Exhibit 10.60
FX ENERGY, INC.
NON-QUALIFIED STOCK OPTION
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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.
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THIS OPTION AND THE COMMON STOCK ISSUABLE ON EXERCISE OF THIS
OPTION ARE SUBJECT TO SUBSTANTIAL RESTRICTIONS ON TRANSFER
AS SET FORTH HEREIN.
THIS NON-QUALIFIED STOCK OPTION (this "Option") is granted effective
August 14, 2002, by FX ENERGY, INC., a Nevada corporation (the "Company"), under
the terms of the FX Energy, Inc., 1999 Stock Option and Award Plan (the "Plan")
to ______________________________ ("Optionee").
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
______________________________ (__________) 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 $2.40 per
share of Common Stock (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. The right to exercise this Option shall vest
commencing on the first anniversary of the date of grant to the extent of 1/3 of
the total number of shares of Common Stock purchasable under this Option and to
the extent of 1/3 of the total number of shares of Common Stock purchasable
under this Option on each anniversary of the date of grant thereafter until
fully vested. This Option shall expire on the seventh anniversary of the date of
grant.
4. Shareholder's Rights. The Optionee shall have the rights of a
shareholder only with respect to shares fully paid for by Optionee under this
Option.
5. Persons Entitled to Exercise; Prohibited Transfers and Encumbrances.
During Optionee's lifetime, unless expressly waived by the Company, this Option
can only be exercised by Optionee, and neither this Option nor any right
hereunder can be transferred other than by testamentary disposition or the laws
of descent and distribution. 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, other than as provided herein, this Option and
all rights granted hereunder shall be immediately null and void.
6. Adjustment of Exercise Price and Number of Shares. The number of
shares of Common Stock subject to this Option shall be adjusted to take into
account any stock split, stock dividend, or recapitalization of the Common Stock
as provided in the Plan.
7. Notice of Certain Events. In the event of:
(a) any taking by the Company of a record of the holders of
any class of securities of the Company for the purpose of determining
the holders thereof who are entitled to receive any dividends or other
distribution, or any right to subscribe for, purchase, or otherwise
acquire any shares of stock of any class or any other securities or
property, or to receive any other rights;
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company, or any transfer of all or substantially all of the assets of
the Company to any other person, or any consolidation, share exchange,
or merger involving the Company; or
(c) any voluntary or involuntary dissolution, liquidation, or
winding up of the Company,
the Company will mail to the Optionee, at least 20 days prior to the earliest
date specified therein, a notice specifying the date on which any such record is
to be taken for the purpose of such dividend, distribution, or right; the amount
and character of such dividend, distribution, or right; or the date on which any
such reorganization, reclassification, transfer, consolidation, share exchange,
merger, dissolution, liquidation, or winding up of the Company will occur and
the terms and conditions of such transaction or event.
8. Method of Exercise. This Option may be exercised, in accordance with
all of the terms and conditions set forth in this Option and the Plan, 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 Optionee elects to exercise the Option and make
payment, in whole or in part, for the shares of Common Stock by such
other method as approved by the board of directors of the Company at
the time of exercise, Optionee shall deliver to the Company such other
forms of payment approved by the board of directors of the Company.
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 having been paid for 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 shares of 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.
9. Availability of Common Stock. During the term of this Option, the
Company shall at all times keep available the number of shares of Common Stock
required to satisfy the Option.
10. Limitation on Exercise.
(a) 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.
(b) In the event that Optionee is terminated as an officer
and/or director of the Company or any affiliate at any time for cause
pursuant to any written agreement between Optionee and the Company or
an affiliate or, if there is no such written agreement, on the
occurrence of any of the following: (i) Optionee's conduct involving
the business affairs of the Company or an affiliate constituting common
law fraud, conviction of a felony, embezzlement from the Company or an
affiliate, or other willful or malicious unlawful conduct of a similar
nature; (ii) any material breach by Optionee of the provisions of the
written policies or procedures of the Company or an affiliate that are
applicable to Optionee; or (iii) Optionee has been grossly negligent in
the performance of his duties or has substantially failed to meet
reasonable standards established by the Company for the performance of
his duties, the board may cancel any and all rights such individual may
have to the unexercised portion of this Option held at the time of
termination, whether or not then exercisable.
(c) Notwithstanding any other provision hereof, in the event
the Company is a party to a reorganization or similar transaction with
respect to which "pooling of interest" treatment (within the meaning of
APB 16) is, in the opinion of the independent certified public
accountants of the Company, available for such transaction, the Company
shall have the right, exercisable in its sole and absolute discretion,
to cancel this Option on the day immediately preceding the effective
date of the transaction and in consideration thereof to pay to the
Optionee an amount of cash equal to the difference between the then
fair market value of the Common Stock (determined in accordance with
the provisions of section 8(b) hereof) that would have been issuable on
exercise of the Options so canceled and the exercise price for the
purchase of such shares on exercise.
11. 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.
12. Restrictions on Transfer. The Option and the shares of 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
some cases, under the applicable state securities statutes, 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 one year 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.
13. Registration. At the request of the Optionee, the Company will
utilize its best efforts to file a registration statement on Form S-8 with the
Securities and Exchange Commission covering the issuance of the Common Stock on
exercise of this option and to maintain the effectiveness of such registration
statement or a subsequent registration statement or other qualification in order
to permit the exercise of this Option as set forth herein, although, there is no
guaranty that such registration statement will be effective when the Option is
exercised.
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.
14. 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, as evidenced
by Optionee's notice thereof in writing to the Company in writing within 90 days
after the occurrence of such Change in Control, in consideration of the
cancellation of this Option, the Company shall pay to Optionee within 10 days
after such election a cash amount equal to the number of shares of Common Stock
covered by this Option set forth in paragraph 1, excluding any portion of this
Option previously exercised, terminated, canceled, or expired, but disregarding
whether such Options are then exercisable pursuant to the provisions of
paragraph 3, 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.
15. 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 Optionee may, at Optionee's election, 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, but in no event beyond the due date
specified by the Internal Revenue Code or the regulations promulgated
thereunder for the deposit of such withholding, 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 of Common
Stock 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.
16. Validity and Construction. The validity and construction of this
Option shall be governed by the laws of the state of Utah.
EFFECTIVE as of the date first above written.
FX ENERGY, INC. Attest:
By _________________________________ ___________________________
Duly Authorized Officer Scott J. Duncan, Secretary
Agreed and Accepted:
____________________________________
Signature of Optionee
Exhibit A
Form of Exercise
(to be signed only upon exercise of Option)
TO: FX ENERGY, INC.
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 FX Energy, Inc.
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 ______________, _______.
__________________________________________
Signature of Optionee (Signature must be
guaranteed by a bank or securities broker-
dealer)
Signature Guarantee:
__________________________________
Schedule of Options Granted August 14, 2003
Optionee Amount
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Scott Duncan 75,000
Thomas Lovejoy 75,000
Jerzy Maciolek 75,000
Andrew Pierce 75,000
David Pierce 85,000
Peter Raven 10,000
Clay Newton 10,000