EXHIBIT 4.3
THIS DOCUMENT CONSTITUTES PART
OF A PROSPECTUS COVERING
SECURITIES THAT HAVE BEEN
REGISTERED UNDER THE
SECURITIES ACT OF 1933.
AMENDED AND RESTATED
CANMAX INC.
STOCK OPTION PLAN
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Choice of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
PURPOSE AND PARTICIPATION
2.1 Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Participation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Notification of Award. . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Copy of Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5 Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III
TERMS AND CONDITIONS OF OPTIONS
3.1 Board to Allot Shares. . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Number of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3 Term of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.4 Termination of Option. . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.5 Exercise Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.6 Assignment of Options. . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.7 Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV
EXERCISE OF OPTION
4.1 Exercise of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.2 Issue of Share Certificates. . . . . . . . . . . . . . . . . . . . . . . 6
4.3 Condition of Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE V
ADMINISTRATION
5.1 Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.2 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE VI
AMENDMENT AND TERMINATION
6.1 Prospective Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.2 Retrospective Amendment. . . . . . . . . . . . . . . . . . . . . . . . . 7
6.3 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.4 Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
STOCK OPTION PLAN
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
As used herein, unless anything in the subject matter or context is inconsistent
therewith, the following terms shall have the meanings set forth below:
a) "Administrator" means, initially, the secretary of the Issuer and
thereafter shall mean such director or other senior officer or employee
of the Issuer as may be designated as Administrator by the Board from
time to time;
b) "Award Date" means the date on which the Board awards a particular
Option;
c) "Board" means the board of directors of the Issuer;
d) "Director" means any individual holding the office of director of the
Issuer;
e) "Employee" means any individual regularly employed on a full-time or
part-time basis by the Issuer or other persons who either perform
services for the Issuer on an ongoing basis or who have provided, or are
expected to provide, a service of value to the Issuer;
f) "Exercise Notice" means the notice respecting the exercise of an Option,
in the form set out as Schedule "B" hereto, duly executed by the Option
Holder;
g) "Exercise Period" means the period during which a particular Option may
be exercised and is the period from and including the Award Date through
to and including the Expiry Date;
h) "Exercise Price" means the price at which an Option may be exercised as
determined in accordance with paragraph 3.5;
i) "Expiry Date" means the date determined in accordance with paragraph 3.3
and after which a particular Option cannot be exercised;
j) "Issuer" means Canmax Inc.
k) "Market Value" means the closing price of the Issuer's Shares on the date
the Issuer's shared traded through the facilities of NASDAQ SmallCap
Market immediately preceding the Award Date, unless the Shares did not
trade through the facilities of NASDAQ SmallCap Market on that day in
which case it is the closing price of the Issuer's Shares the last day
they traded through the facilities of NASDAQ SmallCap Market;
l) "Option" means an option to acquire Shares, awarded to a Director or
Employee pursuant to the Plan;
m) "Option Certificate" means the certificate, in the form set out as
Schedule "A" hereto, evidencing an Option;
n) "Option Holder" means a Director or Employee, or former Director or
Employee, who holds an unexercised and unexpired Option or, where
applicable, the Personal Representative of such person;
o) "Plan" means this Canmax Inc. Stock Option Plan;
p) "Personal Representative" means:
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i. in the case of a deceased Option holder, the executor or
administrator of the deceased duly appointed by a court or public
authority having jurisdiction to do so; and
ii. in the case of an Option Holder who for any reason is unable to
manage his or her affairs, the person entitled by law to act on
behalf of such Option Holder; and
q) "Sale Transaction" means any of the following events:
i. any consolidation or merger of the Issuer in which the Issuer is
not the continuing or surviving company or pursuant to which
shares of common stock of Issuer would be converted into cash,
securities or other property, other than a merger of the Issuer
in which the holders of the common stock of the Issuer
immediately prior to the merger have the same proportion of
ownership of common stock of the surviving company immediately
after the merger or which would result in the voting securities
of the company outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at
least fifty percent of the total voting power represented by the
voting securities of the Issuer or such surviving entity
outstanding immediately following such merger or consolidation;
or
ii. any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of in excess of fifty
percent of the assets of the Issuer.
r) "Share" or "Shares" means, as the case may be, one or more common shares
without par value in the capital of the Issuer.
1.2 CHOICE OF LAW
The Plan is established under and the provisions of the Plan shall be
interpreted and construed in accordance with the laws of the State of Texas.
1.3 HEADINGS
The headings used herein are for convenience only and are not to affect the
interpretation of the Plan.
ARTICLE II
PURPOSE AND PARTICIPATION
2.1 PURPOSE
The purpose of the Plan is to provide the Issuer with a share-related mechanism
to attract, retain and motivate qualified Directors and Employees, to reward
such of those Directors and Employees as may be awarded Options under the Plan
by the Board from time to time for their
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contributions toward the long term goals of the Issuer and to enable and
encourage such Directors and Employees to acquire Shares as long term
investments.
2.2 PARTICIPATION
The Board shall, from time to time, in its sole discretion determine those
Directors and Employees, if any, to whom Options are to be awarded. If the
Board elects to award an Option to a Director, the Board shall, in its sole
discretion but subject to paragraph 3.2, determine the number of Shares to be
acquired on the exercise of such Option. If the Board elects to award an Option
to an Employee, the number of Shares to be acquired on the exercise of such
Option shall be determined by the Board in its sole discretion, taking into
account the following criteria:
a) the annual salary of the Employee as at the Award Date in
relation to the total annual salaries payable by the Issuer to
all of its Employees as at the Award Date;
b) the length of time that the Employee has been employed by the
Issuer; and
c) the quality of work performed by the Employee.
2.3 NOTIFICATION OF AWARD
Following the approval by the Board of the awarding of an Option, the
Administrator shall notify the Option Holder in writing of the award and shall
enclose with such notice the Option Certificate representing the Option so
awarded.
2.4 COPY OF PLAN
Each Option Holder, concurrently with the notice of the award of the Option,
shall be provided with a copy of the Plan. A copy of any amendment to the shall
be promptly provided by the Administrator to each Option Holder.
2.5 LIMITATION
The Plan does not give any Option Holder that is a Director the right to serve
or continue to serve as a Director of the Issuer nor does it give any Option
Holder that is an Employee the right to be or to continue to be employed by the
Issuer.
ARTICLE III
TERMS AND CONDITIONS OF OPTION
3.1 BOARD TO ALLOT SHARES
The shares to be issued to Option Holders upon the exercise of Options shall be
allotted and authorized for issuance by the Board prior to the exercise thereof.
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3.2 NUMBER OF SHARES
The Issuer shall not grant Options under the Plan which will, when exercised,
exceed 2,300,000 shares of Common Stock and shall not grant Options to any one
individual Director or Employee which will, when exercised, exceed five percent
(5%) of the issued and outstanding Shares of the Issuer.
If any Option expires or otherwise terminates for any reason without having been
exercised in full, the number of Shares in respect of which Option expired or
terminated shall again be available for the purposes of the Plan.
3.3 TERM OF OPTION
Subject to paragraph 3.4, the Expiry Date of an Option shall be the date so
fixed by the Board at the time the particular Option is awarded, provided that
such date shall not be later than the tenth anniversary of the Award Date of
such Option.
3.4 TERMINATION OF OPTION
An Option Holder may exercise an Option in whole or in part at any time or from
time to time during the Exercise Period provided that, with respect to the
exercise of part of an Option, the Board may at any time and from time to time
fix a minimum or maximum number of Shares in respect of which an Option Holder
may exercise part of any Option held by such Option Holder. Any Option or part
thereof not exercised within the Exercise Period shall terminate and become
null, void and of no effect as of 5:00 p.m. local time in Irving, Texas on the
Expiry Date. The Expiry Date of an Option shall be the earlier of the date so
fixed by the Board at the time the Option is awarded and the date established,
if applicable, in sub-paragraphs (a) to (c) below;
a) DEATH
In the event that the Option Holder should die while he or she is still a
Director (if he or she holds his or her Option as Director) or Employee
(if he or she holds his or her Option as Employee), the Expiry Date shall
be the first anniversary of the Option Holder's date of death; or
b) CEASING TO HOLD OFFICE
In the event that the Option Holder holds his or her Option as Director
of the Issuer and such Option Holder ceases to be a Director of the
Issuer other than by reason of death, the Expiry Date of the Option shall
be the 30th day following the date the Option Holder ceases to be a
Director of the Issuer as a result of:
i. ceasing to meet the qualifications set forth in Wyoming
legislation; or
ii. a special resolution having been passed by the members of the
Company or;
iii. by order of any regulatory body having jurisdiction to so order,
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in which case the Expiry Date shall be the date the Option Holder ceases
to be a Director of the Issuer; or
c) CEASING TO BE EMPLOYED
In the event that the Option Holder holds his or her Option as an
Employee of the Issuer and such Option Holder ceases to be an Employee of
the Issuer other than by reason of death or a Sale Transaction, the
Expiry Date of the Option shall be the 30th day following the date the
Option Holder ceases to be an Employee of the Issuer unless the Option
Holder ceases to be an Employee of the Issuer as a result of:
i. termination for cause; or
ii. by the order of any regulatory body having jurisdiction to so
order,
in which case the Expiry Date shall be the date the Option Holder ceases
to be an Employee of the Issuer.
d) SALE TRANSACTION
In the event that the Option Holder holds his or her Option as an
Employee of the Issuer and such Option Holder becomes an employee of the
party (the "Acquiror") continuing or surviving any merger or acquiring a
material portion of the assets of the Company in a Sale Transaction, the
Expiry Date shall be the second anniversary of the date of consummation
of the Sale Transaction.
3.5 EXERCISE PRICE
The price at which an Option Holder may purchase a Share upon the exercise of an
Option shall be the Market Value as of the Award Date.
3.6 ASSIGNMENT OF OPTIONS
Options may not be assigned or transferred, provided however that the Personal
Representative of an Option Holder may, to the extent permitted by paragraph
4.1, exercise the Option within the Exercise Period.
3.7 ADJUSTMENTS
If prior to the complete exercise of any Option the Shares are consolidated,
subdivided, converted, exchanged or reclassified or in any way substituted for
(collectively the "Event"), an Option, to the extent that it has not been
exercised, shall be adjusted by the Board in accordance with such Event in the
manner the Board deems appropriate. No fractional Shares shall be issued upon
the exercise of the Options and accordingly, if as a result of the Event, an
Option Holder would become entitled to a fractional share, such Option Holder
shall have the right to purchase
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only the next lowest whole number of shares and no payment or other
adjustment will be made with respect to the fractional interest so
disregarded.
ARTICLE IV
EXERCISE OF OPTION
4.1 EXERCISE OF OPTION
An Option may be exercised only by the Option Holder or the Personal
Representative of any Option Holder. An Option Holder or the Personal
Representative of any Option Holder may exercise an Option in whole or in part
at any time or from time to time during the Exercise Period up to 5:00 p.m.
local time in Irving, Texas on the Expiry Date by delivering to the
Administrator an Exercise Notice, the applicable Option Certificate and a
certified check or bank draft payable to Canmax Inc. in an amount equal to the
aggregate Exercise Price of the Shares to be purchased pursuant to the exercise
of the Option.
4.2 ISSUES OF SHARE CERTIFICATES
As soon as practicable following the receipt of the Exercise Notice, the
Administrator shall cause to be delivered to the Option Holder a certificate for
the Shares so purchased. If the number of Shares so purchased is less than the
number of Shares subject to the Option Certificate surrendered, the
Administrator shall forward a new Option Certificate to the Option Holder
concurrently with delivery of the aforesaid share certificate for the balance of
Shares available under the Option.
4.3 CONDITION OF ISSUE
The issue of Shares by the Issuer pursuant to the exercise of an Option is
subject to this Plan and compliance with the laws, rules and regulations of all
regulatory bodies applicable to the issuance and distribution of such Shares and
to the listing requirements of any stock exchange or exchanges on which the
shares may be listed. The Option Holder agrees to comply with all such laws,
rules and regulations and agrees to furnish to the Issuer any information,
report and/or undertakings required to comply with and to fully cooperate with
the Issuer in complying with such laws, rules and regulations.
ARTICLE V
ADMINISTRATION
5.1 ADMINISTRATION
The Plan shall be administered by the Administrator on the instructions of the
Board. The Board may make, amend and repeal at any time and from time to time
such regulations not inconsistent with the Plan as it may deem necessary or
advisable for the proper administration and operation of the Plan and such
regulations shall form part of the Plan. The Board may delegate to the
Administrator or any Director, officer or employee of the Issuer such
administrative duties and powers as it may see fit.
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5.2 INTERPRETATION
The interpretation by the Board of any of the provisions of the Plan and any
determination by it pursuant thereto shall be final and conclusive and shall not
be subject to any dispute by any Option Holder. No member of the Board or any
person acting pursuant to authority delegated by it hereunder shall be liable
for any action or determination in connection with the Plan made or taken in
good faith and each member of the Board and each such person shall be entitled
to indemnification with respect to any such action or determination in the
manner provided for by the Issuer.
ARTICLE VI
AMENDMENT AND TERMINATION
6.1 PROSPECTIVE AMENDMENT
The Board may from time to time amend the Plan and the terms and conditions of
any Option thereafter to be granted and, without limiting the generality of the
foregoing, may make such amendment for the purpose of meeting any changes in any
relevant law, rule or regulation applicable to the Plan, any Option or the
Shares, or for any other purpose which may be permitted by all relevant laws,
rules and regulations provided always that any such amendment shall not alter
the terms or conditions of any Option or impair any right of any Option Holder
pursuant to any Option awarded prior to such amendment.
6.2 RETROSPECTIVE AMENDMENT
The Board may from time to time retrospectively amend the Plan and, with the
consent of the affected Option Holders, retrospectively amend the terms and
conditions of any Options which have been theretofore granted.
6.3 TERMINATION
The Board may terminate the Plan at any time provided that such termination
shall not alter the terms or conditions of any Option or impair any right of any
Option Holder pursuant to any Option awarded prior to the date of such
termination and notwithstanding such termination the Issuer, such Options and
such Option Holders shall continue to be governed by the provisions of the Plan.
6.4 AGREEMENT
The Issuer and every person to whom an Option is awarded hereunder shall be
bound by and subject to the terms and conditions of the Plan.
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THIS DOCUMENT CONSTITUTES PART
OF A PROSPECTUS COVERING
SECURITIES THAT HAVE BEEN
REGISTERED UNDER THE
SECURITIES ACT OF 1933.
SCHEDULE "A"
STOCK OPTION PLAN
TO: The Administrator, Stock Option Plan
c/o Canmax Inc.
150 West John Carpenter Freeway Irving, Texas 75039
The undersigned hereby irrevocably gives notice, pursuant to Canmax Inc. (The
"Company") Stock Option Plan (the "Plan"), of the exercise of the Option to
acquire and hereby subscribes for (cross out inapplicable item):
(a) all of the Shares; or
(b) of the Shares, which are the subject of the Option Certificate
attached hereto.
The undersigned tenders herewith a certified check or bank draft (circle one)
payable to Canmax Inc. in an amount equal to the aggregate Exercise Price of the
aforesaid shares and directs the Company to issue the certificate evidencing
said shares in the name of the undersigned to be mailed to the undersigned at
the following address:
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DATED the ___________ day of ______________, 19___.
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Signature of Option Holder
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Name of Option Holder
(Print)
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