FORELAND CORPORATION
NON-QUALIFIED STOCK OPTION
(EXECUTIVE OFFICER)
IT IS IMPORTANT THAT YOU RETAIN THIS DOCUMENT. THIS
ORIGINAL NON-QUALIFIED STOCK OPTION MUST BE DELIVERED TO THE
COMPANY ON EXERCISE OR TRANSFER OF THE OPTION.
THIS NON-QUALIFIED STOCK OPTION (this "Option") is granted this 18th day
of July, 1996, by FORELAND CORPORATION, a Nevada corporation (the "Company"), to
("Optionee"), pursuant to a resolution of the
board of directors of the Company.
1. Grant of Option. The Company hereby irrevocably grants to Optionee
the right and option to purchase all or any part of an aggregate of 100,000
shares of common stock, par value $0.001 per share, of the Company (the "Common
Stock") on the terms and conditions hereinafter set forth.
2. Exercise Price. The exercise price of this Option shall be $4.00
per share (the "Exercise Price"), the fair market value of the Common Stock on
the date of grant as determined by the board of directors.
3. Term of Option. All rights to acquire shares of Common Stock
hereunder shall expire five years after the date of this Option.
4. Shareholder's Rights. The Optionee shall have the rights of a
shareholder only with respect to Common Stock fully paid for by Optionee under
this Option.
5. Adjustment to Number of Shares of Common Stock.
(a) In the event that a share dividend shall be declared upon the common
stock of the Company, the number of shares of Common Stock then subject to
this Option shall be adjusted by adding to each such share the number of
shares which would be distributable in respect thereof if such Common Stock
had been outstanding on the date fixed for determining the shareholders of
the Company entitled to receive such share dividend.
(b) In the event that the outstanding shares of the Company shall be
changed into or exchanged for a different number or kind of shares or other
securities of the Company or of another corporation, whether through
reorganization, recapitalization, split-up, combination of shares, merger,
consolidation, or otherwise, then there shall be substituted for each share
of Common Stock subject to this Option the number and kind of shares or
other securities into which each outstanding share of the Company shall
have been so changed or for which each such share shall have been
exchanged. Under no circumstances shall any such reorganization,
recapitalization, split-up, combination of shares, merger, consolidation,
or other exchange be accomplished without a comparable share option being
substituted pursuant to the foregoing.
(c) In the event there shall be any change, other than as specified
elsewhere in this paragraph, in the number or kind of outstanding shares or
of any shares or other securities into which such shares shall have been
changed or for which they shall have been exchanged, then the board shall,
in its sole discretion, determine whether such change equitably requires an
adjustment in the number or kind of Common Stock to be issued on the
exercise of this Option. Such adjustment shall be made by the board and
shall be effective and binding for all purposes of this Option.
(d) In the case of any such substitution or adjustment as provided for
in this paragraph, the option price set forth in this Option for each share
of Common Stock covered hereby prior to such substitution or adjustment
shall be the option price for all shares or other securities which shall
have been substituted for such Common Stock or to which such Common Stock
shall have been adjusted pursuant to this paragraph. No adjustment or
substitution provided for in this paragraph shall require the Company to
sell a fractional share of Common Stock, and the substitution or adjustment
with respect to this Option shall be limited accordingly; provided,
however, that the aggregate option price paid shall be appropriate reduced
on account of any fractional share of Common Stock not issued. Upon any
adjustment made pursuant to this paragraph, the Company shall, upon
request, deliver to the Optionee a certificate of the Company's treasurer
setting forth the option price thereafter in effect and the number and kind
of shares or other securities thereafter purchasable on the exercise of
this Option.
(e) If at any time:
(i) The Company proposes to pay any dividend or make any
distribution, including a cash or property dividend payable out of
earnings, earned surplus, or the assets of the Company; or
(ii) The Company proposes to effectuate any plan of reorganization
or reclassification of the Common Stock; or
(iii) The Company proposes to merge, consolidate, or encumber or
sell all or substantially all of its assets other than in the ordinary
course of business;
then, and in any one or more of such events, the Company shall cause a
notice to be mailed to the registered holder(s) of this Option at the
address of such holder(s) set forth in the registration records of the
Company. Such notice shall be solely for the convenience of such
registered holders and shall not be a condition precedent to, nor shall any
defect therein or failure in connection therewith affect the validity of,
the action proposed to be taken by the Company. Such notice shall be
mailed at least twenty (20) days prior to the date on which the books of
the Company shall close or a record date shall be taken for such dividend,
share split, or reclassification, consolidation, merger, or sale of
properties and assets, as the case may be. Such notice shall specify the
record date for the closing of the Company's shareholder records.
6. Record Owner. The Company may deem and treat the registered owner
of this Option as the absolute owner hereof for all purposes and shall not be
affected by any notice to the contrary.
7. Method of Exercise. This Option may be exercised, in accordance with
all of the terms and conditions set forth in this Option, by delivery of this
Option together with a notice of exercise, a form of which is attached hereto as
Exhibit "A" and incorporated herein by this reference, indicating the number of
Shares which the Optionee then elects to purchase and with payment made in
accordance with the following:
(a) If Optionee elects to exercise the Option and make payment, in whole
or in part, for the shares of Common Stock in cash, Optionee shall include
with the notice of exercise a certified check or official bank check
payable to the order of the Company in the amount of the full option price
of the Common Stock being purchased for cash.
(b) If Optionee elects to exercise the Option and make payment, in whole
or in part, for the shares of Common Stock in installments, Optionee shall
include with the notice of exercise a certified check or official bank
check payable to the order of the Company in the amount of any cash to be
paid on exercise, and a promissory note, in form satisfactory to the
Company, executed by the Optionee and evidencing the obligation of the
Optionee to pay the balance of the exercise price on terms and conditions
acceptable to the board of directors of the Company at the time of exercise
of the Option.
(c) If Optionee elects to exercise the Option and make payment, in whole
or in part, for the shares of Common Stock by delivery of shares of Common
Stock of the Company that have been owned by Optionee for over six months,
Optionee shall surrender or transfer to the Company, in a form satisfactory
to it, such shares of Common Stock valued at their fair market value. Fair
market value shall mean the closing price for such stock as quoted on a
registered national securities exchange or, if not listed on a national
exchange, the Nasdaq Stock Market ("Nasdaq"), over the five-day trading
period immediately preceding the date of exercise of such Option, or, if
not listed on such an exchange or included on Nasdaq, shall mean the
closing price (or, if no closing price is available from sources deemed
reliable by the Company, the closing bid quotation) for such stock as
determined by the Company through any other reliable means of determination
available on the close of business on the trading day last preceding the
date of exercise of such Option.
(d) If the Optionee decides to exercise the Option in whole or in part,
and make payment, in whole or in part, for the Common Stock by the delivery
of options or other rights to purchase shares of Common Stock, whether such
options consist of the Options represented hereby or other options or
rights to purchase Common Stock, Optionee shall surrender or transfer to
the Company, in form satisfactory to it, such options or rights to purchase
Common Stock, valued at the amount by which the market value of the Common
Stock subject to such options or other rights, as determined in accordance
with the provisions of subparagraph (c) above, exceeds the exercise or
purchase price provided in such options or rights.
As soon as practicable after receipt by the Company of such notice and of
payment in full of the option price of all the shares of Common Stock with
respect to which the Option has been exercised (including interest if payment is
made in installments), a certificate or certificates representing such shares of
Common Stock shall be issued in the name of the Optionee, or, if the Optionee
shall so request in the notice exercising the Option, in the name of the
Optionee and another person jointly, with right of survivorship, and shall be
delivered to the Optionee. To the extent required by the terms of this Option,
all Common Stock shall be issued only upon receipt by the Company of the
Optionee's representation that the shares are purchased for investment and not
with a view to distribution thereof. If this Option is not exercised with
respect to all Common Stock subject hereto, Optionee shall be entitled to
receive a similar Option of like tenor covering the number of shares of Common
Stock with respect to which this Option shall not have been exercised.
8. Availability of Common Stock. During the term of this Option, the
Company shall at all times keep available for issuance the number of shares of
Common Stock Option subject to this Option.
9. No Right of Employment. Nothing contained in this Option shall be
construed as conferring any right to continue or remain as an officer, director,
or employee of the Company or any subsidiary.
10. Restrictions on Transfer. The Option and the Common Stock subject
to the Option (collectively referred to as the "Securities") are subject to
registration under the Securities Act of 1933, as amended (the "Securities
Act"), and any applicable state securities statutes. Optionee acknowledges that
unless a registration statement with respect to the Securities is filed and
declared effective by the Securities and Exchange Commission and the appropriate
state governing agency, the Securities have or will be issued in reliance on
specific exemptions from such registration requirements for transactions by an
issuer not involving a public offering and specific exemptions under state
statutes. Any disposition of the Securities may, under certain circumstances,
be inconsistent with such exemptions. The Securities may be offered for sale,
sold, or otherwise transferred only if (i) registered under the Securities Act,
and in come cases, under the applicable state securities acts, or, if not
registered, (ii) only if pursuant to an exemption from such registration
requirements and only after the Optionee provides an opinion of counsel or other
evidence satisfactory to the Company to the effect that registration is not
required. In some states, specific conditions must be met or approval of the
securities regulatory authorities may be required before any such offer or sale.
The Company is under no obligation to register the Securities with the
Securities and Exchange Commission or any state agency. If rule 144 is
available (and no assurance is given that it will be), only routine sales of the
Common Stock in limited amounts can be made after two years following the
acquisition date of the Securities, as determined under rule 144(d), in
accordance with the terms and conditions of rule 144. The Company is under no
obligation to make rule 144 available. In the event rule 144 is not available,
compliance with regulation A or some other disclosure exemption may be required
before the Optionee can sell, transfer, or otherwise dispose of the Securities
without registration. The Company and its registrar and transfer agent will
maintain a stop transfer order against the transfer of the Securities, and this
Option and any other certificate or agreement representing the Securities is
subject to the following legend:
THE SECURITIES REPRESENTED BY THIS OPTION, AGREEMENT, OR CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND ARE "RESTRICTED SECURITIES" WITHIN THE
MEANING OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR
TRANSFERRED WITHOUT COMPLYING WITH RULE 144 IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES ACT.
The Company may refuse to transfer the Securities to any transferee who
does not furnish in writing to the Company the same representations and
warranties set forth in this paragraph and agree to the same conditions with
respect to such Securities as are set forth herein. The Company may further
refuse to transfer the Securities if certain circumstances are present
reasonably indicating that the proposed transferee's representations are not
accurate. In any event, the Company may refuse to consent to any transfer in
the absence of an opinion of legal counsel, satisfactory to and independent of
counsel of the Company, that such proposed transfer is consistent with the above
conditions and applicable securities laws.
11. Regulatory Compliance. If the board of directors of the Company, in
its sole discretion, shall determine that it is necessary or desirable to list,
register, or qualify the Common Stock under any state or federal law, this
Option may not be exercised, in whole or part, until such listing, registration,
or qualification shall have been obtained free of any conditions not acceptable
to the board of directors. If no registration statement is effective on the date
of exercise of this Option, the shares of Common Stock will not be issued unless
and until there is available to the Company evidence, including representations
from the Optionee, that such shares are being acquired for investment and not
for resale, on which the Company may reasonably rely as to the availability of
an exemption from registration in issuing such Common Stock. The Company shall
utilize its best efforts to comply with the requirements of each regulatory
commission or agency having jurisdiction in order to issue and sell the Common
Stock to satisfy the Option. Such compliance will be a condition precedent to
the right to exercise the Option. The inability of the Company to effect such
compliance with any such regulatory commission or agency which counsel for the
Company deems necessary for the lawful issuance and sale of the Common Stock to
satisfy this Option shall relieve the Company from any liability for failure to
issue and sell the Common Stock to satisfy the Option for such period of time as
such compliance is not effectuated.
12. Assignment of Option. This Option may not be assigned by the
Optionee without the prior written consent of the Company. If the Company
consents to any assignment, it shall, upon request and upon surrender of this
Option by the Optionee at the principal office of the Company accompanied by
payment of all transfer taxes, if any, payable in connection therewith, transfer
this Option on the books of the Company. If the assignment is in whole, the
Company shall execute and deliver a new option of like tenor to this Option to
the appropriate assignee expressly evidencing the right to purchase the
aggregate number of Shares of Common Stock purchasable hereunder as of the date
of such assignment; and if the assignment is in part, the Company shall execute
and deliver to the appropriate assignee a new option of like tenor expressly
evidencing the right to purchase the portion of the aggregate number of Shares
of Common Stock as shall be contemplated by any such agreement, and shall
concurrently execute and deliver to the Optionee a new option of like tenor to
this Option evidencing the right to purchase the remaining portion of the Shares
of Common Stock purchasable hereunder which have not been transferred to the
assignee. On such transfer, every holder hereof agrees that the Company may deem
and treat the registered holder of this Option as the true and lawful owner
thereof for all purposes, and the Company shall not be affected by any notice to
the contrary. Neither this Option nor any right hereunder shall be subject to
lien, attachment, execution, or similar process. In the event of any
alienation, assignment, pledge, hypothecation, or other transfer of this Option
or any right hereunder or in the event of any levy, attachment, execution, or
similar process, this Option and all rights granted hereunder shall be
immediately null and void.
13. Payment in the Event of a Change in Control. In the event of a "Change in
Control" (as defined), at the election of the Optionee, in consideration of the
cancellation of this Option, the Company shall pay promptly to Optionee an
amount equal to the number of Optionee's unexercised Options (but excluding any
Options previously exercised, terminated, canceled, or expired) times the amount
by which the "Fair Market Value" (as defined) exceeds the exercise price of such
Options. For purposes hereof:
(a) A "Change in Control" shall be deemed to have occurred if (i) the
Company shall be merged or consolidated into another corporation and as a
result of such merger or consolidation less than seventy-five percent (75%)
of the outstanding voting securities of the surviving or resulting
corporation shall be owned in the aggregate by the former shareholders of
the Company as the same shall have existed prior to such merger or
consolidation, (ii) the Company shall sell, lease, exchange, or otherwise
transfer (in one transaction or a series of transactions) all or
substantially all of the assets of the Company to an entity that is not a
wholly owned subsidiary of the Company or to a group of associated
purchasers, (iii) a person, within the meaning of Section 3(a)(9) or
Section 13(d)(3) (as in effect on the date hereof) of the Exchange Act,
shall become the beneficial owner (within the meaning of rule 13d-3 of the
Exchange Act as in effect on the date hereof) of fifty percent (50%) or
more of the outstanding voting securities of the Company, or (iv) if as a
result of a merger, consolidation, sale of all or substantially all of the
Company's assets, a contested election, or any combination of the
foregoing, the persons who were directors of the Company immediately prior
thereto shall cease to constitute a majority of the board of directors of
the Company or any successor to the Company.
(b) "Fair Market Value" shall be the closing price for such stock on the
close of business on the day last preceding the occurrence of the Change of
Control as quoted on a registered national securities exchange or, if not
listed on such an exchange, the Nasdaq Stock Market or, if not listed on
such an exchange or included on the Nasdaq Stock Market, the closing price
(or, if no closing price is available from sources deemed reliable by the
Company, the closing bid quotation) for such stock as determined by the
Company through any other reliable means of determination available on the
close of business on the day last preceding the date of such Change of
Control.
14. Withholding. The Company may, in its sole discretion, satisfy any
obligation to withhold income and employment taxes resulting from the grant or
exercise of this Option (or any other event giving rise to such obligation) in
any of the following ways:
(a) The Company may require the Optionee to deliver to the Company at
the time of exercise of this Option an amount of cash equal to such
withholding obligation.
(b) If authorized by the action of the board of directors of the Company
(or a duly appointed committee of the board) upon request by the Optionee,
the Company may defer payment of the withholding obligation for a
reasonable period to allow the Optionee an opportunity to sell Shares
issuable on the exercise of this Option. In the event of such deferral,
the Optionee hereby grants to the Company a continuing security interest in
such Shares and all proceeds thereof and appoints the President of the
Company, and any successor thereto, as attorney-in-fact to sell the number
of Shares and collect the proceeds therefrom as may be necessary, in the
opinion of the Company, to satisfy all obligations for the payment of such
taxes.
(c) The Company may withhold from any compensation or other amount owing
to Optionee the amount (in cash, Common Stock, or other property as the
Company may determine) of the withholding obligation.
(d) If authorized by the action of the board of directors of the Company
(or a duly appointed committee of the board) upon request by the Optionee,
the Company may withhold a number of Shares otherwise deliverable upon
exercise of this Option having a value, determined in accordance with the
provisions of this Option, equivalent to the amount of such withholding
obligation.
In all events, delivery of Shares issuable on exercise of this Option shall be
conditioned upon and subject to the satisfaction or making provision for the
satisfaction of the withholding obligation of the Company resulting from the
exercise of this Option. The Company is hereby further authorized to take such
other action as may be necessary, in the opinion of the Company, to satisfy all
obligations for the payment of such taxes
15. Validity and Construction. The validity and construction of this
Option shall be governed by the laws of the state of Nevada.
EXECUTED as of the date first above written.
The Company:
FORELAND CORPORATION
By:
Duly Authorized Officer
Optionee:
EXHIBIT A
FORM OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF OPTION)
TO: FORELAND CORPORATION
The undersigned, the owner of the attached Option, hereby irrevocably
elects to exercise the purchase rights represented by the Option for, and to
purchase thereunder, shares of Common Stock of Foreland Corporation.
Enclosed is payment in the amount of $ , the exercise price of the Common
Stock to be acquired, in the form of [insert description of manner of payment]
.
Please have the certificate(s) registered in the name of
, social security no.
and delivered to the following address:
. If this exercise does not include all of the Common Stock covered by the
attached Option, please deliver a new option of like tenor for the balance of
the Common Stock to the undersigned at the foregoing address.
DATED this day of , 199 .
Signature of Optionee (Signature must
be
guaranteed by a bank or securities
broker-
dealer)
Signature Guarantee:
SCHEDULE TO FORM OF OPTION
Name Date of Grant Shares Exercise Vesting Expiration
Price
Grant Steele July 18, 1996 100,000 $4.00 100% on grant July 18, 2001
Tom Steele July 18, 1996 100,000 $4.00 100% on grant July 18, 2001
Ken Ransom July 18, 1996 100,000 $4.00 100% on grant July 18, 2001
Bruce Decker July 18, 1996 100,000 $4.00 100% on grant July 18, 2001