UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
_____________
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of
the
Securities Exchange Act of 1934
Date
of
Report (Date of Earliest event Reported): August 25, 2006 (August 21,
2006)
NOVASTAR
RESOURCES LTD.
(Exact
name of small business issuer as specified in its charter)
|
Nevada
000-28535 91-1975651
----------------------------------------------------------------------------------------------------------
(State
or other jurisdiction of (Commission (I.R.S. Employer
of
incorporation) File Number) Identification No.)
8300
Greensboro Drive, Suite 800, McLean, VA 22102
(Address
of Principal Executive Offices)
800-685-8082
(Registrant’s
Telephone Number, Including Area Code)
|
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see
General
Instruction A.2. below):
[_] Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[_] Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[_] Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
[_] Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
ITEM
5.02
ELECTION OF DIRECTORS
Appointment
of Director.
On
August
21, 2006, the Board of Directors of Novastar Resources Ltd. (“Novastar” or the
“Company”) increased the size of the board to four (4) members and appointed
Victor E. Alessi, Ph.D., as a member of the Board of Directors of Novastar,
effective immediately. Pursuant to terms of the Independent Director’s Contract,
dated August 21, 2006, between Victor E. Alessi and the Company (the “Alessi
Director Contract”), Dr. Alessi will receive a fee of $40,000 per year, payable,
at the option of Dr. Alessi, either in cash or in shares of the Company’s common
stock (the value of which is determined by reference to the closing price
of the
Company’s common stock on last trading day before the end of the quarter for
which the shares will be issued). Additionally, the Alessi Director Contract
grants to Dr. Alessi each year that he serves on the Board of Directors
non-qualified options to purchase up to 500,000 shares of the common stock
of
the Company (the “Alessi Option”). which shall vest with respect to 13,889
shares on September 21, 2006 and the remaining 486,111 shares
will subsequently vest in equal monthly installments of 13,889 shares on
each
one month anniversary of the grant until all shares underlying the Alessi
Option have vested.
The
Alessi Option was granted on August 21, 2006, pursuant to a stock option
agreement (the “Alessi Option Agreement”) entered into between the Company and
Dr. Alessi. The Alessi Option will vest in equal monthly installments over
a three-year period, with accelerated vesting upon upon the termination of
Dr.
Alessi’s employment by the Company without Cause (all as defined in the Alessi
Director Contract). Aditionally, This brief description of the terms of the
Alessi Director Contract and the Alessi Option Agreement is qualified by
reference to the provisions of those agreements, attached to this report
as
Exhibits 10.1 and 10.2, respectively.
Biographical
Information
Dr.
Alessi, age 66, became a director of Novastar on August 23, 2006.
Dr.
Victor E. Alessi is President Emeritus of the United States Industry Coalition
(“USIC”), an organization dedicated to facilitating the commercialization of
technologies of the New Independent States (“NIS”) of the former Soviet Union
through cooperation with its members. He has held such position since August
1,
2006; prior to becoming President Emeritus, Dr. Alessi held the positions
of CEO
and President of USIC since 1999. Previously, he was President of DynMeridian,
a
subsidiary of DynCorp, specializing in arms control, nonproliferation, and
international security affairs. Before joining DynMeridian in early 1996,
Dr.
Alessi was the Executive Assistant to the Director, U.S. Arms Control and
Disarmament Agency (“ACDA”). At ACDA he resolved inter-bureau disputes, and
advised the Director on all arms control and nonproliferation issues. Dr.
Alessi
served as Director of the Office of Arms Control and Nonproliferation in
the
Department of Energy (“DOE”) prior to his work at ACDA, overseeing all DOE arms
control and nonproliferation activities. As a senior DOE representative,
Dr.
Alessi participated in U.S. efforts that led to successful conclusion of
the
Intermediate Nuclear Forces (INF), Conventional Forces in Europe, Threshold
Test
Ban, Peaceful Nuclear Explosions, Open Skies,
Strategic Arms Reductions Talks Treaties and the Chemical Weapons Convention.
In
this role, he was instrumental in implementing the U.S. unilateral nuclear
initiative in 1991 and was a member of the U.S. delegation discussing nuclear
disarmament with Russia and other states of the former Soviet Union. He was
in
charge of DOE’s support to the U.N. Special Commission on Iraq, to the
Nunn-Lugar Initiative, and represented DOE in discussions on the Comprehensive
Test Ban (“CTB”) with the other nuclear weapons states before the CTB
negotiations began in Geneva in 1994. Dr. Alessi has been the U.S. board
member
to the International Science and Technology Center in Moscow since its founding.
He is also the U.S. board member to the Science and Technology Center in
Ukraine. Dr. Alessi is a 1963 graduate of Fordham University, where he also
earned a licentiate in Philosophy (Ph.L.) in 1964. He studied nuclear physics
at
Georgetown University, receiving his M.S. in 1968 and Ph.D. in
1969.
ITEM
9.01 - FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
Exhibit Description
No.
|
10.1
|
Independent
Director’s Contract, dated August 23, 2006, between Novastar Resources
Ltd. and Victor E. Alessi.
|
|
10.2
|
Stock
Option Agreement, dated August 23, 2006, between Novastar Resources
Ltd.
and Victor E. Alessi.
|
|
99.1
|
Press
Release, dated August 25, 2006.
|
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant
has
duly caused this report to be signed on its behalf by the
undersigned,
in the
City of Reno, Nevada on August 25, 2006.
NOVASTAR
RESOURCES LTD.
By:/s/
Seth Grae
Seth
Grae
President
and Chief Executive Officer
EXHIBIT
INDEX
|
10.1
|
Independent
Director’s Contract, dated August 23, 2006, between Novastar Resources
Ltd. and Victor E. Alessi.
|
|
10.2
|
Stock
Option Agreement, dated August 23, 2006, between Novastar Resources
Ltd.
and Victor E. Alessi.
|
|
99.1
|
Press
Release, dated August 25, 2006.
|
Exhibit
10.1
NOVASTAR
RESOURCES LTD.
INDEPENDENT
DIRECTOR’S CONTRACT
THIS
AGREEMENT (The “Agreement”) is made as of the 23rd
day of
August 2006 and is by and between Novastar Resources Ltd., a Nevada corporation
(hereinafter referred to as “Company”) and Dr. Victor E. Alessi (hereinafter
referred to as “Director”).
BACKGROUND
Company
desires to retain Director for the duties of Independent Director and Director
desires to be retained for such position and to perform the duties required
of
such position in accordance with the terms and conditions of this
Agreement.
AGREEMENT
In
consideration for the above recited promises and the mutual promises contained
herein, the adequacy and sufficiency of which are hereby acknowledged, Company
and Director hereby agree as follows:
1. DUTIES.
The
Company requires that the Director be available to perform such duties as
Independent Director as may be determined and assigned by the Board of Directors
of the Company and as may be required by the Company’s constituent instruments,
including its certificate or articles of incorporation, bylaws and its corporate
governance and board committee charters, each as amended or modified from time
to time, and by applicable law, including the Nevada General Corporation Law.
Director agrees to devote as much time as is necessary to perform completely
the
duties as Independent Director of the Company. The Director will perform such
duties described herein in accordance with the general fiduciary duty of
Directors arising under the Nevada General Corporation Law and Nevada Revised
Statutes §§ 78.138 - 78.140.
2. TERM.
The
term of this Agreement shall commence as of the date of the Director’s
appointment by the board of directors of the Company (in the event the Director
is appointed to fill a vacancy) or the date of the Director’s election by the
stockholders of the Company and shall continue until the Director’s removal or
resignation.
3. COMPENSATION.
For all
services to be rendered by Director in any capacity hereunder, the Company
agrees to (i) pay Director a fee of $40,000 (A) in cash per year payable in
equal quarterly installments (the “Cash Compensation”) or (B) in restricted
shares of the Company’s common stock calculated in accordance with the last
sentence of this Section 3; and (ii) pursuant to the terms and conditions of
the
Company’s 2006 Stock Plan, grant to the Director each that the Director serves
on the Board non-qualified options to purchase up to 500,000 shares of the
common stock of the Company, which options shall be exercisable within three
(3)
years from the grant date and have an exercise price equal to the fair market
value on the grant date. These options shall be vested immediately on the date
of grant. The initial year’s base fee is considered earned when paid and is
nonrefundable. Upon execution of this Agreement, the Company shall pay to the
Director the
initial
year’s base fee and grant the initial options described above. Thereafter,
payment shall be due on or before October 1st of
each
succeeding year. Such fee and options may be adjusted from time to time as
agreed by the parties. Not withstanding the foregoing, if the elects to receive
restricted shares of the Company’s common stock under subsection 3(i)(B) above,
the Director shall receive such number of shares equal to the value of the
Cash
Compensation that would be paid to the Director for any quarter based on the
then current fair market value of the Company’s common stock (determined by
reference to the closing price of the Company’s common stock on last trading day
before the end of the quarter for which the shares will be issued).
4. EXPENSES.
In
addition to the compensation provided in paragraph 3 hereof, the Company will
reimburse Director for pre-approved reasonable business related expenses
incurred in good faith in the performance of Director’s duties for the Company.
Such payments shall be made by the Company upon submission by the Director
of a
signed statement itemizing the expenses incurred. Such statement shall be
accompanied by sufficient documentary matter to support the
expenditures.
5. CONFIDENTIALITY.
The
Company and Director each acknowledge that, in order for the intents and
purposes of this Agreement to be accomplished, Director shall necessarily be
obtaining access to certain confidential information concerning the Company
and
its affairs, including, but not limited to business methods, information
systems, financial data and strategic plans which are unique assets of the
Company (“Confidential Information”). Director covenants not to, either directly
or indirectly, in any manner, utilize or disclose to any person, firm,
corporation, association or other entity any Confidential
Information.
6. NON-COMPETE.
During
the Term and for a period of twenty-four months following the Director’s removal
or resignation from the Board of Directors of the Company or any of its
Subsidiaries or Affiliates (the "Restricted Period"), the Director shall not,
directly or indirectly, (i) in any manner whatsoever engage in any capacity
with
any business competitive with the Company's current lines of business or any
business then engaged in by the Company, any of its Subsidiaries or any of
its
Affiliates (the "Company's Business") for the Director’s own benefit or for the
benefit of any person or entity other than the Company or any Subsidiary or
Affiliate; or (ii) have any interest as owner, sole proprietor, shareholder,
partner, lender, director, officer, manager, employee, consultant, agent or
otherwise in any business competitive with the Company's Business; provided,
however,
that
the Director may hold, directly or indirectly, solely as an investment, not
more
than two percent (2%) of the outstanding securities of any person or entity
which are listed on any national securities exchange or regularly traded in
the
over-the-counter market notwithstanding the fact that such person or entity
is
engaged in a business competitive with the Company's Business. In addition,
during the Restricted Period, the Director shall not develop any property for
use in the Company's Business on behalf of any person or entity other than
the
Company, its Subsidiaries and Affiliates
7. NOTICE
OF MATERIAL CHANGE IN FINANCIAL CONDITION OF THE COMPANY.
The
Company shall notify Director in writing, at the earliest practicable time,
of
any material adverse change in the financial condition of the
Company.
8. TERMINATION.
With or
without cause, the Company and Director may each terminate this Agreement at
any
time upon ten (10) days written notice, and the Company shall be obligated
to
pay to Director the compensation and expenses due up to the date of the
termination. If the director voluntarily resigns prior to October 1st of any
year after the first year of this agreement, the Company shall be entitled
to
receive, upon written request by the Company, a prorated refund of the portion
of the base fee that relates to the period after the termination date. Such
written request must be submitted within ninety (90) days of the termination
date. Nothing contained herein or omitted herefrom shall prevent the
shareholder(s) of the Company from removing Director with immediate effect
at
any time for any reason.
9. INDEMNIFICATION.
The
Company shall indemnify, defend and hold harmless Director, to the full extent
allowed by the law of the State of Nevada, and as provided by, or granted
pursuant to, any charter provision, bylaw provision, agreement (including,
without limitation, the Indemnification Agreement executed herewith), vote
of
stockholders or disinterested directors or otherwise, both as to action in
Director’s official capacity and as to action in another capacity while holding
such office. The Company and the Director are executing the Indemnification
Agreement in the form attached hereto as Exhibit A.
10. EFFECT
OF WAIVER.
The
waiver by either party of the breach of any provision of this Agreement shall
not operate as or be construed as a waiver of any subsequent breach
thereof.
11. NOTICE.
Any and
all notices referred to herein shall be sufficient if furnished in writing
at
the addresses specified on the signature page hereto or, if to the Company,
to
the Company’s address as specified in filings made by the Company with the U.S.
Securities and Exchange Commission and if by fax to 202.318.2502.
12. GOVERNING
LAW.
This
Agreement shall be interpreted in accordance with, and the rights of the parties
hereto shall be determined by, the laws of the State of Nevada without reference
to that state’s conflicts of laws principles.
13. ASSIGNMENT.
The
rights and benefits of the Company under this Agreement shall be transferable,
and all the covenants and agreements hereunder shall inure to the benefit of,
and be enforceable by or against, its successors and assigns. The duties and
obligations of the Director under this Agreement are personal and therefore
Director may not assign any right or duty under this Agreement without the
prior
written consent of the Company.
14. MISCELLANEOUS.
If any
provision of this Agreement shall be declared invalid or illegal, for any reason
whatsoever, then, notwithstanding such invalidity or illegality, the remaining
terms and provisions of the within Agreement shall remain in full force and
effect in the same manner as if the invalid or illegal provision had not been
contained herein.
15. ARTICLE
HEADINGS.
The
article headings contained in this Agreement are for reference purposes only
and
shall not affect in any way the meaning or interpretation of this
Agreement.
16. COUNTERPARTS.
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one instrument. Facsimile execution and delivery
of
this Agreement is legal, valid and binding for all purposes.
IN
WITNESS WHEREOF, the parties hereto have caused this Independent Director’s
Contract to be duly executed and signed as of the day and year first above
written.
NOVASTAR
RESOURCES LTD.
BY:
/s/
Seth Grae
Name: Seth
Grae
Title: CEO
and
President
INDEPENDENT
DIRECTOR
BY:
/s/
Victor E. Alessi
Name: Dr.
Victor E. Alessi
Address: 4612
Demby Drive
Fairfax,
Virginia 22032
EXHIBIT
A
INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement, dated as of the 23rd
day of
August 2006 is made by and between NOVASTAR RESOURCES LTD., a Nevada corporation
(the "Company"), and Dr. Victor E. Alessi, an officer or director of the Company
(the “Indemnitee”).
RECITALS
A. The
Company and the Indemnitee recognize that the present state of the law is too
uncertain to provide the Company's officers and directors with adequate and
reliable advance knowledge or guidance with respect to the legal risks and
potential liabilities to which they may become personally exposed as a result
of
performing their duties for the Company;
B. The
Company and the Indemnitee are aware of the substantial growth in the number
of
lawsuits filed against corporate officers and directors in connection with
their
activities in such capacities and by reason of their status as
such;
C. The
Company and the Indemnitee recognize that the cost of defending against such
lawsuits, whether or not meritorious, is typically beyond the financial
resources of most officers and directors of the Company;
D. The
Company and the Indemnitee recognize that the legal risks and potential
liabilities, and the threat thereof, associated with proceedings filed against
the officers and directors of the Company bear no reasonable relationship to
the
amount of compensation received by the Company's officers and
directors;
E. The
Company, after reasonable investigation prior to the date hereof, has determined
that the liability insurance coverage available to the Company as of the date
hereof is inadequate, unreasonably expensive or both. The Company believes,
therefore, that the interest of the Company and its current and future
shareholders would be best served by a combination of (i) such insurance as
the
Company may obtain pursuant to the Company's obligations hereunder and (ii)
a
contract with its officers and directors, including the Indemnitee, to indemnify
them to the fullest extent permitted by law (as in effect on the date hereof,
or, to the extent any amendment may expand such permitted indemnification,
as
hereafter in effect) against personal liability for actions taken in the
performance of their duties to the Company;
F. Section
78.7502 of the Nevada Revised Statutes empowers Nevada corporations to indemnify
their officers and directors and further states that the indemnification
provided by Section 78.7502 shall not be deemed exclusive of any other rights
to
which those seeking
indemnification may be entitled under the articles of incorporation or any
bylaw, agreement, vote of shareholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in another capacity
while holding such office; thus, Section 78.7502 does not by itself limit the
extent to which the Company may indemnify persons serving as its officers and
directors;
G. The
Company's Articles of Incorporation and Bylaws authorize the indemnification
of
the officers and directors of the Company in excess of that expressly permitted
by Section 78.7502;
H. The
Board
of Directors of the Company has concluded that, to retain and attract talented
and experienced individuals to serve as officers and directors of the Company
and to encourage such individuals to take the business risks necessary for
the
success of the Company, it is necessary for the Company to contractually
indemnify its officers and directors, and to assume for itself liability for
expenses and damages in connection with claims against such officers and
directors in connection with their service to the Company, and has further
concluded that the failure to provide such contractual indemnification could
result in great harm to the Company and its shareholders;
I. The
Company desires and has requested the Indemnitee to serve or continue to serve
as a director or officer of the Company, free from undue concern for the risks
and potential liabilities associated with such services to the Company;
and
J. The
Indemnitee is willing to serve, or continue to serve, the Company, provided,
and
on the expressed condition, that she is furnished with the indemnification
provided for herein.
AGREEMENT
NOW,
THEREFORE, the Company and Indemnitee agree as follows:
1. DEFINITIONS.
(a) “EXPENSES”
means, for the purposes of this Agreement, all direct and indirect costs of
any
type or nature whatsoever (including, without limitation, any fees and
disbursements of Indemnitee's counsel, accountants and other experts and other
out-of-pocket costs) actually and reasonably incurred by the Indemnitee in
connection with the investigation, preparation, defense or appeal of a
Proceeding; provided, however, that Expenses shall not include judgments, fines,
penalties or amounts paid in settlement of a Proceeding.
(b) “PROCEEDING”
means, for the purposes of this Agreement, any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or investigative
(including an action brought by or in the right of the Company) in which
Indemnitee may be or may have been involved as a party or otherwise, by reason
of the fact that Indemnitee is or was a director or officer of the Company,
by
reason of any action taken by her or of any inaction on her part while acting
as
such director or officer or by reason of the fact that she is or was serving
at
the request of the Company as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust or other
enterprise, or was a director or officer of the foreign or domestic corporation
which was a predecessor corporation to the Company or of another enterprise
at
the request of such predecessor corporation, whether or not she is serving
in
such capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided under this
Agreement.
2. AGREEMENT
TO SERVE.
Indemnitee
agrees to serve or continue to serve as a director or officer of the Company
to
the best of her abilities at the will of the Company or under separate contract,
if such contract exists, for so long as Indemnitee is duly elected or appointed
and qualified or until such time as she tenders her resignation in writing.
Nothing contained in this Agreement is intended to create in Indemnitee any
right to continued employment.
3. INDEMNIFICATION.
(a) THIRD
PARTY PROCEEDINGS. The Company shall indemnify Indemnitee against Expenses,
judgments, fines, penalties or amounts paid in settlement (if the settlement
is
approved in advance by the Company) actually and reasonably incurred by
Indemnitee in connection with a Proceeding (other than a Proceeding by or in
the
right of the Company) if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the best interests of the Company,
and,
with respect to any criminal action or proceeding, had no reasonable cause
to
believe Indemnitee's conduct was unlawful. The termination of any Proceeding
by
judgment, order, settlement, conviction, or upon a plea of NOLO CONTENDERE
or
its equivalent, shall not, of itself, create a presumption that Indemnitee
did
not act in good faith and in a manner which Indemnitee reasonably believed
to be
in the best interests of the Company, or, with respect to any criminal
Proceeding, had no reasonable cause to believe that Indemnitee's conduct was
unlawful.
(b) PROCEEDINGS
BY OR IN THE RIGHT OF THE COMPANY. To the fullest extent permitted by law,
the
Company shall indemnify Indemnitee against Expenses and amounts paid in
settlement, actually and reasonably incurred by Indemnitee in connection with
a
Proceeding by or in the right of the Company to procure a judgment in its favor
if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed
to be in the best interests of the Company and its shareholders. Notwithstanding
the foregoing, no indemnification shall be made in respect of any claim, issue
or matter as to which Indemnitee shall have been adjudged liable to the Company
in the performance of Indemnitee's duty to the Company and its shareholders
unless and only to the extent that the court in which such action or proceeding
is or was pending shall determine upon application that, in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for expenses and then only to the extent that the court shall
determine.
(c) SCOPE.
Notwithstanding any other provision of this Agreement but subject to SECTION
14(b), the Company shall indemnify the Indemnitee to the fullest extent
permitted by law, notwithstanding that such indemnification is not specifically
authorized by other provisions of this Agreement, the Company's Articles of
Incorporation, the Company's Bylaws or by statute.
4. LIMITATIONS
ON INDEMNIFICATION.
Any
other
provision herein to the contrary notwithstanding, the Company shall not be
obligated pursuant to the terms of this Agreement:
(a) EXCLUDED
ACTS. To indemnify Indemnitee for any acts or omissions or transactions from
which a director may not be relieved of liability under applicable
law;
(b) EXCLUDED
INDEMNIFICATION PAYMENTS. To indemnify or advance Expenses in violation of
any
prohibition or limitation on indemnification under the statutes, regulations
or
rules promulgated by any state or federal regulatory agency having jurisdiction
over the Company.
(c) CLAIMS
INITIATED BY INDEMNITEE. To indemnify or advance Expenses to Indemnitee with
respect to Proceedings or claims initiated or brought voluntarily by Indemnitee
and not by way of defense, except with respect to proceedings brought to
establish or enforce a right to indemnification under this Agreement or any
other statute or law or otherwise as required under Section 78.7502 of the
Nevada Revised Statutes, but such indemnification or advancement of Expenses
may
be provided by the Company in specific cases if the Board of Directors has
approved the initiation or bringing of such suit;
(d) LACK
OF
GOOD FAITH. To indemnify Indemnitee for any Expenses incurred by the Indemnitee
with respect to any proceeding instituted by Indemnitee to enforce or interpret
this Agreement, if a court of competent jurisdiction determines that each of
the
material assertions made by the Indemnitee in such proceeding was not made
in
good faith or was frivolous;
(e) INSURED
CLAIMS. To indemnify Indemnitee for Expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes
or penalties, and amounts paid in settlement) which have been paid directly
to
or on behalf of Indemnitee by an insurance carrier under a policy of directors'
and officers' liability insurance maintained by the Company or any other policy
of insurance maintained by the Company or Indemnitee;
(f) CLAIMS
UNDER SECTION 16(b). To indemnify Indemnitee for Expenses and the payment of
profits arising from the purchase and sale by Indemnitee of securities in
violation of Section 16(b) of the Securities Exchange Act of 1934, as amended,
or any similar successor statute.
5. DETERMINATION
OF RIGHT TO INDEMNIFICATION.
Upon
receipt of a written claim addressed to the Board of Directors for
indemnification pursuant to SECTION 3, the Company shall determine by any of
the
methods set forth in Section 78.751 of the Nevada Revised Statutes whether
Indemnitee has met the applicable standards of conduct which makes it
permissible under applicable law to indemnify Indemnitee. If a claim under
SECTION 3 is not paid in full by the Company within ninety (90) days after
such
written claim has been received by the Company, the Indemnitee may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim and, unless such action is dismissed by the court as frivolous or brought
in bad faith, the Indemnitee shall be entitled to be paid also the expense
of
prosecuting such claim. The court in which such action is brought shall
determine whether Indemnitee or the Company shall have the burden of proof
concerning whether Indemnitee has or has not met the applicable standard of
conduct.
6. ADVANCEMENT
AND REPAYMENT OF EXPENSES.
Subject
to SECTION 4 hereof, the Expenses incurred by Indemnitee in defending and
investigating any Proceeding shall be paid by the Company in advance of the
final disposition of such Proceeding within 30 days after receiving from
Indemnitee the copies of invoices presented to Indemnitee for such Expenses,
if
Indemnitee shall provide an undertaking to the Company to repay such amount
to
the extent it is ultimately determined that Indemnitee is not entitled to
indemnification. In determining whether or not to make an advance hereunder,
the
ability of Indemnitee to repay shall not be a factor. Notwithstanding the
foregoing, in a proceeding brought by the Company directly, in its own right
(as
distinguished from an action bought derivatively or by any receiver or trustee),
the Company shall not be required to make the advances called for hereby if
the
Board of Directors determines, in its sole discretion, that it does not appear
that Indemnitee has met the standards of conduct which make it permissible
under
Applicable law to indemnify Indemnitee and the advancement of Expenses would
not
be in the best interests of the Company and its shareholders.
7. PARTIAL
INDEMNIFICATION.
If
the
Indemnitee is entitled under any provision of this Agreement to indemnification
or advancement by the Company of some or a portion of any Expenses or
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, penalties, and amounts paid in settlement) incurred by him in the
investigation, defense, settlement or appeal of a Proceeding, but is not
entitled to indemnification or advancement of the total amount thereof, the
Company shall nevertheless indemnify or pay advancements to the Indemnitee
for
the portion of such Expenses or liabilities to which the Indemnitee is entitled.
8. NOTICE
TO
COMPANY BY INDEMNITEE.
Indemnitee
shall notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification hereunder as soon as reasonably
practicable following the receipt by Indemnitee of written notice thereof;
provided, however, that any delay in so notifying the Company shall not
constitute a waiver by Indemnitee of her rights hereunder. The written
notification to the Company shall be addressed to the Board of Directors and
shall include a description of the nature of the Proceeding and the facts
underlying the Proceeding and be accompanied by copies of any documents filed
with the court in which the Proceeding is pending. In addition, Indemnitee
shall
give the Company such information and cooperation as it may reasonably require
and as shall be within Indemnitee's power.
9. MAINTENANCE
OF LIABILITY INSURANCE.
(a) Subject
to SECTION 4 hereof, the Company hereby agrees that so long as Indemnitee shall
continue to serve as a director or officer of the Company and thereafter so
long
as Indemnitee shall be subject to any possible Proceeding, the Company, subject
to SECTION 9(B), shall use reasonable commercial efforts to obtain and maintain
in full force and effect directors' and officers' liability insurance (“D&O
Insurance”) which provides Indemnitee the same rights and benefits as are
accorded to the most favorably insured of the Company's directors, if Indemnitee
is a director; or of the Company's officers, if Indemnitee is not a director
of
the Company but is an officer.
(b) Notwithstanding
the foregoing, the Company shall have no obligation to obtain or maintain
D&O Insurance if the Company determines in good faith that such insurance is
not reasonably available, the premium costs for such insurance are
disproportionate to the amount of coverage provided, the coverage provided
by
such insurance is limited by exclusions so as to provide an insufficient
benefit, or the Indemnitee is covered by similar insurance maintained by a
subsidiary or parent of the Company.
(c) If,
at
the time of the receipt of a notice of a claim pursuant to SECTION 8 hereof,
the
Company has D&O Insurance in effect, the Company shall give prompt notice of
the commencement of such Proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of the Indemnitee, all amounts payable as a result of such Proceeding in
accordance with the terms of such policies.
10. DEFENSE
OF CLAIM.
In
the
event that the Company shall be obligated under SECTION 6 hereof to pay the
Expenses of any Proceeding against Indemnitee, the Company, if appropriate,
shall be entitled to assume the defense of such Proceeding, with counsel
approved by Indemnitee, which approval shall not be unreasonably withheld,
upon
the delivery to Indemnitee of written notice of its election to do so. After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for any fees of counsel subsequently incurred
by
Indemnitee with respect to the same Proceeding, provided that (i) Indemnitee
shall have the right to employ her counsel in any such Proceeding at
Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee
has been previously authorized by the Company, or (B) Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of such defense or (C) the Company
shall not, in fact, have employed counsel to assume the defense of such
Proceeding, then the fees and expenses of Indemnitee's counsel shall be at
the
expense of the Company.
11. ATTORNEYS'
FEES.
In
the
event that Indemnitee or the Company institutes an action to enforce or
interpret any terms of this Agreement, the Company shall reimburse Indemnitee
for all of the Indemnitee's reasonable fees and expenses in bringing and
pursuing such action or defense, unless as part of such action or defense,
a
court of competent jurisdiction determines that the material assertions made
by
Indemnitee as a basis for such action or defense were not made in good faith
or
were frivolous.
12. CONTINUATION
OF OBLIGATIONS.
All
agreements and obligations of the Company contained herein shall continue during
the period the Indemnitee is a director or officer of the Company, or is or
was
serving at the request of the Company as a director, officer, fiduciary,
employee or agent of another corporation, partnership, joint venture, trust
or
other enterprise, and shall continue thereafter so long as the Indemnitee shall
be subject to any possible proceeding by reason of the fact that Indemnitee
served in any capacity referred to herein.
13. SUCCESSORS
AND ASSIGNS.
This
Agreement establishes contract rights that shall be binding upon, and shall
inure to the benefit of, the successors, assigns, heirs and legal
representatives of the parties hereto.
14. NON-EXCLUSIVITY.
(a) The
provisions for indemnification and advancement of expenses set forth in this
Agreement shall not be deemed to be exclusive of any other rights that the
Indemnitee may have under any provision of law, the Company's Articles of
Incorporation or Bylaws, the vote of the Company's shareholders or disinterested
directors, other agreements or otherwise, both as to action in her official
capacity and action in another capacity while occupying her position as a
director or officer of the Company.
(b) In
the
event of any changes, after the date of this Agreement, in any applicable law,
statute, or rule which expand the right of a Nevada corporation to indemnify
its
officers and directors, the Indemnitee's rights and the Company's obligations
under this Agreement shall be expanded to the full extent permitted by such
changes. In the event of any changes in any applicable law, statute or rule,
which narrow the right of a Nevada corporation to indemnify a director or
officer, such changes, to the extent not otherwise required by such law, statute
or rule to be applied to this Agreement, shall have no effect on this Agreement
or the parties' rights and obligations hereunder.
15. EFFECTIVENESS
OF AGREEMENT.
To
the
extent that the indemnification permitted under the terms of certain provisions
of this Agreement exceeds the scope of the indemnification provided for in
the
Nevada Revised Statutes, such provisions shall not be effective unless and
until
the Company's Articles of Incorporation authorize such additional rights of
indemnification. In all other respects, the balance of this Agreement shall
be
effective as of the date set forth on the first page and may apply to acts
of
omissions of Indemnitee which occurred prior to such date if Indemnitee was
an
officer, director, employee or other agent of the Company, or was serving at
the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, at the
time
such act or omission occurred.
16. SEVERABILITY.
Nothing
in this Agreement is intended to require or shall be construed as requiring
the
Company to do or fail to do any act in violation of applicable law. The
Company's inability, pursuant to court order, to perform its obligations under
this Agreement shall not constitute a breach of this Agreement. The provisions
of this Agreement shall be severable as provided in this SECTION 16. If this
Agreement or any portion hereof shall be invalidated on any ground by any court
of competent jurisdiction, then the Company shall nevertheless indemnify
Indemnitee to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated, and the balance of this
Agreement not so invalidated shall be enforceable in accordance with its
terms.
17.
GOVERNING LAW.
This
Agreement shall be interpreted and enforced in accordance with the laws of
the
State of Nevada, without reference to its conflict of law principals. To the
extent permitted by applicable law, the parties hereby waive any provisions
of
law which render any provision of this Agreement unenforceable in any respect.
18. NOTICE.
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed duly given (i) if delivered by hand and
receipted for by the party addressee or (ii) if mailed by certified or
registered mail with postage prepaid, on the third business day after the
mailing date. Addresses for notice to either party are as shown on the signature
page of this Agreement, or as subsequently modified by written
notice.
19. MUTUAL
ACKNOWLEDGMENT.
Both
the
Company and Indemnitee acknowledge that in certain instances, federal law or
applicable public policy may prohibit the Company from indemnifying its
directors and officers under this Agreement or otherwise. Indemnitee understands
and acknowledges that the Company has undertaken or may be required in the
future to undertake with the appropriate state or federal regulatory agency
to
submit for approval any request for indemnification, and has undertaken or
may
be required in the future to undertake with the Securities and Exchange
Commission to submit the question of indemnification to a court in certain
circumstances for a determination of the Company's right under public policy
to
indemnify Indemnitee.
20. COUNTERPARTS.
This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original.
21. AMENDMENT
AND TERMINATION.
No
amendment, modification, termination or cancellation of this Agreement shall
be
effective unless in writing signed by both parties hereto.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
set forth above.
|
COMPANY:
NOVASTAR
RESOURCES LTD.
By:
/s/ Seth Grae
Name:
SETH GRAE
Title:
CHIEF EXECUTIVE OFFICER
Address: 8300
Greensboro Drive, Suite 800
McLean,
VA 22102
|
INDEMNITEE:
/s/ Victor E. Alessi
DR.
VICTOR E. ALESSI
Address:
4612 Demby Drive
Fairfax, Virginia 22032
|
Exhibit
10.2
NOVASTAR
RESOURCES LTD.
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
NOTICE
OF GRANT
Capitalized
but otherwise undefined terms in this Notice of Grant and the attached Stock
Option Agreement shall have the same defined meanings as in the Second Amended
and Restated 2006 Stock Plan (the “Plan”).
Name:
Victor
E. Alessi Address: c/o
Novastar Resources Ltd.,
8300
Greensboro Drive, Suite 800,
McLean,
VA 22102
You
have
been granted an option (the “Option”) to purchase Common Stock of the
Corporation, subject to the terms and conditions of the Plan and the attached
Stock Option Agreement, as follows:
Date
of
Grant: August
21, 2006
Vesting
Commencement Date: September
21, 2006
Option
Price per Share:
$0.50
Total
Number of Shares Granted: 500,000
Total Option Price: $250,000
Total Option Price: $250,000
Type
of
Option: Incentive
Stock Option
Term/Expiration
Date: Ten
(10)
years after Date of Grant
Vesting
Schedule:
The
Option shall vest, in whole or in part, in accordance with the following
schedule:
The
Option shall vest with respect to 1/36 of the Total Number of Shares Granted
(as
specified above) on the Vesting Commencement Date and shall thereafter vest
1/36
on the first day of each month until all shares underlying the Option have
vested. The
Option shall immediately and automatically vest in full upon the termination
of
the Optionee’s employment by the Company without Cause. For purposes of this
Notice of Grant, the term “Cause” shall have the meaning given in the Employment
Agreement, between the Optionee and the Company, of even date
herewith.
NOVASTAR
RESOURCES LTD.
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
STOCK
OPTION AGREEMENT
This
STOCK
OPTION AGREEMENT (“Agreement”),
dated as of the 23rd day of August, 2006 is made by and between NOVASTAR
RESOURCES LTD., a Nevada corporation (the “Corporation”), and VICTOR E. ALESSI
(the “Optionee,” which term as used herein shall be deemed to include any
successor to the Optionee by will or by the laws of descent and distribution,
unless the context shall otherwise require).
BACKGROUND
Pursuant
to the Corporation’s Second Amended and Restated 2006 Stock Plan (the “Plan”),
the Corporation, acting through the Committee of the Board of Directors (if
a
committee has been formed to administer the Plan) or its entire Board of
Directors (if no such committee has been formed) responsible for administering
the Plan (in either case, referred to herein as the “Committee”), approved the
issuance to the Optionee, effective as of the date set forth above, of a
stock
option to purchase shares of Common Stock of the Corporation at the price
(the
“Option Price”) set forth in the attached Notice of Grant (which is expressly
incorporated herein and made a part hereof, the “Notice of Grant”), upon the
terms and conditions hereinafter set forth.
NOW,
THEREFORE,
in
consideration of the mutual premises and undertakings hereinafter set forth,
the
parties hereto agree as follows:
1. Option;
Option Price.
On
behalf of the Corporation, the Committee hereby grants to the Optionee the
option (the “Option”) to purchase, subject to the terms and conditions of this
Agreement and the Plan (which is incorporated by reference herein and which
in
all cases shall control in the event of any conflict with the terms, definitions
and provisions of this Agreement), that number of shares of Common Stock
of the
Corporation set forth in the Notice of Grant, at an exercise price per share
equal to the Option Price as is set forth in the Notice of Grant (the “Optioned
Shares”). If designated in the Notice of Grant as an “incentive stock option,”
the Option is intended to qualify for Federal income tax purposes as an
“incentive stock option” within the meaning of Section 422 of the Code. A copy
of the Plan as in effect on the date hereof has been supplied to the Optionee,
and the Optionee hereby acknowledges receipt thereof.
2. Term.
The term
(the “Option Term”) of the Option shall commence on the date of this Agreement
and shall expire on the Expiration Date set forth in the Notice of Grant
unless
such Option shall theretofore have been terminated in accordance with the
terms
of the Notice of Grant, this Agreement or of the Plan.
3. Time
of Exercise.
(a) Unless
accelerated in the discretion of the Committee or as otherwise provided herein,
the Option shall become exercisable during its term in accordance with the
Vesting
(b)Schedule
set out in the Notice of Grant. Subject to the provisions of Sections 5 and
8
hereof, shares as to which the Option becomes exercisable pursuant to the
foregoing provisions may be purchased at any time thereafter prior to the
expiration or termination of the Option.
(c) Anything
contained in this Agreement to the contrary notwithstanding, to the extent
the
Option is intended to be an Incentive Stock Option, the Option shall not
be
exercisable as an Incentive Stock Option, and shall be treated as a
Non-Statutory Option, to the extent that the aggregate Fair Market Value
on the
date hereof of all stock with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
the Plan and all other plans of the Corporation, its parent and its
subsidiaries, if any) exceeds $100,000.
4. Termination
of Option.
(a)
The
Optionee may exercise the Option (but only to the extent the Option was
exercisable at the time of termination of the Optionee’s employment with the
Corporation, its parent or any of its subsidiaries) at any time within three
(3)
months following the termination of the Optionee’s employment with the
Corporation, its parent or any of its subsidiaries, but not later than the
scheduled expiration date. If the termination of the Optionee’s employment is
for cause or is otherwise attributable to a breach by the Optionee of an
employment, non-competition, non-disclosure or other material agreement,
the
Option shall expire immediately upon such termination. If the Optionee is
a
natural person who dies while in employment with the Corporation, its parent
or
any of its subsidiaries, this option may be exercised, to the extent of the
number of shares with respect to which the Optionee could have exercised
it on
the date of his death, by his estate, personal representative or beneficiary
to
whom this option has been assigned pursuant to Section 9 of the Plan, at
any
time within the twelve (12) month period following the date of death. If
the
Optionee is a natural person whose employment with the Corporation, its parent
or any of its subsidiaries is terminated by reason of his disability, this
Option may be exercised, to the extent of the number of shares with respect
to
which the Optionee could have exercised it on the date the employment was
terminated, at any time within the twelve (12) month period following the
date
of such termination, but not later than the scheduled expiration date. At
the
expiration of such three (3) or twelve (12) month period or the scheduled
expiration date, whichever is the earlier, this Option shall terminate and
the
only rights hereunder shall be those as to which the Option was properly
exercised before such termination.
(b) Anything
contained herein to the contrary notwithstanding, the Option shall not be
affected by any change of duties or position of the Optionee (including a
transfer to or from the Corporation, its parent or any of its subsidiaries)
so
long as the Optionee continues in a Business Relationship with the Corporation,
its parent or any of its subsidiaries.
5. Procedure
for Exercise.
(a) The
Option may be exercised, from time to time, in whole or in part (but for
the
purchase of whole shares only), by delivery of a written notice in the form
attached as Exhibit
A
hereto
(the “Notice”) from the Optionee to the Secretary of the Corporation, which
Notice shall:
(b)
State
that the Optionee elects to exercise the Option;
(i) state
the
number of shares with respect to which the Option is being exercised (the
“Optioned Shares”);
(ii) state
the
method of payment for the Optioned Shares pursuant to Section 5(b);
(iii) state
the
date upon which the Optionee desires to consummate the purchase of the Optioned
Shares (which date must be prior to the termination of such Option and no
later
than 30 days from the delivery of such Notice);
(iv) include
any representations of the Optionee required under Section 8(b);
(v) if
the
Option shall be exercised in accordance with Section 9 of the Plan by any
person
other than the Optionee, include evidence to the satisfaction of the Committee
of the right of such person to exercise the Option; and
(c) Payment
of the Option Price for the Optioned Shares shall be made either (i)
by
delivery of cash or a check to the order of the Corporation in an amount
equal
to the Option Price, (ii) if approved by the Committee, by delivery to the
Corporation of shares of Common Stock of the Corporation having a Fair Market
Value on the date of exercise equal in amount to the Option Price of the
options
being exercised, (iii) by any other means which the Board of Directors
determines are consistent with the purpose of the Plan and with applicable
laws
and regulations (including, without limitation, the provisions of Rule 16b-3
and
Regulation T promulgated by the Federal Reserve Board), or (iv) by any
combination of such methods of payment. Notwithstanding
any provisions herein to the contrary, if the Fair Market Value of one share
of
Common Stock of the Corporation is greater than the Option Price (at the
date of
calculation as set forth below), in lieu of paying the Option Price in cash,
the
Optionee may elect to receive shares equal to the value (as determined below)
of
the Optioned Shares by delivering notice of such election to the Corporation
in
which event the Corporation shall issue to the Optionee a number of shares
of
Common Stock computed using the following formula:
X
=
Y(A-B)
A
Where X = the
number of shares of Common Stock to be issued to the Optionee
|
Y
|
=
|
the
number of Optioned Shares
|
|
A
|
=
|
the
Fair Market Value of one share of Common Stock (at the date of
such
calculation)
|
B
=
Option
Price (as adjusted to the date of such calculation)
(d) The
Corporation shall issue a stock certificate in the name of the Optionee (or
such
other person exercising the Option in accordance with the provisions of Section
9 of the Plan) for the Optioned Shares as soon as practicable after receipt
of
the Notice and payment of the aggregate Option Price for such
shares.
6. No
Rights as a Stockholder.
The
Optionee shall not have any privileges of a stockholder of the Corporation
with
respect to any Optioned Shares until the date of issuance of a stock certificate
pursuant to Section 5(c).
7. Adjustments. The
Plan
contains provisions covering the treatment of options in a number of
contingencies such as stock splits and mergers. Provisions in the Plan for
adjustment with respect to stock subject to options and the related provisions
with respect to successors to the business of the Corporation are hereby
made
applicable hereunder and are incorporated herein by reference. In general,
the
Optionee should not assume that options would survive the acquisition of
the
Corporation.
8. Additional
Provisions Related to Exercise.
(a) The
Option shall be exercisable only on such date or dates and during such period
and for such number of shares of Common Stock as are set forth in this
Agreement.
(b) To
exercise the Option, the Optionee shall follow the procedures set forth in
Section 5 hereof. Upon the exercise of the Option at a time when there is
not in
effect a registration statement under the Securities Act of 1933, as amended
(the “Securities Act”), relating to the shares of Common Stock issuable upon
exercise of the Option, the Committee in its discretion may, as a condition
to
the exercise of the Option, require the Optionee (i) to execute an Investment
Representation Statement substantially in the form set forth in Exhibit
B
hereto
and (ii) to make such other representations and warranties as are deemed
appropriate by counsel to the Corporation.
(c) Stock
certificates representing shares of Common Stock acquired upon the exercise
of
Options that have not been registered under the Securities Act shall, if
required by the Committee, bear an appropriate restrictive legend referring
to
the Securities Act. No shares of Common Stock shall be issued and delivered
upon
the exercise of the Option unless and until the Corporation and/or the Optionee
shall have complied with all applicable Federal or state registration, listing
and/or qualification requirements and all other requirements of law or of
any
regulatory agencies having jurisdiction.
9. No
Evidence of Employment or Service.
Nothing
contained in the Plan or this Agreement shall confer upon the Optionee any
right
to continue in employment with the Corporation, its parent or any of its
subsidiaries or interfere in any way with the right of the Corporation, its
parent or its subsidiaries (subject to the terms of any separate agreement
to
the contrary) to terminate the Optionee’s employment or to increase or decrease
the Optionee’s compensation at any time.
10. Restriction
on Transfer.
The
Option may not be transferred, pledged, assigned, hypothecated or otherwise
disposed of in any way by the Optionee, except by will or by the laws of
descent
and distribution, and may be exercised during the lifetime of the Optionee
only
by the Optionee. If the Optionee dies, the Option shall thereafter be
exercisable, during the period
11.
Specified
in Section 4, by his executors or
administrators to the full extent to which the Option was exercisable by
the
Optionee at the time of his death. The Option shall not be subject to execution,
attachment or similar process. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option contrary to the provisions
hereof, and the levy of any execution, attachment or similar process upon
the
Option, shall be null and void and without effect. The words “transfer” and
“dispose” include without limitation the making of any sale, exchange,
assignment, gift, security interest, pledge or other encumbrance, or any
contract therefor, any voting trust or other agreement or arrangement with
respect to the transfer of any interest, beneficial or otherwise, in the
Option,
the creation of any other claim thereto or any other transfer or disposition
whatsoever, whether voluntary or involuntary, affecting the right, title,
interest or possession with respect to the Option.
12. Specific
Performance.
Optionee expressly agrees that the Corporation will be irreparably damaged
if
the provisions of this Agreement and the Plan are not specifically enforced.
Upon a breach or threatened breach of the terms, covenants and/or conditions
of
this Agreement or the Plan by the Optionee, the Corporation shall, in addition
to all other remedies, be entitled to a temporary or permanent injunction,
without showing any actual damage, and/or decree for specific performance,
in
accordance with the provisions hereof and thereof. The Board of Directors
shall
have the power to determine what constitutes a breach or threatened breach
of
this Agreement or the Plan. Any such determinations shall be final and
conclusive and binding upon the Optionee.
13. Disqualifying
Dispositions.
To the
extent the Option is intended to be an Incentive Stock Option, and if the
Optioned Shares are disposed of within two years following the date of this
Agreement or one year following the issuance thereof to the Optionee (a
“Disqualifying Disposition”), the Optionee shall, immediately prior to such
Disqualifying Disposition, notify the Corporation in writing of the date
and
terms of such Disqualifying Disposition and provide such other information
regarding the Disqualifying Disposition as the Corporation may reasonably
require.
14. Notices.
All
notices or other communications which are required or permitted hereunder
shall
be in writing and sufficient if (i)
personally delivered or sent by telecopy, (ii)
sent by
nationally-recognized overnight courier or (iii)
sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if
to the
Optionee, to the address (or telecopy number) set forth on the Notice of
Grant;
and
if
to the
Corporation, to its principal executive office as specified in any report
filed
by the Corporation with the Securities and Exchange Commission or to such
address as the Corporation may have specified to the Optionee in writing,
Attention: Corporate Secretary.
or
to
such other address as the party to whom notice is to be given may have furnished
to the other party in writing in accordance herewith. Any such communication
shall be deemed to have been given (i) when delivered, if personally delivered,
or when telecopied, if telecopied, (ii) on the first Business Day (as
hereinafter defined) after dispatch, if sent by nationally-recognized overnight
courier and (iii) on the third Business Day following the date on which the
piece of mail containing such communication is posted, if sent by mail. As
used
herein, “Business Day” means a day that is not a Saturday, Sunday or a day on
which banking institutions in the city to which the notice or communication
is
to be sent are not required to be open.
15. No
Waiver.
No
waiver of any breach or condition of this Agreement shall be deemed to be
a
waiver of any other or subsequent breach or condition, whether of like or
different nature.
16. Optionee
Undertaking.
The
Optionee hereby agrees to take whatever additional actions and execute whatever
additional documents the Corporation may in its reasonable judgment deem
necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on the Optionee pursuant to the express
provisions of this Agreement.
17. Modification
of Rights.
The
rights of the Optionee are subject to modification and termination in certain
events as provided in this Agreement and the Plan.
18. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Nevada applicable to contracts made and to be wholly performed
therein, without giving effect to its conflicts of laws principles.
19. Counterparts;
Facsimile Execution.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one
and the
same instrument. Facsimile execution and delivery of this Agreement is legal,
valid and binding execution and delivery for all purposes.
20. Entire
Agreement.
This
Agreement (including the Notice of Grant) and the Plan, and, upon execution,
the
Notice and Investment Representation Statement, constitute the entire agreement
between the parties with respect to the subject matter hereof, and supersede
all
previously written or oral negotiations, commitments, representations and
agreements with respect thereto.
21. Severability.
In the
event one or more of the provisions of this Agreement should, for any reason,
be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal
or
unenforceable provision had never been contained herein.
22. WAIVER
OF JURY TRIAL.
THE
OPTIONEE HEREBY EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Option Agreement as of the date first written
above.
NOVASTAR
RESOURCES LTD.
By:
/s/
Seth Grae
Seth
Grae
President
and Chief Executive Officer
VICTOR
E.
ALESSI
/s/
Victor E. Alessi________________
NOTE
RE: EXHIBITS
EXHIBITS
A AND B ARE TO BE SIGNED
WHEN
OPTIONS ARE EXERCISED,
NOT
WHEN OPTION AGREEMENT IS SIGNED.
EXHIBIT
A
NOVASTAR
RESOURCES LTD.
SECOND
AMENDED AND
RESTATED 2006 STOCK PLAN
EXERCISE
NOTICE
Novastar
Resources Ltd.
Attention:
Chief Executive Officer
1. Exercise
of Option.
Effective as of today, _______________________, 20__ , the undersigned (the
“Optionee”) hereby elects to exercise the Optionee’s option to purchase
________________ shares of the Common Stock (the “Shares”) of Novastar Resources
Ltd. (the “Corporation”) under and pursuant to the Amended and Restated 2006
Stock Plan (the “Plan”) and the Stock Option Agreement dated July 15, 2006 (the
“Stock Option Agreement”), with the purchase of the Shares to be consummated on
______________ ___, ____ (the “Effective Date”), which date is prior to the
termination of the Option and no later than 30 days from the date of delivery
of
this Notice.
2. Representations
of the Optionee.
The
Optionee acknowledges that the Optionee has received, read and understood
the
Plan and the Stock Option Agreement and agrees to abide by and be bound by
their
terms and conditions.
3. Rights
as Shareholder; Shares Subject to Stockholders Agreement.
Until
the stock certificate evidencing such Shares is issued (as evidenced by the
appropriate entry on the books of the Corporation or of a duly authorized
transfer agent of the Corporation), no right to vote or receive dividends
or any
other rights as a stockholder shall exist with respect to the Shares,
notwithstanding the exercise of the Option. The Corporation shall issue (or
cause to be issued) such stock certificate promptly after the Effective Date,
provided the applicable price has been paid and the required documents have
been
received. No adjustment will be made for a dividend or other right for which
the
record date is prior to the date the stock certificate is issued, except
as
otherwise provided in the Plan. Unless waived by the Corporation in writing,
the
Shares shall automatically become subject to the terms and conditions of
any
stockholders agreement or similar agreement to which a majority of the
outstanding capital stock of the Corporation is subject at the time of exercise
and the Optionee shall sign as a condition to the issuance of the Shares
such
joinder agreement, signature pages or other documents in order to evidence
the
Optionee’s agreement to be so bound.
4. Tax
Consultation.
The
Optionee understands that the Optionee may suffer adverse tax consequences
as a
result of the Optionee’s purchase or disposition of the Shares. The Optionee
represents that the Optionee has consulted with any tax consultants the Optionee
deems advisable in connection with the purchase or disposition of the Shares
and
that the Optionee is not relying on the Corporation for any tax
advice.
5. Successors
and Assigns.
The
Corporation may assign any of its rights under the Stock Option Agreement
to
single or multiple assignees (who may be stockholders, officers, directors,
employees or consultants of the Corporation), and this Agreement shall inure
to
the benefit of the successors and assigns of the Corporation. Subject to
the
restrictions on transfer set forth in the Stock Option Agreement, this Agreement
shall be binding upon the Optionee and his or her heirs, executors,
administrators, successors and assigns.
6. Interpretation.
Any
dispute regarding the interpretations of this Agreement shall be submitted
by
the Optionee or by the Corporation forthwith to the Committee, which shall
review such dispute at its next regular meeting. The resolution of such a
dispute by the Committee shall be final and binding on the Corporation and
on
the Optionee.
7. Governing
Laws: Severability.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York applicable to contracts made and to be wholly performed
therein, without giving effect to its conflicts of laws principles. Should
any
provision of this Agreement be determined by a court of law to be illegal
or
unenforceable, the other provisions shall nevertheless remain effective and
shall remain enforceable.
8. Notices.
Any
notice required or permitted hereunder shall be given in writing and shall
be
deemed effectively given if given in the manner specified in the Stock Option
Agreement.
9. Further
Instruments.
The
parties agree to execute such further instruments and to take such further
action as may be reasonably necessary to carry out the purposes and intent
of
this Agreement.
10. Delivery
of Payment.
The
Optionee herewith delivers to the Corporation the full Option Price for the
Shares.
11. Entire
Agreement.
The
Plan, the Notice of Grant, and the Stock Option Agreement are incorporated
herein by reference. This Agreement, the Plan, the Notice of Grant, the Stock
Option Agreement, and the Investment Representation Statement constitute
the
entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Corporation and the Optionee with respect
to
the subject matter hereof.
Submitted
by: Accepted
by:
VICTOR
E.
ALESSI NOVASTAR
RESOURCES LTD.
By:_____________________________
___________________________ Its:______________________________
EXHIBIT
B
NOVASTAR
RESOURCES LTD.
SECOND
AMENDED AND RESTATED 2006 STOCK PLAN
INVESTMENT
REPRESENTATION STATEMENT
OPTIONEE : ___________________________________
CORPORATION : NOVASTAR
RESOURCES LTD.
SECURITY : Common
Stock
AMOUNT : ___________________________________
DATE
: ___________________________________
In
connection with the purchase of the above-listed Securities, the undersigned
Optionee represents to the Corporation the following:
(a) The
Optionee is aware of the Corporation’s business affairs and financial condition
and has acquired sufficient information about the Corporation to reach an
informed and knowledgeable decision to acquire the Securities. The Optionee
is
acquiring these Securities for investment for the Optionee’s own account only
and not with a view to, or for resale in connection with, a “distribution”
thereof within the meaning of the Securities Act of 1933, as amended (the
“Securities Act”).
(b) The
Optionee acknowledges and understands that the Securities constitute “restricted
securities” under the Securities Act and have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of the Optionee’s
investment intent as expressed herein. In this connection, the Optionee
understands that, in the view of the Securities and Exchange Commission,
the
statutory basis for such exemption may be unavailable if the Optionee’s
representation was predicated solely upon a present intention to hold these
Securities for the minimum capital gains period specified under tax statutes,
for a deferred sale, for or until an increase or decrease in the market price
of
the Securities, or for a period of one year or any other fixed period in
the
future. The Optionee further understands that the Securities must be held
indefinitely unless they are subsequently registered under the Securities
Act or
an exemption from such registration is available. The Optionee further
acknowledges and understands that the Corporation is under no obligation
to
register the Securities. The Optionee understands that the certificate
evidencing the Securities will be imprinted with a legend which prohibits
the
transfer of the Securities unless they are registered or such registration
is
not required in the opinion of counsel satisfactory to the Corporation and
other
legends required under the applicable state or federal securities
laws.
Signature
of Optionee: _____________________________
VICTOR
E.
ALESSI
Date:__________________
Exhibit
99.1
Alessi
Press Release
Novastar
Resources Appoints Dr. Victor E. Alessi to its Board of
Directors
Washington
D.C. (August 23, 2006) -- Novastar Resources Ltd. (OTCBB: NVAS) today announced
that Dr. Victor E. Alessi, President Emeritus of the United States Industry
Coalition (USIC), has been appointed to the company’s Board of
Directors.
Seth
Grae
President of Novastar commented, “We are very pleased to have attracted as
accomplished an individual as Dr. Alessi. His vast experience dealing with
such
issues arms control, nonproliferation and international security affairs
will
make him an invaluable resource and addition to Novastar’s Board of Directors.”
Dr.
Alessi graduated with a B.A. in physics in 1963 from Fordham University,
where
he also earned a licentiate in Philosophy (Ph.L.) in 1964. Dr. Alessi went
on to
study nuclear physics at Georgetown University, receiving his M.S. in 1968
and
his Ph.D. in 1969.
Dr.
Alessi is currently President Emeritusof the USIC, an organization
dedicated to facilitating the commercialization of technologies of the New
Independent States (NIS) of the former Soviet Union through cooperation with
its
members. Previously, he was President of DynMeridian, a subsidiary of DynCorp,
specializing in arms control, nonproliferation, and international security
affairs. Before joining DynMeridian in early 1996, Dr. Alessi was the Executive
Assistant to the Director, U.S. Arms Control and Disarmament Agency (ACDA).
At
ACDA he oversaw day-to-day operations, preparation of the Agency’s budget, and
its contribution to the National Performance Review. He resolved inter-bureau
disputes, and advised the Director on all arms control and nonproliferation
issues.
Dr.
Alessi served as Director of the Office of Arms Control and Nonproliferation
in
the Department of Energy (DOE) prior to his work at ACDA. His duties included
overseeing all DOE arms control and nonproliferation activities and, until
1993,
he was responsible for developing and monitoring a $200M research and
development (R&D) program that supported his office’s responsibilities. This
R&D program involved hundreds of scientists and engineers at DOE national
laboratories, and covered the entire range of R&D from advanced concepts
research extending the frontiers of science and technology to the development
of
systems based on existing technologies.
As
senior
DOE representative, Dr. Alessi participated in U.S. efforts that led to
successful conclusion of the Intermediate Nuclear Forces (INF), Conventional
Forces in Europe, Threshold Test Ban, Peaceful Nuclear Explosions, Open Skies,
Strategic Arms Reductions Talks (START) Treaties and the Chemical Weapons
Convention. In this role, he was instrumental in implementing the U.S.
unilateral nuclear initiative in 1991 and was a member of the U.S. delegation
discussing nuclear disarmament with Russia and other states of the former
Soviet
Union. He was in charge of DOE’s support to the U.N. Special Commission on Iraq,
to the Nunn-Lugar Initiative, and represented DOE in discussions on the
Comprehensive Test Ban (CTB) with the other nuclear weapons states before
the
CTB negotiations began in Geneva in 1994.
Dr.
Alessi has been the U.S. board member to the International Science and
Technology Center in Moscow since its founding. He is also the U.S. board
member
to the Science and Technology Center in Ukraine.
Before
joining DOE in 1987, he was the Chief of the Strategic Affairs Division of
ACDA.
In that capacity, he was responsible for START, Antisatellite Arms Control,
Defense and Space negotiations, and the Standing Consultative Commission
(SCC).
Also, he served on the SALT II, START, and INF delegations.
On
February 14, 2006 Novastar Resources signed a definitive merger agreement
with
Thorium Power, Inc. to combine the two companies. Shareholders of Thorium
Power,
Inc. recently approved the merger with Novastar Resources. The name of the
Company will change to Thorium Power Ltd. and a new trading symbol will be
requested.
About
Novastar Resources
Novastar
Resources is a publicly traded company within the commercial mining sector
and
is a commercial mining firm engaged in the exploration of thorium, a naturally
occurring metal that can be used to provide nuclear energy, with
non-proliferation, waste and economic advantages, in comparison to standard
uranium fuels. Novastar Resources' stock is traded and quoted on the OTC
Bulletin Board under the symbol ``NVAS.OB''. Further information is available
on
Novastar Resources' website at http://www.novastarresources.com.
About
Thorium Power
Thorium
Power was founded in 1992 to develop technology invented by Dr. Alvin Radkowsky,
the first chief scientist of the U.S. Naval Reactors program under Admiral
H.G.
Rickover from 1950-1972 and head of the design team of the first commercial
nuclear power plant in Shippingport, Pennsylvania. Thorium Power was formed
to
develop and deploy nuclear fuel designs developed by Dr. Radkowsky to stop
the
production of weapons suitable plutonium and eliminate existing plutonium
stockpiles. Thorium Power has been collaborating with nuclear scientists
and
engineers at Russia's prestigious Kurchatov Institute since 1994. For more
information, please visit http://www.thoriumpower.com.
DISCLAIMER
This
press release may include certain statements that are not descriptions of
historical facts, but are forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. These forward-looking statements may include the
description of our plans and objectives for future operations, assumptions
underlying such plans and objectives, statements regarding benefits of the
proposed merger and other forward-looking terminology such as ``may'',
``expects'', ``believes'', ``anticipates'', ``intends'', ``expects'',
``projects'' or similar terms, variations of such terms or the negative of
such
terms. There are a number of risks and uncertainties that could cause actual
results to differ materially from the forward-looking statements made herein.
These risks, as well as other risks associated with the merger, will be more
fully discussed in any joint proxy statement or prospectus or other relevant
document filed with the Securities and Exchange Commission in connection
with
the proposed merger. Such information is based upon various assumptions made
by,
and expectations of, our management that were reasonable when made but may
prove
to be incorrect. All of such assumptions are inherently subject to significant
economic and competitive uncertainties and contingencies beyond our control
and
upon assumptions with respect to the future business decisions which are
subject
to change. Accordingly, there can be no assurance that actual results will
meet
expectations and actual results may vary (perhaps materially) from certain
of
the results anticipated herein.
Contact:
Novastar
Resources Ltd.
Mr.
Seth
Shaw, Director of Strategic Planning
(917)
796-9926
http://www.novastarresources.com
Source:
Novastar Resources Ltd.