EXHIBIT 4.4
AMENDED AND RESTATED
STOCK OPTION AGREEMENT
TOUCAN GOLD CORPORATION
A Nonqualified Stock Option (the "Option") for a total of 200,000
shares (the "Shares") of common stock, par value $.01 per share (the "Common
Stock"), of Toucan Gold Corporation, a Delaware corporation (the "Company"), is
hereby granted to Xxxxxx X. Xxxxxxxx (the "Optionee") pursuant to the terms of
this Option Agreement (the "Option Agreement").
WHEREAS, the Company and Jeffcock are parties to that certain Stock
Option Agreement, dated as of February 2, 1998 (the "Agreement");
WHEREAS, the Board of Directors of the Company has approved Amendment
Number One to Stock Option Agreement, dated as of April 27, 1999 (the
"Amendment"); and
WHEREAS, the Option has been amended and restated, inter alia, to
delete and replace erroneous information concerning the number of stock options
granted to Optionee in the Agreement and Amendment;
NOW, THEREFORE, the Option is amended and restated as follows:
Section 1. Exercise Price. The exercise price of the Option is $1.00
for each Share.
Section 2. Exercise of the Option. This Option may be exercised at any
time after the date of Grant, subject to its expiration date and subject to the
provisions contained in Sections 3 and 4 below. This Option will expire by its
terms on January 1, 2001.
(a) Method of Exercise. Options shall be deemed properly
exercised when:
(i) the Company has received written notice of such
exercise, stating the number of Shares which are being
purchased, delivered to the Company and signed by the person
or persons entitled to exercise the Option and, if the Option
is being exercised by any person or persons other than the
Optionee, be accompanied by proof, satisfactory to the
Company, of the right of such person or persons to exercise
the Option;
(ii) full payment of the exercise price of the Shares
as to which the Option is exercised has been tendered to the
Company; and
(iii) arrangements that are satisfactory to the Board
of Directors of the Company (the "Board") in its sole
discretion have been made for the Optionee's payment to the
Company of the amount, if any, that the Company determines to
be necessary for the Company to withhold in accordance with
applicable federal or state income tax withholding
requirements.
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(b) Payment. The exercise price of any Shares purchased shall
be paid in cash, by certified or cashier's check, by money order or by
personal check (if approved by the Board).
(c) Restrictions on Exercise.
(i) This Option may not be exercised if the issuance
of the Shares upon such exercise would constitute a violation
of any applicable federal or state securities or other law or
valid regulation. As a condition to the exercise of this
Option, the Company may require the exercising person to make
any agreements and undertakings that may be required by any
applicable law or regulation.
(ii) Shares issued upon the exercise of this Option
without registration of such Shares under the Securities Act
of 1933, as amended (the "Act"), shall be restricted
securities subject to the terms of Rule 144 under the Act. The
certificates representing any such Shares shall bear an
appropriate legend restricting transfer and the transfer agent
of the Company shall be given stop transfer instructions with
respect to such Shares.
Section 3. Term of Option. This Option may not be exercised after
January 1, 2001 and is subject to earlier termination as provided in Section 4.
In addition, this Option is subject to cancellation by the Company upon a
significant corporate event as provided in Section 4 below. This Option may be
exercised during such times only in accordance with the terms of this Option
Agreement.
Section 4. Termination of Option Period.
(a) The unexercised portion of this Option shall automatically
and without notice terminate and become null and void at the time of
the earliest to occur of the following:
(i) the date that the Optionee ceases to be a
director, consultant to or ceases to be employed by, as the
case may be, the Company or a subsidiary as a result of a
termination for Cause.
The term "Cause," for purposes of this Agreement, shall mean
any one or more of the following:
(w) Optionee's failure to carry out
lawful directives of the Chief
Executive Officer of the Company.
(x) Optionee's performance of any
criminal acts (excluding traffic
violations and other minor
offenses);
(y) Optionee's theft or embezzlement of
property, including trade secrets,
of the company; or
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(z) Optionee's negligence in the perfor-
xxxxx of his duties.
(ii) January 1, 2001.
(b) The Company in its sole discretion may, by giving written
notice (a "Cancellation Notice") prior to the consummation of any of
the transaction described in Section 4(b)(i) or 4(b)(ii), cancel,
effective upon the date of the consummation of any of such
transactions, all or any portion of this Option that remains
unexercised on such date. Such Cancellation Notice shall be given a
reasonable period of time (but not less than 15 days) prior to the
proposed date of such cancellation, and may be given either before or
after stockholder approval of such transaction.
(i) Any transaction (which shall include a series of
transactions occurring within 60 days or occurring pursuant to
a plan) that has the result that stockholders of the Company
immediately before such transaction cease to own at least 51%
of (x) the voting stock of the Company or (y) any entity that
results from the participation of the Company in a
reorganization, consolidation, merger, liquidation or any
other form of corporate transaction.
(ii) A sale, lease, exchange or other disposition of
all or substantially all the property and assets of the
Company to an unaffiliated third party.
(iii) Neither (i) nor (ii) of this Section 4(b)
shall, directly or indirectly, include (x) a
reverse-acquisition involving the Corporation and any third
party entity or (y) the exercise by Minmet PLC of its option
to acquire all of the issued share capital of MBL.
Section 5. Adjustment of Shares.
(a) If at any time while unexercised Options are outstanding
hereunder, there shall be any increase or decrease in the number of
issued and outstanding shares of Common Stock through the declaration
of a stock dividend or through any recapitalization resulting in a
stock split-up, combination or exchange of shares, then and in such
event appropriate adjustment shall be made in the number of Shares and
the exercise price per Share thereof then subject to this Option, so
that the same proportion of the Company's issued and outstanding shares
shall remain subject to purchase at the same aggregate exercise price.
(b) Except as otherwise expressly provided herein, the
issuance by the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class,
either in connection with direct sale or upon the exercise of rights or
warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to the number of or exercise price of Shares then
subject to this Option.
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(c) Without limiting the generality of the foregoing, the
existence of this Option shall not affect in any manner the right or
power of the Company to make, authorize or consummate (i) any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issue by the Company of debt
securities, or preferred or preference stock that would rank above the
Shares subject to this Option; (iv) the dissolution or liquidation of
the Company; (v) any sale, transfer or assignment of all or any part of
the assets or business of the Company; or (vi) any other corporate act
or proceeding, whether of a similar character or otherwise.
Section 6. Assignability of Option. This Option may be transferred or
assigned by the Optionee only to family members, trusts for the benefit of the
Optionee or for the benefit of the Optionee's family members, other entities for
the benefit of the Optionee, by will or by the laws of descent and distribution.
Other than these enumerated entities, the Option may not be transferred by the
Optionee.
Section 7. Issuance of Shares. No person shall be, or have any rights
or privileges of, a stockholder of the Company with respect to any of the Shares
subject to this Option unless and until certificates representing such Shares
have been issued and delivered to such person. As a condition of an issuance of
a stock certificate for Shares, the Company may obtain such agreements or
undertakings, if any, as it may deem necessary or advisable to assure compliance
with any provision of this Option Agreement or any law or regulation, including,
but not limited to, the following:
(a) The Optionee's representation and warranty to the Company,
at the time the Option is exercised, that the Shares to be issued are
being acquired for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and
(b) the Optionee's representation, warranty or agreement to be
bound by any legends that are, in the opinion of the Company, necessary or
appropriate to comply with the provisions of any securities law deemed by the
Company to be applicable to the issuance of the Shares and to be endorsed upon
the certificates representing the Shares.
Section 8. Administration of this Option.
(a) The determinations and the interpretation and construction
of any provision of this Option by the Company shall be final and
conclusive.
(b) Subject to the express provisions of this Option, the
Company shall have the authority, in its sole and absolute discretion
(i) to adopt, amend, and rescind administrative and interpretive rules
and regulations relating to this Option; (ii) to construe the terms of
this Option; (iii) as provided in Section 5, upon certain events to
make appropriate adjustments to the exercise price and number of Shares
subject to this Option; and (iv) to make all other determinations and
perform all other acts necessary or advisable for administering this
Option, including the delegation of such ministerial acts and
responsibilities as the Company deems appropriate. The Company may
correct any defect or supply any omission or reconcile any
inconsistency in this Option in the manner and to the extent it shall
deem expedient to carry
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it into effect, and it shall be the sole and final judge of such
expediency. The Company shall have full discretion to make all
determinations on the matters referred to in this Section 8(b), and
such determinations shall be final, binding and conclusive.
Section 9. Government Regulations. The granting and exercise of this
Option and the obligation of the Company to sell and deliver Shares under this
Option, shall be subject to all applicable laws, rules and regulations, and to
such approvals by any governmental agencies or national securities exchanges as
may be required.
Section 10. Law Governing. THIS OPTION IS INTENDED TO BE PERFORMED IN
THE STATE OF DELAWARE AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE EXCEPT TO THE EXTENT DELAWARE LAW IS
PREEMPTED BY FEDERAL LAW.
Section 11. Notices. Whenever any notice is required or permitted under
this Option Agreement, such notice must be in writing and personally delivered
or sent by mail or delivery by a nationally recognized courier service. Any
notice required or permitted to be delivered under this Option Agreement shall
be deemed to be delivered on the date on which it is personally delivered, or,
if mailed, whether actually received or not, on the third Business Day after it
is deposited in the United States mail, certified or registered, postage
prepaid, addressed to the person who is to receive it at the address that such
person has previously specified by written notice delivered in accordance with
this subsection. The Company or the Optionee may change, at any time and from
time to time, by written notice to the other, the address that was previously
specified for receiving notices. Until changed in accordance with this Option
Agreement, the Company and the Optionee shall specify as its or his address for
receiving notices the address set forth in this Option Agreement pertaining to
the Shares to which such notice relates.
Section 12. Miscellaneous.
(a) This Option is in addition to any other stock option plans
of the Company or other benefits with respect to the Optionee's
position with or relationship to the Company or its subsidiaries. This
Option shall not confer upon the Optionee the right to continue as an
employee, consultant or advisor, or interfere in any way with the
rights of the Company to terminate the Optionee's status as an
employee, consultant or advisor.
(b) The members of the Board shall not be liable for any act,
omission or determination taken or made in good faith with respect to
this Option, and members of the Board shall, in addition to all other
rights of indemnification and reimbursement, be entitled to
indemnification and reimbursement by the Company in respect of any
claim, loss, damage, liability or expense (including attorneys' fees,
the costs of settling any suit, provided such settlement is approved by
independent legal counsel selected by the Company, and amounts paid in
satisfaction of a judgment, except a judgment based on a finding of bad
faith) arising from such claim, loss, damage, liability or expense to
the full extent permitted by law and under any directors' and officers'
liability or similar insurance coverage that may from time to time be
in effect.
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(c) Any issuance or transfer of Shares to the Optionee, or to
the Optionee's legal representative, heir, legatee, or distributee, in
accordance with the provisions of this Option, shall, to the extent
thereof, be in full satisfaction of all claims of such persons under
this Option. The Company may require the Optionee, or any legal
representative, heir, legatee or distributee as a condition precedent
to such payment or issuance or transfer of Shares, to execute a release
and receipt for such payment or issuance or transfer of Shares in such
form as it shall determine.
(d) Neither the Board nor the Company guarantees Shares from
loss or depreciation.
(e) All expenses incident to the administration, termination,
or protection of this Option, including, but not limited to, legal and
accounting fees, shall be paid by the Company; provided, however, the
Company may recover any and all damages, fees, expenses and costs
arising out of any actions taken by the Company to enforce its rights
under this Option.
(f) Records of the Company shall be conclusive for all
purposes under this Option, unless determined by the Board to be
incorrect.
(g) Any action required of the Company relating to this Option
shall be by resolution of the Board or by a person authorized to act by
resolution of the Board.
(h) If any provision of this Option is held to be illegal or
invalid for any reason, the illegality or invalidity shall not affect
the remaining provisions of this Option, but such provision shall be
fully severable, and this Option shall be construed and enforced as if
the illegal or invalid provision had never been included in this
Option.
(i) Any person entitled to notice under this Option may waive
such notice.
(j) This Option shall be binding upon the Optionee, his legal
representatives, heirs, legatees and distributees upon the Company, its
successors, and assigns, and upon the Board and its successors.
(k) The titles and headings of Sections are included for
convenience of reference only and are not to be considered in
construction of this Option's provisions.
(l) Words used in the masculine shall apply to the feminine
where applicable, and wherever the context of this Option dictates, the
plural shall be read as the singular and the singular as the plural.
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Toucan Gold Corporation
Dated as of:
April 1, 1999
By:
-----------------
Xxxxxx X. Xxxxxx
Vice President
ADDRESS:
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
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Optionee hereby accepts this Option subject to all the terms and
provisions of this Option Agreement.
By:
---------------------
Xxxxxx X. Xxxxxxxx
Optionee
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