| (a) | the number of Common Shares issuable to Insiders, at any time, 10% of the total number of issued and outstanding Shares of the Corporation as of the date of the grant on a non-diluted basis. The number of Shares: | (a)
| issuable to any one individual under the Plan, together with the Shares issuable under all Security Based Compensation Arrangements, shall not exceed 10% of the Corporation,issued and outstanding Common Shares; and
|
| (b) | the number of Common Shares issued to Insiders, within any one-year period, under all Security Based Compensation Arrangements, shall not exceed 10% of issued and outstanding Common Shares. |
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 | Total Common Shares 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 5% of the total number of issued and outstanding Common Shares at that time on a non-diluted basis;basis, and |
| (b) | issuable to Insiders (as defined below) of the Corporation, together with the Shares issuable to Insiders under all other Security Based Compensation Arrangements of the Corporation, shall not exceed 10% of the total number of issued and outstanding Common Shares at that time on a non-diluted basis;
|
| (c)
| issued to Insiders within any one year period, together with the Shares issued under all Security Based Compensation Arrangements of the Corporation, shall not exceed 10% of the total number of issued and outstanding Shares on a non-diluted basis;
|
| (d)
| issuable to Participants that are non-employee directors of the Corporation, shall not exceed the lesser of: (i) 1% of the issued and outstandingShares; and (ii) an annual value of $150,000 per non-employee director Participant; and
|
| (e)
| issuable to any Participant under the Plan within any calendar year period shall not exceed 3,000,000 Shares in the aggregate.
basis. |
If Options granted to an individual under the Plan expire or terminate for any reason without having been exercised in respect of certain Shares, such Shares shall again be available to be made the subject of new Options. Upon the partial or full exercise of an Option, the number of Shares issued upon such exercise shall become available to be made the subject of new Options, provided that noNo grant may be made under the Plan if such grant would result in the issuancenumber of Common Shares in excessthat are the subject of or issuable pursuant to Awards exceeding the above-noted limits.
For Subject to applicable law, the purposesrequirements of this Plan, “Security Based Compensation Arrangements” shall haveany stock exchange upon which the meaning given to that term in Part VI of the Company Manual of the Toronto Stock Exchange, as amended from time to time,Common Shares may then be listed and “Insider” shall have the meaning set forth in the Securities Act (British Columbia), as amended from time to time, and includes Associates and Affiliates (as such terms are defined in the Securities Act (British Columbia)) of such person.
5.ELIGIBILITY
Optionsany shareholder or other approval which may be granted underrequired, the Board may in its discretion amend the Plan to increase such directors, officers and employeeslimit without notice to any Participants.
For purposes of the Corporation and of its subsidiaries and, subject to applicable Securities Laws, to such other persons providing consulting or other services to the Corporation as the Board of Directors may, from time to time, designate as participants (collectively the “Participants” and individually a “Participant”) under the Plan. Subject to the provisions of the Plan,computing the total number of Common Shares to be made 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 time or timesCorporation, sign and price or prices at which Options shall be granted, the time or times at whichdeliver all such Options are exercisable, and any conditions or restrictions on the exercise of Options, shall be in the full and final discretion of the Board of Directors. 6.TERMS AND CONDITIONS
All Options under the Plan shall be granted upon and subjectdocuments relating to the terms and conditions hereinafter set forth.granting or vesting of Awards which the Corporation deems necessary or desirable.
| 3.7 | Non-transferability of Awards |
Subject to Section 6.1,Option Agreement All Options shall be Awards granted under the Plan by means of an agreement (the “Option Agreement”) between the Corporation and each Participant substantially in the form set out in Schedule A attached hereto, and which shall first be approved by the Board of Directors with such changes to such form as the Board of Directors may approve, such approval to be conclusively evidenced by the execution of the Option Agreement by the President or any two directors or officers of the Corporation.
6.2Exercise Price
The price (the “Exercise Price”) payable in cash at the time of exercise of an Option by a Participant for any Optioned Share will be not less than the price of an Optioned Share as recorded at the close of business on (a) the Toronto Stock Exchange, in the case of Options with an Exercise Price in Canadian dollars, and (b) the NYSE MKT (the Toronto Stock Exchange and NYSE MKT together, the “Exchanges”), in the case of Options with an Exercise Price in U.S. dollars, in either case on the last trading day preceding the date a resolution of the Board of Directors was passed or
consented to in writing granting the Option and authorizing the Corporation to enter into the Option Agreement. Subject to Section 7 of the Plan, receipt of any necessary regulatory approval and applicable Securities Laws, the Exercise Price under any Option may be amended at any time with the consent of the Participant by resolution of the Board of Directors (except where such amendment would be a violation of Section 409A of the Code for a U.S. Participant), in which event the relevant Option Agreement shall be deemed to be amended accordingly.
6.3Length of Grant and Automatic Extension of Expiry Date
Subject to Sections 6.8 through 6.12 inclusive, all Options granted under the Plan shall expire not later than that date which is 10 years from the date such Options were granted.
If the expiry date of an Option occurs during a Blackout Period (as defined below), such expiry date shall be the date that is the 10th business day after the last day of the applicable Blackout Period. For the purposes of this Plan “Blackout Period” means, with respect to an Option, any period during which the holder of the Option is not permitted to trade Shares pursuant to the policies of the Corporation.
6.4Non-Assignability of Options
An Option granted under the Plan shall notmay only be transferable or assignable (whether absolutely or by way of mortgage, pledge or other charge) by a Participant other than by will or other testamentary instrument or the laws of succession or administration and may be exercisableexercised during the lifetime of the Participant only by such Participant.
6.5ExerciseParticipant personally. Subject to Section 6.1, no assignment or transfer of Options
EachAwards, 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 becoming entitledany assignment or transfer, or any attempt to exercisemake the Option in respectsame, such Awards will terminate and be of no further force or effect. If any Shares in accordance with the Option Agreement relating thereto, shall thereafterParticipant has transferred Awards to a Permitted Assign that is a corporation pursuant to this Section 3.7, such Awards will terminate and be entitled to exercise the Option to purchase such Sharesof no further force or effect if at any time or times after such Options vest and become exercisable in accordance with the Option Agreement relating thereto and priortransferor should cease to the expiration or other termination of the Option in accordance with the Option Agreement.
6.6Exercise and Payment
Any Option granted under the Plan may be exercised in whole or in part by a Participant or, if applicable, the legal representative of a Participant by delivering to the Corporation at its registered office written notice specifying the number of Shares in respect of which such Option is being exercised, accompanied by payment (by cash or certified cheque payable to the Corporation) of the entire Exercise Price (determined in accordance with the Option Agreement) for the number of Shares specified in the notice. Upon the exercise of an Option by a Participant, the number of Shares specified in the relevant notice shall be issued and registered in the name of that Participant or the legal representative of that Participant or as directed by the Participant (subject to applicable Securities Laws), as the case may be.
6.7Rights of Participants
The Participants shall have no rights whatsoever as shareholders in respect of any of the Shares (including, without limitation, voting rights or any right to receive dividends, warrants or rights under any rights offering) other than Shares in respect of which Participants have exercised their Options and which have been issued by the Corporation.
6.8Third Party Offer
If at any time when an Option granted under the Plan remains unexercised with respect to any Shares, an offer to purchaseown all of the outstanding commonissued 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 capitalaggregate 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 the Corporation is made by a third party, the Corporation may, upon giving each Participant written notice to that effect, require the acceleration of the time for the exercise of the unexercised Options granted under thethis Plan and ofsuch other terms and conditions as the time for the fulfilment of any conditions or restrictions on such exercise.
6.9Alterations in Shares
In the event of a stock dividend, subdivision, redivision, consolidation, share reclassification, amalgamation, merger, consolidation, corporate arrangement, reorganization, liquidation or the like of or by the Corporation, the Board of DirectorsCommittee may subjectprescribe, grant RSUs to any required prior regulatory approval, make adjustments, if any, to the number of Shares that may be purchased upon exercise of unexercised Options or to the Exercise Price therefor, or both, as it shall deem appropriate and may amend the Option Agreements relating to those Options to give effect to such adjustments and may adjust the maximum number of Shares available under the Plan as may be appropriate. If because of a proposed merger, amalgamation or other corporate arrangement or reorganization, the exchange or replacement of Shares for shares or other securities in another company is imminent, the Board of Directors may, in a fair and equitable manner and subject to prior regulatory approval, determine the manner in which all unexercised Options granted under the Plan shall be treated including, for example, requiring the acceleration of the time for the exercise of such Options by the Participants and of the time for the fulfilment of any conditions or restrictions on such exercise.Participant.
6.10Termination for Cause
Subject to Sections 6.11 and 7, if a Participant is dismissed as an officer or employee by the Corporation or by one of its subsidiaries for cause, all unexercised Options of that Participant under the Plan shall immediately be deemed to be terminated and shall lapse notwithstanding the original term of the Option granted to such Participant under the Plan. Nothing contained in the Plan shall be deemed to give an officer or employee the right to be retained in the employ of the Corporation, or to interfere with the right of the Corporation to terminate the employment of an officer or employee at any time.
6.11Termination Other Than for Cause
If a Participant ceases to be a director, officer or employee of the Corporation or of one of its subsidiaries or ceases to provide consulting or other services to the Corporation for any reason other than as a result of having been dismissed for cause as provided in Section 6.10 or as a result of the Participant’s death, such ParticipantThe Committee shall have the right for a periodauthority to make the receipt of 30 days (or until the normal expiry date of the Option rights of such Participant if earlier) from the date of ceasing to be a director, officer, employee or provider of services to exercise the Options of such Participant to the extent they were then exercisable. Upon the expiration of such 30 day period all unexercised Options of that Participant shall immediately be terminated notwithstanding the original term of the Option granted to such ParticipantCommon Shares under the Plan.RSUs conditional upon:
6.12Deceased Participant
In the event of the death of a Participant, the legal representatives of the deceased Participant shall have the right for a period of 90 days (or until the normal expiry date of the Options of such Participant if earlier) from the date of death of the deceased Participant to exercise the deceased Participant’s Options to the extent they were exercisable on the date of death. Upon the expiration of such period all unexercised Options of the deceased Participant shall immediately terminate and shall lapse notwithstanding the original term of the Options granted to the deceased Participant under the Plan.
7.AMENDMENT AND DISCONTINUANCE OF PLAN AND OPTIONS
7.1Amendments by the Board of Directors
The Board of Directors may amend the Plan at any time; provided, however that no such amendment may, without the consent of a Participant, adversely alter or impair any Option previously granted to such Participant. Any amendment to be made to this Plan or an Option is subject to the prior approval of the Exchanges and shareholders of the Corporation, if required by the rules of the Exchanges. The Board shall have the power and authority to approve amendments relating to the Plan or a specific Option without further approval of the shareholders of the Corporation, to the extent that such amendments relate to, among other things:
| (a)
| altering, extending or accelerating the terms of vesting applicable to any Option or group of Options;
|
| (b)
(a) | altering the terms and conditionsexpiry of a time-based vesting applicable to any Option or group of Options;
period; |
| (c)
(b) | changing the termination provisionsattainment of an Option, provided that the change does not entail an extension beyond the original expiry date of such Option;
specified Performance Goals; or |
| (d)
(c) | acceleratingsuch other factors (which may vary as between awards of RSUs) as the expiry dateCommittee 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. | 4.3 | Vesting of Options;RSUs |
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: |
| (e)
(i) | 60 days following the application of Sections 6.8 and 6.9 ofVesting Date for a Participant that is resident in the Plan; United States; or |
| (f)
(ii) | effecting amendments respecting the administrationearlier of (A) 60 days following the Vesting Date and (B) December 31 of the Plan;
third calendar year following the year of service for which the RSU was granted for a Participant that is resident in Canada. |
| (g)
(b) | amendingNotwithstanding anything in the definitions contained withinPlan or an Award Agreement to the Plan;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; |
| (h)
(b) | effecting amendmentsthe attainment of a “housekeeping”specified Performance Goals; or ministerial nature including, without limiting the generality of the foregoing, any amendment for the purpose of curing any ambiguity, error, inconsistency or omission in or from the Plan or any Option Agreement;
|
| (i)
(c) | effecting amendments necessary to comply withsuch other factors (which may vary as between awards of Restricted Stock) as 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);
|
| (j)
| amending or modifying the mechanics of exercise of the Options; and
|
| (k)
| any other amendment, whether fundamental or otherwise, not requiring shareholder approval under applicable law (including, without limitation, the rules, regulations, and policies of the Exchanges).
Committee may determine in its discretion. |
No amendmentIn 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 may contraveneshall be evidenced by the requirementsissuance 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 ExchangesParticipant 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 any securities commission or regulatory bodyArticle 4 which are intended to whichconstitute “qualified performance-based compensation” within the Plan ormeaning of Section 162(m) of the Corporation is now or may hereafter be subject to. 7.2Amendments Requiring Shareholder Approval
Shareholder approval will be required forCode (“Performance Awards”), the following types of amendments:additional rules shall apply:
| (a) | amendmentsFor 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 increaseperformance period on the numberbasis of Shares issuable under the Plan, except such increases by operation of Section 6.9one or more of the Plan;
|
| (b)
| any reduction inPerformance Goals, the Exercise Priceoutcome of an Option, including any cancellation and reissuance of an Option at a reduced Exercise Price, if the Participantwhich is not an Insidersubstantially uncertain at the time of the proposed amendment;
|
| (c)
| any extension ofCommittee actually establishes the termPerformance Goal. The Committee shall have sole discretion to determine the amount of any Options that have been granted to Participants that are not Insiders, other than if an Option would expire during a Black-Out Period, in accordance with Section 6.3 of the Plan;
|
| (d)
| amendments to the Plan that would increase the number of Shares issuable to non-employee director Participants under the Plan;
|
| (e)
| amendments to the Plan that would permit Optionspayment or transfer to be transferable or assignable othermade 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 accordance with Section 6.4 of the Plan;
|
| (f)
| amendments to this Section 7 of the Plan; and
no event shall a |
| (g)
| amendments requiredPerformance Goal be considered to be approved by shareholders under applicable law (including, without limitation, pursuant to the rules, regulations and policiespre-established if it is established after 25 percent of the Exchanges).
|
7.3Disinterested Shareholder Approval
Disinterested Shareholder Approval (as defined below) will be required for the following types of amendments:
| (a)
| amendments toperformance period (as scheduled in good faith at the Plan that could result at any time in the number of Shares reserved for issuancePerformance Goal is established) has elapsed. To the extent required under the Plan to Insiders exceeding 10%Section 162(m) of the outstanding numberCode, the terms of issued and outstanding Shares;
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 reductionamount to a Participant with respect to a Performance Award, the Committee shall certify in writing as to the Exercise Priceattainment of an Option, includingall factors (including the performance factors for a Participant) upon which any cancellation and reissuance of an Option atpayments to a reduced Exercise Price, if the Participant is an Insiderfor 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 time ofTermination Date are immediately forfeited to the proposed amendment;Corporation on the Termination Date; |
| (c)
(b) | any extensionsuch Participant’s eligibility to receive further grants of Awards under the Plan ceases as of the term of any Options that have been granted to Insiders, other than if an Option would expireTermination Date; and during a Black-Out Period, in accordance with Section 6.3 of the Plan; and
|
| (d)
(c) | amendments requiring Disinterested Shareholder Approvalin 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 (including, without limitation, pursuantand 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 rules, regulationsCorporation or an Affiliate where the Participant ceases to be an employee and policiescontinues as a Consultant Participant of the Exchanges).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 purposesevent 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 adverse effect on this Plan “Disinterested Shareholder Approval” meansor 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 acquired on the vesting of outstanding Awards; and/or (b) the terms of any other Award in order to preserve proportionately the rights 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 sale or lease of assets or otherwise, that does not constitute a Change in Control and that warrants the amendment or replacement of any existing Awards in order to adjust: (a) the number of Common Shares that may be acquired on the vesting of outstanding Awards; or (b) the terms of any other Award in order to preserve proportionately the rights and obligations of the Participants holding such Awards (any such event being herein called a “Corporate Reorganization”), the Board will authorize such steps to be taken as it may consider to be equitable and appropriate to that end. Subject to prior approval of the Exchanges, whenever the Corporation issues by way of a dividend or otherwise distributes to all or substantially all holders 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 the 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 it may consider to be equitable and appropriate to that end in order to properly reflect any diminution in value of the Common Shares as a 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 the shareholdersCorporation of shares of any class or 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 adjustment 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 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 Company excludingBoard, in its discretion, such action would constitute a violation by a Participant or the Corporation of any votesprovision of securities held directlyany applicable statutory or indirectlyregulatory enactment of any government or government agency or the requirements of any stock exchange upon which the Common Shares may then be listed. | 9.2 | Participants’ Entitlement |
Except as otherwise provided in this Plan, Awards previously granted under this Plan are not affected by Insiders benefiting directlyany change in the relationship between, or indirectly fromownership of, the approval or amendmentCorporation and an Affiliate. For greater certainty, all grants of Awards remain valid in accordance with the rules, regulations,terms and policiesconditions of this Plan and are not affected by reason only that, at any stock exchange, securities commission or regulatory body or other applicable law.time, an Affiliate ceases to be an Affiliate. 8.WITHHOLDING TAXES
The granting or exercisevesting of each OptionAward granted under this Plan is subject to the condition that if at any time the CorporationCommittee determines, in its discretion, that 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”“Withholding Obligations”) is necessary or desirable in respect of such grant or exercise,vesting, such grant or exercisevesting is not effective unless such withholding has been effected to the satisfaction of the Corporation.Committee. In such circumstances, the CorporationCommittee may establish procedures to ensure satisfaction of all applicable Withholding Obligations arising in connection with the granting or exercise of each Option granted under this PlanAward and CorporationCommittee shall require that a Participant agrees to: | (a) | make adequate provision for any Withholding Obligations that arise in connection with thisthe Award no later than the date on which any amount with respect to the Award is required to be remitted to the relevant tax authority by the Corporation or an Affiliate, as the case may be; |
| (b) | authorize the Corporation, at its sole discretion and subject to any limitations under applicable law, to satisfy any such Withholding Obligations by (i) withholding a portion of the Common Shares otherwise to be issued on the exercisein payment of the Option;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 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, (ii) withholding from the wages and other cash payable to the Participant or by causing the Participant to tender a cash payment to the Corporation, or (iii) selling on the Participant’s behalf (using any brokerage firm determined acceptable to the Corporation for such purpose) a portion of the Common Shares issued on the exercisein payment of the OptionAward as the Corporation determines to be appropriate to generate cash proceeds sufficient to satisfy the Withholding Obligations; and |
| (c) | be responsible for all brokerage fees and other costs of sale and 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 Participant fails to comply with the Participant’s obligations in connection with the Withholding Obligations described in this Section. 9.NO FURTHER RIGHTS
Nothing contained inNo Participant has any claim or right to be granted an Award and the Plan nor ingranting of any Option granted hereunder shall give anyAward is not to be construed as giving a Participant a right to remain as an employee or any other person any interestconsultant of the Corporation or title in or to any Shares oran 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 Common Shares are listed and applicable law, the Board may, without notice or shareholder approval, at any time or from time to time, amend the Plan or a specific Award for the purposes of: |
| (i) | altering, extending or accelerating the terms of vesting applicable to any Award or group of Awards; |
| (ii) | making any amendments to the general vesting provisions of an Award; |
| (iii) | changing the termination provisions of 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; |
| (vii) | 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, 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 interests of the Participants; |
| (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; |
| (ix) | making any amendments to the definitions of the Plan; |
| (x) | effecting amendments with respect to the administration of the Plan; and |
| (xi) | making amendments of a “housekeeping” or ministerial nature. |
| (b) | Subject to Section 7.1, the Board shall not alter or impair any rights or increase any obligations with respect to an Award previously granted under the 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 the Plan which would increase the number of Common Shares issuable under the Plan, otherwise than in accordance with the terms of this Plan; |
| (ii) | amendments to the Plan which would increase the number of Common Shares issuable to Insiders, otherwise than in accordance with the terms of this Plan; |
| (iii) | amendments to this Section 9.5 of the Plan; |
| (iv) | the addition of any form of financial assistance to a Participant; and |
| (v) | amendments required to be approved by shareholders under applicable law (including without limitation, pursuant to the rules, regulations and policies of the Exchanges). |
| (d) | Notwithstanding any other provision of this Plan, none of the following amendments shall be made to this Plan without Disinterested Shareholder Approval: |
| (i) | amendments to the Plan that could result at any time in the number of Common Shares reserved for issuance under the Plan to Insiders exceeding 10% of the issued and outstanding Common Shares; |
| (ii) | any extension of the term of any Award that has been granted to Insiders, other than an extension of the term of an Award, if an Award vests during a Black-Out-Period; and |
| (iii) | amendments requiring Disinterested Shareholder Approval under applicable law (including without limitation, pursuant to the rules, regulations and policies of the Exchanges). |
Any amendment that would cause an 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 | Section 409A of the 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 any other legal or equitable right againstguidance under that section. In no event will the Corporation whatsoever other than asbe 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 Plan andCode 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 exercisepreceding sentence shall be paid as soon as practicable following such 6-month anniversary of any Option, nor shall it confer uponsuch separation from service. | 9.7 | Requirement of Notification of Election Under Section 83(b) of the Code |
If a Participant, in connection with the Participants any rightissuance of Common Shares pursuant to continue as an employee or executivea 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 or of its subsidiaries. 10.CURRENCY
Unless otherwise specified, all references to money are to U.S. Dollars.
such election within ten (10) days of filing notice of the election with the Internal Revenue
SCHEDULE A
STOCK OPTION AGREEMENT
THIS AGREEMENT made asService, in addition to any filing and notification required pursuant to regulations issued under Section 83(b) of the _______ dayCode. 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 _____________, 20___.
BETWEEN:
VISTA GOLD CORP.
7961 Shaffer Parkway, Suite 5
Littleton, Colorado, U.S.A. 80127
(hereinafter called the “Corporation”)
AND:
c/o Vista Gold Corp.
7961 Shaffer Parkway, Suite 5
Littleton, Colorado, U.S.A. 80127
(hereinafter calledPlan, the “Participant”)following additional terms, conditions and restrictions apply to Awards granted to Participants residing in Canada:
| (a) | Restricted Share Units. Restricted Share Units shall be settled in Common Shares, unless the Corporation offers the Participant the right to receive cash in lieu of Common Shares based on the Fair Market Value that such Common Shares would have at the time of settlement, and the Participant, in its discretion, so elects, and any such cash payments shall be paid in accordance with Section 4.4(a) modified as the context requires. |
| (b) | 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. |
Every 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, such costs, charges and expenses to include any amount paid to settle such action, suit or proceeding or in satisfaction of any judgment rendered therein. | 9.10 | Participation in the Plan |
The participation of any Participant in the 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 the Plan. In particular, participation in the Plan does not constitute a condition of employment or engagement nor a commitment on the part of the Corporation to ensure the continued employment or engagement of such Participant. The Plan does not provide any guarantee against any loss which may result from fluctuations in the market value of the Common Shares. The Corporation does not assume responsibility for the income or other tax consequences for the Participants and Participants are advised to consult with their own tax advisors. This Plan originally became effective on March 8, 2010, subject to shareholder approval. Shareholder approval was obtained on May 3, 2010. This Plan has been amended and restated effective May 6, 2015 and May 2, 2019. This Plan is created under and is to be governed, construed and administered in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein. WITNESSES THAT WHEREAS:
A.The Corporation has established a stock option plan, a copy of which is annexed as Schedule A (the “Plan”);
B.The Participant is a director, officer or employee of the Corporation or of one of its subsidiaries or a person who provides consulting or other services to the Corporation and has been designated as a “Participant” under the Plan by the Board of Directors of the Corporation.
NOW THEREFORE in consideration of the sum of One Dollar now paid by the Participant to the Corporation (the receipt whereof is hereby acknowledged by the Corporation) and other good and valuable consideration, it is agreed between the parties hereto as follows:
In this Agreement defined or capitalized words and terms used herein shall have the meanings ascribed to them in the Plan unless otherwise defined in this Agreement.
2.GRANT OF OPTION
The Corporation hereby grants to the Participant, subject to the terms and conditions set forth in the Plan and this Agreement, an irrevocable right and option (the “Option”) to purchase ___________ Common Shares of the Corporation (the “Shares”) at the price of Cdn/US$ _________ per Option at any time after the date or dates set forth below with respect to the number of Shares shown opposite such date or dates:
DateNo.schedule A
Form of Shares VestedRSU Award Agreement
untilVista Gold Corp. (the “Corporation”) hereby grants the close of business onfollowing Award(s) to the _______ day of ____________, _____ (the “Expiry Date”).
3.EXERCISE OF OPTION
The Participant shall havenamed below (herein the right to exercise the Option hereby granted,“Recipient”), in accordance with and subject to the terms, conditions and conditions set forth inrestrictions of this Agreement, together with the Plan and the Agreement, until the Expiry Date at which time the Option hereby granted shall, subject to Section 6.3provisions of the Long Term Equity Incentive Plan expire and terminate and be of no further force or effect for those Shares in respect of which the Option hereby granted has not been exercised.
4.NO REQUIREMENT TO PURCHASE
Nothing herein contained shall obligate the Participant to purchase and/or pay for any Shares except those Shares in respect of which the Participant shall have duly and properly exercised his or her Option.
5.SUBJECT TO PLAN
This Agreement shall be subject in all respects to the (the “Plan as the same shall be amended, revised or discontinued from time to time and all the terms and conditions”) of the Plan are hereby incorporated into this AgreementCorporation dated May 3, 2010, as if expressly set forth herein and as the same may be amended from time to time.May 6, 2015:
6.WITHOLDING
The Participant 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 the grant, exercise or settlementName of this Option. The Corporation may establish procedures to ensure satisfaction of all applicable Withholding Obligations arising in connection with the grant, exercise or settlement of this Option. The Participant 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 Shares otherwise to be issued on the exercise of this Option; 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 rules as the Corporation may from time to time establish; (2) withholding from the wages and other cash payable to the Participant or by causing the Participant to tender a cash payment to the Corporation; or (3) selling on the Participant’s behalf (using any brokerage firm determined acceptable to the Corporation for such purpose) a portion of the Shares issued on the exercise of this Option as the Corporation determines to be appropriate to generate cash proceeds sufficient to satisfy the Withholding Obligations. The Participant shall be responsible for all brokerage fees and other costs of sale, and the Participant 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 Shares or any other payment in respect of the Option if the Participant fails to comply with the Participant’s obligations in connection with the Withholding Obligations described in this Section.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as of the date first above written.
Recipient: Date of Grant: Total Number of RSUs: Additional terms applicable to such Award: | 2. | 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. |
| 3. | Subject to any acceleration in vesting as provided in the Plan or as otherwise determined in this Award Agreement, the RSUs 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: |
60 days following the vesting date for a Participant that is resident in the United States or; 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, 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 not entitle the Recipient to any of the rights or benefits generally accorded to stockholders unless and until a Common Share is 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 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. |
| 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 portion 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 rules 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 appropriate 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 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 the Award does not affect in any way the right of the Corporation or any Affiliate to terminate the employment of the Recipient. |
| 11. | 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
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schedule B
Form of Restricted Stock 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 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 Common Shares of Restricted Stock (“Restricted Shares”): Additional terms applicable to such Award: | 1. | 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 Committee 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 appropriate 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 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 connection 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 any 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 Recipient 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
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APPENDIX “E” VISTA GOLD CORP. Deferred Share Unit Plan ARTICLE 1
INTRODUCTION The purpose of this Deferred Share Unit Plan is to assist Vista Gold Corp. (the “Corporation”) in attracting, retaining and motivating non-employee directors of the Corporation 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 For purposes of this Plan: Witness
“Account” 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 Amounts” is defined in Section 4.11(b)of this Plan; “Black Out Period” means, with respect to a DSU, any period during which the holder of the DSU is not permitted to trade Common Shares pursuant to the policies of the Corporation; “Board” means the board of directors of the Corporation; “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated under it; “Committee” means the Compensation Committee of the Board or such other committee of the Board as may be appointed by the Board 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; “CommonShares” means the common shares in the capital of the Corporation or, in the event of an adjustment contemplated by Section 4.9, such other number or type of securities as the Committee may determine; “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 “DSU” means 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 4.6 of this Plan; “Distribution Value” means, with respect to each Deferred Share Unit credited to a Participant’s SignatureAccount, the Fair Market Value per Common Share; “Dividend Market Value” means the Fair Market Value per Common Share on the day that is two trading days before dividend record date; “DSU Agreement” is defined in Section 5.11 of this Plan; “Eligible Director” means an individual who is, at the relevant time, a non-employee director of the Corporation; “Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time to time; “Exchanges” means the TSX and the NYSE American and such other exchanges upon which the Common Shares may become listed from time to time, and each, an “Exchange”; “Fair Market Value” means 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) for the five (5) trading days immediately preceding the day on which the Fair Market Value is to be determined. In the event that the Common Shares are not listed and posted for trading on any stock exchange, the Fair Market Value shall be the fair market value of the Common Shares as determined by the Board in its sole discretion, acting reasonably and in good faith; “Insider” has the meaning ascribed thereto in Part I of the TSX Company Manual, as amended from time to time; “NYSE American” means the NYSE American LLC; “Participant” means an Eligible Director who is granted DSU’s in accordance with Section 4.1 hereof; “Payment Shares” means the Common Shares issued in satisfaction of DSUs; “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 Deferred Share Unit Plan as amended, restated, supplemented or otherwise modified from time to time; “Security Based Compensation Arrangement” has the meaning ascribed thereto in Part VI of the TSX Company Manual, as amended from time to time; “Separation Date” means the earliest date on which the Participant is no longer a member of the Board of the Corporation nor is otherwise employed by the Corporation or any of its Subsidiaries in any fashion; “TSX” means the Toronto Stock Exchange; and “TSX Company Manual” means the Toronto Stock Exchange Company Manual, as amended from time to time.
| (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, such payment shall be made or such action shall be taken on the next following 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-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-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-mentioned Person is the general partner. |
| (g) | Unless otherwise specified, all references to money amounts are to U.S. Dollars. |
ARTICLE 3
ADMINISTRATION OF THE PLAN | 3.1 | Administration of the Plan |
| (a) | Except as required by law and subject to Sections 3.1(b), this Plan will be administered by the Board and the Board has sole and complete authority, in its discretion, to: |
| (i) | interpret and construe any provision hereof and decide all questions of fact arising in their interpretation; |
| (ii) | adopt, amend, suspend and rescind such rules and regulations for administration of this Plan as the Board may deem necessary in order to comply with the requirements of this Plan, in order 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) | make any other determinations and take such other action in connection with the administration of this Plan that it deems necessary or advisable. |
The Board’s determinations and actions under this Plan are final, conclusive and binding on the Corporation, the Participants and all other Persons. | (b) | To the extent permitted by applicable law and the Corporation’s articles, the Board may, from time to time, delegate to the Committee all or any of the powers of the Board under this Plan. In connection with such delegation, the Committee 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 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. 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. |
| 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. Any individual who at the relevant time is an Eligible Director is eligible to participate in this Plan. Eligibility to participate does not confer upon any individual a right to receive an award of Deferred Share Units pursuant to this Plan. | 3.4 | Exemption from Plan Participation |
Notwithstanding any other provision of this Plan, if a Participant is resident in a jurisdiction in which 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 notice 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. |
| (b) | 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. |
| (c) | 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. |
| (d) | 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 granted and credited to a Participant’s Account. Subject to the absolute discretion of the Board, in the event that a dividend (other than share dividend) is declared and paid by the Corporation on the Common Shares, a Participant may be credited with additional Deferred Share Units. The number of such additional Deferred Share Units, if any, will be calculated by dividing (a) the total amount 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. Notwithstanding any other provision of this Plan: | (a) | the maximum number of Common Shares issuable pursuant to outstanding DSUs at any time shall be limited to 3% of the aggregate number of issued and outstanding Common Shares on a non-diluted basis; |
| (b) | 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; |
| (c) | 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; |
| (d) | the number of Common Shares issued to Insiders, within any one year period, under all Security Based Compensation Arrangements, shall not exceed 10% of the issued and outstanding Common Shares; and |
| (e) | the number of Common Shares issued to Eligible Directors shall not exceed the lesser of: (i) 1% of the issued and outstanding Common Shares; and (ii) an annual DSU value of $150,000 per Eligible Director. |
For the purposes of this Section 4.4, any increase in the issued and outstanding Common Shares (whether as a result of the issue of Common Shares pursuant to DSUs or otherwise) will result in an increase in the number of Common Shares that may be issued pursuant to DSUs outstanding at any time. Further, if the acquisition of Common Shares by the Corporation for cancellation should result in the foregoing tests no longer being met, this shall not constitute non-compliance with this Section 4.4 for any awards outstanding prior to such purchase of Common Shares for cancellation. DSUs that are cancelled, terminated 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 extent of any Common Shares issuable thereunder that are not issued under such cancelled, terminated or expired DSUs. Upon Payment Shares being issued in settlement of DSUs, the number of Common Shares reserved for issuance in respect of such DSUs automatically become available to be made the subject of new DSUs, provided that the total number of Common Shares reserved for issuance under this Plan and all other Security Based Compensation Arrangements does not exceed 10% of the issued and outstanding Common Shares of the Corporation. | 4.5 | Reporting of Deferred Share Units |
Statements of the Deferred Share Unit Accounts will be provided to Participants on an annual basis. | 4.6 | 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. |
| 4.7 | Distribution of Deferred Share Units in Payment Shares |
Deferred Share Units shall be settled 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. |
| 4.8 | Death of Participant Prior to Distribution |
Upon the death 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 issued 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. | 4.9 | 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 granted to all or substantially all shareholders to purchase Common Shares at prices substantially below Fair Market Value as of the date of grant (other than the payment of dividends in respect of the Common Shares as contemplated by Section 4.3); or (c) that, as a result of any recapitalization, merger, consolidation or other transaction, the Common Shares are converted into or exchangeable for any other securities or property, then the Board may make such adjustments to this Plan, the Account of each Participant, the DSU Agreements and the Deferred Share Units outstanding under this Plan as the Board may, in its sole discretion, consider appropriate in the circumstances to prevent dilution or enlargement of the rights granted to Participants hereunder and/or to provide for the Participants to receive and accept such other securities or property in lieu of Common Shares, and the Participants shall be bound by any such determination. The rules set forth in Schedule A 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 income tax payable in respect of any Common Shares received by the Participant 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, if any, arising |
| | upon the grant or exercise of rights under this Plan by a Participant who is resident in Canada for income tax purposes. |
| (b) | Upon issuance of any Payment Shares to a Participant, the Corporation will require the Participant to first pay to the Corporation, or the Corporation may deduct, the amount equivalent to the minimum amount of taxes and other minimum amounts as the Corporation may be required by law to withhold, as the Corporation determines (the “Applicable Withholding Amounts”), or the Corporation may take 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. |
ARTICLE 5
GENERAL | 5.1 | Amendment, Suspension, or Termination of Plan |
| (a) | Subject to the rules and policies of the Exchanges and applicable law, the Board may, without notice or shareholder approval, at any time or from time to time, amend this Plan or a specific grant of DSUs under this Plan for the purposes of: |
| (i) | altering, extending or accelerating the terms of vesting applicable to any grant of DSUs or group of DSU grants under this Plan; |
| (ii) | making any amendments to the general vesting provisions of DSUs granted under this Plan; |
| (iii) | changing the termination provisions of DSUs granted under this Plan or this Plan itself; |
| (iv) | making any amendments to add covenants of the Corporation for the protection of Participants, 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) | making any amendments not inconsistent with this 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 interests of the Participants; |
| (vi) | 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) | making any amendments to the definitions of this Plan; |
| (viii) | effecting amendments with respect to the administration of this Plan; and |
| (ix) | making amendments of a “housekeeping” or ministerial nature. |
| (b) | The Board shall not alter or impair any rights or increase any obligations with respect to DSUs previously granted under this 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 this Plan to increase the maximum number of Common Shares issuable pursuant to 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, otherwise than in accordance with the terms of this Plan; |
| (vi) | amendments to this Plan to remove or amend this Section 5.1; |
| (vii) | the addition of any form of financial assistance to a Participant; or |
| (viii) | amendments to this Plan in any other circumstances where approval by the Exchanges and by the shareholders of the Corporation is required by the Exchanges. |
| (d) | Notwithstanding any other provision of this Plan, none of the following amendments shall be made to this Plan without disinterested shareholder approval: |
| (i) | amendments to this Plan that could result at any time in the number of Common Shares reserved for issuance under this Plan to Insiders exceeding 10% of the issued and outstanding Common Shares; |
| (ii) | any extension of the term of any grant of DSUs that has been granted to Insiders, other than an extension of the term of a grant of DSUs which vests during a Black Out Period; and |
| (iii) | amendments requiring disinterested Shareholder approval under applicable law (including without limitation, pursuant to the rules, regulations and policies of the Exchanges). |
Any amendment that would cause a grant of DSUs held by a U.S. Taxpayer to fail to comply with Section 409A of the Code shall be null and void ab initio. | (e) | Without limitation 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. |
| (f) | 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 Share Units pursuant to Section 4.3 unless 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 to the Participant in respect of all such Deferred Share Units. |
The administration of this Plan shall be subject to and made 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 approval 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. | 5.3 | Reorganization of the Corporation |
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 this 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 this Plan. In particular, participation in this Plan does not constitute a condition of employment or service nor a commitment on the part of the Corporation to ensure the continued employment or service of such Participant. Nothing 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 lieu of participation, whether upon termination of service as an Eligible Director or otherwise. The Corporation does not assume responsibility for the personal income or other tax consequences for the Participants and they are advised to consult with their own tax advisors. | 5.7 | No Common Shareholder Rights |
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, this 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 disclosure 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 B 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 period and in such manner as specified by the Board. If a DSU Agreement is not entered into within the time and manner specified, the Corporation reserves the right to revoke the crediting of DSUs to the Participant’s Account. All amounts paid or values 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, and interpreted 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. APPROVED by the Board this 3rd day of March, 2019.
SCHEDULE A PLAN PROVISIONS APPLICABLE TO U.S. TAXPAYERS The provisions 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 anything to the contrary in this Plan. All capitalized terms used in this Schedule “A” and not defined herein, shall have the meaning attributed to them in this Plan. “Section 409A” means Section 409A of the United States Internal Revenue Code and the regulations and authority promulgated thereunder. “Separation Date” shall mean the date on which the Participant incurs a “separation from service” within the meaning of Section 409A. “U.S. Taxpayer” shall mean any person who is a U.S. citizen, U.S. permanent resident, or other person who has been granted or is eligible to be granted a Deferred Share Unit under this Plan that is otherwise subject to U.S. taxation. | 1. | Notwithstanding Section 4.6 of this Plan, the following procedure shall be used to determine a Distribution Date for Deferred Share Units that are subject to this Schedule A. |
| (a) | An Eligible Director who is a U.S. Taxpayer shall have the right to elect, at his or her option, to receive the distribution of all amounts credited to his or her Deferred Share Unit Account on any date (the “Distribution Date”) within the period commencing on his or her Separation Date, and ending on December 1, of the first calendar year following the year in which the Separation Date occurs. Such election shall apply to all future grants of Deferred Share Units made to such U.S. Taxpayer under the Plan, and shall be made by written notice delivered to the Chief Financial Officer of the Corporation, which shall become irrevocable not later than the end of the calendar year prior to the year for which the Deferred Share Units are granted, or if later, within thirty (30) days following the date a U.S. Taxpayer first becomes an Eligible Director. In no case shall such election be permitted after the date of a grant of Deferred Share Units. If no election is timely made, the Distribution Date shall be the Separation Date, subject to clause (b) below. |
| (b) | Notwithstanding the foregoing, if any U.S. Taxpayer is determined to be a “specified employee” (as determined under Section 409A, in accordance with the Corporation’s policies) at the Separation Date, then the Distribution Date shall not be earlier than the date that is six (6) months following his or her Separation Date. |
| 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. | 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. |
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 |
SCHEDULE B DEFERRED SHARE UNIT AGREEMENT Participant’s NameThis Deferred Share Unit Agreement is entered into between Vista Gold Corp. (the “
Corporation(print or type)”) and the Eligible Director named below pursuant to the Corporation’s Deferred Share Unit Plan (the “Plan”) and it is agreed by and between the parties hereto as follows: | 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, as the same may be amended, modified, terminated or otherwise changed, in whole or in part pursuant to the terms of the Plan. |
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.
Per:By:
Per:
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