As filed with the Securities and Exchange Commission on August 27, 1996
Registration No. 33-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CASMYN CORP.
(Exact name of Registrant as specified in its charter)
COLORADO 84-0987840
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
1335 GREG STREET. UNIT #104
SPARKS, NEVADA 89431
(Address of principal executive offices) (Zip Code)
CASMYN CORP. 1995 STOCK OPTION PLAN
CASMYN CORP. 1995 INCENTIVE STOCK OPTION PLAN
(Full title of the plans)
AMYN S. DAHYA, PRESIDENT COPY TO:
CASMYN CORP. JOHN M. STEPHENSON, ESQ.
1335 GREG STREET, UNIT #104 JENKENS & GILCHRIST,
SPARKS, NEVADA 89431 A PROFESSIONAL CORPORATION
(702) 331-5524 1445 ROSS AVENUE, SUITE 3200
DALLAS, TEXAS 75202
(Name, address and telephone number including area code of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
TITLE OF CLASS PROPOSED PROPOSED
OF SECURITIES AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE (2)(3) PRICE (2)(3) FEE (3)
<S> <C> <C> <C> <C>
Common Stock,
$0.04 par value
per share 1,050,000 $14.00 $4,220,000 $1,455
<FN>
(1) THE SECURITIES TO BE REGISTERED CONSIST OF 250,000 SHARES RESERVED FOR
ISSUANCE UNDER THE CASMYN CORP. 1995 STOCK OPTION PLAN AND 800,000 SHARES
RESERVED FOR ISSUANCE UNDER THE CASMYN CORP. 1995 INCENTIVE STOCK OPTION
PLAN (COLLECTIVELY, THE "PLANS").
<PAGE>
(2) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE.
(3) CALCULATED PURSUANT TO RULE 457(C) AND (H). ACCORDINGLY, THE PRICE
PER SHARE OF THE COMMON STOCK OFFERED HEREUNDER PURSUANT TO THE PLANS IS
BASED ON (I) 20,000 SHARES OF COMMON STOCK RESERVED FOR ISSUANCE UNDER THE
1995 INCENTIVE STOCK OPTION PLAN BUT NOT SUBJECT TO OUTSTANDING STOCK
OPTIONS, AT A PRICE PER SHARE OF $14.00, WHICH IS THE AVERAGE OF THE BID
AND ASKED PRICE PER SHARE OF COMMON STOCK ON THE 23RD DAY OF AUGUST, 1996
ON NASD BULLETIN BOARD; (II) 4,000 SHARES OF COMMON STOCK RESERVED FOR
ISSUANCE UNDER THE 1995 STOCK OPTION PLAN NOT SUBJECT TO OUTSTANDING STOCK
OPTIONS, AT THE EXERCISE PRICE OF $0.04 PER SHARE AND (III) 1,026,000
SHARES OF COMMON STOCK RESERVED FOR ISSUANCE UNDER THE PLANS AND SUBJECT
TO OUTSTANDING STOCK OPTIONS, AT THE AVERAGE EXERCISE PRICE OF $3.84 PER
SHARE.
</FN>
</TABLE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference in this registration statement
the following documents previously filed by the Registrant with the Securities
and Exchange Commission (the "Commission"):
(1) the Registrant's Annual Report on Form 10-KSB filed with the
Commission for the fiscal year ended September 30, 1995;
(2) the Registrant's Quarterly Report on Forms 10-QSB for the quarters
ended December 31, 1995, March 31, 1996 and June 30, 1996 filed with the
commission;
(3) the Registrant's Reports on Form 8-K, filed with the Commission on
November 3, 1995; February 15 and April 3, 1996; and May 30, 1996 (amended
on Form 8-K/A on July 18, 1996;
(4) the description of the common stock, par value $0.04 per share, of the
Registrant (the "Common Stock") set forth in the Registration Statement on
Form 10 filed with the Commission including any amendment or report filed
for the purpose of updating such description.
All documents filed by the Registrant with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), subsequent to the date of this registration statement
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of the filing of such documents until such time as there shall
have been filed a post-effective amendment that indicates that all securities
offered hereby have been sold or that deregisters all securities remaining
unsold at the time of such amendment.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain matters with respect to the validity of the Common Stock to be offered
hereby will be passed on for the Company by Jenkens & Gilchrist, a
Professional Corporation.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Incorporation, as amended, of the Registrant provide for
indemnification as follows:
(2) Indemnification of Officers, Directors and Others.
------------------------------------------------------------------
The Board of Directors of the Corporation shall have the power to:
(a) Indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation), by reason of
the fact that he is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in the best interests of the Corporation and, with respect
to any criminal action or proceedings, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement or conviction or upon a plea of
nolo contendere or its equivalent shall not of itself create a presumption
that the person did not act in good faith and in a manner which he
reasonably believed to be in the best interests of the Corporation and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
<PAGE>
(b) Indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason
of the fact that he is or was a director, officer, employee or agent of
the Corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorney's fees) actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably
believed to be in the best interests of the Corporation; but no
indemnification shall be made in respect of any claim, issue or matter as
to which such person has been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and
only to the extent that the court in which such action or suit was brought
determines upon application that, despite the adjudication of liability,
but in view of all circumstances of the case, such person is fairly and
reasonably entitled to indemnification for such expenses which such court
deems proper.
(c) Indemnify a director, officer, employee or agent of the Corporation to
the extent that such person has been successful on the merits in defense
of any action, suit or proceeding referred to in subparagraph (a) or (b)
of this Paragraph 2 or in defense of any claim, issue, or matter therein,
against expenses (including attorney's fees) actually and reasonably
incurred by him in connection therewith.
(d) Authorize indemnification under subparagraph (a) or (b) of this
Paragraph 2 (unless ordered by a court) in the specific case upon a
determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in said subparagraph (a) or (b). Such
determination shall be made by the Board of Directors by a majority vote
of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or, if such a quorum is not obtainable or even if
obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or by the shareholders.
(e) Authorize payment of expenses (including attorney's fees) incurred in
defending a civil or criminal action, suit or proceeding in advance of the
final disposition of such action, suit or proceeding as authorized in
subparagraph (d) of this Paragraph 2 upon receipt of an undertaking by or
on behalf of the director, officer, employee or agent to repay such amount
unless it is ultimately determined that he is entitled to be indemnified
by the Corporation as authorized in this Paragraph 2.
(f) Purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the Corporation or who is or was
serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred
by him in any such capacity or arising out of his status as such, whether
or not the Corporation would have the power to indemnify him against such
liability under the provisions of this Paragraph 2.
The indemnification provided by this Paragraph 2 shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under these
Articles of Incorporation, by the by-laws, agreement, vote of shareholders or
disinterested directors or otherwise, and any procedure provided for by any of
the foregoing, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall insure
to the benefit of heirs, executors and administrators of such a person.
<PAGE>
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as part of this registration statement.
EXHIBIT DESCRIPTION OF EXHIBIT
4.1 Articles of Incorporation of Casmyn Corp., (incorporated by reference
to Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for the
year ended September 30, 1994.
4.2 By-laws of the Registrant (incorporated by reference to Exhibit 3.2 to
the Registrant's Annual Report on Form 10-K for the year ended September
30, 1994.
4.3* Casmyn Corp. 1995 Incentive Stock Option Plan.
4.4* Form of Stock Option Agreement under the Casmyn Corp. 1995 Incentive
Stock Option Plan.
4.5* Casmyn Corp. 1995 Stock Option Plan.
4.6* Form of Stock Option Agreement under the Casmyn Corp. 1995 Stock
Option Plan.
5.1* Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1* Consent of Jenkens & Gilchrist, a Professional Corporation (included in
their opinion filed as Exhibit 5.1).
23.2* Consent of Deloitte & Touche LLP.
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement
to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
___________________
* Filed herewith.
<PAGE>
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Reno, Nevada, on August 26, 1996.
CASMYN CORP.
By: /s/ Amyn S. Dahya
Amyn S. Dahya, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears
below constitutes and appoints Amyn S. Dahya and Douglas C. Washburn his true
and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same with all
exhibits, thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on
the dates indicated.
SIGNATURE CAPACITY DATE
Chairman of the Board of Directors,
/s/ Amyn S. Dahya President and Chief Executive Officer 8/26/96
- ---------------------- (Principal Executive Officer) __________
- ---------------------- Vice Chairman of the Board of Directors
Hanif Dahya __________
s/ Vijay Fozdar Director 8/26/96
- ----------------------
Vijay Fozdar __________
/s/Douglas C. Washburn Vice President, Secretary and Treasurer 8/26/96
- ---------------------- (Principal Financial Officer) __________
Douglas C. Washburn
/s/ Dennis E. Welling Controller 8/26/96
- ---------------------- __________
Dennis E. Welling
/s/ Mehdi C. Nimjee Vice President - Metallurgy and Director 8/26/96
- ---------------------- __________
Mehdi C. Nimjee
/s/ Sandro Kunzle Director 8/26/96
- ---------------------- __________
Sandro Kunzle
<PAGE>
EXHIBIT INDEX
EXHIBIT NUMBER DOCUMENT DESCRIPTION
- -------------- ---------------------------------------------------------------
4.3 Casmyn Corp. 1995 Incentive Stock Option Plan
4.4 Form of Incentive Stock Option Agreement under the 1995
Qualified Employee Stock Option Plan for Casmyn Corp.
4.5 1995 Non-Qualified Stock Option Plan for Casmyn Corp.
4.6 Form of Non-Qualified Stock Option Agreement under the 1995
Non-Qualified Stock Option Plan for Casmyn Corp.
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation
(included in their opinion filed as Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
EXHIBIT 4.3
<PAGE>
CASMYN CORP.
1995 INCENTIVE STOCK OPTION PLAN
ARTICLE 1
PURPOSE OF PLAN
This 1995 INCENTIVE STOCK OPTION PLAN (the "Plan") CASMYN CORP.(the "Company")
for executive and other key employees of the Company, is intended to advance
the best interest of the Company by providing those persons who have a
substantial responsibility for its management and growth with additional
incentive and by increasing their proprietary interest in the success of the
Company, thereby encouraging them to remain in its employ. Further, the
availability and offering of incentive stock options under the Plan supports
and increases the Company's ability to attract and retain individuals of
exceptional managerial talent upon whom, in large measure, the sustained
progress, growth and profitability of the Company depends.
ARTICLE II
DEFINITIONS
For Plan purposes, except where the context might clearly indicate otherwise,
the following terms shall have the meanings set forth below:
"Board" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
"Committee" shall mean the Compensation Committee, or such other
committee of the Board, which shall be designated by the Board, to administer
the Plan. The Committee shall be composed of two or more persons as from time
to time are appointed to serve by the Board. Each member of the Committee,
while serving as such, shall also be a member of the Board and shall be a
disinterested person with the meaning of Rule 16b-3 of the Securities Exchange
Act of 1934.
"Common Shares" shall mean the Company's Common Shares, par value $.04
per share, or, in the event that the outstanding Common Shares are hereafter
changed into or exchanged for different shares or securities of the Company,
such other shares or securities.
"Company" shall mean CASMYN CORP., a Colorado corporation, and any parent
or subsidiary corporation of CASMYN CORP. as such terms are defined in
Sections 424(e) and 424(f), respectively, of the Code.
"Fair Market Value" shall mean, with respect to the date a given stock
option is granted or exercised, the average of the highest and lowest reported
sales prices of the Common Shares, as reported by such responsible reporting
service as the Committee may select, or if there were no transactions in the
Common Shares on such day, then the last preceding day on which transactions
took place. The above notwithstanding, the Committee may determine the Fair
Market Value in such other manner as it may deem more equitable for Plan
purposes or as is required by applicable laws or regulations.
<PAGE>
"Incentive Stock Option" or "ISO" shall mean a stock option which is
intended to meet and comply with the terms and conditions for an incentive
stock option as set forth in Section 422 of the Code.
"Optionee" shall mean an employee of the Company who has been granted one
or more Incentive Stock Options under the Plan.
"Stock Option Agreement" shall mean the agreement between the Company and
the Optionee under which the Optionee may purchase Common Shares hereunder.
"10% Shareholder" shall mean an employee who owns 10% or more of the
Common Shares as such amount is calculated under Section 422(b)(6) of the
Code. Attribution rules under Section 424(d) of the Code are applicable to
determine whether the 10% ownership rule is satisfied.
ARTICLE III
ADMINISTRATION OF THE PLAN
1. The Committee shall administer the Plan and accordingly, it shall have
full power to grant Incentive Stock Options, construe and interpret the
plan, establish rules and regulations and perform all other acts,
including the delegation of administrative responsibilities, it believes
reasonable and proper.
2. The determination of those eligible to receive Incentive Stock Options,
and the amount, type and timing of each stock option and the terms and
conditions of the respective stock option agreements shall rest in the
sole discretion of the Committee, subject to the provisions of the Plan.
3. The Committee may cancel any Incentive Stock Options awarded under the
Plan if an Optionee conducts himself in a manner which the Committee
determines to be inimical to the best interest of the Company, as set
forth more fully in paragraph 8 of Article XI of the Plan.
4. The Board, or the Committee, may correct any defect, supply any
omission or reconcile any inconsistency in the Plan, or in any granted
Incentive Stock Option, in the manner and to the extent it shall deem
necessary to carry it into effect.
5. Any decision made, or action taken, by the Committee or the Board
arising out of or in connection with the interpretation and administration
of the Plan shall be final and conclusive.
6. Meetings of the Committee shall be held at such times and places as
shall be determined by the Committee. A majority of the members of the
Committee shall constitute a quorum for the transaction of business, and
the vote of a majority of those members present at any meeting shall
decide any question brought before that meeting. In addition, the
Committee may take any action otherwise proper under the Plan by the
affirmative vote, taken without a meeting, of a majority of its members.
<PAGE>
7. No member of the Committee shall be liable for any act or omission of
any other member of the Committee or for any act or omission on his own
part, including, but not limited to, the exercise of any power or
discretion given to him under the Plan, except those resulting from his own
gross negligence or willful misconduct.
8. The plan shall be administered in such a manner as to permit the
Incentive Stock Options granted hereunder to qualify as "Incentive Stock
Option" as described in Section 422 of the Code.
9. The Company, through its management, shall supply full and timely
information to the Committee on all matters relating to eligible employees,
their duties and performance, and current information on death, retirement,
and disability or other termination of employment of Optionees, and such
other pertinent information as the Committee may require. The Company
shall furnish the Committee with such clerical and other assistance as is
necessary in the performance of its duties hereunder.
ARTICLE IV
Shares Subject to the Plan
1. The total number of shares of the Company available for grants of
Incentive Stock Options under the Plan shall be 800,000 Common Shares,
subject to adjustment in accordance with Article VII of the Plan, which
shares may be either authorized but unissued or reacquired Common Shares
of the Company.
2. If an Incentive Stock Option or portion thereof shall expire or
terminate for any reason without having been exercised in full, the
unpurchased shares covered by such ISO shall be available for future grants
of Incentive Stock Options.
ARTICLE V
ELIGIBLE EMPLOYEES
1. Consistent with the Plan's purpose, Incentive Stock Options may be
granted to employees of the Company who are performing or who have been
engaged to perform services of special importance to the management,
operation or development of the Company. Included as eligible employees
are officers of the Company, including those who are also members of the
Board. Nonemployee members of the Board shall not be eligible for ISO
grants.
2. No Incentive Stock Option, except an option which meets the terms as
set forth in Section 422(c)(5) of the Code, shall be granted to an employee
who at the time of grant is a 10% Shareholder.
ARTICLE VI
Stock Option Terms and Conditions
1. All Incentive Stock Options granted under the Plan shall be evidenced
by agreements which shall be subject to applicable provisions of the Plan,
and such other provisions as the Committee may adopt, including the
provisions set forth in paragraphs 2 through 11 of this Article VI.
<PAGE>
2. The option price per share shall not be less than 100% of the Fair
Market Value of a Common share on the date of grant as determined by the
Committee, and the Committee, in its discretion, may specify a higher price
than the Fair Market Value.
3. All Incentive Stock Options granted hereunder must be granted and
exercised within ten years from the date this Plan is adopted or approved
by the shareholders whichever is earlier.
4. No Incentive Stock Option granted to any employee shall be exercisable
after the expiration of ten years from the date such ISO is granted. The
Committee, in its discretion, may provide that an option shall be
exercisable during such ten year period or during any lesser period of
time.
The Committee may establish installment exercise terms for an Incentive
Stock Option such that the ISO becomes fully exercisable in a series of
cumulating portions. If an Optionee shall not, in any given installment
period, purchase all the Common Shares which such Optionee is entitled to
purchase within such installment period, such Optionee's right to purchase
any Common Shares not purchased in such installment period shall continue
until the expiration or sooner termination of such ISO. The Committee may
also accelerate the exercise of any ISO.
5. An Incentive Stock Option, or portion thereof, shall be exercised by
delivery of (i) a written notice of exercise to the Company specifying the
number of Common Shares to be purchased, and (ii) payment of the full price
of such Common Shares, as fully set forth in paragraph 6 of this Article
VI.
No ISO or installment thereof shall be reusable except with respect to
whole shares, and fractional share interests shall be disregarded. Not less
than 100 Common Shares may be purchased at one time unless the number
purchased is the total number at the time available for purchase under the
ISO. Until the Common Shares represented by an exercised ISO are issued to
an Optionee, he shall have none of the rights of a shareholder.
6. The price of an exercised Incentive Stock Option, or portion thereof,
may be paid:
A. In United States dollars, in cash or by cashier's check, certified
check, bank draft or money order, payable to the order of the
Company in an amount equal to the option price;
B. The Committee shall determine acceptable methods for tendering
Common Shares as payment upon exercise of an Incentive Stock Option
and may impose such limitations and prohibitions on the use of
Common Shares to exercise an ISO as it deems appropriate.
7. With the Optionee's consent, the Committee may cancel any Incentive
Stock Option issued under this Plan and issue a new ISO to such Optionee.
8. Except by will or the laws of descent and distribution, no right or
interest in any Incentive Stock Option granted under the Plan shall be
assignable or transferable, or no right or interest of any Optionee shall
be liable for, or subject to, any lien, obligation or liability of such
Optionee. Incentive Stock Options shall be exercisable during the
Optionee's lifetime only by the Optionee or the duly appointed legal
representative of an incompetent Optionee.
<PAGE>
9. In the event an Optionee shall cease to be employed by the Company,
die, or become permanently or totally disabled (within the meaning of
Section 105(b)(4) of the Code) while he is holding one or more Incentive
Stock Options, each ISO held shall expire at the earlier of the expiration
of the Incentive Stock Option's term or the following:
A. If the Optionee's termination of employment occurs for any reason,
such Optionee shall have the right to exercise the ISO for three
months after such termination date to the extent that it was
exercisable on the date of such termination of employment; or
B. If the Optionee shall die while employed by the Company or within
three months after termination of such employment, the personal
representative or administrator of the Optionee's estate or the
person(s) to whom an ISO granted hereunder shall have been validly
transferred by such personal representative or administrator
pursuant to the Optionee's will or the laws of descent and
distribution, shall have the right to exercise the ISO for one year
after the date of the Optionee's death, to the extent (i) such ISO
was exercisable on the date of such termination of employment by
death and (ii) such ISO was not exercised.
No transfer of an Incentive Stock Option by the will of an Optionee
or by the laws of descent and distribution shall be effective to
bind the Company unless the Company shall have been furnished with
written notice thereof and an authenticated copy of the will and/or
such other evidence as the Committee may deem necessary to
establish the validity of the transfer and the acceptance by
the transferee or transferees of the terms and conditions of such
Incentive Stock Option.
In the event of death following termination of employment while any
portion of an ISO remains exercisable, the Committee, in its
discretion, may provide for an extension of the exercise period of
up to one year after the Optionee's death but not beyond the
expiration of the term of the Incentive Stock Option.
10. For the purposes of this paragraph, it shall not be considered a
termination of employment when an Optionee is placed by the Company on
military or sick leave or such other type of leave of absence which is
considered as continuing intact the employment relationship of the
Optionee. In case of such leave of absence, the employment relationship
shall be continued until the later of the date when such leave equals 90
days or the date when the Optionee's right to re-employment with the
Company shall no longer be guaranteed either by statute or contract.
11. Notwithstanding any other provision of the Plan, in the case of any
ISO granted under the Plan, the following provisions will apply:
A. The aggregate Fair Market Value of the Common Shares, determined
as of the time the ISO is granted, with respect to which
Incentive Stock Options are exercisable for the first time by
any individual during any calendar year shall not exceed $100,000
(or such larger individual employee maximum as may be in effect from
time to time under the Code at the time the ISO is granted), computed
in accordance with Section 422 of the Code;
<PAGE>
B. Any Optionee who disposes of Common Shares acquired on the
exercise of an ISO by sale or exchange either (i) within two years
after the date of the grant of the ISO under which the stock was
acquired, or (ii) within one year after the acquisition of such
Shares, shall notify the Company of such disposition and of the
amount realized upon such disposition. The transfer of Common
Shares may also be restricted by applicable provisions of the
Securities Act of 1933, as amended.
ARTICLE VII
ADJUSTMENTS OR CHANGES IN CAPITALIZATION
1. In the event that the outstanding Common Shares of the Company are
hereafter changed into or exchanged for a different number or kind of
Shares or other securities of the Company by reason of merger,
consolidation, other reorganization, recapitalization, reclassification,
combination of Shares, stock split-up, or stock dividend:
A. Prompt, proportionate, equitable, lawful and adequate adjustment
shall be made of the aggregate number and kind of Shares subject to
Incentive Stock Options which may be granted under the Plan, such
that the Optionee shall have the right to purchase such Common
Shares as may be issued in exchange for the Common Shares
purchasable on exercise of the ISO had such merger, consolidation,
other reorganization, recapitalization, reclassification,
combination of Shares, stock split-up or stock dividend not taken
place;
B. Rights under unexercised Incentive Stock Options or portions
thereof granted prior to any such change, both as to the number or
kind of Shares and the exercise price per Share, shall be
adjusted appropriately, provided that such adjustments shall be
made without change in the total exercise price applicable to the
unexercised portion of such ISO's but by an adjustment in the price
for each Share covered by such ISO's; or
C. Upon any dissolution or liquidation of the Company each outstanding
Incentive Stock Option granted hereunder shall terminate, but the
Optionee shall have the right, immediately prior to such
dissolution or liquidation to exercise his ISO in whole or in
part, to the extent that it shall not have been exercised,
without regard to any installment exercise provisions in such ISO.
2. The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined solely by the Committee, whose
determination as to what adjustments shall be made and the extent thereof,
shall be final, binding and conclusive. No fractional Shares shall be
issued under the Plan on account of any such adjustments.
<PAGE>
ARTICLE VIII
MERGER, CONSOLIDATION OR TENDER OFFER
1. If the Company shall be a party to a binding agreement to any merger,
consolidation or reorganization or sale of substantially all the assets of
the Company, each outstanding Incentive Stock Option shall pertain and
apply to the securities and/or property which a shareholder of the number
of Common Shares of the Company subject to the ISO would be entitled to
receive pursuant to such merger, consolidation or reorganization or sale of
assets.
2. In the event that:
A. Any person other than the Company shall acquire more than 20% of
the Common Shares of the Company through a tender offer, exchange
offer or otherwise;
B. A change in the "control" of the Company occurs, as such term is
defined in Rule 405 under the securities Act of 1933;
C. There shall be a sale of all or substantially all of the assets of
the Company;
any then outstanding Incentive Stock Option held by an
Optionee, who is deemed by the Committee to be a statutory
officer ("insider") for purposes of Section 16 of the Securities
Exchange Act of 1934 shall be entitled to receive, subject to any
action by the Committee revoking such an entitlement as provided
for below, in lieu of exercise of such Incentive Stock Option, to
the extent that it is then exercisable, a cash payment in an amount
equal to the difference between the aggregate exercise price of such
ISO, or portion thereof, and, (i) in the event of an offer or
similar event, the final offer price per Share paid for Common
Shares, or such lower price as the Committee may determine to
conform an option to preserve its Incentive Stock Option status,
times the number of Common Shares covered by the ISO or portion
thereof, or (ii) in the case of an event covered by B or C above,
the aggregate Fair Market Value of the Common Shares covered by the
Incentive Stock Option, as determined by the Committee at such time.
3. Any payment which the Company is required to make pursuant to paragraph
2 of this Article VIII, shall be made within 15 business days, following
the event which results in the Optionee's right to such payment. In the
event of a tender offer in which fewer than all the Shares which are
validly tendered in compliance with such offer are purchased or exchanged,
then only that portion of the Shares covered by an ISO as results from
multiplying such Shares by a fraction, the numerator of which is the number
of Common Shares acquired pursuant to the offer and the denominator of
which is the number of Common Shares tendered in compliance with such
offer, shall be used to determine the payment thereupon. To the extent
that all or any portion of an Incentive Stock Option shall be affected by
this provision, all or such portion of the ISO shall be terminated.
4. Notwithstanding paragraphs 1 and 3 of this Article VIII, the Committee
may, by unanimous vote and resolution, unilaterally revoke the benefits of
the above provisions; provided, however, that such vote is taken no later
than ten business days following public announcement of the intent of an
offer or the change of control, whichever occurs earlier.
<PAGE>
ARTICLE IX
AMENDMENT AND TERMINATION OF PLAN
1. The Board, without further approval of the shareholders, may at any
time, and from time to time, suspend or terminate the Plan in whole or in
part or amend it from time to time in such respects as the Board may deem
appropriate and in the best interest of the Company; provided, however,
that without the approval of the shareholders, the Board may not:
A. Materially modify the eligibility requirement for receiving
Incentive Stock Options;
B. Increase the total number of Common Shares which may be issued
pursuant to Incentive Stock Options, except as is provided for in
accordance with Article VII under the Plan;
C. Reduce the minimum option price per Share;
D. Extend the period of granting Incentive Stock Options; or
E. Materially increase in any other way the benefits accruing to
Optionees.
2. No amendment, suspension or termination of this Plan shall, without the
Optionee's consent, alter or impair any of the rights or obligations under
any Incentive Stock Option theretofore granted to him under the Plan.
3. The Board may amend the Plan, subject to the limitations cited above in
such manner as it deems necessary to permit the granting of Incentive Stock
Options meeting the requirements of future amendments or issued
regulations, if any, to the Code.
4. No ISO may be granted during any suspension of the Plan or after
termination of the Plan.
<PAGE>
ARTICLE X
GOVERNMENT AND OTHER REGULATIONS
1. The obligation of the Company to issue, transfer and deliver Common
Shares for Incentive Stock Options exercised under the Plan shall be
subject to all applicable laws, regulations, rules, orders and approval
which shall then be in effect and required by the relevant stock exchanges
on which the Common Shares are traded and by government entities as set
forth below or as the Committee in its sole discretion shall deem necessary
or advisable. Specifically, in connection with the Securities Act of 1933,
upon exercise of any Incentive Stock Option, the Company shall not be
required to issue Common Shares unless the Committee has received evidence
satisfactory to it to the effect that the Optionee will not transfer such
Shares except pursuant to a registration statement in effect under such Act
or unless an opinion of counsel satisfactory to the Company has been
received by the Company to the effect that such registration is not
required. Any determination in this connection by the Committee shall be
final, binding and conclusive. The Company may, but shall in no event be
obligated to, register any securities covered hereby pursuant to the
Securities Act of 1933. The Company shall not be obligated to take any
other affirmative action in order to cause the exercise of an Incentive
Stock Option or the issuance of Common Shares pursuant thereto to comply
with any law or regulation of any government authority.
ARTICLE XI
MISCELLANEOUS PROVISIONS
1. No person shall have any claim or right to be granted an Incentive
Stock Option under the Plan, and the grant of an ISO under the Plan shall
not be construed as giving an Optionee the right to be retained in the
employ of the Company. Furthermore, the Company expressly reserves the
right at any time to dismiss an Optionee with or without cause, free from
any liability, or any claim under the Plan, except as provided herein or in
an option agreement.
2. Any expenses of administering this Plan shall be borne by the Company.
3. The payment received from Optionees from the exercise of Incentive
Stock Options under the Plan shall be used for the general corporate
purposes of the Company.
4. The place of administration of the Plan shall be in the State of
Nevada, and the validity, construction, interpretation, administration and
effect of the Plan and of its rules and regulations, and rights relating to
the Plan, shall be determined solely in accordance with the laws of the
State of Nevada.
5. Without amending the Plan, grants may be made to employees of the
Company who are foreign nationals or employed outside the United States, or
both, on such terms and conditions, consistent with the Plan's purpose,
different from those specified in the Plan as may, in the judgment of the
Committee, be necessary or desirable to create equitable opportunities
given differences in tax laws in other countries.
<PAGE>
6. In addition to such other rights of indemnification as they may have as
members of the Board or the Committee, the members of the Committee shall
be indemnified by the Company against all costs and expenses reasonably
incurred by them in connection with any action, suit or proceeding to which
they or any of them may be party by reason of any action taken or failure
to act under or in connection with the Plan or any Incentive Stock Option
granted thereunder, and against all amounts paid by them in settlement
thereof (provided such settlement is approved by independent legal counsel
selected by the Company) or paid by them in satisfaction of a judgment in
any such action, suit or proceeding, except judgment based upon a finding
of bad faith; provided that upon the institution of any such action, suit
or proceeding a Committee member shall, in writing, give the Company notice
thereof and an opportunity, at its own expense, to handle and defend the
same before such Committee member undertakes to handle and defend it on his
own behalf.
7. Incentive Stock Options may be granted under this Plan, from time to
time, in substitution for incentive stock options held by employees of
other corporations who are about to become employees of the Company as the
result of a merger or consolidation of the employing corporation with the
Company or the acquisition by the Company of the assets of the employing
corporation or the acquisition of the Company of stock of the employing
corporation as a result of which it becomes a subsidiary of the Company.
The terms and conditions of such substitute incentive stock options so
granted may vary from the terms and conditions set forth in this Plan to
such extent as the Board of Directors of the Company at the time of grant
may deem appropriate to conform, in whole or in part, to the provisions of
the incentive stock options in substitution for which they are granted, but
no such variation shall be such as to affect the status of any such
substitute incentive stock options as an incentive stock option under
Section 422 of the Code.
8. Notwithstanding anything to the contrary in the Plan, if the Committee
finds by a majority vote, after full consideration of the facts presented
on behalf of both the Company and the Optionee, that the Optionee has been
engaged in fraud, embezzlement, theft, commission of a felony or proven
dishonesty in the course of his employment by the Company or any subsidiary
corporation which damaged the Company or any subsidiary corporation, or for
disclosing trade secrets of the Company or any subsidiary corporation, the
Optionee shall forfeit all unexercised Incentive Stock Options and all
exercised ISO's under which the Company has not yet delivered the
certificates and which have been earlier granted the Optionee by the
Committee. The decision of the Committee as to the cause of an Optionee's
discharge and the damage done to the Company shall be final. No decision
of the Committee, however, shall affect the finality of the discharge of
such Optionee by the Company or any subsidiary corporation in any manner.
ARTICLE XII
BOARD APPROVAL AND EFFECTIVE DATES
Upon approval by the Board of Directors of the company, this Plan shall
become conditionally effective as of March 29, 1995. No stock option may be
granted after March 28, 2001; provided, however, that the Plan and all
outstanding Incentive Stock Options shall remain in effect until such ISO's
have expired or until such options are canceled. If the shareholders shall
not approve the Plan, the Plan shall not be effective, and any and all actions
taken prior thereto shall be null and void or shall, if necessary, be deemed
to have been fully rescinded.
ARTICLE XIII
WRITTEN AGREEMENT
Each Incentive Stock Option granted hereunder shall be embodied in a written
Incentive Stock Option Agreement which shall be subject to the terms and
conditions prescribed above and shall be signed by the Optionee and by the
President or any Vice President of the Company, for and in the name and on
behalf of the Company. Such an Incentive Stock Option Agreement shall contain
such other provisions as the Committee, in its discretion shall deem
advisable.
EXHIBIT 4.4
<PAGE>
Number of Shares ________________
Date of Grant ____________________
INCENTIVE STOCK OPTION AGREEMENT
AGREEMENT made this 29 day of March 1995, between ____________________________
(the "Optionee"), and CASMYN CORP., a Colorado Corporation (the "Company").
1. Grant of Option. The Company, pursuant to the provisions of the CASMYN
CORP. 1995 Incentive Stock Option Plan (the "1995 Plan"), set forth as
Attachment A hereto, hereby grants to the Optionee, subject to the terms
and conditions set forth or incorporated herein, an Option to Purchase from
the Company all or any part of an aggregate of __________ Common Shares, as
such Common Shares are now constituted, at the purchase price of $5.00 per
share. The provisions of the 1995 Plan governing the terms and conditions
of the Option granted hereby are incorporated in full herein by reference.
2. Exercise. The Option evidenced hereby shall be exercisable in whole or
in part (but only in multiples of 100 Shares unless such exercise is as to
the remaining balance of this Option) on or after December 31, 1995 and on
or before five years from the (Vesting Date), provided that the cumulative
number of Common Shares as to which this Option may be exercised (except in
the event of death, retirement, or permanent and total disability, as
provided in paragraph 9 of Article VI of the 1995 Plan) shall not exceed
the following amounts:
CUMULATIVE PERCENTAGE PRIOR TO DATE
OF SHARES VESTING DATE
===================== =================
25% December 31, 1995
50% December 31, 1996
75% December 31, 1997
100% December 31, 1998
The Option evidenced hereby shall be exercisable by the delivery to and
receipt by the Company of (i) a written notice of election to exercise, in
the form set forth in Attachment B hereto, specifying the number of Shares to
be purchased; (ii) accompanied by payment of the full purchase price thereof
in cash or certified check payable to the order of the Company, or by
fully-paid and nonassessable Common Shares of the Company properly endorsed
over to the Company, or by a combination thereof, and (iii) by return of this
Incentive Stock Option Agreement for endorsement of exercise by the Company
on Schedule I hereof. In the event fully-paid and nonassessable Common
Shares are submitted as whole or partial payment for Shares to be purchased
hereunder, such Common Shares will be valued at their Fair Market Value (as
defined in the 1995 Plan) on the date such Shares received by the Company are
applied to payment of the exercise price.
<PAGE>
3. Transferability. The Option evidenced hereby is not assignable or
transferable by the Optionee other than by the Optionee's will or by the
laws of descent and distribution, as provided in paragraph 9 of Article VI
of the 1995 Plan. The Option shall be exercisable only by the Optionee
during his lifetime.
CASMYN CORP.
By: _________________________________
Amyn S. Dahya, President and CEO
ATTEST:
____________________________
Secretary
Optionee hereby acknowledges receipt of a copy of the 1995 Plan, attached
hereto and accepts this Option subject to each and every term and provision of
such Plan. Optionee hereby agrees to accept as binding, conclusive and final,
all decisions or interpretations of the Compensation Committee of the Board of
Directors administering the 1995 Plan on any questions arising under such
Plan. Optionee recognizes that if Optionee's employment with the Company or
any subsidiary thereof shall be terminated with or without cause, or by the
Optionee, prior to a date one year from the Date of Grant hereof, (except as
otherwise provided in paragraph 9 of Article VI of the 1995 Plan) all of
Optionee's rights hereunder shall thereupon terminate; and that pursuant to
paragraph 11B of Article VI of the 1995 Plan, this Option may not be
exercised while there is outstanding to Optionee any unexercised Incentive
Stock Option, granted to Optionee before the Date of Grant of this Option,
to purchase Common Shares of the Company or any parent or subsidiary thereof.
Dated: ________________________ ______________________________________
Optionee
______________________________________
Print Name
______________________________________
______________________________________
______________________________________
Social Security No.:
<PAGE>
ATTACHMENT B
(Suggested form of letter to be used for notification of election to
exercise. Please do not use this page, but follow this form in a separately
typed letter.)
Date: __________________________
Treasurer
Casmyn Corp.
1335 Greg Street #104
Sparks, NV 89431
Dear Sir:
In accordance with paragraph 2 of the Stock Option Agreement evidencing the
Option granted to me on ____________________________ under the Casmyn Corp.
1995 Incentive Stock Option Plan, I hereby elect to exercise this Option to
the extent of ____________________ Common Shares.
Enclosed is (i) a certified check payable to the order of "Casmyn Corp." in
the amount of $_______________________ as the purchase price of for the Shares
which I have elected to purchase and (ii) the original Incentive Stock Option
Agreement for endorsement by the Company as to exercise on Schedule I thereof.
I agree to notify the Company promptly of the amount of taxable compensation
realized by me by reason of such sale for Federal Income tax purposes.
When the certificate for Common Shares which I have elected to purchase has
been issued, please deliver it to me, along with my endorsed Incentive Stock
Option Agreement in the event there remains an unexercised balance of Shares
under the Option, at the following address:
____________________________________
____________________________________
Address
Very truly yours,
___________________________________
Signature of Optionee
___________________________________
Print Name
<PAGE>
Optionee _________________ Date of Grant __________________________
SCHEDULE I
Unexercised Issuing
Shares Payment Shares Officer
Date Purchased Received Remaining Initials
EXHIBIT 4.5
<PAGE>
CASMYN CORP.
1995 STOCK OPTION PLAN
1. PURPOSE
The purposes of this 1995 Stock Option Plan ("1995 PLAN") are to retain,
reward, and motivate officers and key employees, and to promote relationships
with certain suppliers and independent contractors (collectively referred to
herein as ("OPTIONEES") of Casmyn Corp. ("CASMYN"). Additionally, to encourage
stock ownership by OPTIONEES by providing a means to acquire shares CASMYN'S
Common Stock or to increase their stock holdings and to provide a greater
community of interest between OPTIONEES and CASMYN's stockholders by
permitting CASMYN to grant Stock Options ("OPTIONS") to eligible OPTIONEES,
as provided in Section 3 hereof.
Its intended that the OPTIONS granted under the plan shall not comply with the
regulations for "incentive stock options" provided for in Section 422 of the
Internal Revenue Code, and regulations thereunder, as the same may be
hereinafter amended from time to time (such laws and regulations are
hereinafter referred to as the "CODE").
2. ADMINISTRATION
Subject to Section 5(a) hereof, the 1995 PLAN shall be administered by the
Board of Directors ("BOARD") of CASMYN which is authorized, subject to the
provisions of the 1995 PLAN, to establish rules and regulations governing the
1995 PLAN, to appoint such agents as it deems appropriate for the proper
administration of the 1995 PLAN, and to delegate such authority to administer
the 1995 PLAN to a committee of the Board ("COMMITTEE"). Any questions of
interpretation of the 1995 PLAN as determined by the COMMITTEE shall be final
and binding upon all persons.
3. PARTICIPANTS
The OPTIONEES eligible to receive OPTIONS under the 1995 PLAN shall be
determined from time to time at the sole discretion of the COMMITTEE.
4. SHARES RESERVED UNDER THE 1995 PLAN
Subject to the Provisions of Section 6 of the 1995 PLAN, the maximum number of
shares for which OPTIONS may be granted under this 1995 PLAN is 250,000 shares
of Common Stock, $.04 par value per share, of CASMYN. Shares issued pursuant
to the 1995 PLAN will be authorized and unissued shares.
<PAGE>
5. OPTIONS
Options may be granted from time to time from June 30, 1995 until June 29,
2000, subject to the following provisions:
(a) Notwithstanding anything to the contrary, to the extent necessary to
comply with the requirements of Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934 (or any
successor thereto), the 1995 PLAN shall be administered by the Board, if each
member is a disinterested Director or, at the option of the Board, a committee
of one or more Disinterested Directors appointed by the Board (the group
responsible for administering the 1995 PLAN is referred hereafter as the
"COMMITTEE"). Options may be granted only by the unanimous agreement of the
members of the COMMITTEE. Stock Option Agreements ("Option Agreements"), in
the form as approved by the members of the COMMITTEE, and containing such
terms and conditions not inconsistent with the provisions of this 1995 PLAN as
shall have been determined by the COMMITTEE, may be executed on behalf of
CASMYN by the Chief Executive Officer of CASMYN. The COMMITTEE shall have
complete authority to construe, interpret and administer the provisions of the
1995 PLAN and the provisions of the Option Agreements relating to the options
granted hereunder to prescribe, amend and rescind rules and regulations
pertaining to the 1995 PLAN and to make all other determinations necessary or
deemed advisable in the administration of the 1995 PLAN.
The determinations, interpretations and constructions made by the COMMITTEE
shall be final and conclusive. Members of the COMMITTEE shall shall be
specified by the Board, and shall consist solely of Disinterested Directors
and as such not be eligible to receive options to purchase Common Stock
pursuant to the 1995 PLAN. For purposes of this Section 5(a), the term
"Disinterested Director" shall mean a director who is not, during the one year
prior to service as an administrator of the 1995 PLAN, granted or awarded an
option pursuant to the 1995 PLAN or any other plan of CASMYN or any of its
affiliates, except as may be permitted by the Securities Exchange Act of 1934,
as amended, and the rules promulgated thereunder.
(b) No OPTION may be exercised after June 30, 2005. All unexercised OPTIONS
expire after said date.
(c) The option price per share of a OPTION granted under the 1995 PLAN is
$0.04 per share.
(d) No OPTION under this 1995 PLAN may be transferable by the Optionee other
than by the Optionee's will or by the laws of descent and distribution , and
no Option can be exercised during the lifetime of the Optionee except by the
Optionee, his guardian or attorney-in-fact.
(e) OPTIONS, which have not vested under the 1995 PLAN shall expire upon
termination of employment or contractual relationship for any reason other
than Death, total disability (as defined in Section 22(e)(3) of the CODE),
retirement or as specifically provided for under the terms of an employment
agreement, contract or the Option Agreement.
(f) The board, or its delegate, may at any time, at its discretion and in such
manner as it deems appropriate, agree to waive or modify any of the terms of
any outstanding OPTIONS, provided that any such modification shall be subject
to the consent of the Optionee and that any such waiver or modification shall
be in accordance with the terms of the 1995 PLAN.
<PAGE>
(g) All shares purchased under OPTIONS shall be paid in full, including any
related taxes, at the time of purchase. Shares acquired by exercise of OPTIONS
shall be paid in cash or the equivalent thereof. The exercise of options may
be subject to Federal and State income tax and income tax withholding by
CASMYN. The OPTIONS granted under the Plan, may be subject to vesting
provisions as described in the Option Agreement. Vested OPTIONS may be
exercised in whole or in part. If exercised in part, OPTIONS must be exercised
in minimum increments of 1,000 shares.
6. ADJUSTMENT PROVISIONS
(a) If CASMYN shall at any time change the number of issued shares of Common
Stock without new consideration to CASMYN (such as stock dividends, stock
splits, or stock exchange), the total number of shares reserved for issuance
under this 1995 PLAN and the number of shares covered by each outstanding
OPTION shall be adjusted so that the aggregate consideration payable to CASMYN
and the value of each OPTION shall not be changed.
(b) If a dissolution or liquidation of CASMYN shall occur, the Board, or its
delegate at its discretion, may accelerate the vesting and/or expiration of
all or any portion of the OPTIONS granted under this plan. CASMYN shall give
notice of the proposed dissolution of CASMYN and shall notify the Optionee of
their right to exercise such options (including any OPTIONS which have been
accelerated by the Board) within a period not to exceed sixty days of the
mailing of the notice, provided that such sixty day exercise period shall not
extend the exercise date of any OPTION beyond June 29, 2005. Any OPTIONS which
are not exercised within the notice period shall terminate upon the
dissolution or liquidation of CASMYN.
(c) If the outstanding shares of CASMYN shall be exchanged for other shares of
CASMYN, or of another corporation by reason of merger, consolidation or other
recapitalization, or in the event of any other material change in the capital
stock of CASMYN by reason of any reclassification, reorganization,
recapitalization or otherwise, there shall be a proportionate and equitable
adjustment of the terms of the OPTION with respect to the amount and class of
shares remaining subject to the OPTION and the purchase price to be paid
thereof, as follows: if the outstanding shares of CASMYN shall be exchanged
for other stock of CASMYN or of another corporation, the Optionee shall be
entitled to purchase, pursuant to his OPTION, such number of shares of the
CASMYN or of such other corporation as were exchangeable for the number of
shares of CASMYN which the Optionee would have been entitled to purchase,
except for such action, and the cash consideration payable per share shall be
proportionately and equitably adjusted at the discretion of the Board.
(d) If, as a result of any of the events specified herein, the Board, or its
delegate, shall be of the opinion that the other provisions of this Section 6
will not effect an equitable and proportionate adjustment of the terms of the
OPTION with respect to the amount and class of shares remaining subject
thereto and the purchase price to be paid, there shall be made such other or
further adjustments in the terms of the OPTION as shall be necessary in the
opinion of the Board to effect an equitable and proportionate adjustment of
the terms of the OPTION or OPTIONS.
<PAGE>
7. PURCHASE FOR INVESTMENT / REGISTRATION RIGHTS
Each OPTIONEE receiving shares upon exercise of an OPTION may be required by
CASMYN to furnish a representation that the shares are being acquired for
investment and not with a view to disposition if CASMYN, in its sole
discretion, determines that such representation is required to insure that the
resale or other disposition of the shares would not involve a violation of the
Securities Act of 1933, as amended, or of any other applicable laws. CASMYN
reserves the right to place a legend on the certificates for shares delivered
pursuant to the plan and to issue stop transfers or similar instructions to
the transfer agent which CASMYN, in its sole discretion, deems necessary and
proper to assure compliance with (a) any such representations, or (b) any
federal or state law.
8. COMPLIANCE WITH SECURITIES LAWS
No certificate for shares shall be delivered upon the exercising of an OPTION
until CASMYN has taken action which is required to comply with the provisions
of the Securities Exchange Act of 1933, as amended, the Securities Exchange
Act of 1934 as amended, any other applicable laws and with the requirements of
any exchange on which the Common Stock may, at the time be listed.
9. MODIFICATIONS, AND TERMINATION OF THE 1995 PLAN
The Board reserves the right to terminate, amend or modify the 1995 PLAN at
any time. The approval of the stockholders will not be required for the
actions of the Board, which in its sole discretion, are necessary for the fair
and equitable administration of the Plan.
10. EFFECTIVE DATE OF THE 1995 PLAN
The 1995 PLAN shall become effective on June 30, 1995. Subject to
stockholder approval, which is required for the implementation of the 1995
PLAN.
11. GOVERNING LAW
All questions arising with respect to the provisions of the 1995 PLAN shall
be determined by application of the laws of the state of Nevada, except to the
extent that Nevada law is preempted by federal statute.
EXHIBIT 4.6
<PAGE>
Number of Shares ________________
Date of Grant ____________________
1995 STOCK OPTION AGREEMENT
AGREEMENT made this _______ day of _____________________________, 1995,
between ________________________________ (the " OPTIONEE "), and CASMYN CORP.,
a Colorado Corporation ("COMPANY").
1. Grant of Option. The COMPANY, pursuant to the provisions of the 1995
Stock Option Plan ("1995 PLAN"), set forth as Attachment A hereto, hereby
grants to the Optionee, subject to the terms and conditions set forth or
incorporated herein, an Option to Purchase from the COMPANY all or any part
of an aggregate of __________ Common Shares, as such Common Shares are now
constituted, at the purchase price of $0.04 (four cents) per share. The
provisions of the 1995 PLAN governing the terms and conditions of the
Option granted hereby are incorporated in full herein by reference.
2. Exercise. The Option evidenced hereby shall be exercisable in whole or
in part (but only in multiples of 1,000 Shares unless such exercise is as
to the remaining balance of this Option) on or after June 30, 1995 and on
or before June 29, 2005 (Expiration Date), provided that the cumulative
number of Common Shares as to which this Option may be exercised shall not
exceed the following amounts:
CUMULATIVE NUMBER PRIOR TO DATE
OF SHARES (NOT INCLUSIVE OF)
================= ==================
June 30, 1995
June 30, 1996
The Option evidenced hereby shall be exercisable by the delivery to and
receipt by the COMPANY of (i) a written notice of election to exercise, in
the form set forth in Attachment B hereto, specifying the number of Shares to
be purchased; (ii) accompanied by payment of the full purchase price thereof
in cash or certified check payable to the order of Casmyn Corp. and (iii) by
return of this Stock Option Agreement for endorsement of exercise by the
COMPANY on Schedule I hereof.
3. Transferability. The Option evidenced hereby is not assignable or
transferable by the Optionee other than by the Optionee's will or by the
laws of descent and distribution, as provided in Paragraph 5d of the 1995
PLAN.
<PAGE>
CASMYN CORP.
By: ________________________________
Amyn S. Dahya, Chairman,
President and CEO
ATTEST:
____________________________
Secretary
Optionee hereby acknowledges receipt of a copy of the 1995 PLAN, attached
hereto and accepts this Option subject to each and every term and provision of
such Plan. Optionee hereby agrees to accept as binding, conclusive and final,
all decisions or interpretations of the Compensation Committee of the Board of
Directors administering the 1995 PLAN on any questions arising under such 1995
PLAN. Optionee recognizes that if Optionee's employment with the COMPANY or
any subsidiary thereof shall be terminated with or without cause, or by the
Optionee, all of Optionee's rights hereunder shall thereupon terminate with
respect to all unvested Options.
Dated: ________________________ ______________________________________
Optionee
______________________________________
Print Name
______________________________________
______________________________________
______________________________________
Social Security No.:
<PAGE>
ATTACHMENT B
(Suggested form of letter to be used for notification of election to
exercise. Please do not use this page, but follow this form in a separately
typed letter.)
Date: __________________________
Treasurer
Casmyn Corp.
1335 Greg Street #104
Sparks, NV 89431
Dear Sir:
In accordance with paragraph 2 of the Stock Option Agreement evidencing the
Option granted to me on ____________________________ under the Casmyn Corp.
1995 Stock Option Plan, I hereby elect to exercise this Option to the extent
of ____________________ Common Shares.
Enclosed is a certified check payable to the order of "Casmyn Corp." in the
amount of $_______________________ as the purchase price of $________________
for the Shares which I have elected to purchase and (ii) the original 1995
Stock Option Agreement for endorsement by the COMPANY as to exercise on
Schedule I thereof.
When the certificate for Common Shares which I have elected to purchase has
been issued, please deliver it to me, along with my endorsed 1995 Stock
Option Agreement in the event there remains an unexercised balance of Shares
under the Option, at the following address:
____________________________________
____________________________________
Address
Very truly yours,
___________________________________
Signature of Optionee
___________________________________
Print Name
<PAGE>
Optionee _________________ Date of Grant __________________________
SCHEDULE I
Unexercised Issuing
Shares Payment Shares Officer
Date Purchased Received Remaining Initials
EXHIBIT 5.1
<PAGE>
August 26, 1996
Casmyn Corp.
1335 Greg Street
Unit #104
Sparks, Nevada 89431
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Casmyn Corp., a Colorado corporation (the
"Company"), in connection with the preparation of the Registration Statement
on Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission on or about August 26, 1996, under the Securities Act of
1933, as amended (the "Securities Act"), relating to 1,050,000 shares (the
"Shares") of the $.04 par value common stock (the "Common Stock") of the
Company that have been or may be issued by the Company under the following
employee benefit plans included in the Registration Statement (the "Plans"):
(1) Casmyn Corp. 1995 Incentive Stock Option Plan and (2) Casmyn Corp. 1995
Stock Option Plan.
You have requested the opinion of this firm with respect to certain legal
aspects of the proposed offering. In connection therewith, we have examined
and relied upon the original, or copies identified to our satisfaction, of (1)
the articles of incorporation and the bylaws of the Company, as amended; (2)
minutes and records of corporate proceedings of the Company with respect to
the establishment of the Plans, the issuance of shares of Common Stock
pursuant to the Plans and related matters; (3) the Registration Statement and
exhibits thereto, including the Plans; and (4) such other documents and
instruments as we have deemed necessary for the expression of opinions herein
contained. In making the foregoing examinations, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted
to us as originals, and the conformity to original documents of all documents
submitted to us as certified or photostatic copies. As to various questions
of fact material to this opinion, and as to the content and form of the
articles of incorporation, the bylaws, minutes, records, resolutions and other
documents or writings of the Company, we have relied, to the extent we deem
reasonably appropriate, upon representations or certificates of officers or
directors of the Company and upon documents, records and instruments furnished
to us by the Company, without independent check or verification of their
accuracy.
Based upon our examination and consideration of, and reliance on, the
documents and other matters described above, we are of the opinion that the
Company presently has available at least 1,050,000 shares of authorized but
unissued shares of Common Stock and/or treasury shares of Common Stock from
which the 1,050,000 shares of Common Stock proposed to be offered under the
Plans or to be sold pursuant to the exercise of options (the "Options")
granted or to be granted under the Plans may be issued. Assuming the (i) the
outstanding Options were duly granted, and the Options to be granted in the
future are duly issued in accordance with the terms of the Plans, (ii) the
Company maintains an adequate number of authorized but unissued shares and/or
treasury shares of Common Stock available for issuance to those persons who
exercise Options granted under the Plans, and (iii) the consideration for
shares of Common Stock issued pursuant to the Plans and pursuant to such
Options, as the case may be, is actually received by the Company as provided
in the Plans and equals or exceeds the par value of such shares, then the
shares of Common Stock issued in accordance with the terms of the Plans and
issued pursuant to the exercise of the Options granted under and in accordance
with the terms of the Plans will be duly and validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm included in or made a
part of the Registration Statement. In giving this consent, we do not admit
that we come within the category of person whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the Rules and
Regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST
a Professional Corporation
John M. Stephenson, Esq.
EXHIBIT 23
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Casmyn Corp. on Form S-8 of our report dated December 22, 1995, appearing
in the Annual Report on Form 10-KSB of Casmyn Corp. for the year ended
September 30, 1995.
DELOITTE & TOUCHE LLP
Reno, Nevada
August 26, 1996
