-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VTRCqXqyM/o3uxrHamYIlPo2ggdY4AKek4ehJmVYd6/Ule4hizbaJWhwibKKEB2H 5M3ix5V3euJUXMvw41paNw== 0001304459-05-000173.txt : 20050422 0001304459-05-000173.hdr.sgml : 20050422 20050422130915 ACCESSION NUMBER: 0001304459-05-000173 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050422 DATE AS OF CHANGE: 20050422 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Tuller Kenneth N CENTRAL INDEX KEY: 0001308088 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: BUSINESS PHONE: 775-359-7722 MAIL ADDRESS: STREET 1: 101 BROWNSTONE DRIVE CITY: RENO STATE: NV ZIP: 89512 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Battle Mountain Gold Exploration Corp. CENTRAL INDEX KEY: 0001162177 STANDARD INDUSTRIAL CLASSIFICATION: GOLD & SILVER ORES [1040] IRS NUMBER: 861066675 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-80164 FILM NUMBER: 05766730 BUSINESS ADDRESS: STREET 1: SIXTH FLOOR, SUITE 9 STREET 2: ONE EAST LIBERTY STREET CITY: RENO STATE: NV ZIP: 89504 BUSINESS PHONE: 7756866081 MAIL ADDRESS: STREET 1: SIXTH FLOOR, SUITE 9 STREET 2: ONE EAST LIBERTY STREET CITY: RENO STATE: NV ZIP: 89504 FORMER COMPANY: FORMER CONFORMED NAME: HUDSON VENTURES INC DATE OF NAME CHANGE: 20011113 SC 13D 1 doc1.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 BATTLE MOUNTAIN GOLD EXPLORATION CORP. (NAME OF ISSUER) COMMON STOCK, PAR VALUE $0.001 PER SHARE (TITLE OF CLASS OF SECURITIES) 07159T 10 0 (CUSIP NUMBER) KENNETH N. TULLAR 101 BROWNSTONE DRIVE RENO, NEVADA 89512 (775) 359-7722 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS) September 9, 2004 (DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sec. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] The information required in the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act. |1| NAMES OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Kenneth N. Tullar - -------------------------------------------------------------------------------- | | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP * (a)[ ] (b)[ ] - -------------------------------------------------------------------------------- |3| SEC USE ONLY - -------------------------------------------------------------------------------- |4| SOURCE OF FUNDS* SC and PF - -------------------------------------------------------------------------------- |5| CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- |6| CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- |7| SOLE VOTING POWER NUMBER OF 2,100,000 SHARES --------------------------------------------------- BENEFICIALLY |8| SHARED VOTING POWER OWNED BY EACH N/A REPORTING --------------------------------------------------- PERSON WITH |9| SOLE DISPOSITIVE POWER 2,100,000 - -------------------------------------------------------------------------------- |10| SHARED DISPOSITIVE POWER N/A - -------------------------------------------------------------------------------- |11| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,300,000 - -------------------------------------------------------------------------------- |12| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES * N/A - -------------------------------------------------------------------------------- |13| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.6% - -------------------------------------------------------------------------------- |14| TYPE OF REPORTING PERSON * IN - -------------------------------------------------------------------------------- ITEM 1. Security and Issuer This Statement on Schedule 13D relates to the Common Stock of Battle Mountain Gold Exploration Corp. (the "Issuer"). The principal executive offices of Battle Mountain Gold Exploration Corp. are located at One East Liberty Street, 6th Floor, Suite 9, Reno, Nevada 89504. ITEM 2. Identity and Background (a)-(c) This Statement on Schedule 13D is being filed by Kenneth N. Tullar. Mr. Tullar's business address is 101 Brownstone Drive, Reno, Nevada 89512. Mr. Tullar is the Geologist and President of Nevada Gold Exploration Solutions, LLC. (d)-(e) During the last five years, Mr. Tullar: (i) has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) was not a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) Mr. Tullar is a citizen of the United States. ITEM 3. Source of Amount of Funds or Other Compensation On September 9, 2004, Kenneth N. Tullar acquired 200,000 shares of Common Stock of the Issuer pursuant to an Exchange Agreement whereby Battle Mountain Gold Exploration, Inc. ("Battle Mountain") became a wholly-owned subsidiary of the Issuer. Mr. Tullar exchanged an equal number of Battle Mountain shares for the Issuer's shares of Common Stock. There were 38,510,000 shares of the Issuer's Common Stock outstanding immediately after the Exchange. Mr. Tullar purchased 1,900,000 shares of the Issuer's Common Stock from Nikoloas Bekropoulos, a former Director of the Issuer, for nominal consideration. As a result of these transactions, Mr. Tullar became the beneficial owner of an aggregate of 2,100,000 shares (or 5.5%) of the Issuer's Common Stock. On April 8, 2005, the Issuer's board of directors approved the grant of an option to Mr. Tullar to purchase 200,000 shares of the Issuer's Common Stock with an exercise price of $0.40 per share and a vesting date of April 15, 2005. As a result, Mr. Tullar beneficially owns an aggregate of 2,300,000 shares (or 5.6%) of the Issuer's Common Stock based upon 41,030,000 shares outstanding. ITEM 4. Purpose of Transaction Mr. Tullar acquired the securities of the Issuer for investment purposes. Depending on general market and economic conditions affecting the Issuer and other relevant factors, Mr. Tullar may purchase additional securities of the Issuer or dispose of some or all of securities from time to time in open market transactions, private transactions or otherwise. Mr. Tullar does not have any plans or proposals which relate to or result in: (a) the acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; (b) an extraordinary transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or terms of directors or to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of the Issuer; (f) any other material changes in the Issuer's business or corporate structure; (g) changes in the Issuer's charter, bylaws or instruments corresponding thereto, or other actions which may impede the acquisition of control of the Issuer by any person; (h) causing a class of securities of the Issuer to be delisted from a national securities exchange or cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934; or (j) any action similar to any of those enumerated above. ITEM 5. Interest in Securities of the Issuer (a) As of September 9, 2004, Mr. Tullar beneficially owned 2,100,000 shares of Common Stock, $0.001 par value per share of the Issuer. The shares of Common Stock owned by Mr. Tullar constituted approximately 5.5% of the total number of shares of Common Stock of the Issuer, based upon 38,510,000 shares of Common Stock outstanding as of September 9, 2004. As of April 8, 2004, Mr. Tullar owns 2,300,000 shares (or 5.6%) of the Issuer's Common Stock based upon 41,030,000 shares outstanding as of such date. (b) Mr. Tullar has the sole power to vote or to direct the vote, and the sole power to dispose or to direct the disposition of, 2,100,000 of the shares beneficially owned by Mr. Tullar. He will not have such powers with respect to 200,000 shares underlying an option until such time as the option is exercised. (c) Mr. Tullar acquired the Common Stock and the Common Stock underlying the option as a result of the transactions discussed in ITEM 3, above. (d) No other person has the right to receive or the power to direct the receipt of dividends from or the proceeds from the sale of the securities beneficially owned by Mr. Tullar. (e) N/A. ITEM 6. Contracts, Arrangements, Understanding or Relationships with Respect to Securities of the Issuer None. ITEM 7. Material to be Filed as Exhibits Exhibit 1(1) Exchange Agreement Exhibit 2(2) Stock Purchase Agreement between Kenneth Tullar and Nikoloas Bekropoulos Exhibit 3(2) Non-Qualified Stock Option Agreement granted to Kenneth Tullar (1) Filed as an Exhibit 2.1 to the Form 8-K filed on November 19, 2004. (2) Filed herein. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: April 22, 2005 By: /s/ Kenneth N. Tullar --------------------- Kenneth N. Tullar EX-2 2 doc2.txt Exhibit 2 STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made effective as of --------- the 9th day of September, 2004, by and among Nikoloas Bekropoulos (being herein referred to as the "Seller"), Battle Mountain Gold Exploration Corp., a Nevada ------ corporation ("Battle Mountain") and Ken Tullar (being herein referred to as --------------- "Purchaser" or "Tullar"). ------ ------ PRELIMINARY STATEMENTS ---------------------- A. Seller is an individual owning an aggregate of 7,500,000 shares of common stock of Battle Mountain and is willing to sell 1,900,000 shares of common stock of Battle Mountain (the "Common Stock") as part of Seller's disposition of all 7,500,000 shares. B. Seller desires to sell the Common Stock to Purchaser, and Purchaser desires to purchase the Common Stock from Seller, on the terms, provisions and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Seller and Purchaser do hereby agree as follows: ARTICLE I PURCHASE AND SALE OF THE COMMON STOCK ------------------------------------- Section 1.01. Purchase and Sale. On the Closing Date and upon the terms ----------------- and subject to the conditions set forth herein, the Seller shall deliver 1,900,000 shares of Battle Mountain Common Stock to the Purchaser free and clear of all liens, and Purchaser shall purchase the Common Stock from the Seller in accordance with Section 1.02 below. Section 1.02. Purchase Price. The purchase price (the "Purchase Price") -------------- -------------- for the Common Stock is US $19.00. Section 1.03. Time and Place of Closing. Subject to the satisfaction or ------------------------- waiver of the conditions herein, the closing (the "Closing") of the transactions ------- contemplated by this Agreement shall take place on or before September 9, 2004 or at such time, date or place as Seller and Purchaser may agree. Section 1.04. Delivery of the Common Stock; Payment of Purchase Price. At ------------------------------------------------------- Closing: (a) the Seller shall deliver to the Purchaser the certificate(s) representing the Common Stock, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, with all taxes attributable to the transfer and sale of the Common Stock paid by the Seller; and (b) the Purchaser shall deliver to the Seller Purchase Price in accordance with Section 1.02. ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER AND BATTLE MOUNTAIN ------------------------------------------------------------ Subject to all of the terms, conditions and provisions of this Agreement, the Seller and Battle Mountain hereby represent and warrant to Purchaser, as of the date hereof and as of the Closing, as follows: Section 2.01. Organization and Qualification. Battle Mountain is a Nevada ------------------------------ corporation duly organized, validly existing and in good standing under the laws of the State of Nevada. Battle Mountain has all requisite power and authority, corporate or otherwise, to own, lease and operate its assets and properties and to carry on its business as now being conducted. Battle Mountain does not have any subsidiaries or predecessor corporations. Section 2.02. Capitalization of Battle Mountain; Title to the Common ------------------------------------------------------ Stock. There are 200,000,000 shares of common stock authorized of Battle Mountain, of which approximately 26,870,000 shares of common stock are issued and outstanding, $.001 par value per share. All of the outstanding shares of common stock have been duly authorized and validly issued, are fully paid and nonassessable and are free of preemptive rights. The Common Stock transferred by the Seller to Purchaser will be free and clear of liens. There are no outstanding or authorized subscriptions, options, warrants, calls, rights or other similar contracts, including rights of conversion or exchange under any outstanding debt or equity security or other contract, to which any of the Common Stock will be subject or obligating the Seller and/or Battle Mountain to issue, deliver or sell, or cause to be issued, delivered or sold, any other shares of capital stock of Battle Mountain or any other debt or equity securities convertible into or evidencing the right to subscribe for any such shares of capital stock or obligating the Seller and/or Battle Mountain to grant, extend or enter into any such contract. There are no voting trusts, proxies or other contracts to which Seller and/or Battle Mountain are a party or are bound with respect to the voting of any shares of capital stock of Battle Mountain. The Seller has full legal right to sell, assign and transfer the Common Stock to Purchaser and will, upon payment for the Common Stock and delivery to Purchaser of a certificate or certificates representing the Common Stock, transfer good and indefeasible title to the Common Stock to Purchaser, free and clear of liens. Section 2.03. Authority. The Seller has all requisite power and --------- authority, corporate or otherwise, to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby. The Seller and Battle Mountain have duly and validly executed and delivered this Agreement and will, on or prior to the Closing, execute, such other documents as may be required hereunder and, assuming the due authorization, execution and delivery of this Agreement by the parties hereto and thereto, this Agreement constitutes, the legal, valid and binding obligation of the Seller and Battle Mountain, as applicable, enforceable against the Seller and Battle Mountain, as applicable, in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and general equitable principles. Section 2.04. No Conflict. The execution and delivery by the Seller and ----------- Battle Mountain of this Agreement and the consummation of the transactions contemplated hereby and thereby, do not and will not, by the lapse of time, the giving of notice or otherwise: (a) constitute a violation of any law; (b) constitute a breach or violation of any provision contained in the Articles of Incorporation or Bylaws of Battle Mountain; (c) constitute a breach of any provision contained in, or a default under, any governmental approval, any writ, injunction, order, judgment or decree of any governmental authority or any contract to which the Seller and/or Battle Mountain are a party; or (d) result in or require the creation of any lien upon the Common Stock. Section 2.05. Consents and Approvals. No governmental approvals and no ---------------------- notifications, filings or registrations to or with any governmental authority or any other person is or will be necessary for the valid execution and delivery by the Seller and/or Battle Mountain of this Agreement or the consummation of the transactions contemplated hereby or thereby, or the enforceability hereof or thereof, other than those which have been obtained or made and are in full force and effect. Section 2.06. Litigation. There are no claims pending or, to the ---------- knowledge of the Seller and Battle Mountain, threatened against or affecting Battle Mountain or any of its assets and properties before or by any governmental authority or any other person. The Seller and Battle Mountain have no knowledge of the basis for any claim, which alone or in the aggregate: (a) could reasonably be expected to result in any liability with respect to Battle Mountain; or (b) seeks to restrain or enjoin the execution and delivery of this Agreement or the consummation of any of the transactions contemplated hereby or thereby. There are no judgments or outstanding orders, injunctions, decrees, stipulations or awards against Battle Mountain or any of its assets and properties. Section 2.07. Brokers, Finders and Financial Advisors. No broker, finder --------------------------------------- or financial advisor has acted for Seller in connection with this Agreement or the transactions contemplated hereby or thereby, and no broker, finder or financial advisor is entitled to any broker's, finder's or financial advisor's fee or other commission in respect thereof based in any way on any contract with Seller. Section 2.08. Disclosure. The schedules, documents, exhibits, reports, ---------- certificates and other written statements and information furnished by or on behalf of Seller and/or Battle Mountain to the Purchaser do not contain any material misstatement of fact or, to the knowledge of Seller and Battle Mountain, omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading. Seller and Battle Mountain have not withheld any fact known to them which has or is reasonably likely to have a material adverse effect with respect to Battle Mountain. Section 2.09. Ownership. The Seller represents and warrants that Seller --------- owns 1,900,000 shares of common stock of Battle Mountain that are subject to this Agreement, and that Seller is also disposing of an additional 5,600,000 shares of common stock of Battle Mountain. ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER ------------------------------------------- Subject to all of the terms, conditions and provisions of this Agreement, Purchaser hereby represents and warrants to the Seller, as of the date hereof and as of the Closing, as follows: Section 3.01. Authority. Purchaser has all requisite power and authority --------- to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby. Purchaser has duly and validly executed and delivered this Agreement and, assuming the due authorization, execution and delivery of this Agreement by the other parties hereto and thereto, this Agreement constitutes the legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and general equitable principles. Section 3.02. No Conflict. The execution and delivery by Purchaser of ----------- this Agreement and the consummation of the transactions contemplated hereby and thereby do not and shall not, by the lapse of time, the giving of notice or otherwise: (a) constitute a violation of any law; or (b) constitute a breach of any provision contained in, or a default under, any governmental approval, any writ, injunction, order, judgment or decree of any governmental authority or any contract to which Purchaser is a party or by which Purchaser is bound or affected. Section 3.03. Consents and Approvals. No governmental approvals and no ---------------------- notifications, filings or registrations to or with any governmental authority or any other person is or will be necessary for the valid execution and delivery by Purchaser of this Agreement and the closing documents to which it is a party, or the consummation of the transactions contemplated hereby or thereby, or the enforceability hereof or thereof, other than those which have been obtained or made and are in full force and effect. Section 3.04. Litigation. There are no claims pending or, to the ---------- knowledge of Purchaser, threatened, and Purchaser has no knowledge of the basis for any claim, which either alone or in the aggregate, seeks to restrain or enjoin the execution and delivery of this Agreement or the consummation of any of the transactions contemplated hereby or thereby. There are no judgments or outstanding orders, injunctions, decrees, stipulations or awards against Purchaser which prohibits or restricts, or could reasonably be expected to result in any delay of, the consummation of the transactions contemplated by this Agreement. Section 3.05. Brokers, Finders and Financial Advisors. No broker, finder --------------------------------------- or financial advisor has acted for Purchaser in connection with this Agreement or the transactions contemplated hereby or thereby, and no broker, finder or financial advisor is entitled to any broker's, finder's or financial advisor's fee or other commission in respect thereof based in any way on any contract with Purchaser. ARTICLE IV COVENANTS --------- Section 4.01. Further Assurances. Seller, Battle Mountain and Purchaser ------------------ agree that, from time to time, whether before, at or after the Closing, each of them will take such other action and to execute, acknowledge and deliver such contracts, deeds, or other documents (a) as may be reasonably requested and necessary or appropriate to carry out the purposes and intent of this Agreement; or (b) to effect or evidence the transfer to the Purchaser of the Common Stock held by or in the name of the Seller. Section 4.02. Conduct of Business. Except as otherwise contemplated by ------------------- this Agreement, after the date hereof and prior to the Closing or earlier termination of this Agreement, unless Purchaser shall otherwise agree in writing, Battle Mountain shall (a) not take or perform any act or refrain from taking or performing any act which would have resulted in a breach of the representations and warranties set forth in Article II; (b) not enter into any agreement, or extend an existing agreement that will survive after the Closing; (c) not sell, pledge, lease, license or otherwise transfer any of their assets or properties or make any payments or distributions to Battle Mountain or any of its affiliates; and (d) not make any payments or distributions of assets or properties to Battle Mountain or its shareholders. Prior to the Closing, Battle Mountain shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its operations. Section 4.03. Public Announcements. Except as required by law, without -------------------- the prior written approval of the other party, neither Seller, Battle Mountain nor Purchaser will issue, or permit any agent or affiliate thereof to issue, any press release or otherwise make or permit any agent or affiliate thereof to make, any public statement or announcement with respect to this Agreement or the transactions contemplated hereby and thereby. ARTICLE V CONDITIONS ---------- Section 5.01. Conditions to Obligations of each of the Parties. The ------------------------------------------------ respective obligations of each party to consummate the transactions contemplated hereby shall be subject to the fulfillment at or prior to the Closing of the following conditions: (a) no preliminary or permanent injunction or other order, decree or ruling which prevents the consummation of the transactions contemplated by this Agreement shall have been issued and remain in effect; (b) no claim shall have been asserted, threatened or commenced and no law shall have been enacted, promulgated or issued which would reasonably be expected to (i) prohibit the purchase of, payment for or retention of the Common Stock by Purchaser or the consummation of the transactions contemplated by this Agreement or (ii) make the consummation of any such transactions illegal; and (c) all approvals legally required for the consummation of the transactions contemplated by this Agreement shall have been obtained and be in full force and effect at the Closing. Section 5.02. Conditions to Obligations of Seller. The obligations of ----------------------------------- Seller to consummate the transactions contemplated hereby shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, except as Seller may waive in writing: (a) Purchaser shall have complied with and performed in all material respects all of the terms, covenants, agreements and conditions contained in this Agreement which are required to be complied with and performed on or prior to Closing; and (b) the representations and warranties of Purchaser in this Agreement shall have been true and correct on the date hereof or thereof, as applicable, and such representations and warranties shall be true and correct on and at the Closing (except those, if any, expressly stated to be true and correct at an earlier date), with the same force and effect as though such representations and warranties had been made on and at the Closing. Section 5.03. Conditions to Obligations of Purchaser. The obligations of -------------------------------------- Purchaser to consummate the transactions contemplated hereby shall be subject to the fulfillment at or prior to Closing of the following additional conditions, except as Purchaser may waive in writing: (a) the Seller and Battle Mountain shall have complied with and performed in all material respects all of the terms, covenants, agreements and conditions contained in this Agreement which are required to be complied with and performed on or prior to Closing; and (b) the representations and warranties of Seller and Battle Mountain in this Agreement shall have been true and correct on the date hereof or thereof, as applicable, and such representations and warranties shall be true and correct on and at the Closing (except those, if any, expressly stated to be true and correct at an earlier date), with the same force and effect as though such representations and warranties had been made on and at the Closing. ARTICLE VI INDEMNIFICATION --------------- Section 6.01. Indemnification of Seller. Subject to the terms and ------------------------- conditions of this Article VI, Purchaser agrees to indemnify, defend and hold harmless Seller, from and against any and all claims, liabilities and losses which may be imposed on, incurred by or asserted against Seller, arising out of or resulting from, directly or indirectly: (a) the inaccuracy of any representation or breach of any warranty of Purchaser contained in or made pursuant to this Agreement which was not disclosed to Seller in writing prior to the Closing; provided that no such notification shall be deemed to waive or abrogate any right of Seller with respect to conditions to Closing in Section 5.02; (b) the breach of any covenant or agreement of Purchaser contained in this Agreement; or (c) any claim to fees or costs for alleged services by a broker, agent, finder or other person claiming to act in a similar capacity at the request of Purchaser in connection with this Agreement; provided, however, that Purchaser shall not be liable for any portion of any claims, liabilities or losses resulting from a material breach by Seller, of any of its obligations under this Agreement or from Seller's gross negligence, fraud or willful misconduct. Section 6.02. Indemnification of Purchaser. Subject to the terms and ---------------------------- conditions of this Article VI, from and after the Closing, Seller, agrees to indemnify, defend and hold harmless the Purchaser, its respective affiliates, its respective present and former directors, officers, shareholders, employees and agents and its respective heirs, executors, administrators, successors and assigns (the "Purchaser Indemnified Persons"), from and against any and all ----------------------------- claims, liabilities and losses which may be imposed on, incurred by or asserted against any Purchaser Indemnified Person, arising out of or resulting from, directly or indirectly: (a) the inaccuracy of any representation or breach of any warranty of the Seller or Battle Mountain contained in or made pursuant to this Agreement which was not disclosed to Purchaser in writing prior to the Closing; provided that no such notification shall be deemed to waive or abrogate any right of Purchaser with respect to conditions to Closing in Section 5.03; (b) the breach of any covenant or agreement of Seller or Battle Mountain contained in this Agreement; (c) the conduct of the business of Battle Mountain prior to the Closing; or (d) any claim to fees or costs for alleged services rendered by a broker, agent, finder or other person claiming to act in a similar capacity at the request of the Seller in connection with this Agreement; provided, however, that Seller and Battle Mountain shall not be liable for any portion of any claims, liabilities or losses resulting from a material breach by Purchaser of its obligations under this Agreement or from a Purchaser Indemnified Person's gross negligence, fraud or willful misconduct. ARTICLE VII MISCELLANEOUS ------------- Section 7.01. Notices. Any and all notices, requests or other ------- communications hereunder shall be given in writing and delivered by: (a) regular, overnight or registered or certified mail (return receipt requested), with first class postage prepaid; (b) hand delivery; (c) facsimile transmission; or (d) overnight courier service, to the parties at the following addresses or facsimile numbers: (i) if to Seller, to: Nikoloas Bekropoulos 444 Easy Columbia Street New Westminster, B.C., V3L 3W9 Canada (ii) if to Purchaser, to: Ken Tullar -------------------------------- -------------------------------- -------------------------------- (ii) Copies to: David M. Loev, Attorney at Law 2777 Allen Parkway Suite 1000 Houston, Texas 77019 Telephone Number: (713) 524-4110 Facsimile Number: (713) 524-4122 or at such other address or number as shall be designated by either of the parties in a notice to the other party given in accordance with this Section 7.01. Except as otherwise provided in this Agreement, all such communications shall be deemed to have been duly given: (A) in the case of a notice sent by regular or registered or certified mail, three business days after it is duly deposited in the mails; (B) in the case of a notice delivered by hand, when personally delivered; (C) in the case of a notice sent by facsimile, upon transmission subject to telephone confirmation of receipt; and (D) in the case of a notice sent by overnight mail or overnight courier service, the next business day after such notice is mailed or delivered to such courier, in each case given or addressed as aforesaid. Section 7.02. Benefit and Burden. This Agreement shall inure to the ------------------ benefit of, and shall be binding upon, the parties hereto and their successors and permitted assigns. Section 7.03. No Third Party Rights. Nothing in this Agreement shall be --------------------- deemed to create any right in any creditor or other person not a party hereto (other than the Purchaser Indemnified Persons) and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third party (other than the Purchaser Indemnified Persons). Section 7.04. Amendments and Waiver. No amendment, modification, --------------------- restatement or supplement of this Agreement shall be valid unless the same is in writing and signed by the parties hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the party against whom that waiver is sought to be enforced. Section 7.05. Assignments. Purchaser may assign any of its rights, ----------- interests and obligations under this Agreement and must notify Seller in writing. Section 7.06. Counterparts. This Agreement may be executed in ------------ counterparts and by the different parties in separate counterparts, each of which when so executed shall be deemed an original and all of which taken together shall constitute one and the same agreement. Section 7.07. Captions and Headings. The captions and headings contained --------------------- in this Agreement are inserted and included solely for convenience and shall not be considered or given any effect in construing the provisions hereof if any question of intent should arise. Section 7.08. Construction. The parties acknowledge that each of them has ------------ had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this Agreement with its legal counsel and that this Agreement shall be construed as if jointly drafted by the parties hereto. Section 7.09. Severability. Should any clause, sentence, paragraph, ------------ subsection, Section or Article of this Agreement be judicially declared to be invalid, unenforceable or void, such decision will not have the effect of invalidating or voiding the remainder of this Agreement, and the parties agree that the part or parts of this Agreement so held to be invalid, unenforceable or void will be deemed to have been stricken herefrom by the parties, and the remainder will have the same force and effectiveness as if such stricken part or parts had never been included herein. Section 7.10. Remedies. The parties agree that the covenants and -------- obligations contained in this Agreement relate to special, unique and extraordinary matters and that a violation of any of the terms hereof or thereof would cause irreparable injury in an amount which would be impossible to estimate or determine and for which any remedy at law would be inadequate. As such, the parties agree that if either party fails or refuses to fulfill any of its obligations under this Agreement or to make any payment or deliver any instrument required hereunder or thereunder, then the other party shall have the remedy of specific performance, which remedy shall be cumulative and nonexclusive and shall be in addition to any other rights and remedies otherwise available under any other contract or at law or in equity and to which such party might be entitled. Section 7.11. Applicable Law. THIS AGREEMENT AND THE RIGHTS AND -------------- OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF. Section 7.12. Submission to Jurisdiction. Each of the parties hereby: (a) -------------------------- irrevocably submits to the non-exclusive personal jurisdiction of any Nevada court, over any claim arising out of or relating to this Agreement and irrevocably agrees that all such claims may be heard and determined in such Nevada court; and (b) irrevocably waives, to the fullest extent permitted by applicable law, any objection it may now or hereafter have to the laying of venue in any proceeding brought in a Nevada court. Section 7.13. Expenses; Prevailing Party Costs. The Seller, Battle -------------------------------- Mountain, and Purchaser shall pay their own expenses incident to this Agreement and the transactions contemplated hereby and thereby, including all legal and accounting fees and disbursements, and Seller shall be solely liable for any and all expenses of the Seller and/or Battle Mountain which are incident to this Agreement and the transactions contemplated hereby and thereby (other than customary general, administrative and overhead expenses incurred in the ordinary course of business). Notwithstanding anything contained herein or therein to the contrary, if any party commences an action against another party to enforce any of the terms, covenants, conditions or provisions of this Agreement, or because of a breach by a party of its obligations under this Agreement, the prevailing party in any such action shall be entitled to recover its losses, including reasonable attorneys' fees, incurred in connection with the prosecution or defense of such action, from the losing party. Section 7.14. Entire Agreement. This Agreement sets forth all of the ---------------- promises, agreements, conditions, understandings, warranties and representations among the parties with respect to the transactions contemplated hereby and thereby, and supersedes all prior agreements, arrangements and understandings between the parties, whether written, oral or otherwise. Section 7.15. Faxed Signatures. For purposes of this Agreement, a ---------------- faxed signature shall constitute an original signature. IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written. "SELLER" /s/ Nikoloas Bekropoulos ------------------------ Nikoloas Bekropoulos Number of shares: 1,900,000 "BATTLE MOUNTAIN" Battle Mountain Gold Exploration Corp. /s/ James E. McKay ------------------ James E. McKay Chief Executive Officer "PURCHASER" /s/ Ken Tullar -------------- Ken Tullar EX-3 3 doc3.txt Exhibit 3 NON-QUALIFIED STOCK OPTION AGREEMENT Battle Mountain Gold Exploration Corp., a Nevada corporation (the "Company"), hereby grants to Kenneth N. Tullar (the "Optionee") a non-qualified ----------------- stock option (the "Option") to purchase a total of 200,000 shares (the "Shares") ------- of the Company's common stock, par value $.001 per share (the "Common Stock"), at the price determined as provided herein, and in all respects subject to the terms and conditions of the Company's 2004 - 2005 Non-Qualified Stock Option Plan (the "Plan"), which is incorporated herein in its entirety by reference. Capitalized terms not otherwise defined in this agreement (the "Option Agreement") shall have the meaning given to such terms in the Plan. 1. NATURE OF OPTION. This Option is intended to constitute a non-qualified stock option. 2. EXERCISE PRICE. The exercise price of this Option is $0.40 per ---- share of Common Stock acquired on exercise (the "Exercise Price"). 3. TERM OF OPTION. This Option may not be exercised after April 15, --------- 2010, and may be exercised during such term only in accordance with the terms - ---- and conditions of the Plan and this Option Agreement, subject specifically to Section 4 of this Option Agreement. 4. TERMINATION OF OPTIONEE'S EMPLOYMENT OR SERVICES. If the Optionee's employment, contract, directorship or consulting work with the Company is terminated for any reason other than Cause, those Shares that had vested under the terms of this Option Agreement shall remain exercisable for a period of ninety days after the date of such termination of the Optionee's employment, contract, directorship or consulting work with the Company; provided, however, that after the expiration of such ninety-day period, this Option Agreement, and the Optionee's right to exercise any vested portion of this Option, shall terminate. If the Optionee's employment, contract, directorship, or consulting work with the Company terminates for Cause, this Option Agreement, and the Optionee's right to exercise any vested portion of this Option, shall terminate at the commencement of business on the date of such termination. 5. EXERCISE OF OPTION. This Option shall be exercisable during its term subject to the provisions of Sections 3 and 4 hereof, as follows: (i) Vesting. This Option shall vest on April 15, 2005. -------- (ii) Right of Exercise. This Option is exercisable at any time during ------------------- the term of this Option Agreement, in whole or in part, to acquire those Shares that have vested in accordance with this Option Agreement; provided, however; that this Option may only be exercisable to acquire whole shares of Common Stock. (iii) Method of Exercise. This Option is exercisable by delivery to --------------------- the attention of the Secretary of the Company, no fewer than five business days before the proposed effective date of exercise of this Option Agreement and a written notice, signed by the Optionee, specifying the number of Shares to be acquired on, and the effective date of, such exercise. The Optionee may withdraw notice of exercise of this Option at any time before close of business on the business day preceding the proposed exercise date, and in this instance, the Company will return this Option Agreement to the Optionee. (iv) Method of Payment. Payment of the exercise price for the Shares -------------------- purchased under this Option shall be delivered to the Company on the effective date of exercise by one or any combination of the following: (a) Cash; (b) Certified check; (c) Bank cashier's or certified check; (d) Money order; (e) Wire transfer; or -- (e) Cashless Exercise by delivery of written notice in the manner provide for in subsection (iii) of this Section 5 that requests the Company to issue to the Optionee the full number of Shares to be acquired, less the number of Shares that have an aggregate Fair Market Value equal to the aggregate purchase price of the Shares to which such exercise relates. This method of exercise allows the Optionee to use a portion of the Shares issuable at the time of exercise as payment for the Shares. For example, if the Optionee elects to exercise 1,000 Shares at an exercise price of $0.25 and the current Fair Market Value of the Shares on the date of exercise is $1.00, the Optionee can use 250 of the 1,000 Shares at $1.00 per share to pay for the exercise of the entire Option (250 x $1.00 = $250.00) and receive only the remaining 750 Shares. For purposes of this section, " Fair Market Value" shall be defined as the average closing price of the Common Stock (if actual sales price information on any trading day is not available, the closing bid price shall be used) for the five trading days prior to the date of exercise of this Option (the "Average Closing Bid Price"), as reported by the National Association of Securities Dealers Automated Quotation System ("NASDAQ"), or if the Common Stock is not traded on NASDAQ, the Average Closing Bid Price in the over-the-counter market; provided, however, that if the Common Stock is listed on a stock exchange, the Fair Market Value shall be the Average Closing Bid Price on such exchange; and, provided further, that if the Common Stock is not quoted or listed by any organization, the fair value of the common stock, as determined by the Board of Directors of the Company, whose determination shall be conclusive, shall be used. In no event shall the Fair Market Value of any Share of Common Stock be less than its par value. As a condition to the exercise of the Option or the transfer of any Common Stock, the Optionee hereby agrees to remit to the Company the amount of any federal, state or local taxes required to be withheld in the transaction. The Optionee may pay the taxes by 1) additional withholding if the Optionee is an existing employee with respect to whom the Company withholds taxes on the date of exercise (or such other time as the Company's obligation to withhold taxes may accrue); or 2) direct payment of the required withholding to the Company. The Compensation Committee of the Board of Directors, if such a committee exists, or the Board of Directors, as applicable, in their sole discretion, shall determine the amount of taxes that are required to be withheld. 6. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the issuance of such Shares or the method of payment of this consideration for such Shares would constitute a violation of any applicable federal or state securities or other laws or regulations, including any rule under Part 207 of Title 12 of the Code of Federal Regulations ("Regulation G") as promulgated by the Federal Reserve Board, or any rules or regulations of any stock exchange on which the Common Stock may be listed. This Option may only be exercised in accordance with the terms and conditions of the Plan and this Option Agreement. 7. NON-TRANSFERABILITY OF OPTION. During the lifetime of the Optionee, this Option may only be exercised by the Optionee. This Option is not assignable or transferable otherwise than by will or by the laws of descent and distribution or pursuant to certain domestic relations orders. The terms of this Option Agreement shall be binding on the Optionee's heirs and successors and on the administrators and executors of the Optionee's estate. 8. INDEPENDENT LEGAL AND TAX ADVICE. It is the Optionee's responsibility to obtain independent legal and tax advice regarding the grant and exercise of this Option and the disposition of any Shares acquired thereby. 9. AMENDMENT. This Option Agreement may not be amended, modified or waived except by a written instrument signed by the party against whom enforcement of any such modification, amendment or waiver is sought, except to the extent necessary to ensure the qualification of the Plan under Rule 16d-3 under the Securities Exchange Act of 1934, as amended. 10. GOVERNING LAW. This Option Agreement shall be governed by and shall be construed and enforced in accordance with the corporate laws of the State of Nevada as they apply to a Nevada corporation and the laws of the State of Nevada. 11. SUPERSEDES PRIOR AGREEMENTS. This Option Agreement shall supersede and replace all prior agreements and understandings, oral or written, between the Company and the Optionee regarding the grant of any Options under the Plan. All other Option agreements relating to a grant by the Company of any Option under the Plan or predecessor employee stock option plans maintained by the Company on such date shall be null, void and of no further force and effect. DATE OF GRANT: April 8, 2005. BATTLE MOUNTAIN GOLD EXPLORATION CORP. By: /s/ James E. McKay ----------------------- Printed Name: James E. McKay ----------------- Its: President & CEO ------------------ VESTING OF SHARES PURSUANT TO SECTION 5 HEREOF IS EARNED ONLY BY CONTINUING EMPLOYMENT OR SERVICES AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, APPOINTED OR ELECTED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER). THIS OPTION AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREIN AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED EMPLOYMENT OR SERVICES FOR THE VESTING PERIOD, FOR ANY PERIOD OR AT ALL. The Optionee hereby acknowledges receipt of a copy of the Plan and represents that he is familiar with the terms and provisions thereof, and hereby accepts this Option subject to all the terms and provisions of the Plan. The Optionee has reviewed the Plan and this Option Agreement in its entirety, has had an opportunity to obtain the advice of counsel before executing this Option Agreement, fully understands all terms and conditions of this Option Agreement and specifically acknowledges that the vesting of the Shares granted hereby is earned only by continuing employment or continued service as an employee, officer, director, consultant or advisor at the will of the Company. The Optionee further agrees that this Option Agreement supersedes any prior agreements, oral or written, relating to the grant by the Company of any Options under the Plan or predecessor stock option plans to the Optionee. The Optionee hereby acknowledges that he has read and understands the terms of Section 11 of this Option Agreement. The Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Compensation Committee of the Board of Directors, if such a committee exists, or the Board of Directors, as applicable, on any questions arising under the Plan. DATED: Effective April 8, 2005. OPTIONEE /s/ Kenneth N. Tullar ------------------------ Printed Name: Kenneth N. Tullar --------------------- -----END PRIVACY-ENHANCED MESSAGE-----