Registration No. 333‑219296
Registration No. 333‑220853
Registration No. 333‑224934
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S‑8 REGISTRATION STATEMENT NO. 333‑219296
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S‑8 REGISTRATION STATEMENT NO. 333‑220853
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S‑8 REGISTRATION STATEMENT NO. 333‑224934
UNDER THE SECURITIES ACT OF 1933
MAXAR TECHNOLOGIES INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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83‑2809420
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(State or Other Jurisdiction of
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(I.R.S. Employer
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Incorporation or Organization)
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Identification Number)
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1300 W. 120
th
Avenue
Westminster, Colorado 80234
(Address of Principal Executive Offices including Zip Code)
MacDonald, Dettwiler and Associates Ltd. Directors’ Deferred Share Unit Plan
MDA Employee Share Purchase Plan
MacDonald, Dettwiler and Associates Ltd. 2014 Long Term Incentive Plan
MacDonald, Dettwiler and Associates Ltd. 2015 Long Term Incentive Plan
MacDonald, Dettwiler and Associates Ltd. 2016 Long Term Incentive Plan
Maxar Technologies Ltd. Employee Stock Option Plan
Maxar Technologies Ltd. Omnibus Equity Incentive Plan
MacDonald, Dettwiler and Associates Ltd. 2017 Long Term Incentive Plan
(Full title of the plans)
Michelle Kley
Senior Vice President, General Counsel and Corporate Secretary
Maxar Technologies Inc.
1300 W. 120th Avenue
Westminster, Colorado 80234
(303) 684‑4000
Copy To:
Luke J. Bergstrom
Mark M. Bekheit
Latham & Watkins LLP
140 Scott Drive
Menlo Park, California 94025
Telephone: (650) 328‑4600
Facsimile: (650) 463‑2600
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting 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. Check one:
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Large accelerated filer
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☒
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Accelerated filer
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☐
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Non-accelerated filer
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☐ (do not check if a smaller reporting company)
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Smaller reporting company
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☐
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark if the registrant has elected to use the extended transition period for complying with the new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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Amount
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Maximum
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Maximum
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Title of Securities to be
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to be
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Offering Price
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Aggregate
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Amount of
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Registered
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Registered (1)
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Per Share
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Offering Price
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Registration Fee (1)
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Shares of common stock, par value $0.0001 per share, of Maxar Technologies Inc., a Delaware corporation
(1)
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N/A
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N/A
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N/A
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N/A
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(1)
No additional securities are to be registered, and registration fees were paid upon filing of the original Registration Statements on Form S‑8 (File Nos. 333‑219296, 333‑220853 and 333‑224934). Therefore no further registration fee is required.
EXPLANATORY NOTE
This Post-Effective Amendment is being filed pursuant to Rule 414 under the Securities Act of 1933, as amended (the “
Securities Act
”), by Maxar Technologies Inc., a Delaware corporation (“
Maxar U.S.
” or the “
Registrant
”), as successor issuer to Maxar Technologies Ltd., a corporation existing under the laws of the Province of British Columbia (“
Maxar Canada
”). On January 1, 2019, Maxar U.S. and Maxar Canada completed a statutory plan of arrangement under Section 288 of the Business Corporations Act (British Columbia) (the “
Plan of Arrangement
”), pursuant to which Maxar U.S. became the ultimate parent company of Maxar Canada and its subsidiaries as part of Maxar Canada’s previously announced intention to domesticate to the United States (the “
U.S. Domestication Transaction
”). Pursuant to the Plan of Arrangement, Maxar U.S. directly acquired all of the issued and outstanding shares of Maxar Canada, and in exchange, former Maxar Canada shareholders will be entitled to receive one share of common stock of Maxar U.S. per common share of Maxar Canada.
In connection with the U.S. Domestication Transaction, Maxar U.S. is assuming or, with respect to Restricted Share Units and Deferred Share Units, has agreed to settle in shares of Maxar U.S. common stock, awards granted and the remaining shares available for issuance under Maxar Canada’s incentive plans and has amended such plans and awards as necessary to provide for the issuance of shares of Maxar U.S. common stock rather than the common shares of Maxar Canada upon the exercise or settlement of awards. This Post-Effective Amendment pertains to the adoption by the Company of the following registration statements on Form S‑8 (collectively, the “
Registration Statements
”): (i) Registration No. 333‑219296; (ii) Registration No. 333‑220853; and (iii) Registration No. 333‑224934. Maxar U.S. hereby expressly adopts each Registration Statement as its own registration statement for all purposes of the Securities Act and the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”). This Post-Effective Amendment constitutes Post-Effective Amendment No. 1 to each of the Registration Statements.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference
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Maxar U.S. hereby incorporates by reference the following documents previously filed with the U.S. Securities and Exchange Commission (the “
SEC
”) (only to the extent “filed” and not “furnished” in accordance with SEC rules):
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(a)
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Annual Report of Maxar Canada on Form 40‑F for the fiscal year ended December 31, 2017, filed with the SEC on March 29, 2018;
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(b)
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Maxar Canada’s Reports of Foreign Issuer on Form 6‑K filed with the SEC on November 19, 2018, November 13, 2018, November 6, 2018, October 31, 2018 (excluding Exhibit 99.1), October 16, 2018, October 9, 2018, September 6, 2018, September 6, 2018, September 5, 2018, August 24, 2018, August 15, 2018, August 7, 2018, July 31, 2018 (excluding Exhibit 99.1), July 17, 2018, July 12, 2018, June 15, 2018, May 14, 2018 and May 9, 2018 (excluding Exhibit 99.1);
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(c)
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The description of Maxar U.S.’s common stock which is contained in Maxar U.S.’s Current Report on Form 8‑K filed on January 2, 2019 pursuant to Rule 12g‑3(a) promulgated under the Exchange Act, including any amendment or report filed for the purpose of updating such description.
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All reports that Maxar U.S. subsequently files pursuant to Sections 13(a) and 13(c), 14 and 15(d) of the Exchange Act, after the date of this Post-Effective Amendment and prior to the filing of a post-effective amendment to this Post-Effective Amendment which indicates that all securities offered hereunder have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Post-Effective Amendment and to be a part hereof from the date of filing of such reports and documents. Unless expressly incorporated in this Post-Effective Amendment, a report furnished on Form 8‑K shall not be incorporated by reference into this Post-Effective Amendment.
Any statement contained herein or in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Post-Effective Amendment to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Post-Effective Amendment.
Item 4.
Description of Securities
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Not applicable.
Item 5.
Interests of Named Experts and Counsel
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Not applicable.
Item 6.
Indemnification of Directors and Officers
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Under Section 145 of the General Corporation Law of the State of Delaware (the “
DGCL
”), a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation (or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. In the case of an action brought by or in the right of a corporation, the corporation may indemnify any person who was or is a party or is threatened to be made a party to any such threatened, pending or completed action by reason of the fact that the person is or was a director, officer, employee or agent of the corporation (or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) only against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent the appropriate court finds that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper.
The Maxar U.S. certificate of incorporation provides that its directors and officers will be indemnified by Maxar U.S. to the fullest extent authorized by Delaware law as it now exists or may in the future be amended, against all expenses, liabilities and loss incurred in connection with their service as a director or officer on behalf of the corporation.
As permitted by Section 102(b)(7) of the DGCL, the Maxar U.S. certificate of incorporation provides that a director of Maxar U.S. shall not be personally liable to Maxar U.S. or its stockholders for monetary damages for breach of fiduciary duty as a director, except for such liability as is expressly not subject to limitation under the DGCL, as the same exists or may hereafter be amended to further limit or eliminate such liability.
Maxar U.S. has also authorized the entry into indemnification agreements with its directors and officers. The indemnification agreements provide Maxar U.S.’s directors and officers with further indemnification, to the maximum extent permitted by the DGCL.
As permitted by Section 145(g) of the DGCL, Maxar U.S. also maintains a directors’ and officers’ insurance policy which insures the directors and officers of Maxar U.S. against liability asserted against such persons in such capacity whether or not such directors or officers have the right to indemnification pursuant to the Maxar U.S. certificate of incorporation, bylaws or otherwise.
Item 7.
Exemption from Registration Claimed
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Not Applicable.
Item 8.
Exhibits
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See Index to Exhibits herein.
Item 9.
Undertakings
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(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 this 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 prospectus filed with the SEC pursuant to Rule 424 (b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement
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(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 SEC 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.
EXHIBIT INDEX
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EXHIBIT
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4.1
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Amended and Restated Certificate of Incorporation of Maxar Technologies Inc. (incorporated by reference to Exhibit 3.1 of Maxar U.S.’s Form 8‑K12B filed with the SEC on January 2, 2019).
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4.2
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Amended and Restated Bylaws of Maxar Technologies Inc. (incorporated by reference to Exhibit 3.2 of Maxar U.S.’s Form 8‑K12B filed with the SEC on January 2, 2019).
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4.3
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MacDonald, Dettwiler and Associates Ltd. 2014 Long Term Incentive Plan (incorporated by reference to Exhibit 4.6 of MacDonald, Dettwiler and Associates Ltd.’s Registration Statement on Form S‑8 (SEC File No. 333‑219296) filed with the SEC on July 14, 2017).
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4.4
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MacDonald, Dettwiler and Associates Ltd. 2015 Long Term Incentive Plan (incorporated by reference to Exhibit 4.7 of MacDonald, Dettwiler and Associates Ltd.’s Registration Statement on Form S‑8 (SEC File No. 333‑219296) filed with the SEC on July 14, 2017).
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4.5
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MacDonald, Dettwiler and Associates Ltd. 2016 Long Term Incentive Plan (incorporated by reference to Exhibit 4.8 of MacDonald, Dettwiler and Associates Ltd.’s Registration Statement on Form S‑8 (SEC File No. 333‑219296) filed with the SEC on July 14, 2017).
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4.6
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Maxar Technologies Ltd. Employee Stock Option Plan (incorporated by reference to Exhibit 4.2 of Maxar Canada’s Registration Statement on Form S‑8 (SEC File No. 333‑220853) filed with the SEC on October 6, 2017).
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4.7
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Maxar Technologies Ltd. Omnibus Equity Incentive Plan (incorporated by reference to Exhibit 4.3 of Maxar Canada’s Registration Statement on Form S‑8 (SEC File No. 333‑220853) filed with the SEC on October 6, 2017),
as amended by the Amendment to the Omnibus Equity Incentive Plan (incorporated by reference to Exhibit 4.3 of Maxar Canada’s Registration Statement on Form S‑8 (SEC File No. 333‑224934) filed with the SEC on May 15, 2018).
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4.8
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MacDonald, Dettwiler and Associates Ltd. 2017 Long Term Incentive Plan (incorporated by reference to Exhibit 4.4 of Maxar Canada’s Registration Statement on Form S‑8 (SEC File No. 333‑220853) filed with the SEC on October 6, 2017).
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4.9*
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Amended MacDonald, Dettwiler and Associates Ltd. Directors’ Deferred Share Unit Plan.
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4.10*
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Amendment to MacDonald, Dettwiler and Associates Ltd. 2014 Long Term Incentive Plan.
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4.11*
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Amendment to MacDonald, Dettwiler and Associates Ltd. 2015 Long Term Incentive Plan.
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4.12*
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Amendment to MacDonald, Dettwiler and Associates Ltd. 2016 Long Term Incentive Plan.
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4.13*
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Amendment to Maxar Technologies Ltd. Omnibus Equity Incentive Plan.
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4.14*
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Amendment to MacDonald, Dettwiler and Associates Ltd. 2017 Long Term Incentive Plan.
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5.1*
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Opinion of Latham & Watkins LLP as to the legality of the securities being registered.
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23.1*
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Consent of KPMG LLP.
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23.2
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Consent of Latham & Watkins LLP (included in Exhibit 5.1).
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24.1
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Power of Attorney (included on signature page).
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*
Filed herewith
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Post-Effective Amendment to the Registration Statements to be signed on its behalf
by the undersigned, thereunto duly authorized, in the
City of Westminster, State of Colorado, on this 2
nd
day of January 2019.
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MAXAR TECHNOLOGIES INC.
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By:
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/s/ Howard L. Lance
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Howard L. Lance
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President and Chief Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Howard L. Lance, Biggs C. Porter and Michelle Kley, and each of them, with full power of substitution and full power to act without the others, his or her true and lawful attorney-in-fact and agent to act for him or her in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to the Registration Statements amended by this Post-Effective Amendment, and to file this Post-Effective Amendment, with all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in order to effectuate the same as fully, to all intents and purposes, as they or he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Post-Effective Amendment has been signed by the following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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/s/ Howard L. Lance
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President and Chief Executive Officer and Director
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January 2, 2019
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Howard L. Lance
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(Principal Executive Officer)
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/s/ Biggs C. Porter
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Executive Vice President and Chief Financial Officer
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January 2, 2019
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Biggs C. Porter
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(Principal Financial Officer)
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/s/ Jose A. Torres, Jr.
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Senior Vice President and Chief Accounting Officer
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January 2, 2019
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Jose A. Torres, Jr.
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(Principal Accounting Officer)
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/s/ Howell M. Estes, III
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Chair of the Board of Directors
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January 2, 2019
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Howell M. Estes, III
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/s/ Robert L. Phillips
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Director
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January 2, 2019
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Robert L. Phillips
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/s/ Dennis H. Chookaszian
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Director
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January 2, 2019
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Dennis H. Chookaszian
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/s/ Lori B. Garver
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Director
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January 2, 2019
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Lori B. Garver
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/s/ Joanne O. Isham
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Director
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January 2, 2019
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Joanne O. Isham
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/s/ C. Robert Kehler
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Director
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January 2, 2019
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C. Robert Kehler
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/s/ Brian G. Kenning
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Director
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January 2, 2019
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Brian G. Kenning
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/s/ L. Roger Mason, Jr.
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Director
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January 2, 2019
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L. Roger Mason, Jr.
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/s/ Eric J. Zahler
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Director
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January 2, 2019
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Eric J. Zahler
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/s/ Nick S. Cyprus
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Director
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January 2, 2019
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Nick S. Cyprus
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Exhibit 4.9
MAXAR TECHNOLOGIES LTD.
DIRECTORS’ DEFERRED SHARE UNIT PLAN
(as amended through January 1, 2019)
1.
Purpose of the Plan
The purpose of this Directors’ Deferred Share Unit Plan is to advance the interests of Maxar Technologies Ltd.
(
the “
Company
”
)
and its shareholders by enabling the Company to attract and retain the highest stature of directors and to align the interests of the directors with those of the shareholders.
2.
Definitions
For the purposes of this Plan and related documents, the following definitions apply:
“
Act
” means the
Canada Business Corporations Act
, as amended.
“
Affiliate
” has the meaning specified in the Act.
“
Annual Retainer
” means the annual retainer paid by the Company to the Directors for being directors of the Company; including the annual retainer paid to the Chair, but not including any annual retainer paid to any Director for acting as chair of any committee of the Board.
“
Board
” means the Board of Directors of the Company.
“
Committee
” means a committee of the Board designated from time to time by resolution of the Board, which committee shall consist of no fewer than two members of the Board.
“
Company
” means Maxar Technologies Ltd., a corporation governed by the laws of British Columbia or any successor thereof.
“
Director
” means a Person who is a member of the Board.
“
DSU
” means a deferred share unit issued to a Participant under the Plan.
“
DSU Bank
” means the accumulated entitlement to all DSU’s that have been issued to a Participant pursuant to this Plan.
“
Effective Date
” means October 1, 2003.
“
Eligible Director
” means
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(a)
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any Person who is not an employee of the Company or any Subsidiary, and who becomes Director of the Company after the Effective Date;
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(b)
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any Non-Employee Director of the Company who was a Director as at the Effective Date, and who returns to the Company for cancellation any options held under the Option Plan; or
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(c)
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any Non-Employee of the Company who was a Director as at the Effective Date, and who has been a Director of the Company for a period of five years from the date of his or her initial appointment or election.
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“
Equivalent Amount
” means, on a particular date in respect of an amount expressed in a currency other than U.S. dollars, the equivalent amount in U.S. dollars, determined by reference to the applicable exchange rate at which U.S. dollars may be exchanged into such currency as published by the
Wall Street Journal
for the closest preceding business day before such date; provided that, if at the time of any such determination, for any reason, no such exchange rate is being quoted or published, the Board may use such reasonable method as it considers appropriate to ascertain such rate, and the resulting determination shall be conclusive absent manifest error.
“
Fair Market Value of a Share
” means the closing sale price of the Shares on the New York Stock Exchange or, if that measure of price is not available, in a national market system for securities on the day before the issue date or the day before the day on which any action is to be taken as herein provided. In the event that there are no sales of Shares on any such exchange or market on the issue date (or such other day as is specified herein), the fair market value of Shares on the day before the issue date or such other day on which any action is to be taken or any determination is to be made as herein provided shall be deemed to be the closing sale price on the next preceding day on which Shares were sold on any such exchange or market. In the event that the Shares are not listed on any such market or exchange on the applicable date, a valuation of the fair market value of a Share on such date shall be made by the Board in its sole discretion.
“
Freeze Date
” means January 1, 2019.
“
Maxar U.S.
” means Maxar Technologies Inc., a Delaware corporation.
“
Minimum Shareholding Threshold
” means for each Participant, a number of Shares and/or DSU’s held by that Participant having a value equal to five times the aggregate of (i) the Annual Retainer paid to that Participant, and (ii) the dollar value of the DSU’s issued to that Participant, for any year; where the value of the Shares shall be equal to the Fair Market Value of a Share on the date of determination multiplied by the number of Shares held by the Participant and the value of DSU’s shall be equal to the Fair Market Value of a Share on the date of determination multiplied by the number of DSU’s in the DSU Bank of that Participant.
“
Non-Employee Director
” means any Director of the Company who is not an employee of the Company or any Subsidiary of the Company.
“
Option Plan
” means the Company’s 1999 Stock Option and Incentive Plan, as amended from time to time.
“
Participant
” means a person who receives or holds DSU’s under the Plan.
“
Person
” shall mean an individual, corporation, partnership, association or other person or entity, or any group of two or more of the foregoing that have agreed to act together.
“
Plan
” means this Directors’ Deferred Share Unit Plan, as amended from time to time.
“
Securities Laws
” means all applicable laws, rules, regulations, rules, orders, and published policies relating in full or in part to trading in securities, to the extent legally enforceable.
“
Security-Based Compensation Arrangement
” means an option, option plan, employee share purchase plan, long-term incentive plan, phantom unit plan or any other compensation or incentive mechanism pursuant to which Shares from treasury are being issued to one or more directors, officers or employees of the Company or any subsidiary or current or past full-time or part-time employees of the Company or any subsidiary.
“
Shares
” means shares of the common stock of Maxar U.S.
“
Subsidiary
” has the meaning specified in the Act.
“
Termination Date
” means the date that the Participant voluntarily resigns or a Director ceases to be a Director of the Company.
3.
Administration of Plan
(a) The Plan shall be administered by the Board. The Board shall have authority, not inconsistent with the express provisions of the Plan, to:
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(i)
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determine the terms and conditions of each issue of DSU’s, including the nature and duration of any restriction or condition (or provision for lapse thereof) relating to the vesting or forfeiture of any DSU’s issued;
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(ii)
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adopt such rules and regulations as the Board may deem necessary or appropriate to carry out the purposes of the Plan;
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(iii)
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interpret the provisions of the Plan and of any issue of DSU’s made hereunder and decide any questions and settle all controversies and disputes that may arise in connection with the Plan;
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(iv)
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waive the terms of the Plan in specific circumstances, or make such other determinations as it deems necessary or desirable for effective administration, in accordance with the purpose and objectives of the Plan; and
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(v)
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make, waive or revoke rules and regulations pertaining to the Plan.
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Notwithstanding the foregoing, the Committee cannot alter or waive any provision of the Plan that would have the effect of permitting a Participant to obtain any benefit or payout under the Plan earlier than set forth herein.
All decisions, determinations, interpretations or other actions by the Board with respect to the Plan shall be final, conclusive and binding on all Persons, including the Company, and Participants and their respective legal representatives, their successors in interest and permitted assigns and upon all other Persons claiming by, through, under or against any of them.
(b) Subject to the Act but otherwise in its sole discretion, the Board may delegate some of its powers with respect to the Plan to a Committee (in which case references to the Board in this Plan shall be deemed to refer to the Committee, where appropriate).
4.
Effective Date
The Plan shall be effective as of the Effective Date.
5.
Issue of DSU’s
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(a)
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Each Eligible Director will be issued quarterly on the first business day of each quarter (January 1, April 1, July 1, October 1), a number of DSU’s equal to the quotient of:
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(i)
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one-quarter of that Eligible Director’s Annual Retainer, or one-quarter of the Equivalent Amount of the Annual Retainer calculated as of the day before the issue date; divided by
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(ii)
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the Fair Market Value of a Share,
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rounded to the nearest second decimal.
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(b)
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If a person becomes an Eligible Director after January 1 of any year, that Eligible Director will be issued on the day such person becomes an Eligible Director, a number of DSU’s equal to the quotient of that Eligible Director’s pro rata portion of one-quarter of his or her Annual Retainer, or the pro-rata Equivalent Amount of one-quarter of the Annual Retainer calculated as of the day before the issue date, divided by the Fair Market Value of a Share, rounded to the second decimal. After the first calendar quarter of that Eligible Director, the Eligible Director will receive DSU’s calculated pursuant to Section 5(a) for the balance of the quarters of that calendar year. For the purposes hereof, pro rata portion of one-quarter of the Annual Retainer will be determined by multiplying one-quarter of the Annual Retainer which would have been paid to an Eligible Director for the quarter in which the person became an Eligible Director by the fraction of the number of days in the calendar quarter that the person is an Eligible Director over the total number of days in that quarter.
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(c)
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Notwithstanding the foregoing (a) and (b), any Participant who holds the Minimum Shareholding Threshold in Shares and/or DSU’s as at December 1 of any year, may elect annually, by notice in writing given to the Corporate Secretary on or before December 15, to have the amount of the DSU’s issuable to him or her in the following year pursuant to Section 5(a) hereof paid in cash in which event, the Company will pay to that Participant, subject as hereinafter provided, on the days as set forth in Section 5(a) an amount equal to the number of DSU’s that would be issuable to him or her pursuant to Section 5(a) multiplied by the Fair Market Value of a Share, less any applicable amount required to be withheld under any applicable income tax laws.
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(d)
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Notwithstanding anything to the contrary in this Plan, no DSU’s will be issued on or after the Freeze Date.
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6.
Election with respect to Annual Retainer
Each Participant may elect, by notice in writing given to the Corporate Secretary on or before December 15 of any year to have his or her Annual Retainer for the following year, or the Equivalent Amount thereof, issued in DSU’s. The DSU’s issued under this Section 6, from time to time, will be issued on the dates that such Annual Retainer or portion hereunder is paid to such Participants. The number of DSU’s to be issued will be equal to the quotient of:
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(a)
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the amount of the electing Director’s Annual Retainer to be paid on that issue date, or the Equivalent Amount thereof calculated as of the day before the issue date; divided by
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(b)
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the Fair Market Value of a Share,
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rounded to the nearest second decimal.
7.
Increase of DSU’s on Payment of Dividends
The number of DSU’s in each Participant’s DSU Bank will be increased between the period from the date of issue to that Participant’s Termination Date by an amount equal to the quotient of the dollar amount of any dividend declared by Maxar U.S. to holders of Shares, from time to time, multiplied by the number of DSU’s in the Participant’s DSU Bank divided by the Fair Market Value of a Share at the date of dividend payment, rounded to the second decimal.
8.
Adjustments
If the Company will, at any time, issue Shares by way of dividend or other distribution, or effect a Share split or consolidation of the outstanding Shares, the number of DSU’s in each Participant’s DSU Bank will be proportionately adjusted to reflect such Share dividend, Share split or consolidation. In the case of any reclassification capital reorganization or other change of outstanding Shares (other than a change in par value or as a result of an issuance of Shares by way of dividend or other distribution or of a Share split or consolidation) or in case of any consolidation, amalgamation, merger, arrangement, or any business combination of the Company with or into
another corporation (other than a merger with a subsidiary in which merger the Company is the continuing corporation and does not result in any reclassification, capital reorganization or other change of outstanding Shares) or in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, the Board will cause provision to be made to that the number of DSU’s in each Participant’s DSU Bank will be equivalent to the kind and amount of share or other securities and property receivable upon such reclassification, capital reorganization or other change, consolidation, amalgamation, merger, business combination, sale or conveyance as would be received by a holder of Shares at the time of such reclassification, capital reorganization or other change, consideration, merger, sale or conveyance.
9.
DSU’s not Securities
DSU’s are not securities and are only a term used to determine a method of paying an incentive to Participants. Under no circumstances will DSU’s be considered Shares, nor entitle any Participant to the exercise of voting rights, the receipt of dividends (other than the DSU’s allocated pursuant to Section 7) or the exercise of any other rights attaching to the ownership of Shares.
10.
Winding Up of a Participant’s DSU Bank
Immediately upon a Participant’s Termination Date, the Company will windup that Participant’s DSU Bank. All DSU’s will be converted into cash and paid to the Participant, less any applicable amounts required to be withheld under any income tax laws (the “
Deductions
”), by the Company within thirty (30) days of the Termination Date. The value for each DSU will be the Fair Market Value of a Share on the Termination Date (or the last trading day of the New York Stock Exchange prior to the Termination Date). The effective date, for the purpose of income tax calculation on the proceeds of such windup will be the Termination Date. Notwithstanding the foregoing and provided that the Shares are traded on a recognized stock exchange, the Company shall, at its discretion, on the wind-up of a Participant’s DSU Bank, elect to issue from treasury to that Participant, Shares equal to the number of DSU’s in that Participant’s DSU Bank, which Shares will be issued at the Fair Market Value of a Share on the Termination Date. In the event of the issue of Shares, the Participant shall forthwith pay to the Company in cash an amount equal to the Deductions payable by that Participant. Any issue of Shares hereunder is subject to the prior approval of the New York Stock Exchange and the shareholders of the Company.
11.
Reservation of Shares
There are hereby reserved for issuance pursuant to Section 10 of the Plan, 100,000 Shares.
12.
Limitation of Issue of DSU’s
Any issue of DSU’s shall be subject to the following limits if the Company shall determine to issue Shares from treasury to satisfy the payment of any DSU’s:
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(a)
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the aggregate number of Shares reserved for issuance upon the exercise of all deferred share units granted under this Plan and any appreciation units granted
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under any other Security-Based Compensation Arrangement of the Company, shall not exceed 10% of the issued and outstanding Shares;
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(b)
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the aggregate number of Shares issuable to insiders (as defined in the
Securities Act
(BC)) under this Plan, and any other Security-Based Compensation Arrangement of the Company cannot at any time exceed 10% of the issued and outstanding Shares; and
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(c)
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the aggregate number of Shares issued to insiders (as defined in the
Securities Act
(BC)) under this Plan, and any other Security-Based Compensation Arrangement of the Company within a one-year period, cannot exceed 10% of the issued and outstanding Shares.
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13.
Taxes
The Board shall make such provisions and take such steps as it deems necessary or appropriate for the withholding of any federal, provincial, state, local and other tax required by law to be withheld by the Company with respect to the issue of DSU’s, or with respect to any payment for any DSU’s pursuant to Section 5(c). In the event of the issue of Shares from treasury by the Company to satisfy payment of DSU’s, the Participant shall forthwith pay to the Company the amount of any tax required.
14.
Certain Rights
Neither the adoption of the Plan nor the issue of any DSU’s shall confer upon any Participant any right to continue as a director of the Company or affect in any way the rights of the shareholders or the Board with respect thereto.
15.
Corporate Action
Nothing contained in the Plan shall be construed so as to prevent the Company from taking corporate action which is deemed by the Company, acting in good faith, to be appropriate or in its best interest, whether or not such action would have an adverse effect on the Plan or any outstanding DSU’s, provided that the Company shall not undertake any such corporate action with the intent to adversely prejudice any outstanding DSU’s.
16.
Amendment or Termination of Plan
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(a)
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The following amendments to the Plan or to DSU’s granted thereunder must be approved by the shareholders of the Company:
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(i)
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an amendment allowing a Participant to transfer DSU’s, other than by will or pursuant to the laws of succession;
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(ii)
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an increase in the number of treasury Shares reserved for issuance under the Plan.
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(b)
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Subject to the foregoing paragraph, the Board may amend, suspend or terminate the Plan and any DSU’s granted thereunder without obtaining the prior approval of the shareholders. However, the Board must obtain, where necessary, the prior consent of applicable regulatory authorities and the New York Stock Exchange. Without limiting the generality of the foregoing, the Board may decide to:
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(i)
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wind up, suspend or terminate the Plan;
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(ii)
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terminate a DSU granted under the Plan;
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(iii)
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modify the eligibility for, and limitations on, participation in the Plan;
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(iv)
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modify the terms on which the DSU’s may be granted, terminated, cancelled and adjusted;
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(v)
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amend the provisions of the Plan to comply with applicable laws, the requirements of regulatory authorities or applicable stock exchanges;
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(vi)
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amend the Plan or a DSU to correct or rectify an ambiguity, a deficient or inapplicable provision, an error or an omission; and
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(vii)
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amend a provision of the Plan relating to the administration or technical aspect of the Plan.
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The amendments, suspension or termination of the Plan shall not, except with the written consent of the Participants concerned, in any way affect the terms and conditions of DSU’s previously granted under the Plan if such amendment would materially adversely affect the rights of a Participant.
For greater certainty, the only effect of a termination of the Plan will be that, subject to the following, the award of additional DSU’s will be discontinued as of a specific date and no new participants will be admitted to the Plan thereafter.
17.
Notices
Any notice to be given to a Participant may be delivered personally, by facsimile or using regular mail or courier services to the address for the Participant as shown in the books of the Company. Any notice given to the Company may be delivered personally, by facsimile or using regular mail or courier services to the Corporate Secretary at the address of the Company at 13800 Commerce Parkway, Richmond, B.C., V6V 2J3.
18.
Section 409A
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(a)
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General
. The Company intends that all DSU’s and other rights under this Plan be structured to comply with Section 409A of the U.S. Internal Revenue Code of 1986 and all regulations, guidance and other interpretive authority thereunder (“
Section 409A
”), such that no adverse tax consequences, interest, or penalties under Section 409A apply. Notwithstanding anything in the Plan to the contrary, the
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Board may, without a Participant’s consent, amend this Plan and any DSU’s, adopt policies and procedures, or take any other actions (including amendments, policies, procedures and retroactive actions) as are necessary or appropriate to preserve the intended tax treatment of DSU’s and other rights under this Plan, including any such actions intended to comply with Section 409A. The Company makes no representations or warranties as to a DSU’s or any other right’s tax treatment under Section 409A or otherwise. The Company will have no obligation under this Section 18 or otherwise to avoid the taxes, penalties or interest under Section 409A with respect to any DSU or other right under this Plan and will have no liability to any Participant or any other person if any DSU or other right under this Plan is subject to taxes, penalties or interest under Section 409A.
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(b)
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Separation from Service
. Any payment or settlement of DSU’s or other right under this Plan upon a Participant’s Termination Date will, to the extent necessary to avoid taxes under Section 409A, be made only upon the Participant’s “separation from service” (within the meaning of Section 409A), whether such “separation from service” occurs upon or after the Participant’s Termination Date. For purposes of this Plan references to a “termination” or like terms means a “separation from service.”
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19.
General Provisions
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(a)
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Non-Transferability of DSU’s
. No DSU’s may be transferred, encumbered, pledged or alienated in any way other than by will or by the laws of succession, and subject to the terms of the Plan.
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(b)
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Titles and Headings
. Titles and headings of sections of the Plan are for convenience of reference only and shall not affect the construction of any provision of the Plan.
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(c)
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Governing Law
. The Plan shall be governed by, interpreted under and construed and enforced in accordance with the internal laws, and not the laws pertaining to conflicts or choice of laws, of the Province of British Columbia and the federal laws of Canada applicable therein.
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(d)
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Severability
. If any provision of the Plan or any Award Agreement shall be determined to be illegal or unenforceable by any court of law in any jurisdiction, the remaining provisions hereof and thereof shall be severable and enforceable in accordance with their terms, and all provisions shall remain enforceable in any other jurisdiction.
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The Plan was duly adopted by the Board of Directors of the Company as of November 5, 2003 and as amended effective February 24, 2011, October 28, 2014, February 25, 2015, November 1, 2017 and January 1, 2019.
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/s/ Michelle Kley
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Michelle Kley
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Senior Vice President, Chief Legal Officer,
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General Counsel and Secretary
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Exhibit 5.1
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140 Scott Drive
Menlo Park, California 94025
Tel: +1.650.328.4600 Fax: +1.650.463.2600
www.lw.com
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FIRM / AFFILIATE OFFICES
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Beijing
Boston
Brussels
Century City
Chicago
Dubai
Düsseldorf
Frankfurt
Hamburg
Hong Kong
Houston
London
Los Angeles
Madrid
Milan
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Moscow
Munich
New York
Orange County
Paris
Riyadh
Rome
San Diego
San Francisco
Seoul
Shanghai
Silicon Valley
Singapore
Tokyo
Washington, D.C.
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January 2, 2019
Maxar Technologies Inc.
1300 W. 120
th
Avenue
Westminster, Colorado 80234
Re:
Maxar Technologies Inc. Post-Effective Amendment No. 1
to Registration Statements on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Maxar Technologies Inc., a Delaware corporation (the “
Company
”), in connection with its filing on the date hereof with the Securities and Exchange Commission (the “
Commission
”) of Post-Effective Amendment No. 1 (the “
Amendment
”) to three registration statements on Form S-8 (Registration Nos. 333-219296; 333-220853; and 333-224934) previously filed by Maxar Technologies Ltd., a corporation existing under the laws of the Province of British Columbia and the Company’s predecessor (“
Maxar Canada
”), with respect to the adoption of such registration statements by the Company pursuant to Rule 414 under the Securities Act of 1933, as amended (the “
Act
”). Such registration statements on Form S-8, as amended by the Amendment, are referred to herein as the “
Registration Statements
.” In connection with such representation, the Company has advised us that shares (“
Shares
”) of common stock, par value $0.0001 per share of the Company (“
Common Stock
”), may be issuable or become issuable pursuant to grants or awards under the employee plans (the “
Plans
”) set forth on
Exhibit A
hereto.
This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statements, other than as expressly stated herein with respect to the issue of the Shares.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to the General Corporation Law of the State of Delaware, and we express no opinion with respect to any other laws.
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January 2, 2019
Page 2
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Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers, and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the Plans, assuming in each case that the individual issuances, grants or awards under the Plans are duly authorized by all necessary corporate action and duly issued, granted or awarded and exercised in accordance with the requirements of law and the Plans (and the agreements and awards duly adopted thereunder and in accordance therewith), the issuance and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the General Corporation Law of the State of Delaware.
This opinion is for your benefit in connection with the Amendment and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Amendment. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
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Very truly yours,
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/s/ Latham & Watkins LLP
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January 2, 2019
Page 3
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Exhibit A
Plans
MacDonald, Dettwiler and Associates Ltd. Directors’ Deferred Share Unit Plan
MDA Employee Share Purchase Plan
MacDonald, Dettwiler and Associates Ltd. 2014 Long Term Incentive Plan
MacDonald, Dettwiler and Associates Ltd. 2015 Long Term Incentive Plan
MacDonald, Dettwiler and Associates Ltd. 2016 Long Term Incentive Plan
Maxar Technologies Ltd. Employee Stock Option Plan
Maxar Technologies Ltd. Omnibus Equity Incentive Plan
MacDonald, Dettwiler and Associates Ltd. 2017 Long Term Incentive Plan
