DUNE ENERGY, INC.
STOCK OPTION AGREEMENT
This Stock Option Agreement (this "Agreement") is effective as of
__________ (the "Option Grant Date") by and between Dune Energy, Inc., a
Delaware corporation (the "Company") and ______________, an individual residing
______________ (the "Optionee"). The Optionee and the Company hereby agree as
follows:
1. Grant. The Company hereby grants to the Optionee an option (the
"Option") to purchase up to an aggregate of __________ shares of the Company's
common stock (the "Optioned Shares") at an exercise price of $____ per Optioned
Share (the "Exercise Price").
2. Term. The Option granted hereby shall terminate no later than at the
close of business on ___________, 2012 (the "Termination Date").
3. Exercisability. Optionee may at any time from and after the purchase by
the Company of all of the outstanding capital stock of Goldking Energy
Corporation until the Termination Date, exercise this Option for the Optioned
Shares. This Option shall not vest, and Optionee may not exercise this Option,
unless and until the Company's acquisition mentioned above shall have occurred.
4. Procedure for Exercise.
(a) Notice. The Optionee may exercise the Option at any time with
respect to all or any part of the number of Optioned Shares which have vested by
giving the Secretary of the Company written notice of intent to exercise. The
notice of exercise shall specify the number of Optioned Shares as to which the
Option is to be exercised and the date of exercise thereof, which date shall be
at least five days after the giving of such notice unless an earlier time shall
have been mutually agreed upon.
(b) Payment of Exercise Price. Full payment (in U.S. Dollars) by the
Optionee of the Exercise Price for the Optioned Shares purchased shall be made
on or before the exercise date specified in the notice of exercise in cash, or,
with the prior written consent of the Board, in whole or in part through the
surrender of previously acquired shares of common stock (valued at their fair
market value on the exercise date). If the Optionee fails to pay for any of the
Optioned Shares specified in such notice or fails to accept delivery thereof,
the Optionee's right to purchase such Optioned Shares may be terminated by the
Company. The date specified in the Optionee's notice as the date of exercise
shall be deemed the date of exercise of the Option, provided that payment in
full for the Optioned Shares to be purchased upon such exercise shall have been
received by such date.
In addition to the method of payment set forth above, provided that
the Company's common stock is either registered on a national securities
exchange or quoted by the NASDAQ at the time of exercise, Optionee shall have
the right to exercise this Option in full or in part by delivering written
notice to the Company, and Optionee shall receive the number of Optioned Shares
equal to the product of (x) the number of Optioned Shares as to which this
Option is being exercised, multiplied by (y) a fraction, the numerator of which
is the Market Price (defined below) of the Company's common stock minus the
Exercise Price of the Optioned Shares and the denominator of which is the Market
Price of the Company's common stock. As used in this Agreement, the phrase
"Market Price" at any date shall be deemed to be the last reported sale price,
or, in case no such reported sale takes place on such day, the average of the
last reported sale prices for the last three (3) trading days, in either case as
officially reported by the principal securities exchange on which the Company's
common stock is listed or admitted to trading, or, if the common stock is not
listed or admitted to trading on any exchange, the average closing sale price as
furnished by the NASD through The NASDAQ Stock Market, Inc. ("NASDAQ").
(c) Other Limitations on Exercise. The obligation of the Company to
deliver shares of common stock upon the exercise hereof shall be subject to the
condition that if at any time the Company's Board of Directors shall determine
in its sole discretion that the listing, registration or qualification of the
Option or the Optioned Shares upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the grant of
this Option or the issuance or purchase of stock hereunder, then this Option may
not be exercised in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or obtained free of
any conditions not acceptable to the Board of Directors.
5. Adjustment of and Changes in Stock of Company. If the Company at any
time after the Option Grant Date subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding shares of
Common Stock into a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision will be proportionately reduced and the
number of shares of Common Stock obtainable upon exercise of this Option will be
proportionately increased. If the Company at any time after the Option Grant
Date combines (by combination, reverse stock split or otherwise) one or more
classes of its outstanding shares of Common Stock into a smaller number of
shares, the Exercise Price in effect immediately prior to such combination will
be proportionately increased and the number of Optioned Shares issuable upon
exercise of this Option will be proportionately decreased. Any adjustment under
this Section 5 shall become effective at the close of business on the date the
subdivision or combination becomes effective.
6. Non-Transferability of Option. During the Optionee's lifetime, this
Option shall be exercisable only by the Optionee or any guardian or legal
representative of the Optionee, and the Option shall not be transferable except,
in case of the death of the Optionee, by will or the laws of descent and
distribution, nor shall the Option be subject to attachment, execution or other
similar process. In the event of (a) any attempt by the Optionee to alienate,
assign, pledge, hypothecate or otherwise dispose of this Option, except as
provided for herein, or (b) the levy of any attachment, execution or similar
process upon the rights or interest hereby conferred, the Company may terminate
the Option by notice to the Optionee and it shall thereupon become null and
void.
7. Restrictions on Underlying Stock. The shares of common stock issuable
upon exercise of this Option may not be sold, pledged, hypothecated, transferred
or assigned in the absence of an effective registration statement for the
securities under the applicable federal and state securities laws or an opinion
of counsel satisfactory to the Company to the effect that such registration is
not required thereunder.
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8. "Piggy-Back" Registration Rights. If at any time commencing on the
first anniversary of the date hereof and expiring five (5) years hereafter, the
Company proposes to register any of its securities under the Securities Act of
1933 (other than in connection with an initial public offering or in connection
with a Form S-8), then the Company shall afford the Optionee the opportunity to
include for sale in such registration statement, shares of common stock acquired
by the Optionee upon the exercise of this Option, provided however, that if the
Company's underwriter shall advise the Company in writing that in its opinion
the number of shares to be included in such registration is too large, then the
Company will include only such number of Optioned Shares as such underwriter
shall so advise.
9. Nonqualified Option. The Option granted hereby shall be treated as a
nonqualified stock option and not as an incentive stock option under the
Internal Revenue Code.
10. No Rights as Stockholder. Neither the Optionee nor any personal
representatives shall be, or shall have any of the rights and privileges of, a
stockholder of the Company with respect to any shares of common stock
purchasable or issuable upon the exercise of this Option, in whole or in part,
prior to the date of exercise of this Option in accordance with the provisions
hereof.
11. Successors and Assigns. This Option shall not be assignable by the
Optionee without the prior consent of the Company, which shall not be
unreasonably withheld. This Option shall be binding upon the successors and
assigns of the Company, and shall be expressly assumed by any successor to the
Company pursuant to a merger in which the Company is not the surviving entity.
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12. Miscellaneous. This Option and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. This certificate is deemed to have been delivered in the State of New
York and shall be construed and enforced in accordance with and governed by the
laws of such State. The headings in this Stock Option Agreement are for purposes
of reference only, and shall not limit or otherwise affect any of the terms
hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by a duly authorized representative and the Optionee has hereunto set
his hand as of the Option Grant Date.
DUNE ENERGY, INC.
By :
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Name:
Title:
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[Optionee]
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