Exhibit 4.3
NEW GOLD
INC.
STOCK OPTION PLAN (2005) (AS
AMENDED ON MAY 3, 2007)
1. PURPOSE OF THE
PLAN
The Company hereby
establishes a stock option plan for directors, officers and Service
Providers (as defined below) of the Company and its subsidiaries,
to be known as the “New Gold Inc. Stock Option Plan
(2005)” (herein “the Plan”). The purpose of the
Plan is to give to directors, officers and Service Providers, as
additional compensation, the opportunity to participate in the
profitability of the Company by granting to such individuals
options, exercisable over periods of up to ten years as determined
by the board of directors of the Company, to buy shares of the
Company at a price equal to the Market Price prevailing on the date
the option is granted.
2.
DEFINITIONS
In the Plan, the
following terms shall have the following meanings:
2.1
“Associate” means an associate as defined in the
Securities Act.
2.2
“Board” means the Board of Directors of the
Company.
2.3 “Change of
Control” means the acquisition by any person or by any person
and a Joint Actor, whether directly or indirectly, of voting
securities (as defined in the Securities Act) of the Company,
which, when added to all other voting securities of the Company at
the time held by such person or by such person and a Joint Actor,
totals for the first time not less than fifty percent (50%) of the
outstanding voting securities of the Company or the votes attached
to those securities are sufficient, if exercised, to elect a
majority of the Board of Directors of the Company.
2.4
“Company” means New Gold Inc. and its
successors.
2.5
“Disability” means any disability with respect to an
Optionee which the Board, in its sole and unfettered discretion,
considers likely to prevent permanently the Optionee
from:
(a)
being employed
or engaged by the Company, its subsidiaries or another employer, in
a position the same as or similar to that in which he was last
employed or engaged by the Company or its subsidiaries;
or
(b)
acting as a director
or officer of the Company or its subsidiaries.
2.6
“Exchange” and “Exchanges” means the
Toronto Stock Exchange and any other stock exchange on which the
Shares are listed.
2.7 “Expiry
Date” means either : (a) the date set by the Board under
section 3.1 of the Plan, as the last date on which an Option may be
exercised; or (b) if the date referred to in subsection 2.7 (a)
falls within a blackout period imposed on the Optionee by the
Company, or within 10 business days thereafter, then that
date which is the 10 th business day after the end of
such blackout period.
- 2 -
2.8 “Grant
Date” means the date specified in an Option Agreement as the
date on which an Option is granted.
2.9
“Insider” means:
(a) an insider as defined in the
Securities Act, other than a person who is an insider solely by
virtue of being a director or senior officer of a subsidiary of the
Company; and
(b) an Associate of any person who
is an insider under subsection (a).
2.10 “Market
Price” of Shares at any Grant Date means, if the Shares are
listed on the Toronto Stock Exchange, the closing price per Share
on the Toronto Stock Exchange or, for the last day Shares were
traded prior to the Grant Date (in accordance with the policies of
the Toronto Stock Exchange as may from time to time apply) or if
the Shares are not listed on any stock exchange, “Market
Price” of Shares means the price per Share on the
over-the-counter market determined by dividing the aggregate sale
price of the Shares sold by the total number of such Shares so sold
on the applicable market for the last day prior to the Grant
Date.
2.11
“Option” means an option to purchase Shares granted
pursuant to this Plan.
2.12 “Option
Agreement” means an agreement, in the form attached hereto as
Schedule “A”, whereby the Company grants to an Optionee
an Option.
2.13
“Optionee” means each of the directors, officers and
Service Providers granted an Option pursuant to this Plan and their
heirs, executors and administrators and, subject to the policies of
the Exchange, an Optionee may also be a corporation wholly-owned by
an individual eligible for an Option grant pursuant to this
Plan.
2.14 “Option
Price” means the price per Share specified in an Option
Agreement, adjusted from time to time in accordance with the
provisions of section 5.
2.15 “Option
Shares” means the aggregate number of Shares which an
Optionee may purchase under an Option.
2.16
“Plan” means this New Gold Inc. Stock Option
Plan.
2.17
“Shares” means the common shares in the capital of the
Company as constituted on the Grant Date provided that, in the
event of any adjustment pursuant to section 5, “Shares”
shall thereafter mean the shares or other property resulting from
the events giving rise to the adjustment.
2.18
“Securities Act” means and includes the Securities Act
(British Columbia) R.S.B.C. 1996, c.418, as amended as at the date
hereof, the Securities Act (Alberta), the Securities Act (Ontario)
R.S.O. 1990 c.5, as amended as at the date hereof and all other
applicable securities acts and regulations of each jurisdiction to
which the Company is subject as a reporting issuer.
- 3 -
2.19 “Service
Provider” means:
(a) an employee or Insider of the
Company or any of its subsidiaries;
(b) any other person or company
engaged to provide ongoing management or consulting services for
the Company or for any entity controlled by the Company;
and
(c) any person who is providing
ongoing management or consulting services to the Company or to any
entity controlled by the Company indirectly through a company that
is a Service Provider under subsection 2.2 (b).
2.20 “Unissued
Option Shares” means the number of Shares, at a particular
time, which have been allotted for issuance upon the exercise of an
Option but which have not been issued, as adjusted from time to
time in accordance with the provisions of section 5, such
adjustments to be cumulative.
2.21
“Vested” means that an Option has become exercisable in
respect of a number of Option Shares by the Optionee pursuant to
the terms of the Option Agreement.
3. GRANT OF
OPTIONS
3.1 Option
Terms
The Board may from
time to time authorize the issue of Options to directors, officers
and Service Providers of the Company and its subsidiaries. The
Option Price under each Option shall be not less than the Market
Price on the Grant Date. The Expiry Date for each Option shall be
set by the Board at the time of issue of the Option and shall not
be more than ten years after the Grant Date. Options shall not be
assignable (or transferable) by the Optionee.
3.2 Limits on
Shares Issuable on Exercise of Options
The maximum number of
Shares to be reserved for issuance and which may in the aggregate
be issuable pursuant to options granted under the Plan shall not
exceed 10 % of the outstanding issued capital of the Company on an
“evergreen” (reloading) basis pursuant to the policies
of the Toronto Stock Exchange (TSX) or such additional amount as
may be approved from time to time by the shareholders of the
Company. The number of Shares issuable to any one Optionee under
the Plan, together with all of the Company’s other previously
established or proposed share compensation arrangements, shall not
exceed 5% of the total number of issued and outstanding shares on a
non-diluted basis. The number of Shares which may be issuable under
the Plan, together with all of the Company’s other previously
established or proposed share compensation arrangements, to any one
Optionee who is an Insider and any Associates of such Insider,
shall not exceed 5% of the outstanding issue within a one-year
period,
- 4 -
For the purposes of
subsection above, “outstanding issue” is determined on
the basis of the number of Shares that are outstanding immediately
prior to the Share issuance in question, including Shares issued
pursuant to Share compensation arrangements over the preceding
one-year period.
3.3 Option
Agreements
Each Option shall be
confirmed by the execution of an Option Agreement. Each Optionee
shall have the option to purchase from the Company the Option
Shares at the time and in the manner set out in the Plan and in the
Option Agreement applicable to that Optionee. The execution of an
Option Agreement shall constitute conclusive evidence that it has
been completed in compliance with this Plan.
4. EXERCISE OF
OPTION
4.1 When Options
May be Exercised
Subject to sections
4.3 and 4.4, an Option may be exercised to purchase any number of
Shares up to the number of Vested Unissued Option Shares at any
time after the Grant Date up to 5:00 p.m. local time on the Expiry
Date and shall not be exercisable thereafter.
4.2 Manner of
Exercise
The Option shall be
exercisable by delivering to the Company a notice specifying the
number of Shares in respect of which the Option is exercised
together with payment in full of the Option Price for each such
Share. Upon notice and payment there will be a binding contract for
the issue of the Shares in respect of which the Option is
exercised, upon and subject to the provisions of the Plan. Delivery
of the Optionee’s cheque payable to the Company in the amount
of the Option Price shall constitute payment of the Option Price
unless the cheque is not honoured upon presentation in which case
the Option shall not have been validly exercised.
4.3 Vesting of
Option Shares
Subject to the
policies of the Exchanges, the Directors may determine and impose
terms upon which each Option shall become Vested in respect of
Option Shares.
4.4 Termination of
Employment
If an Optionee ceases
to be a director, officer or Service Provider of the Company or one
of the Company’s subsidiaries, his or her Option shall be
exercisable as follows:
(a) Death or
Disability
If the Optionee
ceases to be a director, officer or Service Provider of the Company
or a subsidiary of the Company, due to his or her death or
Disability or, in the case of an Optionee that is a company, the
death or Disability of the person who provides management or
consulting services to the Company or to any entity controlled by
the Company, the Option then held by the Optionee shall be
exercisable to acquire Vested Unissued Option Shares at any time up
to but not after the Expiry Date or such earlier date as may be
prescribed by (i) the Board on the Grant Date; or (ii) the policies
of the Exchanges;
- 5 -
(b) Termination
For Cause
If the Optionee, or
in the case of an Option granted to an Optionee who falls under the
definition of Service Provider set out in subsection 2.19 (c), the
Optionee's employer, ceases to be a director, officer or Service
Provider of the Company or a subsidiary of the Company as a result
of termination for cause, as that term is interpreted by the courts
of the jurisdiction in which the Optionee, or, in the case of the
Optionee who satisfies the definition of Service Provider set out
in subparagraph 2.19 (c), of the Optionee’s employer, is
employed or engaged; any outstanding Option held by such Optionee
on the date of such termination, whether in respect of Option
Shares that are Vested or not, shall be cancelled as of that
date.
(c) Early
Retirement, Voluntary Resignation or Termination Other than For
Cause
If the Optionee or,
in the case of an Option granted to an Optionee who falls
under
