens, charges and assessments of any
kind whatsoever.
5. Survival of Representation and Warranties. All
representations and warranties made hereunder shall survive the delivery of the
Stock sold hereunder.
6. Closing. Closing for this transaction shall occur on
December __, 1998.
7. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the respective parties hereto, their legal
representatives, successors and assigns.
8. Entire Agreement. This Agreement is intended by the parties
hereto as a final expression of their agreement with respect to the subject
matter hereof, and is intended as a complete and exclusive agreement of the
terms and conditions of that agreement. This Agreement may not be modified,
rescinded or terminated orally, and no modification, rescission, termination or
attempted waiver of any of the terms, provisions or conditions hereof (including
this paragraph) shall be valid unless in writing and signed by the party against
whom the same is sought to be enforced.
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9. Non-Waiver. No delay or failure by any party to exercise
any right under this Agreement, and no partial or single exercise of that right,
shall constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
10. Payment of Legal Expenses. Buyer shall pay all fees and
expenses of counsel incurred with respect to this Agreement.
11. Headings. Headings in this Agreement are for convenience
only and shall not be used to interpret or construe its provisions.
12. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first set forth above.
SELLER:
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
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Witness
BUYER:
Nevada Energy Company, Inc.
/s/ Xxxxxxx Xxxxxxxxxx
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Witness By:
