EXHIBIT
4.1
MAR KED MINERAL EXPLORATION,
INC.
N/K/A
NORTH AMERICAN ENERGY
RESOURCES, INC.
STOCK OPTION
PLAN
July 23,
2008
1.PURPOSE OF PLAN;
ADMINISTRATION
The NORTH
AMERICAN ENERGY RESOURCES, INC. Stock Option Plan (hereinafter, the
“Plan”), is hereby established to grant to directors,
officers and other employees of North American Energy Resources,
Inc., a Nevada corporation (the “Company”) or its
parents or subsidiaries (as defined in Sections 424(e) and (f),
respectively, of the Internal Revenue Code of 1986, as amended (the
“Code”), if any, and to non-employee directors,
consultants and advisors and other persons who may perform
significant services for or on behalf of the Company, a favorable
opportunity to acquire common stock, $.001 par value (“Common
Stock”), of the Company and, thereby, to create an incentive
for such persons to remain in the employ of or provide services to
the Company and to contribute to its success.
The Company may
grant under the Plan both incentive stock options within the
meaning of Section 422 of the Code (“Incentive Stock
Options”) and stock options that do not qualify for treatment
as Incentive Stock Options (“Nonstatutory Options”).
Unless expressly provided to the contrary herein, all references
herein to “options,” shall include both incentive Stock
Options and Nonstatutory Options.
The Plan shall
be administered by the Board of Directors of the Company (the
“Board”), if each member is a “Non-Employee
Director” within the meaning of Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (“Rule 16b-3"),
or a committee (the “Committee”) of two or more
directors, each of whom is a Non-Employee Director. Appointment of
Committee members shall be effective upon acceptance of
appointment. Committee members may resign at any time by delivering
written notice to the Board. Vacancies in the Committee may be
filled by the Board.
A majority of
the members of the Committee shall constitute a quorum for the
purposes of the Plan. Provided a quorum is present, the Committee
may take action by affirmative vote or consent of a majority of its
members present at a meeting. Meetings may be held telephonically
as long as all members are able to hear one another, and a member
of the Committee shall be deemed to be present for this purpose if
he or she is in simultaneous communication by telephone with the
other members who are able to hear one another. In lieu of action
at a meeting, the Committee may act by written consent of a
majority of its members.
Subject to the
express provisions of the Plan, the Committee shall have the
authority to construe and interpret the Plan and all Stock Option
Agreements (as defined in Section 3.4) entered into pursuant hereto
and to define the terms used therein, to prescribe, adopt, amend
and rescind rules and regulations relating to the administration of
the Plan and to make all other determinations necessary or
advisable for the administration of the Plan; provided, however,
that the Committee may delegate nondiscretionary administrative
duties to such employees of the Company as it deems proper; and,
provided, further, in its absolute discretion, the Board may at any
time and from time to time exercise any and all rights and duties
of the Committee under the Plan. Subject to the express limitations
of the Plan, the Committee shall designate the individuals from
among the class of persons eligible to participate as provided in
Section 1.3 who shall receive options, whether an optionee will
receive Incentive Stock Options or Nonstatutory Options, or both,
and the amount, price, restrictions and all other terms and
provisions of such options (which need not be
identical).
Members of the
Committee shall receive such compensation for their services as
members as may be determined by the Board. All expenses and
liabilities which members of the Committee incur in connection with
the administration of this Plan shall be borne by the Company. The
Committee may, with the approval of the Board, employ attorneys,
consultants, accountants, appraisers, brokers or other persons. The
Committee, the Company and the Company’s officers and
directors shall be entitled to rely upon the advice, opinions or
valuations of any such persons. No members of the Committee or the
Board shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan, and all
members of the Committee shall be fully protected by the Company in
respect of any such action, determination or
interpretation.
Officers and
other employees of the Company, employee and non-employee
directors, consultants and advisors and other persons who may
perform significant services on behalf of the Company shall be
eligible for selection to participate in the Plan upon approval by
the Committee; provided, however, that only “employees”
(within the meaning of Section 3401(c) of the Code) of the Company
shall be eligible for the grant of Incentive Stock Options. An
individual who has been granted an option may, if otherwise
eligible, be granted additional options if the Committee shall so
determine. No person is eligible to participate in the Plan by
matter of right; only those eligible persons who are selected by
the Committee in its discretion shall participate in the
Plan.
1.4
Stock Subject to the
Plan .
Subject to
adjustment as provided in Section 3.5, the stock to be offered
under the Plan shall be shares of authorized but unissued Common
Stock, including any shares repurchased under the terms of the Plan
or any Stock Option Agreement entered into pursuant hereto. The
cumulative number of shares of Common Stock to be issued under the
Plan shall not exceed 2, 500,000, subject to adjustment as set
forth in Section 3.5.
If any option granted hereunder shall expire or
terminate for any reason without having been fully exercised, the
unpurchased shares subject thereto shall again be available for the
purposes of the Plan. For purposes of this Section 1.4, where the
exercise price of options is paid by means of the grantee’s
surrender of previously owned shares of Common Stock, only the net
number of additional shares of Common Stock, which remain
outstanding in connection with such exercise shall be deemed
“issued” for purposes of the Plan.
2.1
Exercise Price;
Payment .
(a)
The exercise price of each
Incentive Stock Option granted under the Plan shall be determined
by the Committee, but shall not be less than 100% of the
“Fair Market Value” (as defined below) of Common Stock
on the date of grant. If an Incentive Stock Option is granted to an
employee who at the time such option is granted owns (within the
meaning of section 424(d) of the Code) more than 10% of the total
combined voting power of all classes of capital stock of the
Company, the option exercise price shall be at least 110% of the
Fair Market Value of Common Stock on the date of grant. The
exercise price of each Nonstatutory Option also shall be determined
by the Committee, but shall not be less than 85% of the Fair Market
Value of Common Stock on the date of grant. The status of each
option granted under the Plan as either an Incentive Stock Option
or a Nonstatutory Option shall be determined by the Committee at
the time the Committee acts to grant the option, and shall be
clearly identified as such in the Stock Option Agreement relating
thereto.
“Fair
Market Value” for purposes of the Plan shall mean: (i) the
closing price of a share of Common Stock on the principal exchange
on which shares of Common Stock are then trading, if any, on the
day immediately preceding the date of grant, or, if shares were not
traded on the day preceding such date of grant, then on the next
preceding trading day during which a sale occurred; or (ii) if
Common Stock is not traded on an exchange but is quoted on Nasdaq
or a successor quotation system, (1) the last sales price (if
Common Stock is then listed on the Nasdaq Stock Market) or (2) the
mean between the closing representative bid and asked price (in all
other cases) for Common Stock on the day prior to the date of grant
as reported by Nasdaq or such successor quotation system; or (iii)
if there is no listing or trading of Common Stock either on a
national exchange or over-the-counter, that price determined in
good faith by the Committee to be the fair value per share of
Common Stock, based upon such evidence as it deems necessary or
advisable.
(b)
In the discretion of the Committee
at the time the option is exercised, the exercise price of any
option granted under the Plan shall be paid in full in cash, by
check or by the optionee’s interest-bearing promissory note
(subject to any limitations of applicable state corporations law)
delivered at the time of exercise; provided, however, that subject
to the timing requirements of Section 2.7, in the discretion of the
Committee and upon receipt of all regulatory approvals, the person
exercising the option may deliver as payment in whole or in part of
such exercise price certificates for Common Stock of the Company
(duly endorsed or with duly endorsed stock powers attached), which
shall be valued at its Fair Market Value on the day of exercise fo
the option, or other property deemed appropriate by the Committee;
and, provided further, that subject to Section 422 of the Code,
so-called cashless exercises as permitted under applicable rules
and regulations of the Securities and Exchange Commission and the
Federal Reserve Board shall be permitted in the discretion of the
Committee. Without limiting the Committee’s discretion in
this regard, consecutive book entry stock-for-stock exercises of
options (or “pyramiding”) also are permitted in the
Committee’s discretion.
Irrespective of
the form of payment, the delivery of shares issuable upon the
exercise of an option shall be conditioned upon payment by the
optionee to the Company of amounts sufficient to enable the Company
to pay all federal, state, and local withholding taxes resulting
in, the Company’s judgment, from the exercise. In the
discretion of the Committee, such payment to the Company may be
effected through (i) the Company’s withholding from the
number of shares of Common Stock that would otherwise be delivered
to the optionee by the Company on exercise of the option a number
of shares of Common Stock equal in value (as determined by the Fair
Market Value of Common Stock on the date of the exercise) to the
aggregate withholding taxes, (ii) payment by the optionee to the
Company of the aggregate withholding taxes in cash, (iii)
withholding by the Company from other amounts contemporaneously
owed by the Company to the optionee, or (iv) any combination of
these three methods, as determined by the Committee in its
discretion.
(a)
The Committee shall provide, in the
terms of each Stock Option Agreement, when the option subject to
such agreement expires and becomes unexercisable, but in no event
will an Incentive Stock Option granted under the Plan be
exercisable after the expiration of ten years from the date is
granted. Without limiting the generality of the foregoing, the
Committee may provide in the Stock Option Agreement that the option
subject thereto expires 30 days following a Termination of
Employment (as defined in Section 3.2 hereof) for any reason other
than death or disability, or six months following a Termination of
Employment for disability or following an optionee’s
death.
(b)
Outside Date for Exercise.
Notwithstanding any provisions of this Section 2.2, in no event
shall any option granted under the Plan be exercised after the
expiration date of such option set forth in the applicable Stock
Option Agreement.
2.3
Exercise of
Options .
Each option
granted under the Plan shall become exercisable and the total
number of shares subject thereto shall be purchaseable, in a lump
sum or in such installments, which need not be equal, as the
Committee shall determine; provided, however, that each option
shall become exercisable in full no later than ten years after such
option is granted, and each option shall become exercisable as to
at least 10% of the shares of Common Stock covered thereby on each
anniversary of the date such option is granted; and provided,
further, that if the holder of an option shall not in any given
installment period purchase all of the shares which such holder is
entitled to purchase in such installment period, such
holder’s right to purchase any share not purchased in such
installment period shall continue until the expiration or sooner
termination of such holder’s option. The Committee may, at
any time after grant of the option and from time to time, increase
the number of shares purchasable in any installment, subject to the
total number of shares subject to the option and the limitations
set forth in Section 2.5. At any time and from time to time prior
to the time when any exercisable option or exercisable portion
thereof becomes unexercisable under the Plan or the
applic
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