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GEOVIC MINING
CORP.
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SECOND AMENDED AND RESTATED STOCK OPTION PLAN
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June 6, 2008
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ARTICLE 1
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:
“ Administrator
” means such director or other senior officer or employee of
the Company as may be designated as Administrator by the Board or
the Committee from time to time;
“ Award Date ”
means the date on which the Board grants and announces a particular
Option;
“ Board ”
means the Board of Directors of the Company;
“Code”
means the United States Internal
Revenue Code of 1986, as amended, and the regulations and guidance
promulgated thereunder;
“ Committee ”
has the meaning ascribed to such term in section 5.1;
“ Company ”
means Geovic Mining Corp. and any subsidiary thereof, (within the
meaning of the Securities Act and the Securities Act of 1933), as
the context may apply;
“ Consultant ”
means an individual (or a company wholly owned by the individual)
who (i) provides ongoing consulting, technical, management or other
services to the Company (excluding services provided in relation to
a distribution of the Company’s securities); (ii) possesses
technical, business or management expertise of value to the
Company; (iii) provides the services under a written contract with
the Company; (iv) spends a significant amount of time and attention
to the business and affairs of the Company; and (v) has a
relationship with the Company that enables the individual to be
knowledgeable about the business and affairs of the
Company;
“ Director ”
means a director, senior officer or a Management Company Employee
of the Company;
“ Employee ”
means (i) an individual considered an employee under the Code (i.e.
for whom income tax and other deductions are made by the Company);
(ii) an individual who works full-time for the Company providing
services normally provided by an employee of the Company but for
whom income tax and other deductions are not made by the Company;
and (iii) an individual who works for the Company on a continuing
and regular basis for a minimum amount of time per week, but for
whom income tax and other deductions are not made by the
Company;
“ Exchange ”
means the Toronto Stock Exchange;
“ Exchanged Option
” has the meaning ascribed to such term in section
3.2;
“ 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;
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“ Exercise Period
” means the period during which a particular Option may be
exercised, being the period from and including the Award Date
through to and including the Expiry Date;
“ Exercise Price
” means the price at which an Option may be exercised as
determined in accordance with section 3.5;
“ Expiry Date
” means the date determined in accordance with section 3.3
and after which a particular Option cannot be exercised;
“ Fair Market Value
” means, on any particular date, the simple average of the
closing price per Share for each of the 20 consecutive trading days
immediately before such date on the Exchange, or such other stock
exchange or over-the-counter market as the Shares may then be
listed or quoted (as the case may be), or, if the Shares are not
listed on any stock exchange or quoted for trading by a recognized
over-the-counter market, the Fair Market Value shall be the value
of a Share, as determined by the Board, acting reasonably and in
good faith, which determination shall be conclusive;
“Incentive Stock
Option” means an
Option that is intended to comply with the requirements of Section
422 of the Code or any successor provision thereto;
“ Insider ”
means a Director, a director or senior officer of the Company or of
a company that is an Insider or subsidiary of the Company, or any
person or entity which is required under Section 16(a) of the
Securities Exchange Act of 1934, as amended, to file
beneficial ownership disclosure reports with the United States
Securities and Exchange Commission, including a person or entity
that beneficially owns or controls, directly or indirectly, voting
shares carrying more than 10% of the voting rights attached to all
outstanding voting shares of the Company;
“ Management Company
Employee ” means an individual employed by a company
providing management services to the Company, which are required
for the ongoing successful operation of the business enterprise of
the Company;
“Market
Price” means, as of
any date, the value of the Shares, determined as
follows:
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(i)
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if the Shares are listed on the
Exchange, the Market Price shall be the closing price of the Shares
on the Exchange for the last market trading day prior to the date
of the grant of the Option;
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(ii)
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if the Shares are listed on the
TSX Venture Exchange, the Market Price shall be the closing price
of the Shares on the TSX Venture Exchange for the last market
trading day prior to the date of the grant of the Option less any
discount permitted by the TSX Venture Exchange;
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(iii)
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if the Shares are listed on an
exchange other than the TSX Venture Exchange or the Exchange, the
Market Price shall be the closing price of the Shares (or the
closing bid, if no sales were reported) as quoted on such exchange
for the last market trading day prior to the date of the grant of
the Option; and
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(iv)
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if the Shares are not listed on
an exchange, the Market Price shall be determined in good faith by
the Board.
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“ Option ”
means an option to acquire Shares, awarded to a Director, Employee
or Consultant pursuant to the Plan;
“ Option Certificate
” means the certificate, substantially in the form set out as
Schedule “A” hereto, evidencing an Option;
“ Option Holder
” means a current or former Director, Employee or Consultant
who holds an unexercised and unexpired Option or, where applicable,
the Personal Representative of such person;
“ Personal
Representative ” means (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;
“ Plan ” means
this stock option plan;
“ RTO ” means
the reverse take-over transaction completed on December 1, 2006,
pursuant to which the Company acquired all of the issued and
outstanding securities of Geovic, Ltd. and Geovic Finance
Corp.;
“ Securities Act
” means the Securities Act (British
Columbia);
“Securities Act of
1933” means the
Securities Act of 1933 (United States), as amended;
and
“ Share ” or
“ Shares ” means, as the case may be, one or
more common shares of the Company, par value of $0.0001 per
share.
1.2 CHOICE OF LAW
The Plan is established under,
and the provisions of the Plan shall be interpreted and construed
solely in accordance with, the laws of the State of Delaware once
the Company is domesticated as a Delaware corporation and the laws
of the United States applicable therein.
1.3 HEADINGS
The headings used herein are for
convenience only and are not to affect the interpretation of the
Plan.
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ARTICLE 2
PURPOSE AND PARTICIPATION
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2.1 PURPOSE
The purpose of the Plan is to
attract, retain and motivate Directors, Employees and Consultants,
to reward such of those persons by the grant of Options under the
Plan by the Board from time to time for their contributions toward
the long term goals of the Company and to enable and encourage such
persons to acquire Shares as long term investments.
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2.2 PARTICIPATION
The Committee shall, from time to
time, in its sole discretion, subject to final approval by the
Board, determine those Directors, Employees and Consultants, 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 section 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 or Consultant, the number
of Shares to be acquired on the exercise of such Option shall be
determined by the Board in its sole discretion, and in so doing the
Board may take into account the following criteria:
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(a)
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the person’s remuneration
as at the Award Date in relation to the total remuneration payable
by the Company to all of its Employees and Consultants as at the
Award Date;
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(b)
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the length of time that the
person has provided services to the Company;
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(c)
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the nature and quality of work
performed by the person;
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(d)
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the anticipated motivation and
incentive of the option holder expected to be achieved from the
issuance of Options; and
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(e)
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other factors deemed relevant at
the time.
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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 this Plan. A copy of any amendment to the Plan shall be
promptly provided by the Administrator to each Option
Holder.
2.5 NO SHAREHOLDER RIGHTS
An Option Holder shall not have
any rights as a shareholder of the Company with respect to any of
the Shares covered by an Option until the Option Holder exercises
such Option in accordance with the terms of the Plan and the
issuance of the Shares by the Company.
2.6 INCOME TAXES
As a condition of and prior to
participation in the Plan, an Option Holder shall authorize the
Company in written form to withhold from any remuneration otherwise
payable to such Option Holder any amounts required by any taxing
authority to be withheld for taxes of any kind as a consequence of
such participation in the Plan, including the exercise of Options
awarded under the Plan.
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2.7 NO REPRESENTATION OR WARRANTY
The Company makes no
representation or warranty as to the future market value of any
Shares issued in accordance with the provisions of the
Plan.
2.8 NO RIGHT TO AWARDS OR EMPLOYMENT
No person shall have any claim or
right to receive an Option under the Plan. None of the Plan, the
grant of Options under the Plan or any action taken or omitted to
be taken under the Plan shall be deemed to create or confer on any
Option Holder any right to be retained in the employ or engagement
of the Company, or to interfere with or to limit in any way the
right of the Company to terminate the employment or engagement of
such Option Holder at any time. No award shall constitute salary,
recurrent compensation or contractual compensation for the year of
grant, any later year or any other period of time. Payments
received by an Option Holder under any Option made pursuant to the
Plan shall not be included in, nor have any effect on, the
determination of employment-related rights or benefits under any
other employee benefit plan or similar arrangement provided by the
Company, unless otherwise specifically provided for under the terms
of such plan or arrangement or by the Board.
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ARTICLE 3
TERMS AND CONDITIONS OF OPTIONS
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3.1 BOARD TO ALLOT SHARES
The Shares to be issued to Option
Holders upon the exercise of Options shall be allotted, authorized
and reserved for issuance by the Board prior to the exercise
thereof.
3.2 NUMBER OF SHARES
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(a)
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Subject to section 3.2(d) hereof,
the maximum number of Shares issuable under the Plan, including
Shares subject to Incentive Stock Option treatment, shall not
exceed a total of 18,700,000, inclusive of all Shares reserved for
issuance under previously granted stock options of Geovic, Ltd.
that were exchanged for options of the Company pursuant to the RTO
(each, an “ Exchanged Option ”), unless
shareholder approval is obtained in advance in accordance with
section 6.2 hereof.
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(b)
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Unless shareholder approval is
obtained in accordance with section 6.2 hereof, the aggregate
number of Shares (including Shares issuable upon the exercise of
Exchanged Options) that may be reserved for issuance to the
Insiders of the Company (i) at the time of grant, or (ii) within a
one-year period, pursuant to this Plan or any other previously
established and outstanding option plans or grants, shall not
exceed 10% of the Shares outstanding at the time of the
grant.
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(c)
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The aggregate number of Shares
reserved for issuance pursuant to this Plan or any other previously
established and outstanding option plans or grants to any one
individual eligible to receive options under the Plan within a
one-year period shall not exceed 5% of the Shares outstanding at
the time of the grant (unless the Company has obtained shareholder
approval to exceed such limit in accordance with section 6.2
hereof).
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(d)
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If any Option or Exchanged Option
has terminated or expired without being fully exercised, any
unissued Shares which have been reserved to be issued upon the
exercise of the Option or the Exchanged Option, as the case may be,
shall become available to be issued upon the exercise of Options
subsequently granted under the Plan. If any Option or Exchanged
Option has been exercised, the number of Shares into which such
Option or such Exchanged Option, as the case may be, was exercised
shall become available to be issued upon the exercise of Options
subsequently granted under the Plan.
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3.3 TERM OF OPTION
Subject to section 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
the Option.
3.4 TERMINATION OF OPTION
Subject to section 3.8(b), 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 the time of grant of the option, fix limits, vesting
requirements or restrictions in respect of which an Option Holder
may exercise all or part of any Option held by him. 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.
(Mountain Standard Time) on the Expiry Date. The Expiry Date of an
Option shall be the earlier of the date so fixed by the Board on
the Award Date referred to in section 3.3 above, and the date
established, if applicable, in subsections (a) and (b) below except
that in the circumstance where the end of the term of an Option
falls within, or within two business days after the end of, a
“black out” or similar period imposed under any insider
trading policy or similar policy of the Company (but not, for
greater certainty, a restrictive period resulting from the Company
or its insiders being the subject of a cease trade order of a
securities regulatory authority). In such circumstances, the end of
the term of such Option shall
