Exhibit 10.2
GOLDEN STAR RESOURCES
LTD.
SECOND AMENDED AND RESTATED 1997
STOCK OPTION PLAN
(Effective Date of Amendment
April 8, 2004)
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1.1
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The purpose of
the 1997 Stock Option Plan (the “Plan”) is to advance
the interests of Golden Star Resources Ltd. (the
“Corporation”) by encouraging equity participation in
the Corporation by selected key employees, consultants and
directors of the Corporation or subsidiaries of the Corporation
through the acquisition of common shares without par value
(“Shares”) in the Corporation. Any reference herein to
the Corporation or any subsidiary of the Corporation shall be
deemed to refer to any predecessor or successor corporation
thereto.
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It is the further purpose of this
Plan to permit the granting of awards that will constitute
performance-based compensation for certain executive officers, as
described in section 162(m) of the United States Internal Revenue
Code of 1986, as amended (the “Code”), and regulations
promulgated thereunder.
As of the effective date of the
Plan, the 1992 Employees’ Stock Option Plan and the 1992
Non-Discretionary Directors’ Stock Option Plan (collectively,
the “1992 Plans”) will be terminated subject to the
assumption under the Plan of outstanding options granted under the
1992 Plans.
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2.
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ADMINISTRATION OF THE PLAN
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2.1
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The Plan will be administered by
a specifically designated independent committee (“Independent
Committee”) of the Board of Directors of the Corporation (the
“Board of Directors”), except that with respect to
options granted to non-employee directors of the Corporation, the
Board of Directors shall serve as the Committee, and, where
applicable, any reference herein to the Independent Committee shall
be deemed to refer to the Board of Directors. The Independent
Committee shall consist of such two or more directors of the
Corporation as the Board of Directors may designate from time to
time, all of whom shall be and remain directors of the Corporation.
To the extent necessary to comply with Code section 162(m) or Rule
16b-3 under the Securities Exchange Act of 1934 (the
“Exchange Act”), as amended (“Rule 16b-3”),
each member of the Independent Committee shall be intended to be an
“outside director” within the meaning of Code section
162(m) or a “non-employee director” within the meaning
of Rule 16b-3. The Independent Committee is authorized to interpret
and to implement the Plan and all Plan agreements and may from time
to time amend or rescind rules and regulations required for
carrying out the Plan. The Independent Committee shall have the
authority to exercise all of the powers granted to it under the
Plan, to make any determination necessary or advisable in
administering the Plan and to correct any defect, supply any
omission and reconcile any
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1
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inconsistency in the Plan. Any such
interpretation or construction of any provision of the Plan shall
be final and conclusive. Notwithstanding the foregoing, the Board
of Directors may resolve to administer the Plan with respect to all
of the Plan or certain participants and/or awards made or to be
made under the Plan. To the extent that the Board of Directors
determines to administer the Plan, all references herein to the
Independent Committee shall be deemed to refer to the Board of
Directors.
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All administrative costs of the Plan
shall be paid by the Corporation. No member of the Independent
Committee shall be liable for any action or determination made in
good faith with respect to the Plan or any option granted under
it.
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3.1
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Options may be
granted under the Plan to persons who are directors or key
employees (including officers, whether or not directors, and
part-time employees) of, or independent consultants to, the
Corporation or any of its subsidiaries who, by the nature of their
positions or jobs, are in the opinion of the Independent Committee
in a position to contribute to the success of the Corporation or
any of its subsidiaries or who, by virtue of their length of
service to the Corporation or to any of its subsidiaries are, in
the opinion of the Independent Committee, worthy of special
recognition. Designation of a participant in any year shall not
require the designation of such person to receive an option in any
other year. The Independent Committee shall consider such factors
as it deems pertinent in selecting participants and in determining
the amount and terms of their respective options.
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3.2
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Subject to
applicable regulatory approval, options may also be granted under
the Plan in exchange for outstanding options granted by the
Corporation, whether such outstanding options are granted under the
Plan, under any other stock option plan of the Corporation or under
any stock option agreement with the Corporation. Options granted
under the 1992 Plans which are outstanding upon the effectiveness
of the Plan will be assumed and will be deemed to be governed by
the Plan as of such date.
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3.3
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Options may
also be granted under the Plan in substitution for outstanding
options of another corporation in connection with a plan of
arrangement, amalgamation, merger, consolidation, acquisition of
property or shares, or other reorganization between or involving
such other corporation and the Corporation or any of its
subsidiaries.
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4.
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NUMBER OF
SHARES RESERVED UNDER THE PLAN
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4.1
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The number of
Shares reserved for issuance under the Plan is limited as
follows:
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(a)
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the maximum
number of Shares issuable pursuant to the exercise of options
granted under the Plan shall be 15,000,000 (including such number
of Shares issuable upon exercise of options granted under the 1992
Plan as of the effective date of the Plan) provided, however, if,
after the effective date of the Plan, any Shares covered by an
option granted under the Plan, or to which such an option relates,
are forfeited, or if an option has expired, terminated or been
cancelled for any reason whatsoever (other than by reason of
exercise), then the Shares covered by such option shall again be,
or shall become, Shares with respect to which options may be
granted hereunder;
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2
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(b)
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the number of
Shares that may be reserved from time to time under the Plan for
issuance to Insiders (as defined below) of the Corporation shall be
limited to that number which is equal to the difference between
(i) 10% of the outstanding number of Shares from time to time,
and (ii) the number of Shares that are reserved for issuance
to Insiders pursuant to stock options granted under other stock
option plans or arrangements of the Corporation;
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(c)
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the total
number of Shares issuable within any one-year period to all
Insiders of the Corporation pursuant to the exercise of vested
options granted under the Plan or pursuant to any other share
compensation arrangements of the Corporation shall not exceed 10%
of the Outstanding Issue;
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(d)
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the total
number of Shares reserved for issuance to any one optionee pursuant
to options granted under the Plan or other stock option plans or
arrangements of the Corporation shall not exceed 5% of the
outstanding number of Shares from time to time; and
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(e)
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the total
number of Shares issuable within any one-year period to an Insider
and, if applicable, such Insider’s “associates”
(as defined under the Securities Act (Ontario) pursuant to
the exercise of vested options granted under the Plan or any other
share compensation arrangements of the Corporation shall not exceed
5% of the Outstanding Issue.
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“Insiders” has the
meaning set forth in the Toronto Stock Exchange’s policy
issued March 22, 1994 entitled “Employee Stock Option
and Stock Purchase Plans, Options for Services and Related
Matters.”
“Outstanding Issue”, for
the purposes of the Plan, is determined on the basis of the number
of Shares that are outstanding immediately prior to the Shares
issuance in question, excluding Shares issued pursuant to the Plan
or the Corporation’s other share compensation arrangements
over the preceding one-year period. The maximum number of Shares
set forth in Section 4.1(a) shall be appropriately adjusted in
the event of any subdivision or consolidation of the Shares or in
the discretion of the Independent Committee, to reflect any other
corporate event or change in the Shares.
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5.
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NUMBER OF
OPTIONED SHARES PER OPTIONEE
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5.1
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Subject to
Section 4.1 hereof, the maximum number of Shares subject to
options granted to any one participant under the Plan in any one
calendar year shall not exceed 400,000 (subject to adjustment in
the event of any subdivision or consolidation of the Shares).
Subject to these limitations, however, the determination regarding
the number of optioned Shares that may be granted to each optionee
pursuant to an option will be made by the Independent Committee and
will take into consideration the optionee’s present and
potential contribution to the success of the
Corporation.
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6.1
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The exercise
price per optioned Share shall be determined by the Independent
Committee at the time the option is granted, but such price shall
not be less than the fair market value per Share on the date of
grant. For the purposes of the Plan, “fair market
value” per Share shall mean the closing price of the Shares
on the stock exchange or other market on which the Shares
principally traded on the day immediately preceding the date of
grant.
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7.1
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The period
during which an option may be exercised (the “Option
Period”) shall be determined by the Independent Committee at
the time the option is granted and may be up to 10 years from the
date the option is granted, except as the same may be reduced
pursuant to the provisions of Sections 8 and 9 hereof.
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7.2
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In order to
ensure that the Corporation will receive the benefits contemplated
in exchange for the options granted hereunder, no option shall be
exercisable until it has vested. The vesting schedule for each
option shall be specified in an option agreement as provided for in
Section 12 hereof; provided, however, that the Independent
Committee shall have the right with respect to any one or more
optionees to accelerate the time at which an option may be
exercised. Notwithstanding the foregoing provisions of this
Section 7.2, if there is a Change of Control, as defined
below, then all options outstanding shall become immediately
exercisable.
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For purposes of this Plan, a
“Change of Control” shall mean the occurrence of any of
the following: (i) the sale, lease, transfer, conveyance or
other disposition, in one or a series of related transactions, of
all or substantially all of the assets of the Corporation to any
“person” or “group” (as such terms are used
in Sections 13(d)(3) and 14(d)(2) of the Exchange Act),
(ii) any person or group, is or becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have
“beneficial ownership” of all shares that any such
person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or
indirectly, of more than 50% of the total voting power of the
voting stock of the Corporation, including by way of merger,
consolidation or otherwise or (iii) during any period of two
consecutive years, individuals who at the beginning of such period
constituted the Board of Directors (together with any new directors
whose election by such Board of Directors whose nomination for
election by the shareholders of the Corporation was approved by a
vote of a majority of the directors of the Corporation, then still
in office, who were either directors at the beginning of such
period or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the
Board of Directors, then in office.
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