| 2.
| | 2.Providing or denying waivers from the Code; and 3.Disclosing departures from the Code that constitute a material change (including material departures from the Code by directors or executive officers) and filing the required material change reports containing: | (i) | the date of the departure; |
| (ii) | the parties involved; |
| (iii) | the reason why the Board has or has not sanctioned the departure; and |
| (iv) | 3.
| | Disclosing departures fromany measures taken to address or remedy the Code that constitute a material change (including material departures from the Code by directors or executive officers) and filing the required material change reports containing:departure.
|
(i)the date of the departure;
(ii)the parties involved;
(iii)the reason why the Board has or has not sanctioned the departure; and
(iv)any measures taken to address or remedy the departure.
The Board has the duty to: 1.Adopt a strategic planning process, annually approve a strategic plan taking into account, among other things, the opportunities and risks of the Company’s business and operations, and regularly monitor the Company’s performance against its strategic plan; 2.Approve capital and operating budgets to implement the strategic plan; 3.Conduct periodic reviews of the Company’s resources, risks, and regulatory constraints and opportunities to facilitate the strategic plan; and 4.Evaluate management’s analysis of the strategies of existing and potential competitors and their impact, if any, on the Company’s strategic plan. | XII. | 1.
| | Adopt a strategic planning process, annually approve a strategic plan taking into account, among other things, the opportunities and risks of the Company’s business and operations, and regularly monitor the Company’s performance against its strategic plan;
RISK MANAGEMENT |
| 2.
| | Approve capital and operating budgets to implement the strategic plan;
|
| 3.
| | Conduct periodic reviews of the Company’s resources, risks, and regulatory constraints and opportunities to facilitate the strategic plan; and
|
| 4.
| | Evaluate management’s analysis of the strategies of existing and potential competitors and their impact, if any, on the Company’s strategic plan.
|
The Board has the duty to: 1.Adopt a process to identify business risks and ensure appropriate systems to manage risks; 2.Ensure that appropriate internal controls and management information systems are in place; 3.Together with the Audit Committee, ensure policies and procedures are in place and are effective to maintain the integrity of the Company’s: | (i) | 1.disclosure controls and procedures;
|
| (ii) | internal control over financial reporting; and |
| (iii) | Adopt a process to identify business risks and ensure appropriate systems to manage risks;management information systems.
|
| XIII. | 2.
| | Ensure that appropriate internal controls and management information systems are in place;
FINANCIAL MANAGEMENT |
| 3.
| | Together with the Audit Committee, ensure policies and procedures are in place and are effective to maintain the integrity of the Company’s:
|
(i)disclosure controls and procedures;
(ii)internal control over financial reporting; and
(iii)management information systems.
| XIII.
| | FINANCIAL MANAGEMENT
|
The Board has the duty to: | 1.
| | 1.Review and, on the advice of the Audit Committee, approve, prior to their public dissemination: | (i) | interim and annual financial statements and notes thereto; |
| (ii) | management’s discussion and analysis of financial condition and results of operations; |
| (iii) | relevant sections of the annual report and management information circular containing financial information; |
| (iv) | forecasted financial information and forward-looking statements; and |
| (v) | all press releases and other documents in which financial statements, earnings forecasts, results of operations or other financial information is disclosed (this is currently delegated by the Board to the Chair of the Audit Committee, approve, prior to their public dissemination:Committee); and |
(i)interim and annual financial statements and notes thereto;
(ii)management’s discussion and analysis of financial condition and results of operations;
(iii)relevant sections of the annual report and management information circular containing financial information;
(iv)forecasted financial information and forward-looking statements; and
(v)all press releases and other documents in which financial statements, earnings forecasts, results of operations or other financial information is disclosed (this is currently delegated by the Board to the Chair of the Audit Committee); and
| 2.
| | Approve dividends and distributions, material financings, transactions affecting authorized capital or the issue and repurchase of shares and debt securities, and all material divestitures and acquisitions.
|
2.Approve dividends and distributions, material financings, transactions affecting authorized capital or the issue and repurchase of shares and debt securities, and all material divestitures and acquisitions. The Board shall have access to all books, records, facilities and personnel of the Company necessary for the discharge of its duties. The Board has the power, at the expense of the Company, to retain, instruct, compensate and terminate independent advisors to assist the Board in the discharge of its duties.
APPENDIX “C”“C” TEXT OF ORDINARY RESOLUTIONSRESOLUTION Part I Unallocated Options underAmendment of the Stock Option Plan ResolutionLTIP
“BE IT RESOLVED, as an ordinary resolution, that: | 1. | | all unallocated options, rights and other entitlements under the Corporation’s Stock OptionLong Term Equity Incentive Plan are(“LTIP”) is hereby ratified, approvedamended by deleting Section 9.5(a)(vii) in its entirety and confirmed until April 26, 2021; and
replacing it with the following: |
“making any amendments not inconsistent with the Plan as may be necessary or desirable with respect to matters or questions which, in the good faith opinion of the Board, having in mind the best interests of the Participants, it may be expedient to make, provided that the Board shall be of the opinion that such amendments will not be prejudicial to the rights or interest of the Participants, or to comply with the provisions of applicable laws (including, without limitation, the rules, regulations and policies of the Exchanges) or necessary or desirable for any advantages or other purposes of any tax law (including, without limitation, the rules, regulations, and policies of the Canada Revenue Agency, the Internal Revenue Service or any taxation authority);” | 2. | the LTIP is hereby amended by adding thereto Section 9.13 to read in its entirety as follows: |
“9.13Clawback Policy Notwithstanding any other provision of this Agreement to the contrary, any cash incentive compensation received by a Participant, Awards granted and/or Common Shares issued hereunder, and/or any amount received with respect to any sale of any such Common Shares, shall be subject to potential cancellation, recoupment, rescission, payback or other action in accordance with the terms of any clawback policy that the Corporation may adopt or amend, from time to time, pursuant to the listing standards of any national securities exchange or association on which the Corporation’s securities are listed, as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other applicable laws or as the Board may determine is in the best interests of the Corporation and its stockholders. By accepting any monetary amounts or Awards hereunder a Participant agrees and consents to the Corporation’s application, implementation and enforcement of (a) any such clawback policy or any similar policy established by the Corporation that may apply to the Participant and (b) any provision of applicable law relating to cancellation, rescission, payback or recoupment of compensation, and expressly agrees that the Corporation may take such actions as are necessary to effectuate such clawback policy, any similar policy (as applicable to the Participant) or applicable law without further consent or action being required by the Participant. To the extent that the terms of this Plan and any clawback policy or any similar policy conflict, then the terms of such clawback policy or other policy shall prevail. Unless this Section 9.13 is specifically mentioned and waived in an Award Agreement or other document, no recovery of compensation under a clawback policy or otherwise will be an event that triggers or contributes to any right of a Participant to resign for “good reason” or “constructive termination” (or similar term) under any agreement with the Company or a Subsidiary or Parent of the Company.”; and | 3. | any director or officer of the Corporation is authorized to do all acts and things, to execute under the common seal of the Corporation or otherwise and to deliver all agreements, documents and instructions, to give all notices and to deliver, file and distribute all documents and information which such director or officer (as the case may be) determines to be necessary or desirable in connection with or to give effect to and carry out these resolutions.” |
Part II
Unallocated Awards under the LTIP Resolution
“BE IT RESOLVED, as an ordinary resolution, that:
| 1.
| | all unallocated options, rights and other entitlements under the Corporation’s Long-Term Equity Plan are hereby ratified, approved and confirmed until April 26, 2021; and
|
| 2.
| | any director or officer of the Corporation is authorized to do all acts and things, to execute under the common seal of the Corporation or otherwise and to deliver all agreements, documents and instructions, to give all notices and to deliver, file and distribute all documents and information which such director or officer (as the case may be) determines to be necessary or desirable in connection with or to give effect to and carry out these resolutions.”
|
Part III
Deferred Share Unit Plan Resolution
“BE IT RESOLVED as an ordinary resolution, that:
1.the Corporation’s Deferred Share Unit Plan (the “DSU Plan”), the text of which is set out in Appendix “D” of the Information Circular, be and is hereby approved;
2.the Corporation have the ability to grant deferred share units under the DSU Plan; and
3.any director or officer of the Corporation is authorized to do all acts and things, to execute under the common seal of the Corporation or otherwise and to deliver all agreements, documents and instructions, to give all notices and to deliver, file and distribute all documents and information which such director or officer (as the case may be) determines to be necessary or desirable in connection with or to give effect to and carry out these resolutions.”
APPENDIX “D” VISTA GOLD CORP. DEFERRED SHARE UNIT PLANLong Term Equity Incentive Plan
Article 1
Purpose | 1.1 | ARTICLE 1
INTRODUCTION
Purpose |
The purpose of this Deferred Share UnitLong Term Equity Incentive Plan (the “Plan”) is to assist Vista Gold Corp. (the “Corporation”) in attracting, retaining and motivating directorskey employees, officers and consultants of the Corporation and its subsidiaries and to more closely align the personal interests of such persons with shareholders, thereby advancing the interests of the Corporation and its shareholders and increasing the long-term value of the Corporation. Article 2
Interpretation | ARTICLE 2
INTERPRETATION
2.1 | Definitions |
For purposes of this Plan:When used herein, unless the context otherwise requires, the following terms have the indicated meanings, respectively:
“AccountAffiliate” means an account maintained by the Corporation for each Participant and which will be credited by means of a book-keeping entry with DSUs that are granted in accordance with the terms of this Plan and the DSU Agreements; “Affiliate”has the meaning set forth in the Securities Act (Ontario), as amended from time to time;
“Applicable Withholding AmountsAssociate”has the meaning set forth in the Securities Act (Ontario), as amended from time to time; “Award” is defined in Section 4.11(a)ofmeans any Restricted Share Unit or Restricted Stock granted under this Plan; “Black OutAward Agreement”means a signed, written agreement between a Participant and the Corporation, substantially in the form attached as Schedule A in the case of a RSU Award and substantially in the form attached as Schedule B in the case of a Restricted Stock Award, subject to any amendments or additions thereto as may, in the discretion of the Committee, be necessary or advisable, evidencing the terms and conditions on which an Award has been granted under this Plan; “Black-Out Period” means, with respect to a DSU,an Award, any period during which the holder of the DSUAward is not permitted to trade Common Shares pursuant to the policies of the Corporation; “Board”means the board of directors of the Corporation; “Business Day” means a day, other than a Saturday or Sunday, on which the principal commercial banks in the City of Denver, Colorado, are open for commercial business during normal banking hours; “BCA”means the Business Corporations Act (British Columbia) and the regulations promulgated thereunder, both as amended from time to time; “Change in Control”means the happening of any of the following events: | (i) | any transaction at any time and by whatever means pursuant to which (A) the Corporation goes out of existence, except for any corporate transaction or reorganization in which the proportionate voting power among holders of securities of the entity resulting from such corporate transaction or reorganization is substantially the same as the proportionate voting |
| | power of such holders of the Corporation’s voting securities immediately prior to such corporate transaction or reorganization or (B) any Person or any group of two or more Persons acting jointly or in concert (other than the Corporation, a wholly-owned Subsidiary of the Corporation, an employee benefit plan of the Corporation or of any of its wholly-owned Subsidiaries, including the trustee of any such plan acting as trustee) hereafter acquires the direct or indirect beneficial ownership of, or acquires the right to exercise control or direction over, securities of the Corporation representing 50% or more of the then issued and outstanding Common Shares in any manner whatsoever, including, without limitation, as a result of a take-over bid, an exchange of securities, an amalgamation of the Corporation with any other entity, an arrangement, a capital reorganization or any other business combination or reorganization; |
| (ii) | the sale, assignment or other transfer of all or substantially all of the assets of the Corporation to a Person other than a wholly-owned Subsidiary of the Corporation; |
| (iii) | the dissolution or liquidation of the Corporation except in connection with the distribution of assets of the Corporation to one or more Persons which were wholly-owned Subsidiaries of the Corporation immediately prior to such event; |
| (iv) | the occurrence of a transaction requiring approval of the Corporation’s shareholders whereby the Corporation is acquired through consolidation, merger, exchange of securities, purchase of assets, amalgamation, arrangement or otherwise by any other Person (other than a short form amalgamation or exchange of securities with a wholly-owned Subsidiary of the Corporation); or |
| (v) | the Board passes a resolution to the effect that, for the purposes of some or all of the Award Agreements, an event set forth in (i), (ii), (iii) or (iv) above has occurred; |
“CommitteeCode” means the Compensation CommitteeU.S. Internal Revenue Code of the Board or such other committee of the Board1986, as may be appointed by the Boardamended from time to administer this Plan, provided, however, that if no such committee is in existence at any particular time, and the Board has not appointed another committee of the Board to administer this Plan, all references in this Plan to “Committee” shall at such time be in reference to the Board;regulations promulgated under it; “CommonShares”means the common shares in the capital of the Corporation and any other securities of the Corporation or any Affiliate or any successor that may be so designated by the Committee; “Committee”has the meaning set forth in the event of an adjustment contemplated by Section 4.9, such other number or type of securities as the Committee may determine;3.2; “Corporation”means Vista Gold Corp., a corporation continued under the laws of the Province of British Columbia, and any successor corporation; “Deferred Share Unit” or “DSUConsultantParticipant” means an individual or a consultant company (other than an Employee Participant) that: | (i) | is engaged to provide services to the Corporation or an Affiliate other than services provided in relation to a distribution of securities of the Corporation or an Affiliate; |
| (ii) | provides the services under a written contract with the Corporation or an Affiliate; and |
| (iii) | spends or will spend a significant amount of time and attention on the affairs and business of the Corporation or an Affiliate, |
and includes a Consultant Participant’s Permitted Assigns. For the agreement by the Corporation to pay, and the right of the Participant to receive, a Payment Share evidenced by means of a bookkeeping entry in the books of the Corporation in accordance with ARTICLE 4; “Distribution Date” is defined in Section 4.6purposes of this Plan;
definition, “Distribution Valueconsultant company” means, with respect to each Deferred Share Unit creditedan individual consultant, either (A) a company of which the individual consultant is an employee or shareholder or (B) a partnership of which the individual consultant is an employee or partner;
“Corporate Reorganization”has the meaning set forth in Section 8.3; “Covered Employee” shall have the meaning set forth in Section 162(m)(3) of the Code; “Date of Grant” means, for any Award, the date the Committee provides notice to a Participant of the grant of an Award (which, for greater certainty, shall be no earlier than the date on which the Committee meets for the purpose of granting such Award) or the date upon which the Award Agreement is entered into with the Participant; “Disabled”or“Disability”means the permanent and total incapacity of a Participant as determined in accordance with procedures established by the Committee for purposes of this Plan; “Disinterested Shareholder Approval”means approval by the shareholders of the Corporation excluding any votes of securities held directly or indirectly by Insiders benefiting directly or indirectly from the approval or amendment in accordance with the rules, regulations, and policies of any Exchange, securities commission or regulatory body; “Employee Participant” means a current full-time or part-timeemployee or officer of the Corporation or an Affiliate (other than a Consultant Participant) and includes an Employee Participant’s Account, the Fair Market Value per Common Share;Permitted Assigns; “Dividend Market ValueExchange Act” means the Fair Market Value per Common Share on the dividend record date;United States Securities Exchange Act of 1934, as amended from time to time; “DSU AgreementExchanges” is defined in Section 5.11 of this Plan; “Eligible Director” means an individual who is, at the relevant time, a director of the Corporation;
“Exchanges” means the TSXToronto Stock Exchange and the NYSE AmericanMKT and such other exchanges upon which the Common Shares may become listed from time to time, and each, an “Exchange”;time;
“Fair Market Value” means, with respect to any Common Share at a particular date, provided that such Common Shares are not then listed on any stock exchange in Canada or the United States, the fair market value as determined by the Board in its discretion; provided that if such Common Shares are then listed on the NYSE MKT, the Fair Market Value shall be the volume weighted average trading price of the Common Shares on the TSX or the NYSE American (to be determined by where the majority of the trading volume and value of the Common Shares occurs)MKT for the five (5) trading days immediately precedingprior to such date (or if such Common Shares did not trade on such exchange on such days, the dayaverage of the bid and ask prices of such Common Shares at the close of trading on which the Fair Market Value is to be determined. Insuch days); provided that in the event that thesuch Common Shares are not then listed and posted for trading on anysuch stock exchange, the Fair Market Value shall be determined based on the fair market valueclosing price of such Common Shares on any stock exchange in Canada or the United States on which such Common Shares are then listed on the last trading day prior to the particular date (or if such Common Shares did not trade on such exchange on such day, the average of the bid and ask prices of such Common Shares as determined byat the Board in its sole discretion, acting reasonably and in good faith;close of trading on such day); “InsiderGood Reason” means: | (i) | material diminution in the Participant’s authority, duties or responsibilities assigned immediately prior to a Change in Control; |
| (ii) | a material reduction in the Participant’s annual base salary in effect immediately prior to a Change in Control; or |
| (iii) | a requirement that the Participant be based at any office or location more than 50 miles from the Participant’s primary work location immediately prior to the Change in Control; |
“Insider”has the meaning ascribed theretoset forth in Part I of the TSX Company Manual,Securities Act (Ontario), as amended from time to time;time, and includes Associates and Affiliates of such Person; “NYSE AmericanNI 45-106”means National Instrument 45-106 – Prospectus and Registration Exemptions of the NYSE American LLC;Canadian Securities Administrators, as amended from time to time;
“Participant” means an Eligible Director who is granted DSU’sEmployee Participant or a Consultant Participant; “Performance Awards” has the meaning set forth in Section 5.1; “Performance Goals” means performance goals based on one or more of the following criteria: (i) earnings, including operating income, earnings before or after taxes, earnings before or after interest, depreciation, amortization, or extraordinary or special items or book value per share (which may exclude nonrecurring items); (ii) pre-tax income or after-tax income; (iii) earnings per Common Share (basic or diluted); (iv) operating profit; (v) revenue, revenue growth or rate of revenue growth; (vi) return on assets (gross or net), return on investment, return on capital, or return on equity; (vii) returns on sales or revenues; (viii) operating expenses; (ix) stock price appreciation; (x) cash flow, free cash flow, cash flow return on investment (discounted or otherwise), net cash provided by operations, or cash flow in excess of cost of capital; (xi) implementation or completion of critical projects or processes; (xii) economic value created; (xiii) cumulative earnings per share growth; (xiv) operating margin or profit margin; (xv) Common Share price or total shareholder return; (xvi) cost targets, reductions and savings, productivity and efficiencies; (xvii) strategic business criteria, consisting of one or more objectives based on meeting specified geographic business expansion, employee satisfaction, human resources management, supervision of litigation, information technology, and goals relating to acquisitions, divestitures, joint ventures and similar transactions, and budget comparisons; (xviii) personal professional objectives, including any of the foregoing performance goals, the implementation of policies and plans, the negotiation of transactions, the development of long term business goals, formation of joint ventures, research or development collaborations, and the completion of other corporate transactions; and (xix) any combination of, or a specified increase in, any of the foregoing. Where applicable, the Performance Goals may be expressed in terms of attaining a specified level of the particular criteria or the attainment of a percentage increase or decrease in the particular criteria, and may be applied to one or more of the Corporation, a Subsidiary, or a division or strategic business unit of the Corporation, or may be applied to the performance of the Corporation relative to a market index, a group of other companies or a combination thereof, all as determined by the Committee. The Performance Goals may include a threshold level of performance below which no payment will be made (or no vesting will occur), levels of performance at which specified payments will be made (or specified vesting will occur), and a maximum level of performance above which no additional payment will be made (or at which full vesting will occur). Each of the foregoing Performance Goals shall be determined in accordance with Section 4.1 hereof;generally accepted accounting principles, if applicable, and shall be subject to certification by the Committee; provided that the Committee shall have the authority to make equitable adjustments to the Performance Goals in recognition of unusual or non-recurring events affecting the Corporation or any Subsidiary or the financial statements of the Corporation or any Subsidiary, in response to changes in applicable laws or regulations, or to account for items of gain, loss or expense determined to be extraordinary or unusual in nature or infrequent in occurrence or related to the disposal of a segment of a business or related to a change in accounting principles; “Payment SharesPermitted Assign” meanshas the Common Shares issuedmeaning given to that term in satisfaction of DSUs;NI 45-106; “Person”includes an individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate, and a natural person in his or her capacity as trustee, executor, administrator or other legal representative; “Plan”means this Long Term Equity Incentive Plan of the Corporation; “Restricted Share Unit”or “RSU”means a right to receive from the Corporation at some future date a newly-issued Common Share, which right is granted, as determined by the Committee, under Section 4.1; “Restricted Stock” means this Deferred Share Unit Plan as amended, restated, supplementedany Common Shares granted under Section 4.5; “Retirement”means retirement from active employment with the Corporation or otherwise modifiedan Affiliate in accordance with the policies of the Corporation in place from time to time; “Security Based Compensation Arrangement” hastime or, with the meaning ascribed thereto in Part VIconsent for purposes of the TSX Company Manual,Plan of such officer of the Corporation as may be designated by the Committee, at or after such earlier age and upon the completion of such years of service as the Committee may specify;
“Securities Act”means the United States Securities Act of 1933, as amended from time to time; “SeparationSecurity Based Compensation Arrangement”has the meaning given to that term in the TSX Rules; “Share Reorganization”has the meaning set forth in Section 8.2; “Special Distribution”has the meaning set forth in Section 8.4; “Termination Date”means, in the earliestcase of aParticipant whose employment or term of office or engagement with the Corporation or an Affiliate terminates: | (i) | by reason of the Participant’s death, the date of death; |
| (ii) | for any reason whatsoever other than death, the later of: |
| (A) | in the case of a Participant whose employment is terminated by the Corporation or Affiliate, the last day of the minimum statutory notice period, if any, to which that Participant is entitled upon such termination pursuant to applicable employment and/or labour standards legislation; and |
| (B) | the date designated by the Corporation or the Affiliate, as the case may be, as the last day of the Participant’s employment or term of office or engagement with the Corporation or the Affiliate, as the case may be, |
provided that in the case of termination by reason of voluntary resignation by the Participant, such date shall not be earlier than the date that notice of resignation was received from such Participant, and for greater certainty “Termination Date”in any such casespecifically does not mean the date on which the Participant is no longer a memberany period of the Board of the Corporation nor is otherwise employed bycontractual notice or reasonable notice that the Corporation or anythe Affiliate, as the case may be, may be required at law to provide to a Participant would expire; “TSX Rules”means Part VI of its Subsidiaries in any fashion; “TSX” meansthe Company Manual of the Toronto Stock Exchange; and
“TSX Company Manual” means the Toronto Stock Exchange, Company Manual, as amended from time to time.time;
“U.S. Taxpayer” shall mean a Participant who is a U.S. citizen, U.S. permanent resident or U.S. tax resident for the purposes of the Code; “Vesting Date” has the meaning set forth in Section 4.4; and “Withholding Obligations” has the meaning set forth in Section 9.3. | (a) | | Whenever the Board or, where applicable, the Committee is to exercise discretion in the administration of this Plan, the term “discretion” means the sole and absolute discretion of the Board or the Committee, as the case may be. |
| (b) | | As used herein, the terms “Article”, “Section”, “Subsection” and “clause” mean and refer to the specified Article, Section, Subsection and clause of this Plan, respectively. |
| (c) | | Words importing the singular include the plural and vice versa and words importing any gender include any other gender. |
| (d) | | Whenever any payment is to be made or action is to be taken on a day which is not a business day,Business Day, such payment shall be made or such action shall be taken on the next following business day. Business Day. |
| (e) | | In this Plan, a Person is considered to be a “Subsidiary” of another Person if: |
| (B) | | that other and one or more Persons, each of which is controlled by that other, or |
| (C) | | two or more Persons, each of which is controlled by that other; or |
| (ii) | | it is a Subsidiary of a Person that is that other’s Subsidiary. |
| (f) | | In this Plan, a Person is considered to be “controlled”by a Person if: |
| (i) | | (A) voting securities of the first-mentioned Person carrying more than 50% of the votes for the election of directors are held, directly or indirectly, otherwise than by way of security only, by or for the benefit of the other Person; and (B) the votes carried by the securities are entitled, if exercised, to elect a majority of the directors of the first‑mentionedfirst-mentioned Person; |
| (ii) | | in the case where the first-mentioned Person is a partnership that does not have directors, other than a limited partnership, the second‑mentionedsecond-mentioned Person holds more than 50% of the interests in the partnership; or |
| (iii) | | in the case where the first-mentioned Person is a limited partnership, the second‑mentionedsecond-mentioned Person is the general partner. |
| (g) | | Unless otherwise specified, all references to money amounts are to U.S. Dollars. |
| 3.1 | ARTICLE 3
ADMINISTRATION OF THE PLAN
Administration |
| 3.1
| | Administration of the Plan
|
| (a)
| | Except as required by law and subject to Sections 3.1(b),
Subject to Section 3.2, this Plan will be administered by the Board and the Board has sole and complete authority, in its discretion, to: | (a) | determine the Persons to whom grants under the Plan may be made; |
| (b) | make grants of Awards under the Plan relating to the issuance of Common Shares (including any combination of Restricted Share Units or Restricted Stock) in such amounts, to such Persons and, subject to the provisions of this Plan, on such terms and conditions as it determines including without limitation: |
| (i) | the time or times at which Awards may be granted; |
| (ii) | the conditions under which: |
| (A) | Awards may be granted to Participants; or |
| (B) | Awards may be forfeited to the Corporation, |
including any conditions relating to the attainment of specified Performance Goals;
| (i)
(iii) | | interpretwhether restrictions or limitations are to be imposed on the Common Shares issuable pursuant to grants of Awards, and construe any provision hereofthe nature of such restrictions or limitations, if any; and decide all questions of fact arising in their interpretation;
|
| (ii)
(iv) | | adopt, amend, suspend and rescindany acceleration of exercisability or vesting, or waiver of termination regarding any Award, based on such rules and regulations for administration of this Planfactors as the Board may deem necessary in order to comply with the requirements ofdetermine;
|
| (c) | interpret this Plan in orderand adopt, amend and rescind administrative guidelines and other rules and regulations relating to conform to any law or regulation or to any change in any laws or regulations applicable thereto; |
| (iii)
| | exercise rights reserved to the Corporation under this Plan;
|
| (iv)
| | take any and all actions permitted by this Plan;
|
| (v)
| | prescribe forms for notices to be prescribed by the Corporation under this Plan; and
|
| (vi)
(d) | | make anyall other determinations and take suchall other action in connection withactions necessary or advisable for the implementation and administration of this Plan that it deems necessary or advisable. Plan. |
The Board’s determinations and actions within its authority under this Plan are final, conclusive and binding on the Corporation the Participants and all other Persons.persons. The day-to-day administration of the Plan may be delegated to such officers and employees of the Corporation or of a Subsidiary as the Board determines. | 3.2 | (b)
| | Delegation to Committee |
To the extent permitted by applicable law and the Corporation’s articles, the Board may, from time to time, delegate to a committee (the“Committee”) of the Board all or any of the powers conferred on the Board under the Plan. In connection with such delegation, the Committee or any specified officer of the Corporation all or any of the powers of the Board. In such event, the Committee or specified officer (as the case may be) will exercise the powers delegated to it by the Board in the manner and on the terms authorized by the Board. Any decision made or action taken by the Committee or specified officer (as the case may be) arising out of or in connection with the administration or interpretation of this Plan in this context is final, binding and conclusive on the Corporation, the Participants and all other Persons. |
| 3.2
| | Determination of Value if Common Shares Not Publicly Traded
|
If the Common Shares are not publicly traded on the Exchanges at the relevant time such that the Distribution Value and/or the Dividend Market Value cannot be determined in accordance with the definitions of those terms, such values shall be determined by the Board acting in good faith.the manner and on the terms authorized by the Board. Any decision made or action taken by the Committee arising out of or in connection with the administration or interpretation of this Plan in this context is final and conclusive. Notwithstanding any such delegation or any reference to the Committee in this Plan, except for Performance Awards made to Covered Employees, the Board may also take any action and exercise any powers that the Committee is authorized to take or has power to exercise under this Plan. Such Committee shall be solely composed of not less than two directors of the Corporation, each of whom is a “non-employee director” for purposes of Section 16 of the Exchange Act and Rule 16b-3 thereunder and an “outside director” within the meaning of Section 162(m) of the Code.
Any individual who at the relevant time is an Eligible Director isAll Participants are eligible to participate in this Plan.the Plan, subject to subsections 6.1(b) and 6.2(e). Eligibility to participate does not confer upon any individual aParticipant any right to receive any grant of an award of Deferred Share UnitsAward pursuant to thisthe Plan.
| 3.4
| | Exemption from Plan Participation
|
Notwithstanding The extent to which any other provision of this Plan, if a Participant is resident inentitled to receive a jurisdiction in whichgrant of an award of Deferred Share Units under this Plan might be considered to be income which is subject to taxation at the time of such award, the Participant may elect not to participate in this Plan by providing a written noticeAward pursuant to the Chief Financial Officer of the Corporation.
Notwithstanding any other provision hereof, the Board may, in its sole discretion, waive any condition set out herein if it determines that specific individual circumstances warrant such waiver.
| ARTICLE 4
DEFERRED SHARE UNITS
|
| 4.1
| | Grant of Deferred Share Units
|
| (a)
| | The Board may, from time to time in its sole discretion, grant DSUs to Eligible Directors and upon such grant, such Eligible Directors shall become Participants in this Plan. In respect of each grant of DSUs, the Board shall determine:
|
| (i)
| | the number of DSUs allocated to the Participant; and
|
| (ii)
| | such other terms and conditions of the DSUs applicable to each grant.
|
| (a)
| | The Corporation shall not make any grant of DSU’s pursuant to this Plan unless and until such grant or issuance and delivery can be completed in compliance with all applicable laws, regulations, rules, orders of governmental or regulatory authorities and the requirements of the Exchanges. The Corporation shall be obligated to take all reasonable action to comply with any such laws, regulations, rules, orders or requirements.
|
| (b)
| | Certificates will not be issued to evidence DSUs. Book entry accounts, to be known as the “Deferred Share Unit Account” shall be maintained by the Corporation for each Participant and will be credited with DSUs granted to a Participant from time to time.
|
| (c)
| | The term during which a DSU may be outstanding shall, subject to the provisions of this Plan requiring or permitting the acceleration or the extension of the term, be such period as may be determined from time to time by the Board, but subject to the rules of the Exchanges or other regulatory body having jurisdiction.
|
Deferred Share Units will be fully vested upon being granteddetermined in the sole and credited to a Participant’s Account.
Subject to the absolute discretion of the Board, inCommittee, provided however that the event that a dividend (other than share dividend) is declared and paid by the Corporation on the Common Shares, a Participant may be creditedfollowing restrictions shall apply to this Plan, together with additional Deferred Share Units. The number of such additional Deferred Share Units, if any, will be calculated by dividing (a) the total amountall other Security Based Compensation Arrangements of the dividends that would have been paid to the Participant if the Deferred Share Units in the Participant’s account on the dividend record date had been outstanding Common Shares (and the Participant held no other Common Shares), by (b) the Dividend Market Value.Corporation:
| 2.4
(a) | | Limits on Issuances
|
Notwithstanding any other provision of this Plan:
| (a)
| | the maximum number of Common Shares issuable to any one individual pursuant to outstanding DSUs at any time shall be limited to 5% of the aggregate number of issued and outstanding Common Shares, provided that the maximum number of Common Shares issuable pursuant to outstanding DSUs and all other Security Based Compensation Arrangements, shall not exceed 10% of the Common Shares outstanding from time to time on a non-diluted basis;
|
| (b)
| | the number of Common Shares issuable to Insiders, at any time, under all Security Based Compensation Arrangements, shall not exceed 10% of the issued and outstanding Common Shares on a non-diluted basis; Shares; and |
| (c)
(b) | | the number of Common Shares issued to Insiders, within any one yearone-year period, under all Security Based Compensation Arrangements, shall not exceed 10% of the issued and outstanding Common Shares; andShares. |
If the Corporation repurchases Common Shares for cancellation such that the tests in Section 3.3(a) or (b) are not met following such repurchase, this shall not constitute non-compliance under the Plan for any Awards then outstanding. | 3.4 | (d)
| | the number ofTotal Common Shares issued to Eligible Directors shall Available
|
Subject to adjustment as provided in Article 8, at any time, the aggregate number of Common Shares that may be the subject of or issuable pursuant to Awards shall: | (a) | not exceed the lesser of: (i) 1%5% of the total number of issued and outstanding Common Shares;Shares at that time on a non-diluted basis, and (ii) an annual DSU value of $150,000 per Eligible Director. |
| (b) | together with all other Security Based Compensation Arrangements of the Corporation, not exceed 10% of the total number of issued and outstanding Common Shares at that time on a non-diluted basis. |
No grant may be made under the purposes of this Section 4.4, any increasePlan if such grant would result in the issued and outstanding Common Shares (whether as a result of the issuenumber of Common Shares that are the subject of or issuable pursuant to DSUsAwards exceeding the above-noted limits. Subject to applicable law, the requirements of any stock exchange upon which the Common Shares may then be listed and any shareholder or otherwise)other approval which may be required, the Board may in its discretion amend the Plan to increase such limit without notice to any Participants. For purposes of computing the total number of Common Shares available for grant under the Plan, Common Shares that were the subject of or issuable pursuant to any Award (or any portion thereof) that has vested or expired or has been forfeited, surrendered, cancelled or otherwise terminated shall again be available for grant under the Plan. All grants of Awards under this Plan will be evidenced by Award Agreements. Award Agreements will be subject to the applicable provisions of this Plan and will contain such provisions as are required by this Plan and any other provisions that the Committee may direct. Any one officer of the Corporation is authorized and empowered to execute and deliver, for and on behalf of the Corporation, an Award Agreement to each Participant granted an Award pursuant to this Plan. Each Participant will, when requested by the Corporation, sign and deliver all such documents relating to the granting or vesting of Awards which the Corporation deems necessary or desirable. | 3.7 | Non-transferability of Awards |
Subject to Section 6.1, Awards granted under this Plan may only be exercised during the lifetime of the Participant by such Participant personally. Subject to Section 6.1, no assignment or transfer of Awards, whether voluntary, involuntary, by operation of law or otherwise, vests any interest in or right to such Awards whatsoever in any assignee or transferee (except that a Participant may transfer Awards to Permitted Assigns) and immediately upon any assignment or transfer, or any attempt to make the same, such Awards will terminate and be of no further force or effect. If any Participant has transferred Awards to a Permitted Assign that is a corporation pursuant to this Section 3.7, such Awards will terminate and be of no further force or effect if at any time the transferor should cease to own all of the issued shares of such corporation. | 3.8 | Section 162(m) Award Limit |
Subject to restrictions in Section 3.3 and to adjustment as provided for in Article 8 of the Plan, no Participant may be granted Performance Awards for more than 3,000,000 Common Shares in the aggregate in any calendar year. Article 4GRANT OF RESTRICTED SHARE UNITS and restricted stock The Committee may, from time to time, subject to the provisions of this Plan and such other terms and conditions as the Committee may prescribe, grant RSUs to any Participant. The Committee shall have the authority to make the receipt of Common Shares under the RSUs conditional upon:
| (a) | the expiry of a time-based vesting period; |
| (b) | the attainment of specified Performance Goals; or |
| (c) | such other factors (which may vary as between awards of RSUs) as the Committee may determine in its discretion. |
In general, the Committee shall, in whole or in part, make the receipt of Common Shares under RSUs conditional upon the attainment of specified Performance Goals. The Committee shall have the authority to determine at the time of grant, in its discretion, the duration of the vesting period and other vesting terms applicable to the grant of RSUs, provided that in all circumstances such vesting period shall be a minimum of one year in duration. Upon the expiry of the applicable vesting period of RSUs or at such later date as may be otherwise specified in the relevant Award Agreement (the “Vesting Date”), the Common Shares issuable pursuant to the RSUs shall be registered in the name of the Participant or as the Participant may direct, subject to applicable securities laws, and upon such issuance of Common Shares the RSUs shall be cancelled. | (a) | The actual issuance of the Common Shares shall occur as soon as practicable following or contemporaneously with the applicable Vesting Date specified in the Award Agreement, but in no event later than: |
| (i) | 60 days following the Vesting Date for a Participant that is resident in the United States; or |
| (ii) | the earlier of (A) 60 days following the Vesting Date and (B) December 31 of the third calendar year following the year of service for which the RSU was granted for a Participant that is resident in Canada. |
| (b) | Notwithstanding anything in the Plan or an Award Agreement to the contrary, to the extent that any RSU Award Agreement provides for the issuance of Common Shares to a Participant that is resident in the United States as of any date or event that occurs (or could occur) beyond March 15 following the calendar year in which the corresponding RSUs vest (that is, cease to be subject to a substantial risk of forfeiture), such Award Agreement must provide that Common Shares will not be payable to the Participant unless the circumstance giving rise to payment qualifies as a permitted payment event under Section 409A of the Code (e.g., the occurrence of a fixed payment date specified in the Award Agreement, the Participant’s separation from service, the Participant’s disability, the Participant’s death, or a change in ownership or control with respect to the Corporation, as the case may be, as those terms are defined in Section 409A(a)(2)(A) of the Code and applicable final regulations). Any payment that otherwise would be made to a Participant who is a specified employee as defined in Section 409A(a)(2)(B) of the Code on account of separation from service may not be made before the date which is six months after the date of the specified employee’s separation from service (or if earlier, upon the specified employee’s death) unless the payment or distribution is exempt from the application of Section 409A by reason of paragraph (b) above or otherwise. |
The Committee may, from time to time, grant Restricted Stock to any Participant with the terms and conditions set forth herein and with such additional terms and conditions not inconsistent with the provisions of the Plan as the
Committee shall determine. The Committee shall have the authority to make the lapse of restrictions applicable to Restricted Stock conditional upon: | (a) | the expiry of a time-based vesting period; |
| (b) | the attainment of specified Performance Goals; or |
| (c) | such other factors (which may vary as between awards of Restricted Stock) as the Committee may determine in its discretion. |
In general, the Committee shall, in whole or in part, make the lapse of restrictions applicable to Restricted Stock conditional upon the attainment of specified Performance Goals. | 4.6 | Vesting of Restricted Stock |
The Committee shall have the authority to determine at the time of grant, in its discretion, the duration of the vesting period and other vesting terms applicable to the grant of Restricted Stock, provided that in all circumstances such vesting period shall be a minimum of one year in duration. | 4.7 | Restrictions on Restricted Stock |
Common Shares of Restricted Stock shall be subject to such restrictions as the Committee may impose (including, without limitation, forfeiture conditions, transfer restrictions or a restriction on or prohibition against the right to receive any dividend or other right or property with respect thereto), which restrictions may lapse separately or in combination at such time or times, in such instalments or otherwise as the Committee may deem appropriate. | 4.8 | Share Certificates for Restricted Stock |
Any Restricted Stock granted under the Plan shall be evidenced by the issuance of a share certificate or certificates, which shall be held by the Corporation. Such certificate or certificates shall be registered in the name of the Participant and shall bear an appropriate legend referring to the applicable Award Agreement and possible forfeiture of such shares of Restricted Stock. If on its terms an Award would vest during a Black-Out Period, the vesting of such Award shall be deemed to be extended until the first Business Day following the end of the relevant Black-Out Period. Article 5
PERFORMANCE-BASED COMPENSATION For purposes of Awards granted pursuant to Article 3 or Article 4 which are intended to constitute “qualified performance-based compensation” within the meaning of Section 162(m) of the Code (“Performance Awards”), the following additional rules shall apply: | (a) | For each Performance Award, the Committee shall, not later than 90 days after the beginning of each performance period, (i) designate all Participants for such performance period and (ii) establish the objective performance factors for each Participant for that performance period on the basis of one or more of the Performance Goals, the outcome of which is substantially uncertain at the time the Committee actually establishes the Performance Goal. The Committee shall have sole discretion to determine the amount of any payment or transfer to be made pursuant to any Performance Award. In addition, the Committee shall have the sole discretion to determine the applicable performance period, provided that in the case of a performance period of less than 12 months, in no event shall a |
| | Performance Goal be considered to be pre-established if it is established after 25 percent of the performance period (as scheduled in good faith at the time the Performance Goal is established) has elapsed. To the extent required under Section 162(m) of the Code, the terms of the objective performance factors must preclude discretion to increase an amount paid in connection with an Award, but may permit discretion to reduce such amount. |
| (b) | Following the close of each performance period and prior to payment of any amount to a Participant with respect to a Performance Award, the Committee shall certify in writing as to the attainment of all factors (including the performance factors for a Participant) upon which any payments to a Participant for that performance period are to be based. |
Article 6termination of employment | 6.1 | Retirement, Death or Disability |
If a Participant dies or becomes Disabled while an employee or officer of or consultant to the Corporation or an Affiliate or if the employment or term of office or engagement of a Participant with the Corporation or an Affiliate terminates due to Retirement: | (a) | any Awards held by a Participant that are not yet vested at the Termination Date are immediately forfeited to the Corporation on the Termination Date; |
| (b) | such Participant’s eligibility to receive further grants of Awards under the Plan ceases as of the Termination Date; and |
| (c) | in the case of death or Disability, any Awards held by a Participant that have vested at the Termination Date will enure to the benefit of the Participant’s heirs, executors and administrators. |
| 6.2 | Termination of Employment or Services |
| (a) | Where a Participant’s employment or term of office or engagement with the Corporation or an Affiliate terminates by reason of the Participant’s death, Disability or Retirement, then the provisions of Section 6.1 will apply. |
| (b) | Wherea Participant’s employment or term of office or engagement terminates by reason of a Participant’s resignation, then any Awards held by the Participant that are not yet vested at the Termination Date are immediately forfeited to the Corporation on the Termination Date. |
| (c) | Wherea Participant’s employment or term of office or engagement terminates by reason of termination by the Corporation or an Affiliate without cause (as determined by the Committee in its discretion) (whether such termination occurs with or without any or adequate notice or reasonable notice, or with or without any or adequate compensation in lieu of such notice), then any Awards held by the Participant that are not yet vested at the Termination Date are immediately forfeited to the Corporation on the Termination Date. |
| (d) | Where a Participant’s employment or term of office or engagement is terminated by the Corporation or an Affiliate for cause (as determined by the Committee in its discretion), or, in the case of a Consultant Participant, for breach of contract (as determined by the Committee in its discretion), then any Awards held by the Participant at the Termination Date (whether or not vested) are immediately forfeited to the Corporation on the Termination Date. |
| (e) | The eligibility of a Participant to receive further grants under the Plan ceases as of the date that the Corporation or an Affiliate, as the case may be, provides the Participant with written notification |
| | that the Participant’s employment or term of office or engagement is terminated, notwithstanding that such date may be prior to the Termination Date. |
| (f) | Unless the Committee, in its discretion, otherwise determines, at any time and from time to time, Awards are not affected by a change of employment arrangement within or among the Corporation or an Affiliate for so long as the Participant continues to be an employee of the Corporation or an Affiliate. |
| (g) | Subject to applicable law and unless the Committee, in its discretion, otherwise determines, at any time and from time to time, Awards are not affected by a change of employment arrangement within or among the Corporation or an Affiliate where the Participant ceases to be an employee and continues as a Consultant Participant of the Corporation or an Affiliate so long as the Participant continues to be a Consultant Participant of the Corporation or an Affiliate. |
| 6.3 | Discretion to Accelerate Vesting |
Notwithstanding the provisions of Sections 6.1 and 6.2, the Committee may, in its discretion, at any time prior to or following the events contemplated in such Sections, permit the acceleration of vesting of any or all RSU Awards or Restricted Stock Awards, all in the manner and on the terms as may be authorized by the Committee, provided that this Section 6.3 shall not permit the Committee, to use its discretion notwithstanding the provisions of Section 6.1 and 6.2 to accelerate the vesting of any or all RSU Awards or Restricted Awards where there has been a Change of Control. For greater certainty, in the event of a Change of Control the provisions of Section 7.1 shall apply. Article 7
change IN control Unless otherwise determined by the Committee or the Board at or after the Date of Grant, notwithstanding Article 6, if a Participant ceases to be employed or engaged by the Corporation or its subsidiaries within 12 months following a Change in Control for any reason other than for cause (as that term is interpreted by the courts of the jurisdictions in which the Participant or the Participant’s employer is engaged), voluntary resignation (other than for Good Reason), Retirement, death, or Disability, each Award held by that Participant that is not fully vested on the date at which such person ceases to be employed or engaged by the Corporation or its subsidiaries shall (except to the extent cancelled under Article 8) become free of all restrictions, conditions and limitations and become fully vested. If a Participant is entitled to receive payments that would qualify as excess “parachute payments” under Section 280G of the Code, those payments shall be reduced by the necessary amount so that the Participant is not subject to excise tax under Section 4999 of the Code if such reduction would result in the Participant receiving a greater after-tax payment. Article 8Share Capital Adjustments The existence of any Awards does not affect in any way the right or power of the Corporation or its shareholders to make, authorize or determine any adjustment, recapitalization, reorganization or any other change in the Corporation’s capital structure or its business, or any amalgamation, combination, arrangement, merger or consolidation involving the Corporation, to create or issue any bonds, debentures, Common Shares or other securities of the Corporation or to determine the rights and conditions attaching thereto, to effect the dissolution or liquidation of the Corporation or any sale or transfer of all or any part of its assets or business, or to effect any other corporate act or proceeding, whether of a similar character or otherwise, whether or not any such action referred to in this Section would have an increaseadverse effect on this Plan or on any Award granted hereunder.
Should the Corporation effect a subdivision or consolidation of Common Shares or any similar capital reorganization or a payment of a stock dividend (other than a stock dividend that is in lieu of a cash dividend), or should any other change be made in the capitalization of the Corporation that does not constitute a Change in Control and that would warrant the amendment or replacement of any existing Awards in order to adjust: (a) the number of Common Shares that may be issued pursuantacquired on the vesting of outstanding Awards; and/or (b) the terms of any other Award in order to DSUs outstanding at any time. Further, ifpreserve proportionately the acquisitionrights and obligations of the Participants holding such Awards (any such event being herein called a “Share Reorganization”), the Board will authorize such steps to be taken as it may consider to be equitable and appropriate to that end. | 8.3 | Corporate Reorganization |
In the event of a reclassification, amalgamation, combination, arrangement, merger, transaction whereby all or substantially all of the Corporation’s undertakings and assets become the property of another Person or other transaction or reorganization involving the Corporation and occurring by exchange of Common Shares, by the Corporation for cancellation should result in the foregoing tests no longer being met, this shallsale or lease of assets or otherwise, that does not constitute non-compliance with this Section 4.4 for any awards outstanding prior to such purchase of Common Shares for cancellation.
DSUs a Change in Control and that are cancelled, terminatedwarrants the amendment or expire shall result in the Common Shares that were reserved for issuance thereunder being available for a subsequent grant of DSUs pursuant to this Plan to the extentreplacement of any Common Shares issuable thereunder that are not issued under such cancelled, terminated or expired DSUs.
Upon Payment Shares being issuedexisting Awards in settlement of DSUs,order to adjust: (a) the number of Common Shares reserved for issuancethat may be acquired on the vesting of outstanding Awards; or (b) the terms of any other Award in respectorder to preserve proportionately the rights and obligations of the Participants holding such DSUs automatically become availableAwards (any such event being herein called a “Corporate Reorganization”), the Board will authorize such steps to be made the subject of new DSUs, providedtaken as it may consider to be equitable and appropriate to that the total number of Common Shares reserved for issuance under this Plan and all other Security Based Compensation Arrangements does not exceed 10%end.
Subject to prior approval of the issued and outstanding Common Shares ofExchanges, whenever the Corporation. | 2.5
| | Reporting of Deferred Share Units
|
Statements of the Deferred Share Unit Accounts will be provided to Participants on an annual basis.
| 2.6
| | Distribution Date Election
|
A Participant shall have the right to receive Payment Shares in respect of Deferred Share Units recorded in the Participant’s Account in accordance with Section 4.7, on one of the following dates (the “Distribution Date”):
| (a)
| | the Separation Date, if (i) the Participant has resigned at the end of their term on the Board, or (ii) upon death of the Participant;
|
| (b)
| | 60 days after the Separation Date, if the Participant resigns or is removed from the Board prior to the end of their term on the Board, for any reason; or
|
| (c)
| | such later date as the Participant may elect by written notice delivered to the Chief Financial Officer of the Corporation prior to the Separation Date, provided that in no event shall a Participant be permitted to elect a date which is later than December 1st of the calendar year following the calendar year in which the Separation Date occurs.
|
| 2.7
| | Distribution of Deferred Share Units in Payment Shares
|
Deferred Share Units shall be settledCorporation issues by the issuance of Payment Shares as follows:
| (a)
| | The Corporation shall within 10 business days after the Distribution Date issue to the Participant a number of treasury Common Shares equal to the number of Deferred Share Units in the Participant’s Account that became payable on the Distribution Date.
|
| (b)
| | The Corporation shall not be required to issue or cause to be delivered treasury Common Shares or issue or cause to be delivered certificates evidencing Common Shares to be delivered in settlement of any DSUs, unless and until such issuance and delivery can be completed in compliance with the applicable laws, regulations, rules, orders of governmental or regulatory authorities and the requirements of all applicable stock exchanges upon which Common Shares are listed. The Corporation shall be obligated to take all reasonable action, on a timely basis, to comply with any such laws, regulations, rules, orders, or requirements.
|
| (c)
| | If Common Shares may not be issued pursuant to any DSUs due to any Black Out Period, such Common Share issuance shall occur seven business days following the end of the Black-Out Period.
|
| (d)
| | No fractional Common Shares shall be issued upon the settlement of DSUs. If a Participant would otherwise become entitled to a fractional Common Share upon the settlement of a DSU, such
|
Participant shall only have the right to receive 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.
|
| 2.8
| | Death of Participant Prior to Distribution
|
Upon the deathway of a Participant prior to the distribution of the Deferred Share Units credited to the Account of such Participant under this Plan, Payment Shares shall be issueddividend or paid to the estate of such Participant on or about the thirtieth (30th) day after the Corporation is notified of the death of the Participant or on a later date elected by the Participant’s estate in the form prescribed for such purposes by the Corporation and delivered to the Chief Financial Officer of the Corporation not later than twenty (20) days after the Corporation is notified of the death of the Participant, provided that such elected date is no later than the last business day of the calendar year following the calendar year in which the Participant dies so that payment can be made on or before such last business day. Upon settlement under this Section 4.8 of the Deferred Share Units credited to the Account of a Participant, subject to any Applicable Withholding Amounts, the Deferred Share Units shall be cancelled and no further distributions or payments will be made from this Plan in relation to the Participant.
| 2.9
| | Adjustments to Deferred Share Units
|
In the event: (a) of any change in the Common Shares through share dividend, subdivision, consolidation, reclassification, amalgamation, merger or otherwise; or (b) that any rights are grantedotherwise distributes to all or substantially all shareholdersholders of Common Shares:
| (a) | shares of the Corporation, other than Common Shares; |
| (b) | evidence of indebtedness; |
| (c) | any cash or other assets, excluding cash dividends (other than cash dividends which the Board has determined to be outside the normal course); or |
| (d) | rights, options, or warrants, |
then to purchase Common Shares at prices substantially below Fair Market Valuethe extent that such dividend or distribution does not constitute a Share Reorganization (any of such non-excluded events being herein called a “Special Distribution”), the Board will authorize such steps to be taken as of the date of grant (other than the payment of dividendsit may consider to be equitable and appropriate to that end in respectorder to properly reflect any diminution in value of the Common Shares as contemplateda result of such Special Distribution. | 8.5 | Immediate Vesting of Awards |
Where the Board determines that the steps provided in Sections 8.2, 8.3 and 8.4 would not preserve proportionately the rights, value and obligations of the Participants holding such Awards in the circumstances or otherwise determines that it is appropriate, the Board may permit the immediate vesting of any unvested Awards. | 8.6 | Issue by Corporation of Additional Shares |
Except as expressly provided in this Article 8, neither the issue by Section 4.3);the Corporation of shares of any class or (c)securities convertible into or exchangeable for shares of any class, nor the conversion or exchange of such shares or securities, affects, and no adjustment by reason thereof is to be made with respect to the number of Common Shares that may be acquired as a result of a grant of Awards.
No fractional Common Shares will be issued on the grant or vesting of an Award. Accordingly, if, as a result of any recapitalization, merger, consolidationadjustment under Sections 8.2, 8.3, 8.4 and 8.5, a Participant would become entitled to a fractional Common Share, the Participant has the right to acquire only the adjusted number of full Common Shares and no payment or other transaction,adjustment will be made with respect to the fractional Common Shares which shall be disregarded. Article 9
Miscellaneous Provisions The Corporation is not obligated to grant any Awards, issue any Common Shares or other securities, make any payments or take any other action if, in the opinion of the Board, in its discretion, such action would constitute a violation by a Participant or the Corporation of any provision of any applicable statutory or regulatory enactment of any government or government agency or the requirements of any stock exchange upon which the Common Shares are converted into or exchangeable for any other securities or property,may then the Board may make such adjustments tobe listed. | 9.2 | Participants’ Entitlement |
Except as otherwise provided in this Plan, the Account of each Participant, the DSU Agreements and the Deferred Share Units outstandingAwards previously granted under this Plan asare not affected by any change in the Board may,relationship between, or ownership of, the Corporation and an Affiliate. For greater certainty, all grants of Awards remain valid in accordance with the terms and conditions of this Plan and are not affected by reason only that, at any time, an Affiliate ceases to be an Affiliate. The granting or vesting of each Award granted under this Plan is subject to the condition that if at any time the Committee determines, in its sole discretion, consider appropriatethat the satisfaction of withholding tax or other withholding liabilities in respect of applicable federal, state, local or foreign employment, social insurance, payroll, income or other tax withholding obligations (the “Withholding Obligations”) is necessary or desirable in respect of such grant or vesting, such grant or vesting is not effective unless such withholding has been effected to the circumstances to prevent dilution or enlargementsatisfaction of the rights grantedCommittee. In such circumstances, the Committee may establish procedures to Participants hereunder and/or to provide forensure satisfaction of all applicable Withholding Obligations arising in connection with the Participants to receiveAward and accept such other securities or property in lieu of Common Shares, and the ParticipantsCommittee shall be bound by any such determination.require that a Participant agrees to: The rules set forth in Schedule Amake adequate provision for any Withholding Obligations that arise in connection with the Award no later than the date on which any amount with respect to the Award is required to this Plan apply to any Participant who is a U.S. Taxpayer (as defined therein) and form a part of this Plan.
| (a)
| | A Participant shall be solely responsible for reporting and paying incomeremitted to the relevant tax payable in respect of any Common Shares receivedauthority by the ParticipantCorporation or an Affiliate, as the case may be;
|
| (b) | authorize the Corporation, at its sole discretion and subject to any limitations under this Plan. The Corporation will provide each Participant who is resident in Canada with (or cause each Participant to be provided with) a T4 slip or such information return as may be required by applicable law, to report income,satisfy any such Withholding Obligations by (i) withholding a portion of the Common Shares otherwise to be issued in payment of the Award, provided, however, that the number of the Common Shares so withheld shall not exceed the number necessary to satisfy the required Withholding Obligations using applicable statutory withholding rates and, if any, arising upon the grant or exercise of rightsapplicable, to avoid adverse accounting treatment under this Plan by a Participant who is residentapplicable accounting standards and in Canada for income tax purposes. |
| (b)
| | Upon issuance of any Payment Shares to a Participant,accordance with such rules as the Corporation will requiremay from time to time establish, (ii) withholding from the wages and other cash payable to the Participant or by causing the Participant to first paytender a cash payment to the Corporation, or (iii) selling on the Participant’s behalf (using any brokerage firm determined acceptable to the Corporation may deduct,for such purpose) a portion of the amount equivalent toCommon Shares issued in payment of the minimum amount of taxes and other minimum amounts as the Corporation may be required by law to withhold,Award as the Corporation determines (the “Applicableto be appropriate to generate cash proceeds sufficient to satisfy the Withholding Amounts”), orObligations; and
|
| (c) | be responsible for all brokerage fees and other costs of sale and to indemnify and hold the Corporation may takeharmless from any losses, costs, damages or expenses relating to any such other steps as it considers to be necessary or appropriate, including the sale of Payment Shares on behalf of the Participant, in order to provide to the Corporation the Applicable Withholding Amounts. The Corporation shall advise the Participant in writing of any Applicable |
Withholding Amounts required in connection with the issue of Common Shares in settlement of Deferred Share Units.
|
The Corporation may refuse to deliver Common Shares if the Participant fails to comply with the Participant’s obligations in connection with the Withholding Obligations described in this Section. | 9.4 | 5.1
| | Amendment, Suspension, or TerminationRights of Plan
Participant |
No Participant has any claim or right to be granted an Award and the granting of any Award is not to be construed as giving a Participant a right to remain as an employee or consultant of the Corporation or an Affiliate. No Participant has any rights as a shareholder of the Corporation in respect of Common Shares issuable pursuant to any Award until the allotment and issuance to such Participant of such Common Shares. | (a) | Subject to the rules and policies of any stock exchange on which the ExchangesCommon Shares are listed and applicable law, the Board may, without notice or shareholder approval, at any time or from time to time, amend thisthe Plan or a specific grant of DSUs under this PlanAward for the purposes of: |
| (i) | | altering, extending or accelerating the terms of vesting applicable to any grant of DSUsAward or group of DSU grants under this Plan; Awards; |
| (ii) | | making any amendments to the general vesting provisions of DSUs granted under this Plan; an Award; |
| (iii) | | changing the termination provisions of DSUs granted under this Plan or this Plan itself; an Award, provided the change does not entail an extension beyond the original expiry date of such Award; |
| (iv) | accelerating the expiry date of an Award; |
| (v) | making any amendments to the provisions set out in Article 6; |
| (vi) | making any amendments to add covenants of the Corporation for the protection of Participants, as the case may be, provided that the Board shall be of the good faith opinion that such additions will not be prejudicial to the rights or interests of the Participants; |
| (v)
(vii) | | making any amendments not inconsistent with thisthe Plan as may be necessary or desirable with respect to matters or questions which, in the good faith opinion of the Board, having in mind the best interests of the Participants, it may be expedient to make, including amendments that are desirable as a result of changes in law in any jurisdiction where a Participant resides, provided that the Board shall be of the opinion that such amendments will not be prejudicial to the rights or interestsinterest of the Participants; Participants, or to comply with the provisions of applicable laws (including, without limitation, the rules, regulations and policies of the Exchanges) or necessary or desirable for any advantages or other purposes of any tax law (including, without limitation, the rules, regulations, and policies of the Canada Revenue Agency, the Internal Revenue Service or any taxation authority); |
| (vi)
(viii) | | making such changes or corrections which, on the advice of counsel to the Corporation, are required for the purpose of curing or correcting any ambiguity or defect or inconsistent provision or clerical omission or mistake or manifest error, provided that the Board shall be of the opinion that such changes or corrections will not be prejudicial to the rights or interests of the Participants; |
| (vii)
(ix) | | making any amendments to the definitions of thisthe Plan; |
| (viii)
(x) | | effecting amendments with respect to the administration of thisthe Plan; and |
| (ix)
(xi) | | making amendments of a “housekeeping” or ministerial nature. |
| (b) | | TheSubject to Section 7.1, the Board shall not alter or impair any rights or increase any obligations with respect to DSUsan Award previously granted under thisthe Plan without the consent of the Participant, as the case may be.
|
| (c) | | Notwithstanding any other provision of this Plan, none of the following amendments shall be made to this Plan without approval of the shareholders: |
| (i) | | amendments to thisthe Plan towhich would increase the maximum number of Common Shares issuable pursuant tounder the Plan, otherwise than in accordance with the terms of this Plan; |
| (ii) | | amendments to this Plan to permit the assignment or transfer of a DSU other than as provided for in this Plan; |
| (iii)
| | amendments to this Plan to add to the categories of persons eligible to participate in this Plan;
|
| (iv)
| | amendments to this Plan to remove or amend Section 4.4(b) or Section 4.4(c);
|
| (v)
| | amendments to this Plan which would increase the number of Common Shares issuable to Eligible Directors under this Plan,Insiders, otherwise than in accordance with the terms of this Plan;
|
| (vi)
(iii) | | amendments to this Plan to remove or amend this Section 5.1; 9.5 of the Plan; |
| (vii)
(iv) | | the addition of any form of financial assistance to a Participant; or and |
| (viii)
(v) | | amendments required to this Plan in any other circumstances where approvalbe approved by shareholders under applicable law (including without limitation, pursuant to the Exchangesrules, regulations and by the shareholderspolicies of the Corporation is required by the Exchanges. Exchanges). |
| (d) | | Notwithstanding any other provision of this Plan, none of the following amendments shall be made to this Plan without disinterested shareholder approval: Disinterested Shareholder Approval: |
| (i) | | amendments to thisthe Plan that could result at any time in the number of Common Shares reserved for issuance under thisthe Plan to Insiders exceeding 10% of the issued and outstanding Common Shares; |
| (ii) | | any extension of the term of any grant of DSUsAward that has been granted to Insiders, other than an extension of the term of a grant of DSUs whichan Award, if an Award vests during a Black Out Period;Black-Out-Period; and |
| (iii) | | amendments requiring disinterestedDisinterested Shareholder approvalApproval under applicable law (including without limitation, pursuant to the rules, regulations and policies of the Exchanges). |
Any amendment that would cause a grant of DSUsan Award held by a U.S. Taxpayer to fail to comply with Section 409A of the Code shall be null and void ab initio. | 9.6 | (e)
| | Without limitationSection 409A of Section 5.1, the Board may correct any defect or supply any omission or reconcile any inconsistency in this Plan in the manner and to the extent deemed necessary or desirable, may establish, amend, and rescind any rules and regulations relating to this Plan, and may make such determinations as it deems necessary or desirable for the administration of this Plan.
Code |
This Plan will be construed and interpreted to comply with Section 409A of the Code to the extent required to preserve the intended tax consequences of this Plan. The Corporation reserves the right to amend this Plan to the extent it reasonably determines is necessary in order to preserve the intended tax consequences of this Plan in light of Section 409A of the Code and any regulations or guidance under that section. In no event will the Corporation be responsible if Awards under this Plan result in adverse tax consequences to a U.S. Taxpayer under Section 409A of the Code. Notwithstanding any provisions of the Plan to the contrary, in the case of any “specified employee” within the meaning of Section 409A of the Code who is a U.S. Taxpayer, distributions of defined compensation under Section 409A of the Code made in connection with a “separation from service” within the meaning set forth in Section 409A of the Code may not be made prior to the date which is 6 months after the date of separation from service (or, if earlier, the date of death of the U.S. Taxpayer). Any amounts subject to a delay in payment pursuant to the preceding sentence shall be paid as soon as practicable following such 6-month anniversary of such separation from service. | 9.7 | (f)Requirement of Notification of Election Under Section 83(b) of the Code
|
If a Participant, in connection with the issuance of Common Shares pursuant to a Restricted Stock Award, is permitted under the terms of the Award Agreement to make the election permitted under Section 83(b) of the Code (i.e., an
election to include in gross income in the year of transfer the amounts specified in Section 83(b) of the Code notwithstanding the continuing transfer restrictions) and the Participant makes such an election, the Participant shall notify the Corporation of such election within ten (10) days of filing notice of the election with the Internal Revenue Service, in addition to any filing and notification required pursuant to regulations issued under Section 83(b) of the Code. A Section 83(b) election shall not be permitted with respect to an RSU Award. | 9.8 | Additional Conditions in Connection with Awards Granted to Participants Residing in Canada |
Notwithstanding any other provision of the Plan, the following additional terms, conditions and restrictions apply to Awards granted to Participants residing in Canada: | If the Board terminates or suspends this Plan, previously credited DSUs will remain outstanding and in effect in accordance with the terms of this Plan. If DSUs remain outstanding after Plan termination or suspension, such DSUs shall not be entitled to any additional Deferred(a)
| Restricted Share Units. Restricted Share Units pursuantshall be settled in Common Shares, unless the Corporation offers the Participant the right to Section 4.3 unlessreceive cash in lieu of Common Shares based on the Fair Market Value that such Common Shares would have at the time of termination or suspension the Committee determines that the entitlement to such Deferred Share Units after termination or during suspension, as applicable, should be continued. Subject to the foregoing sentence, if the Board terminates or suspends this Plan, no new Deferred Share Units will be credited to the Account of a Participant. |
| (g)
| | The Board shall not require the consent of any affected Participant in connection with a termination of this Plan in which Payment Shares are issued tosettlement, and the Participant, in respect of allits discretion, so elects, and any such Deferred Share Units.
cash payments shall be paid in accordance with Section 4.4(a) modified as the context requires. |
| 5.2
(b) | | Compliance with Laws
Other Awards. With respect to any other Award granted to a Participant employed in Canada, the Committee shall have the right, but not the obligation, to take account of Canadian income tax considerations in determining the terms and conditions of the Award or any other amendment thereto. |
The administrationEvery member of the Board will at all times be indemnified and saved harmless by the Corporation from and against all costs, charges and expenses whatsoever including any income tax liability arising from any such indemnification, that such member may sustain or incur by reason of any action, suit or proceeding, taken or threatened against the member, otherwise than by the Corporation, for or in respect of any act done or omitted by the member in respect of this Plan, shall be subjectsuch costs, charges and expenses to and madeinclude any amount paid to settle such action, suit or proceeding or in conformity with all applicable laws and any applicable regulations of a duly constituted regulatory authority. Should the Board, in its sole discretion, determine that it is not feasible or desirable to carry out a distribution of Deferred Share Units due to such laws or regulations, its obligation shall be satisfied by means of an equivalent cash payment (equivalence being determined on a before-tax basis). If the Board determines that the listing, registration or qualification of the Common Shares subject to this Plan upon any securities exchange or under any provincial, state, federal or other applicable law, or the consent or approvalsatisfaction of any governmental body or stock exchange is necessary or desirable, as a condition of, or in connection with, the crediting of DSUs or the issue of Payment Shares hereunder, the Corporation shall be under no obligation to credit DSUs or issue Payment Shares hereunder unless and until such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board.judgment rendered therein.
| 9.10 | 5.3
| | Reorganization ofParticipation in the Corporation
Plan |
The existence of any Deferred Share Units shall not affect in any way the right or power of the Corporation or its shareholders to make or authorize any adjustment, recapitalization, reorganization or other change in the Corporation’s capital structure or its business, or to create or issue any bonds, debentures, shares or other securities of the Corporation or to amend or modify the rights and conditions attaching thereto or to effect the dissolution or liquidation of the Corporation, or any amalgamation, combination, merger or consolidation involving the Corporation or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar nature or otherwise.
Rights and obligations under this Plan may be assigned by the Corporation to a successor in the business of the Corporation, any company resulting from any amalgamation, reorganization, combination, merger or arrangement of the Corporation, or any company acquiring all or substantially all of the assets or business of the Corporation.
Except as required by law, the rights of a Participant hereunder are not capable of being assigned, transferred, alienated, sold, encumbered, pledged, mortgaged or charged and are not capable of being subject to attachment or legal process for the payment of any debts or obligations of the Participant.
| 5.6
| | Participation is Voluntary; No Additional Rights
|
The participation of any Participant in thisthe Plan is entirely voluntary and not obligatory and shall not be interpreted as conferring upon such Participant any rights or privileges other than those rights and privileges expressly provided in thisthe Plan. In particular, participation in thisthe Plan does not constitute a condition of employment or serviceengagement nor a commitment on the part of the Corporation to ensure the continued employment or serviceengagement of such Participant. NothingThe Plan does not provide any guarantee against any loss which may result from fluctuations in this Plan shall be construed to provide the Participant with any rights whatsoever to participate or continue participation in this Plan or to compensation or damages in lieumarket value of participation, whether upon termination of service as an Eligible Director or otherwise.the Common Shares. The Corporation does not assume responsibility for the personal income or other tax consequences for the Participants and theyParticipants are advised to consult with their own tax advisors. | 9.11 | 5.7
| | No Common Shareholder Rights
Effective Date |
Under no circumstances shall Deferred Share Units be considered Common Shares or other securities of the Corporation, nor shall they entitle any Participant to exercise voting rights or any other rights attaching to the ownership of Common Shares or other securities of the Corporation, nor shall any Participant be considered the owner of Common Shares by virtue of the award of Deferred Share Units.
| 5.8
| | Unfunded and Unsecured Plan
|
Unless otherwise determined by the Board, thisThis Plan shall be unfunded and the Corporation will not secure its obligations under this Plan. To the extent any Participant or his or her estate holds any rights by virtue of a grant of Deferred Share Units under this Plan, such rights (unless otherwise determined by the Board) shall be no greater than the rights of an unsecured creditor of the Corporation.
No amount will be paid to, or in respect of, a Participant under this Plan to compensate for a downward fluctuation in the price of Common Shares, nor will any other form of benefit be conferred upon, or in respect of, a Participant for such purpose. The Corporation makes no representations or warranties to Participants with respect to this Plan or the Common Shares whatsoever. In seeking the benefits of participation a Participant agrees to accept all risks associated with a decline in the market price of Common Shares.
| 5.10
| | Participant Information
|
Each Participant shall provide the Corporation with all information (including personal information) required by the Corporation in order to administer this Plan. Each Participant acknowledges that information required by the Corporation in order to administer this Plan may be disclosed to the Board and other third parties in connection with the administration of this Plan. Each Participant consents to such disclosure and authorizes the Corporation to make such disclosureoriginally became effective on the Participant’s behalf.
To acquire DSUs, a Participant shall enter into an agreement with the Corporation in substantially the form attached hereto as Schedule BMarch 8, 2010, subject to any amendments or additions thereto as may, in the discretion of the Board, be necessary or advisable (the “DSU Agreement”), within such time periodshareholder approval. Shareholder approval was obtained on May 3, 2010. This Plan has been amended and in such manner as specified by the Board. If a DSU Agreementrestated effective May 6, 2015 and May 2, 2019.
This Plan is not entered into within the timecreated under and manner specified, the Corporation reserves the right to revoke the crediting of DSUs to the Participant’s Account. All amounts paid or valuesis to be determined under this Plan shall be in U.S. dollars.
| 5.13
| | Effective Date of the Plan
|
This Plan becomes effective on a date to be determined by the Board.
This Plan shall be governed, by,construed and interpretedadministered in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein, without regard to principles of conflict of laws.therein.
APPROVED by the Board this 99.13th day of March, 2018.Clawback Policy
SCHEDULE A
PLAN PROVISIONS APPLICABLE TO U.S. TAXPAYERS
The provisionsNotwithstanding any other provision of this Schedule “A” apply to Deferred Share Units held by a U.S. Taxpayer to the extent such Deferred Share Units are subject to U.S. Taxation. The following provisions apply, notwithstanding anythingAgreement to the contrary, any cash incentive compensation received by a Participant, Awards granted and/or Common Shares issued hereunder, and/or any amount received with respect to
any sale of any such Common Shares, shall be subject to potential cancellation, recoupment, rescission, payback or other action in this Plan. All capitalizedaccordance with the terms used in this Schedule “A” and not defined herein, shall haveof any clawback policy that the meaning attributedCorporation may adopt or amended, from time to them in this Plan. “Section 409A” means Section 409Atime, pursuant to the listing standards of the United States Internal Revenue Code and the regulations and authority promulgated thereunder.
“Separation Date” shall mean the dateany national securities exchange or association on which the Participant incurs a “separation from service” withinCorporation’s securities are listed, as is otherwise required by the meaning of Section 409A.
“U.S. Taxpayer” shall mean any person who is a U.S. citizen, U.S. permanent resident,Dodd-Frank Wall Street Reform and Consumer Protection Act or other person who has been grantedapplicable laws or as the Board may determine is eligiblein the best interests of the Corporation and its stockholders. By accepting any monetary amounts or Awards hereunder a Participant agrees and consents to be granted a Deferred Share Unit underthe Corporation’s application, implementation and enforcement of (a) any such clawback policy or any similar policy established by the Corporation that may apply to the Participant and (b) any provision of applicable law relating to cancellation, rescission, payback or recoupment of compensation, and expressly agrees that the Corporation may take such actions as are necessary to effectuate such clawback policy, any similar policy (as applicable to the Participant) or applicable law without further consent or action being required by the Participant. To the extent that the terms of this Plan and any clawback policy or any similar policy conflict, then the terms of such clawback policy or other policy shall prevail. Unless this Section 9.13 is specifically mentioned and waived in an Award Agreement or other document, no recovery of compensation under a clawback policy or otherwise will be an event that is otherwisetriggers or contributes to any right of a Participant to resign for “good reason” or “constructive termination” (or similar term) under any agreement with the Company or a Subsidiary or Parent of the Company.
schedule A
Form of RSU Award Agreement Vista Gold Corp. (the “Corporation”) hereby grants the following Award(s) to the Participant named below (herein the “Recipient”), in accordance with and subject to U.S. taxation.the terms, conditions and restrictions of this Agreement, together with the provisions of the Long Term Equity Incentive Plan (the “Plan”) of the Corporation dated May 3, 2010, as amended May 6, 2015: Name of Recipient: Date of Grant: Total Number of RSUs: Additional terms applicable to such Award: | 2. | 1.
| | Notwithstanding Section 4.6The terms and conditions of the Plan are hereby incorporated by reference as terms and conditions of this Plan, the following procedure shall beAward Agreement and all capitalized terms used to determineherein, unless expressly defined in a Distribution Date for Deferred Share Units that are subject to this Schedule A.
|
| (a)
| | An Eligible Director who is a U.S. Taxpayer shalldifferent manner, have the rightmeanings ascribed thereto in the Plan.
|
| 3. | Subject to elect, at hisany acceleration in vesting as provided in the Plan or her option, to receiveas otherwise determined in this Award Agreement, the distributionRSUs granted by this Award Agreement shall vest as follows: |
| (a) | ____________ RSUs on ______________; |
| (b) | ____________ RSUs on ______________; |
| (c) | ____________ RSUs on ______________; and |
| (d) | ____________ RSUs on ______________, |
provided however that all RSUs for a Participant resident in Canada must vest and be payable by December 31 of the third calendar year following the year of service for which the RSU was granted. If the Recipient’s employment or term of office or engagement with the Corporation or an Affiliate terminates prior to the vesting date, then the RSUs that are not yet vested at the Termination Date are immediately forfeited to the Corporation on the Termination Date. | 4. | As soon as administratively practicable following the Recipient’s vesting date under Section 2 hereof, but in no event later than: |
| (a) | 60 days following the vesting date for a Participant that is resident in the United States or; |
| (b) | the earlier of all amounts credited to his or her Deferred Share Unit Account on any(A) 60 days following the vesting date (the “Distribution Date”) within the period commencing on his or her Separation Date, and ending on(B) December 1,31 of the firstthird calendar year following the year inof service for which the Separation Date occurs. Such electionRSU was granted for a Participant that is resident in Canada, |
the Corporation shall issue Common Shares registered in the name of the Recipient. The number of Common Shares issued shall equal the number of RSUs vested, reduced as necessary to cover applicable withholding obligations. Notwithstanding the foregoing, no fractional Common Shares will be issued pursuant to an Award granted hereunder. If, as a result of any adjustment to the number of Common Shares issuable pursuant to an Award granted hereunder pursuant to the Plan, the Recipient would be entitled to receive a fractional Common Share, the Recipient has the right to acquire only the adjusted number of full Common Shares and no payment or other adjustment will be made with respect to the fractional Common Shares so disregarded.
| 5. | RSUs are not actual Common Shares, but rather, represent a right to receive Common Shares according to the terms and conditions set forth herein and the terms of the Plan. Accordingly, the issuance of an RSU shall applynot entitle the Recipient to all future grantsany of Deferredthe rights or benefits generally accorded to stockholders unless and until a Common Share Units made to such U.S. Taxpayeris actually issued under Section 3 hereof. |
| 6. | Nothing in the Plan or in this Award Agreement will affect the Corporation’s right, or that of an Affiliate, to terminate the employment or term of office or engagement of a Recipient at any time for any reason whatsoever. |
| 7. | Each notice relating to the Award must be in writing. All notices to the Corporation must be delivered personally or by prepaid registered mail and shallmust be made by written notice deliveredaddressed to the Chief Financial Officer of the Corporation which shall become irrevocable not later thanwith a copy to the endCorporate Secretary of the calendar year priorCorporation. All notices to the year for whichRecipient will be addressed to the Deferred Share Unitsprincipal address of the Recipient on file with the Corporation. Either the Corporation or the Recipient may designate a different address by written notice to the other. Such notices are granted, ordeemed to be received, if later, within thirty (30) daysdelivered personally, on the date of delivery, and if sent by prepaid, registered mail, on the fifth Business Day following the date of mailing. Any notice given by either the Recipient or the Corporation is not binding on the recipient thereof until received. |
| 8. | Subject to Section 6.1 of the Plan, no assignment or transfer of an Award, whether voluntary, involuntary, by operation of law or otherwise, vests any interest in or right to such Award whatsoever in any assignee or transferee (except that the Recipient may transfer an Award to Permitted Assigns), and immediately upon any assignment or transfer or any attempt to make such assignment or transfer, the Award granted hereunder terminates and is of no further force or effect. Complete details of this restriction are set out in the Plan. |
| 9. | The Recipient hereby agrees to make adequate provision for any sums required to satisfy the applicable federal, state, local or foreign employment, social insurance, payroll, income or other tax withholding obligations (the “Withholding Obligations”) that arise in connection with this Award. The Corporation may establish procedures to ensure satisfaction of all applicable Withholding Obligations arising in connection with this Award. The Recipient hereby authorizes the Corporation, at its sole discretion and subject to any limitations under applicable law, to satisfy any such Withholding Obligations by (1) withholding a U.S. Taxpayer first becomes an Eligible Director. In no caseportion of the Common Shares otherwise to be issued in payment of the RSUs; provided, however, that the number of the Shares so withheld shall not exceed the number necessary to satisfy the required Withholding Obligations using applicable statutory withholding rates and, if applicable, to avoid adverse accounting treatment under applicable accounting standards and in accordance with such electionrules as the Corporation may from time to time establish; (2) withholding from the wages and other cash payable to the Recipient or by causing the Recipient to tender a cash payment to the Corporation; or (3) selling on the Recipient’s behalf (using any brokerage firm determined acceptable to the Corporation for such purpose) a portion of the Common Shares issued in payment of the RSUs as the Corporation determines to be permitted afterappropriate to generate cash proceeds sufficient to satisfy the dateWithholding Obligations. The Recipient shall be responsible for all brokerage fees and other costs of asale, and the Recipient further agrees to indemnify and hold the Corporation harmless from any losses, costs, damages or expenses relating to any such sale. The Corporation may refuse to deliver Common Shares if the Recipient fails to comply with the Participant’s obligations in connection with the Withholding Obligations described in this paragraph. |
| 10. | The Recipient hereby agrees that: |
| (a) | any rule, regulation or determination, including the interpretation by the Board of the Plan, with respect tothe Award granted hereunder and, if applicable, its exercise, is final and conclusive for all purposes and binding on all persons including the Corporation and the Recipient; and |
| (b) | the grant of Deferred Share Units. If no election is timely made, the Distribution Date shall beAward does not affect in any way the Separation Date, subjectright of the Corporation or any Affiliate to clause (b) below.terminate the employment of the Recipient. |
| 11. | (b)
| | Notwithstanding the foregoing, if any U.S. TaxpayerThis Award Agreement has been made in and is determined to be a “specified employee” (as determinedconstrued under Section 409A,and in accordance with the Corporation’s policies) atlaws of the Separation Date, thenProvince of British Columbia and the Distribution Date shall not be earlier than the date that is six (6) months following his or her Separation Date.
laws of Canada applicable therein. |
| 2.
| | Notwithstanding Section 4.8 of this Plan or any election by the Participant of a Distribution Date, upon the death of a Participant prior to the distribution of his or her Deferred Share Unit Account, an issuance of Payment Shares shall be issued or paid to the estate of such Participant on the first business day that occurs following 90 days after the Participant’s date of death. No election of an alternative payment date by the estate or beneficiary shall be permitted.
|
| 3.
| VISTA GOLD CORP. | | Notwithstanding anything to the contrary in this Plan, no consent to an amendment, suspension or termination that adversely affects the Deferred Share Units previously granted to a U.S. Taxpayer under Section 409A shall be required if such amendments are considered by the Committee, on the advice of counsel, to be necessary or desirable in order to avoid adverse U.S. tax consequences to the U.S. Taxpayer.
| By: | | | | | Authorized Signatory | | | | |
I have read the foregoing Award Agreement and hereby accept the Award in accordance with and subject to the terms and conditions of such Award Agreement and the Plan. I understand that I may review the complete text of the Plan by contacting the Corporate Secretary of the Corporation. I agree to be bound by the terms and conditions of the Plan governing the Award. | | | Date Accepted | | Recipient’s Signature | | | | | | Recipient’s Name
(Please Print) |
No provision of this Plan or amendment to this Plan may permit the acceleration of payments under this Plan to U.S. Taxpayers contrary to the provisions of Section 409A.
In the event of a termination of this Plan, no payments to U.S. Taxpayers shall be made, except on the schedule permitted by Section 409A.
All provisions of this Plan shall continue to apply to the U.S. Taxpayer to the extent they have not been specifically modified by this Schedule “A”. In regard to a U.S. Taxpayer, the Committee shall interpret all Plan provisions in a manner that does not cause a violation of Section 409A.
| 4.
| | Restrictions on Deferred Share Units of Certain Dual Taxpayers. This Section 4 shall only apply in respect of Deferred Share Units of a U.S. Taxpayer if, at the time a payment in respect of the DSUs is required to be made under this Plan, the U.S. Taxpayer would be liable to tax in respect of such payment, if made as otherwise provided, under the Income Tax Act (Canada) and the Income Tax Regulations made thereunder (in this Section 4 referred to as the “Canadian Tax Rules”).
|
| 5.
| | If a payment in respect of DSUs of a U.S. Taxpayer is otherwise required to be made at any time, but for this Section 5 and such payment would, if made, comply with Section 409A but would violate the Canadian Tax Rules, then, notwithstanding any other provision of this Plan and this Schedule A, unless the Committee determines that payment in respect of the DSUs can be made in some other manner and at such other time in compliance with Section 409A without violating the Canadian Tax Rules, such payment shall be made to a trustee to be held in trust for the benefit of the U.S. Taxpayer in a manner that causes the payment to be included in the U.S. Taxpayer’s income under the Code and does not violate the Canadian Tax Rules, and amounts shall thereafter be paid out of the trust for the benefit of the U.S. Taxpayer at such time and in such manner as complies with the requirements of the Canadian Tax Rules.
|
D-13schedule B
Form of Restricted Stock Award Agreement
SCHEDULE B
DEFERRED SHARE UNIT AGREEMENT
This Deferred Share Unit Agreement is entered into between Vista Gold Corp. (the “Corporation”) andhereby grants the Eligible Directorfollowing Award(s) to the Participant named below pursuant(herein the “Recipient”), in accordance with and subject to the Corporation’s Deferred Share Unitterms, conditions and restrictions of this Agreement, together with the provisions of the Long Term Equity Incentive Plan (the “Plan”) and it is agreed by and betweenof the parties heretoCorporation dated May 3, 2010, as follows:amended May 6, 2015:
Name of Recipient: Date of Grant: Total Number of Common Shares of Restricted Stock (“Restricted Shares”): Additional terms applicable to such Award: | 1. | 1.
| | All capitalized terms used herein shall have the meanings attributed to such terms in the Plan.
|
| 2.
| | The Corporation hereby grants to the Eligible Director, ______________ Deferred Share Units on the terms and subject to the conditions set out herein and in the Plan; |
| 3.
| | By execution of this Deferred Share Unit Agreement and acceptance of the Deferred Share Units hereby granted, the Eligible Director hereby certifies to the Corporation that the Eligible Director:
|
| (a)
| | has received, reviewed and understands the Plan;
|
| (b)
| | was not induced to participate in the Plan by expectations of continued appointment or employment with the Corporation or its subsidiaries; and
|
| (c)
| | agrees to be bound by the terms and conditions of the Plan are hereby incorporated by reference as terms and conditions of this Award Agreement and all capitalized terms used herein, unless expressly defined in a different manner, have the meanings ascribed thereto in the Plan.
|
| 2. | Subject to any acceleration in vesting as provided in the Plan or as otherwise determined in this Award Agreement, the Restricted Shares granted by this Award Agreement shall vest as follows: |
| (a) | ____________ Restricted Shares on ______________; |
| (b) | ____________ Restricted Shares on ______________; |
| (c) | ____________ Restricted Shares on ______________; and |
| (d) | ____________ Restricted Shares on ______________. |
If the Recipient’s employment or term of office or engagement with the Corporation or an Affiliate terminates prior to the vesting date, then the Restricted Shares that are not yet vested at the Termination Date are immediately forfeited to the Corporation on the Termination Date. | 3. | The Recipient (or any successor in interest) shall have all stockholder rights (including voting, dividend and liquidation rights) with respect to the Restricted Shares, subject to the transfer restrictions imposed by this Agreement provided, however, that the Recipient shall have no right to cash dividends paid with respect to unvested Restricted Shares. |
| 4. | Nothing in the Plan or in this Award Agreement will affect the Corporation’s right, or that of an Affiliate, to terminate the employment or term of office or engagement of a Recipient at any time for any reason whatsoever. |
| 5. | Each notice relating to the Award must be in writing. All notices to the Corporation must be delivered personally or by prepaid registered mail and must be addressed to the Chief Financial Officer of the Corporation with a copy to the Corporate Secretary of the Corporation. All notices to the Recipient will be addressed to the principal address of the Recipient on file with the Corporation. Either the Corporation or the Recipient may designate a different address by written notice to the other. Such notices are deemed to be received, if delivered personally, on the date of delivery, and if sent by prepaid, registered mail, on the fifth Business Day following the date of mailing. Any notice given by either the Recipient or the Corporation is not binding on the recipient thereof until received. |
| 6. | Subject to Section 6.1 of the Plan, no assignment or transfer of an Award, whether voluntary, involuntary, by operation of law or otherwise, vests any interest in or right to such Award whatsoever in any assignee or transferee (except that the Recipient may transfer an Award to Permitted Assigns), and immediately upon any assignment or transfer or any attempt to make such assignment or transfer, the Award granted hereunder terminates and is of no further force or effect. Complete details of this restriction are set out in the Plan. The Recipient agrees that all certificates representing unvested Restricted Shares may, at the discretion of the Committee, be maintained by the Secretary of the Corporation, as custodian for such Restricted Shares (or such other person or entity acting on behalf of the Corporation at the Corporation’s offices as the sameCommittee may designate) until such time such Restricted Shares are vested. Recipient agrees that each certificate representing unvested Restricted Shares will bear any legend required by law and a legend reading substantially as follows: |
The securities represented by this certificate are subject to the provisions of a Restricted Stock Award Agreement dated as of _________ __, ____. None of the securities represented by this certificate may be pledged, alienated, attached or otherwise encumbered, and any purported pledge, alienation, attachment or encumbrance shall be void and unenforceable against the Corporation, and no attempt to transfer the securities, whether voluntary or involuntary, by operation of law or otherwise, shall vest the purported transferee with any interest or right in or with respect to the securities. | 7. | The Recipient hereby agrees to make adequate provision for any sums required to satisfy the applicable federal, state, local or foreign employment, social insurance, payroll, income or other tax withholding obligations (the “Withholding Obligations”) that arise in connection with this Award. The Corporation may establish procedures to ensure satisfaction of all applicable Withholding Obligations arising in connection with this Award. The Recipient hereby authorizes the Corporation, at its sole discretion and subject to any limitations under applicable law, to satisfy any such Withholding Obligations by (1) withholding a portion of the Restricted Shares; provided, however, that the number of the Restricted Shares so withheld shall not exceed the number necessary to satisfy the required Withholding Obligations using applicable statutory withholding rates and, if applicable, to avoid adverse accounting treatment under applicable accounting standards and in accordance with such rules as the Corporation may from time to time establish; (2) withholding from the wages and other cash compensation payable to the Recipient or by causing the Recipient to tender a cash payment to the Corporation; or (3) selling on the Recipient’s behalf (using any brokerage firm determined acceptable to the Corporation for such purpose) a portion of the Restricted Shares as the Corporation determines to be amended, modified, terminatedappropriate to generate cash proceeds sufficient to satisfy the Withholding Obligations. The Recipient shall be responsible for all brokerage fees and other costs of sale, and the Recipient further agrees to indemnify and hold the Corporation harmless from any losses, costs, damages or otherwise changed,expenses relating to any such sale. The Corporation may refuse to release custody of Restricted Shares if the Recipient fails to comply with the Participant’s obligations in wholeconnection with the Withholding Obligations described in this paragraph. |
| 8. | The Recipient hereby agrees that: |
| (a) | any rule, regulation or determination, including the interpretation by the Board of the Plan, with respect tothe Award granted hereunder and, if applicable, its exercise, is final and conclusive for all purposes and binding on all persons including the Corporation and the Recipient; and |
| (b) | the grant of the Award does not affect in partany way the right of the Corporation or any Affiliate to terminate the employment of the Recipient. |
| 9. | In connection with the issuance of Restricted Shares pursuant to this Award Agreement, the termsRecipient is permitted to make the election permitted under Section 83(b) of the Code (i.e., an election to include in gross income in the year of transfer the amounts specified in Section 83(b) of the Code notwithstanding the continuing transfer restrictions). Such election must be filed with the Internal Revenue Service within thirty (30) days after the date of this Award Agreement. The Recipient should consult with his or her tax advisor to determine the advantages and disadvantages of making the election. If the Recipient makes such an election, the Recipient shall notify the Corporation of such election within ten (10) days of filing notice of |
| the election with the Internal Revenue Service, in addition to any filing and notification required pursuant to regulations issued under Section 83(b) of the Code. |
| 10. | This Award Agreement has been made in and is to be construed under and in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein. |
| | VISTA GOLD CORP. | | | By: | | | | | Authorized Signatory | | | | |
I have read the foregoing Award Agreement and hereby accept the Award in accordance with and subject to the terms and conditions of such Award Agreement and the Plan. I understand that I may review the complete text of the Plan by contacting the Corporate Secretary of the Corporation. I agree to be bound by the terms and conditions of the Plan governing the Award. | | | Date Accepted | | Recipient’s Signature | | | | | | Recipient’s Name
(Please Print) |
In the event of any disagreement or inconsistency between the terms of this Deferred Share Unit Agreement and the terms of the Plan, the terms of the Plan shall govern.
IN WITNESS WHEREOF this Deferred Share Unit Agreement has been executed by the parties hereto as of the _____ day of ________________, 20___.
VISTA GOLD CORP.
By:
Signature of Eligible Director
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