EXHIBIT 10.3
Wits Basin Precious Minerals Inc.
Amended and Restated Stock Option Agreement
(Non-Statutory)
This
agreement effective as of May 29, 2008 (the
“Agreement”) amends and restates the stock option
agreement between Deborah King (“
Optionee ”),
and Wits Basin Precious Minerals Inc., a Minnesota corporation (the
“
Company ”)
dated March 12, 2007.
Background
A.
Stephen
D. King is currently the Chief Executive Officer of the
Company, and the Company granted to Mr. King an option to
purchase up to 3,000,000 shares of common stock of the Company
on March 9, 2007 (the “
Original Option Agreement ”).
B.
The
Company has adopted the 2007 Stock Incentive Plan (the
“
Plan ”)
pursuant to which shares of common stock of the Company have been
reserved for issuance under the Plan.
C.
The
Plan allows for assignment of an option and Mr. King so
directed and authorized the Company to assign the Original
Option Agreement over to his spouse, Deborah King, effective
March 12, 2007 (the “
Former Option Agreement ”).
D.
Pursuant
to negotiations between Mr. King and the Company’s
Compensation Committee, Mr. King requested modifications to
the vesting schedule under certain conditions as stated in the
Former Option Agreement.
E.
The
Company and Mrs. King hereby amend and restate the Former
Option Agreement in its entirety as follows.
Now,
Therefore ,
the parties hereto agree as follows:
1.
Incorporation by Reference .
The terms of the Plan, a copy of which has been delivered to
Optionee, are hereby incorporated herein and made a part hereof by
reference as if set forth in full. In the event of any conflict or
inconsistency between the provisions of this Agreement and those of
the Plan, the provisions of the Plan shall govern and
control.
2.
Grant of Option; Purchase Price .
Subject to the terms and conditions herein set forth, the Company
hereby irrevocably grants from the Plan to Optionee the right and
option, hereinafter called the “
Option ”,
to purchase all or any part of an aggregate of 3,000,000 shares of
common stock of the Company (the “
Shares ”)
at the price per Share of $1.02.
3.
Exercise and Vesting of Option .
The Option shall be exercisable only to the extent that all, or any
portion thereof, has vested in the Optionee. Except as provided in
Paragraphs 4 and 5 below, the right to purchase the Shares subject
to the Option shall vest pro rata in three annual installments
beginning on March 9, 2008 and continuing each year thereafter
until the Option is fully vested (the “
Annual Installments ”),
as set forth in the following schedule, so long as Mr. King
continues to be employed by the Company (each such date is
hereinafter referred to singularly as a “
Vesting Date ”
and collectively as “
Vesting Dates ”):
|
Total Shares Subject
to Vesting Date
|
|
Vesting Date
|
| |
|
|
|
1,000,000
|
|
March
9, 2008
|
|
1,000,000
|
|
March
9, 2009
|
|
1,000,000
|
|
March
9, 2010
|
4.
Acceleration of Vesting .
Notwithstanding the above, all of the Shares will become
immediately vested if the closing sale price of the Company’s
common stock (as quoted on the OTCBB or an exchange) remains at or
above $1.00 per share for 30 trading days. Additionally, the entire
unvested portion of the Option will immediately vest upon Mr.
King’s death, upon the occurrence of a Change in Control (as
defined below), or upon the Company’s termination of Mr. King
for any reason except for Cause (as defined in the employment
agreement between the Company and Mr. King dated May 29, 2008).
“Change in Control” means (i) the acquisition, directly
or indirectly by any person (as such term is defined in Section
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended), in one transaction or a series of related transactions,
of securities of the Company representing in excess of 50% or
more
|
