EXHIBIT 4.3
STOCK OPTION PLAN AGREEMENT
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Between:
SAVOY CAPITAL INVESTMENTS, INC.
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And:
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of
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Pacific Gems Trading
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Savoy Capital Investments, Inc.
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇
THIS STOCK OPTION PLAN AGREEMENT (the "Agreement") is made and entered into
to be effective as of the 2nd day of January 2004 (the "Date of Grant").
BETWEEN:
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SAVOY CAPITAL INVESTMENTS, INC.,
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a company incorporated under the laws of the State of
Colorado, and having an address for notice and delivery
located at; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Company");
OF THE FIRST PART
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AND:
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of Pacific Gems Trading
Logement No. 2,
Cite Grand Pavois
Antsiranana, Madagascar
(the "Optionee").
OF THE SECOND PART
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WITNESSETH:
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WHEREAS, effective as of January 2, 2004, the Board of Directors of the
Company determined that the Optionee should receive an option to purchase shares
of the Company's common stock (the "Common Stock") in order to provide the
Optionee with an opportunity for investment in the Company and additional
incentive to pursue the success of the Company, said option to be for the number
of shares, at the price per share and on the terms as set forth in this
Agreement;
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AND WHEREAS the Optionee desires to receive an option on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, the parties to this Agreement agree as follows:
1. Grant of Option.
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The Company hereby grants to the Optionee, as a matter of separate
agreement and not in lieu of salary or any other compensation for service, the
right and option (the "Option") to purchase all or any part of an aggregate of
4,500,000 shares of the authorized and unissued U.S. $0.001 par value Common
Stock of the Company (collectively, the "Option Shares") pursuant to the terms
and conditions as set forth in this Agreement.
2. Option Price.
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At any time when shares are to be purchased pursuant to the Option, the
purchase price for each Option Share shall be U.S. $0.10 (the "Option Price").
3. Option Period and Vesting Provisions.
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The option period with respect to all of the Option Shares shall commence
from the Date of Grant and shall terminate three years from the Date of Grant,
unless terminated earlier as provided in this Agreement. If the Optionee's
employment is terminated for any reason other than death or for cause, the
Optionee shall have up to 180 calendar days after the effective date of such
termination for the exercise of any unexercised options and these unexercised
Options shall be exercisable during such 180-day period only to the extent they
were exercisable on the effective date of termination.. If the Optionee's
employment terminates because of death, the Option may be exercised by the
Optionee's estate in full for one year after such death; provided, always, that
payment is tendered within one year after the date of death. If the Optionee's
employment is terminated for cause, any unexercised portion of the Option shall
immediately expire.
Vesting. In addition to and subject to the foregoing and the following
paragraphs, it is hereby acknowledged and agreed that the Option to acquire
Option Shares during the Option Period shall vest in the following manner:
(a) the Optionee shall have the initial vested right to purchase an
aggregate of up to 1,200,000 Option Shares following the Date of Grant
(the "Initial Vesting Date"); and
(b) the Optionee's remaining right to purchase an aggregate of up to an
additional 800,000 Option Shares under the Option shall only vest over
a period of 75 days (the "Second Vesting Date") from the Initial
Vesting Date (this portion of the Option being herein the "Vesting
Option"); and
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(c) the Optionee's remaining right to purchase an aggregate of up to an
additional 800,000 Option Shares under the Option shall only vest over
a period of 75 days (the "Third Vesting Date") from the Second Vesting
Date (this portion of the Option being herein the "Vesting Option").
(d) (the Optionee's remaining right to purchase an aggregate of up to an
additional 850,000 Option Shares under the Option shall only vest over
a period of 75 days (the "Fourth Vesting Date") from the Second
Vesting Date (this portion of the Option being herein the "Vesting
Option").
(e) the Optionee's remaining right to purchase an aggregate of up to an
additional 850,000 Option Shares under the Option shall only vest over
a period of 75 days (the "Fifth Vesting Date") from the Second Vesting
Date (this portion of the Option being herein the "Vesting Option").
4. Exercise of Option.
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(a) The Option may be exercised by delivering to the Company:
(i) a Notice and Agreement of Exercise of Option (the "Notice and
Agreement of Exercise of Option"), substantially in the form
attached hereto as Exhibit "A", specifying the number of Option
Shares with respect to which the Option is exercised, and
(ii) full payment of the Option Price for such shares, either in cash
or by certified cheque, or a combination thereof.
(b) Promptly upon receipt of the Notice and Agreement of Exercise of
Option and the full payment of the Option Price by the Optionee
(including payment or provision for payment of any applicable
withholding or similar taxes), the Company shall deliver to the
Optionee a properly executed certificate or certificates representing
the Option Shares being purchased.
5. Securities Laws Requirements.
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No Option Shares shall be issued unless and until, in the opinion of the
Company, any applicable registration requirements of the United States
Securities Act of 1933, as amended (the "Securities Act"), any applicable
listing requirements of any securities exchange on which stock of the same class
has been listed, and any other requirements of law or any regulatory bodies
having jurisdiction over such issuance and delivery have been fully complied
with. Pursuant to the terms of the Notice and Agreement of Exercise of Option
that shall be delivered to the Company upon each exercise of the Option, the
Optionee, and the Optionee's designate if applicable, shall acknowledge,
represent, warrant and agree as follows:
(a) all Option Shares shall be acquired solely for the account of the
Optionee, or for the account of the Optionee's designate if
applicable, for investment purposes only and with no view to
their resale or other distribution of any kind;
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(b) no Option Shares shall be sold or otherwise distributed in
violation of the Securities Act or any other applicable federal
or state securities laws;
(c) if the Optionee, or the Optionee's designate if applicable, is
subject to reporting requirements under Section 16(a) of the
United States Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Optionee, or the Optionee's designate if
applicable, shall:
(i) be aware that the grant of the Option to purchase Option
Shares is an event that may require reporting on Forms 3, 4
or 5 under Section 16(a) of the Exchange Act;
(ii) be aware that any sale by the Optionee or his immediate
family of the Company's Common Stock or of any of the Option
Shares within six months before or after any grant or
exercise of the Option may create liability for him under
Section 16(b) of the Exchange Act;
(iii) consult with the Optionee's counsel regarding the
application of Section 16(b) of the Exchange Act prior to
any exercise of the Option, and prior to any sale of the
Company's Common Stock or the Option Shares within six
months after any grant or exercise of the Option;
(iv) assist the Company with the filing of the applicable Forms
3, 4 or 5 with the Securities and Exchange Commission; and
(v) timely file all reports required under the federal
securities laws;
(d) the Optionee, or the Optionee's designate if applicable, shall report
all sales of Option Shares to the Company in writing on a form
prescribed by the Company; and
(e) if any of the Option Shares are being acquired solely for the account
of the Optionee's designate, each of the Optionee and the Optionee's
designate is either a consultant or advisor to the Company, the
Optionee is under privity of contract or arrangement with the Company
and each of the Optionee and the Optionee's designate, in such
capacity, has rendered bona fide services to the Company which
include, but are not limited to, financial, administrative and/or
managerial services; provided that neither the Optionee nor the
Optionee's designate rendered or renders services, directly or
indirectly, to promote or maintain a market for the Company's
securities and, furthermore, provided that no such services were
rendered or are being rendered in connection with the offer or sale of
securities in a capital-raising transaction on behalf of the Company;
failing any of which any Option Shares acquired hereunder may not be
or may not have been registerable under the Securities Act and may not
be sold unless they are sold pursuant to an exemption from
registration under the Securities Act.
The foregoing restrictions or notice thereof shall be placed on the
certificates representing the Option Shares purchased pursuant to the Option and
the Company may refuse to issue the certificates or to transfer the shares on
its books unless it is satisfied that no violation of such restrictions will
occur.
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6. Transferability of Option.
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The Option shall not be transferable except by will or the laws of descent
and distribution, and any attempt to do so shall void the Option. During the
Optionee's lifetime the Option is exercisable only by the Optionee, however, and
in accordance with the provisions hereof, any Option Shares being acquired
hereunder may, at the prior direction of the Optionee, be acquired by the
Optionee or by the Optionee's designate.
7. Adjustment by Stock Split, Stock Dividend, etc.
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If at any time the Company increases or decreases the number of its
outstanding shares of Common Stock, or changes in any way the rights and
privileges of such shares, by means of the payment of a stock dividend or the
making of any other distribution on such shares payable in its Common Stock, or
through a stock split or subdivision of shares, or a consolidation or
combination of shares, or through a reclassification or recapitalization
involving its Common Stock, the numbers, rights and privileges of the shares of
Common Stock included in the Option shall be increased, decreased or changed in
like manner as if such shares had been issued and outstanding, fully paid and
non-assessable at the time of such occurrence.
8. Merger or Consolidation.
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(a) Effect of transaction. Upon the occurrence of any of the following
events, if the notice required by paragraph 8(b) hereinbelow has been
given, the Option shall automatically terminate and be of no further
force or effect whatsoever:
(i) the dissolution or liquidation of the Company
(ii) the appointment of a receiver for all, or substantially all, of
the Company's assets or business:
(iii) the appointment of a trustee for the Company after a petition
has been filed for the Company's reorganization under applicable
statutes; or
(iv) the sale, lease or exchange of all, or substantially all, of the
Company's assets and business.
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(b) Notice of such occurrence. At least 30 days' prior written notice of
any event described in paragraph 8(a) hereinabove, except the
transactions described in subparagraphs 8(a)(ii) and (iii) as to which
no notice shall be required, shall, at the Company's option, be given
by the Company to the Optionee. After receipt of such notice the
Optionee may, at any time before the occurrence of the event requiring
the giving of notice, exercise the unexercised portion of the Option
as to all the shares covered thereby. Such notice shall be deemed to
have been given when delivered personally to the Optionee or pursuant
to the provisions of paragraph 11 of this Agreement. If no such notice
shall be given with respect to a transaction described in
subparagraphs 8(a)(i), (ii) or (iv), the provisions of paragraph 8(a)
shall not apply and the Option shall not terminate upon the occurrence
of such transaction.
9. Common Stock to be received upon Exercise.
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The Optionee understands that the Company is under no obligation to
register the Option Shares under the Securities Act, and that, in the absence of
any such registration, the Option Shares cannot be sold unless they are sold
pursuant to an exemption from registration under the Securities Act. The Company
is under no obligation to comply, or to assist the Optionee in complying with,
any exemption from such registration requirement, including supplying the
Optionee with any information necessary to permit routine sales of the Option
Shares under Rule 144 of the United States Securities and Exchange Commission
(the "Rule"). The Optionee also understands that, with respect to the Rule,
routine sales of securities made in reliance upon such Rule only can be made in
limited amounts in accordance with the terms and condition of the Rule, and that
in cases in which the Rule is inapplicable, compliance with either Regulation A
or another disclosure exemption under the Securities Act will be required. Thus,
the Option Shares will have to be held indefinitely in the absence of
registration under the Securities Act or an exemption from registration.
Furthermore, the Optionee fully understands that the Option Shares have not
been registered under the Securities Act and that they will be issued in
reliance upon an exemption, which is available, only if Optionee, or the
Optionee's designate if applicable, acquires such shares for investment and not
with a view to distribution. The Optionee is familiar with the phrase "acquired
for investment and not with a view to distribution" as it relates to the
Securities Act and the special meaning given to such term in various releases of
the Securities and Exchange Commission.
10. Privilege of Ownership.
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The Optionee and the Optionee's designate shall not have any of the rights
of a shareholder with respect to the Option Shares covered by the Option except
to the extent that one or more certificates for such Option Shares shall be
delivered to them upon exercise of the Option.
11. Notices.
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Any notices required or permitted to be given under this Agreement shall be
in writing and they shall be deemed to be given upon receipt by sender or
sender's return receipt for acknowledgment of delivery of said notice by
postage-prepaid registered mail. Such notice shall be addressed to the party to
be notified as shown below:
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The Company: Savoy Capital Investments, Inc.
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇.▇.▇., ▇▇▇▇▇; and
The Optionee: At the address listed below his name
on the front page of this Agreement.
Any party may change its address for purposes of this paragraph by giving
the other party written notice of the new address in the manner set forth above.
12. General Provisions.
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(a) Amendments. This Agreement may not be amended nor may any rights
hereunder be waived except by an instrument in writing signed by the
party sought to be charged with such amendment or waiver.
(b) Proper law. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of Colorado, U.S.A.
(c) Time of the essence. Time shall be of the essence of this Agreement.
(d) Gender. All pronouns contained herein and any variations thereof shall
be deemed to refer to the masculine, feminine or neuter, singular or
plural as the identity of the parties hereto may require.
(e) Entire agreement. The provisions contained herein constitute the
entire agreement between the parties hereto and supersede all previous
understandings and agreements with respect to the granting of the
within Option.
(f) Enurement. This Agreement shall enure to the benefit of and bind the
parties hereto and shall, to the extent hereinbefore provided, enure
to the parties' respective heirs, executors, successors,
administrators and assigns.
(g) Approvals. This Agreement is or may be subject to the prior approval
of all regulatory authorities having jurisdiction over the Company
where required by the laws, regulations and by-laws to which the
Company is subject, and, where not already obtained, is or may be
subject, prior to exercise of the Option, to the approval by the
shareholders of the Company to the granting of options in the capital
stock of the Company.
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This space intentionally left blank.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the day and year first above written.
SAVOY CAPITAL INVESTMENTS, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Authorized Signatory
SIGNED, SEALED and DELIVERED by
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the Optionee herein, in the presence of:
/s/ ▇.▇. Besy Andriamanolo
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Witness Signature /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
Logement n(degree) 2,
Cite Grand Pavois,
Antsiranana, Madagascar
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Witness Address
/s/ ▇▇▇▇ ▇▇▇▇▇ Besy Andriamanolo, Geologist
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Witness Name and Occupation
EXHIBIT A
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TO: SAVOY CAPITAL INVESTMENTS, INC.
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STOCK OPTION PLAN AGREEMENT
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NOTICE AND AGREEMENT OF EXERCISE OF OPTION
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The Optionee hereby exercises its Savoy Capital Investments, Inc. stock
Option dated January 2nd, 2004 as to _________ shares of Savoy Capital
Investments, _________________ Inc. Common Stock (each an "Option Share").
Enclosed are the documents and payment specified in paragraph 4 of the
Optionee's Option Agreement.
The Optionee, and the Optionee's designate if applicable, understands that
no Option Shares will be issued unless and until, in the opinion of Savoy
Capital Investments, Inc. (the "Company"), any applicable registration
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
exchange on which stock of the same class is then listed, and any other
requirements of law or any regulatory bodies having jurisdiction over such
issuance and delivery, shall have been fully complied with. The Optionee, and
the Optionee's designate if applicable, hereby acknowledges, represents,
warrants and agrees, to and with the Company as follows:
(a) the Option Shares the Optionee, or the Optionee's designate if
applicable, is purchasing are being acquired for the Optionee's, or
for the Optionee's designate's if applicable, own account for
investment purposes only and with no view to their resale or other
distribution of any kind, and no other person (except if the Optionee,
or the Optionee's designate if applicable, is married, that person's
spouse) will own any interest therein;
(b) the Optionee, or the Optionee's designate if applicable, will not sell
or dispose of the Option Shares in violation of the Securities Act or
any other applicable federal or state securities laws;
(c) if and so long as the Optionee, or the Optionee's designate if
applicable, is subject to the reporting requirements under Section
16(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Optionee, and the Optionee's designate if
applicable, recognizes that any sale by the Optionee, or by the
Optionee's designate if applicable, or their respective and immediate
families, of the Company's Common Stock within six months before or
after any grant or exercise of the Optionee's stock Option may create
liability for the Optionee, or for the Optionee's designate if
applicable, under Section 16(b) of the Exchange Act ("Section 16(b)");
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(d) the Optionee, and the Optionee's designate if applicable, has
consulted with the Optionee's, and the Optionee's designate's if
applicable, counsel regarding the application of Section 16(b) to this
exercise of the Optionee's stock Option;
(e) the Optionee, and the Optionee's designate if applicable, will consult
with their respective counsel regarding the application of Section
16(b) before the Optionee, or the Optionee's designate if applicable,
makes any sale of the Company's Common Stock, including the Option
Shares, within six months after the date of this Agreement;
(f) the Optionee, and the Optionee's designate if applicable, will report
all sales of Option Shares to the Company in writing on a form
prescribed by the Company;
(g) the Optionee, and the Optionee's designate if applicable, will assist
the Company in the filing of and will timely file all reports that the
Optionee, or the Optionee's designate if applicable, may be required
to file under the federal securities laws;
(h) the Optionee, and the Optionee's designate if applicable, agrees that
the Company may, without liability for its good faith actions, place
legend restrictions upon the Option Shares and issue "stop transfer"
instructions requiring compliance with applicable securities laws and
the terms of the Optionee's stock Option; and
(i) if any of the Option Shares are being acquired solely for the account
of the Optionee's designate, each of the Optionee and the Optionee's
designate is either a consultant or advisor to the Company, the
Optionee is under privity of contract or arrangement with the Company
and each of the Optionee and the Optionee's designate, in such
capacity, has rendered bona fide services to the Company which
include, but are not limited to, financial, administrative and/or
managerial services; provided that neither the Optionee nor the
Optionee's designate rendered or renders services, directly or
indirectly, to promote or maintain a market for the Company's
securities and, furthermore, provided that no such services were
rendered or are being rendered in connection with the offer or sale of
securities in a capital-raising transaction on behalf of the Company;
failing any of which any Option Shares acquired hereunder may not be
or may not have been registerable under the Securities Act and may not
be sold unless they are sold pursuant to an exemption from
registration under the Securities Act.
The foregoing restrictions or notice thereof shall be placed on the
certificates representing the Option Shares purchased pursuant to the Option and
the Company may refuse to issue the certificates or to transfer the Option
Shares on its books unless it is satisfied that no violation of such
restrictions will occur.
The number of Option Shares specified above are to be issued in the
following registration manner as directed by the Optionee and, if applicable, to
the Optionee's designate as set forth hereinbelow:
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Registration respecting the Optionee (must be completed by the Optionee):
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(Print Optionee's name) (Optionee's signature)
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(Optionee - Print name of spouse (Address for Optionee)
if you wish joint registration)
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Date of Exercise
Registration respecting the Optionee's designate (complete if applicable only):
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(Print Optionee's designate's name) (Optionee's designate's signature)
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(Optionee's designate - Print name of (Address for Optionee's designate)
spouse if you wish joint registration)
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Date of Exercise