|
Canada
|
| |
1040
|
| |
N/A
|
|
|
(State or other jurisdiction of
incorporation or organization) |
| |
(Primary Standard Industrial
Classification Code Number) |
| |
(I.R.S. Employer
Identification Number) |
|
|
Thomas M. Rose
Shona C. Smith Troutman Sanders LLP 401 9 th Street NW, Suite 1000 Washington, DC 20004 U.S.A. (202) 274-2950 |
| |
Michael Hickey
John Wilkin Blake, Cassels & Graydon LLP 199 Bay Street Suite 4000, Commerce Court West Toronto, Ontario M5L 1A9 Canada (416) 863-2400 |
| |
Brian Boonstra
Davis Graham & Stubbs, LLP 1550 17 th Street, Suite 500 Denver, CO 80202 U.S.A. (303) 892-9400 |
| |
Jay Kellerman
Ivan T. Grbešić Stikeman Elliott LLP 199 Bay Street Suite 5300, Commerce Court West Toronto, Ontario M5L 1B9 Canada (416) 869-5500 |
|
CALCULATION OF REGISTRATION FEE
|
| ||||||||||||||||||||||||
Title of Each Class of Securities to Be Registered
|
| |
Amount to Be
Registered (1) |
| |
Proposed
Maximum Offering Price Per Share |
| |
Proposed
Maximum Aggregate Offering Price |
| |
Amount of
Registration Fee |
| ||||||||||||
Common Shares, without par value
|
| | | | 28,926,169 | | | | | | N/A | | | | | $ | 48,208,944 (2) | | | | | $ | 5,843 | | |
Preferred Shares, without par value
|
| | | | 4,128,043 | | | | | | N/A | | | | | $ | 2,952,180 (3) | | | | | $ | 358 | | |
Total
|
| | | | 33,054,212 | | | | | | N/A | | | | | $ | 51,161,124 | | | | | $ | 6,201 | | |
|
| [•], 201[•] | | |
BY ORDER OF THE BOARD OF DIRECTORS
Mindyjo Germann, Corporate Secretary |
|
| |
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR
PERSHING GOLD’S SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON [•], 201[•]. |
| |
|
Americas Silver Corporation
145 King Street West, Suite 2870 Toronto, Ontario, Canada M5H 1J8 Attn: Investor Relations Tel: (416) 848-9503 |
| |
Pershing Gold Corporation
1658 Cole Boulevard, Building 6, Suite 210 Lakewood, Colorado 80401 Attn: Investor Relations Tel: (720) 974-7258 |
|
| | |
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EXPERTS | | | | | 183 | | |
| | | | 184 | | | |
| | | | 184 | | | |
| | | | 184 | | | |
| | | | 185 | | | |
| | | | A-1 | | | |
| | | | B-1 | | | |
| | | | C-1 | | | |
| | | | D-1 | | | |
| | | | E-1 | | | |
| | | | F-1 | | | |
| | | | II-1 | | | |
SIGNATURES | | | | | II-5 | | |
| | | | II-5 | | | |
| | | | II-6 | | |
| | |
As of December 31
|
| |||||||||||||||||||||||||||
Balance sheet data (in thousands)
|
| |
2017
|
| |
2016
|
| |
2015
|
| |
2014
|
| |
2013
|
| |||||||||||||||
Balance sheet data | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total assets
|
| | | $ | 126,827 | | | | | $ | 117,290 | | | | | $ | 96,878 | | | | | $ | 118,588 | | | | | $ | 139,831 | | |
Total liabilities
|
| | | $ | 38,769 | | | | | $ | 30,146 | | | | | $ | 32,033 | | | | | $ | 33,249 | | | | | $ | 4,385 | | |
Net assets
|
| | | $ | 88,058 | | | | | $ | 87,144 | | | | | $ | 64,845 | | | | | $ | 85,339 | | | | | $ | 135,446 | | |
Capital stock
|
| | | $ | 207,012 | | | | | $ | 202,191 | | | | | $ | 181,133 | | | | | $ | 179,897 | | | | | $ | 153,778 | | |
Number of shares outstanding
|
| | | | 41,497 | | | | | | 39,540 | | | | | | 28,935 | | | | | | 28,005 | | | | | $ | 16,549 | | |
| | |
As of September 30
|
| |||||||||
Balance sheet data (in thousands)
|
| |
2018
|
| |
2017
|
| ||||||
Balance sheet data | | | | | | | | | | | | | |
Total assets
|
| | | $ | 125,801 | | | | | $ | 126,053 | | |
Total liabilities
|
| | | $ | 36,092 | | | | | $ | 38,606 | | |
Net assets
|
| | | $ | 89,709 | | | | | $ | 87,447 | | |
Share capital
|
| | | $ | 212,498 | | | | | $ | 204,550 | | |
Number of shares outstanding
|
| | | | 43,095 | | | | | | 40,804 | | |
| | |
For the year ended December 31
|
| |||||||||||||||||||||||||||
| | |
2017
|
| |
2016
|
| |
2015
|
| |
2014
|
| |
2013
|
| |||||||||||||||
Statement of operations data | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Revenue
|
| | | $ | 54,280 | | | | | $ | 58,866 | | | | | $ | 53,450 | | | | | $ | 31,479 | | | | | $ | 30,213 | | |
Net income (loss)
|
| | | $ | (3,466 ) | | | | | $ | (5,207 ) | | | | | $ | (19,386 ) | | | | | $ | (78,695 ) | | | | | $ | (8,920 ) | | |
Basic and diluted loss per common share
|
| | | $ | (0.09 ) | | | | | $ | (0.15 ) | | | | | $ | (0.68 ) | | | | | $ | (4.68 ) | | | | | $ | (0.54 ) | | |
| | |
For the nine months
ended September 30 |
| |||||||||
| | |
2018
|
| |
2017
|
| ||||||
Statement of operations data | | | | | | | | | | | | | |
Revenue
|
| | | $ | 49,468 | | | | | $ | 42,234 | | |
Net income (loss)
|
| | | $ | (3,878 ) | | | | | $ | (2,107 ) | | |
Basic and diluted loss per common share
|
| | | $ | (0.09 ) | | | | | $ | (0.05 ) | | |
| | |
As of December 31
|
| |||||||||||||||||||||||||||
Balance sheet data (in thousands)
|
| |
2017
|
| |
2016
|
| |
2015
|
| |
2014
|
| |
2013
|
| |||||||||||||||
Balance sheet data | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total assets
|
| | | $ | 43,751 | | | | | $ | 42,239 | | | | | $ | 34,594 | | | | | $ | 41,407 | | | | | $ | 33,859 | | |
Total liabilities
|
| | | $ | 2,621 | | | | | $ | 3,058 | | | | | $ | 1,355 | | | | | $ | 1,555 | | | | | $ | 684 | | |
Net assets
|
| | | $ | 41,130 | | | | | $ | 39,181 | | | | | $ | 33,239 | | | | | $ | 39,852 | | | | | $ | 33,175 | | |
Capital stock
|
| | | $ | 3 | | | | | $ | 3 | | | | | $ | 2 | | | | | $ | 36 | | | | | $ | 28 | | |
Additional paid-in capital
|
| | | $ | 211,817 | | | | | $ | 195,705 | | | | | $ | 170,530 | | | | | $ | 157,985 | | | | | $ | 133,201 | | |
Number of shares outstanding
|
| | | | 33,544 | | | | | | 28,389 | | | | | | 21,723 | | | | | | 19,745 | | | | | | 15,329 | | |
| | |
As of September 30
|
| |||||||||
Balance sheet data (in thousands)
|
| |
2018
|
| |
2017
|
| ||||||
Balance sheet data | | | | | | | | | | | | | |
Total assets
|
| | | $ | 32,985 | | | | | $ | 32,986 | | |
Total liabilities
|
| | | $ | 2,587 | | | | | $ | 1,343 | | |
Net assets
|
| | | $ | 30,398 | | | | | $ | 31,643 | | |
Capital stock
|
| | | $ | 3 | | | | | $ | 3 | | |
Additional paid-in capital
|
| | | $ | 212,558 | | | | | $ | 197,298 | | |
Number of shares outstanding
|
| | | | 33,677 | | | | | | 28,402 | | |
| | |
For the year ended December 31
|
| |||||||||||||||||||||||||||
| | |
2017
|
| |
2016
|
| |
2015
|
| |
2014
|
| |
2013
|
| |||||||||||||||
Statement of operations data | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Revenue
|
| | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Net income (loss)
|
| | | | (14,163 ) | | | | | | (19,235 ) | | | | | | (19,124 ) | | | | | | (18,159 ) | | | | | | (18,205 ) | | |
Basic and diluted income (loss) per common share
|
| | | | (0.50 ) | | | | | | (0.75 ) | | | | | | (0.90 ) | | | | | | (1.07 ) | | | | | | (1.26 ) | | |
| | |
For the nine months ended September 30
|
| |||||||||
| | |
2018
|
| |
2017
|
| ||||||
Statement of operations data | | | | | | | | | | | | | |
Revenue
|
| | | $ | — | | | | | $ | — | | |
Net income (loss)
|
| | | $ | (11,472 ) | | | | | $ | (9,130 ) | | |
Basic and diluted loss per common share
|
| | | $ | (0.34 ) | | | | | $ | (0.32 ) | | |
Pro forma statement of financial position data (in thousands)
|
| |
As of
September 30 2018 |
| |||
Pro forma statement of financial position data | | | | | | | |
Total assets
|
| | | $ | 196,321 | | |
Total liabilities
|
| | | $ | 44,884 | | |
Net assets
|
| | | $ | 151,437 | | |
Share capital
|
| | | $ | 280,726 | | |
Number of shares outstanding
|
| | | | 67,174 | | |
Pro forma statement of operations data (in thousands)
|
| |
Nine months
ended September 30, 2018 |
| |||
Pro forma statement of operations data | | | | | | | |
Revenue
|
| | | $ | 49,468 | | |
Net income (loss)
|
| | | $ | (15,350 ) | | |
Basic and diluted income (loss) per common share
|
| | | $ | (0.23 ) | | |
| | |
Nine months
ended September 30, 2018 |
| |||
Americas Silver Corporation (US Dollars) | | | | | | | |
Historical per share data | | | | | | | |
Net income (loss) per basic and diluted share
|
| | | $ | (0.09 ) | | |
Book value per share
|
| | | $ | 2.08 | | |
| | |
Nine months
ended September 30, 2018 |
| |||
Pershing Gold Corporation (US Dollars) | | | | | | | |
Historical per share data | | | | | | | |
Net income (loss) per basic and diluted share
|
| | | $ | (0.34 ) | | |
Book value per share
|
| | | $ | 0.90 | | |
| | |
Nine months
ended September 30, 2018 |
| |||
Combined Americas Silver and Pershing Gold Pro forma combined | | | | | | | |
Net income (loss) per basic and diluted share
|
| | | $ | (0.23 ) | | |
Book value per share
|
| | | $ | 2.25 | | |
| | |
Americas Silver
Common Shares |
| |
Pershing Gold
Common Stock |
| |
Transaction
Consideration per share of Pershing Gold Common Stock |
| |||||||||
September 28, 2018
|
| | | $ | 2.36 | | | | | $ | 1.21 | | | | | $ | 1.69 | | |
November 2, 2018
|
| | | $ | 2.12 | | | | | $ | 1.38 | | | | | $ | 1.52 | | |
Recent Monthly Data
|
| |
Period-End
Rate (1) |
| |
Average
Rate (2) |
| |
High
|
| |
Low
|
| ||||||||||||
October 2018
|
| | | | 1.3142 | | | | | | 1.3010 | | | | | | 1.3142 | | | | | | 1.2803 | | |
September 2018
|
| | | | 1.2945 | | | | | | 1.3037 | | | | | | 1.3188 | | | | | | 1.2905 | | |
August 2018
|
| | | | 1.3055 | | | | | | 1.3041 | | | | | | 1.3152 | | | | | | 1.2917 | | |
July 2018
|
| | | | 1.3017 | | | | | | 1.313 | | | | | | 1.3255 | | | | | | 1.3017 | | |
June 2018
|
| | | | 1.3168 | | | | | | 1.3129 | | | | | | 1.331 | | | | | | 1.2913 | | |
May 2018
|
| | | | 1.2948 | | | | | | 1.2873 | | | | | | 1.302 | | | | | | 1.2775 | | |
April 2018
|
| | | | 1.2836 | | | | | | 1.2733 | | | | | | 1.2908 | | | | | | 1.2552 | | |
March 2018
|
| | | | 1.2894 | | | | | | 1.2932 | | | | | | 1.3088 | | | | | | 1.2830 | | |
February 2018
|
| | | | 1.2809 | | | | | | 1.2586 | | | | | | 1.2809 | | | | | | 1.2288 | | |
January 2018
|
| | | | 1.2293 | | | | | | 1.2427 | | | | | | 1.2535 | | | | | | 1.2293 | | |
December 2017
|
| | | | 1.2545 | | | | | | 1.2771 | | | | | | 1.2886 | | | | | | 1.2545 | | |
November 2017
|
| | | | 1.2888 | | | | | | 1.2769 | | | | | | 1.2888 | | | | | | 1.2683 | | |
October 2017
|
| | | | 1.2893 | | | | | | 1.2605 | | | | | | 1.2893 | | | | | | 1.2472 | | |
September 2017
|
| | | | 1.2483 | | | | | | 1.2283 | | | | | | 1.248 | | | | | | 1.2128 | | |
August 2017
|
| | | | 1.2536 | | | | | | 1.2605 | | | | | | 1.2755 | | | | | | 1.2482 | | |
July 2017
|
| | | | 1.2485 | | | | | | 1.2689 | | | | | | 1.2982 | | | | | | 1.2447 | | |
Annual Data (Year ended December 31) | | | | | | ||||||||||||||||||||
2018 (to November 2)
|
| | | | 1.3105 | | | | | | 1.2892 | | | | | | 1.3310 | | | | | | 1.2288 | | |
2017
|
| | | | 1.2545 | | | | | | 1.2986 | | | | | | 1.3607 | | | | | | 1.2283 | | |
2016
|
| | | | 1.3336 | | | | | | 1.3248 | | | | | | 1.4226 | | | | | | 1.2818 | | |
2015
|
| | | | 1.3704 | | | | | | 1.2787 | | | | | | 1.3704 | | | | | | 1.2123 | | |
2014
|
| | | | 1.1536 | | | | | | 1.1045 | | | | | | 1.1536 | | | | | | 1.0740 | | |
Commodity
|
| |
Unit
|
| |
2018E
|
| |
2019E
|
| |
2020E
|
| |
2021E
|
| |
2022E
|
| |
Long Term
|
| |||||||||||||||||||||
Gold
|
| | | $ | /oz | | | | | $ | 1,245 | | | | | $ | 1,283 | | | | | $ | 1,299 | | | | | $ | 1,334 | | | | | $ | 1,283 | | | | | $ | 1,283 | | |
Silver
|
| | | $ | /oz | | | | | $ | 15.76 | | | | | $ | 17.04 | | | | | $ | 18.03 | | | | | $ | 18.57 | | | | | $ | 18.64 | | | | | $ | 18.64 | | |
Zinc
|
| | | $ | /lb | | | | | $ | 1.26 | | | | | $ | 1.28 | | | | | $ | 1.22 | | | | | $ | 1.27 | | | | | $ | 1.25 | | | | | $ | 1.25 | | |
Lead
|
| | | $ | /lb | | | | | $ | 1.02 | | | | | $ | 1.03 | | | | | $ | 1.03 | | | | | $ | 1.04 | | | | | $ | 1.03 | | | | | $ | 1.03 | | |
Copper
|
| | | $ | /lb | | | | | $ | 2.98 | | | | | $ | 3.04 | | | | | $ | 3.04 | | | | | $ | 3.21 | | | | | $ | 3.33 | | | | | $ | 3.33 | | |
Company Net Asset Value Estimate
|
| |
Implied Net
Asset Value |
|
Internal
|
| |
$148.9 million
|
|
Research
|
| |
$160.3 million
|
|
Company Peer Group
|
| | | |
Alio Gold Inc. | | | | |
Corvus Gold Inc. | | | | |
Gold Standard Ventures Corp. | | | | |
Integra Resources Corp. | | | | |
Liberty Gold Corp. | | | | |
Marathon Gold Corporation | | | | |
Midas Gold Corp. | | | | |
Osisko Mining Inc. | | | | |
Probe Metals Inc. | | | | |
Rio2 Limited | | |
Value Methodology
|
| |
Company Peer Group
|
| |||||||||
|
(1
st
– 3
rd
Quartile)
|
| |
Median
|
| ||||||||
P/NAV (ratio)
|
| | | | 0.34 – 0.53 | | | | | | 0.39 | | |
Company Multiple
|
| |
Implied Equity
Value ($/share) |
| |
Median
($/share) |
| ||||||
P/NAV (Internal)
|
| | | $ | 1.23 – $1.94 | | | | | $ | 1.44 | | |
P/NAV (Research)
|
| | | $ | 1.32 – $2.08 | | | | | $ | 1.55 | | |
Value Methodology
|
| |
Company Peer Group
|
| |||||||||
|
(1
st
– 3
rd
Quartile)
|
| |
Median
|
| ||||||||
EV/Resource (Gold Equivalent) ($/oz)
|
| | | $ | 9.12 – $50.14 | | | | | $ | 28.96 | | |
Company Multiple
|
| |
Implied Equity
Value ($/share) |
| |
Median
($/share) |
| ||||||
EV/Resource
|
| | | $ | 0.25 – $1.12 | | | | | $ | 0.67 | | |
Company Trading on the NASDAQ
|
| |
Period Low
|
| |
Period High
|
| |
Period VWAP
|
| |||||||||
September 27, 2018
|
| | | $ | 1.13 | | | | | $ | 1.26 | | | | | $ | 1.18 | | |
5-days Preceding
|
| | | $ | 1.08 | | | | | $ | 1.38 | | | | | $ | 1.26 | | |
10-days Preceding
|
| | | $ | 0.95 | | | | | $ | 1.38 | | | | | $ | 1.19 | | |
20-days Preceding
|
| | | $ | 0.82 | | | | | $ | 1.38 | | | | | $ | 1.09 | | |
30-days Preceding
|
| | | $ | 0.82 | | | | | $ | 1.38 | | | | | $ | 1.11 | | |
60-days Preceding
|
| | | $ | 0.82 | | | | | $ | 1.80 | | | | | $ | 1.23 | | |
90-days Preceding
|
| | | $ | 0.82 | | | | | $ | 1.96 | | | | | $ | 1.33 | | |
180-days Preceding
|
| | | $ | 0.82 | | | | | $ | 2.44 | | | | | $ | 1.77 | | |
Statistic
|
| |
Trading
|
| |||||||||
|
Low – High
|
| |
Median
|
| ||||||||
Company VWAP Trading Price
|
| | | $ | 1.09 – $1.77 | | | | | $ | 1.21 | | |
Company Multiple
|
| |
Implied Equity
Value ($/share) |
| |
Median
($/share) |
| ||||||
P/NAV (Internal)
|
| | | $ | 1.23 – $1.94 | | | | | $ | 1.44 | | |
P/NAV (Research)
|
| | | $ | 1.32 – $2.08 | | | | | $ | 1.55 | | |
EV/Resource
|
| | | $ | 0.25 – $1.12 | | | | | $ | 0.67 | | |
Company VWAP Trading Price
|
| | | $ | 1.09 – $1.77 | | | | | $ | 1.21 | | |
Americas Silver Net Asset Value Estimate
|
| |
Implied
Net Asset Value |
|
Internal
|
| |
$148.0 million
|
|
Research
|
| |
$169.0 million
|
|
Americas Silver Peer Group
|
| | | | | | |
Alio Gold Inc. | | | | | | ||
Avino Silver & Gold Mines Ltd. | | | | | | ||
Endeavour Silver Corp. | | | | | | ||
First Majestic Silver Corp. | | | | | | ||
Fortuna Silver Mines Inc. | | | | | | ||
Great Panther Silver Limited | | | | | | ||
Sierra Metals Inc. | | | |
Value Methodology
|
| |
Americas Silver Peer Group
|
| |||||||||
|
(1
st
– 3
rd
Quartile)
|
| |
Median
|
| ||||||||
P/NAV (ratio)
|
| | | | 0.35 – 0.90 | | | | | | 0.75 | | |
Americas Silver Multiple
|
| |
Implied Equity
Value ($/share) |
| |
Median
($/share) |
| ||||||
P/NAV (Internal)
|
| | | $ | 1.11 – $2.88 | | | | | $ | 2.40 | | |
P/NAV (Research)
|
| | | $ | 1.27 – $3.29 | | | | | $ | 2.74 | | |
Value Methodology
|
| |
Americas Silver Peer Group
|
| |||||||||
|
(1
st
– 3
rd
Quartile)
|
| |
Median
|
| ||||||||
EV/Resource (Silver Equivalent) ($/oz)
|
| | | $ | 0.70 – $1.39 | | | | | $ | 1.07 | | |
Americas Silver Multiple
|
| |
Implied Equity
Value ($/share) |
| |
Median
($/share) |
| ||||||
EV/Resource
|
| | | $ | 4.71 – $9.47 | | | | | $ | 7.24 | | |
Americas Silver Trading on the NYSE American
|
| |
Period Low
|
| |
Period High
|
| |
Period VWAP
|
| |||||||||
September 27, 2018
|
| | | $ | 2.30 | | | | | $ | 2.45 | | | | | $ | 2.36 | | |
5-days Preceding
|
| | | $ | 2.29 | | | | | $ | 2.60 | | | | | $ | 2.37 | | |
10-days Preceding
|
| | | $ | 2.17 | | | | | $ | 2.60 | | | | | $ | 2.32 | | |
20-days Preceding
|
| | | $ | 2.05 | | | | | $ | 2.60 | | | | | $ | 2.25 | | |
30-days Preceding
|
| | | $ | 2.05 | | | | | $ | 2.60 | | | | | $ | 2.28 | | |
60-days Preceding
|
| | | $ | 2.05 | | | | | $ | 3.27 | | | | | $ | 2.46 | | |
90-days Preceding
|
| | | $ | 2.05 | | | | | $ | 3.68 | | | | | $ | 2.66 | | |
180-days Preceding
|
| | | $ | 2.05 | | | | | $ | 4.49 | | | | | $ | 3.23 | | |
Statistic
|
| |
Trading
|
| |||||||||
|
Low – High
|
| |
Median
|
| ||||||||
Americas Silver VWAP Trading Price
|
| | | $ | 2.25 – $3.23 | | | | | $ | 2.37 | | |
Americas Silver Multiple
|
| |
Implied Equity
Value ($/share) |
| |
Median
($/share) |
| ||||||
P/NAV (Internal)
|
| | | $ | 1.11 – $2.88 | | | | | $ | 2.40 | | |
P/NAV (Research)
|
| | | $ | 1.27 – $3.29 | | | | | $ | 2.74 | | |
EV/Resource
|
| | | $ | 4.71 – $9.47 | | | | | $ | 7.24 | | |
Americas Silver VWAP Trading Price
|
| | | $ | 2.25 – $3.23 | | | | | $ | 2.37 | | |
Multiple/Statistic
|
| |
Exchange
Ratio Range |
| |
Median
Exchange Ratio |
| |
Common Stock
Exchange Ratio |
| |||||||||
P/NAV (Internal)
|
| | | | 0.425 – 1.736 | | | | | | 0.599 | | | | | | 0.715 | | |
P/NAV (Research)
|
| | | | 0.401 – 1.636 | | | | | | 0.564 | | | | | | 0.715 | | |
EV/Resource
|
| | | | 0.026 – 0.238 | | | | | | 0.092 | | | | | | 0.715 | | |
VWAP Trading
|
| | | | 0.337 – 0.788 | | | | | | 0.511 | | | | | | 0.715 | | |
Current Directors of Americas Silver
|
| |||||||||
Name and State of Residence
|
| |
Office Held
|
| |
Director Since
(1)
|
| |
Principal Occupation, if
different than Office Held |
|
Darren Blasutti
Ontario, Canada |
| | President, CEO and Director | | |
December 23, 2014
|
| | Same | |
Alexander Davidson
(3)(4)
Ontario, Canada |
| |
Chair and Director
|
| |
December 23, 2014
|
| | Same | |
Alan Edwards
(4)
Arizona, United States |
| | Director | | |
December 23, 2015
|
| | President of AE Resources Corp. | |
Peter Hawley
(4)
Québec, Canada |
| | Director | | | May 12, 1998 | | | Founder of Americas Silver, Chairman of Scorpio Gold Corporation, Executive Chairman of Defiance Silver Corp. | |
Bradley R. Kipp
(2)
Ontario, Canada |
| | Director | | | June 12, 2014 | | | Executive Vice-President and Director of JSF Group Inc., Vice-President Finance of Summit Resources Management Limited, Chief Financial Officer and Director of Blackshire Capital Corp. | |
Gordon E. Pridham
(2)(3)
Ontario, Canada |
| | Director | | |
December 23, 2014
|
| | Principal of Edgewater Capital | |
Manuel Rivera
Mexico, Mexico |
| | Director | | | August 2, 2017 | | | President and Founder of LATAMFUV | |
Lorie Waisberg
(2)(3)
Ontario, Canada |
| | Director | | |
December 23, 2014
|
| | Corporate Director | |
Name and State of
Residence |
| |
Office Held
|
| |
Held Position Since
|
|
Darren Blasutti
Ontario, Canada |
| | President, Chief Executive Officer and Director | | | December 23, 2014 | |
Warren Varga
Ontario, Canada |
| | Chief Financial Officer | | | December 23, 2014 | |
Peter J. McRae
Ontario, Canada |
| | Senior Vice President, Corporate Affairs & Chief Legal Officer | | | December 23, 2014 | |
Darren Dell
Ontario, Canada |
| | Chief Operating Officer | | | February 5, 2016 | |
Shawn Wilson
Ontario, Canada |
| | Vice President, Technical Services | | | August 15, 2016 | |
Name of Director
(1)
|
| |
Fees
earned (cash) ($) (2)(3) |
| |
Share-based
awards (3) ($) |
| |
Option-based
awards (4) ($) |
| |
Non-equity
incentive plan compensation ($) |
| |
All other
compensation ($) |
| |
Total
($) (2) |
| ||||||||||||||||||
Alex Davidson
|
| | | | Nil | | | | | | 55,829 | | | | | | 91,444 | | | | | | Nil | | | | | | Nil | | | | | | 147,273 | | |
Alan Edwards
|
| | | | 30,802 | | | | | | 7,701 | | | | | | 91,444 | | | | | | Nil | | | | | | Nil | | | | | | 129,947 | | |
Peter Hawley
|
| | | | 29,262 | | | | | | 7,316 | | | | | | 91,444 | | | | | | Nil | | | | | | Nil | | | | | | 128,022 | | |
Bradley Kipp
|
| | | | Nil | | | | | | 42,353 | | | | | | 91,444 | | | | | | Nil | | | | | | Nil | | | | | | 133,797 | | |
Gordon Pridham
|
| | | | 32,343 | | | | | | 8,086 | | | | | | 91,444 | | | | | | Nil | | | | | | Nil | | | | | | 131,873 | | |
Lorie Waisberg
|
| | | | 31,765 | | | | | | 10,588 | | | | | | 91,444 | | | | | | Nil | | | | | | Nil | | | | | | 133,797 | | |
Manuel Rivera
|
| | | | 8,926 | | | | | | 3,825 | | | | | | 88,144 | | | | | | Nil | | | | | | Nil | | | | | | 100,895 | | |
Committee
|
| |
Committee
Chairman C($) |
| |
Other
Committee Members C($) |
| ||||||
Audit Committee
|
| | | | 15,000 | | | | | | 7,500 | | |
Compensation & Corporate Governance Committee
|
| | | | 7,500 | | | | | | 5,000 | | |
Sustainability and Technical Committee
|
| | | | 10,000 | | | | | | 7,500 | | |
Name
|
| |
Option-based Awards
|
| |
Share-based Awards
|
| |||||||||||||||||||||||||||||||||||||||
|
Number of
securities underlying unexercised option (#) |
| |
Option
exercise price C($) |
| |
Option
expiration date |
| |
Value of
unexercised in-the-money options (1) C($) |
| |
Number of
shares or units of shares that have not vested (#) |
| |
Market or
payout value of share-based awards that have not vested C($) |
| |
Market or
payout value of vested share-based awards not paid out or distributed C($) (2) |
| | |||||||||||||||||||||||||
Alex Davidson
|
| | | | 33,333 | | | | | | 2.34 | | | | | | 30/01/2018 | | | | | | 74,666 | | | | | | Nil | | | | | | Nil | | | | | | 299,990 | | | | ||
| | | | | 41,666 | | | | | | 2.04 | | | | | | 23/02/2019 | | | | | | 105,832 | | | | | | | | | | | | | | | | | | | | | | ||
| | | | | 60,000 | | | | | | 3.85 | | | | | | 13/01/2020 | | | | | | 43,800 | | | | | | | | | | | | | | | | | | | | | | ||
Alan Edwards
|
| | | | 33,333 | | | | | | 2.34 | | | | | | 30/01/2018 | | | | | | 74,666 | | | | | | Nil | | | | | | Nil | | | | | | 189,731 | | | | ||
| | | | | 41,666 | | | | | | 2.04 | | | | | | 23/02/2019 | | | | | | 105,832 | | | | | | | | | | | | | | | | | | | | | | ||
| | | | | 60,000 | | | | | | 3.85 | | | | | | 13/01/2020 | | | | | | 43,800 | | | | | | | | | | | | | | | | | | | | | | ||
Bradley Kipp
|
| | | | 33,333 | | | | | | 2.34 | | | | | | 30/01/2018 | | | | | | 74,666 | | | | | | Nil | | | | | | Nil | | | | | | 267,454 | | | | ||
| | | | | 41,666 | | | | | | 2.04 | | | | | | 23/02/2019 | | | | | | 105,832 | | | | | | | | | | | | | | | | | | | | | | ||
| | | | | 60,000 | | | | | | 3.85 | | | | | | 13/01/2020 | | | | | | 43,800 | | | | | | | | | | | | | | | | | | | | | | ||
Peter Hawley
|
| | | | 33,333 | | | | | | 2.34 | | | | | | 30/01/2018 | | | | | | 74,666 | | | | | | Nil | | | | | | Nil | | | | | | 203,572 | | | | ||
| | | | | 41,666 | | | | | | 5.70 | | | | | | 24/05/2018 | | | | | | Nil | | | | | | | | | | | | | | | | | | | | | | ||
| | | | | 41,666 | | | | | | 2.04 | | | | | | 23/02/2019 | | | | | | 105,832 | | | | | | | | | | | | | | | | | | | | | | ||
| | | | | 60,000 | | | | | | 3.85 | | | | | | 13/01/2020 | | | | | | 43,800 | | | | | | | | | | | | | | | | | | | | | | ||
Gordon Pridham
|
| | | | 33,333 | | | | | | 2.34 | | | | | | 30/01/2018 | | | | | | 74,666 | | | | | | Nil | | | | | | Nil | | | | | | 166,895 | | | | ||
| | | | | 41,666 | | | | | | 2.04 | | | | | | 23/02/2019 | | | | | | 105,832 | | | | | | | | | | | | | | | | | | | | | | ||
| | | | | 60,000 | | | | | | 3.85 | | | | | | 13/01/2020 | | | | | | 43,800 | | | | | | | | | | | | | | | | | | | | | | ||
Lorie Waisberg
|
| | | | 25,000 | | | | | | 2.34 | | | | | | 30/01/2018 | | | | | | 56,000 | | | | | | Nil | | | | | | Nil | | | | | | 180,631 | | | | ||
| | | | | 41,666 | | | | | | 2.04 | | | | | | 23/02/2019 | | | | | | 105,832 | | | | | | | | | | | | | | | | | | | | | | ||
| | | | | 60,000 | | | | | | 3.85 | | | | | | 13/01/2020 | | | | | | 43,800 | | | | | | | | | | | | | | | | | | | | | | ||
Manuel Rivera
|
| | | | 60,000 | | | | | | 3.92 | | | | | | 02/08/2020 | | | | | | 39,600 | | | | | | Nil | | | | | | Nil | | | | | | 5,821 | | | |
Name
|
| |
Option-based
awards-Value vested during the year (1) C($) |
| |
Share-based awards-Value
vested during the year (2) C($) |
| |
Non-equity incentive plan
compensation-Value earned during the year (3) C($) |
| |||||||||
Alex Davidson
|
| | | | 58,722 | | | | | | 142,332 | | | | | | Nil | | |
Alan Edwards
|
| | | | 58,722 | | | | | | 52,608 | | | | | | Nil | | |
Bradley Kipp
|
| | | | 58,722 | | | | | | 116,618 | | | | | | Nil | | |
Peter J. Hawley
|
| | | | 58,722 | | | | | | 54,314 | | | | | | Nil | | |
Gordon Pridham
|
| | | | 58,722 | | | | | | 47,433 | | | | | | Nil | | |
Lorie Waisberg
|
| | | | 58,722 | | | | | | 53,871 | | | | | | Nil | | |
Manuel Rivera
|
| | | | Nil | | | | | | 5,821 | | | | | | Nil | | |
| | |
Number of Common
Shares to be Issued Upon Exercise of Outstanding Options |
| |
Weighted-Average
Exercise Price of Outstanding Options C($) |
| |
Number of Common
Shares Remaining Available for Future Issuance Under Equity Compensation Plans |
| |||||||||
Equity Compensation Plans Approved By Shareholders – Stock Option Plan
|
| | |
|
2,316,264
|
| | | |
|
3.06
|
| | | |
|
1,833,431
|
| |
Equity Compensation Plans Approved By Shareholders – DSUs
(1)
|
| | |
|
286,919
|
| | | |
|
N/A
|
| | | |
|
1,546,512
|
| |
Equity Compensation Plans Approved By Shareholders – RSUs
(2)
|
| | |
|
197,059
|
| | | |
|
N/A
|
| | | |
|
1,349,453
|
| |
Total
|
| | | | 2,800,242 | | | | | | 3.06 | | | | | | 1,349,453 | | |
|
Name and principal position
|
| |
Year
|
| |
Salary
($) (1) |
| |
Non-equity
discretionary annual incentive plan (2) ($) |
| |
Share-based
awards (3) ($) |
| |
Option-based
awards (4) ($) |
| |
All other
compensation ($) |
| |
Total
Compensation ($) |
| |||||||||||||||||||||
Darren Blasutti
|
| | | | 2017 | | | | | | 250,270 | | | | | | 161,434 | | | | | | 67,260 | | | | | | 278,533 | | | | | | 582 | | | | | | 758,079 | | |
| | | 2016 | | | | | | 246,212 | | | | | | 169,886 | | | | | | 93,438 | | | | | | 216,465 | | | | | | 521 | | | | | | 726,522 | | | ||
| | | 2015 | | | | | | 254,162 | | | | | | Nil | | | | | | 147,583 | | | | | | 90,810 | | | | | | 357 | | | | | | 492,912 | | | ||
Daren Dell
|
| | | | 2017 | | | | | | 219,467 | | | | | | 81,971 | | | | | | 34,155 | | | | | | 181,937 | | | | | | 582 | | | | | | 518,112 | | |
| | | 2016 | | | | | | 211,174 | | | | | | 84,529 | | | | | | 46,491 | | | | | | 121,827 | | | | | | 521 | | | | | | 464,542 | | | ||
| | | 2015 | | | | | | 183,779 | | | | | | Nil | | | | | | 65,405 | | | | | | 49,840 | | | | | | 357 | | | | | | 299,381 | | | ||
Warren Varga
|
| | | | 2017 | | | | | | 215,617 | | | | | | 68,728 | | | | | | 28,637 | | | | | | 150,127 | | | | | | 2,239 | | | | | | 465,348 | | |
| | | 2016 | | | | | | 207,860 | | | | | | 70,313 | | | | | | 38,672 | | | | | | 104,744 | | | | | | 1,994 | | | | | | 423,583 | | | ||
| | | 2015 | | | | | | 215,060 | | | | | | Nil | | | | | | 77,783 | | | | | | 51,431 | | | | | | 1,370 | | | | | | 345,644 | | | ||
Peter McRae
|
| | | | 2017 | | | | | | 202,141 | | | | | | 63,674 | | | | | | 26,531 | | | | | | 133,847 | | | | | | 1,886 | | | | | | 428,079 | | |
| | | 2016 | | | | | | 191,288 | | | | | | 63,750 | | | | | | 35,063 | | | | | | 97,240 | | | | | | 1,679 | | | | | | 389,020 | | | ||
| | | 2015 | | | | | | 183,779 | | | | | | Nil | | | | | | 66,553 | | | | | | 49,840 | | | | | | 1,154 | | | | | | 301,326 | | | ||
Shawn Wilson
|
| | | | 2017 | | | | | | 154,012 | | | | | | 34,162 | | | | | | 14,234 | | | | | | 75,879 | | | | | | 582 | | | | | | 278,869 | | |
| | | 2016 | | | | | | 56,818 | | | | | | 11,932 | | | | | | 4,972 | | | | | | 25,158 | | | | | | 19,167 | | | | | | 118,047 | | |
| | |
OPTION-BASED AWARDS
|
| |
SHARE-BASED AWARDS
|
| ||||||||||||||||||||||||||||||||||||
Name
|
| |
Number of
securities underlying unexercised options (#) |
| |
Option
exercise price C($) |
| |
Option
expiration date |
| |
Value of
unexercised in-the-money (1) options C($) |
| |
Number of
shares or units of shares that have not vested (#) |
| |
Market or
payout value of share-based awards that have not vested C($) |
| |
Market or
payout value of vested share-based awards not paid out or distributed C($) (2) |
| |||||||||||||||||||||
Darren Blasutti
|
| | | | 83,333 | | | | | | 2.34 | | | | | | 30/01/2018 | | | | | | 186,666 | | | | | | Nil | | | | | | Nil | | | | | | 353,109 | | |
| | | 166,666 | | | | | | 2.04 | | | | | | 23/02/2019 | | | | | | 423,332 | | | | | | | | | | | | | | | | | | | | | ||
| | | 200,000 | | | | | | 3.85 | | | | | | 13/01/2020 | | | | | | 146,000 | | | | | | | | | | | | | | | | | | | | | ||
Daren Dell
|
| | | | 50,000 | | | | | | 2.34 | | | | | | 30/01/2018 | | | | | | 112,000 | | | | | | Nil | | | | | | Nil | | | | | | 163,437 | | |
| | | 83,333 | | | | | | 2.04 | | | | | | 23/02/2019 | | | | | | 211,666 | | | | | | | | | | | | | | | | | | | | | ||
| | | 125,000 | | | | | | 3.85 | | | | | | 13/01/2020 | | | | | | 91,250 | | | | | | | | | | | | | | | | | | | | | ||
Warren Varga
|
| | | | 50,000 | | | | | | 2.34 | | | | | | 30/01/2018 | | | | | | 112,000 | | | | | | Nil | | | | | | Nil | | | | | | 171,636 | | |
| | | 83,333 | | | | | | 2.04 | | | | | | 23/02/2019 | | | | | | 211,666 | | | | | | | | | | | | | | | | | | | | | ||
| | | 90,000 | | | | | | 3.85 | | | | | | 13/01/2020 | | | | | | 65,700 | | | | | | | | | | | | | | | | | | | | | ||
Peter McRae
|
| | | | 16,666 | | | | | | 2.34 | | | | | | 30/01/2018 | | | | | | 37,332 | | | | | | Nil | | | | | | Nil | | | | | | 149,555 | | |
| | | 83,333 | | | | | | 2.04 | | | | | | 23/02/2019 | | | | | | 211,666 | | | | | | | | | | | | | | | | | | | | | ||
| | | 75,000 | | | | | | 3.85 | | | | | | 13/01/2020 | | | | | | 54,750 | | | | | | | | | | | | | | | | | | | | | ||
Shawn Wilson
|
| | | | 50,000 | | | | | | 3.85 | | | | | | 13/01/2020 | | | | | | 36,500 | | | | | | Nil | | | | | | Nil | | | | | | 8,977 | | |
Name
|
| |
Option-based
awards-Value vested during the year (1) C($) |
| |
Share-based awards-Value
vested during the year (2) C($) |
| |
Non-equity incentive plan
compensation-Value earned during the year (3) C($) |
| ||||||
Darren Blasutti
|
| | | | 200,555 | | | |
258,171 (cash or share settled)
|
| | | | 209,625 | | |
Daren Dell
|
| | | | 106,001 | | | |
119,495 (cash or share settled)
|
| | | | 106,448 | | |
Warren Varga
|
| | | | 106,001 | | | |
125,492 (cash or share settled)
|
| | | | 89,250 | | |
Peter McRae
|
| | | | 106,001 | | | |
109,349 (cash or share settled)
|
| | | | 82,688 | | |
Shawn Wilson
|
| | | | Nil | | | |
6,563 (cash or share settled)
|
| | | | 44,363 | | |
Name
|
| |
Cash
(1)
($) |
| |
Equity
(2)
($) |
| |
Pension/
NQDC ($) |
| |
Perquisites/
Benefits (3) ($) |
| |
Tax
Reimbursement ($) |
| |
Other
($) |
| |
Total
($) |
| |||||||||||||||||||||
Stephen Alfers
|
| | | | 1,700,000 | | | | | | 345,400 | | | | | | Nil | | | | | | Nil | | | | | | Nil | | | | | | Nil | | | | | | 2,045,400 | | |
Eric Alexander
|
| | | | 405,000 | | | | | | Nil | | | | | | Nil | | | | | | 44,477 | | | | | | Nil | | | | | | Nil | | | | | | 449,477 | | |
Debra Struhsacker
|
| | | | Nil | | | | | | Nil | | | | | | Nil | | | | | | Nil | | | | | | Nil | | | | | | Nil | | | | | | Nil | | |
| | |
Pershing Gold NASDAQ
(US Dollars) |
| |
Pershing Gold TSX
(Canadian Dollars) |
| ||||||||||||||||||||||||||||||
| | |
High
|
| |
Low
|
| |
Dividends
Declared |
| |
High
|
| |
Low
|
| |
Dividends
Declared |
| ||||||||||||||||||
2018 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
First Quarter
|
| | | $ | 2.58 | | | | | $ | 1.91 | | | | | $ | — | | | | | $ | 3.20 | | | | | $ | 2.32 | | | | | $ | — | | |
Second Quarter
|
| | | $ | 2.11 | | | | | $ | 1.79 | | | | | $ | — | | | | | $ | 2.65 | | | | | $ | 2.33 | | | | | $ | — | | |
Third Quarter
|
| | | $ | 1.88 | | | | | $ | 0.80 | | | | | $ | — | | | | | $ | 2.37 | | | | | $ | 1.06 | | | | | $ | — | | |
2017 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
First Quarter
|
| | | $ | 3.49 | | | | | $ | 2.67 | | | | | $ | — | | | | | $ | 4.74 | | | | | $ | 3.66 | | | | | $ | — | | |
Second Quarter
|
| | | $ | 3.06 | | | | | $ | 2.60 | | | | | $ | — | | | | | $ | 4.15 | | | | | $ | 3.55 | | | | | $ | — | | |
Third Quarter
|
| | | $ | 3.31 | | | | | $ | 2.70 | | | | | $ | — | | | | | $ | 4.05 | | | | | $ | 3.44 | | | | | $ | — | | |
Fourth Quarter
|
| | | $ | 3.23 | | | | | $ | 2.26 | | | | | $ | — | | | | | $ | 4.02 | | | | | $ | 2.90 | | | | | $ | — | | |
2016 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
First Quarter
|
| | | $ | 4.99 | | | | | $ | 3.12 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Second Quarter
|
| | | $ | 4.65 | | | | | $ | 3.62 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Third Quarter
|
| | | $ | 5.02 | | | | | $ | 3.77 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Fourth Quarter
|
| | | $ | 4.58 | | | | | $ | 3.10 | | | | | $ | — | | | | | $ | 5.52 | | | | | $ | 4.20 | | | | | $ | — | | |
| | |
Americas Silver
NYSE American (US Dollars) |
| |
Americas Silver
TSX (Canadian Dollars) |
| ||||||||||||||||||||||||||||||
| | |
High
|
| |
Low
|
| |
Dividends
Declared |
| |
High
|
| |
Low
|
| |
Dividends
Declared |
| ||||||||||||||||||
2018 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
First Quarter
|
| | | $ | 4.65 | | | | | $ | 3.20 | | | | | $ | — | | | | | $ | 5.74 | | | | | $ | 4.16 | | | | | $ | — | | |
Second Quarter
|
| | | $ | 4.30 | | | | | $ | 2.94 | | | | | $ | — | | | | | $ | 5.37 | | | | | $ | 3.91 | | | | | $ | — | | |
Third Quarter
|
| | | $ | 3.58 | | | | | $ | 2.05 | | | | | $ | — | | | | | $ | 4.21 | | | | | $ | 2.72 | | | | | $ | — | | |
2017 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
First Quarter
|
| | | $ | 3.65 | | | | | $ | 2.80 | | | | | $ | — | | | | | $ | 4.76 | | | | | $ | 3.42 | | | | | $ | — | | |
Second Quarter
|
| | | $ | 3.20 | | | | | $ | 2.54 | | | | | $ | — | | | | | $ | 4.35 | | | | | $ | 3.50 | | | | | $ | — | | |
Third Quarter
|
| | | $ | 5.04 | | | | | $ | 2.50 | | | | | $ | — | | | | | $ | 6.11 | | | | | $ | 3.20 | | | | | $ | — | | |
Fourth Quarter
|
| | | $ | 4.82 | | | | | $ | 3.11 | | | | | $ | — | | | | | $ | 5.96 | | | | | $ | 4.02 | | | | | $ | — | | |
2016 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
First Quarter
|
| | | $ | 2.30 | | | | | $ | 0.48 | | | | | $ | — | | | | | $ | 0.245 | | | | | $ | 0.085 | | | | | $ | — | | |
Second Quarter
|
| | | $ | 3.84 | | | | | $ | 2.04 | | | | | $ | — | | | | | $ | 0.395 | | | | | $ | 0.220 | | | | | $ | — | | |
Third Quarter
|
| | | $ | 4.46 | | | | | $ | 2.76 | | | | | $ | — | | | | | $ | 0.480 | | | | | $ | 0.295 | | | | | $ | — | | |
Fourth Quarter
|
| | | $ | 3.18 | | | | | $ | 2.04 | | | | | $ | — | | | | | $ | 3.70 | | | | | $ | 0.225 | | | | | $ | — | | |
| | |
Americas Silver
NYSE American |
| |
Americas Silver TSX
(Canadian Dollars) |
|||||||||||||||||
Annual
|
| |
High
|
| |
Low
|
| |
High
|
| |
Low
|
|||||||||||
2018 (January 1 to November 2)
|
| | | $ | 4.65 | | | | | $ | 2.00 | | | | | $ | 5.74 | | | | | $ | 2.62 |
2017
|
| | | $ | 5.04 | | | | | $ | 2.48 | | | | | $ | 6.11 | | | | | $ | 3.22 |
2016
|
| | | $ | 4.46 | | | | | $ | 0.48 | | | | | $ | 3.70 | | | | | $ | 0.085 |
2015
|
| | | $ | 2.78 | | | | | $ | 0.72 | | | | | $ | — | | | | | $ | — |
2014
|
| | | $ | 4.62 | | | | | $ | 1.85 | | | | | $ | 0.670 | | | | | $ | 0.285 |
Last Six Months | | | | | | | | | | | | | | | | | | | | | | | |
October
|
| | | $ | 2.63 | | | | | $ | 2.00 | | | | | $ | 3.44 | | | | | $ | 2.62 |
September
|
| | | $ | 2.60 | | | | | $ | 2.05 | | | | | $ | 3.33 | | | | | $ | 2.72 |
August
|
| | | $ | 2.70 | | | | | $ | 2.08 | | | | | $ | 3.39 | | | | | $ | 2.80 |
July
|
| | | $ | 3.31 | | | | | $ | 2.60 | | | | | $ | 4.21 | | | | | $ | 3.38 |
June
|
| | | $ | 3.58 | | | | | $ | 2.94 | | | | | $ | 4.63 | | | | | $ | 3.91 |
May
|
| | | $ | 3.91 | | | | | $ | 3.44 | | | | | $ | 5.03 | | | | | $ | 4.43 |
Date Issued/Granted
|
| |
Number of
Securities |
| |
Security
|
| |
Price Per
Security |
| ||||||
November 27, 2017
|
| | | | 409,203 | | | | Common shares from exercise of warrants | | | | | 2.76 | | |
January 2, 2018
|
| | | | 1,330,000 | | | | Options | | | | | 4.58 | | |
January 19, 2018
|
| | | | 30,680 | | | | Common shares from exercise of warrants | | | | | 4.20 | | |
January 19, 2018
|
| | | | 7,670 | | | | Warrants | | | | | 4.68 | | |
January 25, 2018
|
| | | | 40,000 | | | | Options | | | | | 5.55 | | |
February 1, 2018
|
| | | | 8,333 | | | | Common shares from exercise of options | | | | | 2.34 | | |
February 2, 2018
|
| | | | 395,486 | | | | Common shares from exercise of warrants | | | | | 1.56 | | |
April 24, 2018
|
| | | | 3,500 | | | | Common shares from exercise of options | | | | | 2.04 | | |
April 26, 2018
|
| | | | 40,000 | | | | Common shares from exercise of options | | | | | 2.04 | | |
April 26, 2018
|
| | | | 391,664 | | | | Common shares from exercise of options | | | | | 2.34 | | |
May 14, 2018
|
| | | | 4,635 | | | | Common shares from exercise of warrants | | | | | 2.16 | | |
May 15, 2018
|
| | | | 276,128 | | | | Common shares from exercise of warrants | | | | | 4.20 | | |
May 15, 2018
|
| | | | 69,032 | | | | Warrants | | | | | 4.68 | | |
May 15, 2018
|
| | | | 25,000 | | | | Options | | | | | 4.72 | | |
May 25, 2018
|
| | | | 6,944 | | | | Common shares from exercise of options | | | | | 2.04 | | |
June 7, 2018
|
| | | | 30,680 | | | | Common shares from exercise of warrants | | | | | 4.20 | | |
June 7, 2018
|
| | | | 7,670 | | | | Warrants | | | | | 4.68 | | |
June 8, 2018
|
| | | | 276,128 | | | | Common shares from exercise of warrants | | | | | 4.20 | | |
June 8, 2018
|
| | | | 69,032 | | | | Warrants | | | | | 4.68 | | |
June 18, 2018
|
| | | | 2,291 | | | | Common shares from exercise of warrants | | | | | 3.00 | | |
June 28, 2018
|
| | | | 4,625 | | | | Common shares from exercise of warrants | | | | | 3.00 | | |
August 8, 2018
|
| | | | 24,531 | | | | Common shares from exercise of warrants | | | | | 1.56 | | |
August 22, 2018
|
| | | | 41,666 | | | | Common shares from exercise of warrants | | | | | 3.00 | | |
August 24, 2018
|
| | | | 39,583 | | | | Common shares from exercise of warrants | | | | | 3.00 | | |
September 12, 2018
|
| | | | 17,133 | | | | Common shares from exercise of options | | | | | 2.04 | | |
September 13, 2018
|
| | | | 3,700 | | | | Common shares from exercise of options | | | | | 2.04 | | |
October 1, 2018
|
| | | | 1,074,999 | | | | Warrants | | | | | 3.12 | | |
| | |
Americas
Silver Corporation |
| |
Pershing
Gold Corporation |
| |
Notes
|
| |
Pro Forma
Adjustments |
| |
Pro Forma
Consolidated |
| ||||||||||||
Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current assets
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 3,111 | | | | | $ | 1,986 | | | | | | | | $ | — | | | | | $ | 5,097 | | |
Trade and other receivables
|
| | | | 5,646 | | | | | | — | | | | | | | | | — | | | | | | 5,646 | | |
Inventories
|
| | | | 8,250 | | | | | | — | | | | | | | | | — | | | | | | 8,250 | | |
Prepaid expenses
|
| | | | 1,774 | | | | | | 649 | | | | | | | | | — | | | | | | 2,423 | | |
Forward contracts
|
| | | | 263 | | | | | | — | | | | | | | | | — | | | | | | 263 | | |
| | | | | 19,044 | | | | | | 2,635 | | | | | | | | | — | | | | | | 21,679 | | |
Non-current assets
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Restricted cash
|
| | | | 709 | | | | | | 3,771 | | | | | | | | | — | | | | | | 4,480 | | |
Property, plant and equipment
|
| | | | 106,048 | | | | | | 26,578 | | | |
3a) 3b)
|
| | | | 37,536 | | | | | | 170,162 | | |
Total assets
|
| | | $ | 125,801 | | | | | $ | 32,984 | | | | | | | | $ | 37,536 | | | | | $ | 196,321 | | |
Liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current liabilities
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Trade and other payables
|
| | | $ | 10,410 | | | | | $ | 1,597 | | | |
3c) 3d)
|
| | | $ | 6,205 | | | | | $ | 18,212 | | |
Pre-payment facility
|
| | | | 5,355 | | | | | | — | | | | | | | | | — | | | | | | 5,355 | | |
| | | | | 15,765 | | | | | | 1,597 | | | | | | | | | 6,205 | | | | | | 23,567 | | |
Non-current liabilities
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Other long-term liabilities
|
| | | | 735 | | | | | | — | | | | | | | | | — | | | | | | 735 | | |
Pre-payment facility
|
| | | | 6,875 | | | | | | — | | | | | | | | | — | | | | | | 6,875 | | |
Post-employment benefit obligations
|
| | | | 8,631 | | | | | | — | | | | | | | | | — | | | | | | 8,631 | | |
Decommissioning provision
|
| | | | 3,850 | | | | | | 990 | | | | | | | | | — | | | | | | 4,840 | | |
Deferred tax liabilities
|
| | | | 236 | | | | | | — | | | | | | | | | — | | | | | | 236 | | |
Total liabilities
|
| | | | 36,092 | | | | | | 2,587 | | | | | | | | | 6,205 | | | | | | 44,884 | | |
Equity | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Share capital
|
| | | | 212,498 | | | | | | 3 | | | |
3e) 3f) 3g) 3h)
|
| | | | 68,225 | | | | | | 280,726 | | |
Equity reserve
|
| | | | 34,629 | | | | | | 212,558 | | | |
3e)
|
| | | | (212,558 ) | | | | | | 34,629 | | |
Foreign currency translation reserve
|
| | | | 6,458 | | | | | | — | | | | | | | | | — | | | | | | 6,458 | | |
Deficit
|
| | | | (163,876 ) | | | | | | (182,164 ) | | | |
3c) 3e)
|
| | | | 175,664 | | | | | | (170,376 ) | | |
Total equity
|
| | | | 89,709 | | | | | | 30,397 | | | | | | | | | 31,331 | | | | | | 151,437 | | |
Total liabilities and equity
|
| | | $ | 125,801 | | | | | $ | 32,984 | | | | | | | | $ | 37,536 | | | | | $ | 196,321 | | |
|
| | |
Americas
Silver Corporation |
| |
Pershing
Gold Corporation |
| |
Notes
|
| |
Pro Forma
Adjustments |
| |
Pro Forma
Consolidated |
| ||||||||||||
Revenue
|
| | | $ | 49,468 | | | | | $ | — | | | | | | | | $ | — | | | | | $ | 49,468 | | |
Cost of sales
|
| | | | (37,943 ) | | | | | | — | | | | | | | | | — | | | | | | (37,943 ) | | |
Depletion and amortization
|
| | | | (7,044 ) | | | | | | (737 ) | | | | | | | | | — | | | | | | (7,781 ) | | |
Care, maintenance and restructuring costs
|
| | | | (990 ) | | | | | | — | | | | | | | | | — | | | | | | (990 ) | | |
Corporate general and administrative expenses
|
| | | | (5,227 ) | | | | | | (7,672 ) | | | | | | | | | — | | | | | | (12,899 ) | | |
Exploration costs
|
| | | | (2,528 ) | | | | | | (3,047 ) | | | | | | | | | — | | | | | | (5,575 ) | | |
Accretion on decommissioning provision
|
| | | | (144 ) | | | | | | (26 ) | | | | | | | | | — | | | | | | (170 ) | | |
Interest and financing income (expense)
|
| | | | (746 ) | | | | | | 12 | | | | | | | | | — | | | | | | (734 ) | | |
Foreign exchange loss
|
| | | | (271 ) | | | | | | (2 ) | | | | | | | | | — | | | | | | (273 ) | | |
Gain on disposal of assets
|
| | | | 870 | | | | | | — | | | | | | | | | — | | | | | | 870 | | |
Gain on forward contracts
|
| | | | 857 | | | | | | — | | | | | | | | | — | | | | | | 857 | | |
Write-down of equipment
|
| | | | (65 ) | | | | | | — | | | | | | | | | — | | | | | | (65 ) | | |
Contingency on value added taxes
|
| | | | (125 ) | | | | | | — | | | | | | | | | — | | | | | | (125 ) | | |
Loss before income taxes
|
| | | | (3,888 ) | | | | | | (11,472 ) | | | | | | | | | — | | | | | | (15,360 ) | | |
Income tax recovery
|
| | | | 10 | | | | | | — | | | | | | | | | — | | | | | | 10 | | |
Net loss
|
| | | | (3,878 ) | | | | | | (11,472 ) | | | | | | | | | — | | | | | | (15,350 ) | | |
Preferred deemed dividend
|
| | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | |
Net loss available to common shareholders
|
| | | $ | (3,878 ) | | | | | $ | (11,472 ) | | | | | | | | $ | — | | | | | $ | (15,350 ) | | |
Loss per share | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted
|
| | | | (0.09 ) | | | | | | (0.34 ) | | | | | | | | | | | | | | | (0.23 ) | | |
Weighted average number of common shares outstanding
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted
|
| | | | 42,424,147 | | | | | | 33,618,007 | | | | | | | | | | | | | | | 66,503,145 | | |
| | |
Americas
Silver Corporation |
| |
Pershing
Gold Corporation |
| |
Notes
|
| |
Pro Forma
Adjustments |
| |
Pro Forma
Consolidated |
| |||||||||||||||
Revenue
|
| | | $ | 54,280 | | | | | $ | — | | | | | | | | | | | $ | — | | | | | $ | 54,280 | | |
Cost of sales
|
| | | | (40,038 ) | | | | | | — | | | | | | | | | | | | — | | | | | | (40,038 ) | | |
Depletion and amortization
|
| | | | (6,709 ) | | | | | | (1,072 ) | | | | | | | | | | | | — | | | | | | (7,781 ) | | |
Care, maintenance and restructuring costs
|
| | | | (701 ) | | | | | | — | | | | | | | | | | | | — | | | | | | (701 ) | | |
Corporate general and administrative expenses
|
| | | | (6,651 ) | | | | | | (10,394 ) | | | | | | | | | | | | — | | | | | | (17,045 ) | | |
Exploration costs
|
| | | | (2,726 ) | | | | | | (1,220 ) | | | | | | | | | | | | — | | | | | | (3,946 ) | | |
Accretion on decommissioning provision
|
| | | | (185 ) | | | | | | (39 ) | | | | | | | | | | | | — | | | | | | (224 ) | | |
Interest and financing expense
|
| | | | (723 ) | | | | | | (360 ) | | | | | | | | | | | | — | | | | | | (1,083 ) | | |
Foreign exchange loss
|
| | | | (225 ) | | | | | | (10 ) | | | | | | | | | | | | — | | | | | | (235 ) | | |
Loss on available-for-sale investment
|
| | | | (11 ) | | | | | | — | | | | | | | | | | | | — | | | | | | (11 ) | | |
Write-down of equipment
|
| | | | (204 ) | | | | | | — | | | | | | | | | | | | — | | | | | | (204 ) | | |
Loss before income taxes
|
| | | | (3,893 ) | | | | | | (13,095 ) | | | | | | | | | | | | — | | | | | | (16,988 ) | | |
Income tax recovery
|
| | | | 427 | | | | | | — | | | | | | | | | | | | — | | | | | | 427 | | |
Net loss
|
| | | | (3,466 ) | | | | | | (13,095 ) | | | | | | | | | | | | — | | | | | | (16,561 ) | | |
Preferred deemed dividend
|
| | | | — | | | | | | (1,069 ) | | | | | | 3i ) | | | | | | 1,069 | | | | | | — | | |
Net loss available to common shareholders
|
| | | $ | (3,466 ) | | | | | $ | (14,164 ) | | | | | | | | | | | $ | 1,069 | | | | | $ | (16,561 ) | | |
Loss per share | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted
|
| | | | (0.09 ) | | | | | | (0.50 ) | | | | | | | | | | | | | | | | | | (0.26 ) | | |
Weighted average number of common shares outstanding
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted
|
| | | | 40,194,660 | | | | | | 28,567,344 | | | | | | | | | | | | | | | | | | 64,273,658 | | |
|
Non-diluted Pershing Gold common shares outstanding, September 30, 2018
|
| | | | 33,676,921 |
|
Implicit share exchange ratio
|
| | | | 0.715 |
|
Americas Silver common shares to be exchanged for Pershing Gold common shares
|
| | | | 24,078,998 |
|
Americas Silver common share price, September 30, 2018
|
| | | | 2.36 |
|
Total common share consideration
|
| | | | 56,826 |
|
Consideration of Pershing Gold preferred shares
|
| | | | 9,742 |
|
Consideration of Pershing Gold RSUs
|
| | | | 1,660 |
|
Consideration of Pershing Gold options
|
| | | | — |
|
Consideration of Pershing Gold warrants
|
| | | | — |
|
Total consideration (in thousands of U.S. dollars)
|
| | | $ | 68,228 |
|
| | |
Preliminary purchase
price allocation |
| |||
Cash and cash equivalents
|
| | | $ | 1,986 | | |
Prepaid expenses
|
| | | | 649 | | |
Restricted cash
|
| | | | 3,771 | | |
Property, plant and equipment
|
| | | | 64,114 | | |
Trade and other payables
|
| | | | (1,302 ) | | |
Decommissioning provision
|
| | | | (990 ) | | |
Net assets acquired
|
| | | $ | 68,228 | | |
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|
Authorized Capital Stock
|
| |
The authorized capital stock of Pershing Gold consists of (i) 200,000,000 shares of Pershing Gold Common Stock, $0.0001 par value per share, and (ii) 50,000,000 preferred shares, $0.0001 par value per share.
Under the Pershing Gold Articles, Pershing Gold’s board of directors has the authority to issue one or more series of preferred stock with designations, voting powers, preferences and rights, and any qualifications, restrictions or limitations thereof, as the board of directors may determine.
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| |
The authorized share capital of Americas Silver consists of an unlimited number of Americas Silver Common Shares without par value.
Under the CBCA, the rights attaching to Americas Silver Common Shares may be varied only through an amendment to Americas Silver’s Articles authorized by a special resolution of the Americas Silver Shareholders.
Under the CBCA, the existing shareholders of Americas Silver have the authority to create new classes of shares, including classes of shares with equal, superior or inferior rights to the outstanding classes of shares, with such rights, privileges, restrictions or conditions attached to such shares as approved by the shareholders voting thereon.
In connection with the Transactions, Americas Silver intends, subject to the requisite approval by Americas Silver shareholders to amend the Americas Silvers Articles to create and authorize the issuance of a new class of non-voting convertible preferred shares.
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Outstanding Capital Stock
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| |
Pershing Gold has outstanding one class of common stock and one class of preferred stock. Holders of shares of Pershing Gold Common Stock and Series E Preferred Stock are entitled to all of the respective rights and obligations provided to common stockholders under Nevada law, the Pershing Gold Articles, and the Pershing Gold Bylaws.
As of November 2, there were (i) 33,676,921 shares of Pershing Gold Common Stock outstanding and (ii) 8,946 shares of Series E Preferred Stock outstanding.
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| |
Americas Silver has outstanding one class of common shares carrying one vote per share and one class of preferred shares carrying no votes per share. Holders of Americas Silver Common Shares and preferred shares are entitled to all of the respective rights and obligations provided to shareholders under the CBCA, the Americas Silver Articles, and the Americas Silver Bylaws.
As of October 31, 2018, there were 43,094,657 Americas Silver Common Shares outstanding.
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Voting Rights
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| |
Each holder of Pershing Gold Common Stock is entitled to receive notice of and attend all meetings of Pershing Gold Stockholders and shall have one vote for each share of Pershing Gold Common Stock held at all meetings of Pershing Gold Stockholders that such stockholders are entitled to vote. Also see “
The Special Meeting of Pershing Gold Stockholders — Pershing Gold Record Date; Shares Entitled to Vote
” beginning on page
53
.
The Pershing Gold Bylaws provide that any action that may be taken at any annual or stockholders meeting may be taken without a meeting, prior notice or a vote if a consent in writing, setting forth the actions so taken, is signed by the stockholders holding shares not less than the number required to authorize such action at a meeting in which all stockholders entitled to vote thereon are present and voted.
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| |
Each holder of Americas Silver Common Shares is entitled to receive notice of and attend all meetings of Americas Silver Shareholders (other than meetings at which only holders of another specified class or series of shares are entitled to vote separately as a class or series) and shall have one vote for each Americas Silver Common Share held at all such meetings.
Except as required by law, including the CBCA, or in accordance with any voting rights which may from time to time be attached to any series of preferred shares, holders of the Americas Silver Preferred Shares will not be entitled to receive notice of, to attend or to vote at any meeting of the Americas Silver Shareholders, provided that the rights, privileges, restrictions and conditions attached to the Americas Silver Preferred Shares as a class may be added to, changed or removed only with the approval of the holders of the Americas Silver Preferred Shares given in such manner as may then be required by law, at a meeting of the holders of the Americas Silver Preferred Shares duly called for that purpose.
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Dividend Rights
|
| |
Under NRS Section 78.288, Pershing Gold may make distributions to its stockholders if after payment of such distribution:
•
Pershing Gold would be able to pay its debts as they become due in the usual course of business; and
•
Pershing Gold’s total assets would not be less than the sum of its total liabilities plus the amount that would be needed, if Pershing Gold were to be dissolved at the time of distribution, to satisfy the preferential rights upon dissolution of stockholders whose preferential rights are superior to those receiving the distribution.
The Pershing Gold Certificate of Designation contains the following
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| |
Subject to compliance with the CBCA, the Americas Silver Articles and the Americas Silver Bylaws, dividends may be declared at the discretion of the board of directors. Under the CBCA, a corporation shall not declare or pay a dividend if there are reasonable grounds for believing that (1) the corporation is, or would after the payment be, unable to pay its liabilities as they become due or (2) the realizable value of the corporation’s assets would thereby be less than the aggregate of its liabilities and stated capital of all classes of the corporation’s shares.
Following the amendment to the Americas Silvers Articles to create the Americas Silver Preferred Shares, the Americas Silver Articles are expected to provide that dividends may be declared at the discretion of the board of directors, provided that no dividend shall be declared, paid or set aside with
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| | | | restriction on the payment of dividends: Pershing Gold shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of Pershing Gold (other than dividends on shares of Pershing Gold Common Stock payable in shares of Pershing Gold Common Stock) unless the stockholders of the Series E Preferred Stock then outstanding shall simultaneously receive, a dividend on each outstanding share of Series E Preferred Stock in an amount equal to (i) in the case of a dividend on Pershing Gold Common Stock or any class or series that is convertible into Pershing Gold Common Stock, that dividend per share of Series E Preferred Stock as would equal the product of (A) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Pershing Gold Common Stock and (B) the number of shares of Pershing Gold Common Stock issuable upon conversion of a share of Series E Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend, or (ii) in the case of a dividend on any class or series that is not convertible into Pershing Gold Common Stock, at a rate per share of Series E Preferred Stock determined by (A) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (B) multiplying such fraction by an amount equal to the Pershing Gold Series E Original Issue Price ($990.00 per share, subject to adjustment), provided that, if Pershing Gold declares, pays or sets aside, on the same date, a dividend on shares of more than one class or | | | respect to the Americas Silver Common Shares or any class or series of shares convertible into Americas Silver Common Shares (other than dividends on the Americas Silver Common Shares paid in Americas Silver Common Shares) unless the holders of the Americas Silver Preferred Shares shall first receive, or simultaneously receive, a dividend on each outstanding Americas Silver Preferred Share in an amount at least equal to the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Americas Silver Common Shares. | |
| | | | series of capital stock of Pershing Gold, the dividend payable to the holders of Series E Preferred Stock shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Series E Preferred Stock dividend. | | | | |
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Size of the Board of Directors
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| |
The Pershing Gold Articles provide that the Pershing Gold board of directors must be comprised of a minimum of one director.
The Pershing Gold Bylaws provide that the Pershing Gold board of directors will consist of not less than one director, with the current number of directors being fixed from time to time by resolution of the Pershing Gold board of directors or the Pershing Gold Stockholders. The current number of directors of Pershing Gold is four.
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| |
Americas Silver’s Articles stipulate that the board of directors shall be composed of a minimum of three and a maximum of nine directors. The actual number of directors, within that range, is determined by the board of directors from time to time. The CBCA provides that any amendment to increase or decrease this minimum or maximum number of directors requires the approval of shareholders of Americas Silver by special resolution. A “special resolution” is a resolution passed by a majority of not less than two-thirds of the votes cast by the shareholders entitled to vote on the resolution or signed by all of the shareholders entitled to vote on the resolution.
Americas Silver’ board of directors currently has eight members. Pursuant to the terms of the Merger Agreement, the combined company’s board of directors will be comprised of nine directors. See “
Proposal One — The Transaction — Board of Directors and Management After the Transaction
” beginning on page
80
.
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Classification of the Board of Directors
|
| | The Pershing Gold Articles and Pershing Gold Bylaws do not classify the Pershing Gold board of directors into separate classes with staggered terms. | | | The CBCA provides that directors may be elected for a term expiring not later than the close of the third annual meeting of shareholders following the election, and that staggered terms are permissible; however, the Americas Silver Bylaws provide that a director’s term of office shall be from the date of the meeting at which such director is elected or appointed until the close of the annual meeting of shareholders next following such director’s election or appointment or until such director’s successor is elected or appointed. If qualified, a director whose term of office has expired is eligible for re-election as a director. | |
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Election of Directors
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| | The Pershing Gold Bylaws provide that in the election of directors, stockholders may not cumulate votes (i.e., cast for any candidate a number of votes greater than the number of stockholder’s shares). Candidates receiving a plurality of votes will be elected as directors as long as the director nomination requirements and quorum requirements are met. Neither Nevada law nor the Pershing Gold Bylaws has a director residency requirement. | | |
The CBCA provide that directors will be elected by ordinary resolution of the shareholders present in person or represented by proxy at the meeting and entitled to vote at the first meeting of the of shareholders and at each succeeding annual meeting at which an election of directors is required.
Pursuant to the CBCA, at least 25 percent of the directors of a CBCA corporation must be resident Canadians, but where a CBCA corporation has less than four directors, at least one director must be a resident Canadian.
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Removal of Directors
|
| |
NRS Section 78.335 provides that Pershing Gold directors may be removed from office by the vote of stockholders representing not less than two-thirds of the voting power of the corporation. The Articles of Incorporation of a Nevada corporation may require a greater percentage of stockholders votes but may not require less.
Article II, Section 5 of the Pershing Gold bylaws states that directors may be removed by a majority of the voting power of the corporation. In such an instance, the NRS is the controlling authority.
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| |
Under the CBCA, unless the articles of a corporation provide for cumulative voting (which is not the case for Americas Silver), shareholders of the corporation may, by a majority of the votes cast at a meeting, remove any director or directors from office.
The CBCA provides that the shareholders of a corporation may by ordinary resolution at a special meeting remove any director or directors from office. An ordinary resolution under the CBCA requires the resolution to be passed, with or without amendment, at the meeting by at least a majority of the votes cast. The CBCA further provides that where the holders of any class or series of shares of a corporation have an exclusive right to elect one or more directors, a director so elected may only be removed by an ordinary resolution at a meeting of the shareholders of that class or series.
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Filling of Vacancies on the Board of Directors
|
| | Under the NRS, a majority of the directors in office can fill any vacancy or newly created directorship. The Pershing Gold Bylaws provide that vacancies in the board of directors may be filled by a majority of the remaining directors, even if less than a quorum, or by the sole remaining director. Each director so elected will hold office until the next annual meeting of the stockholders and until a successor has been elected and qualified. | | |
The CBCA generally allows a vacancy on the board of directors to be filled by a quorum of directors, except a vacancy resulting from an increase in the number or the minimum or maximum number of directors or a failure to elect the number or minimum number of directors provided for in the articles. Under the CBCA, a vacancy among directors created by the removal of a director by shareholders may be filled at a meeting of shareholders at which the director is removed.
In addition to the board’s ability to fill a vacancy among directors, the CBCA and the Americas Silver Articles authorize the board of directors to appoint one or more additional directors, who shall hold office for a term expiring not later than the close of the next annual meeting of shareholders, but the total number of directors so appointed may not exceed one-third of the number of directors elected at the previous annual meeting of shareholders.
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Ability to Call Special Meetings of Stockholders/Shareholders
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| |
Under the NRS, a special meeting of stockholders may be called by the board of directors, any two directors, the president or as otherwise provided in the articles of incorporation or bylaws of the corporation.
The Pershing Gold Bylaws provide that a special meeting of the stockholders may be called at any time by the board of directors or by any officer instructed by the board of directors to call such a meeting. Written notice of a special meeting must be given not less than ten nor more than sixty days before the date of the special meeting to each stockholder entitled to vote thereat
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| |
Under the CBCA, the Americas Silver board of directors may call a special meeting of shareholders at any time.
In addition, holders of not less than five percent of the outstanding shares of Americas Silver that carry the right to vote at a meeting sought to be held may requisition a shareholders meeting under the applicable provisions of the CBCA. The requisition must state the business to be transacted at the meeting. The Americas Silver board of directors must call a meeting of shareholders to transact the business stated in the requisition within 21 days of receiving the requisition; otherwise any requisitioning shareholder may call the meeting. The Americas Silver board of directors is not required to call a meeting upon receiving a requisition by a shareholder if (i) the business stated in the requisition is of a proscribed nature, (ii) a record date has already been fixed and notice provided in respect of a meeting, or (iii) the Americas Silver board of directors has
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| | | | | | | already called a meeting and given notice of such meeting | |
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Notice of Annual and Special Meetings of Stockholders/Shareholders
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| |
Under the NRS, the board of directors must call an annual meeting of stockholders to elect directors not later than 18 months after holding the last preceding annual meeting. If the board fails to do so, a stockholder or stockholders entitling them to exercise at least 15% of the voting power of the corporation may make application to the appropriate district court in Nevada to order the election of directors.
The Pershing Gold Bylaws provide that notice of meetings of stockholders must specify the place, date, and hour of the meeting, the means of remote communication, if any, by which stockholders may participate in such meeting, and, in the case of special meetings, the purpose or purposes for which the meeting is called. The notice of an annual meeting shall state that the meeting is called for the election of directors and for the transaction or other business which may properly come before the meeting, and shall (if any other action which could be taken at a special meeting is to be taken at such annual meeting) state the purposes. The notice must be given not less than ten days or more than sixty days before the date of the meeting.
For all annual and special meetings of stockholders, the Pershing Gold Bylaws provide that the stockholders of record entitled to vote shall be fixed by the board and such date shall be no more than sixty days and no less than ten days prior to the date of such meeting. For stockholder actions taken without a meeting, the board of directors may fix, by resolution, a record date, and if no record date has been fixed, the record date shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to Pershing Gold.
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Under the CBCA, the board of directors must call an annual meeting of shareholders not later than 15 months after holding the last preceding annual meeting but no later than six months after the end of the corporation’s preceding financial year.
Pursuant to the CBCA and the Americas Silver Bylaws, meetings of shareholders shall be held at such place within Canada as set forth in the Americas Silver Articles, or in the absence of such provision, at the place within Canada determined by the directors; provided, however, that a meeting of the Americas Silver Shareholders may be held at a place outside of Canada if all of the shareholders entitled to vote at such meeting agree that the meeting is to be held in such place.
Under the CBCA and the Americas Silver Bylaws, notice of the time and place of a meeting of Americas Silver Shareholders must be given not less than 21 days nor more than 60 days prior to the meeting to each director, to the auditor and to each shareholder entitled to vote at the meeting. In the case of a notice of a special meeting, the notice must also state the nature of the business to be transacted at the meeting and the text of any special resolution or bylaw to be submitted to the meeting.
Under the CBCA, the directors may fix in advance a date as the record date for the determination of shareholders entitled to receive notice of a meeting of shareholders, but the record date must not precede by more than 60 days or by less than 21 days the date on which the meeting is to be held. If no record date is fixed, the record date shall be at the close of business on the day immediately preceding the day on which notice is given or, if no notice is given, the day on which the meeting is held.
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Quorum of Stockholders/Shareholders
|
| | The Pershing Gold Bylaws provide that the presence, in person or by proxy, of the persons holding a majority of the outstanding shares of stock entitled to vote at any meeting of stockholders shall constitute a quorum for the transaction of business. | | | Under the Americas Silver Bylaws, two shareholders entitled to vote at such meeting, whether present in person or represented by proxy, and holding not less than 10% of the total number of the issued Americas Silver Common Shares shall constitute a quorum. | |
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Stockholder/Shareholder Action by Written Consent
|
| | The NRS provides that, except as otherwise stated in the articles of incorporation or bylaws, stockholders may act by written consent without a meeting. The Pershing Gold Bylaws provide that any action which may be taken at any annual or special meeting of stockholders may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, is signed by the stockholders holding shares not less than the number required to authorize such action at a meeting in which all stockholders entitled to vote thereon are present and voted. | | |
Under the CBCA, generally, shareholder action without a meeting may only be taken by written resolution signed by all shareholders who would be entitled to vote on the relevant issue at a meeting.
For a public company such as Americas Silver, this effectively means that all actions requiring shareholder approval must be taken at a duly convened shareholders’ meeting.
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Advance Notice Requirements for Director Nominations and Other Proposals by Stockholders/Shareholders
|
| | Neither the Pershing Gold Bylaws nor the NRS provide specific requirements regarding the submission of stockholder proposals with respect to the nomination of candidates for election to the board of directors or other proposed actions. | | |
Under the CBCA, shareholder proposals, including proposals with respect to the nomination of candidates for election to the board of directors, may be made by eligible registered or beneficial holders of shares entitled to vote at an annual meeting of shareholders so long as the proposal is submitted by shareholders holding voting shares equal to at least five percent of the total number of outstanding voting shares of the corporation or the proposal has the support of persons who in the aggregate own, directly or indirectly, such number of voting shares.
Under Americas Silver’s Bylaws, an eligible Americas Silver Shareholder wishing to nominate a director for election to the Americas Silver board of directors is required to provide notice to Americas Silver, in proper form, within the following time periods:
(i)
in the case of an annual meeting (including an annual and special meeting) of Americas Silver Shareholders, not less than 30 days
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| | | | | | |
prior to the date of the meeting; provided, however, that in the event that the meeting is to be held on a date that is less than 50 days after the date on which the first public announcement of the date of the meeting was made, notice of the nomination will be made not later than the close of business on the 10
th
day following the first public announcement of the date of the meeting; and
(ii)
in the case of a special meeting (which is not also an annual meeting) of Americas Silver Shareholders called for the purpose of electing directors (whether or not also called for other purposes), not later than the close of business on the 15
th
day following the day on which the first public announcement of the date of the meeting was made.
In order to be in proper form, the notice of nomination must include: (i) the name, age, business and residential address of the proposed nominee; (ii) the principal occupation or employment of the proposed nominee for the past 5 years; (iii) the status of such person as a “resident Canadian” as defined in the CBCA; (iv) the class or series and number of securities in the capital of Americas Silver that are controlled or directed or that are owned beneficially or of record by the person and his or her representatives as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice; (v) full particulars regarding any contract, agreement, arrangement, understanding or relationship, including without limitation financial, compensation and indemnity related arrangements, between the person or any of his or her representatives and the nominating shareholder or any of its representatives; (vi) whether the person is party to any existing or proposed arrangement with any
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|
| | | | | | | competitor of Americas Silver (or any of its affiliates) or any other third party which may give rise to a real or perceived conflict of interest between the interests of Americas Silver or any of its affiliates and the interest of the person so nominated; and (vii) any other information relating to the person that would be required to be disclosed in a dissident’s proxy circular in connection with a solicitation of proxies for election of directors pursuant to the CBCA and any applicable securities laws. | |
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Amendments to the Articles of Incorporation
|
| | NRS 78.390 provides that amendment of a corporation’s articles of incorporation requires a resolution from the board of directors and approval of the majority of the voting power. The Pershing Gold Articles may be amended if approved by the board of directors and the majority of the voting power of the corporation. | | | Under the CBCA, an amendment to the articles of incorporation generally requires approval by special resolution, being a resolution passed by a majority of not less than 66 2 ∕ 3 % of the votes cast, in person or by proxy, by the shareholders of the corporation who voted in respect of the resolution, and, if applicable, a separate special resolution of the holders of any separately affected class of shares in accordance with the provisions of the CBCA. | |
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Amendments to Bylaws
|
| |
Under the NRS, the directors of the corporation have the power, to adopt, amend and repeal the bylaws of a corporation.
The Pershing Gold Bylaws provide that the Pershing Gold board of directors or stockholders may adopt, amend or repeal the bylaws.
|
| | Under the CBCA, unless the articles, by-laws or a unanimous shareholder agreement otherwise provide, the board of directors of a corporation may make, amend or repeal by-lawsprovided that any such by-law, amendment or repeal of a by-law must be confirmed at the next meeting of shareholders by the affirmative vote of a majority of the shareholders entitled to vote thereat. Any by-law or amendment is effective when made by the board of directors but ceases to be effective if not confirmed by the shareholders. | |
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Mergers, Consolidations and Other Transactions
|
| |
Under the NRS, the board of directors and the holders of a majority of the voting power of the corporation (or such greater percentage as may be required by applicable law or the articles of incorporation) must approve a:
•
merger;
•
conversion;
|
| |
Under the CBCA, certain extraordinary corporate actions, such as:
•
amalgamations (other than with certain affiliated corporations);
•
continuances;
•
generally, amendments to the articles of the corporation, including to change its name;
|
|
| | | |
•
exchange;
•
sale, lease or exchange of all or substantially all of a corporation’s assets;
•
amendments to articles of incorporation; and
•
dissolution.
|
| |
•
sales, leases or exchanges of all, or substantially all, the property of a corporation other than in the ordinary course of business;
•
reductions of stated capital for any purpose, e.g., in connection with the payment of special distributions (subject, in certain cases, to the satisfaction of solvency tests); and
•
other extraordinary corporate actions such as liquidations, dissolutions and, if ordered by a court, arrangements;
are required to be approved by special resolution, being a resolution passed by a majority of not less than 66
2
∕
3
% of the votes cast, in person or by proxy, by the shareholders who voted in respect of the resolution at a meeting the Americas Silver Shareholders. In specified cases, a special resolution to approve an extraordinary corporate action is also required to be approved separately by the holders of a class or series of shares, including in certain cases a class or series of shares not otherwise carrying voting rights.
Rules or policies of certain Canadian securities regulatory authorities, including Multilateral Instrument 61-101 —
Protection of Minority Security Holders in Special Transactions
(“
MI 61- 101
”) contain requirements in connection with certain transactions involving a “related party,” including transactions by which an issuer, directly or indirectly, (i) acquires, sells, leases or transfers an asset; (ii) acquires or issues securities; (iii) combines; (iv) assumes or becomes subject to a liability; or (v) borrows money or lends money from, with or to, as the case may be, a related party. Under MI 61-101, a “related party” includes, among others, (i) directors and senior officers of the issuer, (ii) holders of voting securities of the issuer carrying more than 10% of the voting rights attached to all the issuer’s outstanding voting securities,
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and (iii) holders of a sufficient number of any securities of the issuer to materially affect control of the issuer.
MI 61-101 provides that, in connection with a “related party transaction” (in addition to any other required shareholder approval), Americas Silver is required, subject to the availability of certain exceptions, to: (i) provide specific disclosure in the proxy circular sent to securityholders in connection with a related party transaction where a meeting is required; (ii) obtain a formal valuation of the subject matter of the related party transaction and provide a summary thereof in the proxy circular; and (iii) obtain the approval of a majority of the votes cast by shareholders other than any related party that is an interested party in the transaction.
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Preemptive Rights of Stockholders/Shareholders
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| |
Under the NRS, stockholders of a corporation do not have preemptive rights to subscribe to an additional issue of stock or to any security convertible into such stock, unless such right is expressly included in the articles of incorporation. The Pershing Gold Articles do not include any provision in this regard with respect to the holders of shares of Pershing Gold Common Stock, and holders of Pershing Gold Common Stock do have such preemptive rights.
Also see “
Comparison of Rights of Series E Preferred Stockholders and Americas Silver Preferred Shareholders
” beginning on page
173
for a discussion of certain preemptive and subscription rights granted to holders of Series E Preferred Stock.
|
| | Under the CBCA, because the Americas Silver Articles do not provide for preemptive or subscription rights with respect to the holders of Americas Silver Common Shares, holders of Americas Silver Common Shares are not entitled to preemptive or subscription rights. | |
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Directors’ and Officers’ Liability and Indemnification
|
| | The NRS provides that directors and officers of a Nevada corporation are not personally liable for the debts or liabilities of the corporation unless the director or officer acts as the alter ego of the corporation. A director of a Nevada corporation may be liable to the corporation, and in certain circumstances, its creditors, for a distribution made in violation of Nevada law. | | | Under the CBCA, a corporation may indemnify a director or officer, a former director or officer or a person who acts or acted at the corporation’s request as a director or officer or an individual acting in a similar capacity for another entity (who are referred to in this summary as an “indemnifiable person”) against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, | |
| | | |
The Pershing Gold Bylaws provide that directors and officers of Pershing Gold have no personal liability to Pershing Gold or its stockholders for damages for breach of fiduciary duty as a director or officer, except for damages for breach of fiduciary duty resulting from (a) acts or omissions which involve intentional misconduct, fraud, or a knowing violation of law, or (b) payment of dividends in violation of NRS 78.3900.
The NRS provides that a corporation may indemnify any person against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding arising by reason of the fact that such person is or was a director, officer, employee or agent of, or serving as such at the request of, Pershing Gold.
Under the NRS, Pershing Gold is authorized to advance expenses to a person entitled to indemnification upon receipt of an undertaking from such person to reimburse the corporation if the person is ultimately determined not to be entitled to indemnification.
Under the NRS, Pershing Gold is authorized to purchase and maintain insurance on behalf of those persons against whom any liability may be asserted as set forth in NRS.
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| |
reasonably incurred by the indemnifiable person in any civil, criminal, administrative, investigative or other proceeding in which the person is involved because of that association, if:
•
the person acted honestly and in good faith with a view to the best interests of the corporation or other entity; and
•
in the case of a criminal or an administrative action enforceable by a monetary penalty, the person had reasonable grounds for believing the person’s conduct was lawful.
An indemnifiable person is also entitled to indemnity for reasonable defense costs and expenses if the person fulfills the above-mentioned requirements and was not judged to have committed any fault or omitted to do anything the person ought to have done.
A corporation may advance moneys to an indemnifiable person for the costs, charges and expenses of a proceeding provided that the indemnifiable person repays the moneys if he or she does not fulfill the above-mentioned requirements.
In the case of a derivative action, indemnity may be made only with court approval, if the indemnifiable person fulfills the above-mentioned requirements.
In addition, a corporation may purchase and maintain insurance for the benefit of an indemnifiable person against any liability incurred by such person whether in his or her capacity as a director or officer of the corporation or in his or her capacity as a director or officer of another entity if he or she acts or acted in that capacity at the corporation’s request.
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Oppression Remedy
|
| | The NRS does not provide for a similar remedy. | | | Under the CBCA, a “complainant” (as such term is defined in the CBCA) may apply to a court for leave to bring a derivative action in the name and on behalf of Americas Silver, or to intervene in an existing action to which | |
| | | | | | |
Americas Silver is a party, for the purpose of prosecuting, defending or discontinuing the action on behalf of Americas Silver. However, under the CBCA, no action may be brought and no intervention in an action may be made unless a court is satisfied that: (i) the complainant has given notice to the board of directors of Americas Silver of the complainant’s intention to apply to the court for such leave not less than 14 days before bringing the application if the board of directors of Americas Silver do not bring, diligently prosecute or defend or discontinue the action; (ii) the complainant is acting in good faith; and (iii) it appears to be in the interests of Americas Silver that the action be brought, prosecuted, defended or discontinued.
Under the CBCA, the court in a derivative action may make any order it determines to be appropriate, including, without limitation, (i) an order authorizing the complainant or any other person to control the conduct of the action, (ii) an order giving directions for the conduct of the action, (iii) an order directing that any amount determined to be payable by a defendant in the action will be paid, in whole or in part, directly to former and present securityholders of Americas Silver instead of to Americas Silver, and (iv) an order requiring Americas Silver to pay reasonable legal fees incurred by the complainant in connection with the action.
The CBCA provides an oppression remedy that enables a court to make any order, both interim and final, to rectify the matters complained of, if the court is satisfied upon the application by a complainant that: (a) any act or omission of the corporation or any of its affiliates effects a result; (b) the business or affairs of the corporation or any of its affiliates are, have been or are threatened to be carried on or conducted in a manner; or (c) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner, in
|
|
| | | | | | |
each case, that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any securityholder, creditor, director or officer.
A complainant means (i) a registered holder or beneficial owner, or a former registered holder or beneficial owner, of a security of a corporation or any of its affiliates; (ii) a director or an officer or a former director of officer of a corporation or of any of its affiliates; (iii) the Director as appointed by the Minister; or (iv) any other person who, in the discretion of the court, is a proper person to make such application.
Because of the breadth of conduct which can be complained of and the scope of a court’s remedial powers, the oppression remedy is very flexible and is sometimes relied upon to safeguard the interests of shareholders and other complainants with a substantial interest in the corporation. Under the CBCA, it is not necessary to prove that the directors of a corporation acted in bad faith in order to seek an oppression.
|
|
|
Dissent Rights
|
| |
Under the NRS, a stockholder of a Nevada corporation is generally entitled to dissent and demand payment of the fair value of his or her shares in the event the corporation is a party to a merger, subject to specified exceptions. Pershing Gold Stockholders shall have the right to dissent and obtain the fair value of their shares, subject to such stockholder’s strict compliance with the requirements of Nevada law.
See “
Proposal One — The Transaction — Dissenter’s Rights
” beginning on page
117
and Annex B regarding the requirements for exercising and perfecting a stockholder’s right to dissent.
|
| |
The CBCA provides that shareholders of a corporation are entitled to exercise dissent rights and to be paid the fair value of their shares as determined by the board of directors of the corporation or, failing which, by the appropriate Canadian court upon an application timely brought by the corporation or a dissenting shareholder, in connection with specified matters, including:
an amendment to the corporation’s articles to add, remove or change the restrictions on the issue, transfer or ownership of shares of the class in respect of which a shareholder is dissenting;
•
an amendment to the corporation’s articles to add, remove or change any restriction upon the business or businesses that the corporation may carry on or upon the
|
|
| | | | | | |
powers that the corporation may exercise;
•
any amalgamation with another corporation (other than with certain affiliated corporations);
•
a continuance under the laws of another jurisdiction;
•
a sale, lease or exchange of all, or substantially all, the property of the corporation other than in the ordinary course of business; or
•
the carrying out of a going-private transaction; and
certain amendments to the articles of a corporation which require a separate class or series vote by a holder of shares of any class or series.
However, a shareholder is not entitled to dissent if an amendment to the articles is effected by a court order approving a reorganization or by a court order made in connection with an action for an oppression remedy.
Americas Silver Shareholders are not entitled to dissent/appraisal rights under the CBCA in connection with the Transaction.
|
|
|
Voting Rights
|
| |
Each holder of Series E Preferred Stock is entitled to receive notice of and attend all meetings of Pershing Gold Stockholders and shall have one vote for each share of Pershing Gold Common Stock such stockholder would be entitled to receive if all of its shares of Series E Preferred Stock were converted into shares of Pershing Gold Common Stock (at the “Conversion Price” then in effect) on the record date set by the Pershing Gold board of directors for such vote on all matters submitted to the Pershing Gold Stockholders for approval, provided any such stockholder may not vote any such shares which would exceed the “Beneficial Ownership Limitation” (as defined below).
Except as otherwise required under the NRS, the shares of Series E Preferred Stock and the shares of Pershing Gold Common Stock will vote together as a single class.
Also see “
The Special Meeting of Pershing Gold Stockholders — Pershing Gold Record Date; Shares Entitled to Vote
” beginning on
page 53
.
|
| | Except as required by law, including the CBCA, or in accordance with any voting rights which may from time to time be attached to any series of preferred shares, holders of the Americas Silver Preferred Shares will not be entitled to receive notice of, to attend or to vote at any meeting of the Americas Silver Shareholders, provided that the rights, privileges, restrictions and conditions attached to the Americas Silver Preferred Shares as a class may be added to, changed or removed only with the approval of the holders of the Americas Silver Preferred Shares given in such manner as may then be required by law, at a meeting of the holders of the Americas Silver Preferred Shares duly called for that purpose. | |
|
Approval Rights
|
| |
The Pershing Gold Certificate of Designation provides that for so long as either (i) not less than 20% of the shares of Series E Preferred Stock remain outstanding or (ii) the aggregate fully diluted ownership percentage of the holders of Series E Preferred Stock equals or exceeds 5%, Pershing Gold shall not take any of the following actions without consent of at least 75% of the outstanding Series E Preferred Stock (or in the case of item D, at least a majority of the outstanding Series E Preferred Stock), voting as a separate class from the holders of Pershing Gold Common Stock:
(A)
create, authorize or issue any securities which will rank on parity with or senior to the Series E Preferred Stock as to dividend rights or liquidation rights; or
|
| | Neither the CBCA nor the Americas Silver Articles provide the holders of Americas Silver Preferred Shares with similar approval rights. | |
| | | | that number of shares of Pershing Gold Common Stock determined by dividing the Pershing Gold Series E Original Issue Price ($990.00 per share, subject to adjustment) of such share of Series E Preferred Stock by the Conversion Price. | | | entitled to convert the whole or part of its Americas Silver Preferred Shares into Americas Silver Common Shares at the “Conversion Ratio” without the payment of any additional consideration. | |
|
Automatic Conversion
|
| | Upon the consummation of a Change in Control, (i) all then outstanding shares of Series E Preferred Stock shall be automatically converted immediately prior to the effective time of such Change in Control into such number of shares of Pershing Gold Common Stock equal to (x) the Series E Original Issue Price of such share as of the date of such event, divided by (y) the Conversion Price in effect as of the date of such event, and holders of such shares of Pershing Gold Common Stock shall be entitled to receive the consideration payable to holders of Pershing Gold Common Stock in connection with such event; and (ii) each holder of Series E Preferred Stock shall be entitled to receive, in respect of each share of Series E Preferred Stock held by such stockholder (prior to the conversion contemplated in clause (i) above), to be paid out of the assets of Pershing Gold or the proceeds received in such event, a cash payment in an amount equal to 10% of the Series E Original Issue Price. | | | The Americas Silver Articles define an “Automatic Conversion Event” to mean, the first to occur of: (i) there being no holder of Americas Silver Preferred Shares whole fully diluted ownership percentage equals or exceeds 5%, and (ii) the consummation of a Change of Control (as defined below). | |
|
Change in Control Definition
|
| |
In relation to Pershing Gold, a “Change in Control” means:
(i)
the sale, lease or transfer, in one transaction or a series of related transactions, of all or substantially all of Pershing Gold’s assets to any person or group;
(ii)
the consolidation or merger of Pershing Gold with or into any other person or the merger of another person with or into Pershing Gold, pursuant to which the holders of 100% of the total voting power of the total outstanding capital stock of Pershing Gold immediately prior to the consummation of such consolidation or merger do not beneficially own in the aggregate more than fifty percent (50%) of the total voting power of the total outstanding capital stock of the continuing or surviving person immediately after such transaction;
|
| |
In relation to Americas Silver, a “Change of Control” means:
(i)
a merger, amalgamation, arrangement or other transaction or series of related transactions resulting in the combination of Americas Silver with or into another entity, where the holders of Americas Silver Common Shares immediately prior to any such transaction, directly or indirectly, do not continue to hold more than a 50% voting interest in (A) the continuing or surviving entity immediately following such transaction, or (B) if the continuing or surviving entity is a wholly-owned subsidiary of another person immediately following such transaction, the controlling person of such continuing or surviving entity;
|
|
| | | | shall have no right or claim to the remaining assets of Pershing Gold or proceeds thereof and shall not participate in any payment to holders of Pershing Gold Common Stock. | | | | |
|
Redemption
|
| |
Subject to meeting certain equity conditions set forth in the Pershing Gold Certificate of Designation, at any time commencing six months after the date such shares of Series E Preferred Stock are issued, Pershing Gold may elect to redeem all of the then outstanding Series E Preferred Stock, for cash in an amount equal to 110% of the Series E Original Issue Price as of such date of the outstanding Series E Preferred Stock together with all other amounts due to the stockholder pursuant any such transaction on the 10
th
trading day following notice of such redemption.
Notwithstanding the foregoing, Pershing Gold may only deliver a redemption notice within two trading days after the VWAP of the Pershing Gold Common Stock on the principal trading market equals or exceeds $0.45 (subject to equitable adjustment in the event of any subdivision, combination, stock split or similar event affecting the capital stock of Pershing Gold) for 15 out of any 20 consecutive trading days.
|
| | Neither the CBCA nor the Americas Silver Articles provide the holders of Americas Silver Preferred Shares with similar redemption rights. | |
|
Anti-Dilution
|
| |
If at any time while shares of Series E Preferred Stock remain outstanding, Pershing Gold pays a dividend or makes a distribution in stock, subdivides or consolidates outstanding shares of Pershing Gold Common Stock or issues, in connection with a reclassification of shares, shares of capital stock of Pershing Gold, the Conversion Price of the Pershing Gold Series E preferred shares will be adjusted so as to maintain the relative rights of the holders of the Pershing Gold Series E preferred shares.
If at any time while shares of Series E Preferred Stock remain outstanding, Pershing Gold issues, sells or grants any option to purchase or sells or grants and right to receive or otherwise disposes of any Pershing Gold Common Stock entitling any person to acquire shares of Pershing Gold Common Stock at an effective price per share that is lower than the then Conversion Price, the Conversion Price of the Series E Preferred Stock shall be reduced to equal such lower amount.
|
| | In the event the Americas Silver Preferred Shares or the Americas Silver Common Shares are at any time subdivided, consolidated or changed into a greater or lesser number of shares of the same or another class, an adjustment shall be made in the rights and conditions attached to the Americas Silver Preferred Shares so as to maintain the relative rights of the holders of such shares. | |
| | | |
If at any time Pershing Gold grants, issues or sells any Pershing Gold Common Stock equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Pershing Gold Common Stock (the “Purchase Rights”), then a holder of Series E Preferred Stock will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which such stockholder could have acquired if it had held the number of shares of Pershing Gold Common Stock acquirable upon complete conversion of such stockholders Series E Preferred Stock immediately before the date on which a record is taken for the grant, issuance or sale, or, if no such record is taken, the date as of which the record holders of shares of Pershing Gold Common Stock are to be determined for the grant, issue or sale of such Purchase Rights.
If at any time while shares of Series E Preferred Stock remain outstanding, Pershing Gold is involved in certain “Fundamental Transactions” (as defined in the Pershing Gold Certificate of Designation) which do not constitute a Change in Control, then, upon any subsequent conversion of Series E Preferred Stock, the stockholders of Series E Preferred Stock shall have the right to receive, for each share of Pershing Gold Common Stock issuable upon conversion of the Series E Preferred Stock that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction, the number of shares of Pershing Gold Common Stock of the successor or acquiring corporation or of Pershing Gold, if it is the surviving corporation, and any additional consideration receivable as a result of such Fundamental Transaction by a holder of the number of shares of Pershing Gold Common Stock for which Series E Preferred Stock is convertible immediately prior to such Fundamental Transaction.
|
| | | |
Beneficial Owner
|
| |
Common Shares
currently owned |
| |
Beneficial Ownership
Shares acquirable within 60 days (1) |
| |
Total
|
| |
Percent of
class (2) |
| ||||||||||||
5% Shareholders | | | | | | | | | | | | | | | | | | | | | | | | | |
Wellington Management Company, LLP
|
| | | | 2,369,444 (2) | | | | | | — | | | | | | 2,369,444 | | | | | | 5.5 % | | |
Oppenheimer Funds, Inc.
|
| | | | 2,498,618 (3) | | | | | | — | | | | | | 2,498,618 | | | | | | 5.8 % | | |
Executive Officers and Directors | | | | | | | | | | | | | | | | | | | | | | | | | |
Darren Blasutti
|
| | | | 86,605 | | | | | | 366,664 | | | | | | 453,269 | | | | | | 1.05 % | | |
Warren Varga
|
| | | | 1,526 | | | | | | 189,999 | | | | | | 191,525 | | | | | | 0.44 % | | |
Peter J. McRae
|
| | | | 381 | | | | | | 136,666 | | | | | | 137,047 | | | | | | 0.32 % | | |
Darren Dell
|
| | | | 3,400 | | | | | | 216,665 | | | | | | 220,065 | | | | | | 0.51 % | | |
Alexander Davidson
|
| | | | 27,706 | | | | | | 108,332 | | | | | | 136,038 | | | | | | 0.32 % | | |
Alan Edwards
|
| | | | 20,597 | | | | | | 108,332 | | | | | | 128,929 | | | | | | 0.30 % | | |
Peter Hawley
|
| | | | 153,619 | | | | | | 108,332 | | | | | | 261,951 | | | | | | 0.61 % | | |
Bradley R. Kipp
|
| | | | 0 | | | | | | 108,332 | | | | | | 108,332 | | | | | | 0.25 % | | |
Gordon E. Pridham
|
| | | | 30,102 | | | | | | 108,332 | | | | | | 138,434 | | | | | | 0.32 % | | |
Manuel Rivera
|
| | | | 0 | | | | | | 66,666 | | | | | | 66,666 | | | | | | 0.15 % | | |
Lorie Waisberg
|
| | | | 618 | | | | | | 108,332 | | | | | | 108,950 | | | | | | 0.25 % | | |
Current directors and executive officers as a group (11 persons)
|
| | | | 324,554 | | | | | | 1,626,652 | | | | | | 1,951,206 | | | | | | 4.53 % | | |
| | |
Common Stock
(1)
|
| |||||||||
Name of Beneficial Owner
(2)
|
| |
Shares
Beneficially Owned |
| |
Percent of
Class |
| ||||||
5% Owners | | | | | | | | | | | | | |
Donald Smith Value Fund, L.P.
(3)
|
| | | | 3,251,500 | | | | | | 9.7 % | | |
Barry Honig
(4)
|
| | | | 14,284,106 | | | | | | 38.0 % | | |
Named Executive Officers and Directors | | | | | | | | | | | | | |
Stephen Alfers
|
| | | | 1,605,870 (5) | | | | | | 4.7 % | | |
Debra Struhsacker**
|
| | | | 101,369 (6) | | | | | | * % | | |
Eric Alexander
|
| | | | 73,809 (7) | | | | | | * % | | |
Jeffrey Clevenger
|
| | | | — (8) | | | | | | — % | | |
Edward Karr
|
| | | | 248,988 (9) | | | | | | * % | | |
Pamela Saxton
|
| | | | 12,873 (10) | | | | | | * % | | |
Executive Officers and Directors as a Group (six*** persons)
|
| | | | 2,017,376 | | | | | | 5.8 % | | |
Americas Silver SEC Filings
|
| |
Period
|
|
Annual Report on Form 40-F | | | Fiscal Year Ended December 31, 2017, as filed on March 5, 2018 | |
Reports on Form 6-K | | | Filed on October 1, 2018 (2), October 5, 2018, October 11, 2018, November 5, 2018 | |
Pershing Gold SEC Filings
|
| |
Period
|
|
Annual Report on Form 10-K | | | Fiscal Year Ended December 31, 2017, as filed on March 28, 2018 | |
Quarterly Reports on Form 10-Q | | |
•
Form 10-Q dated May 14, 2018, filed on May 14, 2018
•
Form 10-Q dated August 13, 2018, filed on August 14, 2018
•
Form 10-Q dated November 2, 2018, filed on November 2, 2018
|
|
Pershing Gold SEC Filings
|
| |
Period
|
|
Current Reports on Form 8-K | | |
•
Form 8-K dated January 5, 2018, filed on January 8, 2018
•
Form 8-K dated January 18, 2018, filed on January 18, 2018
•
Form 8-K dated February 1, 2018, filed on February 1, 2018
•
Form 8-K dated February 26, 2018, filed on February 26, 2018
•
Form 8-K dated March 13, 2018, filed on March 13, 2018
•
Form 8-K dated April 26, 2018, filed on April 27, 2018
•
Form 8-K dated June 27, 2018, filed on June 27, 2018
•
Form 8-K dated August 31, 2018, filed on August 31, 2018
•
Form 8-K dated October 1, 2018, filed on October 1, 2018 (and amended on October 3, 2018)
•
Form 8-K dated October 4, 2018, filed on October 4, 2018
|
|
Proxy Statement | | |
•
Definitive 14A filed on April 30, 2018
|
|
| | | | | A-2 | |
| | | | | A-2 | |
| | | | | A-17 | |
| | | | | A-17 | |
| | | | | A-17 | |
| | | | | A-17 | |
| | | | | A-18 | |
| | | | | A-18 | |
| | | | | A-18 | |
| | | | | A-19 | |
| | | | | A-19 | |
| | | | | A-20 | |
| | | | | A-21 | |
| | | | | A-22 | |
| | | | | A-23 | |
| | | | | A-26 | |
| | | | | A-28 | |
| | | | | A-29 | |
| | | | | A-29 | |
| | | | | A-29 | |
| | | | | A-30 | |
| | | | | A-30 | |
| | | | | A-30 | |
| | | | | A-30 | |
| | | | | A-31 | |
| | | | | A-31 | |
| | | | | A-31 | |
| | | | | A-32 | |
| | | | | A-32 | |
| | | | | A-32 | |
| | | | | A-37 | |
| | | | | A-39 | |
| | | | | A-39 | |
| | | | | A-40 | |
| | | | | A-42 | |
| | | | | A-43 | |
| | | | | A-45 | |
| | | | | A-45 | |
| | | | | A-46 | |
| | | | | A-46 |
| | | | | A-46 | |
| | | | | A-46 | |
| | | | | A-46 | |
| | | | | A-51 | |
| | | | | A-52 | |
| | | | | A-52 | |
| | | | | A-52 | |
| | | | | A-52 | |
| | | | | A-54 | |
| | | | | A-54 | |
| | | | | A-55 | |
| | | | | A-55 | |
| | | | | A-56 | |
| | | | | A-57 | |
| | | | | A-58 | |
| | | | | A-58 | |
| | | | | A-59 | |
| | | | | A-60 | |
| | | | | A-60 | |
| | | | | A-60 | |
| | | | | A-60 | |
| | | | | A-60 | |
| | | | | A-61 | |
| | | | | A-61 | |
| | | | | A-61 | |
| | | | | A-62 | |
| | | | | A-62 | |
| | | | | A-62 | |
| | | | | A-63 | |
| | | | | A-63 | |
| | | | | A-63 | |
| | | | | A-63 | |
| | | | | A-64 | |
| | | | | A-64 | |
| | | | | A-64 | |
| | | | | A-64 | |
| | | | | A-A-1 | |
| | | | | A-B-1-1 | |
| | | | | A-B-2-1 | |
| | | | | A-C-1-1 | |
| | | | | A-C-2-1 |
| Schedule A | | | — | | | ARTICLES OF INCORPORATION | |
| Schedule B-1 | | | — | | | MERGER RESOLUTION | |
| Schedule B-2 | | | — | | | PURCHASER MEETING RESOLUTIONS | |
| Schedule C-1 | | | — | | | FORM OF COMPANY SUPPORT AGREEMENT | |
| Schedule C-2 | | | — | | | FORM OF PURCHASER SUPPORT AGREEMENT | |
| Schedule D | | | — | | | PREFERRED STOCK TERMS | |
| Schedule E | | | — | | | REPRESENTATIONS AND WARRANTIES OF THE COMPANY | |
| Schedule F | | | — | | |
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND
ACQUIRECO |
|
| Schedule G | | | — | | | RETENTION ARRANGEMENTS | |
|
By:
/s/ Darren Blasutti
Name: Darren Blasutti
Title: President and CEO |
| | | |
|
By:
/s/ Darren Blasutti
Name: Darren Blasutti
Title: Director |
| | | |
|
By:
/s/ Stephen D. Alfers
Name: Stephen D. Alfers
Title: President and CEO |
| | | |
| | | | AMERICAS SILVER CORPORATION | |
| | | |
By:
Name:
Title: |
|
|
Irrevocably accepted and agreed , 2018.
|
| | | |
| Address for Notice: | | | Name of Securityholder: | |
|
|
| | | |
|
|
| |
|
|
|
|
| | | |
| | | | Signature: | |
| | | |
|
|
Registered or Beneficial Holder
|
| |
Number of Shares
of Common Stock |
| |
Number of Shares
of Preferred Stock |
| |
Number of Convertible Securities
|
| |||
|
Warrants
|
| |
Options
|
| ||||||||
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
TOTAL: | | | | | | | | | | | | | |
| | | | PERSHING GOLD CORPORATION | |
| | | |
By:
Name:
Title: |
|
|
Irrevocably accepted and agreed , 2018.
|
| | | |
| Address for Notice: | | | Name of Securityholder: | |
|
|
| | | |
|
|
| |
|
|
|
|
| | | |
| | | | Signature: | |
| | | |
|
|
Registered or Beneficial Holder
|
| |
Number of Shares
of Common Stock |
| |
Number of Convertible Securities
|
| |||
|
Warrants
|
| |
Options
|
| |||||
| | | | | | | | | | |
| | | | | | | | | | |
TOTAL: | | | | | | | | | | |
| | | | [HOLDER] | |
| | | |
By:
Name:
Title: |
|
| (a) | | | Stephen D. Alfers | |
| (b) | | | Eric Alexander | |
| (c) | | | Mindyjo Germann | |
| (d) | | | Timothy Janke | |
| (e) | | | Timothy Arnold | |
| (f) | | | Doug Prihar | |
| (g) | | | Jarod Eastman | |
| (h) | | | Nick Ricci | |
|
Address for Notice:
|
| | Name of Securityholder: | |
|
|
| |
|
|
|
|
| | Signature: | |
| | | |
|
|
Registered or Beneficial Holder
|
| |
Number of Shares of
Common Stock |
| |
Number of Convertible Securities
|
| |||
|
Warrants
|
| |
Options
|
| |||||
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
TOTAL: | | | | | | | | | | |
Name of Securityholder
|
| |
Number of
Common Shares (Subject Common Shares) |
| |
Number of
Series E Shares (Subject Series E Shares) |
| |
Number of
options |
| |
Number of
warrants |
| |
Number of
Restricted Stock Units |
| |||||||||||||||
Barry Honig
|
| | | | 2,805,217 | | | | | | 301,950 | | | | | | 744,446 | | | | | | — | | | | | | — | | |
Barry Honig and Renee Honig, as tenants by the entirety
|
| | | | 432,077 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
GRQ Consultants, Inc. 401K
|
| | | | 5,193,568 | | | | | | 1,495,606 | | | | | | — | | | | | | 396,039 | | | | | | — | | |
GRQ Consultants, Inc.
|
| | | | 121,500 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
GRQ Consultants, Inc. Roth 401K FBO BarryHonig
|
| | | | 1,763,522 | | | | | | 731,892 | | | | | | — | | | | | | — | | | | | | — | | |
GRQ Consultants, Inc. Defined Benefit Plan
|
| | | | 89,148 | | | | | | 205,425 | | | | | | — | | | | | | — | | | | | | — | | |
|
535 Madison Avenue
|
| |
CANACCORD GENUITY LLC
New York, NY 10022 USA 212.389.8000 www.canaccordgenuity.com |
|
|
Signature
|
| |
Title
|
| |
Date
|
|
|
/s/ Darren Blasutti
Darren Blasutti
|
| | President, Chief Executive Officer and Director | | |
November 5, 2018
|
|
|
/s/ Warren Varga
Warren Varga
|
| | Chief Financial Officer and Principal Accounting Officer | | |
November 5, 2018
|
|
|
/s/ Alex Davidson
Alex Davidson
|
| | Chairman and Director | | |
November 5, 2018
|
|
|
/s/ Alan Edwards
Alan Edwards
|
| | Director | | |
November 5, 2018
|
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/s/ Bradley Kipp
Bradley Kipp
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| | Director | | |
November 5, 2018
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/s/ Peter J. Hawley
Peter J. Hawley
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| | Director | | |
November 5, 2018
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/s/ Gordon Pridham
Gordon Pridham
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| | Director | | |
November 5, 2018
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/s/ Lorie Waisberg
Lorie Waisberg
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| | Director | | |
November 5, 2018
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/s/ Manuel Rivera
Manuel Rivera
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| | Director | | |
November 5, 2018
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Exhibit 3.1
Industry Canada | Industrie Canada |
Certificate | Certificat |
of Incorporation | de constitution |
Canada Business | Loi canadienne sur |
Corporations Act | les sociétés par actions |
SCORPIO MINING CORPORATION | 342374-3 | |
Name of Corporation – Dénomination de la sociétés | Corporation number - Numéro de la société | |
I hereby certify that the above-named corporation, the articles of incorporation of which are attached, was incorporated under the Canada Business Corporations Act. | Je certifie que la société susmentionnée, dont les statuts constitutiée sont joints, a été constitutée en sociétés en vertu de la Loi canadienne sur les sociétés par actions. | |
May 12, 1998/le 12mai 1998 | ||
Director -Directaur | Date of Incorporation -Date de constitution |
Canada | 7530-21-936-2140(12-93) |
Industry Canada | Industrie Canada | FORM 1 | FORMULE 1 |
canada Business | Loi canadienne sur les | ARTICLES OF INCORPORATION | STATUTS CONSTITUTES |
corporations Act | sociétés par actions | {SECTION 6) | (ARTICLE 6) |
1 — Name of corporation | Dénomination de la sociétés | |
Scorpio MINING CORPORATION | ||
2 — The place in Canada where the registered office is to be situated | Lieu au Canada o ù doit étre situé le siége social | |
GREATER VANCOUVER, BRITISH COLUMBIA REGIONAL DISTRICT | ||
3 — The classes and any maximum number of shares that the corporation is authorized to issue | Catégories et tout nombre maximal d’actions que la société est autorisée à émettre | |
AN UNLIMITED NUMBER OF COMMON SHARES | ||
4 — Restrictions, if any, on share transfers | Restrictions sur le transfert des actions, s'il y a lieu | |
NONE |
5 — Number (or minimum and maximum number) of directors | Nombre (ou nombre minimal et maximal) d’administrateurs | |
MINIMUM 3 AND MAXIMUM 9 DIRECTORS | ||
6 — Restrictions, if any, on business the corporation may carry on | Limites imposées à I’activité commercials de la société s’il y a lieu | |
NONE |
7 — Other provisions, if any | Autres dispositions, s'il y a lieu | |
NONE |
8 — Incorporators — Fondateurs | ||
Name(s) — Nom(s) |
Address
(include postal code)
Adresse (inclure le code postal) |
Signature |
Peter j. Hawley | 1983,138 ST, SOUTH SURREY, B.C. V4A-9M2 | Peter j. Hawley |
FOR DEPARTMENTAL USE ONLY — ÀĽUSAGE DU MINISTERE SEULEMENT | Filed — Déposée |
Corporation No. — N° de la société 342374-3 | MAY 12 1998 |
IC 3419 (5/95) | Canada |
Industry Canada | Industrie Canada |
Certificate | Certifcat |
of Amendment | de modification |
Canada Business | Loi canadienne sur |
Corporations Act | les sociétés par actions |
SCORPIO MINING CORPORATION | 342374-3 | |
Name of corporation Dénomination de la société | Corporation number-Numéro de la société | |
I hereby certify that the articles of the above-named corporation were amended | Je certifie que les statuts de la société susmentionnée ont été modifiés : | |
(a) under section 13 of the Canada Business Corporations Act in accordance with the attached notice; | ¨ | a) en vertu de 1’article 13 de la Loi canadienne sur les sociétés par actions, conformément à l’avis ci-joint; |
(b) under section 27 of the Canada Business Corporations Act as set out in the attached articles of amendment designating a series of shares; | ¨ | b) en vertu de l’article 27 de la Loi canadienne sur les sociétés par actions, tel qu’il est indiqué dans les clauses modificatrices ci-jointes désignant une série d’actions; |
(c) under section 179 of the Canada Business Corporations Act as set out in the attached articles of amendment; | x | c) en vertu de l’article 179 de la Loi canadienne sur les sociétés par actions, tel qu’il est indiqué dans les clauses modificatrices ci-jointes; |
(d) under section 191 of the Canada Business Corporations Act as set out in the attached articles of reorganization. | ¨ | d) en vertu de 1’article 191 de la Loi canadienne sur les sociétés par actions, tel qu’il est indiqué dans les clauses de réorganisation ci-jointes. |
Director - Directeur | March 1, 1999/le 1 mars 1999 | |
Date of Amendment - Date de modification |
canada |
Industry Canada | Industrie Canada | FORM 4 | FORMULE 4 |
Canada Business | Loi canadienne sur les | ARTICLES OF AMENDMENT | CLAUSES MODIFICATRICES |
Corporations Act | sociétés par actions | (SECTION 27 OR 177) | (ARTICLES 27 OU 177) |
Date | signature | Title - Title |
Feb. 22/1999 | Peter j. Hawley |
DIRECTOR PRESIDENT |
IC 3069 (1998/01) |
For Departmental use only- A I’usage du minist é re seulement Filed MAR- 9 1999 |
canada
Industry Canada | Industrie Canada |
Certificate | Certificat |
of Amendment | de modification |
Canada Business | Loi canadienne sur |
Corporations Act | les sociétés par actions |
SCORPIO MINING CORPORATION | 342374-3 | |
Name of corporation-Dénomination de la société | Corporation number-Numéro de la société | |
I hereby certify that the articles of the above-named corporation were amended | Je certifie que les statuts de la société susmentionnée ont été modifiés: | |
a) under section’13 of the Canada Business Corporations Act in accordance with the attached notice; | ¨ | a) en vertu de l'article 13 de la Loi canadienne sur les sociétés par actions, conformément à l'avis ci-joint; |
b) under section 27 of the Canada Business Corporations Act as set out in the attached articles of amendment designating a series of shares; | ¨ | b) en vertu de l’article 27 de la Loi canadienne sur les sociétés par actions, tel qu'il est indiqué dans les clauses modificatrices ci-jointes désignant une série d'actions; |
c) under section 179 of the Canada Business Corporations Act as set out in the attached articles of amendment; | x | c) en vertu de l’article 179 de la Loi canadienne sur les sociétés par actions, tel qu'il est indiqué dans les clauses modificatrices ci-jointes; |
d) under section 191 of the Canada Business Corporations Act as set out in the attached articles of reorganization; | ¨ | d) en vertu de l'article 191 de la Loi canadienne sur les sociétés par actions, tel qu'il est indiqué dans les clauses de réorganisation ci-jointes; |
July 20, 1999/le 20 juillet 1999 | ||
Director - Directeur | Date of Amendment - Date de modification |
Canada
FORM 4 | |
CANADA BUSINESS | Articles of Amendment |
Corporations Act | (Section 27 or 177) |
1. Name of Corporation | 2. Corporation Number |
Scorpio Mining Corporation | 342374-3 |
3. The ARTICLES OF THE ABOVE-NAMED CORPORATION ARE AMENDED AS FOLLOWS:
NOW THEREFORE BE IT RESOLVED THAT:
Item 4 of the Articles of Incorporation are amended to read as follows:
“Until the date a prospectus of the Company is receipted pursuant to a Securities Act of a province of Canada, no shares or debt obligation issued by the Company shall be offered for sale to the public, and no shares shall be transferred without the previous consent of the Directors expressed by a resolution of the board of Directors, and the Directors shall not be required to give any reason for refusing to consent to any such proposed transfer.”
Date | signature | Description of office |
July 14,1999 | Peter J. Hawley |
DIRECTOR, PRESIDENT |
For Departmental use only Filed JUL 21 1999 |
Industry Canada | Industrie Canada |
Certificate | Certifcat |
of Amendment | de modification |
Canada Business | Loi canadienne sur |
Corporations Act | les sociétés par actions |
SCORPIO MINING CORPORATION | 342374-3 | |
Name of corporation-Dénomination de la société | Coiporation number-Numéro de la société | |
I hereby certify that the articles of the above-named corporation were amended: | Je certifie que les statuts de la sociétés susmentionnée ont été modifiés: | |
a) under section 13 of the Canada Business Corporations Act in accordance with the attached notice; | ¨ | a) en vertu de l'article 13 de la Loi canadienne sur les sociétés par actions, conformément à l'avis ci-joint; |
b) under section 27 of the Canada Business Corporations Act as set out in the attached articles of amendment designating a series of shares; |
¨ | b) en vertu de l’article 27 de la Loi canadienne sur les sociétés par actions, tel qu'il est indiqué dans les clauses modificatrices ci-jointes désignant une série d'actions; |
c) under section 179 of the Canada Business Corporations Act as set out in the attached articles of amendment; |
þ | c) en vertu de l'article 179 de la Loi canadienne sur les sociétés par actions, tel qu'il est indiqué dans les clauses modificatrices ci-jointes; |
d) under section 191 of the Canada Business Corporations Act as set out in the attached articles of reorganization; |
¨ | d) en vertu de l'article 191 de la Loi canadienne sur les sociétés par actions, tel qu'il est indiqué dans les clauses de réorganisation ci-jointes; |
November 2, 2004 / le 2 novembre 2004 | ||
Director - Directeur | Date of Amendment - Date de modification |
canada
Industry Canada | Industrie Canada | FORM 4 | FORMULARIE 4 |
Canada Business | Loi canadienne sur les | ARTICLES OF AMENDMENT | CLAUSES MODIFICATRICES |
Corporations Act | sociétés par actions | (SECTION 27 OR 177) | (ARTICLES 27 OU 177) |
1 — Name of the Corporation - Dénomination sociale de la société | 2 — Corporation No. N° de la société |
SCORPIO MINING CORPORATION | 342374-3 |
3 — The articles of the above-named corporation are amended as follows: | Les statuts de la société mentionnée cl-dessus sont modifiés de la facon suivante: |
UPON MOTION duly made and carried, IT WAS RESOLVED, by way of Special Resolution THAT Section 2.01 of the Articles of Incorporation be amended to read as follows:
“the registered office of the Corporation shall be in the Province of British Columbia at such location as the board of directors may, from time to time, determine.”
Signature | Printed Name - Nom en lettres moulées | 4 — Capacity of - En qualité de | 5 — Tel. no.- N o de lél. |
Janet Horbulyk | Janet Horbulyk | Corporate Secretary | 604-678-9639 |
FOR DEPARTMENTAL ONLY – A ĽUSAGE DU MINISTERE SEULEMENT |
NOV. 18 2004 |
IC 3069 (2003/06)
Canada
Industry Canada | Industrie Canada |
Certificate | Certificat |
of Amendment | de modification |
Canada Business | Loi canadienne sur |
Corporations Act | les sociétés par actions |
SCORPIO MINING CORPORATION | 342374-3 | |||
Name of corporation-Dénomination de la société | Corporation number-Numéro de la société | |||
I hereby certify that the articles of the above-named corporation were amended: | Je certifie que les statuts de la société susmentionnée ont été modifiés: | |||
a) | under section 13 of the Canada Business Corporations Act in accordance with the attached notice; | ¨ | a) | en vertu de l'article 13 de la Loi canadienne sur les sociétés par actions , conformément à l'avis ci-joint; |
b) | under section 27 of the Canada Business Corporations Act as set out in the attached articles of amendment designating a series of shares; | ¨ | b) | en vertu de l'article 27 de la Loi canadienne sur les sociétés par actions , tel qu'il est indiqué dans les clauses modificatrices ci-jointes désignant une série d'actions; |
c) | under section 179 of the Canada Business Corporations Act as set out in the attached articles of amendment; | þ | c) | en vertu de l'article 179 de la Loi canadienne sur les sociétés par actions , tel qu'il est indiqué dans les clauses modificatrices ci-jointes; |
d) | under section 191 of the Canada Business Corporations Act as set out in the attached articles of reorganization; | ¨ | d) | en vertu de l'article 191 de la Loi canadienne sur les sociétés par actions , tel qu'il est indiqué dans les clauses de réorganisation ci-jointes; |
June 11, 2008 / le 11 Juin 2008 | |||
Date of Amendment - Date de modification | |||
Richard G. Shaw | |||
Director - Directeur |
Canada
Industry Canada | Industrie Canada | ELECTRONIC TRANSACTION | RAPPORT DE LA TRANSACTION |
Canada Business | Loi canadienne sur les | REPORT | ÉLECTRONIQUE |
Corporations Act | sociétés par actions | ARTICLES OF AMENDMENT | CLAUSES MODIFICATRICES |
(SECTIONS 27 OR 177) | (ARTICLES 27 OU 177) |
Processing Type - Mode de traitement: | E-Commerce/Commerce-É |
1. Name of Corporation - Dénomination de la société |
2. Corporation No. - N° de la société |
SCORPIO MINING CORPORATION | 342374-3 |
3. The articles of the above-named corporation are amended as follows:
Les statuts de la société mentionnée ci-dessus sont modifiés de la façon suivante:
Item 7 - Other Provisions, of the Corporation's Articles is amended as follows:
The directors may, between annual meetings of the shareholders of the Corporation appoint one or more additional directors, who shall hold office for a term expiring not later than the close of the next annual meeting of the shareholders of the Corporation, but the number of additional directors so appointed may not exceed one-third of the number of directors elected at the previous annual meeting of the shareholders of the Corporation, provided that the total number of directors shall not exceed the maximum number of directors fixed pursuant to the Articles.
Date | Name - Nom | Signature | Capacity of - en qualité |
2008-06-11 | JANET HORBULYK | AUTHORIZED OFFICER | |
Page 1 of 1 |
Canada
Industry Canada | Industrie Canada |
Certificate of Amendment | Certificat de modification |
Canada Business Corporations Act | Loi canadienne sur les sociétés par actions |
SCORPIO MINING CORPORATION
Corporate name / Dénomination sociale
342374-3
Corporation number / Numéro de société
I HEREBY CERTIFY that the articles of the above-named corporation are amended under section 178 of the Canada Business Corporations Act as set out in the attached articles of amendment. | JE CERTIFIE que les statuts de la société susmentionnée sont modifiés aux termes de l'article 178 de la Loi canadienne sur les sociétés par actions , tel qu'il est indiqué dans les clauses modificatrices ci-jointes. |
Marcie Girouard
Director / Directeur
2011-06-16
Date of Amendment (YYYY-MM-DD)
Date de modification (AAAA-MM-JJ)
Industry | Industrie | Form 4 | Formulaire 4 |
Canada | Canada | Articles of Amendment | Clauses modificatrices |
Canada Business Corporations Act | Loi canadienne sur les sociétés par | ||
(CBCA) (s. 27 or 177) | actions (LCSA) (art. 27 ou 177) |
1 Corporate name
Dénomination sociale
SCORPIO MINING CORPORATION
2 Corporation number
Numéro de la société
342374-3
3 The articles are amended as follows
Les statuts sont modifiés de la façon suivante
The corporation changes the province or territory in Canada where the registered office is situated to: La province ou le territoire au Canada où est situé le siège social est modifié pour :
ON
4 Declaration: I certify that I am a director or an officer of the corporation.
Déclaration : J’atteste que je suis un administrateur ou un dirigeant de la société.
Original signed by / Original signé par
Eric Lowy, Secretary
Eric Lowy, Secretary
416-361-2512
Note : Misrepresentation constitutes an offence and, on summary conviction, a person is liable to a fine not exceeding $5000 or to imprisonment for a term not exceeding six months or both (subsection 250(1) of the CBCA).
Nota : Faire une fausse déclaration constitue une infraction et son auteur, sur déclaration de culpabilité par procédure sommaire, est passible d’une amende maximale de 5 000 $ ou d’un emprisonnement maximal de six mois, ou de ces deux peines (paragraphe 250(1) de la LCSA).
IC 3069 (2008/04)
Industry | Industrie |
Canada | Canada |
Certificate of Amendment | Certificat de modification |
Canada Business Corporations Act | Loi canadienne sur les sociétés par actions |
Americas Silver Corporation
Corporate name / Dénomination sociale
342374-3
Corporation number / Numéro de société
I HEREBY CERTIFY that the articles of the above-named corporation are amended under section 178 of the Canada Business Corporations Act as set out in the attached articles of amendment. | JE CERTIFIE que les statuts de la société susmentionnée sont modifiés aux termes de l'article 178 de la Loi canadienne sur les sociétés par actions , tel qu'il est indiqué dans les clauses modificatrices ci-jointes. |
Virginie Ethier
Director / Directeur
2015-05-19
Date of Amendment (YYYY-MM-DD)
Date de modification (AAAA-MM-JJ)
Industry | Industrie |
Canada | Canada |
Form 4 | Formulaire 4 |
Articles of Amendment | Clauses modificatrices |
Canada Business Corporations Act | Loi canadienne sur les sociétés par |
(CBCA) (s. 27 or 177) | actions (LCSA) (art. 27 ou 177) |
1 Corporate name
Dénomination sociale
SCORPIO MINING CORPORATION
2 Corporation number
Numéro de la société
342374-3
3 The articles are amended as follows
Les statuts sont modifiés de la façon suivante
The corporation changes its name to:
La dénomination sociale est modifiée pour :
Americas Silver Corporation
4 Declaration: I certify that I am a director or an officer of the corporation.
Déclaration : J’atteste que je suis un administrateur ou un dirigeant de la société.
Original signed by / Original signé par
Peter McRae
Peter McRae
416-848-9503
Misrepresentation constitutes an offence and, on summary conviction, a person is liable to a fine not exceeding $5000 or to imprisonment for a term not exceeding six months or both (subsection 250 (1) of the CBCA).
Faire une fausse déclaration constitue une infraction et son auteur, sur déclaration de culpabilité par procédure sommaire, est passible d’une amende maximale de 5 000 $ et d’un emprisonnement maximal de six mois, ou l’une de ces peines (paragraphe 250(1) de la LCSA).
You are providing information required by the CBCA. Note that both the CBCA and the Privacy Act allow this information to be disclosed to the public. It will be stored in personal information bank number IC/PPU-049.
Vous fournissez des renseignements exigés par la LCSA. Il est à noter que la LCSA et la Loi sur les renseignements personnels permettent que de tels renseignements soient divulgués au public. Ils seront stockés dans la banque de renseignements personnels numéro IC/PPU-049.
IC 3069 (2008/04)
\
Government | Government |
of Canada | du Canada |
Certificate of Amendment | Certificat de modification |
Canada Business Corporations Act | Loi canadienne sur les sociétés par actions |
Americas Silver Corporation
Corporate name / Dénomination sociale
342374-3
Corporation number / Numéro de société
I HEREBY CERTIFY that the articles of the above-named corporation are amended under section 178 of the Canada Business Corporations Act as set out in the attached articles of amendment. | JE CERTIFIE que les statuts de la société susmentionnée sont modifiés aux termes de l'article 178 de la Loi canadienne sur les sociétés par actions , tel qu'il est indiqué dans les clauses modificatrices ci-jointes. |
Virginie Ethier
Director / Directeur
2016-12-21
Date of Amendment (YYYY-MM-DD)
Date de modification (AAAA-MM-JJ)
Government | Government |
of Canada | du Canada |
Form 4 | Formulaire 4 |
Articles of Amendment | Clauses modificatrices |
Canada Business Corporations Act | Loi canadienne sur les sociétés par |
(CBCA) (s. 27 or 177) | actions (LCSA) (art. 27 ou 177) |
1 Corporate name
Dénomination sociale
Americas Silver Corporation
2 Corporation number
Numéro de la société
342374-3
3 The articles are amended as follows
Les statuts sont modifiés de la façon suivante
The corporation amends the other provisions as follows:
Les autres dispositions sont modifiées comme suit :
See attached schedule / Voir l'annexe ci-jointe
4 Declaration: I certify that I am a director or an officer of the corporation.
Déclaration : J’atteste que je suis un administrateur ou un dirigeant de la société.
Original signed by / Original signé par
PETER MCRAE
PETER MCRAE
416-874-1701
Misrepresentation constitutes an offence and, on summary conviction, a person is liable to a fine not exceeding $5000 or to imprisonment for a term not exceeding six months or both (subsection 250 (1) of the CBCA).
Faire une fausse déclaration constitue une infraction et son auteur, sur déclaration de culpabilité par procédure sommaire, est passible d’une amende maximale de 5 000 $ et d’un emprisonnement maximal de six mois, ou l’une de ces peines (paragraphe 250(1) de la LCSA).
You are providing information required by the CBCA. Note that both the CBCA and the Privacy Act allow this information to be disclosed to the public. It will be stored in personal information bank number IC/PPU-049.
Vous fournissez des renseignements exigés par la LCSA. Il est à noter que la LCSA et la Loi sur les renseignements personnels permettent que de tels renseignements soient divulgués au public. Ils seront stockés dans la banque de renseignements personnels numéro IC/PPU-049.
IC 3069 (2008/04)
Schedule / Annexe
Other Provisions / Autres dispositions
To change the number of issued and outstanding common shares of the Corporation (the “Common Shares”) by consolidating the issued and outstanding Common Shares on the basis of one (1) new post-consolidation Common Share for each twelve (12) pre-consolidation Common Shares (the “Share Consolidation”). No fractional Common Shares will be issued in connection with the Share Consolidation and, in the event that a shareholder would otherwise be entitled to receive a fractional Common Share, such fraction shall be rounded down to the nearest whole Common Share.
Exhibit 3.2
SCORPIO MINING CORPORATION
BY-LAWS
A by-law relating generally to the conduct of the affairs of SCORPIO MINING CORPORATION (the "Corporation").
BE IT ENACTED AND IT IS HEREBY ENACTED as a by-law of the Corporation as follows:
INTERPRETATION
1. Definitions and Interpretation
In this by-law and all other by-laws of the Corporation, unless the context otherwise specifies or requires:
(a) “Act” means the Canada Business Corporations Act , R.S.C. 1985, c. C-44 and the regulations thereunder, as from time to time amended, and every statute or regulation that may be substituted therefor and, in the case of such amendment or substitution, any reference in the by-laws of the Corporation shall be read as referring to the amended or substituted provisions;
(b) “by-law” means any by-law of the Corporation from time to time in force and effect;
(c) all terms contained in the by-laws which are defined in the Act shall have the meanings given to such terms in the Act;
(d) words importing the singular number only shall include the plural and vice versa; words importing any gender shall include all genders; words importing persons shall include partnerships, syndicates, trusts and any other legal or business entity; and
(e) the headings used in the by-laws are inserted for reference purposes only and are not to be considered or taken into account in construing the terms or provisions thereof or to be deemed in any way to clarify, modify or explain the effect of any such terms or provisions.
2. Unanimous Shareholder Agreements
The provisions of this by-law are subject to the terms of any unanimous shareholder agreement in effect from time to time in respect of the Corporation and, to the extent of any inconsistency between this by-law and any such unanimous shareholder agreement, such unanimous shareholder agreement shall prevail over this by-law.
REGISTERED OFFICE
3. The Corporation may from time to time (i) by resolution of the directors change the place and address of the registered office of the Corporation within the Province in Canada specified in its articles, and (ii) by an amendment to its articles, change the Province in Canada in which its
1
registered office is situated.
SEAL
4. The Corporation may, but need not, have a corporate seal. An instrument or agreement executed on behalf of the Corporation by a director, an officer or an agent of the Corporation is not invalid merely because the corporate seal, if any, is not affixed thereto.
DIRECTORS
5. Number
The number of directors, or the minimum and maximum number of directors of the Corporation, is set out in the articles of the Corporation. If a minimum and maximum number of directors is set out in the articles of the Corporation, the number of directors of the Corporation shall be the number of directors elected by the shareholders of the Corporation at the most recent meeting of shareholders. At least twenty-five per cent of the directors (or one director, if the Corporation has less than four directors) shall be resident Canadians. If the Corporation is a distributing corporation and any of its outstanding securities are held by more than one person, it shall have at least three directors, at least two of whom are not officers or employees of the Corporation or its affiliates.
6. Powers
The directors shall manage, or supervise the management of, the business and affairs of the Corporation and may exercise all such powers and do all such acts and things as may be exercised or done by the Corporation and are not by the Act, the articles, the by-laws, any special resolution of the Corporation, a unanimous shareholder agreement or by statute expressly directed or required to be done in some other manner.
7. Duties
Every director and officer of the Corporation in exercising their powers and discharging their duties shall:
(a) act honestly and in good faith with a view to the best interests of the Corporation; and
(b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
Every director and officer of the Corporation shall comply with the Act, the regulations thereunder, the Corporation's articles and by-laws and any unanimous shareholder agreement.
8. Qualification
Every director shall be an individual 18 or more years of age and no one who is of unsound mind and has been so found by a court in Canada or elsewhere or who has the status of a bankrupt shall be a director.
2
9. Election of Directors
Directors shall be elected by the shareholders of the Corporation by ordinary resolution. Whenever at any election of directors of the Corporation the number or the minimum number of directors required by the articles is not elected by reason of the lack of consent, disqualification, incapacity or death of any candidates, the directors elected at that meeting may exercise all the powers of the directors if the number of directors so elected constitutes a quorum, but such quorum of directors may not fill the resulting vacancy or vacancies and shall without delay call a special meeting of shareholders to fill the vacancy or vacancies and, if they fail the call a meeting or if there are no directors then in office, the meeting may be called by any shareholder.
An individual who is elected or appointed to hold office as a director is not a director and is deemed not to have been elected or appointed to hold office as a director unless
(a) he or she was present at the meeting when the election or appointment took place and he or she did not refuse to hold office as a director; or
(b) he or she was not present at the meeting when the election or appointment took place and
(c) he or she consented to hold office as a director in writing before the election or appointment or within 10 days after it, or
(d) he or she has acted as a director pursuant to the election or appointment.
10. Nomination of Directors
Subject to the provisions of the Act and the articles of the Corporation, only persons who are nominated in accordance with the procedures set out in this paragraph 10 shall be eligible for election as directors.
Nominations of persons for election to the board of directors may be made at any annual meeting of shareholders or at any special meeting of shareholders if one of the purposes for which the special meeting was called was the election of one or more directors. Such nominations must be made:
(a) by or at the direction of the board (or any duly authorized committee thereof), including pursuant to a notice of meeting;
(b) by or at the direction or request of one or more shareholders pursuant to a proposal within the meaning of, and made in accordance with, the provisions of the Act, or a requisition of the shareholders made in accordance with the provisions of the Act; or
(c) by any person (a "Nominating Shareholder") (i) who, at the close of business on the date of the giving of the notice provided for below in this paragraph 10 and at the close of business on the record date for notice of such meeting, is entered in the securities register of the Corporation as a holder of one or more shares carrying the right to vote at such meeting or who beneficially owns shares that are entitled to be voted at such meeting; and (ii) who complies with the notice procedures set out below in this paragraph 10.
3
In addition to any other applicable requirements, for a nomination to be made by a Nominating Shareholder pursuant to subparagraph (c) above, the Nominating Shareholder must have given notice thereof that is both timely and in proper written form (as set out below in this paragraph 10) to the Secretary of the Corporation at the principal executive office of the Corporation.
To be timely, a Nominating Shareholder's notice to the Secretary of the Corporation must be made:
(a) in the case of an annual meeting of shareholders, not less than 30 days prior to the date of the annual meeting of shareholders; provided, however, that in the event that the annual meeting of shareholders is to be held on a date that is less than 50 days after the date (the "Notice Date") on which the first public announcement (as defined below) of the date of the annual meeting of shareholders was made, notice by the Nominating Shareholder may be made not later than the close of business on the 10th day following the Notice Date; and
(b) in the case of a special meeting of shareholders (which is not also an annual meeting of shareholders) called for the purpose of electing directors (whether or not called for other purposes), not later than the close of business on the 15th day following the day on which the first public announcement of the date of the special meeting of shareholders was made.
To be in proper written form, a Nominating Shareholder's notice to the Secretary of the Corporation must set out:
(a) as to each person whom the Nominating Shareholder proposes to nominate for election to the board:
(i) the name, age, business address and residential address of the person;
(ii) the principal occupation or employment of the person for the past five years;
(iii) the status of such person as a "resident Canadian" as defined in the Act;
(iv) the class or series and number of securities in the capital of the Corporation that are controlled or directed or that are owned beneficially or of record by the person and his or her Representatives (as defined below) as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice;
(v) full particulars regarding any contract, agreement, arrangement, understanding or relationship (collectively, "Arrangements"), including without limitation financial, compensation and indemnity related Arrangements, between the person or any of his or her Representatives and the Nominating Shareholder or any of its Representatives;
(vi) whether the person is party to any existing or proposed Arrangement with any competitor of the Corporation (or any of the Corporation's affiliates) or any other third party which may give rise to a real or perceived conflict of interest between the interests of the Corporation or any of the Corporation's
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affiliates and the interests of the person; and
(vii) any other information relating to the person that would be required to be disclosed in a dissident's proxy circular in connection with a solicitation of proxies for election of directors pursuant to the Act and Applicable Securities Laws (as defined below); and
(b) as to the Nominating Shareholder giving the notice:
(i) the name, age, business address and, if applicable, residential address of the Nominating Shareholder;
(ii) the class or series and number of securities in the capital of the Corporation that are controlled or directed or that are owned beneficially or of record by such Nominating Shareholder and his, her or its Representatives as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice;
(iii) full particulars regarding (A) any proxy or other Arrangement pursuant to which such Nominating Shareholder has a right to vote or direct the voting of any shares of the Corporation and (B) any other Arrangement of the Nominating Shareholder or any of its Representatives relating to the voting of any shares of the Corporation or the nomination of any person(s) to the Board;
(iv) full particulars regarding the Nominating Shareholder's interests in, or rights or obligations associated with, any Arrangement of such Nominating Shareholder or any of its Representatives, the purpose or effect of which is to alter, directly or indirectly, the economic interest of such Nominating Shareholder or any of its Representatives in a security of the Corporation or the economic exposure of any such Nominating Shareholder or any of its Representatives to the Corporation;
(v) whether such Nominating Shareholder is party to any existing or proposed Arrangement with any competitor of the Corporation (or any of the Corporation's affiliates) or any other third party which may give rise to a real or perceived conflict of interest between the interests of the Corporation or any of the Corporation's affiliates and the interests of such Nominating Shareholder; and
(vi) full particulars regarding any Arrangement, including without limitation financial, compensation and indemnity related Arrangements, between the Nominating Shareholder or any Representative of the Nominating Shareholder and any person whom the Nominating Shareholder proposes to nominate for election to the board or any of his or her Representatives;
(vii) any other information relating to such Nominating Shareholder that would be required to be made in a dissident's proxy circular in connection with solicitations of proxies for election of directors pursuant to the Act and
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Applicable Securities Laws.
The Corporation may require any proposed nominee for election as a director to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director, with respect to independence or any other relevant criteria for eligibility or that could be material to a reasonable shareholder's understanding of the independence or eligibility, or lack thereof, of such proposed nominee.
Unless otherwise specified in this paragraph 10, all information to be provided in a timely notice pursuant to this paragraph 10 shall be provided as of the date of such notice. If requested by the Corporation, the Nominating Shareholder shall update such information forthwith so that it is true and correct in all material respects as of the date that is 10 business days prior to the date of the meeting, or any adjournment or postponement thereof.
No person shall be eligible for election as a director unless nominated in accordance with this paragraph 10; provided, however, that nothing in this paragraph 10 shall be deemed to preclude discussion by a shareholder (as distinct from the nomination of directors) at a meeting of shareholders of any matter that is properly before such meeting pursuant to the provisions of the Act.
The chair of the meeting of shareholders shall have the power and duty to determine whether a nomination of a person for election to the board was made in accordance with this paragraph 10 and, if the chair of the meeting determines that a nomination does not comply with this paragraph 10, to declare that such defective nomination shall be disregarded.
For the purposes of this paragraph 10:
(a) "public announcement" means disclosure in a press release reported by a national news service in Canada, or in a document publicly filed by the Corporation under its profile on the System for Electronic Document Analysis and Retrieval at www.sedar.com ;
(b) "Applicable Securities Laws" means the applicable securities legislation, as amended from time to time, of each province and territory of Canada, the rules, regulations and forms made or promulgated under any such statute and the published national instruments, multilateral instruments, policies, bulletins and notices of the securities commission or similar regulatory authority of each province and territory of Canada; and
(c) "Representatives" means, in respect of a person, the affiliates and associates of such person, all persons acting jointly or in concert with such person or any of the foregoing, and the affiliates and associates of any of such persons acting jointly or in concert.
Notwithstanding any other provision of the by-laws, notice given to the Secretary of the Corporation pursuant to this paragraph 10 may only be given by personal delivery, email (at such email address as may be stipulated from time to time by the Secretary of the Corporation for purposes of this notice) or fax, and shall be deemed to have been given and made only at the time it is served by personal delivery to the Secretary at the address of the principal executive office of the Corporation or delivered to the Secretary by email (at the aforesaid email address) or fax (provided
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that receipt of confirmation of such fax has been received); provided that if such delivery or electronic communication is made on a non-business day or later than 5:00 p.m. (Toronto time) on a day that is a business day, then such delivery or electronic communication shall be deemed to have been made on the next following day that is a business day.
Notwithstanding any of the foregoing, the board may, in its sole discretion, waive any requirement in this section 10.
11. Term of Office
A director's term of office (subject to the provisions (if any) of the Corporation's articles and paragraph 14 below), unless such director was elected for an expressly stated term, shall be from the date of the meeting at which such director is elected or appointed until the close of the annual meeting of shareholders next following such director's election or appointment or until such director's successor is elected or appointed. If qualified, a director whose term of office has expired is eligible for re-election as a director.
12. Ceasing to Hold Office
A director ceases to hold office if such director:
(a) dies;
(b) sends to the Corporation a written resignation, which shall be effective upon receipt by the Corporation, or at the time specified in the resignation, whichever is later;
(c) is removed from office in accordance with paragraph 14 below;
(d) becomes bankrupt; or
(e) is found by a court in Canada or elsewhere to be of unsound mind.
13. Vacancies
Notwithstanding any vacancy among the directors, the remaining directors may exercise all the powers of the directors so long as a quorum of the number of directors remains in office. Subject to subsections 111(1) and (3) of the Act and to the provisions (if any) of the Corporation's articles, where there is a quorum of directors in office and a vacancy occurs, such quorum of directors may appoint a qualified person to fill such vacancy for the unexpired term of such appointee's predecessor.
14. Removal of Directors
Subject to subsection 109(2) of the Act and unless the articles of the Corporation provide for cumulative voting, the shareholders of the Corporation may by ordinary resolution at a special meeting remove any director before the expiration of such director's term of office and may, by a majority of the votes cast at the meeting, elect any person in such director's stead for the remainder of such director's term.
If a meeting of shareholders was called for the purpose of removing a director from
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office as a director, the director so removed shall vacate office forthwith upon the passing of the resolution for such director's removal.
15. Validity of Acts
An act of a director or officer is valid notwithstanding an irregularity in their election or appointment or a defect in their qualification.
MEETINGS OF DIRECTORS
16. Place of Meetings
Meetings of directors and of any committee of directors may be held at any place.
17. Calling Meetings
A meeting of directors may be convened by the Chair of the Board (if any), the President or any director at any time and the Secretary shall upon direction of any of the foregoing convene a meeting of directors.
18. Notice
Notice of the time and place for the holding of any meeting of directors or committee of directors shall be sent to each director not less than 24 hours before the meeting or such shorter period as may be reasonably necessary in the circumstances as determined by the Chair of the Board; provided that meetings of the directors or of any committee of directors may be held at any time without formal notice if all the directors are present (except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called) or if all the absent directors have waived notice. Notice of the time and place for the holding of any meeting of directors or any committee of directors may be given by personal delivery, fax, email or any other electronic means. The notice shall specify any matter referred to in subsection 115(3) of the Act that is to be dealt with at the meeting.
For the first meeting of directors to be held following the election of directors at an annual or special meeting of the shareholders or for a meeting of directors at which a director is appointed to fill a vacancy in the board, no notice of such meeting need be given to the newly elected or appointed director or directors in order for the meeting to be duly constituted, provided a quorum of the directors is present.
19. Waiver of Notice
Notice of any meeting of directors or of any committee of directors or any irregularity in any meeting or in the notice thereof may be waived in any manner by any director, and such waiver may be validly given before, at or after the meeting to which such waiver relates. Attendance of a director at a meeting of directors is a waiver of notice of the meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
20. Electronic Participation
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Where all the directors of the Corporation consent thereto (whether before, at or after the meeting), a director may participate in a meeting of directors or of any committee of directors by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, and a director participating in a meeting by such means shall be deemed for the purposes of the Act and the by-laws to be present at that meeting.
21. Quorum and Voting
A majority of the number of directors of the Corporation shall constitute a quorum for the transaction of business. Subject to subsections 111(1), 114(4) and 117(1) of the Act, no business shall be transacted by the directors except at a meeting of directors at which a quorum is present and at which at least twenty-five per cent of the directors present are resident Canadians or, if the Corporation has less than four directors, at least one of the directors present is a resident Canadian. Questions arising at any meeting of directors shall be decided by a majority of votes. In case of an equality of votes, the chair of the meeting shall not have a second or casting vote in addition to the chair's original vote as a director.
22. Adjournment
Any meeting of directors or of any committee of directors may be adjourned from time to time by the chair of the meeting, with the consent of the meeting, to a fixed time and place. No notice of the time and place for the holding of the adjourned meeting need be given to any director if the time and place of the adjourned meeting is announced at the original meeting. Any adjourned meeting shall be duly constituted if held in accordance with the terms of the adjournment and a quorum is present thereat. The directors who form the quorum at the adjourned meeting need not be the same directors who formed the quorum at the original meeting. If there is no quorum present at the adjourned meeting, the original meeting shall be deemed to have terminated forthwith after its adjournment.
23. Resolutions in Writing
A resolution in writing, signed by all the directors entitled to vote on that resolution at a meeting of directors or committee of directors, is as valid as if it had been passed at a meeting of directors or committee of directors.
COMMITTEES OF DIRECTORS
24. General
The directors may from time to time appoint from their number one or more committees of directors. The directors may delegate to each such committee any of the powers of the directors, except that no such committee shall have the authority to:
(a) submit to the shareholders any question or matter requiring the approval of the shareholders;
(b) fill a vacancy among the directors or in the office of auditor, or appoint additional directors;
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(c) subject to subsection 189(2) of the Act, issue securities except as authorized by the directors;
(d) issue shares of a series under section 27 of the Act except as authorized by the directors;
(e) declare dividends;
(f) purchase, redeem or otherwise acquire shares issued by the Corporation;
(g) pay any commission referred to in section 41 of the Act, except as authorized by the directors;
(h) approve a management proxy circular;
(i) approve a take-over bid circular or directors' circular;
(j) approve any annual financial statements to be placed before the shareholders of the Corporation; or
(k) adopt, amend or repeal by-laws of the Corporation.
25. Audit Committee
If the Corporation is a distributing corporation and any of its outstanding securities are held by more than one person, the board of directors shall elect annually from among their number an audit committee to be composed of not fewer than three directors, a majority of whom are not officers or employees of the Corporation or any of its affiliates.
Each member of the audit committee shall serve during the pleasure of the board of directors and, in any event, only so long as such member shall be a director. The directors may fill vacancies in the audit committee by election from among their number.
The audit committee shall have power to fix its quorum at not less than a majority of its members and to determine its own rules of procedure subject to any regulations imposed by the board of directors from time to time and to the following paragraph.
The auditor of the Corporation is entitled to receive notice of every meeting of the audit committee and, at the expense of the Corporation, to attend and be heard thereat; and, if so requested by a member of the audit committee, shall attend every meeting of the committee held during the term of office of the auditor. The auditor of the Corporation or any member of the audit committee may call a meeting of the committee.
The audit committee shall review the financial statements of the Corporation prior to approval thereof by the board of directors and shall have such other powers and duties as may from time to time by resolution be assigned to it by the board.
OFFICERS
26. Appointment of Officers
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The directors may annually or as often as may be required appoint such officers as they shall deem necessary, who shall have such authority and shall perform such functions and duties as may from time to time be prescribed by resolution of the directors, delegated by the directors or by other officers or properly incidental to their offices or other duties, provided that no officer shall be delegated the power to do anything referred to in paragraph 24 above. Such officers may include, without limitation, any of a President, a Chief Executive Officer, a Chair of the Board, one or more Vice-Presidents, a Chief Financial Officer, a Controller, a Secretary, a Treasurer and one or more Assistant Secretaries and/or one or more Assistant Treasurers. None of such officers (except the Chair of the Board) need be a director of the Corporation. A director may be appointed to any office of the Corporation. Two or more of such offices may be held by the same person.
27. Removal of Officers
All officers shall be subject to removal by resolution of the directors at any time, with or without cause. The directors may appoint a person to an office to replace an officer who has been removed or who has ceased to be an officer for any other reason.
28. Duties of Officers may be Delegated
In case of the absence or inability or refusal to act of any officer of the Corporation or for any other reason that the directors may deem sufficient, the directors may delegate all or any of the powers of such officer to any other officer or to any director for the time being.
REMUNERATION OF DIRECTORS, OFFICERS AND EMPLOYEES
29. The remuneration to be paid to the directors of the Corporation shall be such as the directors shall from time to time by resolution determine and such remuneration may be in addition to the salary paid to any officer or employee of the Corporation who is also a director. The directors may also by resolution award special remuneration to any director in undertaking any special services on the Corporation's behalf other than the normal work ordinarily required of a director of a corporation. The confirmation of any such resolution or resolutions by the shareholders shall not be required. The directors may fix the remuneration of the officers and employees of the Corporation. The directors, officers and employees shall also be entitled to be paid their travelling and other expenses properly incurred by them in connection with the affairs of the Corporation.
Protection of directors and officers
30. Indemnification
Subject to the provisions of section 124 of the Act, the Corporation shall indemnify a director or officer of the Corporation, a former director or officer of the Corporation or another individual who acts or acted at the Corporation's request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the Corporation or other entity. The Corporation is hereby authorized to execute agreements evidencing its indemnity in favour of the foregoing persons to the full extent permitted by law.
31. Insurance
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Subject to the Act, the Corporation may purchase and maintain such insurance for the benefit of any person referred to in paragraph 30 against any liability incurred by such person in his or her capacity as a director or officer of the Corporation or of another body corporate where he or she acts or acted in that capacity at the Corporation's request.
32. Limitation of Liability
Except as otherwise provided in the Act, no director or officer for the time being of the Corporation shall be liable for the acts, receipts, neglects or defaults of any other director or officer or employee or for joining in any receipt or act for conformity or for any loss, damage or expense happening to the Corporation through the insufficiency or deficiency of title to any property acquired by the Corporation or for or on behalf of the Corporation or for the insufficiency or deficiency of any security in or upon which any of the moneys of or belonging to the Corporation shall be placed out or invested or for any loss or damage arising from the bankruptcy, insolvency or tortious act of any persons, firm or corporation including any person, firm or corporation with whom or which any moneys, securities or effects shall be lodged or deposited for any loss, conversion, misapplication or misappropriation of or any damage resulting from any dealings with any moneys, securities or other assets belonging to the Corporation or for any other loss, damage or misfortune whatever which may happen in the execution of the duties of his respective office or trust or in relation thereto unless the same shall happen by or through his failure to exercise the powers and to discharge the duties of his office honestly and in good faith with a view to the best interests of the Corporation and in connection therewith to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The directors for the time being of the Corporation shall not be under any duty or responsibility in respect of any contract, act or transaction whether or not made, done or entered into in the name of or on behalf of the Corporation, except such as shall have been submitted to and authorized or approved by the board. If any director or officer of the Corporation shall be employed by or shall perform services for the Corporation otherwise than as a director or officer or shall be a member of a firm or a shareholder, director or officer of a company which is employed by or performs services for the Corporation, the fact of his being a director or officer of the Corporation shall not disentitle such director or officer or such firm or company, as the case may be, from receiving proper remuneration for such services.
SHAREHOLDERS' MEETINGS
33. Annual or Special Meetings
The directors of the Corporation
(a) shall call an annual meeting of shareholders not later than 18 months after the Corporation comes into existence and subsequently not later than 15 months after holding the last preceding annual meeting but no later than 6 months after the end of the Corporation's preceding financial year; and
(b) may at any time call a special meeting of shareholders.
34. Place of Meetings
Meetings of shareholders of the Corporation shall be held at such place within Canada as the directors may determine, or at a place outside Canada if the place is specified in the articles or all the shareholders entitled to vote at the meeting agree that the meeting is to be held at
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that place.
35. Electronic Participation and Voting
Subject to the Act, any person entitled to attend a meeting of shareholders may participate in the meeting by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the Corporation makes available such a communication facility. A person participating in a meeting by such means is deemed for all purposes of the Act and the by-laws to be present at the meeting. Subject to the Act, if the directors or the shareholders of the Corporation call a meeting of shareholders pursuant to the Act, those directors or shareholders, as the case may be, may determine that the meeting shall be held entirely by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting. Subject to the Act, any vote at a meeting of shareholders may be held entirely by means of a telephonic, electronic or other communication facility, if the Corporation makes available such a communication facility, and any person participating in a meeting of shareholders by means of such facility and entitled to vote at that meeting may vote by means of such facility, provided that any such facility made available by the Corporation shall enable the votes to be gathered in a manner that permits their subsequent verification and permit the tallied votes to be presented to the Corporation without it being possible for the Corporation to identify how each shareholder or group of shareholders voted.
36. Record Dates for Shareholder Meetings
Subject to section 134 of the Act, the directors may fix in advance a date as the record date for the purpose of determining shareholders entitled to receive notice of a meeting of shareholders and/or entitled to vote at a meeting of shareholders, but such record date shall not precede by more than 60 days or by less than 21 days the date on which the meeting is to be held. Such shareholders shall be determined as at the close of business on the date fixed by the directors, unless otherwise specified by the directors.
If no record date is fixed, the record date for the determination of the shareholders entitled to receive notice of a meeting of the shareholders and to vote shall be:
(a) at the close of business on the day immediately preceding the day on which the notice is given; or
(b) if no notice is given, the day on which the meeting is held.
37. Shareholder List
The Corporation shall prepare an alphabetical list of the shareholders entitled to receive notice of a meeting and vote at the meeting, showing the number of shares held by each shareholder,
(a) if a record date for determining the shareholder entitled to receive notice of the meeting and/or entitled to vote at the meeting has been fixed, not later than 10 days after that date; or
(b) if no record date has been fixed, on the record date established in accordance with
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paragraph
36 above.
A shareholder whose name appears on such list is entitled to vote the shares shown opposite such shareholder's name at the meeting to which the list relates.
38. Notice
A notice stating the day, hour and place of meeting and, if special business is to be transacted thereat, stating (i) the nature of that business in sufficient detail to permit the shareholder to form a reasoned judgment thereon, and (ii) the text of any special resolution to be submitted to the meeting, shall be sent to each shareholder entitled to vote at the meeting, to each director of the Corporation and to the auditor (if any) of the Corporation. Such notice shall be sent in accordance with the Act and these by-laws, if the Corporation is a distributing corporation, not less than 21 days (or, if the Corporation is not a distributing corporation, not less than such number of days as may be fixed by the directors) and not more than 60 days (exclusive of the day of mailing and of the day for which notice is given) before the date of every meeting. Notwithstanding the foregoing, a meeting of shareholders may be held for any purpose at any date and time and, subject to subsection 132(2) of the Act, at any place without notice if all the shareholders and other persons entitled to notice of such meeting are present in person or represented by proxy at the meeting (except where a shareholder or such other 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) or if all the shareholders and other persons entitled to notice of such meeting and not present in person nor represented by proxy thereat waive notice of the meeting. Notice of any meeting of shareholders or the time for the giving of any such notice or any irregularity in any such meeting or in the notice thereof may be waived in any manner by any shareholder, the duly appointed proxy of any shareholder, any director or the auditor of the Corporation and any other person entitled to attend a meeting of shareholders, and any such waiver may be validly given before, at or after the meeting to which such waiver relates.
The auditor (if any) of the Corporation is entitled to receive notice of every meeting of shareholders of the Corporation and, at the expense of the Corporation, to attend and be heard thereat on matters relating to the auditor's duties.
39. Omission of Notice
The accidental omission to give notice of any meeting to or the non-receipt of any notice by any person shall not invalidate any resolution passed or any proceeding taken at any meeting of shareholders.
40. Chair
The Chair of the Board (if any) shall when present preside at all meetings of shareholders. In the absence of the Chair of the Board (if any), the President or, if the President is also absent, a Vice-President (if any) shall act as chair. If none of such officers is present at a meeting of shareholders, the shareholders present entitled to vote shall choose a director as chair of the meeting and if no director is present or if all the directors decline to take the chair then the shareholders present shall choose one of their number to be chair.
41. Votes 14
Votes at meetings of the shareholders may be cast either personally or by proxy. At every meeting at which a shareholder is entitled to vote, such shareholder (if present in person) or the proxyholder for such shareholder shall have one vote on a show of hands. Upon a ballot on which a shareholder is entitled to vote, every shareholder (if present in person or by proxy) shall (subject to the provisions, if any, of the Corporation's articles) have one vote for every share registered in such shareholder's name.
Every question submitted to any meeting of shareholders shall be decided in the first instance on a show of hands and in case of an equality of votes the chair of the meeting shall not have a second or casting vote in addition to the vote or votes to which the chair may be entitled as a shareholder or proxy nominee.
At any meeting, unless a ballot is demanded by a shareholder or proxyholder entitled to vote at the meeting, either before or after any vote by a show of hands, a declaration by the chair of the meeting that a resolution has been carried or carried unanimously or by a particular majority or lost or not carried by a particular majority shall be evidence of the fact without proof of the number or proportion of votes recorded in favour of or against the motion.
If at any meeting a ballot is demanded on the election of a chair or on the question of adjournment or termination, the ballot shall be taken forthwith without adjournment. If a ballot is demanded on any other question or as to the election of directors, the ballot shall be taken in such manner and either at once or later at the meeting or after adjournment as the chair of the meeting directs. The result of a ballot shall be deemed to be the resolution of the meeting at which the ballot was demanded. A demand for a ballot may be made either before or after any vote by show of hands and may be withdrawn.
If the chair of a meeting of shareholders declares to the meeting that, if a ballot is conducted, the total number of votes attached to shares represented at the meeting by proxy required to be voted against what to the knowledge of the chair will be the decision of the meeting in relation to any matter or group of matters is less than 5% of all of the votes that might be cast by shareholders personally or by proxy at the meeting on the ballot, unless a shareholder or proxyholder demands a ballot prior to the vote,
(a) the chair may conduct the vote in respect of that matter or group of matters by a show of hands; and
(b) a proxyholder or alternate proxyholder may vote in respect of that matter or group of matters by a show of hands, notwithstanding any directions to the contrary given to such proxyholder or alternate proxyholder from any shareholder who appointed such proxyholder or alternate proxyholder, or any conflicting instructions from more than one such shareholder.
Where a body corporate or association is a shareholder, any individual authorized by a resolution of the directors or governing body of the body corporate or association may represent it at any meeting of shareholders and exercise at such meeting on behalf of the body corporate or association all the powers it could exercise if it were an individual shareholder, provided that the Corporation or the chair of the meeting may require such shareholder or such individual authorized by it to furnish a certified copy of such resolution or other appropriate evidence of the authority of such individual.
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Where two or more persons hold the same share or shares jointly, any one of such persons present at a meeting of shareholders has the right, in the absence of the other or others, to vote such share or shares, but if more than one of such persons are present or represented by proxy and vote, they shall vote together as one on the share or shares jointly held by them.
42. Proxies
A shareholder entitled to vote at a meeting of shareholders may by means of a proxy appoint a proxyholder or proxyholders or one or more alternate proxyholders, who are not required to be shareholders, to attend and act at the meeting in the manner and to the extent authorized by the proxy and with the authority conferred by the proxy.
A form of proxy shall be a written or printed form that complies with the Act and the regulations thereunder (to the extent applicable). A form of proxy becomes a proxy on completion by or on behalf of a shareholder and execution by the shareholder or such shareholder's attorney authorized in writing. Alternatively, a proxy may be an electronic document that satisfies the requirements of Part XX.1 of the Act. A proxy is valid only at the meeting in respect of which it is given or at any adjournment thereof.
The directors may specify in a notice calling a meeting of shareholders a time not exceeding 48 hours (excluding Saturdays, Sundays and holidays) preceding the meeting or an adjournment or postponement thereof before which time proxies to be used at the meeting must be deposited with the Corporation or its agent (subject to the rights of shareholders to revoke proxies, as provided below).
A shareholder may revoke a proxy either (i) by depositing an instrument in writing executed by the shareholder or by the shareholder's attorney authorized in writing at the registered office of the Corporation at any time up to and including the last business day preceding the day of the meeting, or an adjournment or postponement thereof, at which the proxy is to be used, or with the chair of the meeting on the day of the meeting or an adjournment or postponement thereof, or (ii) in any other manner permitted by law.
43. Adjournment
The chair of the meeting may with the consent of the meeting adjourn any meeting of shareholders from time to time to a fixed time and place. If the meeting is adjourned for less than 30 days, no notice of the time and place for the holding of the adjourned meeting need be given to any shareholder, other than by announcement at the earliest meeting that is adjourned. If a meeting of shareholders is adjourned by one or more adjournments for an aggregate of 30 days or more, notice of the adjourned meeting shall be given as for an original meeting but, unless the meeting is adjourned by one or more adjournments for an aggregate of more than 90 days, subsection 149(1) of the Act does not apply. Any adjourned meeting shall be duly constituted if held in accordance with the terms of the adjournment and a quorum is present thereat. The persons who form the quorum at the adjourned meeting need not be the same persons who formed the quorum at the original meeting. If there is no quorum present at the adjourned meeting, the original meeting shall be deemed to have terminated forthwith after its adjournment. Any business may be brought before or dealt with at any adjourned meeting which might have been brought before or dealt with at the original meeting in accordance with the notice calling the same.
44. Quorum
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Two persons present and each holding or representing by proxy at least one issued share of the Corporation shall be a quorum of any meeting of shareholders for the choice of a chair of the meeting and for the adjournment of the meeting to a fixed time and place but may not transact any other business; for all other purposes a quorum for any meeting shall be persons present not being less than two in number and holding or representing by proxy not less than 10% of the total number of the issued shares of the Corporation for the time being enjoying voting rights at such meeting. If a quorum is present at the opening of a meeting of shareholders, the shareholders present may proceed with the business of the meeting, notwithstanding that a quorum is not present throughout the meeting.
Notwithstanding the foregoing, if the Corporation has only one shareholder, or only one shareholder of any class or series of shares, the shareholder present in person or by proxy constitutes a meeting and a quorum for such meeting.
45. Resolutions in Writing
Subject to subsection 142(1) of the Act,
(a) a resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders; and
(b) a resolution in writing dealing with all matters required by the Act to be dealt with at a meeting of shareholders, and signed by all the shareholders entitled to vote at that meeting, satisfies all the requirements of the Act relating to meetings of shareholders.
SHARES AND TRANSFERS
46. Issuance
Subject to the articles of the Corporation, shares in the Corporation may be issued at such time and issued to such persons and for such consideration as the directors may determine.
47. Security Certificates
Security certificates (and the form of transfer power on the reverse side thereof) shall (subject to compliance with section 49 of the Act) be in such form as the directors may from time to time by resolution approve and such certificates shall be signed by a director or officer of the Corporation, or by a registrar, transfer agent or branch transfer agent of the Corporation, or an individual on their behalf, or by a trustee who certifies it in accordance with a trust indenture, or the signature shall be printed or otherwise mechanically reproduced on the certificate. If a security certificate contains a printed or mechanically reproduced signature of a person, the Corporation may issue the security certificate, notwithstanding that the person has ceased to be a director or an officer of the Corporation, and the security certificate is as valid as if the person were a director or an officer at the date of its issue.
48. Agent
The directors may from time to time by resolution appoint or remove an agent to
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maintain a central securities register and branch securities registers for the Corporation.
49. Surrender of Security Certificates
Subject to the Act, no transfer of a security issued by the Corporation shall be recorded or registered unless and until either (i) the security certificate representing the security to be transferred has been surrendered and cancelled, or (ii) if no security certificate has been issued by the Corporation in respect of such share, a duly executed security transfer power in respect thereof has been presented for registration.
50. Defaced, Destroyed, Stolen or Lost Security Certificates
In case of the defacement, destruction, theft or loss of a security certificate, the fact of such defacement, destruction, theft or loss shall be reported by the owner to the Corporation or to a trustee, registrar, transfer agent or other agent of the Corporation (if any) acting on behalf of the Corporation, with a statement verified by oath or statutory declaration as to the defacement, destruction, theft or loss and the circumstances concerning the same and with a request for the issuance of a new security certificate to replace the one so defaced, destroyed, stolen or lost. Upon the giving to the Corporation (or, if there is such an agent, then to the Corporation and to such agent) of an indemnity bond of a surety company in such form as is approved by any authorized officer of the Corporation, indemnifying the Corporation (and such agent, if any) against all loss, damage and expense, which the Corporation and/or such agent may suffer or be liable for by reason of the issuance of a new security certificate to such shareholder, and provided the Corporation or such agent does not have notice that the security has been acquired by a bona fide purchaser, a new security certificate may be issued in replacement of the one defaced, destroyed, stolen or lost, if such issuance is ordered and authorized by any authorized officer of the Corporation or by resolution of the directors.
DIVIDENDS
51. Declaration and Payment of Dividends
The directors may from time to time by resolution declare and the Corporation may pay dividends on its issued shares, subject to the provisions (if any) of the Corporation's articles.
The directors shall not declare and the Corporation shall not pay a dividend if there are reasonable grounds for believing that:
(a) the Corporation is, or would after the payment be, unable to pay its liabilities as they become due; or
(b) the realizable value of the Corporation's assets would thereby be less than the aggregate of its liabilities and stated capital of all classes.
The Corporation may pay a dividend by issuing fully paid shares of the Corporation and, subject to section 42 of the Act, the Corporation may pay a dividend in money or property.
52. Joint Securityholders
In case several persons are registered as the joint holders of any securities of the
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Corporation, any one of such persons may give effectual receipts for all dividends and payments on account of dividends, principal, interest and/or redemption payments on redemption of securities (if any) subject to redemption in respect of such securities.
RECORD DATES
53. Shareholders' Meetings
Subject to section 134 of the Act, the directors may fix in advance a date as the record date for the purpose of determining shareholders entitled to receive notice of a meeting of shareholders and/or entitled to vote at a meeting of shareholders, but such record date shall not precede by more than 60 days or by less than 21 days the date on which the meeting is to be held. Such shareholders shall be determined as at the close of business on the date fixed by the directors, unless otherwise specified by the directors.
If no record date is fixed, the record date for the determination of the shareholders entitled to receive notice of a meeting of the shareholders and to vote shall be:
(a) at the close of business on the day immediately preceding the day on which the notice is given; or
(b) if no notice is given, the day on which the meeting is held.
54. Dividends, Distributions or Other Purposes
Subject to section 134 of the Act, the directors may fix in advance a date as the record date for the determination of shareholders (i) entitled to receive payment of a dividend, (ii) entitled to participate in a liquidation or distribution, (iii) for any other purpose (other than to establish a shareholder's right to receive notice of a meeting or to vote), but such record date shall not precede by more than 60 days the particular action to be taken. Such shareholders shall be determined as at the close of business on the date fixed by the directors, unless otherwise specified by the directors.
If no record date is fixed, the record date for the determination of shareholders for any purpose other than to establish a shareholder's right to receive notice of a meeting or to vote shall be at the close of business on the day on which the directors pass the resolution relating thereto.
55. Notice of Record Date
If a record date is fixed, unless notice of the record date is waived in writing by every holder of a share of the class or series affected whose name is set out in the securities register at the close of business on the day the directors fix the record date, notice thereof shall be given, not less than seven days before the date so fixed,
(a) by advertisement in a newspaper published or distributed in the place where the Corporation has its registered office and in each place in Canada where it has a transfer agent or where a transfer of its shares may be recorded; and
(b) by written notice to each stock exchange in Canada on which the shares of the
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Corporation are listed for trading.
SECURITIES OF OTHER ISSUERS HELD BY CORPORATION
56. Any one director or officer is authorized to (i) sell, assign, transfer, exchange, convert or convey all securities owned by or registered in the name of the Corporation and to sign and execute (under the seal of the Corporation or otherwise) all assignments, transfers, conveyances, powers of attorney and other instruments that may be necessary for the purpose of selling, assigning, transferring, exchanging, converting or conveying any such securities, and (ii) vote all securities owned by or registered in the name of the Corporation carrying voting rights at all meetings of shareholders, bondholders, debenture holders or holders of such securities, as the case may be.
NOTICES, ETC.
57. Service
Any notice or other document required to be given or sent by the Corporation to any shareholder or director or the auditor of the Corporation shall be delivered personally or sent by prepaid mail or by fax, email or other electronic means capable of producing a written copy addressed to:
(a) such shareholder at such shareholder's latest address as shown on the records of the Corporation or its transfer agent;
(b) such director at such director's latest address as shown in the records of the Corporation or in the last notice filed under section 106 or 113 of the Act; and
(c) the auditor of the Corporation at the auditor's latest address known to the Corporation.
With respect to every notice or other document sent by prepaid mail, it shall be sufficient to prove that the envelope or wrapper containing the notice or other document was properly addressed and put into a post office or into a post office letter box and such notice or document shall be deemed to be received at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that the recipient did not receive the notice or document at that time or at all.
58. Shareholders Who Cannot be Found
If the Corporation sends a notice or document to a shareholder and the notice or document is returned on two consecutive occasions because the shareholder cannot be found, the Corporation is not required to send any further notices or documents to the shareholder until the shareholder informs the Corporation in writing of the shareholder's new address.
59. Shares Registered in More than One Name
All notices or other documents shall, with respect to any shares in the capital of the Corporation registered in more than one name, be given to whichever of such persons is named first in the records of the Corporation and any notice or other document so given shall be sufficient notice
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or delivery of such document to all the holders of such shares.
60. Persons Becoming Entitled by Operation of Law
Every person who by operation of law, transfer or by any other means whatsoever shall become entitled to any shares in the capital of the Corporation shall be bound by every notice or other document in respect of such shares which prior to such person's name and address being entered on the records of the Corporation shall have been duly given to the person or persons from whom such person derives title to such shares.
61. Deceased Shareholder
Any notice or other document delivered or sent by post or left at the address of any shareholder as the same appears in the records of the Corporation shall, notwithstanding that such shareholder be then deceased and whether or not the Corporation has notice of such shareholder's death, be deemed to have been duly served in respect of the shares held by such shareholder (whether held solely or with other persons) until some other person be entered in such shareholder's stead in the records of the Corporation as the holder or one of the holders thereof and such service shall for all purposes be deemed a sufficient service of such notice or other document on such shareholder's heirs, executors or administrators and all persons (if any) interested with such shareholder in such shares.
62. Signatures to Notices
The signature of any director or officer of the Corporation to any notice may be written, printed or otherwise mechanically reproduced.
63. Computation of Time
Where notice is required to be given under any provisions of the articles or by-laws of the Corporation, or any time period or time limit for the doing of any other act is prescribed by the articles or by-laws, the notice period or such other time period or time limit shall be determined in accordance with sections 26 to 30, inclusive, of the Interpretation Act (Canada), R.S.C. 1985, c. I-21, unless otherwise expressly provided in the articles or by-laws.
64. Proof of Service
A certificate of any officer of the Corporation in office at the time of the making of the certificate or of an agent of the Corporation as to facts in relation to the mailing or delivery or service or other communication of any notice or other documents to any shareholder, director, officer or auditor or as to the publication of any notice or other document shall be conclusive evidence thereof and shall be binding on every shareholder, director, officer or auditor of the Corporation, as the case may be.
EXECUTION OF CONTRACTS, ETC.
65. Authorization to Sign Contracts
Contracts, documents or instruments in writing requiring the signature of the Corporation may be signed by any one director or officer and all contracts, documents or instruments
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in writing so signed shall be binding upon the Corporation without any further authorization or formality. The directors are authorized from time to time by resolution to appoint any officer or officers or any other person or persons on behalf of the Corporation either to sign contracts, documents or instruments in writing generally or to sign specific contracts, documents or instruments in writing. The term "contracts, documents or instruments in writing" as used in this by-law shall include deeds, mortgages, hypothecs, charges, conveyances, transfers and assignments of property, real or personal, immovable or movable, powers of attorney, agreements, releases, receipts and discharges for the payment of money or other obligations, conveyances, transfers and assignments of securities and all paper writings.
66. Corporate Seal
The corporate seal, if any, of the Corporation may, when required, be affixed to contracts, documents or instruments in writing signed as aforesaid or by an officer or officers, person or persons appointed as aforesaid by resolution of the board of directors.
67. Reproduction of Signatures
The signature or signatures of any officer or director of the Corporation and/or of any other officer or officers, person or persons appointed as aforesaid by resolution of the directors may, if specifically authorized by resolution of the directors, be printed, engraved, lithographed or otherwise mechanically reproduced upon all contracts, documents or instruments in writing or bonds, debentures or other securities of the Corporation executed or issued by or on behalf of the Corporation and all contracts, documents or instruments in writing or securities of the Corporation on which the signature or signatures of any of the foregoing officers, directors or persons shall be so reproduced, by authorization by resolution of the directors, shall be deemed to have been manually signed by such officers, directors or persons whose signature or signatures is or are so reproduced and shall be as valid to all intents and purposes as if they had been signed manually and notwithstanding that the officers, directors or persons whose signature or signatures is or are so reproduced may have ceased to hold office at the date of delivery or issue of such contracts, documents or instruments in writing or securities of the Corporation.
68. Signature of Cheques, Notes, e tc.
All cheques, drafts or orders for the payment of money and all notes, acceptances and bills of exchange shall be signed by such officer or officers or other person or persons, whether or not officers of the Corporation, and in such manner as the directors, or such officer or officers as may be delegated authority by the directors to determine such matters, may from time to time designate.
FINANCIAL YEAR
69. The financial year of the Corporation shall end on such day in each year as the board of directors may from time to time by resolution determine.
BORROWING
70. Authority of Directors
The directors may and they are hereby authorized from time to time to, without
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authorization of the shareholders,
(a) borrow money upon the credit of the Corporation;
(b) limit or increase the amount to be borrowed;
(c) issue, reissue, sell or pledge bonds, debentures, notes or other debt obligations of the Corporation for such sums and at such prices as may be deemed expedient;
(d) give a guarantee on behalf of the Corporation to secure payment or performance of an obligation of any person; and
(e) mortgage, hypothecate, charge, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired real and personal, movable and immovable, property of the Corporation and the undertaking and rights of the Corporation, to secure any such bonds, debentures, notes or other debt obligations, or to secure any present or future borrowing, liability or obligation of the Corporation, including any guarantee given pursuant to subparagraph 70(d) above.
71. Delegation by Directors
The directors may from time to time by resolution delegate to any one or more directors or officers, or to any committee of directors, of the Corporation all or any of the powers conferred on the directors by paragraph 70 above to the full extent thereof or such lesser extent as the directors may in any such resolution provide.
72. Other Borrowing Powers
The powers hereby conferred shall be deemed to be in supplement of and not in substitution for any other powers to borrow money for the purposes of the Corporation or to do any other acts or things referred to in paragraph 70 above possessed by its directors or officers pursuant to the articles of the Corporation, any other by-law of the Corporation or applicable law.
PASSED by the directors of the Corporation on April 14, 2015
CONFIRMED by the shareholders of the Corporation on May 19, 2015
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Exhibit 5.1
November 5, 2018 | |
Reference: 15211/2 | |
Americas Silver Corporation
145 King Street West, Suite 2870 Toronto, Ontario, Canada M5H 1J8 |
|
|
RE: |
Americas Silver Corporation
Registration Statement on Form F-4 |
Dear Sirs/Mesdames:
We have acted as Canadian counsel to Americas Silver Corporation (the “ Corporation ”), a corporation existing under the Canada Business Corporations Act , in connection with the Registration Statement on Form F-4, which includes the proxy statement of Pershing Gold Corporation (“ Pershing Gold ”) and the annexes and exhibits thereto (the “ Registration Statement ”), filed by the Corporation with the U.S. Securities and Exchange Commission (the “ SEC ”) under the U.S. Securities Act of 1933, as amended (the “ Act ”), and the rules and regulations thereunder, relating to the proposed issuance by the Corporation of common shares in the capital of the Corporation (the “ Common Shares ”) and class A non-voting preferred shares in the capital of the Corporation (the “ Preferred Shares ” and, together with the Common Shares, the “ Shares ”) in connection with the merger (the “ Transaction ”) contemplated by the agreement and plan of merger dated as of September 28, 2018 (the “ Merger Agreement ”) among the Corporation, Pershing Gold and R Merger Sub, Inc. (“ Merger Sub ”), a Nevada corporation and wholly-owned subsidiary of the Corporation pursuant to which, among other things, the Corporation agreed to acquire all of the issued and outstanding shares of Pershing Gold’s common stock (the “ Pershing Gold Common Stock ”) and series E preferred stock (the “ Series E Preferred Stock ” and, together with the Pershing Gold Common Stock, the “ Pershing Gold Stock ”) and Merger Sub will merge with Pershing Gold, with Pershing Gold surviving as a wholly-owned subsidiary of Americas Silver.
Pursuant to the Merger Agreement and as more fully described in the Registration Statement, at the effective time of the Transaction (the “ Effective Time ”):
(i) | each issued and outstanding share of Pershing Gold Common Stock (other than shares of Pershing Gold Common Stock owned by the Corporation, Merger Sub or Pershing Gold, or any of their respective direct or indirect wholly-owned subsidiaries as of immediately prior to the Effective Time, which shares will automatically be cancelled and retired and will cease to exist, with no consideration being delivered therefor) will be automatically converted into the right to receive 0.715 Common Shares for each share of Pershing Gold Common Stock (the “ Common Stock Consideration ”); and |
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(ii) | each issued and outstanding share of Series E Preferred Stock (other than shares of Series E Preferred Stock owned by the Corporation, Merger Sub or Pershing Gold, or any of their respective direct or indirect wholly-owned subsidiaries as of immediately prior to the Effective Time, which shares will automatically be cancelled and retired and will cease to exist, with no consideration being delivered therefor) will be, at the election of the holder thereof, either (A) converted into the right to receive 461.440 Preferred Shares per share of Series E Preferred Stock, or (B) converted into the right to the Common Stock Consideration to which such holder of Series E Preferred Stock would be entitled if the shares of Series E Preferred Stock held by such holder were converted into Pershing Gold Common Stock and then converted into Common Shares in accordance with paragraph (i) above. |
This opinion is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with the opinion expressed herein, we have considered such questions of law and have examined such public and corporate records, certificates and other documents and conducted such other examinations as we have considered necessary or relevant for the purposes of providing this opinion. We have also examined the Registration Statement and the Merger Agreement, which has been filed with the SEC as an exhibit to the Registration Statement. In such examination, we have assumed the legal capacity of all individuals, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed or photostatic or facsimile copies.
As to certain matters of fact relevant to the opinion expressed below, we have relied exclusively upon certificates or comparable documents and representations of public officials and of officers and representatives of the Corporation, including, without limitation, a certificate of an officer of the Corporation dated the date hereof and a certificate of compliance, dated November 5, 2018, issued by Corporations Canada pursuant to the Canada Business Corporations Act with respect to the Corporation.
Our opinion herein pertains solely to matters governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein.
For the purposes of our opinion, we have assumed that the articles of incorporation of the Corporation will have been amended to create the Preferred Shares in accordance with the terms of the Merger Agreement prior to the issuance of any Preferred Shares.
Based and relying upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that the Shares, when issued in accordance with the terms and conditions set forth in the Merger Agreement, will be validly issued as fully paid and non-assessable common shares or preferred shares, as applicable, in the capital of the Corporation.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the use of our name under the captions “Enforcement of Civil Liabilities Against Foreign Persons” and “Legal Matters” in the proxy statement of Pershing Gold included in the Registration Statement. In giving the foregoing consent, we do not 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 SEC promulgated thereunder.
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The opinion expressed herein is provided solely for your benefit in connection with the filing of the Registration Statement with the SEC and may not be relied on for any other purpose or relied upon by, or furnished to, any other person, firm or corporation, or quoted from or referred to in any document other than the Registration Statement, or used for any other purpose, without our prior written consent.
Yours truly,
/s/ Blake, Cassels & Graydon LLP
Exhibit 10.1
SCORPIO MINING CORPORATION
AMENDED AND RESTATED STOCK OPTION PLAN
As of January 30, 2015
1. | GENERAL PROVISIONS |
1.1 | Interpretation |
For the purpose of this Plan, the following terms shall have the following meanings:
(a) | "Administrator" means, initially, the secretary of the Corporation and thereafter shall mean such director, officer or employee of the Corporation as may be designated from time to time, as Administrator by the Board or an authorized committee of the Board; |
(b) | "Associate" has the meaning ascribed to that term under section 1 of the Securities Act (British Columbia); |
(c) | "Board" means the board of directors of the Corporation; |
(d) | "Certificate" means a certificate, substantially in the form set out as Schedule "A" hereto, evidencing an Option; |
(e) | "Common Shares" means the common shares without par value of the Corporation as currently constituted; |
(f) | "Corporation" means Scorpio Mining Corporation; |
(g) | "Consultant" means an individual (including an individual whose services are contracted through a personal holding corporation) with whom the Corporation or any of its Subsidiaries has a contract for services who is approved for participation in the Plan by the Board and for whom there exists an exemption from applicable prospectus requirements permitting the granting of an Option; |
(h) | “Exchange” means the Toronto Stock Exchange; |
(i) | "Effective Date" means January 30, 2015; |
(j) | "Eligible Person" means, subject to all applicable laws, any director, officer, employee (whether part-time or full-time), or Consultant of the Corporation or any of its Subsidiaries; |
(k) | "Exercise Notice" means the notice respecting the exercise of an Option, in substantially the form set out as Schedule "B" hereto, duly executed by the Option Holder; |
(l) | "Insider" means: |
(i) | an insider as defined under section 1(1) of the Securities Act (British Columbia), other than a person who falls within that definition solely by virtue of being a director or senior officer of a subsidiary of the Corporation, and |
(ii) | an Associate of any person who is an insider by virtue of (i) above: |
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(m) | "Option" means an option to purchase Common Shares granted to an Eligible Person pursuant to the terms of the Plan; |
(n) | "Original Stock Option Plan" means the Stock Option Plan of the Corporation with an effective date of May 1, 2007. |
(o) | "Outstanding Issue" is determined on the basis of the number of Common Shares that are outstanding (on a non-diluted basis) immediately prior to the share issuance or grant of Option in question; |
(p) | "Participant" means Eligible Persons to whom Options have been granted; |
(q) | "Personal Representative" means: |
(i) | in the case of a deceased Participant, the executor or administrator of the deceased duly appointed by a court or public authority having jurisdiction to do so; and |
(ii) | in the case of a Participant who for any reason is unable to manage his or her affairs, the person entitled by law to act on behalf of such Participant; |
(r) | “Plan" means this Amended and Restated Stock Option Plan of the Corporation; |
(s) | "Share Compensation Arrangement" means any stock option, stock option plan, employee stock purchase plan or any other compensation or incentive mechanism involving the issuance or potential issuance of Common Shares to Eligible Persons, including a share purchase from treasury which is financially assisted by the Corporation by way of a loan, guarantee or otherwise; |
(t) | "Subsidiary" has the meaning ascribed to it under section 1 of the Securities Act |
(British Columbia); and
(u) | "Termination Date" means the date on which a Participant ceases to be an Eligible Person in any capacity. |
Words importing the singular number only shall include the plural and vice versa and words importing the masculine shall include the feminine.
This Plan is established under and the provisions of the Plan shall be interpreted and construed in accordance with the laws of British Columbia.
1.2 | Purpose |
The purpose of the Plan is to advance the interests of the Corporation by (i) providing Eligible Persons with additional incentive, (ii) encouraging stock ownership by such Eligible Persons, (iii) increasing the proprietary interest of Eligible Persons in the success of the Corporation, (iv) encouraging the Eligible Persons to remain with the Corporation or its Subsidiary Companies, and (v) attracting new Eligible Persons.
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1.3 | Administration |
(a) | This Plan shall be administered by the Board or a committee of the Board duly authorized for this purpose by the Board and consisting of not less than three directors, as assisted by the Administrator. If a committee is authorized for this purpose, all references to the Board will be deemed to be references to the committee. |
(b) | Subject to the limitations of the Plan, the Board shall have the authority: |
(i) | to grant options to purchase Common Shares to Eligible Persons; |
(ii) | to determine the terms, limitations, restrictions and conditions respecting such grants; |
(iii) | to interpret the Plan and to adopt, amend and rescind such administrative guidelines and other rules and regulations relating to the Plan as it shall from time to time deem advisable; and |
(iv) | to make all other determinations and to take all other actions in connection with the implementation and administration of the Plan including, without limitation, for the purpose of ensuring compliance with section 1.6 hereof, as it may deem necessary or advisable. |
(c) | The interpretation by the Board or an authorized committee of the Board of any of the provisions of the Plan and any determination by it pursuant thereto shall be final and conclusive and shall not be subject to any dispute by any Participant. No member of the Board or any person acting pursuant to authority delegated by the Board hereunder shall be liable for any action or determination in connection with the Plan made or taken in good faith and each member of the Board and each such person shall be entitled to indemnification with respect to any such action or determination in the manner provided for by the Corporation. |
1.4 | Shares Reserved |
(a) | The number of Common Shares issuable under the Plan combined with the number of Common Shares issuable under all security-based compensation arrangements of the Company shall not exceed 10% of the issued and outstanding Common Shares as at the date of such Award. |
(b) | Notwithstanding anything else contained herein, the number of Common Shares of the Company which are (i) issuable at any time, and (ii) issued within any one year period, to insiders (as such term is defined in Part 1 of the TSX Company Manual) of the Company pursuant to the terms of the Plan and under any other security-based compensation arrangement, shall not exceed 10% of the Company’s total issued and outstanding Common Shares. |
(c) | Any Common Shares subject to an Option which for any reason is cancelled or terminated without having been exercised shall again be available for grant under the Plan. No fractional shares shall be issued. Reference should be made to section 1.8(d) for the manner in which fractional share values shall be treated. |
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1.5 | Amendment and Termination |
(a) | The Board may amend, suspend or terminate the Plan or any portion thereof at any time in accordance with applicable legislation, and subject to any required stock exchange or shareholder approval. No such amendment, suspension or termination shall alter or impair any Options or any rights pursuant thereto granted previously to any Participant without the consent of such Participant. If the Plan is terminated, the provisions of the Plan and any administrative guidelines, and other rules and regulations adopted by the Board and in force at the time of the Plan shall continue in effect during such time as an Option or any rights pursuant thereto remain outstanding. |
(b) | With the consent of the affected Participants, the Board may amend or modify any outstanding Option in any manner, to the extent that the Board would have had the authority to initially grant such Option as so modified or amended, including without limitation, to change the date or dates as of which an Option becomes exercisable, subject to the prior approval of the Exchange, if required. |
(c) | Subject to applicable approval of the Exchange, the Board may, at any time, suspend or terminate the Plan. Subject to applicable approval of the Exchange, the Board may also at any time amend or revise the terms of the Plan, provided that no such amendment or revision shall alter the terms of any options theretofore granted under the Plan. |
(d) | Pursuant to the policies of the Exchange, the Board may, at any time, without further approval by the shareholders of the Corporation, amend the Plan or any Option granted hereunder in such respects as it may consider advisable and, without limiting the generality of the foregoing, it may do so to: |
(i) | amend typographical, clerical and grammatical errors; |
(ii) | reflect changes to applicable securities laws; |
(iii) | change the termination provisions of Options or the Plan which do not entail an extension beyond the original expiry date; |
(iv) | include the addition of a cashless exercise feature, payable in cash or securities. |
(v) | ensure that the Options granted under the Plan will comply with any provisions respecting the income tax and other laws in force in any country or jurisdiction of which a Participant to whom an Option has been granted may from time to time be resident or a citizen; and |
(vi) | reduce the exercise price of an Option for a Participant who is not an Insider. |
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1.6 | Compliance with Legislation |
The Plan, the grant and exercise of Options hereunder and the Corporation's obligation to issue and deliver Common Shares upon exercise of Options shall be subject to all applicable federal, provincial and foreign laws, rules and regulations, the rules and regulation of any stock exchange on which the Common Shares are listed for trading and to such approvals by any regulatory or governmental agency as may, in the opinion of counsel to the Corporation, be required. The Corporation shall not be obliged by any provision of the Plan or the grant of any Option hereunder to issue or sell Common Shares in violation of such laws, rules and regulations or any condition of such approvals. No Option shall be granted and no Common Shares issued or sold hereunder where such grant, issue or sale would require registration of the Plan or of Common Shares under the securities laws of any foreign jurisdiction and any purported grant of any Option or issue or sale of Common Shares hereunder in violation of this provision shall be void. In addition, the Corporation shall have no obligation to issue any Common Shares pursuant to the Plan unless such Common Shares shall have been duly listed, upon official notice of issuance, with all stock exchanges on which the Common Shares are listed for trading. Common Shares issued and sold to Participants pursuant to the exercise of Options may be subject to limitations on sale or resale under applicable securities laws and, if deemed necessary or expedient by the Board, the certificates representing the Common Shares issued upon the exercise of Options shall have a legend pertaining to such restriction.
1.7 | Effective Date |
This Plan is effective as of the Effective Date and supersedes and replaces the Original Stock Option Plan. All options outstanding as of the Effective Date under the Original Stock Option Plan shall be deemed to be outstanding under this Plan.
1.8 | Miscellaneous |
(a) | Nothing contained herein shall prevent the Board from adopting other or additional compensation arrangements, subject to any required regulatory or shareholder approval. |
(b) | Nothing contained in the Plan nor in any Option granted thereunder shall be deemed to give any Participant any interest or title in or to any Common Shares of the Corporation or any rights as a shareholder of the Corporation or any other legal or equitable right against the Corporation whatsoever other than as set forth in the Plan and pursuant to the exercise of any Option. |
(c) | The Plan does not give any Eligible Person the right or obligation to become or to continue to serve as a director, officer, Consultant, or employee, as the case may be, of the Corporation or any of its Subsidiaries. The awarding of Options to any Eligible Person is a matter to be determined solely in the discretion of the Board. The Plan shall not in any way fetter, limit, obligate, restrict or constrain the Board with regard to the allotment or issue of any Common Shares or any other securities in the capital of the Corporation or any of its Subsidiaries other than as specifically provided for in the Plan. |
(d) | No fractional Common Shares shall be issued upon the exercise of Options and, accordingly, if a Participant would become entitled to a fractional Common Share upon the exercise of an Option, such Participant shall only have the right to purchase the next lowest whole number of Common Shares and no payment or other adjustment will be made with respect to the fractional interest so disregarded. |
(e) | The grant of an Option shall be conditional upon the Eligible Person to whom the Option is granted completing, signing and delivering to the Corporation all documents as may be required by the regulatory authorities having jurisdiction. |
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2. | OPTIONS |
2.1 | Grants |
Subject to the provisions of the Plan, the Board shall have the authority to determine the limitation, restrictions and conditions, if any, in addition to or in variation of those set forth in section 2.3 hereof, applicable to the exercise of an Option, including, without limitation, the nature and duration of the restrictions, if any, to be imposed upon the exercise of the Option or the sale or other disposition of Common Shares acquired upon exercise of the Option, and the nature of the events, if any, and the duration of the period in which any Participant's rights in respect of Common Shares acquired upon exercise of an Option may be forfeited, with the discretion in the Board to modify or rescind such restrictions in the event of certain corporate developments including but not limited to a takeover bid, reorganization, merger, change in capital or amalgamation. An Eligible Person may receive Options on more than one occasion under the Plan and may receive separate Options on any one occasion.
2.2 | Option Price |
The Board shall establish the option exercise price at the time each Option is granted, which shall in all cases be not less than the closing price of the Common Shares on the Exchange immediately preceding the date of grant.
2.3 | Exercise of Options |
(a) | Options granted must be exercised no later than 10 years after the date of grant or such lesser period as may be determined by the Board. |
(b) | An Option may be exercised only by the Participant or the Personal Representative of any Participant. An Option may be exercised, in whole or in part (subject to any applicable exercise restrictions), at any time or from time to time up to 4:30 p.m. (Vancouver time) on its expiry date by delivering to the Administrator an Exercise Notice, the applicable Certificate and a cheque, bank draft or wire transfer payable to the Corporation in an amount equal to the aggregate exercise price of the Common Shares to be purchased pursuant to the exercise of the Option. |
(c) | As soon as practicable following the receipt of the Exercise Notice, the Administrator shall cause to be delivered to the Participant a certificate for the Common Shares so purchased. If the number of Common Shares so purchased is less than the number of Common Shares subject to the Certificate surrendered, the Administrator shall forward a new Certificate to the Participant concurrently with delivery of the aforesaid share certificate for the balance of the Common Shares available under the Option. |
(d) | Subject to section 2.3(e)(ii), Options shall not be transferable or assignable, in whole or in part. |
(e) | Subject to section 2.3(a) and except as otherwise determined by the Board: |
(i) | if a Participant ceases to be an Eligible Person for any reason whatsoever other than death, each Option held by the Participant will cease to be exercisable on or before the earlier of the expiry date of the Option and 90 days after the Termination Date. If any portion of an Option is not vested by the Termination Date, that portion of the Option may not under any circumstances be exercised by the Participant. Without limitation, and for greater certainty only, this provision will apply regardless of whether the Participant was dismissed with or without cause and regardless of whether the Participant received compensation in respect of dismissal or is entitled to a period of notice of termination which would otherwise have permitted a greater portion of the Option to vest with the Participant; and |
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(ii) | if a Participant dies while an Eligible Person, the legal representative of the Participant may exercise the Participant's Options on or before the earlier of the expiry date of the Option and the date that is twelve months after the date of the Participant's death, but only to the extent the Options were by their terms exercisable on the date of death. |
(f) | In lieu of paying the aggregate exercise price to purchase Common Shares as contemplated in Section 2.3 (b), the Participant may elect to receive, without payment of cash or other consideration except as required by Section 2.8, upon surrender of the applicable portion of a then vested and exercisable Option to the Company at the address set out in Schedule B, a number of Common Shares determined in accordance with the following formula (a “ Cashless Exercise ”): |
A = B (C – D)/C,
where:
A = the number of Common Shares to be issued to the Participant pursuant to this Section 2.3 (f);
B = the number of Common Shares otherwise issuable upon the exercise of the Option or portion of the Option being exercised;
C = the closing price of the Common Shares on the Exchange immediately preceding the date of delivery of the written Exercise Notice referred to in Section 2.3 (b); and
D = the exercise price of the Option.
For greater certainty, upon the Cashless Exercise of an Option (or portion thereof), the total number of Common Shares that may be issued pursuant to the exercise of Options under the Plan, as set forth in Section 1.4, shall be reduced by the total number of Common Shares with respect to which the Option (or portion thereof) was surrendered.
2.4 | Adjustment to Shares |
(a) Subject to the policies, rules and regulations of any lawful authority having jurisdiction (including any exchange with which the shares of the Corporation are listed for trading), the number of shares in respect of which options may be granted under the Plan shall be increased or decreased proportionately in the event of the subdivision or consolidation of the shares of the Corporation and, in the event of any such subdivision or consolidation, an appropriate adjustment shall be made so as to change the number of shares deliverable upon the exercise of the unexercised portion of any option theretofore granted, without change in the total price applicable to the unexercised portion of any option but with the corresponding adjustment in the price for each share covered thereby.
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(b) In the event the Corporation is re-organized, amalgamated or merged with or consolidated into another corporation or in the event there is a change in control of the Corporation, the Board may make such provisions as it deems appropriate for the exercise of outstanding options or continuance of outstanding Options to prevent any increase or decrease in the number of shares deliverable upon their exercise.
2.5 | Effect of Take-Over |
If a bona fide takeover offer is made to a Participant or to shareholders generally or to the Corporation, which includes among other transactions (i) an offer (the “ Offer ”) to acquire shares of the Corporation which, if successful, would result in the offeror exercising control over the Corporation within the meaning of subsection 1(3) of the Securities Act (British Columbia) (as amended from time to time), or (ii) the completion of a business combination transaction (the “ Transaction ”) involving the Corporation under which, following such Transaction, the shareholders of the Corporation hold less than 50% of the total voting securities of the resulting or successor corporation following such completion, then the Corporation shall, immediately upon receipt of notice of the Offer or upon announcement of the Transaction, notify each Participant currently holding an Option of the Offer or the Transaction, with full particulars thereof, whereupon all Options outstanding will become immediately vested and be fully exercisable notwithstanding any vesting restriction that would otherwise apply. Unless the Board determines otherwise (in its discretion), upon the expiration of the time period specified in such notice, all rights of the Participants to exercise any outstanding Options, whether vested or unvested, shall terminate and all such Options shall immediately expire and cease to have any further force or effect, subject to the completion of the relevant Offer or Transaction.
2.6 | Incorporation of Terms of Stock Option Plan |
Subject to specific variations approved by the Board, all terms and conditions set out herein will be deemed to be incorporated into and form part of each Certificate representing an Option granted under this Stock Option Plan.
2.7 | Extension of Expiry Date of Stock Options Due to a Blackout Period |
The expiry date of outstanding Options held by Participants which may expire during a restricted trading period imposed by the Corporation in accordance with applicable securities laws (a " Blackout Period "), or within 10 business days of the expiry of a Blackout Period, will be extended for a period of time ending on the tenth business day after the expiry date of the Blackout Period to provide such Participants with an extension to the right to exercise such Options.
2.8 | Withholding Tax Requirements |
Upon the exercise of Options, the Participant shall, upon notification of the amount due and prior to or concurrently with the delivery of the certificates representing the Common Shares, pay to the Corporation amounts necessary to satisfy applicable federal, state, provincial, local or other taxes of any kind required by law to be paid in connection with the exercise of Options or shall otherwise make arrangements satisfactory to the Corporation for such requirements. At its discretion, the Corporation may require a Participant receiving Common Shares to reimburse the Corporation for any such taxes required to be withheld by the Corporation and withhold any distribution to the Participant in whole or in part until the Corporation is so reimbursed. The issuance and delivery of Common Shares pursuant to the exercise of Options is contingent on the Participant reimbursing the Corporation for any applicable withholding tax requirements, and if the Participant fails to reimburse the Corporation for such amount, the Corporation may cancel such issuance and return such Common Shares to its treasury.
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In order to satisfy the Corporation’s or Subsidiaries’ obligation, if any, to remit an amount to a taxation authority on account of such taxes in respect of the exercise, transfer or other disposition of an Option (the “ Withholding Tax Amount ”), each of the Corporation and such Subsidiary shall have the right, as its discretion, to:
(i) | retain and withhold amounts from any amount or amounts owing to the Participant, whether under this Plan or otherwise; |
(ii) | require the Participant to pay to the Corporation the Withholding Tax Amount as a condition of exercise of the Option by a Participant; and/or |
(iii) | withhold from the Shares otherwise deliverable to the Participant on exercise of the Option such number of Common Shares as have a market value not less than the Withholding Tax Amount and cause such withheld Common Shares to be sold on the Participant’s behalf to fund the Withholding Tax Amount, provided that any proceeds from such sale in excess of the Withholding Tax Amount shall be promptly paid over to the Participant. |
Notwithstanding the foregoing, nothing shall preclude the Corporation and the Participant from agreeing to use a combination of the methods described in this Section 2.8 or some other method to fund the Withholding Tax Amount.
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SCHEDULE "A"
SCORPIO MINING CORPORATION
STOCK OPTION PLAN
OPTION CERTIFICATE
This Certificate is issued pursuant to the provisions of the Amended and Restated Stock Option Plan (the "Plan") of Scorpio Mining Corporation (the "Corporation") and evidences that _______________ is the holder of an option (the "Option") to purchase up to___________________common shares (the "Shares") in the capital stock of the Corporation at a purchase price of $__________per Share. Subject to the provisions of the Plan, the expiry date of this Option is_______________(the "Expiry Date").
Other than as disclosed above, this Option may be exercised at any time up to 4:30 p.m. (Vancouver time) on the Expiry Date, by delivering to the Administrator of the plan an Exercise Notice, in the form provided in the plan, together with this Certificate and a cheque, bank draft or wire transfer payable to Scorpio Mining Corporation in an amount equal to the aggregate of the Exercise Price of the Shares in respect of which this Option is being exercised.
This Certificate and the Option evidenced hereby is not assignable, transferable or negotiable and is subject to the detailed terms and conditions contained in the Plan. This Certificate is issued for convenience only and in the case of any dispute with regard to any matter in respect hereof, the provisions of the Plan and the records of the Corporation shall prevail.
DATED the____ day of___________________,_______.
SCORPIO MINING CORPORATION
Per: | Authorized Signatory |
A- 1 |
SCHEDULE "B"
EXERCISE NOTICE
To: | The Administrator, Stock Option Plan |
Scorpio Mining Corporation
145 King St. W Suite 2870
Toronto, ON M5H 1J8
The undersigned hereby irrevocably gives notice, pursuant to the Amended and Restated Stock Option Plan (the "Plan") of Scorpio Mining Corporation (the "Corporation"), of the exercise of the Option to acquire and hereby subscribes for (cross out applicable item):
(b) | all of the Shares; or |
(c) | ________________ of the Shares which may be purchased under the Option. |
Calculation of total Exercise Price:
(i) | number of Shares to be acquired on exercise:________________Shares |
(ii) | times the exercise price per Share: $_________________ |
TOTAL EXERCISE PRICE, enclosed herewith: $__________________
The undersigned tenders herewith a cheque, bank draft or wire transfer (circle one) in the amount of $______________payable to Scorpio Mining Corporation, an amount which is equal to the total exercise price for the Shares being purchased, as calculated above, and directs the Corporation to issue the share certificate evidencing the Shares in the name of the undersigned to be mailed to the undersigned at the following address:
DATED the___day of_____________________, _______.
Signature of Witness | Signature of Participant | |
Name of Witness (please print) | Name of Participant (please print) |
B- 1 |
Exhibit 10.2
AMERICAS SILVER CORPORATION
RESTRICTED SHARE UNIT PLAN
Amended and restated effective as of February 23, 2016
Table of Contents
Article 1 | OBJECTIVES AND DEFINITIONS | 1 |
1.1 | Objectives and Definitions | 1 |
Article 2 | GRANT OF RESTRICTED SHARE UNITS | 3 |
2.1 | Grant of RSUs | 3 |
2.2 | Forfeited RSUs | 4 |
Article 3 | RESTRICTED SHARE UNITS | 4 |
3.1 | Restricted Share Unit Grants and Accounts | 4 |
3.2 | Vesting and Forfeiture | 4 |
3.3 | Payment of Benefits in Respect of Restricted Share Units | 5 |
3.4 | Dividends Paid on Shares | 6 |
3.5 | Termination of Employment | 6 |
3.6 | Maximum Number of Common Shares and Limitations | 7 |
Article 4 | ADJUSTMENTS AND MERGER AND ACQUISITION TRANSACTIONS | 7 |
4.1 | Adjustments | 7 |
Article 5 | ADMINISTRATION | 8 |
5.1 | Administration | 8 |
5.2 | Amendments | 8 |
5.3 | Termination | 9 |
5.4 | Applicable Withholding Taxes | 9 |
5.5 | Currency | 9 |
5.6 | Beneficiaries and Claims for Benefits | 10 |
5.7 | General | 10 |
Exhibit A RESTRICTED SHARE UNIT AWARD AGREEMENT | A-1 |
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AMERICAS SILVER CORPORATION
(the “Company”)
AMENDED & RESTATED RESTRICTED SHARE UNIT PLAN
WHEREAS effective January 30, 2015, in connection with the closing of the merger with U.S. Silver & Gold Inc., the Company adopted a Restricted Share Unit Plan which allowed for the settlement of RSUs in accordance with the Plan and Applicable Award Agreements to be made in cash; and
WHEREAS , the Board determined that RSUs granted under the Plan should be settled in either cash or Common Shares of the Company and the Plan should be amended and restated to reflect this and other required amendments.
ARTICLE 1
OBJECTIVES AND DEFINITIONS
NOW THEREFORE :
1.1 | Objectives and Definitions |
1.1.1 | The Plan is intended as an incentive to enable the Company: |
(a) | to attract and retain qualified employees, particularly at the projects of the Company and its Affiliates who may or may not participate in the Company’s stock option plan or to defer other forms of incentive compensation awarded to executives of the Company; |
(b) | promote a proprietary interest in the Company and its Affiliates among such employees, and |
(c) | stimulate the active interest of such persons in the development and financial success of the Company and its Affiliates. |
1.1.2 | In this Plan, the following terms have the following meanings: |
“ Account ” or “ Restricted Share Unit Account ” has the meaning set forth in Section 3.1.1;
“ Affiliate ” means (i) any entity that, directly or indirectly through one or more intermediaries, is controlled by the Company and (ii) any entity in which the Company has a significant equity interest, in each case as determined by the Committee;
“ Applicable Law ” includes, without limitation, all applicable securities, corporate, tax and other laws, rules, regulations, instruments, notices, blanket orders, decision documents, statements, circulars, procedures and policies including, without limitation, the policies and by-laws of the TSX;
“ Applicable Withholding Taxes ” has the meaning attributed to that term in Section 5.4.1;
“ Award ” means an award of Restricted Share Units under this Plan;
“ Award Agreement ” means the agreement in writing evidencing the terms and conditions under which an Award has been granted under this Plan, substantially in the form attached hereto as Exhibit A for RSUs that are not Vested RSUs;
“ Beneficiary ” means, subject to Applicable Law, any person designated by a Participant to receive any amount payable under the Plan in the event of a Participant’s death or, failing designation, the Participant’s estate;
“ Board ” means the board of directors of the Company;
“ Blackout Period ” means the period during which the relevant Participant is prohibited from trading in any securities of the Company due to trading restrictions imposed by the Company in accordance with its trading policies;
“ Code ” means the United States Internal Revenue Code of 1986, as amended, and any applicable United States Treasury Regulations and other binding regulatory guidance thereunder;
“ Common Share ” means a common share without par value in the capital stock of the Company as the same are presently constituted;
“ Company ” means Americas Silver Corporation and its successor corporations;
“ Committee ” means the Corporate Governance and Compensation Committee of the Company.
“ Date of Grant ” of a RSU means the date such RSU is granted to a Participant under the Plan, as evidenced by an Award Agreement between the Company and the Participant;
“ Director ” means a member of the Board;
“Eligible Person ” means employees of the Company or its Affiliates or as otherwise determined by the Committee.
“ Fair Market Value ” means, with respect to a Common Share on any date, the weighted average price of the Common Shares on the TSX for the five days on which Common Shares were traded immediately preceding that date; provided that if the Common Shares are not listed for trading on a stock exchange on such date, the Fair Market Value shall be the price per Common Share as the Committee, acting in good faith, may determine; provided, further, that the Committee may designate in any Award Agreement that Fair Market Value is to be determined using either Canadian currency or U.S. currency;
“ Insider Participation Limited ” has the meaning attributed to that term in Section 3.6(b);
“ Original RSU ” has the meaning attributed to that term in Section 3.4.1;
“ Participant ” means an Eligible Person who has been designated by the Company for participation in the Plan and who has agreed to participate in the Plan and to whom RSUs have or will be granted hereunder;
“ Plan ” means this Restricted Common Share Unit Plan as set forth herein, as the same may be amended from time to time;
“ Redemption Date ” has the meaning attributed to that term in Section 3.3.
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“ Restricted Share Unit ” or “ RSU ” means a bookkeeping entry on the books of the Company whereby a notional unit equivalent in value to one Common Share, and designated as a Restricted Share Unit, is credited to a Participant’s Account in accordance with the terms set forth in the Plan;
“ Restricted Share Unit Account ” has the meaning set forth in Section 3.1.1;
“ RSU Final Vesting Date ” means, with respect to a Restricted Share Unit granted to a RSU Participant, December 31 of the calendar year which is three (3) years after the calendar year in which the service was performed in respect of which the particular Award was made;
“ RSU Vesting Date ” means, with respect to a Restricted Share Unit granted to a Participant, the date determined in accordance with Section 3.2.1;
“ Termination Date ” of a Participant means the earlier of
(i) | the date of the Participant’s death; and |
(ii) | the date of the termination of the Participant’s employment with the Company and/or any Affiliate for any reason whatsoever, being the Participant’s last day of actual and active employment, without regard to any period of notice or pay in lieu of notice which follows the Participant’s last day of actual and active employment, |
“ Section 409A ” means section 409A of the Code;
“ Tax Act ” means the Income Tax Act (Canada), as amended.
“ TSX ” means the Toronto Stock Exchange or, if the Common Shares are not then listed and posted for trading on the Toronto Stock Exchange, on such stock exchange in Canada on which such Common Shares are listed and posted for trading as may be selected for such purpose by the Board;
“US Taxpayer ” means a Participant whose compensation from the Company is subject to Section 409A; and
“ Vested Restricted Share Unit ” or “ Vested RSU ” has the meaning attributed to that term in Section 3.2.3.
In this Plan, unless the context requires otherwise, words importing the singular number may be construed to extend to and include the plural number, and words importing the plural number may be construed to extend to and include the singular number.
ARTICLE
2
GRANT OF RESTRICTED SHARE UNITS
2.1 | Grant of RSUs |
2.1.1 | Subject to the terms of the Plan, the Board may make grants of Restricted Share Units to Eligible Persons who are, in the opinion of the Board, in a position to contribute to the success of the Company or any of its Affiliates or who, by virtue of their service to the Company or any predecessors thereof or to any of its Affiliates, are in the opinion of the Board, worthy of special recognition, or as a means of cash conservation by granting such Eligible Persons Restricted Share Units in lieu of incentive cash compensation. Except as may be otherwise set out in this Plan, the granting of RSUs is entirely discretionary. Nothing in this Plan shall be deemed to give any person any right to participate in this Plan or to be granted an Award and the designation of any Award in any year or at any time shall not require the designation of such person to receive an Award in any other year or at any other time. The Committee and/or the Board shall consider such factors as it deems pertinent in selecting participants and in determining the amounts and terms of their respective Awards. |
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2.1.2 | All grants of Restricted Share Units under this Plan will be evidenced by Award Agreements. Any one executive officer of the Company is authorized and empowered to execute and deliver, for and on behalf of the Company, an Award Agreement to each Participant. |
2.2 | Forfeited RSUs |
2.2.1 | Unless otherwise approved by the Board and provided for in the applicable Award Agreement, no Participant shall have any entitlement to receive any payment in respect of any RSUs which have been forfeited under this Plan, by way of damages, payment in lieu or otherwise. |
ARTICLE
3
RESTRICTED SHARE UNITS
3.1 | Restricted Share Unit Grants and Accounts |
3.1.1 | An Account, to be known as a “ Restricted Share Unit Account ”, shall be maintained by the Company for each Participant who has been granted Restricted Share Units by way of a bookkeeping entry in the books of the Company. On each Date of Grant, the Account will be credited with the Restricted Share Units granted to a Participant on that date. The Restricted Share Units credited to the Participant’s Restricted Share Unit Account will be cancelled as of the applicable Redemption Date. |
3.1.2 | The establishment of the Plan in respect of Restricted Share Units shall be an unfunded obligation of the Company. Neither the establishment of the Plan in respect of Restricted Share Units nor the grant of any Restricted Share Units shall be deemed to create a trust. Amounts payable to any Participant under the Plan in respect of Restricted Share Units shall be a general, unsecured obligation of the Company. The right of the Participant or Beneficiary to receive payment pursuant to the Plan in respect of Restricted Share Units shall be no greater than the right of other unsecured creditors of the Company. |
3.2 | Vesting and Forfeiture |
3.2.1 | Subject to Section 3.2.2 and unless otherwise approved by the Board and provided for in the applicable Award Agreement, a Restricted Share Unit granted under this Plan shall vest on the third anniversary of the Date of Grant provided; however, that all Restricted Share Units granted under a particular Award carrying a different vesting schedule shall vest on or before the RSU Final Vesting Date for such Restricted Share Units. It being understood the value of both Vested RSUs and unvested RSUs shall fluctuate with the value of the underlying Common Shares, nothing in this Plan shall be construed to give any Participant any right to a guaranteed minimum value of a particular RSU, whether at the time of grant, vesting, payment or any other time. |
3.2.2 | If any Blackout Period, would apply at any particular time to prevent payment in respect of a Restricted Share Unit pursuant to Section 3.3.1 to be made on or before the RSU Final Vesting Date for such Restricted Share Unit, then the RSU Vesting Date for such Restricted Share Unit will be accelerated by the Board by up to ten (10) business days after the lifting of the relevant Blackout Period provided such payment is made on or before the RSU Final Vesting Date for such Restricted Share Unit. |
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3.2.3 | All Restricted Share Units recorded in a RSU Participant’s Restricted Share Unit Account which have vested in accordance with this Plan or as provided for in the applicable respective Award Agreement and are not forfeited hereunder by the Participant are referred to herein as “ Vested Restricted Share Units ” or “ Vested RSUs ”. |
3.2.4 | For greater certainty, no RSU Participant nor any Beneficiary or other person claiming through a RSU Participant shall be entitled to any benefit hereunder in respect of any Restricted Share Units that are not Vested Restricted Share Units. |
3.2.5 | Notwithstanding anything else herein contained, the Company may, in its discretion, at any time permit the acceleration of the RSU Vesting Date, all in the manner and on the terms as may be authorized by the Board. |
3.3 | Payment of Benefits in Respect of Restricted Share Units |
3.3.1 | Unless otherwise approved by the Board and provided for in the applicable Award Agreement, payment in redemption of an Award of a Restricted Share Unit granted to a RSU Participant shall become payable on each RSU Vesting Date for such Restricted Share Unit and redeemed in accordance with Section 3.3.2; provided, however that all payments under a particular Award shall be made on or before the RSU Final Vesting Date for such Restricted Share Unit (the “ Redemption Date ”). |
3.3.2 | Subject to the provisions of this Article 3, on the Redemption Date with respect to a RSU Participant, the Company shall, in satisfaction of its obligations hereunder and in its sole discretion, either: |
(a) | pay to the Participant, or Participant’s Beneficiaries, on the Redemption Date a lump sum cash payment, net of any Applicable Withholding Taxes, equal to the number of RSUs credited to his or her Participant Account as of the Redemption Date multiplied by the Fair Market Value of one Common Share on the Redemption Date; or |
(b) | subject to Section 3.3.3 herein, deliver to the Participant, or to the Participant’s Beneficiaries, on the Redemption Date that number of Common Shares equal to the whole number of RSUs credited to his or her Participant Account as of the Redemption Date, plus a cash settlement of any fraction of a RSU, provided that the Company shall be entitled to sell a portion of the Common Shares to fund payment of applicable taxes and any associated costs as contemplated in Section 5.4 herein. |
The Participant shall have no further entitlement under the Plan upon receipt of the lump sum cash payment referred to in Section 3.3.2(a) or Common Shares (and where applicable, cash in lieu of fractional Common Shares) under Section 3.3.2(b).
3.3.3 | Settlement of RSUs with Common Shares: |
(a) | In order to satisfy its settlement obligation where the Company has, subject to TSX approval, elected to deliver Common Shares on a Redemption Date, the Company, at the discretion of the Board may elect to obtain Common Shares in respect of a Participant's entitlement through the facilities of the TSX in accordance with the by-laws, regulations and policies of the TSX and Applicable Law or issue such Common Shares from treasury. |
(b) | Any entitlement to fractional Common Shares shall be paid in cash based on the Fair Market Value of one Common Share on the Redemption Date, less any Applicable Withholding Taxes. |
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(c) | If the Company elects to deliver Common Shares on a Redemption Date, the Company shall pay all fees and commissions arising in connection with the purchase of such Common Shares by the Company. |
3.3.4 | If payment in respect of an Award of a Restricted Share Unit granted to a Participant shall become payable to any US Taxpayer, the payment in redemption of such Award shall be made no later than two and a half months after the end of the Participant’s first taxable year in which the right to the payment is no longer subject to a substantial risk of forfeiture, such that all payments are exempt from application of Section 409A. |
3.4 | Dividends Paid on Shares |
3.4.1 | Subject to Section 3.4.2, in the event the Company pays a dividend on the Common Shares subsequent to the granting of an Award, the number of Restricted Share Units relating to such Award (the “ Original RSU ”) shall be increased by an amount equal to: |
(a) | the product of: (i) the aggregate number of Original RSUs held by the Participant on the record date for such dividend; and (ii) the per Common Share amount of such dividend (or, in the case of any dividend payable in property other than cash, the per Common Share Fair Market Value of such property as determined by the Committee); divided by |
(b) | the Fair Market Value of a Common Share calculated as of the date on which the dividend is declared. |
3.4.2 | In the event that the Company pays a dividend on the Common Shares in additional Common Shares, the number of Original RSUs shall be increased by a number equal to the product of: (a) the aggregate number of Original RSUs held by the Participant on the record date of such dividend; and (b) the number of Common Shares (including any fraction thereof) payable as a dividend on one Common Share. |
3.5 | Termination of Employment |
3.5.1 | Subject to the Board’s discretion to accelerate vesting under Section 3.2.5 and the provisions of any applicable Award Agreement, upon the Participant incurring a Termination Date prior to the RSU Vesting Date, all Restricted Share Units previously credited to such RSU Participant’s Restricted Share Unit Account which did not become Vested Restricted Share Units on or prior to the Participant’s Termination Date shall be terminated and forfeited as of such Termination Date. |
3.5.2 | If the relationship of the Participant with the Company is terminated for any reason prior to the vesting of the Restricted Share Units, whether or not such termination is with or without notice, adequate notice or legal notice or is with or without legal or just cause, the RSU Participant’s rights shall be strictly limited to those provided for in this Section 3.5, or as otherwise provided in the applicable Award Agreement between the Participant and the Company. Unless otherwise specifically provided in writing, the Participant shall have no claim to, or in respect of, any Restricted Share Units which may have or would have vested had due notice of termination of employment been given, nor shall the RSU Participant have any entitlement to damages or other compensation or any claim for wrongful termination or dismissal in respect of any Restricted Share Units or loss of profit or opportunity which may have or would have vested or accrued to the Participant if such wrongful termination or dismissal had not occurred or if due notice of termination had been given. |
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3.6 | Maximum Number of Common Shares and Limitations. |
(a) | The number of Common Shares issuable under the Plan combined with the number of Common Shares issuable under all security- based compensation arrangements of the Company shall not exceed 10% of the issued and outstanding Common Shares as at the date of such Award. |
(b) | Notwithstanding anything else contained herein, the number of Common Shares of the Company which are (i) issuable at any time, and (ii) issued within any one year period, to insiders (as such term is defined in Part 1 of the TSX Company Manual) of the Company pursuant to the terms of the Plan and under any other security-based compensation arrangement, shall not exceed 10% of the Company’s total issued and outstanding Common Shares (the “ Insider Participation Limit ”). |
ARTICLE
4
ADJUSTMENTS AND MERGER AND ACQUISITION TRANSACTIONS
4.1 | Adjustments |
4.1.1 | Appropriate adjustments to this Plan and to Awards shall be made, and shall be conclusively determined, by the Committee to give effect to adjustments in the number of Common Shares resulting from subdivisions, consolidations, reorganizations or reclassifications of the Common Shares, the payment of stock dividends by the Company (other than dividends in the ordinary course) or other changes in the capital of the Company. Any dispute that arises at any time with respect to any such adjustment will be conclusively determined by the Committee, and any such determination will be binding on the Company, the Participant and all other affected parties. |
4.1.2 | The grant of any Awards under this Plan will in no way affect the Company’s right to adjust, reclassify, reorganize or otherwise change its capital or business structure or to merge, amalgamate, reorganize, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets or engage in any like transaction. For avoidance of doubt, in the event of any reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of Common Shares or other securities of the Company or any other similar corporate transaction or event involving the Company (or the Company shall enter into a written agreement to undergo such a transaction or event), the Committee or the Board may, in its sole discretion, provide for any of the following to be effective upon the consummation of the event (or effective immediately prior to the consummation of the event, provided that the consummation of the event subsequently occurs): |
(a) | either (i) termination of any such Award, whether or not vested, in exchange for an amount of cash and/or other property, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Participant’s rights (and, for the avoidance of doubt, if, as of the date of the occurrence of the transaction or event, the Committee or the Board determines in good faith that no amount would have been attained upon the realization of the Participant’s rights, then such Award may be terminated by the Company without any payment) or (ii) the replacement of such Award with other rights or property selected by the Committee or the Board, in its sole discretion; or |
(b) | that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices. |
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4.1.3 | No adjustment provided for in this Article 4 will require the Company to issue a fractional share in respect of any or other Awards and the adjustment with respect to each Award will be limited accordingly. |
ARTICLE
5
ADMINISTRATION
5.1 | Administration |
5.1.1 | The Plan will be administered by the Committee. Notwithstanding the existence of the Committee, the Board itself will retain independent and concurrent power to undertake any action hereunder delegated to the Committee, whether with respect to the Plan as a whole or with respect to individual RSUs granted or to be granted under the Plan. |
(a) | Subject to the limitations of the Plan, the Committee shall have full power to grant Awards, to determine the terms, limitations, restrictions and conditions respecting such Awards and to settle, execute and deliver Award Agreements and bind the Company accordingly, to interpret the Plan and to adopt such rules, regulations and guidelines for carrying out the Plan as it may deem necessary or proper, all of which powers shall be exercised in the best interests of the Company and in keeping with the objectives of the Plan. |
(b) | The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any Award in the manner and to the extent the Committee deems necessary or desirable to carry it into effect. Any decision of the Committee in the interpretation and administration of the Plan shall lie within its absolute discretion and shall be final, conclusive and binding on all parties concerned. No individual shall be liable for anything done or omitted to be done by such individual or any other individual, in connection with the performance of any duties under the Plan, except those which arise from such individual’s own willful misconduct or as expressly provided by statute. |
(c) | The determination by the Committee of any question which may arise as to the interpretation or implementation of the Plan or any of the RSUs granted hereunder shall be final and binding on all Participants and other persons claiming or deriving rights through any of them. |
5.1.2 | The Committee may delegate to one or more officers or Directors of the Company, subject to such terms, conditions and limitations as the Committee may establish in its sole discretion, the authority to grant Awards; provided, however, that the Committee shall not delegate such authority in such a manner as would contravene the by-laws, regulations and policies of the TSX or any applicable limitations under Applicable Law. |
5.1.3 | All costs and expenses of administering the Plan will be paid by the Company. |
5.2 | Amendments |
5.2.1 | This Plan may be amended at any time by the Board in its sole discretion, subject to applicable regulatory approval, (including, approval of the TSX), and the terms of this Plan; provided that, no such amendment shall, unless required by law, adversely affect the rights of any Participant with respect to RSUs to which the Participant is then entitled under this Plan, without the consent of the Participant, and any amendment shall be such that this Plan continuously meets the conditions and requirements of Applicable Law. |
5.2.2 | Without limiting the generality of the foregoing, the Board may make the following amendments to the Plan, without obtaining shareholder approval: |
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(a) | amendments to the vesting provisions of the Plan and any Award Agreement; |
(b) | amendments to the terms and conditions of the Plan necessary to ensure that the Plan complies with the Applicable Laws, regulations, rules, orders of governmental or regulatory authorities or the requirements of the TSX in place from time to time; |
(c) | amendments to the provisions of the Plan respecting administration of the Plan; |
(d) | amendments to the provisions of the Plan respecting the terms and conditions on which Awards may be made pursuant to the Plan; |
(e) | amendments to the Plan that are of a “housekeeping” nature; and |
(f) | any other amendments, fundamental or otherwise, not requiring shareholder approval under Section 5.2.3, Applicable Laws or applicable policies of the TSX. |
5.2.3 | Without limiting the generality of the foregoing, the Board may not, without the approval of the Company’s shareholders, make the following amendments to the Plan: |
(a) | an increase to the Plan maximum or the number of Common Shares issuable under the Plan; |
(b) | any amendment to the amendment provisions in Sections 5.2.2 and 5.2.3 of the Plan; |
(c) | extension of the termination or expiry of an Award; |
(d) | the removal or increase of Insider Participation Limits; |
(e) | any change that would materially modify the eligibility requirements for participation in this Plan; and |
(f) | any amendment that permits the assignment or transfer of a RSU other than for normal estate planning purposes. |
5.3 | Termination. |
5.3.1 | The Board may, in its sole discretion and without the consent of any Participant, terminate the Plan at any time by giving written notice thereof to each Participant. Following termination of the Plan, additional RSUs shall not be credited to the Accounts of Participants except pursuant to Article 3 hereof. Notwithstanding the termination of the Plan, all amounts distributable under the Plan shall be paid to the persons entitled thereto on the date on which such distributions would have been made had the Plan not been terminated. |
5.4 | Applicable Withholding Taxes. |
5.4.1 | Prior to the delivery of any Common Shares or cash under this Plan, the Company shall have the power and the right to deduct or withhold, or to require a Participant to remit to the Company, an amount sufficient to satisfy any federal, provincial, local and foreign taxes, pension plan contributions, employment insurance premiums and any other required deductions (collectively referred to herein as “ Applicable Withholding Taxes ”) that the Company determines is required to be withheld to comply with applicable laws. The Company shall make any withholdings or deductions in respect of Applicable Withholding Taxes as required by law or the interpretation or administration thereof. The Company shall be entitled to make arrangements to sell a sufficient number of Common Shares to be issued pursuant to the Plan to fund the payment and remittance of Applicable Withholding Taxes that are required to be deducted or withheld and any associated costs (including fees). |
5.5 | Currency |
5.5.1 | All payments and benefits under the Plan shall be determined and paid in the lawful currency of Canada. |
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5.6 | Beneficiaries and Claims for Benefits |
5.6.1 | Subject to the requirements of Applicable Law, a Participant shall designate in writing a Beneficiary to receive any benefits that are payable under the Plan upon the death of such Participant. The Participant may, subject to Applicable Law, change such designation from time to time. Such designation or change shall be in such form and executed and filed in such manner as the Committee or the Board may from time to time determine. |
5.7 | General |
5.7.1 | Nothing contained in the Plan shall prevent the Company or any of its Affiliates from adopting or continuing in effect other compensation arrangements (subject to shareholder approval if such approval is required by TSX) and such arrangements may be either generally applicable or applicable only in specific cases. |
5.7.2 | The validity, construction and effect of the Plan, the grants of Awards, any rules and regulations relating to the Plan and Award Agreement, and all determinations made and actions taken pursuant to the Plan, shall be governed by and determined in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. |
5.7.3 | If any provision of the Plan or any Award Agreement is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or as to any person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, person, or RSU and the remainder of the Plan and any such Award Agreement shall remain in full force and effect. |
5.7.4 | Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any of its Affiliates and a Participant or any other person. |
5.7.5 | Headings are given to the sections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision thereof. |
5.7.6 | The Plan shall enure to the benefit of and be binding upon the Company and its successors and assigns. The interest of any Participant under the Plan in any RSU shall not be transferable or alienable by the Participant either by pledge, assignment or in any other manner whatever, otherwise than by testamentary disposition or in accordance with the laws governing the devolution of property in the event of death; and after the Participant’s lifetime shall enure to the benefit of and be binding upon the Participant’s Beneficiary. |
5.7.7 | Nothing herein or otherwise shall be construed so as to confer on any Participant any rights as a shareholder of the Company with respect to any Common Shares reserved for the purpose of any Award, including for greater certainty, no Award shall confer any entitlement as to dividends or voting rights on a Participant until the date of purchase or issuance of such Common Shares, as determined by the Board, for the Account of such Participant as specifically provided herein. |
5.7.8 | Neither designation as a Participant nor the grant of any RSUs to any Participant entitles any Participant to any additional grant of any RSUs under the Plan. Neither the Plan nor any action taken hereunder shall interfere with the right of the Company to terminate a Participant’s employment, if applicable, at any time. Neither any period of notice, if any, nor any payment in lieu thereof, upon termination of employment shall be considered as extending the period of employment for the purposes of the Plan. |
[***]
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Exhibit A
RESTRICTED SHARE UNIT AWARD AGREEMENT
[Unvested]
Name of Participant: | __________________________ |
U.S. SSN or TIN of Participant, if applicable: | __________________________ |
Non-U.S. Tax ID No., if applicable | __________________________ |
Residence Address of Participant: | __________________________ |
__________________________ | |
Total Number of Restricted Share Units: | __________________________ |
Date of Grant (actual date of issuance): | __________________________ |
THIS AGREEMENT, dated as of the Date of Grant, between Americas Silver Corporation (the “ Company ”), and the participant named above (the “ Participant ”), is entered into pursuant to the Americas Silver Corporation Restricted Share Unit Plan (as amended from time to time, the “ Plan ”). All capitalized terms used but not otherwise defined herein shall have the meanings given them in the Plan.
WHEREAS, the Company has adopted and maintains the Plan to promote the interests of the Company by providing officers, employees or consultants providing services to, or for the benefit of, the Company with an appropriate incentive to encourage them to continue providing such services and to improve the growth and profitability of the Company; and
WHEREAS, the Company desires to grant, and the Participant desires to accept, Restricted Share Units under the Plan in accordance with the terms and conditions of this Award Agreement and the Plan.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1.1 | Grant of Restricted Share Units . Pursuant to, and subject to, the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Participant the number of Restricted Share Units specified above. |
1.2 | Date of Grant . The Restricted Share Units are hereby granted on and effective as of the Date of Grant specified above. |
1.3 | Vesting . Restricted Share Units issued under the Plan shall vest as provided in the Plan. |
1.4 | Entitlement of the Restricted Share Units . Payment in respect of a Vested Restricted Share Units shall be made as provided in the Plan. |
1.5 | Incorporation of Plan . All terms, conditions and restrictions of the Plan are incorporated herein and made part hereof as if stated herein. If there is any conflict between the terms and conditions of the Plan and this Award Agreement, the terms and conditions of the Plan, as interpreted by the Committee, shall govern. The Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has read the Plan carefully and fully understands its content. The Participant hereby acknowledges that, subject to the powers and limitations established by the Board, all decisions, determinations and interpretations of the Committee in respect of the Plan, this Award Agreement and the Restricted Share Units evidenced hereby shall be final and conclusive. |
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1.6 | Tax . Participant should consult his or her own tax advisor regarding the U.S. or Canadian federal, state and local, and foreign tax consequences of participation in the Plan. |
1.7 | Termination of Employment . Without limiting the generality of the foregoing, the Participant hereby acknowledges and agrees that all Restricted Share Units previously credited to the Participant’s Restricted Share Unit Account which did not become Vested Restricted Share Units on or prior to the Participant’s Termination Date shall be terminated and forfeited by the Participant as of such Termination Date. For the purposes of the Plan, the Participant’s Termination Date shall be the earlier of (i) the date of the Participant’s death, or (ii) the date of termination of the Participant’s employment with the Company and/or any Affiliate for any reason whatsoever, being the Participant’s last day of actual and active employment, without regard to any period of notice or pay in lieu of notice which follows the Participant’s last day of actual and active employment. |
1.8 | Miscellaneous . This Agreement shall be governed by, and shall be construed and administered according to, the laws of the Province of Ontario, without reference to principles of conflicts of law. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. |
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its duly authorized officer and the Participant has signed this Award Agreement on his or her own behalf, thereby representing that he or she has carefully read and understands this Award Agreement and the Plan, as of the date first written above.
AMERICAS SILVER CORPORATION | ||
By: | ||
Name: | ||
Title: | ||
[Participant Signature] |
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Exhibit 10.3
AMERICAS SILVER CORPORATION
DEFERRED SHARE UNIT PLAN
Effective July 1, 2015
Table of Contents
Article 1. | PURPOSE | 3 | |
1.1 | Purpose | 3 | |
1.2 | Effective Date | 3 | |
Article 2. | DEFINITIONS | 3 | |
2.1 | Definitions | 3 | |
Article 3. | ADMINISTRATION | 5 | |
3.1 | General | 5 | |
3.2 | Delegation of Administration | 6 | |
3.3 | Limitation of Liability | 6 | |
Article 4. | DEFERRED SHARE UNIT AWARDS | 6 | |
4.1 | Grants of DSUs | 6 | |
4.2 | Terms of DSUs | 7 | |
4.3 | Maximum Number of Common Shares and Limitations | 7 | |
4.4 | Redemption of DSUs | 7 | |
4.5 | Blackout Periods | 7 | |
Article 5. | PAYMENT OF BENEFITS | 8 | |
5.1 | Settlement Date | 8 | |
5.2 | Payment of Benefits | 8 | |
5.3 | Settlements of DSUs with Common Shares | 8 | |
5.4 | Death of a Participant | 9 | |
Article 6. | PARTICIPANT’S ACCOUNT | 9 | |
6.1 | Participant Accounts | 9 | |
6.2 | Annual Notice | 9 | |
Article 7. | RIGHTS OF PARTICIPANTS | 9 | |
7.1 | No Right to Employment or Service | 9 | |
7.2 | Legal Ownership of Common Shares | 9 | |
7.3 | Prohibition on Transfer of Rights | 9 | |
Article 8. | AMENDMENT, SUSPENSION AND TERMINATION | 9 | |
8.1 | Amendment of Plan | 9 | |
8.2 | Amendments without Shareholder Approval | 9 | |
8.3 | Amendments Requiring Shareholder Approval | 10 | |
Article 9. | ADJUSTMENTS, REORGANIZATIONS AND DIVIDENDS | 10 | |
9.1 | Capital Adjustments | 10 | |
9.2 | Fluctuation in Common Share Price | 11 | |
Article 10. | DESIGNATION OF BENEFICIARIES | 11 | |
10.1 | Designation of Beneficiaries | 11 | |
Article 11. | TAX | 11 | |
11.1 | Tax Consequences | 11 | |
11.2 | Withholding Requirements | 11 | |
Article 12. | UNSECURED PLAN | 12 | |
12.1 | Unsecured Plan | 12 | |
Article 13. | COMPLIANCE WITH APPLICABLE LAWS | 12 | |
13.1 | Compliance with Applicable Laws | 12 | |
Article 14. | GENERAL | 12 | |
14.1 | No Representation | 12 | |
14.2 | Governing Law | 12 | |
14.3 | Severability | 12 | |
14.4 | Headings | 12 | |
14.5 | Successors and Assigns | 12 |
DEFERRED SHARE UNIT PLAN
Article 1. PURPOSE
1.1 Purpose. The purpose of the Plan is to advance the interests of the Company and its Affiliates by attracting and retaining highly competent persons as Directors, Officers and Employees, to allow such persons to participate in the long term success of the company and to promote a greater alignment of interests between the participants designated under this Plan and the shareholders of the Company.
1.2 Effective Date. This Plan shall become effective upon receipt of Board approval and any requisite regulatory approvals, as applicable.
Article 2. DEFINITIONS
2.1 Definitions. In this Plan, unless the context otherwise requires, the following terms shall have the following meanings:
(a) | “ Account ” means an account maintained for each Participant on the books of the Company, which will be credited with DSUs in accordance with the terms of this Plan; |
(b) | “ Adjustment Factor ” means such multiplier as the Board determines appropriate from time-to-time with respect to calculating the number of DSUs to be granted in lieu of earned amounts that would otherwise be payable in cash but are to be deferred through the issuance of DSUs as set out from time-to-time by the Board in the applicable DSU Award Agreement; |
(c) | “ Administrator ” means the Company’s Chief Financial Officer or any other person or persons appointed from time to time by the Committee to administer this Plan; |
(d) | “ Affiliate ” means (i) any entity that, directly or indirectly through one or more intermediaries, is controlled by the Company and (ii) any entity in which the Company has a significant equity interest, in each case as determined by the Committee; |
(e) | “ Annual Board Retainer ” means the annual retainer paid by the Company to a Director in a fiscal year for service on the Board, together with Board committee fees, attendance fees and additional fees and retainers to committee chairs; |
(f) | “ Award ” means a grant of DSUs to a Participant in accordance with Article 4 of this Plan; |
(g) | “ Beneficiaries ” means such individuals who, on the date of a Participant’s death, are a dependent or relation of such Participant and are designated in accordance with this Plan and applicable laws to receive the value of the DSUs credited to the Participant on the date of death, or where no such individuals have been validly designated by the Participant, or where the individuals so designated do not survive the Participant, the Participant’s legal representative; |
(h) | “ Board ” means the board of directors of the Company, as constituted from time to time; |
(i) | “ business day ” means a day, other than Saturday, Sunday or a day on which the principal commercial banking institutions in Toronto, Ontario are, or the Exchange is, closed; |
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(j) | “ Committee ” means the Compensation and Corporate Governance Committee of the Board or such other committee of the Board comprised of members of the Board as the Board shall from time to time appoint to administer the Plan; |
(k) | “ Common Shares ” means the common shares of the Company as currently constituted or, in the event of an adjustment as contemplated by Article 9, such other shares or securities to which a Participant may be entitled or on which the value of an Award may be based, as a result of such adjustment; |
(l) | “ Company ” means Americas Silver Corporation and includes any successor thereof; |
(m) | “ Deferred Share Units ” or “ DSUs ” means a unit credited by means of a bookkeeping entry to the account of an Eligible Participant in accordance with the provisions hereof, the value of which, on a particular date, shall be equal to the Market Price of one Common Share; |
(n) | “ Director ” means a member of the board of directors of the Company or any of its Related Entities; |
(o) | “ DSU Award Agreement ” means the agreement in writing evidencing the terms and conditions under which an Award has been granted under this Plan, substantially in the form attached hereto as Schedule A ; |
(p) | “ Eligible Participant ” means any Director, Officer or Employee of the Company or any Affiliate determined by the Committee as eligible for participation in this Plan; |
(q) | “ Employee ” means an individual (other than a director or Officer) who: |
(i) | works for the Company or an Affiliate on a continuing and regular basis for a minimum amount of time per week providing services specified by the Company or the Affiliate and is subject to the control and direction of the Company or the Affiliate regarding both the method of performing or executing the services and the result to be effected, |
(ii) | works full-time for the Company or an Affiliate providing services normally provided by an employee and who is subject to the same control and direction by the Company or the Affiliate over the details and method of work as an employee of the Company or the Affiliate, and for whom income tax deductions are made at source, or |
(iii) | works for the Company or an Affiliate on a continuing and regular basis for a minimum amount of time per week providing services normally provided by an employee and who is subject to the same control and direction by the Company or the Affiliate over the details and method of work as an employee of the Company or the Affiliate, but for whom income tax deductions are not made at source; |
(r) | “ Exchange ” means the TSX or, if the Common Shares are not then listed and posted for trading on the TSX, such stock exchange in Canada on which such Common Shares are listed and posted for trading as may be selected for such purpose by the Board; |
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(s) | “ Market Price ” as at any date in respect of the Common Shares means the volume-weighted average price of the Common Shares on the Exchange for the five trading days immediately preceding such date, but if such Common Shares did not trade on such trading days, the Market Price shall be average of the bid and ask prices in respect of such Common Shares at the close of trading on such trading day; |
(t) | “ Officer ” means a senior officer of the Company or an Affiliate; |
(u) | “ Participant ” means an Eligible Participant who holds an Award under the terms of this Plan; |
(v) | “ Plan ” means this Deferred Share Unit Plan, as the same may be amended from time to time; |
(w) | “ Quarterly Conversion Date” means with respect to any fiscal quarter, the date used to determine the Market Price of a Common Share for the purposes of determining the number of Deferred Share Units to be credited with respect of that fiscal quarter to a Director’s account; which shall be, unless otherwise determined by the Committee, the last business day of the fiscal quarter in respect of which the Deferred Share Units are credited; |
(x) | “ Regulations ” means the Income Tax Regulations as amended from time to time; |
(y) | “ Securities Act ” means the Securities Act (Ontario) as amended from time to time; |
(z) | “ Settlement Date ” has the meaning ascribed to it in Section 5.1 hereto; |
(aa) | “ Tax Act ” means the Income Tax Act (Canada) as amended from time to time; |
(bb) | “ Termination Date ” means the date on which for any reason a Participant ceases to be a Director (and is not otherwise an Employee of the Company), Officer or Employee of the Company, excluding any notice period awarded by the Company, or required by employment law or by court judgments and includes termination from the Board, termination of employment, voluntary resignation, retirement from the workforce, permanent disability or death of a Participant; and |
(cc) | “ TSX ” means the Toronto Stock Exchange. |
(dd) | “ U.S. Addendum ” has the meaning ascribed thereto in Section 4.1; |
(ee) | “ U.S. Grantee ” has the meaning ascribed thereto in Section 4.1; |
Article 3. ADMINISTRATION
3.1 General.
(a) | The Plan shall be administered as required by the Committee, under the supervision of the Board. The Committee has full and complete authority to interpret, construe and administer the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, and to make any other determinations and perform all other acts that it deems necessary or desirable for the administration of the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan in the manner and to the extent the Committee deems necessary or desirable. Any decision of the Committee in the interpretation, construction and administration of the Plan, or any action, all as described herein, shall lie within its sole and absolute discretion and shall be final, conclusive and binding on all parties concerned for all purposes. |
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(b) | Notwithstanding the foregoing, all actions of the Committee shall be such that the Plan continuously meets the requirements of any applicable tax laws and regulations, and shall be subject to all requisite Exchange, regulatory and/or shareholder approvals, as required from time to time. |
3.2 Delegation of Administration. The Committee may delegate to one or more of its members or an Administrator such administrative duties as it may deem advisable, including without limitation delegation to an Administrator of the authority to acquire Common Shares through the facilities of the Exchange for delivery to Participants in settlement of DSUs in accordance with the Plan. Any Committee or Administrator to whom duties have been delegated as aforesaid may employ one or more persons to render advice with respect to any responsibility the Committee or any Administrator may have under the Plan.
3.3 Limitation of Liability. No member of the Committee or the Board shall be liable for any action or determination made in good faith pursuant to the Plan. To the full extent permitted by law, the Company shall indemnify and save harmless each person made, or threatened to be made, a party to any action or proceeding by reason of the fact that such person is or was a member of the Committee or is or was a member of the Board and, as such, is or was required or entitled to take action pursuant to the terms of the Plan. The expenses of administering the Plan shall be borne by the Company.
Article 4. DEFERRED SHARE UNIT AWARDS
4.1 Grants of DSUs. Subject to the provisions of this Plan, the Committee may grant DSUs to Eligible Participants. The award of DSUs to an Eligible Participant who is subject to taxation in the United States on employment or business income (a “ U.S. Grantee ”) shall be subject to the terms and conditions set forth in Schedule B (the “ U.S. Addendum ”). The Plan and the U.S. Addendum are complementary to each other and shall, with respect to an award of DSUs to a U.S. Grantee, be read and deemed as one. In the event of any contradiction, whether explicit or implied, between the provisions of the U.S. Addendum and the Plan, the provisions of the U.S. Addendum shall prevail with respect to an award of DSUs to a U.S. Grantee.
The provisions specified in the U.S. Addendum shall apply solely to DSUs granted or credited to U.S. Grantees and shall form an integral part of the Plan with respect to such DSUs, subject to any applicable restrictions or limitations as provided in applicable law.
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4.2 Terms of DSUs .
(a) | Deferred Share Units granted pursuant to the Plan shall be credited to an account maintained for the Participant by the Company. In the case of DSUs granted in lieu of a Director’s Annual Board Retainer, the number of DSUs granted shall be determined on a quarterly basis by the Company’s CFO and equal to, the product of the Annual Board Retainer to be deferred multiplied by the applicable Adjustment Factor, divided by the Market Price per Common Share on the Quarterly Conversion Date with the resulting number of DSUs to be credited effective the first business day following the last day of each fiscal quarter for which the Annual Board Retainer is payable. |
(b) | DSUs may also be granted on such terms as shall be determined by the Board and set out in a DSU Award Agreement, a form of which is attached hereto as Schedule A . Without limiting the generality of the foregoing, subject to the provisions of this Plan, the Committee shall, in its sole discretion and from time to time, determine the Eligible Participants to whom Awards will be made based on its assessment, for each Participant, of the anticipated contribution of such Eligible Participant to the success of the Company. At such time, the Committee shall also determine, in connection with each Award, the effective date thereof, the number of DSUs to be allocated, the terms and conditions of vesting, if any, and such other terms and conditions which the Committee considers appropriate to the Award in question, and which terms and conditions need not be identical as between any two Awards, whether or not contemporaneous. |
4.3 Maximum Number of Common Shares and Limitations. The number of Common Shares issuable under the Plan combined with the number of Common Shares issuable under all security- based compensation arrangements of the Company shall not exceed 10% of the issued and outstanding Common Shares as at the date of such Award.
The maximum aggregate value of Awards granted under the Plan to any non-employee Director in a one-year period combined with the value of all grants under other security-based compensation arrangements of the Company in such one-year period shall not exceed $150,000. The foregoing limitations do not apply to grants made in lieu of directors’ fees payable in cash.
Notwithstanding anything else contained herein, the number of Common Shares of the Company which are (i) issuable at any time, and (ii) issued within any one year period, to insiders (as such term is defined in Part 1 of the TSX Company Manual) of the Company pursuant to the terms of the Plan and under any other security-based compensation arrangement, shall not exceed 10% of the Company’s total issued and outstanding Common Shares (the “ Insider Participation Limit ”).
4.4 Redemption of DSUs. Subject to the provisions of this Plan and any DSU Award Agreement, a DSU held by a Participant shall be redeemed by the Company with settlement to occur on the Settlement Date, as described in Section 5.1 hereof, unless otherwise determined by the Committee or agreed to between the Company and the Participant, but subject to Section 3.1 hereof.
4.5 Blackout Periods. The Company may from time to time impose trading blackouts during which some or all Directors, Officers and Employees may not trade in the securities of the Company. In the event that a trading blackout is imposed by management or the Board in accordance with any insider trading policy that the Company may adopt from time to time, Participants subject to the blackout are prohibited from buying, selling or otherwise trading in securities of the Company until such time as notice is formally given by the Company that trading may resume. For the avoidance of doubt, such blackout periods are not intended to restrict the ordinary course issuance DSUs as contemplated by Section 4.2(a).
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Notwithstanding this Section 4.5 hereof, if the Settlement Date of any Award of DSUs falls within such a blackout period, it shall be automatically extended to the date which is ten (10) Business Days following the end of such blackout period.
Article 5. PAYMENT OF BENEFITS
5.1 Settlement Date. All of the DSUs credited to the Participant’s Account, as may be adjusted pursuant to Section 9.1 hereof, shall be redeemed by the Company, in the form and manner specified by the Committee, following such Participant’s Termination Date, but in no event later than December 15 the calendar year following the calendar year which includes the Termination Date (the “ Settlement Date ”).
5.2 Payment of Benefits. Subject to the provisions of this ARTICLE 5, after the Termination Date with respect to a Participant, the Company shall, in satisfaction of its obligations hereunder and in its sole discretion, either:
(a) | pay to the Participant, or Participant’s Beneficiaries, on the Settlement Date a lump sum cash payment, net of any applicable withholdings, equal to the number of DSUs credited to his or her Participant Account as of the Settlement Date multiplied by the Market Price of one Common Share on the Settlement Date; or |
(b) | subject to Section 5.3 herein, deliver to the Participant, or to the Participant’s Beneficiaries, on the Settlement Date that number of Common Shares equal to the whole number of DSUs credited to his or her Participant Account as of the Settlement Date, plus a cash settlement of any fraction of a DSU, provided that the Company shall be entitled to sell a portion of the Common Shares to fund payment of applicable taxes and any associated costs as contemplated in Section 11.2 herein. |
The Participant shall have no further entitlement under the Plan upon receipt of the lump sum cash payment referred to in Section 5.2(a) or Common Shares (and where applicable, cash in lieu of fractional Common Shares) under Section 5.2(b).
5.3 Settlements of DSUs with Common Shares.
(a) | In order to satisfy its settlement obligation where the Company has, subject to Exchange approval, elected to deliver Common Shares on a Settlement Date, the Company, at the discretion of the Board may elect to obtain Common Shares in respect of a Participant's entitlement through the facilities of the Exchange in accordance with the by-laws, regulations and policies of the Exchange or issue such Common Shares from treasury. |
(b) | Any entitlement to fractional Common Shares shall be paid in cash based on the Market Price of one Common Share on the Settlement Date, less any applicable withholdings. |
(c) | If the Company elects to deliver Common Shares on a Settlement Date, the Company shall pay all brokerage fees and commissions arising in connection with the purchase of such Common Shares by the Company. |
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5.4 Death of a Participant. In the event of the death of a Participant prior to the settlement of the DSUs credited to his or her Account, the Board shall, on the Settlement Date, cause to be delivered to the estate of the Participant or such Participant’s Beneficiary, the cash payment or number of Common Shares such Participant would have been entitled to.
Article 6. PARTICIPANT’S ACCOUNT
6.1 Participant Accounts. The Company shall maintain or cause to be maintained in its records an Account for each Participant recording at all times the number of DSUs credited to the Participant’s Account. Upon payment in satisfaction of DSUs in accordance with Article 5 above, the Participant’s entitlement to receive any and all amounts in respect of DSUs so paid shall be fully discharged and satisfied and such DSUs shall be cancelled and thereupon deleted from the Account of such Participant.
6.2 Quarterly Notice. The Company shall deliver to each Participant a quarterly written notification of the balance of DSUs in the Participant’s Account.
Article 7. RIGHTS OF PARTICIPANTS
7.1 No Right to Employment or Service. Nothing in this Plan nor any action taken hereunder shall be construed as giving a Participant the right to be retained as a Director, Officer or Employee of the Company, or giving any Participant or any other person the right to receive any benefits not expressly provided in this Plan, nor shall it interfere in any way with any other right of the Company to terminate the employment or service of any Participant at any time.
7.2 Legal Ownership of Common Shares. Under no circumstances shall DSUs be considered Common Shares nor shall they entitle any Participant to exercise voting rights or any other rights attaching to the ownership or control of Common Shares, including, without limitation, rights on liquidation, nor shall any Participant be considered the owner of any Common Shares to be delivered under this Plan until the date of purchase or issuance of such Common Shares, as determined by the Board, for the Account of such Participant as specifically provided herein.
7.3 Prohibition on Transfer of Rights. The rights or interests of a Participant under this Plan, including the DSUs, shall not be assignable or transferable, otherwise than in case of death as set out in this Plan, and such rights or interests shall not be encumbered by any means. Any attempt to so assign, transfer or encumber any such amount, whether presently or thereafter payable, shall be void and of no force or effect.
Article 8. AMENDMENT, SUSPENSION AND TERMINATION
8.1 Amendment of Plan. This Plan may be amended at any time by the Board in its sole discretion, subject to applicable regulatory approval, (including, approval of the TSX), and the terms of this Plan; provided that, no such amendment shall, unless required by law, adversely affect the rights of any Participant with respect to DSUs to which the Participant is then entitled under this Plan, without the consent of the Participant, and any amendment shall be such that this Plan continuously meets the conditions and requirements of paragraph 6801(d) of the Regulations and any applicable provincial tax laws and regulations or any successor provisions thereto.
8.2 Amendments without Shareholder Approval
Without limiting the generality of the foregoing, the Board may make the following amendments to the Plan, without obtaining shareholder approval:
(a) | amendments to the vesting provisions of the Plan and any DSU Award Agreement; |
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(b) | amendments to the terms and conditions of the Plan necessary to ensure that the Plan complies with the applicable laws, regulations, rules, orders of governmental or regulatory authorities or the requirements of the Exchange in place from time to time; |
(c) | amendments to the provisions of the Plan respecting administration of the Plan; |
(d) | amendments to the provisions of the Plan respecting the terms and conditions on which Awards may be made pursuant to the Plan; |
(e) | amendments to the Plan that are of a "housekeeping" nature; and |
(f) | any other amendments, fundamental or otherwise, not requiring shareholder approval under applicable laws or applicable policies of the Exchange. |
8.3 Amendments Requiring Shareholder Approval
Without limiting the generality of the foregoing, the Board may not, without the approval of the Company’s shareholders, make the following amendments to the Plan:
(a) | an increase to the Plan maximum or the number of Common Shares issuable under the Plan (including specifically to grants to non-employee Directors); |
(b) | any amendment to the amendment provisions in Sections 8.2 and 8.3 of the Plan; |
(c) | extension of the termination or expiry of an Award; |
(d) | the removal or increase of Insider Participation Limits; |
(e) | any change that would materially modify the eligibility requirements for participation in this Plan; and |
(f) | any amendment that permits the assignment or transfer of a DSU other than for normal estate planning purposes. |
8.4 Termination of Plan. The Board may, in its sole discretion and without the consent of any Participant, terminate the Plan at any time by giving written notice thereof to each Participant. Following termination of the Plan, additional DSUs shall not be credited to the Accounts of Participants except pursuant to ARTICLE 4 hereof. Notwithstanding the termination of the Plan, all amounts distributable under the Plan shall be paid to the persons entitled thereto on the date on which such distributions would have been made had the Plan not been terminated.
Article 9. ADJUSTMENTS, REORGANIZATIONS AND DIVIDENDS
9.1 Capital Adjustments.
(a) | The existence of DSUs shall not affect in any way the right or power of the Company or its shareholders to make or authorize any stock dividend, stock split, combination or exchange of shares, merger, consolidation, recapitalization, amalgamation, plan of arrangement, reorganization, spin-off or other distribution of the Company’s assets to shareholders or any other change affecting the Common Shares. However, such adjustments as are required to reflect such change shall be made with respect to each Participant’s Account, as the Committee in its discretion may deem appropriate to reflect such change. |
(b) | In the event that the Company has paid any dividends on the Common Shares since the credit of a DSU to a Participant Account (other than a dividend payable in Common Shares), there shall be credited to the Participant Account that number of additional DSUs equal to: (a) the product of the aggregate number of DSUs credited to the Participant Account prior to the payment of the dividend multiplied by the per share amount of such dividend (or, in the case of any dividend payable in property other than cash, the per share value of such dividend, as determined by the Board), divided by (b) the average of the bid and ask prices in respect of a Common Share on the date the dividend is declared. |
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(c) | In the event that the Company has paid any dividends on the Common Shares in additional Common Shares since the credit of a DSU to a Participant Account (other than a cash dividend payable in Common Shares at the election of the holder), the number of DSUs credited to the Participant Account shall be increased by a number equal to the product of (a) the aggregate number of DSUs credited to the Participant Account prior to the payment of the dividend, multiplied by (b) the number of Common Shares (including any fraction thereof) payable as a dividend on one Common Share. |
Any additional DSU’s granted pursuant to these Sections 9.1(b) and (c) shall be settled in the same manner as determined in Article 5.
9.2 Fluctuation in Common Share Price. No amount will be paid to, or in respect of, a Participant under this Plan or pursuant to any other arrangement, and no other DSUs will be granted to such Participants to compensate for a downward fluctuation in the price of a Common Share, nor will any other form of benefit be conferred upon, or in respect of, a Participant for such purpose.
Article 10. DESIGNATION OF BENEFICIARIES
10.1 Designation of Beneficiaries. Subject to applicable law, a Participant may designate in writing one or more persons who are dependents or relations as Beneficiaries to receive any amount payable under this Plan on the death of such Participant, and may change such designations from time to time. Such designations shall be in such form and executed and filed in such manner as the Board or the Administrator may from time to time determine. If no Beneficiaries are designated, the Participant’s legal representative will receive any amount payable under this Plan.
Article 11. TAX
11.1 Tax Consequences. It is the responsibility of the Participant to complete and file any tax returns which may be required under any applicable tax laws within the periods specified in those laws as a result of the Participant’s participation in this Plan. The Company shall not be responsible for any tax consequences to the Participant as a result of the Participant’s participation in this Plan. The Participant shall remain responsible at all times for paying any federal, provincial, local and foreign income or employment tax due with respect to any Award, and the Company shall not be liable for any interest or penalty that a Participant incurs by failing to make timely payments of tax.
11.2 Withholding Requirements. Prior to the delivery of any Common Shares or cash under this Plan, the Company shall have the power and the right to deduct or withhold, or to require a Participant to remit to the Company, an amount sufficient to satisfy any federal, provincial, local and foreign taxes, pension plan contributions, employment insurance premiums and any other required deductions (collectively referred to herein as “ withholding taxes ”) that the Company determines is required to be withheld to comply with applicable laws. The Company shall make any withholdings or deductions in respect of withholding taxes as required by law or the interpretation or administration thereof. The Company shall be entitled to make arrangements to sell a sufficient number of Common Shares to be issued pursuant to the Plan to fund the payment and remittance of withholding taxes that are required to be deducted or withheld and any associated costs (including brokerage fees).
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Article 12. UNSECURED PLAN
12.1 Unsecured Plan. Unless otherwise determined by the Board, this Plan will at all times remain unfunded and the obligations of the Company under this Plan shall be general unsecured obligations of the Company and any amounts due to Participants under this Plan shall be paid out of the general assets of the Company. The Company shall not segregate any assets for the purpose of funding its obligations with respect to DSUs credited hereunder. Neither the Company nor the Committee shall be deemed to be a trustee of any amounts to be distributed or paid pursuant to the Plan. No liability or obligation of the Company pursuant to the Plan shall be deemed to be secured by any pledge of, or encumbrance on, any property of the Company or any Affiliate.
Article 13. COMPLIANCE WITH APPLICABLE LAWS
13.1 Compliance with Applicable Laws. Any obligation of the Company with respect to the Common Shares in accordance with the terms of this Plan is subject to compliance with all applicable laws, regulations, rules, orders of governmental or regulatory authorities and the requirements of the Exchange. Notwithstanding any other provision of this Plan, if the Company, in its sole discretion, determines that it is not desirable or feasible to provide for the settlement of DSUs in Common Shares in accordance with Section 5.3 above, including by reason of any such laws, regulations, rules, orders or requirements, such obligation shall be satisfied by means of a cash payment determined in accordance with subsection 5.2(a) above, net of applicable withholdings. Each Participant shall comply with all such laws, regulations, rules, orders and requirements, and shall furnish the Company with any and all information and undertakings as may be required to ensure compliance therewith.
Article 14. GENERAL
14.1 No Representation. The Company makes no representation or warranty as to the future market of the Common Shares.
14.2 Governing Law. This Plan shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. The Participants and Company hereby attorn to the jurisdiction of the courts of the Province of Ontario with respect to any and all actions in relation thereto.
14.3 Severability. If any provision of this Plan is determined to be void or unenforceable in whole or in part, such void or unenforceable provision shall be severed from the remainder of this Plan and such determination shall not affect the validity or enforceability of any other provision.
14.4 Headings. Headings are for ease of reference only and shall not affect the interpretation or construction of the provisions hereof.
14.5 Successors and Assigns. This Plan shall be binding on all successors and assigns of the Company and any Participant, including without limitation, the estate of such Participant and the executor, liquidator, administrator or trustee of such estate, or any receiver or trustee in bankruptcy or representative of the Participant’s creditors.
***
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SCHEDULE A
AMERICAS SILVER CORPORATION
DEFERRED SHARE UNIT AGREEMENT
This DEFERRED SHARE UNIT AGREEMENT is made effective as of the day of , 20 between
AMERICAS SILVER CORPORATION (the “ Company ”) and the undersigned (the “ Participant ”), being a director, officer or employee of the Company or an Affiliate of the Company designated pursuant to the terms of the Deferred Share Unit Plan of the Company, as may be amended from time to time (the ” Plan ”). Capitalized terms used herein and not otherwise defined have the meaning given to such terms in the Plan.
In consideration for the grant of DSUs made to the Participant pursuant to the Plan (the receipt and sufficiency of which are hereby acknowledged), the Participant hereby agrees and confirms that:
1. | The Participant has received a copy of the Plan and has read, understands and agrees to be bound by the provisions of the Plan. The Participant acknowledges, among other things, that the Plan contains provisions relating to termination and restricting the transfer of rights or interests of Participants under the Plan. |
2. | The Participant accepts and consents to and shall be deemed conclusively to have accepted and consented to, and agreed to be bound by, the provisions and all terms of the Plan and all bona fide actions or decisions made by the Board, the Committee, or any person to whom the Committee may delegate administrative duties and powers in relation to the Plan, which terms and content shall also apply to and be binding on all successors and assigns of the Company and the Participant, including the estate of such Participant and the executor, liquidator, administrator or trustee of such estate, or any receiver or trustee in bankruptcy or representative of the Participant’s creditors. |
3. | The Participant hereby elects to receive 100% of his/her Annual Board Retainer for the remainder of the Company’s current fiscal year in the form of DSUs. For U.S. Grantees, the deferral election will be effective only with respect to remuneration payable in respect of services performed after the date the election is effective. This election shall continue to apply for all subsequent fiscal years, unless and until the Board resolves that the Annual Board Retainer not be paid in the form of DSUs. The DSUs granted hereunder will be calculated in accordance with Section 4.2(a) of the Plan with an Adjustment Factor of 1.25 to be applied to the Annual Board Retainer. |
4. | This Agreement shall be considered as part of and an amendment to the employment or service agreement between the Participant and the Company and the Participant hereby agrees that the Participant will not make any claim under that employment or service agreement for any rights or entitlement under the Plan or damages in lieu thereof, except as expressly provided in the Plan. |
5. | Participants who are “insiders” of the Company are required to file an insider report under Canadian securities laws in respect of the grant of DSUs and upon future conversion of these DSUs into DSU Shares and any subsequent sales of such DSU Shares. |
6. | In the event of any inconsistency between the terms of this Agreement and the Plan, the terms of this Agreement shall prevail to the extent that it is not inconsistent with the requirements of the Exchange. |
This Agreement shall be determined in accordance with the laws of Ontario and the laws of Canada applicable therein.
Words used herein which are defined in the Plan shall have the respective meanings ascribed to them in the Plan.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first above written.
AMERICAS SILVER CORPORATION | |||
By: | |||
Name: | |||
Title: | |||
(Authorized Signing Officer) | |||
Accepted :_______________________, 20__ | |||
[Name] |
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SCHEDULE B
ADDENDUM FOR DSUs GRANTED TO A U.S. GRANTEE
1) | The procedures regarding the Settlement Date outlined in Section 5.1 of the Plan do not apply to Eligible Participants to whom this U.S. Addendum applies (i.e., Eligible Participants who are U.S. Grantees). For the avoidance of doubt, U.S. Grantees are not permitted to select a redemption date under the Plan. All vested DSUs credited to a U.S. Grantee will be redeemed and paid in accordance with the Plan between a date at least six months and one day following the date that the Eligible Participant ceases to be an Eligible Participant as a result of a termination of employment and/or service as contemplated in Section 5.1, of the Plan (including as a result of a termination of employment and/or service due to long-term disability or retirement), and a date that is the earliest of (i) December 31 st of the calendar year that includes the Termination Date and (ii) the 15 th day of the third calendar month following the month that includes the Termination Date; based on the Market Price of the Common Shares on such date multiplied by the number of DSUs so redeemed. |
2) | For the purposes of clarity of the intent to comply with paragraph 6801(d) of the Regulations made pursuant to the Income Tax Act (Canada), in no event will any payment under the Plan be made later than the end of the first calendar year commencing after such U.S. Grantee's death, retirement, or cessation of service. |
3) | For purposes of U.S. Grantees subject to this Schedule B, references to cessation or termination of employment shall be construed as requiring a separation from service within the meaning of U.S. Treasury Regulation §1.409A-1(h). |
4) | References to “Affiliated Entities” shall be interpreted in a manner that complies with the definitions of “service recipient” and “employer”, as applicable, under the U.S. Treasury Regulations under Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “ Code ”). |
5) | The Company shall withhold from any award and/or payment under the Plan all taxes or other amounts required to be withheld by the Company under applicable law. |
6) | This Schedule B, and the Plan as it relates to U.S. Grantees, shall be interpreted and applied in a manner that complies with the requirements of Section 409A of the Code. |
7) | All other provisions of the Plan shall continue to apply to the U.S. Grantees to the extent they have not been specifically modified by this U.S. Addendum. |
***
Exhibit 21.1
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the reference to our firm under the caption “Experts”, and the inclusion of our report dated March 28, 2018, for the year ended December 31, 2017 related to the financial statements of Pershing Gold Corporation and subsidiaries included in its Annual Report (Form 10-K) for the year ended December 31, 2017 and the unaudited interim financial statements for the nine months ended September 30, 2018 both as filed with the Securities and Exchange Commission, which are incorporated by reference in Americas Silver Corporation’s Registration Statement on Form F-4 filed on or about November 2, 2018.
/s/ KBL, LLP |
KBL, LLP
New York, NY
November 2, 2018
535 Fifth Avenue, 30 th Floor, New York, NY 10017 | 212.785-9700 |
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITOR
We hereby consent to the incorporation by reference in this registration statement on Form F-4 of Americas Silver Corporation of our report dated March 5, 2018, relating to the financial statements of Americas Silver Corporation. We also consent to the reference to us under the heading “Experts” in such registration statement.
/s/ PricewaterhouseCoopers LLP
Chartered Professional Accountants,
Licensed Public Accountants
Toronto, Canada
November 5, 2018
Exhibit 23.4
Consent of Canaccord Genuity LLC
We consent to the summary and inclusion of our opinion letter dated September 28, 2018, concerning the fairness, from a financial point of view, of the proposed merger consideration to the common stockholders of Pershing Gold Corporation, which is set forth in this proxy statement/prospectus constituting part of this Registration Statement of Americas Silver Corporation.
/s/ Canaccord Genuity LLC
November 5, 2018
Exhibit 23.5
CONSENT OF EXPERT
The undersigned hereby consents to (i) the references to, and the information derived from, the Technical Report and Preliminary Feasibility Study for the San Rafael Property, Sinaloa, Mexico dated April 29, 2016 and to (ii) the references to the undersigned’s name, included in or incorporated by reference in the Registration Statement on Form F-4 being filed by Americas Silver Corporation.
/s/ Thomas Dyer |
Thomas Dyer, P.E. |
Dated November 5, 2018 |
Exhibit 23.6
CONSENT OF EXPERT
The undersigned hereby consents to (i) the references to, and the information derived from, (A) the Technical Report and Preliminary Feasibility Study for the San Rafael Property, Sinaloa, Mexico dated April 29,2016, and (B) the San Rafael, Zone 120 and El Cajón Mineral Resource estimates, and to (ii) the references to the undersigned’s name, included in or incorporated by reference in the Registration Statement on Form F-4 being filed by Americas Silver Corporation.
/s/ Paul Tietz | |
Paul Tietz, C.P.G. | |
Dated November 5, 2018 |
Exhibit 23.7
CONSENT OF EXPERT
The undersigned hereby consents to (i) the references to, and the information derived from, the Technical Report and Preliminary Feasibility Study for the San Rafael Property, Sinaloa, Mexico dated April 29, 2016 and to (ii) the references to the undersigned’s name, included in or incorporated by reference in the Registration Statement on Form F-4 being filed by Americas Silver Corporation.
/s/ Paul Tietz | |
Mine Development Associates, Inc. | |
Dated November 5, 2018 |
Exhibit 23.8
CONSENT OF EXPERT
The undersigned hereby consents to (i) the references to, and the information derived from, the Technical Report, Galena Complex, Shoshone County, Idaho dated December 23, 2016 and to (ii) the references to the undersigned’s name, included in or incorporated by reference in the Registration Statement on Form F-4 being filed by Americas Silver Corporation.
/s/ Jim Atkinson | |
Jim Atkinson, P.Geo. | |
Dated November 5, 2018 |
Exhibit 23.9
CONSENT OF EXPERT
The undersigned hereby consents to (i) the references to, and the information derived from, the Technical Report, Galena Complex, Shoshone County, Idaho dated December 23, 2016 and to (ii) the references to the undersigned’s name, included in or incorporated by reference in the Registration Statement on Form F-4 being filed by Americas Silver Corporation.
/s/ Daren Dell | |
Daren Dell, P.Eng. | |
Dated November 5, 2018 |
Exhibit 23.10
CONSENT OF EXPERT
The undersigned hereby consents to (i) the references to, and the information derived from, the Technical Report and Preliminary Feasibility Study for the San Rafael Property, Sinaloa, Mexico dated April 29, 2016 and to (ii) the references to the undersigned’s name, included in or incorporated by reference in the Registration Statement on Form F-4 being filed by Americas Silver Corporation.
/s/ Edwin R. Peralta | |
Edwin R. Peralta, P.E. | |
Dated November 5, 2018 |
Exhibit 23.11
CONSENT OF EXPERT
The undersigned hereby consents to (i) the references to, and the information derived from, the Technical Report and Preliminary Feasibility Study for the San Rafael Property, Sinaloa, Mexico dated April 29, 2016 and to (ii) the references to the undersigned’s name, included in or incorporated by reference in the Registration Statement on Form F-4 being filed by Americas Silver Corporation.
/s/ Randy Powell | |
Randy Powell, Q.P.M. | |
Dated November 5, 2018 |
Exhibit 23.12
CONSENT OF EXPERT
The undersigned hereby consents to (i) the references to, and the information derived from, the Technical Report, Galena Complex, Shoshone County, Idaho dated December 23, 2016 and to (ii) the references to the undersigned’s name, included in or incorporated by reference in the Registration Statement on Form F-4 being filed by Americas Silver Corporation.
/s/ Dan Hussey | |
Dan Hussey, C.P.G. | |
Dated November 5, 2018 |
Exhibit 23.13
CONSENT OF EXPERT
The undersigned hereby consents to (i) the references to, and the information derived from, the Nuestra Sefńora Mineral Reserve and Resource estimate and to (ii) the references to the undersigned’s name, included in or incorporated by reference in the Registration Statement on Form F-4 being filed by Americas Silver Corporation.
/s/ James Stonehouse | |
James Stonehouse, SME-RG | |
Dated November 5, 2018 |
Exhibit 23.14
CONSENT OF EXPERT
The undersigned hereby consents to (i) the references to, and the information derived from, the Mineral Resource estimate for the Galena Complex and the San Rafael Mineral Reserve estimate and to (ii) the references to the undersigned’s name, included in or incorporated by reference in the Registration Statement on Form F-4 being filed by Americas Silver Corporation.
/s/ Shawn Wilson | |
Shawn Wilson, P.Eng. | |
Dated November 5, 2018 |
Exhibit 23.15
CONSENT OF EXPERT
The undersigned hereby consents to (i) the references to, and the information derived from, the Mineral Resource estimate for the Galena Complex and to (ii) the references to the undersigned’s name, included in or incorporated by reference in the Registration Statement on Form F-4 being filed by Americas Silver Corporation.
/s/ Aaron Gross | |
Aaron Gross, P.G. | |
Dated November 5, 2018 |
Exhibit 23.16
CONSENT OF MINE DEVELOPMENT ASSOCIATES INC.
We hereby consent to the incorporation by reference of the estimates of mineralized material and production forecasts for the Relief Canyon Mine, and any other analysis performed by us relating to the feasibility study for Pershing Gold Corporation, that appear in or are incorporated by reference into the proxy statement/prospectus in this Registration Statement on Form F-4 of Americas Silver Corporation filed on or about November 5, 2018 and in any prospectuses or amendments or supplements thereto.
Dated: November 5, 2018
Mine Development Associates, Inc. | |
/s/ Paul Tietz | |
Name: Paul Tietz | |
Title: Senior Geologist |
Exhibit 99.3
Consent of Person Named to Become a Director
Pursuant to Rule 438 promulgated under the Securities Act of 1933, as amended, I hereby consent to being named in the prospectus/proxy statement included in this Registration Statement on Form F-4 (including any amendments thereto), as a person who will become a director of Americas Silver Corporation following the consummation of the transactions described therein, and to the filing of this consent as an exhibit to this Registration Statement (including any amendments thereto).
/s/ Stephen D. Alfers | |
Stephen D. Alfers |
Dated: November 5, 2018