**Exhibit10.1**

 

**GOLDENMINERALS COMPANY**

 

**2009EQUITY INCENTIVE PLAN**

 

**FORMOF NON-QUALIFIED STOCK OPTION AWARD AGREEMENT**

 

This Non-Qualified Stock Option Award Agreement (the “*Award Agreement*”), is made as of the               day of                     ,20     (the “*Grant Date*”),between Golden Minerals Company, a Delaware corporation (the “*Company*”), and                                           (the “*Participant*”).

 

**RECITAL**

 

The Company desires to encourage and enable theParticipant to acquire a proprietary interest in the Company through theownership of the Company’s common stock, $0.01 par value (“*Common Stock*”), pursuant to the terms andconditions of the Golden Minerals Company 2009 Equity Incentive Plan (the “*Plan*”) and this Award Agreement.  Such ownership will provide the Participantwith a more direct stake in the future of the Company and encourage theParticipant to remain with the Company and/or its Affiliates, as applicable.

 

**AGREEMENT**

 

**NOW, THEREFORE,**in consideration of the mutual covenants hereinafterset forth and for other good and valuable consideration, the parties agree asfollows:

 

**1.**             **Grant of Option****.**

 

1.1           The Company hereby grants to the Participant anon-qualified share option (the “*Option*”) topurchase                 shares of Common Stock at an exercise price (the “*ExercisePrice*”) of $         per shareof Common Stock, subject to the terms and conditions of this Agreement and thePlan.

 

1.2           This Option shall be treated as a non-qualified stockoption and will not qualify as an incentive stock option within the meaning of Section 422of the United States Internal Revenue Code of 1986, as amended.

 

**2.**             **Vesting**.  The Optionshall vest and be exercisable by the Participant in accordance with thefollowing schedule:

 
| **Date**            | ** ** | **Portion of Option Vested** |
|---------------------|------------|------------------------------|
| Date of Grant       |       |                         |
| First  Anniversary  |       |                         |
| Second  Anniversary |       |                         |
| Third  Anniversary  |       |                         |

 

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**3.**             **Option Term**.  The Optiongranted hereby shall expire on                           (the “*Expiration Date*”), unless sooner terminatedor modified under the provisions of this Agreement or the Plan.  Except as otherwise set forth herein, theOption may not be exercised after the Expiration Date.

 

**4.**             **Termination of Employment**

 

4.1           **Termination of Continuous Service.**  In the eventthe Participant’s Continuous Service terminates (other than upon theParticipant’s death, Disability, Retirement or as a result of a Change ofControl), the Option shall immediately terminate; provided, however,if the Participant’s Continuous Service is terminated for reasons other thanfor cause, as determined by the Board in its discretion, the Option shallcontinue to be exercisable until the earlier of (i) the Expiration Date,or (ii) 180 days after the date of such termination.  All such vested Options not exercised withinthe period described in the preceding sentence shall terminate.

 

4.2           **Termination for Cause**.  In the eventthe Participant’s Continuous Services terminates for cause, as determined bythe Board in its discretion, this Option (including any vested portion) shall beforfeited as of the date of termination.

 

4.3           **Disability or Death of Optionholder.**  In the eventof a Participant’s Disability or death, the unvested portion of the Optionshall immediately terminate, and the vested portion of the Option shallcontinue to be exercisable until the earlier of (i) the Expiration Date,or (ii) twelve months after the date of such Disability or death. Allsuch vested Options not exercised within such 12-month period shall terminate.

 

4.4           **Retirement. **In the event of the Participant’sRetirement, the unvested portion of the Option shall automatically vest on thedate of such Retirement and the Option shall be exercisable until the earlier (i) theExpiration date, or (ii) twenty-four months after such Retirementdate.  All such Options not exercisedwithin the period described in the preceding sentence shall terminate.

 

**5.**             **Change of Control**

 

5.1           In the event of a Change of Control, the Company shallgive the Participant notice thereof and this Option, whether or not currentlyvested and exercisable, shall become vested and exercisable immediately priorto the effective date of the Change of Control, and the Board shall have thepower and discretion to provide alternatives regarding the terms and conditionsfor the exercise of, or modification of, this Option in accordance with thePlan; provided, however, such alternatives shall not adverselyaffect the then current exercise provisions without such Participant’s consent.  The Board may provide that the Option must beexercised in connection with the closing of such transaction, and that if notso exercised the Option will expire.  Theprovisions of this Section 5 shall not apply to any transaction undertakenfor the purpose of reincorporating the Company under the laws of another jurisdiction,if such transaction does not materially affect the beneficial ownership of theCompany’s capital stock.

 

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5.2           For the purpose of the Option awarded pursuant to thisAgreement, the term “*Change of Control*”shall mean the first to occur of the following: (A) any person becomes thebeneficial owner, directly or indirectly, of securities of the Companyrepresenting 35% or more of the combined voting power of the Company’s thenoutstanding voting securities (other than (i) the Company, (ii) anysubsidiary of the Company, or (iii) one or more employee benefit plansmaintained by the Company); (B) three or more Directors of the Company,whose election or nomination for election is not approved by a majority of theapplicable Incumbent Board, are elected within any single twelve month periodto serve on the Board; (C) members of the applicable Incumbent Board ceaseto constitute a majority of the Board; (D) the consummation of a merger orconsolidation of the Company with or into any other corporation or entity orperson, or any other corporate reorganization, in which the stockholders of theCompany immediately prior to such consolidation, merger or reorganization ownless than 50% of the outstanding voting securities of the surviving entity (orits parent) following the consolidation, merger or reorganization or (E) theconsummation of a sale, lease or other disposition of all or substantially allof the assets of the Company.  Forpurposes of this definition, the terms “*person*”and “*beneficial owner*” shall havethe meanings set forth in Section 13(d) and Rule 13d-3,respectively, of the Securities Exchange Act of 1934, as amended, and in theregulations promulgated thereunder.  Forpurposes of this definition, “*IncumbentBoard*” means (i) members of the Board of Directors of theCompany as of the date hereof, to the extent that they continue to serve asmembers of the Board, and (ii) any individual who becomes a member of theBoard after the date hereof, if such individual’s election or nomination forelection as a Director was approved by a vote of at least 75% of the thenapplicable Incumbent Board.

 

**6.**             **Exercise****.** The Option may be exercised in whole or inpart.  Common Stock purchased upon theexercise of the Option shall be paid for in full at the time of suchpurchase.  Such payment shall be made incash or by wire transfer in immediately available funds in either eventdenominated in Dollars.  Upon receipt ofnotice of exercise and payment in accordance with procedures to be establishedby the Board, the Company or its agent shall deliver to the Participant acertificate for such Common Stock.

 

**7.**             **No Right to Continued Employment****.** Nothing in this Award Agreement or the Plan shall be interpreted or construedto confer upon the Participant any right with respect to continued employmentby the Company or any of its Affiliates, nor shall this Award Agreement or thePlan interfere in any way with the right of the Company or any Affiliate toterminate the Participant’s employment at any time.

 

**8.**             **Adjustments Upon Recapitalization****.** If, by reason of a recapitalization or other change in corporate orcapital structure, the Participant shall be entitled to new, additional ordifferent shares of stock or securities of the Company or any successor Companyor entity or other property pursuant to the Plan, such new, additional ordifferent shares or other property shall thereupon be subject to all of theconditions and restrictions which were applicable to the Option immediatelyprior to such recapitalization or other change in corporate or capitalstructure.

 

**9.**             **Withholding Taxes.**** **TheCompany shall have the right to require the Participant or the Participant’sbeneficiaries or legal representatives to remit to the Company an amount equalto the applicable foreign, federal, state and local income taxes and otheramounts required 

 

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by law to be withheldupon the grant, vesting or exercise of this Option (the “*Withholding Taxes*”).  Whenever payments under the Plan or thisAward Agreement are to be made to the Participant in cash, such payments shallbe net of any amounts sufficient to satisfy all applicable taxes, includingwithout limitation, all Withholding Taxes concerning such payments.  The Board may, in its sole discretion, permitthe Participant to satisfy the withholding obligation either by (i) surrenderingshares of Common Stock owned by the Participant or (ii) having the Companywithhold shares from of Common Stock otherwise deliverable to theParticipant.  Common Stock surrendered orwithheld shall be valued at their Fair Market Value as of the date on whichincome is required to be recognized for income tax purposes.

 

**10.**          **Modification of Award Agreement****.** Except as set forth in the Plan and in this Award Agreement, this AwardAgreement may be modified, amended, suspended or terminated, and any terms orconditions may be waived, but only by a written instrument executed by theparties hereto.

 

**11.**          **Severability****.**  Shouldany provision of this Award Agreement be held by a court of competentjurisdiction to be unenforceable or invalid for any reason, the remainingprovisions of this Award Agreement shall not be affected by such holding andshall continue in full force and effect in accordance with their terms.

 

**12.**          **Governing Law****.** This Award Agreement and all rights arising hereunder shall be governedby, and construed and interpreted in accordance with, the laws of the State ofDelaware.

 

**13.**          **Successors in Interest****.**  ThisAward Agreement shall inure to the benefit of and be binding upon any successorto the Company and upon the Participant’s heirs, executors, administrators andsuccessors.

 

**14.**          **Interpretation**. This Award Agreement shall be construed in accordance with, and subjectto, the terms of the Plan.  For purposesof this Award Agreement, all capitalized terms used and not otherwise definedherein shall have the meanings ascribed to them in the Plan.

 

**15.**          **Rights Prior to Exercise of Option**. The Participant shall not have any rights as a stockholder with respectto any Common Stock subject to the Option prior to the date on which he isrecorded as the holder of such Common Stock on the records of the Company.

 

**16.**          **Non-Assignability**. The Option granted hereby and any right arising thereunder may not betransferred, assigned, pledged or hypothecated (whether by operation of law orotherwise), except by will or the applicable laws of descent and distribution,and the Option and any right arising thereunder shall not be subject toexecution, attachment or similar process. Any attempted assignment, transfer, pledge, hypothecation or otherdisposition of an Option not specifically permitted herein or in the Plan shallbe null and void and without effect.  AnOption may be exercised solely by the Participant during his or her lifetime,or following his or her death pursuant to Section 4.3 hereof.

 

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Executed as of theday and year first above written.

 

 
|   |   | **GOLDEN  MINERALS COMPANY** |
|--------|--------|------------------------------|
|   |   |                         |   |
|   |   |                         |   |
|   |   | By:                          |   |
|   |   |                         | Name: |
|   |   |                         | Title: |
|   |   |                         |   |
|   |   |                         |   |
|   |   | **PARTICIPANT**              |
|   |   |                         |   |
|   |   |                         |   |
|   |   | By:                          |   |

 

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