As filed with the Securities and Exchange Commission on April 9, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Perpetua Resources Corp.
(Exact name of registrant as specified in its charter)
British Columbia | 26-4675940 |
(State or other jurisdiction
of incorporation or organization) |
(I.R.S. Employer
Identification Number) |
405 S. 8th Street, Ste. 201 Boise, Idaho |
83702 |
(Address of Principal Executive Offices) | (Zip Code) |
2011 Evergreen Incentive Stock Option Plan
(Full title of the plan)
Perpetua Resources Idaho Inc.
13181 Highway 55, PO Box 429
Donnelly, Idaho 83615
(208) 901-3060
(Name, address and telephone number, including area code, of agent for service)
with copies to:
Laurel Sayer
President and Chief Executive Officer
405 S. 8th Street, Ste. 201 Boise, ID 83702 (208) 901-3060 |
Daniel M. Miller Dorsey & Whitney LLP Suite 1070, 1095 West Pender Street Vancouver, British Columbia V6E 2M6 Canada (604) 630-5199 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b- 2 of the Exchange Act.
Large accelerated filer ¨ | Accelerated filer ¨ |
Non-accelerated filer ¨ (Do not check if a smaller reporting company) | Smaller reporting company þ |
Emerging growth company þ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
Title of securities to be
registered |
Amount to
be registered(1) |
Proposed
maximum offering price per share(2) |
Proposed
maximum aggregate offering price |
Amount of
registration fee |
||||||||||||
Common Shares, without par value | 3,000,000 | $ | 6.56 | $ | 19,680,000 | $ | 2,147.09 |
(1) | Consists of Common Shares (without par value) issuable pursuant to exercise of options granted under the 2011 Evergreen Incentive Stock Option Plan. Also includes such indeterminate number of common shares of the registrant as may be issued to prevent dilution resulting from stock dividends, stock splits or similar transactions in accordance with Rule 416 under the Securities Act of 1933. |
(2) | Estimated pursuant to Rule 457(c) and (h) under the Securities Act of 1933 solely for the purpose of calculating the registration fee on the basis of the average of the high and low sales price per share of the common shares of Perpetua Resources Corp. on the Nasdaq Capital Market on April 5, 2021. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information required by Item 1 of Form S-8 and the statement of availability of registrant information and any other information required by Item 2 of Form S-8 will be sent or given to participants as specified by Rule 428 under the Securities Act of 1933, as amended. In accordance with Rule 428 and the requirements of Part I of Form S-8, such documents are not being filed with the United States Securities and Exchange Commission, or the “Commission”, either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. Perpetua Resources Corp., or “we”, “our company” or the “Registrant”, will maintain a file of such documents in accordance with the provisions of Rule 428. Upon request, the Registrant will furnish to the Commission or its staff a copy of any or all of the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated into this registration statement by reference:
· | The Registrant’s Annual Report on Form 40-F for the year ended December 31, 2020; |
· | The Registrant’s Current Reports on Form 6-K furnished to the Commission on March 10, 2021 and March 16, 2021; |
· | Exhibit 99.1 to the Registrant’s Current Report on Form 6-K furnished to the Commission on February 23, 2021; |
· | All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 2020. |
Each document filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this registration statement and prior to the filing of any post-effective amendment to this registration statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing of such documents. In addition, any information circular, unaudited interim consolidated financial statements, management’s discussion and analysis, material change reports (excluding confidential material change reports) or business acquisition reports subsequently filed by the registrant with securities commissions or similar authorities in the relevant provinces and territories of Canada after the date of this registration statement, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this registration statement from the applicable Report on Form 6-K on which such document is furnished to the Commission. In addition, any Form 6-K furnished by the registrant during such period or portions thereof, in each case that are identified in such Form 6-K as being incorporated by reference into this registration statement, shall be deemed to be incorporated by reference into and to be part of this registration statement from the date of filing of each such document.
Any statement contained herein, in any amendment hereto or in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any subsequently-filed amendment to this registration statement or in any document that also is incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
We are subject to the provisions of Part 5, Division 5 of the Business Corporations Act (British Columbia), or “BCBCA”. Under Section 160 of the BCBCA, the Registrant may, subject to Section 163 of the BCBCA:
1. | indemnify an individual who: |
• | is or was a director or officer of our company; |
• | is or was a director or officer of another corporation (i) at a time when such corporation is or was an affiliate of our company; or (ii) at our request, or |
• | at our request, is or was, or holds or held a position equivalent to that of, a director or officer of a partnership, trust, joint venture or other unincorporated entity, | |||
and including, subject to certain limited exceptions, the heirs and personal or other legal representatives of that individual (collectively, an “eligible party”), against all eligible penalties to which the eligible party is or may be liable; and |
2. | after final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by an eligible party in respect of that proceeding, where: |
• | “eligible penalty” means a judgment, penalty or fine awarded or imposed in, or an amount paid in settlement of, and eligible proceeding. |
• | “eligible proceeding” means a proceeding in which an eligible party or any of the heirs and personal or other legal representatives of the eligible party, by reason of the eligible party being or having been a director or officer of, or holding or having held a position equivalent to that of a director or officer of, our company or an associated corporation (a) is or may be joined as a party, or |
(b) is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding. |
• | “proceeding” includes any legal proceeding or investigative action, whether current, threatened, pending or completed. |
Under Section 161 of the BCBCA, and subject to Section 163 of the BCBCA, we must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by an eligible party in respect of that proceeding if the eligible party (a) has not been reimbursed for those expenses, and (b) is wholly successful, on the merits or otherwise, in the outcome of the proceeding or is substantially successful on the merits in the outcome of the proceeding.
Under Section 162 of the BCBCA, and subject to Section 163 of the BCBCA, we may pay, as they are incurred in advance of the final disposition of an eligible proceeding, the expenses actually and reasonably incurred by an eligible party in respect of the proceeding, provided that we must not make such payments unless we first receive from the eligible party a written undertaking that, if it is ultimately determined that the payment of expenses is prohibited under Section 163 of the BCBCA, the eligible party will repay the amounts advanced.
Under Section 163 of the BCBCA, we must not indemnify an eligible party against eligible penalties to which the eligible party is or may be liable or pay the expenses of an eligible party in respect of that proceeding under Sections 160, 161 or 162 of the BCBCA, as the case may be, if any of the following circumstances apply:
• | if the indemnity or payment is made under an earlier agreement to indemnify or pay expenses and, at the time that the agreement to indemnify or pay expenses was made, we were prohibited from giving the indemnity or paying the expenses by our memorandum or articles; |
• | if the indemnity or payment is made otherwise than under an earlier agreement to indemnify or pay expenses and, at the time that the indemnity or payment is made, we are prohibited from giving the indemnity or paying the expenses by our memorandum or articles; |
• | if, in relation to the subject matter of the eligible proceeding, the eligible party did not act honestly and in good faith with a view to the best interests of our company or the associated corporation, as the case may be; or |
• | in the case of an eligible proceeding other than a civil proceeding, if the eligible party did not have reasonable grounds for believing that the eligible party’s conduct in respect of which the proceeding was brought was lawful. |
If an eligible proceeding is brought against an eligible party by or on behalf of our company or by or on behalf of an associated corporation, we must not either indemnify the eligible party against eligible penalties to which the eligible party is or may be liable, or pay the expenses of the eligible party under Sections 160, 161 or 162 of the BCBCA, as the case may be, in respect of the proceeding.
Under Section 164 of the BCBCA, and despite any other provision of Part 5, Division 5 of the BCBCA and whether or not payment of expenses or indemnification has been sought, authorized or declined under Part 5, Division 5 of the BCBCA, on application of our company or an eligible party, the Supreme Court of British Columbia may do one or more of the following:
• | order us to indemnify an eligible party against any liability incurred by the eligible party in respect of an eligible proceeding; |
• | order us to pay some or all of the expenses incurred by an eligible party in respect of an eligible proceeding; | ||
• | order the enforcement of, or payment under, an agreement of indemnification entered into by us; |
• | order us to pay some or all of the expenses actually and reasonably incurred by any person in obtaining an order under Section 164 of the BCBCA; or |
• | make any other order the court considers appropriate. |
Section 165 of the BCBCA provides that we may purchase and maintain insurance for the benefit of an eligible party or the heirs and personal or other legal representatives of the eligible party against any liability that may be incurred by reason of the eligible party being or having been a director or officer of, or holding or having held a position equivalent to that of a director or officer of, our company or an associated corporation.
Under our articles, and subject to the BCBCA, we must indemnify our directors, former directors or alternate directors and his or her heirs and legal personal representatives against all eligible penalties to which such person is or may be liable, and we must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by such person in respect of that proceeding. Each director and alternate director is deemed to have contracted with our company on the terms of the indemnity contained in our articles.
Under our articles, and subject to the BCBCA, we may agree to indemnify and may indemnify any person (including an eligible party) against eligible penalties and pay expenses incurred in connection with the performance of services by that person for us. We have entered into indemnity agreements with our directors and certain of our officers.
Pursuant to our articles, the failure of an eligible party to comply with the BCBCA or our articles does not, of itself, invalidate any indemnity to which he or she is entitled under our articles.
Under our articles, we may purchase and maintain insurance for the benefit of any person (or his or her heirs or legal personal representatives) who:
• | is or was our director, alternate director, officer, employee or agent; |
• | is or was a director, alternate director, officer, employee or agent of a corporation at a time when the corporation is or was our affiliate; |
• | at our request, is or was a director, alternate director, officer, employee or agent of a corporation or of a partnership, trust, joint venture or other unincorporated entity; or |
• | at our request, holds or held a position equivalent to that of a director, alternate director or officer of a partnership, trust, joint venture or other unincorporated entity; |
• | against any liability incurred by him or her as such director, alternate director, officer, employee or agent or person who holds or held such equivalent position. |
In addition, we have entered into an indemnification agreement with each of our directors and officers, which requires us to indemnify them.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
No. | Description |
4.1 | Certificate of Incorporation |
4.2 | Notice of Articles and Articles filed under the Business Corporations Act (British Columbia). |
4.3 | Certificate of Change of Name |
4.4 | 2011 Evergreen Incentive Stock Option Plan |
4.5 | Form of U.S. Stock Option Agreement |
4.6 | Form of Canadian Stock Option Agreement |
5.1 | Opinion of Miller Thomson LLP |
23.1 | Consent of Deloitte LLP |
23.2 | Consent of Miller Thomson LLP (included in Exhibit 5.1) |
23.3 | Consent of Richard K. Zimmerman, R.G. SME-RM |
23.4 | Consent of Art Ibrado, P.E. |
23.5 | Consent of Grenvil M. Dunn, C. Eng. |
23.6 | Consent of Garth D. Kirkham, P. Geo. |
23.7 | Consent of Christopher J. Martin, C. Eng. |
23.8 | Consent of Peter E. Kowalewski, P.E. |
23.9 | Consent of Chris J. Roos, P.E. |
23.10 | Consent of Scott Rosenthal, P.E. |
23.11 | Consent of Christopher Dail, C P.G. |
24.1 | Powers of Attorney (included on the signature pages to this registration statement). |
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:
(i) to include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) 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;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference 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.
(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.
(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 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.
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 of 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 Boise, Idaho on April 9, 2021.
PERPETUA RESOURCES CORP. | ||
By: | /s/ Laurel Sayer | |
Name: Laurel Sayer | ||
Title: President and Chief Executive Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Laurel Sayer and Chris Foster, and each of them (with full power to act alone), as his true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him in his name, place and stead, in any and all capacity, in connection with this registration statement, including to sign and file in the name and on behalf of the undersigned as director or officer of the registrant any and all amendments or supplements (including any and all stickers and post-effective amendments) to this registration statement, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission and any applicable securities exchange, securities self-regulatory body or other regulatory authority, granting unto said attorneys-in-fact and agents, and each of them (with full power to act alone), full power and authority to do and perform each and every act and thing requisite or 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 any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities indicated on April 9, 2021:
Signature |
Title |
|
/s/ Laurel Sayer | President, Chief Executive Officer and Director | |
Laurel Sayer | (Principal Executive Officer) | |
/s/ Chris Foster | Chief Financial Officer | |
Chris Foster | (Principal Accounting Officer) | |
/s/ Jessica Largent | Vice President Finance and Investor Relations | |
Jessica Largent | (Principal Financial Officer) | |
/s/ Marcelo Kim | Chairman of the Board of Directors | |
Marcelo Kim |
/s/ Bob Dean | Director | |
Bob Dean | ||
/s/ David Deisley | Director | |
David Deisley | ||
/s/ Jeff Malmen | Director | |
Jeff Malmen | ||
/s/ Chris Papagianis | Director | |
Chris Papagianis | ||
/s/ Chris Robison | Director | |
Chris Robison | ||
/s/ Alex Sternhell | Director | |
Alex Sternhell |
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements to Section 6(a) of the Securities Act of 1933, the undersigned has signed this registration statement solely in the capacity of the duly authorized representative of Perpetua Resources Corp. in the United States on April 9, 2021.
PERPETUA RESOURCES IDAHO INC. | ||
By: | /s/ Laurel Sayer | |
Name: Laurel Saye | ||
Title: President and Chief Executive Officer |
Exhibit 4.1
|
|
Exhibit 4.2
|
Mailing Address: PO Box 9431 Stn Prov Govt Victoria BC V8W 9V3 www.corporateonline.gov.bc.ca Location: 2nd Floor - 940 Blanshard Street Victoria BC 1 877 526-1526 Notice of Articles BUSINESS CORPORATIONS ACT CERTIFIED COPY Of a Document filed with the Province of British Columbia Registrar of Companies CAROL PREST This Notice of Articles was issued by the Registrar on: February 15, 2021 12:01 AM Pacific Time Incorporation Number: BC0903577 Recognition Date and Time: Incorporated on February 22, 2011 11:07 AM Pacific Time NOTICE OF ARTICLES Name of Company: PERPETUA RESOURCES CORP. REGISTERED OFFICE INFORMATION Mailing Address: SUITE 400 - 725 GRANVILLE STREET P.O. BOX 10325 VANCOUVER BC V7Y 1G5 CANADA Delivery Address: SUITE 400 - 725 GRANVILLE STREET VANCOUVER BC V7Y 1G5 CANADA RECORDS OFFICE INFORMATION Mailing Address: SUITE 400 - 725 GRANVILLE STREET P.O. BOX 10325 VANCOUVER BC V7Y 1G5 CANADA Delivery Address: SUITE 400 - 725 GRANVILLE STREET VANCOUVER BC V7Y 1G5 CANADA Page: 1 of 3 |
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DIRECTOR INFORMATION Last Name, First Name, Middle Name: Sayer, Laurel Mailing Address: 2670 EAST GREYSTONE CT. EAGLE ID 83616 UNITED STATES Delivery Address: 405 S 8TH STREET #201 BOISE ID 83702 UNITED STATES Last Name, First Name, Middle Name: Dean, Robert A. Mailing Address: 201 W. STATE STREET BOISE ID 83702 UNITED STATES Delivery Address: 201 W. STATE STREET BOISE ID 83702 UNITED STATES Last Name, First Name, Middle Name: Deisley, David L. Mailing Address: 1273 EAST TOMAHAWK DRIVE SALT LAKE CITY UT 84103 UNITED STATES Delivery Address: 1273 EAST TOMAHAWK DRIVE SALT LAKE CITY UT 84103 UNITED STATES Last Name, First Name, Middle Name: Robison, Christopher J. Mailing Address: 1059 COUNTRY CLUB ESTATES DR. CASTLE ROCK CO 80108 UNITED STATES Delivery Address: 1059 COUNTRY CLUB ESTATES DR. CASTLE ROCK CO 80108 UNITED STATES Last Name, First Name, Middle Name: Sternhell, Alex Mailing Address: 27 PRIMROSE ST. CHEVY CHASE MD 20815 UNITED STATES Delivery Address: 1201 NEW YORK AVE NW, SUITE 900 WASHINGTON DC 20005 UNITED STATES Last Name, First Name, Middle Name: Malmen, Jeff Mailing Address: 4903 W. ROBERTS RD. BOISE ID 83705 UNITED STATES Delivery Address: 4903 W. ROBERTS RD. BOISE ID 83705 UNITED STATES Page: 2 of 3 |
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Last Name, First Name, Middle Name: Papagianis, Chris Mailing Address: SUITE 890 - 999 WEST HASTINGS STREET VANCOUVER BC V6C 2W2 CANADA Delivery Address: SUITE 890 - 999 WEST HASTINGS STREET VANCOUVER BC V6C 2W2 CANADA Last Name, First Name, Middle Name: Kim Huh, Marcelo Mailing Address: 999 WEST HASTINGS STREET SUITE 890 VANCOUVER BC V6C 2W2 CANADA Delivery Address: 999 WEST HASTINGS STREET SUITE 890 VANCOUVER BC V6C 2W2 CANADA AUTHORIZED SHARE STRUCTURE 1. No Maximum Common Shares Without Par Value Without Special Rights or Restrictions attached ___________________________________________________ 2. No Maximum First Preferred Shares Without Par Value With Special Rights or Restrictions attached ___________________________________________________ 3. No Maximum Second Preferred Shares Without Par Value With Special Rights or Restrictions attached ___________________________________________________ Page: 3 of 3 |
Perpetua Resources Corp.
Midas Gold Corp.
(the "Company")
The Company has as its articles the following articles.
Full name and signature of each incorporator | Date of signing | |
|
February , 2011 | |
Corey M. Dean
|
|
Incorporation number: BC0903577
Midas Gold Corp.
(the "Company")
ARTICLES
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1. Interpretation
1.1 | Definitions |
In these Articles, unless the context otherwise requires:
(1) | "board of directors", "directors" and "board" mean the directors or sole director of the Company for the time being; |
(2) | "Business Corporations Act" means the Business Corporations Act (British Columbia) from time to time in force and all amendments thereto and includes all regulations and amendments thereto made pursuant to that Act; |
(3) | "Interpretation Act" means the Interpretation Act (British Columbia) from time to time in force and all amendments thereto and includes all regulations and amendments thereto made pursuant to that Act; |
(4) | "legal personal representative" means the personal or other legal representative of a shareholder; |
(5) | "registered address" of a shareholder means the shareholder's address as recorded in the central securities register; |
(6) | "seal" means the seal of the Company, if any. |
1.2 | Business Corporations Act and Interpretation Act Definitions Applicable |
The definitions in the Business Corporations Act and the definitions and rules of construction in the Interpretation Act, with the necessary changes, so far as applicable, and unless the context requires otherwise, apply to these Articles as if they were set out herein. If there is a conflict between a definition in the Business Corporations Act and a definition or rule in the Interpretation Act relating to a term used in these Articles, the definition in the Business Corporations Act will prevail in relation to the use of the term in these Articles. If there is a conflict or inconsistency between these Articles and the Business Corporations Act, the Business Corporations Act will prevail.
2. Shares and Share Certificates
2.1 | Authorized Share Structure |
The authorized share structure of the Company consists of shares of the class or classes and series, if any, described in the Notice of Articles of the Company.
2.2 | Form of Share Certificate |
Each share certificate issued by the Company must comply with the Business Corporations Act.
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2.3 | Shareholder Entitled to Certificate or Acknowledgment |
Each shareholder is entitled, without charge, to (a) one share certificate representing the shares of each class or series of shares registered in the shareholder's name or (b) a non-transferable written acknowledgment of the shareholder's right to obtain such a share certificate, provided that in respect of a share held jointly by several persons, the Company is not bound to issue more than one share certificate or acknowledgment and delivery of a share certificate or acknowledgment to one of several joint shareholders or to a duly authorized agent of one of the joint shareholders will be sufficient delivery to all.
2.4 | Delivery by Mail |
Any share certificate or non-transferable written acknowledgment of a shareholder's right to obtain a share certificate may be sent to the shareholder by mail at the shareholder's registered address and neither the Company nor any director, officer or agent of the Company is liable for any loss to the shareholder because the share certificate or acknowledgement is lost in the mail or stolen.
2.5 | Replacement of Worn Out or Defaced Certificate or Acknowledgement |
If the directors are satisfied that a share certificate or a non-transferable written acknowledgment of the shareholder's right to obtain a share certificate is worn out or defaced, they must, on production to them of the share certificate or acknowledgment, as the case may be, and on such other terms, if any, as they think fit:
(1) | order the share certificate or acknowledgment, as the case may be, to be cancelled; and |
(2) | issue a replacement share certificate or acknowledgment, as the case may be. |
2.6 | Replacement of Lost, Stolen or Destroyed Certificate or Acknowledgment |
If a share certificate or a non-transferable written acknowledgment of a shareholder's right to obtain a share certificate is lost, stolen or destroyed, a replacement share certificate or acknowledgment, as the case may be, must be issued to the person entitled to that share certificate or acknowledgment, as the case may be, if the directors receive:
(1) | proof satisfactory to them that the share certificate or acknowledgment is lost, stolen or destroyed; and |
(2) | any indemnity the directors consider adequate. |
2.7 | Splitting Share Certificates |
If a shareholder surrenders a share certificate to the Company with a written request that the Company issue in the shareholder's name two or more share certificates, each representing a specified number of shares and in the aggregate representing the same number of shares as the share certificate so surrendered, the Company must cancel the surrendered share certificate and issue replacement share certificates in accordance with that request.
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2.8 | Certificate Fee |
There must be paid as a fee to the Company for the issuance of any share certificate under Articles 2.5, 2.6 or 2.7, the amount, if any, determined by the directors, which must not exceed the amount prescribed under the Business Corporations Act.
2.9 | Recognition of Trusts |
Except as required by law or statute or these Articles, no person will be recognized by the Company as holding any share upon any trust, and the Company is not bound by or compelled in any way to recognize (even when having notice thereof) any equitable, contingent, future or partial interest in any share or fraction of a share or (except as required by law or statute or these Articles or as ordered by a court of competent jurisdiction) any other rights in respect of any share except an absolute right to the entirety thereof in the shareholder.
3. Issue of Shares
3.1 | Directors Authorized |
Subject to the Business Corporations Act and the rights, if any, of the holders of issued shares of the Company, the Company may issue, allot, sell or otherwise dispose of the unissued shares, and issued shares held by the Company, at the times, to the persons, including directors, in the manner, on the terms and conditions and for the issue prices (including any premium at which shares with par value may be issued) that the directors may determine. The issue price for a share with par value must be equal to or greater than the par value of the share.
3.2 | Commissions and Discounts |
The Company may at any time, pay a reasonable commission or allow a reasonable discount to any person in consideration of that person purchasing or agreeing to purchase shares of the Company from the Company or any other person or procuring or agreeing to procure purchasers for shares of the Company.
3.3 | Brokerage |
The Company may pay such brokerage fee or other consideration as may be lawful for or in connection with the sale or placement of its securities.
3.4 | Conditions of Issue |
Except as provided for by the Business Corporations Act, no share may be issued until it is fully paid. A share is fully paid when:
(1) | consideration is provided to the Company for the issue of the share by one or more of the following: |
(a) past services performed for the Company;
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(b) property;
(c) money; and
(2) | the directors in their discretion have determined that the value of the consideration received by the Company is equal to or greater than the issue price set for the share under Article 3.1. |
3.5 | Share Purchase Warrants and Rights |
Subject to the Business Corporations Act, the Company may issue share purchase warrants, options, convertible debentures and rights upon such terms and conditions as the directors determine, which share purchase warrants, options, convertible debentures and rights may be issued alone or in conjunction with debentures, debenture stock, bonds, shares or any other securities issued or created by the Company from time to time.
4. Share Registers
4.1 | Central Securities Register and Any Branch Securities Register |
As required by and subject to the Business Corporations Act, the Company must maintain a central securities register and may maintain a branch securities register. The directors may, subject to the Business Corporations Act, appoint an agent to maintain the central securities register or any branch securities register. The directors may also appoint one or more agents, including the agent which keeps the central securities register, as transfer agent for its shares or any class or series of its shares, as the case may be, and the same or another agent as registrar for its shares or such class or series of its shares, as the case may be. The directors may terminate such appointment of any agent at any time and may appoint another agent in its place.
4.2 | Closing Register |
The Company must not at any time close its central securities register.
5. Share Transfers
5.1 | Registering Transfers |
A transfer of a share of the Company must not be registered unless the Company or the transfer agent or registrar for the class or series of share to be transferred has received:
(1) | a duly signed instrument of transfer in respect of the share; |
(2) | if a share certificate has been issued by the Company in respect of the share to be transferred, that share certificate; |
(3) | if a non-transferable written acknowledgment of the shareholder's right to obtain a share certificate has been issued by the Company in respect of the share to be transferred, that acknowledgment; and |
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(4) | such other evidence, if any, as the Company or the transfer agent or registrar for the class or series of share to be transferred may require to prove the title of the transferor or the transferor's right to transfer the share, the due signing of the instrument of transfer and the right of the transferee to have the transfer registered. |
For the purpose of this Article, delivery or surrender to the transfer agent or registrar which maintains the Company's central securities register or a branch securities register, if applicable, will constitute receipt by or surrender to the Company.
5.2 | Form of Instrument of Transfer |
The instrument of transfer in respect of any share of the Company must be either in the form, if any, on the back of the Company's share certificates or in any other form acceptable to the Company or its transfer agent, if any.
5.3 | Transferor Remains Shareholder |
Except to the extent that the Business Corporations Act otherwise provides, the transferor of shares is deemed to remain the holder of the shares until the name of the transferee is entered in a securities register of the Company in respect of the transfer.
5.4 | Signing of Instrument of Transfer |
If a shareholder, or his or her duly authorized attorney, signs an instrument of transfer in respect of shares registered in the name of the shareholder, the signed instrument of transfer constitutes a complete and sufficient authority to the Company and its directors, officers and agents to register the number of shares specified in the instrument of transfer or specified in any other manner, or, if no number is specified, all the shares represented by the share certificates or set out in the written acknowledgments deposited with the instrument of transfer:
(1) | in the name of the person named as transferee in that instrument of transfer; or |
(2) | if no person is named as transferee in that instrument of transfer, in the name of the person on whose behalf the instrument is deposited for the purpose of having the transfer registered. |
5.5 | Enquiry as to Title Not Required |
Neither the Company nor any director, officer or agent of the Company is bound to inquire into the title of the person named in the instrument of transfer as transferee or, if no person is named as transferee in the instrument of transfer, of the person on whose behalf the instrument is deposited for the purpose of having the transfer registered or is liable for any claim related to registering the transfer by the shareholder or by any intermediate owner or holder of the shares, of any interest in the shares, of any share certificate representing such shares or of any written acknowledgment of a right to obtain a share certificate for such shares.
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5.6 | Transfer Fee |
There must be paid as a fee to the Company, in relation to the registration of any transfer, the amount, if any, determined by the directors.
6. Transmission of Shares
6.1 | Legal Personal Representative Recognized on Death |
In case of the death of a shareholder, the legal personal representative of the shareholder, or, in the case of shares registered in the shareholder's name and the name of another person in joint tenancy, the surviving joint holder will be the only person recognized by the Company as having any title to the shareholder's interest in the shares. Before recognizing a person as a legal personal representative of the shareholder, the directors may require a declaration of transmission made by the legal personal representative stating the particulars of the transmission, proof of appointment by a court of competent jurisdiction, a grant of letters probate, letters of administration or such other evidence or documents as the directors consider appropriate.
6.2 | Rights of Legal Personal Representative |
The legal personal representative of a shareholder has the same rights, privileges and obligations with respect to the shares as were held by the shareholder, including the right to transfer the shares in accordance with these Articles, provided the documents required by the Business Corporations Act and the directors have been deposited with the Company. This Article 6.2 does not apply in the case of the death of a shareholder with respect to shares registered in the shareholder's name and the name of another person in joint tenancy.
7. Purchase of Shares
7.1 | Company Authorized to Purchase Shares |
Subject to Article 7.2, the special rights and restrictions attached to the shares of any class or series and the Business Corporations Act, the Company may, if authorized by resolution of the directors, purchase, redeem or otherwise acquire any of its shares at the price and upon the terms determined by the directors.
7.2 | Purchase When Insolvent |
The Company must not make a payment or provide any other consideration to purchase, redeem or otherwise acquire any of its shares if there are reasonable grounds for believing that:
(1) the Company is insolvent; or
(2) making the payment or providing the consideration would render the Company insolvent.
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7.3 | Redemption of Shares |
If the Company proposes to redeem some but not all of the shares of any class, the Directors may, subject to any special rights and restrictions attached to such class of shares, determine the manner in which the shares to be redeemed shall be selected.
7.4 | Sale and Voting of Purchased Shares |
If the Company retains a share which it has redeemed, purchased or otherwise acquired, the Company may sell, gift or otherwise dispose of the share, but, while such share is held by the Company, it:
(1) is not entitled to vote the share at a meeting of its shareholders;
(2) must not pay a dividend in respect of the share; and
(3) must not make any other distribution in respect of the share.
8. Borrowing Powers
8.1 | Powers of the Company |
The Company, if authorized by the directors, may:
(1) | borrow money in the manner and amount, on the security, from the sources and on the terms and conditions that the directors consider appropriate; |
(2) | issue bonds, debentures and other debt obligations either outright or as security for any liability or obligation of the Company or any other person and at such discounts or premiums and on such other terms as they consider appropriate; |
(3) | guarantee the repayment of money by any other person or the performance of any obligation of any other person; and |
(4) | mortgage, charge, whether by way of specific or floating charge, grant a security interest in, or give other security on, the whole or any part of the present and future assets and undertaking of the Company. |
8.2 Bonds, Debentures, Debt
Any bonds, debentures or other debt obligations of the Company may be issued at a discount, premium or otherwise, or with special privileges as to redemption, surrender, drawing, allotment of or conversion into or exchange for shares or other securities, attending and voting at general meetings of the Company, appointment of Directors or otherwise and may, by their terms, be assignable free from any equities between the Company and the person to whom they were issued or any subsequent holder thereof, all as the Directors may determine.
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9. Alterations
9.1 | Alteration of Authorized Share Structure |
Subject to Article 9.2 and the Business Corporations Act, the Company may:
(1) | by directors' resolution or by ordinary resolution, in each case as determined by the directors: |
(a) | create one or more classes or series of shares or, if none of the shares of a class or series of shares are allotted or issued, eliminate that class or series of shares; |
(b) | increase, reduce or eliminate the maximum number of shares that the Company is authorized to issue of any class or series of shares or establish a maximum number of shares that the Company is authorized to issue out of any class or series of shares for which no maximum is established; |
(c) | subdivide or consolidate all or any of its unissued, or fully paid issued, shares; |
(d) | if the Company is authorized to issue shares of a class of shares with par value: |
(i) | decrease the par value of those shares; or |
(ii) | if none of the shares of that class of shares are allotted or issued, increase the par value of those shares; |
(e) | change all or any of its unissued shares with par value into shares without par value or any of its unissued shares without par value into shares with par value or change all or any of its fully paid issued shares with par value into shares without par value; or |
(f) | alter the identifying name of any of its shares; and |
(2) | by ordinary resolution otherwise alter its shares or authorized share structure; |
and, if applicable, alter its Notice of Articles and, if applicable, alter its Articles accordingly.
9.2 | Special Rights and Restrictions |
Subject to the Business Corporations Act, the Company may:
(1) | by directors' resolution or by ordinary resolution, in each case as determined by the directors, create special rights or restrictions for, and attach those special rights or restrictions to, the shares of any class or series of shares if none of those shares have been issued; or vary or delete any special rights or restrictions attached to the shares of any class or series of shares if none of those shares have been issued; and |
(2) | by special resolution of the shareholders of the class or series affected, do any of the acts in (1) above if any of the shares of the class or series of shares have been issued, |
and alter its Notice of Articles and Articles accordingly.
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9.3 | Change of Name |
The Company may by directors' resolution or by ordinary resolution, in each case as determined by the directors, authorize an alteration of its Notice of Articles in order to change its name and may, by directors' resolution or ordinary resolution, in each case as determined by the directors, adopt or change any translation of that name.
9.4 | Other Alterations |
The Company, save as otherwise provided by these Articles and subject to the Business Corporations Act, may:
(1) | by directors' resolution or by ordinary resolution, in each case as determined by the directors, authorize alterations to the Articles that are procedural or administrative in nature or are matters that pursuant to these Articles are solely within the directors' powers, control or authority; and |
(2) | if the Business Corporations Act does not specify the type of resolution and these Articles do not specify another type of resolution, by ordinary resolution alter these Articles. |
10. Meetings of Shareholders
10.1 | Annual General Meetings |
Unless an annual general meeting is deferred or waived in accordance with the Business Corporations Act, the Company must hold its first annual general meeting within 18 months after the date on which it was incorporated or otherwise recognized, and after that must hold an annual general meeting at least once in each calendar year and not more than 15 months after the last annual reference date at such time and place as may be determined by the directors.
10.2 | Resolution Instead of Annual General Meeting |
If all the shareholders who are entitled to vote at an annual general meeting consent by a unanimous resolution to all of the business that is required to be transacted at that annual general meeting, the annual general meeting is deemed to have been held on the date of the unanimous resolution. The shareholders must, in any unanimous resolution passed under this Article 10.2, select as the Company's annual reference date a date that would be appropriate for the holding of the applicable annual general meeting.
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10.3 | Calling of Meetings of Shareholders |
The directors may, at any time, call a meeting of shareholders.
10.4 | Location of Meetings of Shareholders |
A meeting of the Company may be held:
(1) | in the Province of British Columbia; |
(2) | at another location outside British Columbia if that location is: |
(a) | approved by resolution of the directors before the meeting is held; or |
(b) | approved in writing by the Registrar of Companies before the meeting is held. |
10.5 | Notice for Meetings of Shareholders |
Subject to Article 10.2, the Company must send notice of the date, time and location of any meeting of shareholders (including, without limitation, any notice specifying the intention to propose a resolution as an exceptional resolution, a special resolution or a special separate resolution, and any notice to consider approving an amalgamation into a foreign jurisdiction, an arrangement or the adoption of an amalgamation agreement, and any notice of a general meeting, class meeting or series meeting), in the manner provided in these Articles, or in such other manner, if any, as may be prescribed by directors' resolution (whether previous notice of the resolution has been given or not), to each shareholder entitled to attend the meeting, to each director and to the auditor of the Company, unless these Articles otherwise provide, at least the following number of days before the meeting:
(1) | if and for so long as the Company is a public company, 21 days; |
(2) | otherwise, 10 days. |
10.6 | Notice of Resolution to which Shareholders May Dissent |
The Company must send to each of its shareholders, whether or not their shares carry the right to vote, a notice of any meeting of shareholders at which a resolution entitling shareholders to dissent is to be considered specifying the date of the meeting and containing a statement advising of the right to send a notice of dissent together with a copy of the proposed resolution at least the following number of days before the meeting:
(1) | if and for so long as the Company is a public company, 21 days; |
(2) | otherwise, 10 days. |
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10.7 | Record Date for Notice |
The directors may set a date as the record date for the purpose of determining shareholders entitled to notice of any meeting of shareholders. The record date must not precede the date on which the meeting is to be held by more than two months or, in the case of a general meeting requisitioned by shareholders under the Business Corporations Act, by more than four months. The record date must not precede the date on which the meeting is held by fewer than:
(1) | if and for so long as the Company is a public company, 21 days; |
(2) | otherwise, 10 days. |
If no record date is set, the record date is 5 p.m. on the day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the meeting.
10.8 | Record Date for Voting |
The directors may set a date as the record date for the purpose of determining shareholders entitled to vote at any meeting of shareholders. The record date must not precede the date on which the meeting is to be held by more than two months or, in the case of a general meeting requisitioned by shareholders under the Business Corporations Act, by more than four months. If no record date is set, the record date is 5 p.m. on the day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the meeting.
10.9 | Failure to Give Notice and Waiver of Notice |
The accidental omission to send notice of any meeting of shareholders to, or the non-receipt of any notice by, any of the persons entitled to notice does not invalidate any proceedings at that meeting. Any person entitled to notice of a meeting of shareholders may, in writing or otherwise, waive that entitlement or may agree to reduce the period of that notice. Attendance of a person at a meeting of shareholders is a waiver of entitlement to notice of the meeting unless that person attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
10.10 | Notice of Special Business at Meetings of Shareholders |
If a meeting of shareholders is to consider special business within the meaning of Article 11.1, the notice of meeting or a circular prepared in connection with the meeting must:
(1) | state the general nature of the special business; and |
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(2) | if the special business includes considering, approving, ratifying, adopting or authorizing any document or the signing of or giving of effect to any document, have attached to it a copy of the document or state that a copy of the document will be available for inspection by shareholders: |
(a) | at the Company's records office, or at such other reasonably accessible location in British Columbia as is specified in the notice ; and |
(b) | during statutory business hours on any one or more specified days before the day set for the holding of the meeting. |
11. | Proceedings at Meetings of Shareholders |
11.1 | Special Business |
At a meeting of shareholders, the following business is special business:
(1) | at a meeting of shareholders that is not an annual general meeting, all business is special business except business relating to the conduct of or voting at the meeting; |
(2) | at an annual general meeting, all business is special business except for the following: |
(a) | business relating to the conduct of or voting at the meeting; |
(b) | consideration of any financial statements of the Company presented to the meeting; |
(c) | consideration of any reports of the directors or auditor; |
(d) | the setting or changing of the number of directors; |
(e) | the election or appointment of directors; |
(f) | the appointment of an auditor; |
(g) | the setting of the remuneration of an auditor; |
(h) | business arising out of a report of the directors not requiring the passing of a special resolution or an exceptional resolution; |
(i) | any other business which, under these Articles or the Business Corporations Act, may be transacted at a meeting of shareholders without prior notice of the business being given to the shareholders. |
11.2 | Special Majority |
The majority of votes required for the Company to pass a special resolution at a general meeting of shareholders is two-thirds of the votes cast on the resolution.
11.3 | Quorum |
Subject to the special rights and restrictions attached to the shares of any class or series of shares, the quorum for the transaction of business at a meeting of shareholders is two shareholders present in person or represented by proxy representing at least 10% of the shares entitled to be voted.
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11.4 | Persons Entitled to Attend Meeting |
In addition to those persons who are entitled to vote at a meeting of shareholders, the only other persons entitled to be present at the meeting are the directors, the president (if any), the secretary (if any), the assistant secretary (if any), any lawyer for the Company, the auditor of the Company, any persons invited to be present at the meeting by the directors or by the chair of the meeting and any persons entitled or required under the Business Corporations Act or these Articles to be present at the meeting; but if any of those persons does attend the meeting, that person is not to be counted in the quorum and is not entitled to vote at the meeting unless that person is a shareholder or proxyholder entitled to vote at the meeting.
11.5 | Requirement of Quorum |
No business, other than the election of a chair of the meeting and the adjournment of the meeting, may be transacted at any meeting of shareholders unless a quorum of shareholders entitled to vote is present at the commencement of the meeting, but such quorum need not be present throughout the meeting.
11.6 | Lack of Quorum |
If, within one-half hour from the time set for the holding of a meeting of shareholders, a quorum is not present:
(1) | in the case of a general meeting requisitioned by shareholders, the meeting is dissolved, and |
(2) | in the case of any other meeting of shareholders, the meeting stands adjourned to the same day in the next week at the same time and place. |
11.7 | Lack of Quorum at Succeeding Meeting |
If, at the meeting to which the meeting referred to in Article 11.6(2) was adjourned, a quorum is not present within one-half hour from the time set for the holding of the meeting, the person or persons present and being, or representing by proxy, one or more shareholders entitled to attend and vote at the meeting shall constitute a quorum.
11.8 | Chair |
The following individual is entitled to preside as chair at a meeting of shareholders:
(1) | the chair of the board, if any; or |
(2) | if the chair of the board is absent or unwilling to act as chair of the meeting, the president, if any. |
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11.9 | Selection of Alternate Chair |
If, at any meeting of shareholders, there is no chair of the board or president willing to act as chair of the meeting or present within 15 minutes after the time set for holding the meeting, or if the chair of the board and the president have advised the secretary, if any, or any director present at the meeting, that they will not be present at the meeting, the directors present must choose a director, officer or corporate counsel to be chair of the meeting or if none of the above persons are present or if they decline to take the chair, the shareholders entitled to vote at the meeting who are present in person or by proxy may choose any person present at the meeting to chair the meeting.
11.10 | Adjournments |
The chair of a meeting of shareholders may, and if so directed by the meeting must, adjourn the meeting from time to time and from place to place, but no business may be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
11.11 | Notice of Adjourned Meeting |
It is not necessary to give any notice of an adjourned meeting of shareholders or of the business to be transacted at an adjourned meeting of shareholders except that, when a meeting is adjourned for 30 days or more, notice of the adjourned meeting must be given as in the case of the original meeting.
11.12 | Decisions by Show of Hands or Poll |
Subject to the Business Corporations Act, every motion put to a vote at a meeting of shareholders will be decided on a show of hands unless a poll, before or on the declaration of the result of the vote by show of hands, is directed by the chair or demanded by any shareholder entitled to vote who is present in person or by proxy.
11.13 | Declaration of Result |
The chair of a meeting of shareholders must declare to the meeting the decision on every question in accordance with the result of the show of hands or the poll, as the case may be, and that decision must be entered in the minutes of the meeting. A declaration of the chair that a resolution is carried by the necessary majority or is defeated is, unless a poll is directed by the chair or demanded under Article 11.12, conclusive evidence without proof of the number or proportion of the votes recorded in favour of or against the resolution.
11.14 | Motion Need Not be Seconded |
No motion proposed at a meeting of shareholders need be seconded unless the chair of the meeting rules otherwise, and the chair of any meeting of shareholders is entitled to propose or second a motion.
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11.15 | Casting Vote |
In case of an equality of votes, the chair of a meeting of shareholders, either on a show of hands or on a poll, does not have a second or casting vote in addition to the vote or votes to which the chair may be entitled as a shareholder.
11.16 | Manner of Taking Poll |
Subject to Article 11.17, if a poll is duly demanded at a meeting of shareholders:
(1) | the poll must be taken: |
(a) | at the meeting, or within seven days after the date of the meeting, as the chair of the meeting directs; and |
(b) | in the manner, at the time and at the place that the chair of the meeting directs; |
(2) | the result of the poll is deemed to be the decision of the meeting at which the poll is demanded; and |
(3) | the demand for the poll may be withdrawn by the person who demanded it. |
11.17 | Demand for Poll on Adjournment |
A poll demanded at a meeting of shareholders on a question of adjournment must be taken immediately at the meeting.
11.18 | Chair Must Resolve Dispute |
In the case of any dispute as to the admission or rejection of a vote given on a poll, the chair of the meeting must determine the dispute, and his or her determination made in good faith is final and conclusive.
11.19 | Casting of Votes |
On a poll, a shareholder entitled to more than one vote need not cast all the votes in the same way.
11.20 | No Demand for Poll on Election of Chair |
No poll may be demanded in respect of the vote by which a chair of a meeting of shareholders is elected.
11.21 | Demand for Poll Not to Prevent Continuance of Meeting |
The demand for a poll at a meeting of shareholders does not, unless the chair of the meeting so rules, prevent the continuation of a meeting for the transaction of any business other than the question on which a poll has been demanded.
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11.22 | Retention of Ballots and Proxies |
The Company must, for at least three months after a meeting of shareholders, keep each ballot cast on a poll and each proxy voted at the meeting, and, during that period, make them available for inspection during normal business hours by any shareholder or proxy holder entitled to vote at the meeting. At the end of such three month period, the Company may destroy such ballots and proxies.
12. | Votes of Shareholders |
12.1 | Number of Votes by Shareholder or by Shares |
Subject to any special rights or restrictions attached to any shares and to the restrictions imposed on joint shareholders under Article 12.3:
(1) | on a vote by show of hands, every person present who is a shareholder or proxy holder and entitled to vote on the matter has one vote; and |
(2) | on a poll, every shareholder entitled to vote on the matter has one vote in respect of each share entitled to be voted on the matter and held by that shareholder and may exercise that vote either in person or by proxy. |
12.2 | Votes of Persons in Representative Capacity |
A person who is not a shareholder may vote at a meeting of shareholders, whether on a show of hands or on a poll, and may appoint a proxy holder to act at the meeting, if, before doing so, the person satisfies the chair of the meeting, or the directors, that the person is a legal personal representative or a trustee in bankruptcy for a shareholder who is entitled to vote at the meeting.
12.3 | Votes by Joint Holders |
If there are joint shareholders registered in respect of any share:
(1) | any one of the joint shareholders may vote at any meeting of shareholders, either personally or by proxy, in respect of the share as if that joint shareholder were solely entitled to it; or |
(2) | if more than one of the joint shareholders is present at any meeting of shareholders, personally or by proxy, and more than one of them votes in respect of that share, then only the vote of the joint shareholder present whose name stands first on the central securities register in respect of the share will be counted. |
12.4 | Legal Personal Representatives as Joint Shareholders |
Two or more legal personal representatives of a shareholder in whose sole name any share is registered are, for the purposes of Article 12.3, deemed to be joint shareholders registered in respect of that share.
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12.5 | Representative of a Corporate Shareholder |
If a corporation, that is not a subsidiary of the Company, is a shareholder, that corporation may appoint a person to act as its representative at any meeting of shareholders of the Company, and:
(1) | for that purpose, the instrument appointing a representative must be received: |
(a) | at the registered office of the Company or at any other place specified, in the notice calling the meeting, for the receipt of proxies, at least the number of business days specified in the notice for the receipt of proxies, or if no number of days is specified, two business days before the day set for the holding of the meeting or any adjourned meeting; or |
(b) | by the chair of the meeting at the meeting or adjourned meeting or by a person designated by the chair of the meeting or adjourned meeting; |
(2) | if a representative is appointed under this Article 12.5: |
(a) | the representative is entitled to exercise in respect of and at that meeting the same rights on behalf of the corporation that the representative represents as that corporation could exercise if it were a shareholder who is an individual, including, without limitation, the right to appoint a proxy holder; and |
(b) | the representative, if present at the meeting, is to be counted for the purpose of forming a quorum and is deemed to be a shareholder present in person at the meeting. |
Evidence of the appointment of any such representative may be sent to the Company by written instrument, fax or any other method of transmitting legibly recorded messages. Notwithstanding the foregoing, a corporation that is a shareholder may appoint a proxy holder.
12.6 | Proxy Provisions Do Not Apply to All Companies |
Articles 12.7 to 12.15 do not apply to the Company if and for so long as it is a public company or a pre-existing reporting company which has the Statutory Reporting Company Provisions as part of its Articles or to which the Statutory Reporting Company Provisions apply.
12.7 | Appointment of Proxy Holders |
Every shareholder of the Company, including a corporation that is a shareholder but not a subsidiary of the Company, entitled to vote at a meeting of shareholders may, by proxy, appoint up to two proxy holders to attend and act at the meeting in the manner, to the extent and with the powers conferred by the proxy.
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12.8 | Alternate Proxy Holders |
A shareholder may appoint one or more alternate proxy holders to act in the place of an absent proxy holder.
12.9 | When Proxy Holder Need Not Be Shareholder |
A person must not be appointed as a proxy holder unless the person is a shareholder, although a person who is not a shareholder may be appointed as a proxy holder if:
(1) | the person appointing the proxy holder is a corporation or a representative of a corporation appointed under Article 12.5; |
(2) | the Company has at the time of the meeting for which the proxy holder is to be appointed only one shareholder entitled to vote at the meeting; or |
(3) | the shareholders present in person or by proxy at and entitled to vote at the meeting for which the proxy holder is to be appointed, by a resolution on which the proxy holder is not entitled to vote but in respect of which the proxy holder is to be counted in the quorum, permit the proxy holder to attend and vote at the meeting. |
12.10 | Deposit of Proxy |
A proxy for a meeting of shareholders must:
(1) | be received at the registered office of the Company or at any other place specified, in the notice calling the meeting, for the receipt of proxies, at least the number of business days specified in the notice, or if no number of days is specified, two business days before the day set for the holding of the meeting or any adjourned meeting; or |
(2) | unless the notice provides otherwise, be received, at the meeting or any adjourned meeting, by the chair of the meeting or any adjourned meeting or by a person designated by the chair of the meeting or adjourned meeting. |
A proxy may be sent to the Company by written instrument, fax or any other method of transmitting legibly recorded messages.
12.11 | Validity of Proxy Vote |
A vote given in accordance with the terms of a proxy is valid notwithstanding the death or incapacity of the shareholder giving the proxy and despite the revocation of the proxy or the revocation of the authority under which the proxy is given, unless notice in writing of that death, incapacity or revocation is received:
(1) | at the registered office of the Company, at any time up to and including the last business day before the day set for the holding of the meeting or any adjourned meeting at which the proxy is to be used; or |
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(2) | at the meeting or any adjourned meeting by the chair of the meeting or adjourned meeting, before any vote in respect of which the proxy has been given or has been taken. |
12.12 | Form of Proxy |
A proxy, whether for a specified meeting or otherwise, must be either in the following form or in any other form approved by the directors or the chair of the meeting:
[name of company]
(the "Company")
The undersigned, being a shareholder of the Company, hereby appoints [name] or, failing that person, [name], as proxy holder for the undersigned to attend, act and vote for and on behalf of the undersigned at the meeting of shareholders of the Company to be held on [month, day, year] and at any adjournment of that meeting.
Number of shares in respect of which this proxy is given (if no number is specified, then this proxy is given in respect of all shares registered in the name of the undersigned):
Signed [month, day, year] | |
[Signature of shareholder] | |
[Name of shareholder—printed] |
12.13 | Revocation of Proxy |
Subject to Article 12.14, every proxy may be revoked by an instrument in writing that is received:
(1) | at the registered office of the Company at any time up to and including the last business day before the day set for the holding of the meeting or any adjourned meeting at which the proxy is to be used; or |
(2) | at the meeting or any adjourned meeting, by the chair of the meeting or adjourned meeting, before any vote in respect of which the proxy has been given has been taken. |
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12.14 | Revocation of Proxy Must Be Signed |
An instrument referred to in Article 12.13 must be signed as follows:
(1) | if the shareholder for whom the proxy holder is appointed is an individual, the instrument must be signed by the shareholder or his or her legal personal representative or trustee in bankruptcy; |
(2) | if the shareholder for whom the proxy holder is appointed is a corporation, the instrument must be signed by the corporation or by a representative appointed for the corporation under Article 12.5. |
12.15 | Production of Evidence of Authority to Vote |
The chair of any meeting of shareholders may, but need not, inquire into the authority of any person to vote at the meeting and may, but need not, demand from that person production of evidence as to the existence of the authority to vote.
13. | Directors |
13.1 | First Directors; Number of Directors |
The first directors are the persons designated as directors of the Company in the Notice of Articles that applies to the Company when it is recognized under the Business Corporations Act. The number of directors, excluding additional directors appointed under Article 14.8, is set at:
(1) | subject to paragraphs (2) and (3), the number of directors that is equal to the number of the Company's first directors; |
(2) | if the Company is a public company, the greater of three and the most recently set of: |
(a) | the number of directors elected by ordinary resolution (whether or not previous notice of the resolution was given); and |
(b) | the number of directors set under Article 14.4; |
(3) | if the Company is not a public company, the most recently set of: |
(a) | the number of directors elected by ordinary resolution (whether or not previous notice of the resolution was given); and |
(b) | the number of directors set under Article 14.4. |
13.2 | Change in Number of Directors |
If the number of directors is set under Articles 13.1(2)(a) or 13.1(3)(a):
(1) | the shareholders may elect or appoint the directors needed to fill any vacancies in the board of directors up to that number; |
(2) | if the shareholders do not elect or appoint the directors needed to fill any vacancies in the board of directors up to that number contemporaneously with the setting of that number, then the directors, subject to Article 14.8, may appoint, or the shareholders may elect or appoint, directors to fill those vacancies. |
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13.3 | Directors' Acts Valid Despite Vacancy |
An act or proceeding of the directors is not invalid merely because fewer than the number of directors set or otherwise required under these Articles is in office.
13.4 | Qualifications of Directors |
A director is not required to hold a share in the capital of the Company as qualification for his or her office but must be qualified as required by the Business Corporations Act to become, act or continue to act as a director.
13.5 | Remuneration of Directors |
The directors are entitled to the remuneration for acting as directors, if any, as the directors may from time to time determine. If the directors so decide, the remuneration of the directors, if any, will be determined by the shareholders. That remuneration may be in addition to any salary or other remuneration paid to any officer or employee of the Company as such, who is also a director.
13.6 | Reimbursement of Expenses of Directors |
The Company must reimburse each director for the reasonable expenses that he or she may incur in and about the business of the Company.
13.7 | Special Remuneration for Directors |
If any director performs any professional or other services for the Company that in the opinion of the directors are outside the ordinary duties of a director, or if any director is otherwise specially occupied in or about the Company's business, he or she may be paid remuneration fixed by the directors, or, at the option of that director, fixed by ordinary resolution, and such remuneration may be either in addition to, or in substitution for, any other remuneration that he or she may be entitled to receive.
13.8 | Gratuity, Pension or Allowance on Retirement of Director |
Unless otherwise determined by ordinary resolution, the directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any director or to his or her spouse or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance.
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14. | Election and Removal of Directors |
14.1 | Election at Annual General Meeting |
At every annual general meeting and in every unanimous resolution contemplated by Article 10.2:
(1) | the shareholders entitled to vote at the annual general meeting for the election of directors must elect, or in the unanimous resolution appoint, a board of directors consisting of the number of directors for the time being set under these Articles; and |
(2) | those directors whose term of office expires at the annual general meeting cease to hold office immediately before the election or appointment of directors under paragraph (1), but are eligible for re-election or re-appointment. |
14.2 | Consent to be a Director |
No election, appointment or designation of an individual as a director is valid unless:
(1) | that individual consents to be a director in the manner provided for in the Business Corporations Act; |
(2) | that individual is elected or appointed at a meeting at which the individual is present and the individual does not refuse, at the meeting, to be a director; or |
(3) | with respect to first directors, the designation is otherwise valid under the Business Corporations Act. |
14.3 | Failure to Elect or Appoint Directors |
If:
(1) | the Company fails to hold an annual general meeting, and all the shareholders who are entitled to vote at an annual general meeting fail to pass the unanimous resolution contemplated by Article 10.2, on or before the date by which the annual general meeting is required to be held under the Business Corporations Act; or |
(2) | the shareholders fail, at the annual general meeting or in the unanimous resolution contemplated by Article 10.2, to elect or appoint any directors; |
then each director then in office continues to hold office until the earlier of:
(3) | when his or her successor is elected or appointed; and |
(4) | when he or she otherwise ceases to hold office under the Business Corporations Act or these Articles. |
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14.4 | Places of Retiring Directors Not Filled |
If, at any meeting of shareholders at which there should be an election of directors, the places of any of the retiring directors are not filled by that election, those retiring directors who are not re-elected and who are asked by the newly elected directors to continue in office will, if willing to do so, continue in office to complete the number of directors for the time being set pursuant to these Articles until further new directors are elected at a meeting of shareholders convened for that purpose. If any such election or continuance of directors does not result in the election or continuance of the number of directors for the time being set pursuant to these Articles, the number of directors of the Company is deemed to be set at the number of directors actually elected or continued in office.
14.5 | Directors May Fill Casual Vacancies |
Any casual vacancy occurring in the board of directors may be filled by the directors.
14.6 | Remaining Directors' Power to Act |
The directors may act notwithstanding any vacancy in the board of directors, but if the Company has fewer directors in office than the number set pursuant to these Articles as the quorum of directors, the directors may only act for the purpose of appointing directors up to that number or of calling a meeting of shareholders for the purpose of filling any vacancies on the board of directors or, subject to the Business Corporations Act, for any other purpose.
14.7 | Shareholders May Fill Vacancies |
If the Company has no directors or fewer directors in office than the number set pursuant to these Articles as the quorum of directors, the shareholders may elect or appoint directors to fill any vacancies on the board of directors.
14.8 | Additional Directors |
Notwithstanding Articles 13.1 and 13.2, between annual general meetings or unanimous resolutions contemplated by Article 10.2, the directors may appoint one or more additional directors, but the number of additional directors appointed under this Article 14.8 must not at any time exceed:
(1) | one-third of the number of first directors, if, at the time of the appointments, one or more of the first directors have not yet completed their first term of office; or |
(2) | in any other case, one-third of the number of the current directors who were elected or appointed as directors other than under this Article 14.8. |
Any director so appointed ceases to hold office immediately before the next election or appointment of directors under Article 14.1(1), but is eligible for re-election or re-appointment.
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14.9 | Ceasing to be a Director |
A director ceases to be a director when:
(1) | the term of office of the director expires; |
(2) | the director dies; |
(3) | the director resigns as a director by notice in writing provided to the Company or a lawyer for the Company; or |
(4) | the director is removed from office pursuant to Articles 14.10 or 14.11. |
14.10 | Removal of Director by Shareholders |
The Company may remove any director before the expiration of his or her term of office by special resolution. In that event, the shareholders may elect, or appoint by ordinary resolution, a director to fill the resulting vacancy. If the shareholders do not elect or appoint a director to fill the resulting vacancy contemporaneously with the removal, then the directors may appoint or the shareholders may elect, or appoint by ordinary resolution, a director to fill that vacancy.
14.11 | Removal of Director by Directors |
The directors may remove any director before the expiration of his or her term of office if the director is convicted of an indictable offence, or if the director ceases to be qualified to act as a director of a company and does not promptly resign, and the directors may appoint a director to fill the resulting vacancy.
15. Alternate Directors
15.1 | Appointment of Alternate Director |
Any director (an "appointor") may by notice in writing received by the Company appoint any person (an "appointee") who is qualified to act as a director to be his or her alternate to act in his or her place at meetings of the directors or committees of the directors at which the appointor is not present unless (in the case of an appointee who is not a director) the directors have reasonably disapproved the appointment of such person as an alternate director and have given notice to that effect to his or her appointor within a reasonable time after the notice of appointment is received by the Company.
15.2 | Notice of Meetings |
Every alternate director so appointed is entitled to notice of meetings of the directors and of committees of the directors of which his or her appointor is a member and to attend and vote as a director at any such meetings at which his or her appointor is not present.
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15.3 | Alternate for More Than One Director Attending Meetings |
A person may be appointed as an alternate director by more than one director, and an alternate director:
(1) | will be counted in determining the quorum for a meeting of directors once for each of his or her appointors and, in the case of an appointee who is also a director, once more in that capacity; |
(2) | has a separate vote at a meeting of directors for each of his or her appointors and, in the case of an appointee who is also a director, an additional vote in that capacity; |
(3) | will be counted in determining the quorum for a meeting of a committee of directors once for each of his or her appointors who is a member of that committee and, in the case of an appointee who is also a member of that committee as a director, once more in that capacity; |
(4) | has a separate vote at a meeting of a committee of directors for each of his or her appointors who is a member of that committee and, in the case of an appointee who is also a member of that committee as a director, an additional vote in that capacity. |
15.4 | Consent Resolutions |
Every alternate director, if authorized by the notice appointing him or her, may sign in place of his or her appointor any resolutions to be consented to in writing.
15.5 | Alternate Director Not an Agent |
Every alternate director is deemed not to be the agent of his or her appointor.
15.6 | Revocation of Appointment of Alternate Director |
An appointor may at any time, by notice in writing received by the Company, revoke the appointment of an alternate director appointed by him or her.
15.7 | Ceasing to be an Alternate Director |
The appointment of an alternate director ceases when:
(1) | his or her appointor ceases to be a director and is not promptly re-elected or re-appointed; |
(2) | the alternate director dies; |
(3) | the alternate director resigns as an alternate director by notice in writing provided to the Company or a lawyer for the Company; |
(4) | the alternate director ceases to be qualified to act as a director; or |
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(5) | his or her appointor revokes the appointment of the alternate director. |
15.8 | Remuneration and Expenses of Alternate Director |
The Company may reimburse an alternate director for the reasonable expenses that would be properly reimbursed if he or she were a director, and the alternate director is entitled to receive from the Company such proportion, if any, of the remuneration otherwise payable to the appointor as the appointor may from time to time direct.
16. Powers and Duties of Directors
16.1 | Powers of Management |
The directors must, subject to the Business Corporations Act and these Articles, manage or supervise the management of the business and affairs of the Company and have the authority to exercise all such powers of the Company as are not, by the Business Corporations Act or by these Articles, required to be exercised by the shareholders of the Company.
16.2 | Appointment of Attorney of Company |
The directors may from time to time, by power of attorney or other instrument, under seal if so required by law, appoint any person to be the attorney of the Company for such purposes, and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the directors under these Articles and excepting the power to fill vacancies in the board of directors, to remove a director, to change the membership of, or fill vacancies in, any committee of the directors, to appoint or remove officers appointed by the directors and to declare dividends) and for such period, and with such remuneration and subject to such conditions as the directors may think fit. Any such power of attorney may contain such provisions for the protection or convenience of persons dealing with such attorney as the directors think fit. Any such attorney may be authorized by the directors to sub-delegate all or any of the powers, authorities and discretions for the time being vested in him or her.
17. Interests of Directors and Officers
17.1 | Obligation to Account for Profits |
A director or senior officer who holds a disclosable interest (as that term is used in the Business Corporations Act) in a contract or transaction into which the Company has entered or proposes to enter is liable to account to the Company for any profit that accrues to the director or senior officer under or as a result of the contract or transaction only if and to the extent provided in the Business Corporations Act.
17.2 | Restrictions on Voting by Reason of Interest |
A director who holds a disclosable interest in a contract or transaction into which the Company has entered or proposes to enter is not entitled to vote on any directors' resolution to approve that contract or transaction, unless all the directors have a disclosable interest in that contract or transaction, in which case any or all of those directors may vote on such resolution.
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17.3 | Interested Director Counted in Quorum |
A director who holds a disclosable interest in a contract or transaction into which the Company has entered or proposes to enter and who is present at the meeting of directors at which the contract or transaction is considered for approval may be counted in the quorum at the meeting whether or not the director votes on any or all of the resolutions considered at the meeting.
17.4 | Disclosure of Conflict of Interest or Property |
A director or senior officer who holds any office or possesses any property, right or interest that could result, directly or indirectly, in the creation of a duty or interest that materially conflicts with that individual's duty or interest as a director or senior officer, must disclose the nature and extent of the conflict as required by the Business Corporations Act.
17.5 | Director Holding Other Office in the Company |
A director may hold any office or place of profit with the Company, other than the office of auditor of the Company, in addition to his or her office of director for the period and on the terms (as to remuneration or otherwise) that the directors may determine.
17.6 | No Disqualification |
No director or intended director is disqualified by his or her office from contracting with the Company either with regard to the holding of any office or place of profit the director holds with the Company or as vendor, purchaser or otherwise, and no contract or transaction entered into by or on behalf of the Company in which a director is in any way interested is liable to be voided for that reason.
17.7 | Professional Services by Director or Officer |
Subject to the Business Corporations Act, a director or officer, or any person in which a director or officer has an interest, may act in a professional capacity for the Company, except as auditor of the Company, and the director or officer or such person is entitled to remuneration for professional services as if that director or officer were not a director or officer.
17.8 | Director or Officer in Other Corporations |
A director or officer may be or become a director, officer or employee of, or otherwise interested in, any person in which the Company may be interested as a shareholder or otherwise, and, subject to the Business Corporations Act, the director or officer is not accountable to the Company for any remuneration or other benefits received by him or her as director, officer or employee of, or from his or her interest in, such other person.
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18. Proceedings of Directors
18.1 | Meetings of Directors |
The directors may meet together for the conduct of business, adjourn and otherwise regulate their meetings as they think fit, and meetings of the directors held at regular intervals may be held at the place, at the time and on the notice, if any, as the directors may from time to time determine.
18.2 | Voting at Meetings |
Questions arising at any meeting of directors are to be decided by a majority of votes and, in the case of an equality of votes, the chair of the meeting does not have a second or casting vote.
18.3 | Chair of Meetings |
The following individual is entitled to preside as chair at a meeting of directors:
(1) | the chair of the board, if any; |
(2) | in the absence of the chair of the board or if designated by the chair, the president, a director or other officer; or |
(3) | any other director or officer chosen by the directors if: |
(a) | neither the chair of the board nor the president is present at the meeting within 15 minutes after the time set for holding the meeting; |
(b) | neither the chair of the board nor the president is willing to chair the meeting; or |
(c) | the chair of the board and the president have advised the secretary, if any, or any other director, that they will not be present at the meeting. |
18.4 | Meetings by Telephone or Other Communications Medium |
A director may participate in a meeting of the directors or of any committee of the directors:
(1) | in person; |
(2) | by telephone; or |
(3) | with the consent of all directors who wish to participate in the meeting, by other communications medium; |
if all directors participating in the meeting, whether in person or by telephone or other communications medium, are able to communicate with each other. A director who participates in a meeting in a manner contemplated by this Article 18.4 is deemed for all purposes of the Business Corporations Act and these Articles to be present at the meeting and to have agreed to participate in that manner.
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18.5 | Calling of Meetings |
A director may, and the secretary or an assistant secretary of the Company, if any, on the request of a director must, call a meeting of the directors at any time.
18.6 | Notice of Meetings |
Other than for meetings held at regular intervals as determined by the directors pursuant to Article 18.1, reasonable notice of each meeting of the directors, specifying the place, day and time of that meeting must be given to each of the directors and the alternate directors by any method set out in Article 24.1 or orally or by telephone.
18.7 | When Notice Not Required |
It is not necessary to give notice of a meeting of the directors to a director or an alternate director if:
(1) | the meeting is to be held immediately following a meeting of shareholders at which that director was elected or appointed, or is the meeting of the directors at which that director is appointed; or |
(2) | the director or alternate director, as the case may be, has waived notice of the meeting. |
18.8 | Meeting Valid Despite Failure to Give Notice |
The accidental omission to give notice of any meeting of directors to, or the non-receipt of any notice by, any director or alternate director, does not invalidate any proceedings at that meeting.
18.9 | Waiver of Notice of Meetings |
Any director or alternate director may send to the Company a document signed by him or her waiving notice of any past, present or future meeting or meetings of the directors and may at any time withdraw that waiver with respect to meetings held after that withdrawal. After sending a waiver with respect to all future meetings and until that waiver is withdrawn, no notice of any meeting of the directors need be given to that director and, unless the director otherwise requires by notice in writing to the Company, to his or her alternate director, and all meetings of the directors so held are deemed not to be improperly called or constituted by reason of notice not having been given to such director or alternate director. Attendance of a director or alternate director at a meeting of directors is a waiver of notice of the meeting unless that director or alternate director attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
18.10 | Quorum |
The quorum necessary for the transaction of the business of the directors may be set by the directors and, if not so set, is deemed to be set at a majority of directors or, if the number of directors is set at one, is deemed to be set at one director, and that director may constitute a meeting.
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18.11 | Validity of Acts Where Appointment Defective |
Subject to the Business Corporations Act, an act of a director or officer is not invalid merely because of an irregularity in the election or appointment or a defect in the qualification of that director or officer.
18.12 | Consent Resolutions in Writing |
A resolution of the directors or of any committee of the directors may be passed without a meeting:
(1) | in all cases, if each of the directors entitled to vote on the resolution consents to it in writing; or |
(2) | in the case of a resolution to approve a contract or transaction in respect of which a director has disclosed that he or she has or may have a disclosable interest, if each of the other directors who have not made such a disclosure consents in writing to the resolution. |
A consent in writing under this Article may be by signed document, fax, e-mail or any other method of transmitting legibly recorded messages. A consent in writing may be in two or more counterparts which together are deemed to constitute one consent in writing. A resolution of the directors or of any committee of the directors passed in accordance with this Article 18.12 is effective on the date stated in the consent in writing or on the latest date stated on any counterpart and is deemed to be a proceeding at a meeting of directors or of the committee of the directors and to be as valid and effective as if it had been passed at a meeting of the directors or of the committee of the directors that satisfies all the requirements of the Business Corporations Act and all the requirements of these Articles relating to meetings of the directors or of a committee of the directors.
19. Executive and Other Committees
19.1 | Appointment and Powers of Executive Committee |
The directors may, by resolution, appoint an executive committee consisting of the director or directors that they consider appropriate, and this committee has, during the intervals between meetings of the board of directors, all of the directors' powers, except:
(1) | the power to fill vacancies in the board of directors; |
(2) | the power to remove a director; |
(3) | the power to change the membership of, or fill vacancies in, any committee of the directors; and |
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(4) | such other powers, if any, as may be set out in the resolution or any subsequent directors' resolution. |
19.2 | Appointment and Powers of Other Committees |
The directors may, by resolution:
(1) | appoint one or more committees (other than the executive committee) consisting of the director or directors that they consider appropriate; |
(2) | delegate to a committee appointed under paragraph (1) any of the directors' powers, except: |
(a) | the power to fill vacancies in the board of directors; |
(b) | the power to remove a director; |
(c) | the power to change the membership of, or fill vacancies in, any committee of the directors; and |
(d) | the power to appoint or remove officers appointed by the directors; and |
(3) | make any delegation referred to in paragraph (2) subject to the conditions set out in the resolution or any subsequent directors' resolution. |
19.3 | Obligations of Committees |
Any committee appointed under Articles 19.1 or 19.2, in the exercise of the powers delegated to it, must:
(1) | conform to any rules that may from time to time be imposed on it by the directors; and |
(2) | report every act or thing done in exercise of those powers at such times and in such manner and form as the directors may require. |
19.4 | Powers of Board |
The directors may, at any time, with respect to a committee appointed under Articles 19.1 or 19.2:
(1) | revoke or alter the authority given to the committee, or override a decision made by the committee, except as to acts done before such revocation, alteration or overriding; |
(2) | terminate the appointment of, or change the membership of, the committee; and |
(3) | fill vacancies in the committee. |
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19.5 | Committee Meetings |
Subject to Article 19.3(1) and unless the directors otherwise provide in the resolution appointing the committee or in any subsequent resolution, with respect to a committee appointed under Articles 19.1 or 19.2:
(1) | the committee may meet and adjourn as it thinks proper; |
(2) | the committee may elect a chair of its meetings but, if no chair of a meeting is elected, or if at a meeting the chair of the meeting is not present within 15 minutes after the time set for holding the meeting, the directors present who are members of the committee may choose one of their number to chair the meeting; |
(3) | a majority of the members of the committee constitutes a quorum of the committee; and |
(4) | questions arising at any meeting of the committee are determined by a majority of votes of the members present, and in case of an equality of votes, the chair of the meeting does not have a second or casting vote. |
20. Officers
20.1 | Directors May Appoint Officers |
The directors may, from time to time, appoint such officers, if any, as the directors determine and the directors may, at any time, terminate any such appointment.
20.2 | Functions, Duties and Powers of Officers |
The directors may, for each officer:
(1) | determine the functions and duties of the officer; |
(2) | entrust to and confer on the officer any of the powers exercisable by the directors on such terms and conditions and with such restrictions as the directors think fit; and |
(3) | revoke, withdraw, alter or vary all or any of the functions, duties and powers of the officer. |
20.3 | Qualifications |
No officer may be appointed unless that officer is qualified in accordance with the Business Corporations Act. One person may hold more than one position as an officer of the Company. Any person appointed as the chair of the board or as the managing director must be a director. Any other officer need not be a director.
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20.4 | Remuneration and Terms of Appointment |
All appointments of officers are to be made on the terms and conditions and at the remuneration (whether by way of salary, fee, commission, participation in profits or otherwise) that the directors thinks fit and are subject to termination at the pleasure of the directors, and an officer may in addition to such remuneration be entitled to receive, after he or she ceases to hold such office or leaves the employment of the Company, a pension or gratuity.
21. Indemnification
21.1 | Definitions |
In this Article 21:
(1) | "eligible penalty" means a judgment, penalty or fine awarded or imposed in, or an amount paid in settlement of, an eligible proceeding; |
(2) | "eligible proceeding" means a legal proceeding or investigative action, whether current, threatened, pending or completed, in which a director, former director or alternate director of the Company (an "eligible party") or any of the heirs and legal personal representatives of the eligible party, by reason of the eligible party being or having been a director or alternate director of the Company: |
(a) | is or may be joined as a party; or |
(b) | is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding; |
(3) | "expenses" has the meaning set out in the Business Corporations Act. |
21.2 | Mandatory Indemnification of Eligible Parties |
Subject to the Business Corporations Act, the Company must indemnify a director, former director or alternate director of the Company and his or her heirs and legal personal representatives against all eligible penalties to which such person is or may be liable, and the Company must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by such person in respect of that proceeding. Each director and alternate director is deemed to have contracted with the Company on the terms of the indemnity contained in this Article 21.2.
21.3 | Indemnification |
Subject to any restrictions in the Business Corporations Act and these Articles, the Company may indemnify any person.
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21.4 | Non-Compliance with Business Corporations Act |
The failure of a director, alternate director or officer of the Company to comply with the Business Corporations Act or these Articles or, if applicable, any former Companies Act or former Articles, does not invalidate any indemnity to which he or she is entitled under this Part.
21.5 | Company May Purchase Insurance |
The Company may purchase and maintain insurance for the benefit of any person (or his or her heirs or legal personal representatives) who:
(1) | is or was a director, alternate director, officer, employee or agent of the Company; |
(2) | is or was a director, alternate director, officer, employee or agent of a corporation at a time when the corporation is or was an affiliate of the Company; |
(3) | at the request of the Company, is or was a director, alternate director, officer, employee or agent of a corporation or of a partnership, trust, joint venture or other unincorporated entity; |
(4) | at the request of the Company, holds or held a position equivalent to that of a director, alternate director or officer of a partnership, trust, joint venture or other unincorporated entity; |
against any liability incurred by him or her as such director, alternate director, officer, employee or agent or person who holds or held such equivalent position.
22. Dividends
22.1 | Payment of Dividends Subject to Special Rights |
The provisions of this Article 22 are subject to the rights, if any, of shareholders holding shares with special rights as to dividends.
22.2 | Declaration of Dividends |
Subject to the Business Corporations Act, the directors may from time to time declare and authorize payment of such dividends as they may deem advisable.
22.3 | No Notice Required |
The directors need not give notice to any shareholder of any declaration under Article 22.2.
22.4 | Record Date |
The directors may set a date as the record date for the purpose of determining shareholders entitled to receive payment of a dividend. The record date must not precede the date on which the dividend is to be paid by more than two months. If no record date is set, the record date is 5 p.m. on the date on which the directors pass the resolution declaring the dividend.
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22.5 | Manner of Paying Dividend |
A resolution declaring a dividend may direct payment of the dividend wholly or partly in money or by the distribution of specific assets or of fully paid shares or of bonds, debentures or other securities of the Company or any other corporation, or in any one or more of those ways.
22.6 | Settlement of Difficulties |
If any difficulty arises in regard to a distribution under Article 22.5, the directors may settle the difficulty as they deem advisable, and, in particular, may:
(1) | set the value for distribution of specific assets; |
(2) | determine that money in substitution for all or any part of the specific assets to which any shareholders are entitled may be paid to any shareholders on the basis of the value so fixed in order to adjust the rights of all parties; and |
(3) | vest any such specific assets in trustees for the persons entitled to the dividend. |
22.7 | When Dividend Payable |
Any dividend may be made payable on such date as is fixed by the directors.
22.8 | Dividends to be Paid in Accordance with Number of Shares |
All dividends on shares of any class or series of shares must be declared and paid according to the number of such shares held.
22.9 | Receipt by Joint Shareholders |
If several persons are joint shareholders of any share, any one of them may give an effective receipt for any dividend, bonus or other money payable in respect of the share.
22.10 | Dividend Bears No Interest |
No dividend bears interest against the Company.
22.11 | Fractional Dividends |
If a dividend to which a shareholder is entitled includes a fraction of the smallest monetary unit of the currency of the dividend, that fraction may be disregarded in making payment of the dividend and that payment represents full payment of the dividend.
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22.12 | Payment of Dividends |
Any dividend or other distribution payable in money in respect of shares may be paid by cheque, made payable to the order of the person to whom it is sent, and mailed to the registered address of the shareholder, or in the case of joint shareholders, to the registered address of the joint shareholder who is first named on the central securities register, or to the person and to the address the shareholder or joint shareholders may direct in writing. The mailing of such cheque will, to the extent of the sum represented by the cheque (plus the amount of the tax required by law to be deducted), discharge all liability for the dividend unless such cheque is not paid on presentation or the amount of tax so deducted is not paid to the appropriate taxing authority.
22.13 | Capitalization of Retained Earnings or Surplus |
Notwithstanding anything contained in these Articles, the directors may from time to time capitalize any retained earnings or surplus of the Company and may from time to time issue, as fully paid, shares or any bonds, debentures or other securities of the Company as a dividend representing the retained earnings or surplus so capitalized or any part thereof.
23. | Accounting Records and Auditors |
23.1 | Recording of Financial Affairs |
The directors must cause adequate accounting records to be kept to record properly the financial affairs and condition of the Company and to comply with the Business Corporations Act.
23.2 | Inspection of Accounting Records |
Unless the directors determine otherwise, or unless otherwise determined by ordinary resolution, no shareholder of the Company is entitled to inspect or obtain a copy of any accounting records of the Company.
23.3 | Remuneration of Auditors |
The directors may set the remuneration of the auditors. If the directors so decide, the remuneration of the auditors will be determined by the shareholders.
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24. | Notices |
MIDAS
GOLD CORP.
(the "Company")
AMENDMENT TO THE ARTICLES OF THE COMPANY
EFFECTED ON MAY 14, 2013
Pursuant to section 42(2)(a)(iv) of the British Columbia Business Corporations Act, the following is an extract of an ordinary resolution of the shareholders of the Company passed at the annual general and special meeting of the shareholders of the Company held on May 14, 2013 (the "Meeting"), approving an amendment to the Company's Articles as set out herein. This extract is attached to the Articles of the Company and was received for deposit at the Company's records office on May 14, 2013, the effective date of the amendment.
The undersigned, Liz Caridi, Secretary of the Meeting and Corporate Secretary of the Company, hereby certifies that the following is a true and complete copy of an ordinary resolution of the shareholders of the Company passed at the Meeting:
"UPON MOTION IT WAS RESOLVED that:
1. | the amendments to the Company's Articles, as set forth in Schedule "A" to the Company's Information Circular dated April 15, 2013 be and is hereby authorized and approved; and |
2. | any one director or officer of the Company is hereby authorized and directed to carry out any act for and on behalf of the Company and to execute and deliver such deeds, documents and other instruments in writing as he in his discretion may consider necessary for the purpose of giving effect to these resolutions and to do all such other acts and things as such director or officer may determine to be necessary or advisable to give effect to the intent of these resolutions." |
Schedule "A" to the Company's Management Information Proxy Circular states that the Company's Articles will be amended by deleting each of Article 24.1 and Article 24.2 in their entirety and substituting the following in its respective place:
"24.1 Method of Giving Notice
Unless the Business Corporations Act or these Articles provides otherwise, a notice, statement, report or other record required or permitted by the Business Corporations Act or these Articles to be sent by or to a person may be sent by any one of the following methods:
(1) mail addressed to the person at the applicable address for that person as follows:
(a) for a record mailed to a shareholder, the shareholder's registered address;
(b) for a record mailed to a director or officer, the prescribed address for mailing shown for the director or officer in the records kept by the Company or the mailing address provided by the recipient for the sending of that record or records of that class;
(c) in any other case, the mailing address of the intended recipient;
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(2) delivery at the applicable address for that person as follows, addressed to the person:
(a) for a record delivered to a shareholder, the shareholder's registered address;
(b) for a record delivered to a director or officer, the prescribed address for delivery shown for the director or officer in the records kept by the Company or the delivery address provided by the recipient for the sending of that record or records of that class;
(c) in any other case, the delivery address of the intended recipient;
(3) sending the record by fax to the fax number provided by the intended recipient for the sending of that record or records of that class;
(4) sending the record by email to the email address provided by the intended recipient for the sending of that record or records of that class;
(5) making the record available for public electronic access in accordance with the procedures referred to as "notice-and-access" under National Instrument 54-101 and National Instrument 51-102, as applicable, of the Canadian Securities Administrators, or in accordance with any similar electronic delivery or access method permitted by applicable securities legislation from time to time; or
(6) physical delivery to the intended recipient.";
and
"24.2 Deemed Receipt
A notice, statement, report or other record that is:
(1) mailed to a person by ordinary mail to the applicable address for that person referred to in Article 24.1 is deemed to be received by the person to whom it was mailed on the day (Saturdays, Sundays and holidays excepted) following the date of mailing;
(2) faxed to a person to the fax number provided by that person referred to in Article 24.1 is deemed to be received by the person to whom it was faxed on the day it was faxed; and
(3) e-mailed to a person to the e-mail address provided by that person referred to in Article 24.1 is deemed to be received by the person to whom it was e-mailed on the date it was e-mailed; and
(4) made available for public electronic access in accordance with the "notice-and-access" or similar delivery procedures referred to in Article 24.1(5) is deemed to be received by a person on the date it was made available for public electronic access."
DATED this 14th day of May, 2013
/s/ Liz Caridi | |
Liz Caridi, Corporate Secretary |
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24.3 | Certificate of Sending |
A certificate signed by the secretary, if any, or other officer of the Company or of any other corporation acting in that capacity on behalf of the Company stating that a notice, statement, report or other record was sent in accordance with Article 24.1 is conclusive evidence of that fact.
24.4 | Notice to Joint Shareholders |
A notice, statement, report or other record may be provided by the Company to the joint shareholders of a share by providing such record to the joint shareholder first named in the central securities register in respect of the share.
24.5 | Notice to Legal Personal Representatives and Trustees |
A notice, statement, report or other record may be provided by the Company to the persons entitled to a share in consequence of the death, bankruptcy or incapacity of a shareholder by:
(1) | mailing the record, addressed to them: |
(a) | by name, by the title of the legal personal representative of the deceased or incapacitated shareholder, by the title of trustee of the bankrupt shareholder or by any similar description; and |
(b) | at the address, if any, supplied to the Company for that purpose by the persons claiming to be so entitled; or |
(2) | if an address referred to in paragraph (1)(b) has not been supplied to the Company, by giving the notice in a manner in which it might have been given if the death, bankruptcy or incapacity had not occurred. |
24.6 Undelivered Notices
If on two consecutive occasions, a notice, statement, report or other record is sent to a shareholder pursuant to Article 24.1 and on each of those occasions any such record is returned because the shareholder cannot be located, the Company shall not be required to send any further records to the shareholder until the shareholder informs the Company in writing of his or her new address.
25. | Seal |
25.1 | Who May Attest Seal |
Except as provided in Articles 25.2 and 25.3, the Company's seal, if any, must not be impressed on any record except when that impression is attested by the signatures of:
(1) | any two directors; |
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(2) | any officer, together with any director; |
(3) | if the Company only has one director, that director; or |
(4) | any one or more directors or officers or persons as may be determined by the directors. |
25.2 | Sealing Copies |
For the purpose of certifying under seal a certificate of incumbency of the directors or officers of the Company or a true copy of any resolution or other document, despite Article 25.1, the impression of the seal may be attested by the signature of any director or officer or the signature of any other person as may be determined by the directors.
25.3 | Mechanical Reproduction of Seal |
The directors may authorize the seal to be impressed by third parties on share certificates or bonds, debentures or other securities of the Company as they may determine appropriate from time to time. To enable the seal to be impressed on any share certificates or bonds, debentures or other securities of the Company, whether in definitive or interim form, on which facsimiles of any of the signatures of the directors or officers of the Company are, in accordance with the Business Corporations Act or these Articles, printed or otherwise mechanically reproduced, there may be delivered to the person employed to engrave, lithograph or print such definitive or interim share certificates or bonds, debentures or other securities one or more unmounted dies reproducing the seal and such persons as are authorized under Article 25.1 to attest the Company's seal may in writing authorize such person to cause the seal to be impressed on such definitive or interim share certificates or bonds, debentures or other securities by the use of such dies. Share certificates or bonds, debentures or other securities to which the seal has been so impressed are for all purposes deemed to be under and to bear the seal impressed on them.
26. Prohibitions
26.1 | Definitions |
In this Article 26:
(1) | "designated security" means: |
(a) | a voting security of the Company; |
(b) | a security of the Company that is not a debt security and that carries a residual right to participate in the earnings of the Company or, on the liquidation or winding up of the Company, in its assets; or |
(c) | a security of the Company convertible, directly or indirectly, into a security described in paragraph (a) or (b); |
(2) | "security" has the meaning assigned in the Securities Act (British Columbia); |
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(3) | "voting security" means a security of the Company that: |
(a) | is not a debt security, and |
(b) | carries a voting right either under all circumstances or under some circumstances that have occurred and are continuing. |
26.2 | Application |
Article 26.3 does not apply to the Company if and for so long as it is a public company or a pre-existing reporting company which has the Statutory Reporting Company Provisions as part of its Articles or to which the Statutory Reporting Company Provisions apply.
26.3 | Consent Required for Transfer of Shares or Designated Securities |
No share or designated security may be sold, transferred or otherwise disposed of without the consent of the directors and the directors are not required to give any reason for refusing to consent to any such sale, transfer or other disposition.
27. Special Rights and Restrictions
27.1 The First Preferred Shares as a class shall have attached thereto the following rights, privileges, restrictions and conditions:
27.1(a) | Issuance in Series: First Preferred Shares may at any time and from time to time be issued in one or more series. The directors may from time to time by resolution of the directors passed before the issue of any First Preferred Shares of any particular series, alter the Notice of Articles of the Company to fix the number of First Preferred Shares of any particular series, alter the Notice of Articles of the Company to fix the number of First Preferred Shares in, and to determine the designation of the First Preferred Shares of, that series and alter the Notice of Articles or the Articles to create, define and attach special rights and restrictions to the First Preferred Shares of that series including, but without in any way limiting or restricting the generality of the foregoing, the rate or amount of dividends, whether cumulative, non-cumulative or partially cumulative; the dates, places and currencies of payment thereof; the consideration for, and the terms and conditions of, any purchase for cancellation or redemption thereof, including redemption after a fixed term or at a premium; conversion or exchange rights or rights of retraction (provided that any such conversion or exchange rights or rights of retraction shall be in accordance with the provisions existing at the time of creation of such series relating to conversion, exchange, or retraction as prescribed by the policies of any stock exchange on which the shares of the Company are then listed); the terms and conditions of any share purchase plan or sinking fund, and voting rights and restrictions; but no special right or restriction so created, defined or attached shall contravene the provisions of subclauses (b) and (c) of this Article 27.1. |
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27.1 (b) | Ranking of First Preferred Shares: The First Preferred Shares shall, with respect to the payment of dividends and the distribution of assets in the event of the liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary, or any other distribution of the assets of the Company among its shareholders for the purpose of winding up its affairs, rank on a parity with the First Preferred Shares of every other series and be entitled to preference over the Second Preferred Shares, the Common Shares and the shares of any other class ranking junior to the First Preferred Shares. The First Preferred Shares shall also be entitled to such other preferences, not inconsistent with these provisions, over the Second Preferred Shares, the Common Shares and the shares of any other class ranking junior to the First Preferred Shares or as may be fixed in accordance with Article 27.1(a). |
27.1(c) | Voting Rights: Holders of First Preferred Shares shall be entitled to receive notice of and to attend all annual and special meetings of shareholders of the Company, except for meetings at which any holders of a specified class or series are entitled to vote, and to one vote in respect of each First Preferred Share held at all such meetings. |
27.2 | The Second Preferred Shares as a class shall have attached thereto the following rights, privileges, restrictions and conditions: |
27.2(a) | Issuance in Series: Second Preferred Shares may at any time and from time to time be issued in one or more series. The directors may from time to time by resolution of the directors passed before the issue of any Second Preferred Shares of any particular series, alter the Notice of Articles of the Company to fix the number of Second Preferred Shares of any particular series, alter the Notice of Articles of the Company to fix the number of Second Preferred Shares in, and to determine the designation of the Second Preferred Shares of, that series and alter the Notice of Articles or the Articles to create, define and attach special rights and restrictions to the Second Preferred Shares of that series including, but without in any way limiting or restricting the generality of the foregoing, the rate or amount of dividends, whether cumulative, non-cumulative or partially cumulative; the dates, places and currencies of payment thereof; the consideration for, and the terms and conditions of, any purchase for cancellation or redemption thereof, including redemption after a fixed term or at a premium; conversion or exchange rights or rights of retraction (provided that any such conversion or exchange rights or rights of retraction shall be in accordance with the provisions existing at the time of creation of such series relating to conversion, exchange, or retraction as prescribed by the policies of any stock exchange on which the shares of the Company are then listed); the terms and conditions of any share purchase plan or sinking fund, and voting rights and restrictions; but no special right or restriction so created, defined or attached shall contravene the provisions of subclauses (b) and (c) of this Article 27.2. |
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27.2(b) | Ranking of Second Preferred Shares: The Second Preferred Shares shall, with respect to the payment of dividends and the distribution of assets in the event of the liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary, or any other distribution of the assets of the Company among its shareholders for the purpose of winding up its affairs, rank on a parity with the Second Preferred Shares of every other series and be entitled to preference over the Common Shares and the shares of any other class ranking junior to the Second Preferred Shares. The Second Preferred Shares shall also be entitled to such other preferences, not inconsistent with these provisions, over the Common Shares and the shares of any other class ranking junior to the Second Preferred Shares as may be fixed in accordance with Article 27.2(a). |
27.2(c) | Voting Rights: Holders of Second Preferred Shares shall not be entitled as such to vote at, any general meeting of shareholders of the Company. Holders of Second Preferred Shares shall be given notice of and be invited to attend meetings of voting shareholders of the Company. |
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Exhibit 4.3
|
Number: BC0903577 CERTIFICATE OF CHANGE OF NAME BUSINESS CORPORATIONS ACT I Hereby Certify that MIDAS GOLD CORP. changed its name to PERPETUA RESOURCES CORP. on February 15, 2021 at 12:01 AM Pacific Time. Issued under my hand at Victoria, British Columbia On February 15, 2021 CAROL PREST Registrar of Companies Province of British Columbia Canada ELECTRONIC CERTIFICATE |
Exhibit 4.4
2011 EVERGREEN INCENTIVE STOCK OPTION PLAN
ARTICLE ONE
DEFINITIONS AND INTERPRETATIONS
Section 1.01 Definitions: For purposes of the Plan, unless such word or term is otherwise defined herein or the context in which such word or term is used herein otherwise requires, the following words and terms with the initial letter or letters thereof capitalized shall have the following meanings:
(a) | "Black Out Expiration Term" means an expiration date for a term of an Option that falls within, or immediately after a black out period self imposed by the Company; |
(b) | "Change of Control" means the acquisition by any person or by any person and a person "acting jointly or in concert with" such person, as defined in MI 62-104, whether directly or indirectly, of voting securities which, when added to all other voting securities of the Company at the time held by such person or by such person and a person "acting jointly or in concert with" another person, totals for the first time not less than fifty percent (50%) of the outstanding voting securities of the Company or the votes attached to those securities are sufficient, if exercised, to elect a majority of the Board of Directors of the Company; |
(c) | "Committee" shall mean the Directors or, if the Directors so determine in accordance with section 2.03 of the Plan, the committee of the Directors authorized to administer the Plan; |
(d) | "Common Shares" shall mean the common shares of the Company, as adjusted in accordance with the provisions of Article Six of the Plan; |
(e) | "Company" shall mean Midas Gold Corp., a corporation incorporated pursuant to the provisions of the Business Corporations Act (British Columbia); |
(f) | "CRA" means Canada Revenue Agency; |
(g) | "Directors" shall mean the directors of the Company from time to time; |
(h) | "Eligible Insiders" shall mean the Insiders of the Company or of any subsidiary of the Company from time to time who, by the nature of their positions are, in the opinion of the Committee, in a position to contribute to the success of the Company; |
(i) | "Eligible Employees" shall mean employees, including officers, whether Directors or not, and including both full-time and part-time employees, of the Company or any subsidiary of the Company who, by the nature of their positions or jobs are, in the opinion of the Committee, in a position to contribute to the success of the Company; |
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(j) | "Employment Contract" means any contract between the Company or any subsidiary of the Company and any Eligible Employee or Service Provider relating to, or entered into in connection with, the employment of the Eligible Employee or the engagement of the Service Provider; |
(k) | "Fixed Term" means the fixed expiration date of the term of an Option; |
(l) | "Insider" means an insider as defined in the Securities Act; |
(m) | "Market Price" means the VWAP on the TSX, or another stock exchange where the majority of the trading volume and value of the Common Shares occurs, for the five trading days immediately preceding the relevant date. If the Common Shares are suspended from trading or have not been traded on TSX or another stock exchange for an extended period of time, the market price will be the fair market value of the Common Shares as determined by the Directors who shall: (A) consider all available information material to the value of the Company’s Common Shares, and (B) employ a reasonable valuation method. |
(n) | "MI 62-104" means Multilateral Instrument 62-104, Take-Over Bids and Issuer Bids, of the Canadian Securities Administrators; |
(o) | "Option" shall mean an option to purchase Common Shares granted pursuant to, or governed by, the Plan; |
(p) | "Optionee" means a Participant to whom an Option has been granted pursuant to the Plan; |
(q) | "Option Period" shall mean the period of time during which the particular Option may be exercised; |
(r) | "Participant" shall mean each Eligible Insider, Eligible Employee and Service Provider; |
(s) | "Plan" shall mean this stock option plan; |
(t) | "Securities Act" means the British Columbia Securities Act, R.S.B.C. 1996, c.418, as amended from time to time; |
(u) | "Service Provider" shall mean any person or corporation, other than an Employee or Insider, engaged to provide services for the Company or for any entity controlled by the Company for an initial, renewable or extended period of twelve months or more; |
(v) | "TSX" shall mean The Toronto Stock Exchange; |
(w) | "TSX Insider" shall mean |
(i) | an insider of the Company, other than a person who is an insider of the Company solely by virtue of being a director or senior officer of a subsidiary of the Company; and |
(ii) | an associate or affiliate of any person who is an insider of the Company within the meaning of paragraph (i) of this definition; |
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(x) | "Vested" means that an option has become exercisable in respect of options held by an Optionee; and |
(y) | "VWAP" means the volume weighted average trading price of the Company's Common Shares, calculated by dividing the total value by the total volume of securities traded for the relevant period. |
Section 1.02 Securities Definitions: In the Plan, the term "affiliate", "associate", "subsidiary" and "insider" shall have the meanings given to such terms in the Securities Act.
Section 1.03 Headings: The headings of all articles, sections, and paragraphs in the Plan are inserted for convenience of reference only and shall not affect the construction or interpretation of the Plan.
Section 1.04 Context, Construction: Whenever the singular or masculine are used in the Plan, the same shall be construed as being the plural or feminine or neuter or vice versa where the context so requires.
Section 1.05 References to the Plan: The words "herein", "hereby", "hereunder", "hereof" and similar expressions mean or refer to the Plan as a whole and not to any particular article, section, paragraph or other part hereof.
Section 1.06 Canadian Funds: Unless otherwise specifically provided, all references to dollar amounts in the Plan are references to lawful money of Canada.
ARTICLE TWO
PURPOSE AND ADMINISTRATION OF THE PLAN
Section 2.01 Purpose of the Plan: The purpose of the Plan is to promote the profitability and growth of the Company by facilitating the efforts of the Company and its subsidiaries to obtain and retain key individuals. The Plan provides an incentive for and encourages ownership of the Company's shares by its key individuals so that they may increase their stake in the Company and benefit from increases in the value of the Company's shares, it being generally recognized that stock option plans aid in attracting, retaining and encouraging employees and directors due to the opportunity offered to them to acquire a proprietary interest in the Company.
Section 2.02 Administration of the Plan: The Plan shall be administered by the Committee and the Committee shall have full authority to administer the Plan including the authority to appoint an agent to assist in the administration of the Plan, the authority to interpret and construe any provision of the Plan and to adopt, amend and rescind such rules and regulations for administering the Plan as the Committee may deem necessary in order to comply with the requirements of the Plan. All actions taken and all interpretations and determinations made by the Committee in good faith shall be final and conclusive and shall be binding on the Participants and the Company. No member of the Committee shall be personally liable for any action taken or determination or interpretation made in good faith in connection with the Plan and all members of the Committee shall, in addition to their rights as Directors, be fully protected, indemnified and held harmless by the Company with respect to any such action taken or determination or interpretation made. The appropriate officers of the Company are hereby authorized and empowered to do all things and execute and deliver all instruments, undertakings and applications and writings as they, in their absolute discretion, consider necessary for the implementation of the Plan and of the rules and regulations established for administering the Plan. All costs incurred in connection with the Plan shall be for the account of the Company.
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Section 2.03 Delegation to Committee: All of the powers exercisable hereunder by the Directors may, to the extent permitted by applicable law and as determined by resolution of the Directors, be exercised by a committee of the Directors comprised of not less than three Directors.
Section 2.04 Record Keeping: The Company shall maintain, or cause to be maintained, a register in which shall be recorded:
(a) | the name and address of each Optionee; |
(b) | the number of Common Shares subject to Options granted to each Optionee; and |
(c) | the aggregate number of Common Shares subject to Options. |
ARTICLE THREE
ELIGIBILITY AND PARTICIPATION
IN THE PLAN AND GRANT OF OPTIONS
Section 3.01 Eligibility: Options shall only be granted to Participants.
Section 3.02 Determination of Option Recipients and Option Terms: The Committee shall from time to time determine the Participants to whom Options shall be granted, the number of Common Shares to be made subject to and the expiry date of each option granted to each Participant and the other terms of each Option granted to each Participant including any vesting provisions that may be applicable, all such determinations to be made in accordance with the terms and conditions of the Plan, and the Committee may take into consideration the present and potential contributions of and the services rendered by the particular Participant to the success of the Company and any other factors which the Committee deems appropriate and relevant. Each Option granted to a Participant shall be evidenced by a stock option agreement containing terms and conditions consistent with the provisions of the Plan, which terms and conditions need not be the same in each case. No Participant who is a Director shall vote on any motion considered by the Directors granting any Option to such Director.
ARTICLE FOUR
NUMBER OF COMMON SHARES SUBJECT TO THE
PLAN, EXERCISE PRICE AND TERM OF OPTIONS
Section 4.01 Number of Shares: The maximum number of Common Shares which may be made subject to Options at any time and from time to time shall not exceed 10% of the total number of Common Shares then outstanding on a non-diluted basis, subject to adjustment in accordance with Article Six of the Plan. In addition, the maximum number of Common Shares which, together with Common Shares subject to all other security-based compensation arrangements of the Company (within the meaning of the policy on security based compensation arrangements of the TSX) with such Participant or Participants, as the case may be, may be:
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(a) | reserved for issue to Participants who are TSX Insiders shall not exceed 10% of the number of Common Shares then outstanding; |
(b) | issued to Participants who are TSX Insiders within a one-year period shall not exceed 10% of the number of Common Shares then outstanding; |
(c) | issued to any one Participant who is a TSX Insider and the associates of such Participant within a one-year period shall not exceed 5% of the number of Common Shares then outstanding; and |
(d) | reserved for issue to any one Participant shall not exceed 5% of the number of Common Shares then outstanding. |
For purposes of this section 4.01 (a) through (d), the number of Common Shares then outstanding shall mean the number of Common Shares outstanding on a non-diluted basis immediately prior to the proposed grant of the applicable Option, excluding Common Shares issued pursuant to share compensation arrangements over the preceding one-year period. If Options are exercised, or are surrendered, terminate or expire without being exercised in whole or in part, the Common Shares which were the subject of such Options may again be made subject to an Option.
Section 4.02 Exercise Price: The price per share at which any Common Share which is the subject of an Option may be purchased shall be determined by the Directors at the time the Option is granted, provided that such price shall be not less than the Market Price as of the date of the grant of such Option.
Section 4.03 Term of Options: The Option Period for each Option shall be such period of time as shall be determined by the Committee, subject to any Employment Contract, provided that no Option Period shall exceed a Fixed Term of 10 years, subject only to the Fixed Term expiration date falling within, or immediately after, a black out period which was self-imposed by the Company in which case a Black Out Expiration Term shall apply.
Section 4.04 Black Out Expiration Term: The Black Out Expiration Term will be a fixed period of time of ten (10) business days after lifting the black out period and will not be subject to the discretion of the Directors. Should the Fixed Term of the Option Period expire immediately after a black out period self-imposed by the Company, the Black Out Expiration Term will be reduced by the number of days between the Fixed Term expiration date and the end of the black out period. For purposes of this section 4.04:
(a) | the Black Out Expiration Term will only be available when there is a black out period self imposed by the Company; and |
(b) | the Black Out Expiration Term is available, under the same terms and conditions, to all Participants under the Plan. |
Section 4.05 Percentage of Common Shares to be Purchased: The Committee may determine the number or percentage of Common Shares which may be purchased by an Optionee during any particular time period within the Option Period, provided, however, the number of shares subject to an Option shall be fixed as of the date of the grant of such Option.
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ARTICLE FIVE
EXERCISE OF OPTION, EFFECT OF DEATH AND
TERMINATION OF EMPLOYMENT AND WITHHOLDING TAXES
Section 5.01 Exercise of Option:
(a) | Exercise: Subject to any restriction on the number or percentage of Common Shares which may be purchased by the Optionee during any particular time period within the Option Period determined by the Committee, an Option that is eligible for exercise may be exercised by the Optionee in whole at any time, or in part from time to time, during the Option Period by delivery to the Company, or its duly appointed agent (if any), of a notice of exercise addressed to the Company, provided however that, except as otherwise specifically provided in section 5.02 or section 5.03 hereof or in any Employment Contract, no Option may be exercised unless the Optionee at the time of exercise thereof is: |
(i) | in the case of an Eligible Employee, in the employment of the Company or a subsidiary of the Company and has been continuously so employed since the date of grant of such option, provided however that a leave of absence with the approval of the Company or such subsidiary of the Company shall not be considered an interruption of employment for purposes of the Plan; |
(ii) | in the case of an Eligible Insider who is not also an Eligible Employee, a director of the Company or a subsidiary of the Company and has been such a director continuously since the date of grant of such Option; and |
(iii) | in the case of a Service Provider, engaged in providing services for the Company or an entity controlled by the Company and has been so engaged since the date of grant of such Option. |
(b) | Payment of Exercise Price: The exercise of any Option shall be contingent upon receipt by the Company of payment of the aggregate purchase price for the Common Shares in respect of which the Option has been exercised. No Optionee, or legal representative, legatee or distributee of any Optionee, will be, or will be deemed to be, a holder of any Common Shares with respect to which such Optionee was granted an Option, unless and until such Common Shares are issued to such Optionee, or person, under the terms of the Plan. Subject to section 9.04 hereof, upon an Optionee exercising an Option and paying the Company the aggregate purchase price for the Common Shares in respect of which the Option has been exercised, the Company shall as soon as practicable issue and deliver the Common Shares so purchased. |
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(c) | Cashless Exercise: An Option that is eligible for exercise may be exercised in exchange for cash by the delivery to the Company, or its duly appointed agent (if any), of the prescribed form of notice of cashless exercise addressed to the Company specifying the number of Options to be exercised for cash. An Optionee who elects the cashless exercise of Options is deemed to have assigned to Haywood Securities Inc., or such other broker as the Company may appoint to facilitate the cashless exercise of Options, (the "Broker") such Optionee's right to receive Common Shares and is deemed to release the Company from any further obligation to issue Common Shares to such Optionee in respect of such Options exercised in exchange for cash. When an Optionee elects the cashless exercise of Options by providing the prescribed form of notice of cashless exercise, the Company shall issue directly to the Broker the number of Common Shares in respect of such Options exercised for cash and the Broker shall, at the election of the Optionee: (i) sell at market, and retain the proceeds of, a sufficient number of Common Shares to cover the aggregate purchase price of the Common Shares and any withholding tax or other withholding liabilities in respect of which the Option has been exercised, with any cash balance to be delivered to the Optionee and any remaining Common Shares held by the Broker in trust for, or delivered as directed by, the Optionee; or (ii) sell at market all of the Common Shares in respect of which the Option has been exercised and deliver to the Optionee the cash balance remaining after deducting the aggregate purchase price of such Common Shares and any withholding tax or other withholding liabilities. |
(d) | Stock Appreciation Rights: An Optionee may, rather than exercise any Option to which the Optionee is then entitled to exercise pursuant to the Plan, elect, by the delivery to the Company, or its duly appointed agent (if any), of the prescribed form, to terminate such Option, in whole or in part, and, in lieu of purchasing the Common Shares to which the Option, or part thereof, so terminated relates, elect to exercise the right (the "Stock Appreciation Rights") to receive at no additional cost that number of Common Shares, disregarding fractions, which, when multiplied by the Market Price determined as of the day immediately preceding the date of termination of such Option, or part thereof, has a value equal to the product of (i) the number of Common Shares to which the Option, or part thereof, so terminated relates, multiplied by (ii) the difference between the Market Price of the Common Shares determined as of the day immediately preceding the date of termination of such Option, or part thereof, and the exercise price per Common Share to which the Option, or part thereof, so terminated relates, less any amount (which amount may be withheld in Common Shares) required to be withheld on account of income taxes, which withheld income taxes will be remitted by the Company. |
Section 5.02 Effect of Death: If a Participant shall die while an Optionee, any Option held by such Optionee at the date of death shall be exercisable in whole or in part only by the person or persons to whom the rights of the Optionee under the Option shall pass by the will of the Optionee or the laws of descent and distribution for a period of one year after the date of death of the Optionee or prior to the expiration of the Option Period in respect of the Option, whichever is sooner, and then only to the extent that such Optionee was entitled to exercise the Option at the date of death of such Optionee, subject to the provisions of any Employment Contract.
Section 5.03 Effect of Termination of Employment: If an Optionee shall cease to be a Participant for cause, no Option held by such Optionee shall be exercisable following the date on which such Optionee ceases to be a Participant. If an Optionee ceases to be a Participant for any reason other than for cause or by virtue of death, any Option held by such Optionee at such time shall remain exercisable in full at any time, and in part from time to time, for a period of 30 days after the date on which the Optionee ceases to be a Participant or prior to the expiration of the Option Period in respect of the Option, whichever is sooner, and then only to the extent that such Optionee was entitled to exercise the Option at such time, subject to the provisions of any Employment Contract.
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Section 5.04 Withholding Taxes: The exercise (or termination pursuant to s. 5.01(d), if applicable) of each Option granted under the Plan is subject to the condition that if at any time the Company determines, in its sole discretion, that the satisfaction of withholding tax or other withholding liabilities is necessary or desirable in respect of such exercise, such exercise is not effective unless such withholding has been effected to the satisfaction of the Company. In such circumstances, the Company may in its sole discretion:
(a) | require the Optionee to pay to the Company, in addition to and in the same manner as the exercise price for the Common Shares subject to the Option, such amount as the Company is obliged to remit to the relevant taxing authority in respect of the exercise of the Option; |
(b) | retain any Common Shares that are to be issued upon exercise of any Option and sell such Common Shares so as to enable the Company to realize cash proceeds in an amount equal to the aggregate remittance obligation of the Company in connection with the exercise of the Option and the execution of the stock option agreement referred to in Section 3.02 shall be the complete and irrevocable authority provided by the Optionee to the Company to do so without any liability for the price at which such Common Shares are sold; |
(c) | retain any amount payable, which would otherwise be issued or delivered, provided or paid to an Optionee by the Company, whether or not such amounts are payable under the Plan; or |
(d) | make other arrangements reasonably acceptable to the Company to satisfy the aggregate remittance obligation of the Company in connection with the exercise of the Option. |
Section 5.05 Calculation of Withholding Taxes: Upon a notice of option exercise being received by the Company from the Optionee, the Company will:
(a) | calculate the amount required to be withheld and remitted to the CRA by the Company in respect of the exercise of an Option by an Optionee (the "Withheld Amounts"); |
(b) | advise the Optionee in writing of the amount of the Withheld Amounts; |
(c) | remit to the CRA the Withheld Amounts; and |
(d) | where the Optionee is an "employee" for the purposes of the Income Tax Act (Canada), include on the T-4 slip delivered to the Optionee the amount of the benefit received by the Optionee as a result of the exercise of the Option, the amount of any deduction available to the Optionee and the amount of the Withheld Amounts remitted to the CRA in respect of the exercise of the Option. |
Section 5.06 Spin-Out Transactions: If, pursuant to the operation of Section 6.02, an Optionee receives options (the "New Options") to purchase securities of another company (the "New Company") in respect of the Optionee's Options (the "Subject Options"), the New Options shall expire on the earlier of: (i) the Fixed Term expiration date of the Subject Options; (ii) if the Optionee does not become an Eligible Employee or Eligible Insider in respect of the New Company, the date that the Subject Options expire pursuant to the provisions of the Plan; (iii) if the Optionee becomes an Eligible Employee or Eligible Insider in respect of the New Company, the date that the New Options expire pursuant to the corresponding terms of the New Company's stock option plan and (iv) the date that is two (2) years after the Optionee ceases to be an Eligible Employee or Eligible Insider in respect of the New Company, or such shorter period as determined by the Committee.
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ARTICLE SIX
CAPITAL CHANGES
Section 6.01 Capital Changes: In the event there is any change in the Common Shares, whether by reason of a stock dividend, consolidation, subdivision, reclassification or otherwise, an appropriate adjustment shall be made by the Directors in:
(a) | the number of Common Shares available under the Plan; |
(b) | the number of Common Shares subject to Options; and |
(c) | the exercise price of the Common Shares subject to Options. |
If the foregoing adjustment shall result in a fractional Common Share, the fraction shall be disregarded. All such adjustments shall be conclusive, final and binding for all purposes of the Plan.
Section 6.02 Amalgamation, Consolidation or Merger: If the Company: (a) amalgamates with, consolidates with or merges with or into another corporation resulting in a reclassification or change of the outstanding Common Shares into other shares or securities, or (b) participates in a statutory arrangement or other transaction, including a transaction under which, among other things, the business or assets of the Company become, collectively, the business and assets of two or more companies with the same shareholder group upon the distribution to the Company's shareholders, or the exchange with the Company's shareholders, of securities of the Company, or securities of another company, or both, or (c) participates in a transaction whereby all or substantially all of the Company's undertaking and assets become the property of another corporation; the Optionee shall be entitled to receive, and shall accept, in lieu of the number of Common Shares receivable upon exercise of an Option and for the same exercise price, the kind and amount of shares and other securities, property or cash which such holder would have been entitled to receive as a result of such amalgamation, consolidation, merger or arrangement, on the effective date thereof, had the Optionee been the registered holder of the number of Common Shares to which the Optionee was entitled to purchase upon exercise of such Options, provided no such transaction shall extend in any way the Fixed Term..
Section 6.03 Restriction. Notwithstanding the provisions of Sections 6.01 and 6.02 to the contrary, any substitution for or alteration of the number or identity of Common Shares to be received by an Optionee as a consequence of a Capital Change (as described in Section 6.01) or a transaction (as described in Section 6.02), the ratio of the exercise price to the fair market value of the substitute or altered shares subject to the Option immediately after the substitution or alteration shall not be greater than the ratio of the exercise price to the fair market value of the Common Shares subject to the Option immediately before the substitution or alteration.
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ARTICLE SEVEN
TAKE-OVER BIDS AND CHANGES OF CONTROL
7.01 Effect of a Take-Over Bid: If a bona fide offer (an "Offer") for Common Shares is made to the Optionee or to shareholders of the Company generally or to a class of shareholders which includes the Optionee, which Offer, if accepted in whole or in part, would result in the offeror becoming a control person of the Company, within the meaning of subsection 1(1) of the Securities Act, the Company shall, immediately upon receipt of notice of the Offer, notify each Optionee of full particulars of the Offer, whereupon all Common Shares subject to such Option will become Vested and the Option may be exercised in whole or in part by the Optionee so as to permit the Optionee to tender the Common Shares received upon such exercise, pursuant to the Offer. However, if:
(a) the Offer is not completed within the time specified therein; or
(b) | all of the Common Shares tendered by the Optionee pursuant to the Offer are not taken up or paid for by the offeror in respect thereof, |
then the Common Shares received upon such exercise, or in the case of clause (b) above, the Common Shares that are not taken up and paid for, may be returned by the Optionee to the Company and reinstated as authorized but unissued Common Shares and with respect to such returned Common Shares, the option shall be reinstated as if it had not been exercised and the terms upon which such Common Shares were to become Vested pursuant to this section shall be reinstated. If any Common Shares are returned to the Company under this section 7.01, the Company shall immediately refund the exercise price to the Optionee for such Common Shares.
7.02 Acceleration of Expiry Date: If, at any time when an Option granted under the Plan remains unexercised, an Offer is made by an offeror, the Directors may, upon notifying each Optionee of full particulars of the Offer, declare all Common Shares issuable upon the exercise of Options granted under the Plan, Vested, and declare that the Expiry Date for the exercise of all unexercised Options granted under the Plan is accelerated so that all Options will either be exercised or will expire prior to the date upon which Common Shares must be tendered pursuant to the Offer, provided such Offer is completed.
7.03 Compulsory Acquisition or Going Private Transaction: If and whenever, following a take-over bid or an issuer bid, there shall be a compulsory acquisition of the Company's Common Shares pursuant to Division 6 of the Business Corporations Act (British Columbia) or any successor or similar legislation, or any amalgamation, merger or arrangement in which securities acquired in a formal take-over bid may be voted under the conditions described in section 8.2 of Multilateral Instrument 61-101, Protection of Minority Security Holders in Special Transactions, then following the date upon which such compulsory acquisition, amalgamation, merger or arrangement is effective, an Optionee shall be entitled to receive, and shall accept, for the same exercise price, in lieu of the number of Common Shares to which such Optionee was theretofore entitled to purchase, the aggregate amount of cash, shares, or other securities or other property which such Optionee would have been entitled to receive as a result of such bid if he or she had tendered such number of Common Shares to the bid.
7.04 Effect of a Change of Control: If a Change of Control occurs, all Common Shares subject to each outstanding Option will become Vested, whereupon such Option may be exercised in whole or in part by the Optionee.
7.05 Exercise After Change of Control: If an Optionee elects to exercise its Options following a Change of Control, the Optionee shall be entitled to receive, and shall accept, in lieu of the number of Common Shares which such Optionee was entitled upon such exercise and for the same exercise price, the kind and amount of shares and other securities, property or cash which such holder would have been entitled to receive as a result of such Change of Control, on the effective date thereof, had the Optionee been the registered holder of the number of Common Shares to which the Optionee was entitled to purchase upon exercise of such Options.
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ARTICLE EIGHT
EFFECTIVE DATE OF PLAN, AMENDMENT
OF PLAN AND TERMINATION OF PLAN
Section 8.01 Effective Date of Plan: The Plan shall become effective upon the later of the date determined by the Directors and the date of approval of the shareholders of the Company given by the affirmative vote of a majority of the Common Shares represented at the meeting of the shareholders of the Company at which a motion to approve the Plan is presented.
Section 8.02 Amendment of Plan:
(1) | The Directors may from time to time in the absolute discretion of the Directors amend, modify and change the provisions of an Option or the Plan without obtaining approval of shareholders to: |
(a) | make amendments of a clerical nature; |
(b) | change vesting provisions of an Option or the Plan; |
(c) | change the termination provisions of an Option or the Plan which does not entail an extension beyond the original expiry date of the Option or the Plan; |
(d) | implement a cashless exercise feature, payable in cash or securities, provided that such feature provides for a full deduction of the number of shares from the number of shares reserved under the Plan; |
(e) | make any other amendments of a non-material nature which are approved by the TSX; and |
(f) | make amendments deemed by the Board to be necessary or advisable because of any change in applicable securities laws or other laws. |
(2) | For greater certainty, subject to Section 6.01 and Section 8.02(3), the Directors shall not be permitted to amend the exercise price of any Option issued under the Plan where such amendment reduces the exercise price of such Option (for this purpose, a cancellation or termination of an Option of a Participant prior to its expiry for the purpose of re-issuing Options to the same Participant with a lower exercise price shall be treated as an amendment to reduce the exercise price of an Option). |
(3) | All amendments, modifications or changes not specified in Section 8.02(1) shall only be effective upon such amendment, modification or change being approved by the shareholders of the Company. |
(4) | Any amendment, modification or change of any provision of the Plan shall be subject to approval, if required, by any regulatory body having jurisdiction. |
Section 8.03 Termination of the Plan: The Plan may be terminated at any time by the Directors. Notwithstanding the termination of the Plan, any Option outstanding under the Plan at the time of termination shall remain in effect until such Option has been exercised, has expired, has been surrendered to the Company or has been terminated.
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ARTICLE NINE
MISCELLANEOUS PROVISIONS
Section 9.01 Non-Assignable: No rights under the Plan and no Option awarded pursuant to the provisions of the Plan are assignable or transferable by any Participant other than pursuant to a will or by the laws of descent and distribution.
Section 9.02 Rights as a Shareholder: No Optionee shall have any rights as a shareholder of the Company with respect to any Common Shares which are the subject of an Option. No Optionee shall be entitled to receive, and no adjustment shall be made for, any dividends, distributions or other rights declared for shareholders of the Company for which the record date is prior to the date of exercise of any Option.
Section 9.03 No Contract of Employment: Nothing contained in the Plan shall confer or be deemed to confer upon any Participant the right to continue in the employment of the Company or any subsidiary of the Company nor interfere or be deemed to interfere in any way with any right of the Company or any subsidiary of the Company to discharge any Participant at any time for any reason whatsoever, with or without cause.
Section 9.04 Necessary Approvals / Compliance with Laws: The obligation of the Company to grant any Option pursuant to the Plan and to issue, sell and deliver any Common Shares on the exercise of an Option is subject to the approval of any governmental authority or regulatory body required in connection with the grant of such Option or the issue, sale and delivery of such Common Shares by the Company. Any Options granted prior to the Company's receipt of such required approvals shall be conditional upon such approval being given and no Options may be exercised unless such approval has been being given.
In the event that any Common Shares cannot be issued to any Optionee pursuant to the exercise of an Option for any reason whatsoever including, without limiting the generality of the foregoing, the failure to obtain any required approval, then the obligation of the Company to issue such Common Shares shall terminate and any money paid to the Company in connection with the exercise of such Option shall be returned to the Optionee without interest or deduction.
Section 9.05 No Representation or Warranty: The Company makes no representation or warranty as to the value of any Option granted pursuant to the Plan or as the future value of any Common Shares issued pursuant to the exercise of any Option.
Section 9.06 Compliance with Applicable Law: If any provision of the Plan or any Option contravenes any law or any order, policy, by-law or regulation of any regulatory body having jurisdiction, then such provision shall be deemed to be amended to the extent necessary to bring such provision into compliance therewith.
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Section 9.07 Applicable Law: The Plan and all of the rights and obligations arising herefrom shall be interpreted and applied in accordance with the laws of the Province of British Columbia.
Effective date of Plan: May ●, 2020
Stephen Quin | |
President & CEO |
Exhibit 4.5
Option No. US ●
MIDAS GOLD CORP.
STOCK OPTION PLAN – OPTION AGREEMENT
This Option Agreement is entered into between Midas Gold Corp. (the “Company”) and the Optionee named below pursuant to the Company’s 2011 Evergreen Incentive Stock Option Plan (the “Plan”), a copy of which is attached hereto, and confirms that:
1. | On January 20, 2021 (the “Grant Date”); |
[NAME], of [ADDRESS] (the “Optionee”), an [EMPLOYEE OR DIRECTOR] of the Company;
2. | was granted the option (the “Option”) to purchase ● Common Shares (the “Option Shares”) of the Company; |
3. | for the price (the “Option Price”) of $1.18 per Option Share; |
4. | which shall be exercisable in accordance with the following vesting schedule: |
a. | 25% on January 20, 2021; |
a. | 25% on January 20, 2022; |
b. | 25% on January 20, 2023; |
c. | 25% on January 20, 2024; and, |
5. | terminating on January 20, 2026 (the “Expiry Date”), |
all on the terms and subject to the conditions set out in the Plan. For greater certainty, Option Shares continue to be exercisable until the termination or cancellation thereof as provided in this Option Agreement and the Plan.
The Optionee acknowledges that any Option Shares received by him upon exercise of the Option have not been registered under the United States Securities Act of 1933, as amended, or the Blue Sky laws of any state (collectively, the “Securities Acts”). The Optionee acknowledges and understands that the Company is under no obligation to register, under the Securities Acts, the Option Shares received by him or to assist him in complying with any exemption from such registration if he should at a later date wish to dispose of the Option Shares.
The Optionee acknowledges that, in addition to the foregoing, any Option Shares issued upon the exercise of such Options shall bear a legend restricting the transferability thereof, such legend to be substantially in the following form:
“The shares represented by this certificate have not been registered or qualified under the United States Securities Act of 1933, as amended, or state securities laws. The shares may not be offered for sale, sold, pledged or otherwise disposed of unless so registered or qualified, unless an exemption exists or unless such disposition is not subject to U.S. federal or state securities laws, and the Company may require that the availability of any exemption or the inapplicability of such securities laws be established by an opinion of counsel, which opinion of counsel shall be reasonably satisfactory to the Company.”
By signing this Option Agreement, the Optionee acknowledges that the Optionee has read and understands the Plan and agrees to the terms and conditions of the Plan and this Option Agreement.
Acknowledgement – Personal Information
The Optionee hereby acknowledges and consents to:
(a) | the disclosure to the Toronto Stock Exchange and all other regulatory authorities of all personal information of the undersigned obtained by the Company; and |
(a) | the collection, use and disclosure of such personal information by the Toronto Stock Exchange and all other regulatory authorities in accordance with their requirements, including the provision to third party service providers, from time to time. |
IN WITNESS WHEREOF the parties hereto have executed this Option Agreement as of the 20th day of January, 2021.
MIDAS GOLD CORP. | |||
Per: | |||
Signature | Authorized Signatory | ||
Print Name | |||
Address | |||
Address |
Exhibit 4.6
Option No. ●
MIDAS GOLD CORP.
STOCK OPTION PLAN – OPTION AGREEMENT
This Option Agreement is entered into between Midas Gold Corp. (the “Company”) and the Optionee named below pursuant to the Company’s 2011 Evergreen Incentive Stock Option Plan (the “Plan”), a copy of which is attached hereto, and confirms that:
1. | On January 20, 2021 (the “Grant Date”); |
[NAME], of [ADDRESS] (the “Optionee”), an [EMPLOYEE OR DIRECTOR] of the Company;
2. | was granted the option (the “Option”) to purchase ● Common Shares (the “Option Shares”) of the Company; |
3. | for the price (the “Option Price”) of $1.18 per Option Share; |
4. | which shall be exercisable in accordance with the following vesting schedule: |
a. | 25% on January 20, 2021; |
a. | 25% on January 20, 2022; |
b. | 25% on January 20, 2023; |
c. | 25% on January 20, 2024; and, |
5. | terminating on January 20, 2026 (the “Expiry Date”), |
all on the terms and subject to the conditions set out in the Plan. For greater certainty, Option Shares continue to be exercisable until the termination or cancellation thereof as provided in this Option Agreement and the Plan.
The Optionee acknowledges that any Option Shares received by him upon exercise of the Option have not been registered under the United States Securities Act of 1933, as amended, or the Blue Sky laws of any state (collectively, the “Securities Acts”). The Optionee acknowledges and understands that the Company is under no obligation to register, under the Securities Acts, the Option Shares received by him or to assist him in complying with any exemption from such registration if he should at a later date wish to dispose of the Option Shares.
By signing this Option Agreement, the Optionee acknowledges that the Optionee has read and understands the Plan and agrees to the terms and conditions of the Plan and this Option Agreement.
Acknowledgement – Personal Information
The Optionee hereby acknowledges and consents to:
(a) | the disclosure to the Toronto Stock Exchange and all other regulatory authorities of all personal information of the undersigned obtained by the Company; and |
(a) | the collection, use and disclosure of such personal information by the Toronto Stock Exchange and all other regulatory authorities in accordance with their requirements, including the provision to third party service providers, from time to time. |
IN WITNESS WHEREOF the parties hereto have executed this Option Agreement as of the 20th day of January, 2021.
MIDAS GOLD CORP. | |||
Per: | |||
Signature | Authorized Signatory | ||
Print Name | |||
Address | |||
Address |
Exhibit 5.1
|
|
April 9, 2021 | File: 0243403.0007 |
Perpetua Resources Corp.
Boise, Idaho
|
Dear Sirs/Mesdames:
Re: | Perpetua Resources Corp. (the "Company") |
We have acted as counsel to the Company, a company existing under the Business Corporations Act (British Columbia), and have been asked to give this opinion in connection with the filing with the Securities and Exchange Commission of a registration statement on Form S-8 (the "Registration Statement") covering an aggregate of 4,759,399 common shares without par value in the capital of the Company (the "Plan Shares") issuable pursuant to the Company's 2011 Evergreen Incentive Stock Option Plan (the "Plan"). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulations S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
In connection with this opinion, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction of such documents, caused to be made such searches and investigations and considered such questions of law as we have considered relevant or necessary for the purpose of this opinion. In our examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as photostatic or certified copies and the veracity of certificates of officers of the Company.
We are solicitors qualified to practice law in the Province of British Columbia only and we express no opinion as to the laws of any jurisdiction, or as to any matters governed by the laws of any jurisdiction, other than the laws of the Province of British Columbia and the laws of Canada applicable therein. The opinion herein is based on the laws of the Province of British Columbia and the laws of Canada applicable therein in effect on the date hereof.
Based and relying upon and subject to the foregoing and the qualifications hereinafter expressed, we are of the opinion that at the date hereof, the Plan Shares have been duly authorized for issuance and, upon issuance in accordance with the terms of the Plan and the applicable stock option agreements, the passing of all necessary corporate resolutions, and the issuance of the requisite number of Plan Shares, such Plan Shares will be validly issued and outstanding as fully paid and non-assessable common shares of the Company.
Page 2
We hereby consent to the use of our name in the Registration Statement relating to the Plan Shares and to the filing, as an exhibit to the Registration Statement, of this opinion.
This opinion is provided solely for the benefit of the parties to whom it is addressed in connection with the transaction referred to herein, and may not be used, circulated, quoted from or otherwise referred to for any other purpose. It is not to be transmitted to any other person nor is it to be relied upon by any other person or filed with any government agency or other person without our prior written consent.
Yours truly,
/s/ Miller Thomson LLP
Miller Thomson LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 15, 2021, relating to the financial statements of Perpetua Resources Corp. (formerly Midas Gold Corp.) (the “Company”), appearing in the Annual Report on Form 40-F of the Company for the year ended December 31, 2020.
/s/ Deloitte LLP
Chartered Professional Accountants
Vancouver, Canada
April 9, 2021
Exhibit 23.3
Consent of Expert
April 9, 2021
In connection with the Registration Statement Under the Securities Act of 1933 on Form S-8 (the “Form S-8”) of Perpetua Resources Corp. (the “Company”), I hereby consent to the references in the Form S-8 to my name and to the inclusion of extracts from or summaries of content in the technical report titled “Stibnite Gold Project, Feasibility Study Technical Report, Valley County, Idaho” with an effective date of December 22, 2020 and an issue date of January 27, 2021.
Yours truly, | |
/s/ Richard K. Zimmerman, R.G. SME-RM | |
Richard K. Zimmerman, R.G. SME-RM |
Exhibit 23.4
Consent of Expert
April 9, 2021
In connection with the Registration Statement Under the Securities Act of 1933 on Form S-8 (the “Form S-8”) of Perpetua Resources Corp. (the “Company”), I hereby consent to the references in the Form S-8 to my name and to the inclusion of extracts from or summaries of content in the technical report titled “Stibnite Gold Project, Feasibility Study Technical Report, Valley County, Idaho” with an effective date of December 22, 2020 and an issue date of January 27, 2021.
Yours truly, | |
/s/ Art Ibrado, P.E. | |
Art Ibrado, P.E. |
Exhibit 23.5
Consent of Expert
April 9, 2021
In connection with the Registration Statement Under the Securities Act of 1933 on Form S-8 (the “Form S-8”) of Perpetua Resources Corp. (the “Company”), I hereby consent to the references in the Form S-8 to my name and to the inclusion of extracts from or summaries of content in the technical report titled “Stibnite Gold Project, Feasibility Study Technical Report, Valley County, Idaho” with an effective date of December 22, 2020 and an issue date of January 27, 2021.
Yours truly, | |
/s/ Grenvil M. Dunn, C. Eng. | |
Grenvil M. Dunn, C. Eng. |
Exhibit 23.6
Consent of Expert
April 9, 2021
In connection with the Registration Statement Under the Securities Act of 1933 on Form S-8 (the “Form S-8”) of Perpetua Resources Corp. (the “Company”), I hereby consent to the references in the Form S-8 to my name and to the inclusion of extracts from or summaries of content in the technical report titled “Stibnite Gold Project, Feasibility Study Technical Report, Valley County, Idaho” with an effective date of December 22, 2020 and an issue date of January 27, 2021.
Yours truly, | |
/s/ Garth D. Kirkham, P. Geo. | |
Garth D. Kirkham, P. Geo. |
Exhibit 23.7
Consent of Expert
April 9, 2021
In connection with the Registration Statement Under the Securities Act of 1933 on Form S-8 (the “Form S-8”) of Perpetua Resources Corp. (the “Company”), I hereby consent to the references in the Form S-8 to my name and to the inclusion of extracts from or summaries of content in the technical report titled “Stibnite Gold Project, Feasibility Study Technical Report, Valley County, Idaho” with an effective date of December 22, 2020 and an issue date of January 27, 2021.
Yours truly, | |
/s/ Christopher J. Martin, C. Eng | |
Christopher J. Martin, C. Eng |
Exhibit 23.8
Consent of Expert
April 9, 2021
In connection with the Registration Statement Under the Securities Act of 1933 on Form S-8 (the “Form S-8”) of Perpetua Resources Corp. (the “Company”), I hereby consent to the references in the Form S-8 to my name and to the inclusion of extracts from or summaries of content in the technical report titled “Stibnite Gold Project, Feasibility Study Technical Report, Valley County, Idaho” with an effective date of December 22, 2020 and an issue date of January 27, 2021.
Yours truly, | |
/s/ Peter E. Kowalewski, P.E. | |
Peter E. Kowalewski, P.E. |
Exhibit 23.9
Consent of Expert
April 9, 2021
In connection with the Registration Statement Under the Securities Act of 1933 on Form S-8 (the “Form S-8”) of Perpetua Resources Corp. (the “Company”), I hereby consent to the references in the Form S-8 to my name and to the inclusion of extracts from or summaries of content in the technical report titled “Stibnite Gold Project, Feasibility Study Technical Report, Valley County, Idaho” with an effective date of December 22, 2020 and an issue date of January 27, 2021.
Yours truly, | |
/s/ Chris J. Roos, P.E., | |
Chris J. Roos, P.E., |
Exhibit 23.10
Consent of Expert
April 9, 2021
In connection with the Registration Statement Under the Securities Act of 1933 on Form S-8 (the “Form S-8”) of Perpetua Resources Corp. (the “Company”), I hereby consent to the references in the Form S-8 to my name and to the inclusion of extracts from or summaries of content in the technical report titled “Stibnite Gold Project, Feasibility Study Technical Report, Valley County, Idaho” with an effective date of December 22, 2020 and an issue date of January 27, 2021.
Yours truly, | |
/s/ Scott Rosenthal, P.E. | |
Scott Rosenthal, P.E. |
Exhibit 23.11
Consent of Expert
April 9, 2021
In connection with the Registration Statement Under the Securities Act of 1933 on Form S-8 (the “Form S-8”) of Perpetua Resources Corp. (the “Company”), I hereby consent to the use of my name in connection with the reference to scientific and technical information relating to the Company’s mineral properties in the Form S-8.
Yours truly, | ||
/s/ Christopher Dail, C.P.G. | ||
Christopher Dail, C.P.G. |