Audit Committee Report
The Audit Committee of the Board is responsible for providing independent, objective oversight of the Corporation’s accounting functions and internal controls. The Audit Committee acts under a written charter first adopted and approved by the Board in 2007, and most recently amended in 2016, which is reviewed annually. Each member of the Audit Committee is “independent” within the meaning of Rule 10A-3 of the Exchange Act and Section 803(B)(2) the NYSE American Company Guide and “independent” and “financially literate” within the meaning of such terms in NI 52-110. In accordance with Section 407 of the United States
Sarbanes-Oxley Act of 2002
and Item 407(d)(5)(ii) and (iii) of Regulation S-K, the Board of Directors has identified Tracy A. Stevenson as the “Audit Committee Financial Expert.” A copy of the Audit Committee Charter is available on the Corporation’s website at
www.vistagold.com
.
The responsibilities of the Audit Committee include recommending to the Board an accounting firm to be nominated for Shareholder approval as the Corporation’s independent auditor. The Audit Committee is responsible for recommending to the Board that the Corporation’s financial statements and the related management’s discussion and analysis be included in its Annual Report. The Audit Committee took a number of steps in making this recommendation for fiscal year 2018.
First, the Audit Committee discussed with Plante Moran those matters required to be discussed by Statement on Auditing Standards No. 61, as superseded by Statement of Auditing Standards 114 – the Auditor’s Communication with Those Charged with Governance, including information regarding the scope and results of the audit. These communications and discussions are intended to assist the Audit Committee in overseeing the financial reporting and disclosure process.
Second, the Audit Committee discussed with Plante Moran the independence of Plante Moran and received from Plante Moran the letter required by applicable standards of the Public Company Accounting Oversight Board for independent auditor communications with Audit Committees concerning independence as may be modified or supplemented, concerning its independence as required under applicable independence standards for auditors of public companies. This discussion and disclosure assisted the Audit Committee in evaluating such independence.
Finally, the Audit Committee reviewed and discussed, with the Corporation’s management and Plante Moran, the Corporation’s audited consolidated balance sheets at December 31, 2018, and consolidated statements of income, cash flows and shareholders’ equity for the fiscal year ended December 31, 2018 and the related management discussion and analysis to be included in the Corporation’s Annual Report on Form 10-K.
Based on the discussions with Plante Moran concerning the audit, the independence, the financial statement review, and such other matters deemed relevant and appropriate by the Audit Committee, the Audit Committee recommended to the Board that the Corporation’s financial statements and the related management’s discussion and analysis be included in the Corporation’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018.
Submitted on behalf of the Audit Committee
Tracy A. Stevenson (Chairman)
Michael B. Richings
John M. Clark
Executive Officers
As of March 9, 2019, the executive officers of the Corporation, their ages and their business experience and principal occupation during the past five years were as follows:
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Name, Position and Age
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Held Office Since
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Business Experience During Past Five Years
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Frederick H. Earnest, President, Chief Executive Officer and Director
Age - 57
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August 1, 2007 – January 1, 2012 (President, Chief Operating Officer and Director) January 1, 2012 (President, Chief Executive Officer and Director)
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Chief Executive Officer of the Corporation since January 2012; President of the Corporation since August 2007; Director of Midas Gold Corp. from April 2011 to April 2014; Former Chief Operating Officer of the Corporation from August 2007 to January 2012. Mr. Earnest has over 30 years of experience in the mining industry where he has worked in the development, construction, operation and turnaround of gold, base metal, and industrial minerals operations. He has extensive international experience with more than 10 years in Latin America. Mr. Earnest holds a B.S. in mining engineering from the Colorado School of Mines.
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John F. Engele, Senior Vice President and Chief Financial Officer
Age - 67
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May 29, 2012
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Senior Vice President and Chief Financial Officer of the Corporation since May 29, 2012. Mr. Engele has over 30 years of experience in the gold mining industry where he has worked with senior and mid-tier gold producers. He served as Senior Vice President and Chief Financial Officer of Electrum Ltd., a privately funded global gold exploration company, from May 2007 to May 2012. He has also served in senior financial management positions with AngloGold Ashanti Limited (North America Division), Queenstake Resources and Echo Bay Mines Ltd. where he was involved in mine construction, mine start-ups and mine operations. He also has significant experience in regulatory reporting, corporate governance and strategic planning. He holds an MBA from Regis University and holds a CPA, CMA designation in Canada.
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John W. Rozelle, Senior Vice President Age - 64
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August 1, 2012
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Senior Vice President of the Corporation since August 2012; Vice President of Technical Services of the Corporation from May 2011 to August 2012. Manager of the Mineral Resource Division of Tetra Tech from September 2007 to May 2011. Mr. Rozelle has more than 39 years of experience as an economic geologist in the mining industry with both operating and consulting companies. Mr. Rozelle has experience with a large number of gold deposits worldwide, having been involved with the estimation and quantification of mineral resources, as well as management of economic studies as a project manager. Mr. Rozelle has a B.A. in geology from State University of New York Platsburg and a M.Sc. in geochemistry from the Colorado School of Mines. Mr. Rozelle is a “Qualified Person” under Canadian National Instrument 43-101 guidelines.
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To our knowledge, there is no arrangement or understanding between any of our officers and any other person, including directors, pursuant to which the officer was selected to serve as an officer.
Executive Compensation
Compensation Discussion and Analysis
Compensation Program Objectives
The Corporation’s compensation programs and policies are designed to be competitive with similar mining companies and to recognize and reward executive performance consistent with the achievement of the Corporation’s objectives. The programs and policies are intended to provide the Corporation with the means to attract and retain capable and experienced executive talent. The Compensation Committee’s role and philosophy is to ensure that the Corporation’s compensation practices, as applied to the actual compensation paid to the Corporation’s executive officers, are aligned with the Corporation’s overall business objectives and with Shareholder interests.
The Compensation Committee considers a variety of factors when determining compensation policies and programs and individual compensation levels. These factors include the long-range interests of the Corporation and its Shareholders, overall technical, professional and experience needs of the Corporation, the competitive requirements to attract and retain key employees, and the Compensation Committee’s assessment of the position requirements for each executive’s role in the Corporation. The Compensation Committee does not weigh any of these factors more heavily than others and does not use any formula to assess these factors, but rather considers each factor in its judgment and discretion.
The Compensation Committee has the authority to engage and compensate, at the expense of the Corporation, any outside advisor that it determines necessary to permit it to carry out its duties. Commencing on May 25, 2018, the Compensation Committee engaged Hugessen Consulting Inc. (“
Hugessen
”), an independent compensation advisor, to review director and executive officer compensation. Fees billed to the Corporation by Hugessen
during 2018 in connection with the review of director and executive officer compensation were C$36,789.
The Corporation did not pay any fees to Hugessen or any other compensation consultant for any other services in 2018.
The Compensation Committee was assisted by
Hugessen
in determining appropriate levels of compensation for the Corporation’s directors and executive officers.
Hugessen
compiled data from publicly available information for all categories of compensation (directors’ fees, executive base salaries, share-based incentives, and short term incentives) from a peer group of companies in the mining sector. Hugessen’s peer group of companies was developed using one or more of the following selection criteria:
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Canadian and/or U.S. listed;
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market capitalization substantially similar to the Corporation;
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gold, diversified metals and mining, or precious metals/minerals industry; and/or
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●
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stage of development, complexity of operation/business strategy similar to the Corporation.
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Based upon considerations of the selection criteria, the following peer group of companies was used by Hugessen for its compensation review, (collectively, the “
Peer Group
”).
Belo Sun Mining Corp.
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Liberty Gold Corp.
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Excelsior Mining Corp.
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Midas Gold Corp.
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Gabriel Resources Ltd.
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NuLegacy Gold Corporation
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Golden Minerals Company
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Orezone Gold Corporation
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Goldquest Mining Corp.
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Pershing Gold Corporation
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International Tower Hill Mines Ltd.
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Star Diamond Corporation
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INV Metals Inc.
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Victoria Gold Corp.
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In 2013, consistent with the principle of aligning corporate compensation with corporate objectives and Shareholders’ interests, all members of senior management, in consultation with the Compensation Committee, accepted a 20% reduction to base compensation together with the elimination of discretionary incentive payments under the Corporation’s Short Term Incentive Plan (“
STIP
”). These changes to management compensation took
effect August 1, 2013. In July 2015, with an effective date of August 1, 2015, the Board restored one-half of these compensation reductions, resulting in all members of senior management remaining at a 10% reduction to base compensation. In addition, at the same time, the Board authorized a one-time payment to each member of senior management, equal to 10% of each respective senior manager’s base salary, to be paid in cash or the equivalent value in RSUs, or a combination thereof, at the recipient’s option. Similarly, in 2016, the Board authorized a one-time payment to each member of senior management, equal to 10% of each respective senior manager’s base salary, to be paid in cash or the equivalent value in RSUs, or a combination thereof, at the recipient’s option. In July 2017, with an effective date of August 1, 2017, the Board restored the remaining 10% reduction to base compensation. In addition, a one-time payment equal to 7/10 of 10% of each respective manager’s base salary was paid in cash to each member of senior management. The Board determines when it is appropriate to grant annual discretionary incentive awards. No annual incentive awards were granted in years 2012-2017. Based on the achievement of goals and objectives in 2017 an incentive award was paid in March 2018. No incentive award for 2018 is contemplated.
Role of Executive Officers in Determining Compensation
The Compensation Committee reviews and recommends to the Board the compensation policies and programs of the Corporation, as well as salary and benefit levels for individual executives. The President and Chief Executive Officer of the Corporation may not be present during meetings of the Compensation Committee when his compensation is being discussed. The executive officers prepare and present to the Compensation Committee, such surveys, analyses, reports and recommendations, as the Compensation Committee may request, including independent industry surveys. The Board makes the final determination regarding the Corporation’s compensation programs and practices.
Elements of the Corporation’s Compensation Program for Fiscal Year 2018
The 2018 compensation plan for executive officers was comprised of the following components: base salary, cash-based awards under the STIP, awards of Phantom Units (defined below) and share-based awards under the Stock Option Plan and the LTIP. Until such time as Shareholders approve the Unallocated Awards Under the LTIP Resolution at the Meeting, the Company is not able to make additional grants under the LTIP, however, the LTIP remains in place and governs the currently outstanding LTIP Awards.
There is no set policy or target regarding allocation between cash and non-cash elements of the Corporation’s compensation program. The Compensation Committee reviews annually the total compensation package of the Corporation’s executives on an individual basis, against the backdrop of the compensation goals and objectives and the industry compensation data described above, and makes recommendations to the Board concerning the individual components of compensation.
Base Salary
As a general rule for establishing base salaries, the Compensation Committee periodically reviews competitive market data for each executive position and determines placement of the employee at an appropriate level in a range. Compensation levels are typically negotiated with the candidate for the position prior to his or her final selection as an executive officer. Salaries for the Corporation’s executive officers are reviewed at least annually to reflect external factors such as market and inflation as well as overall corporate performance and the results of internal performance reviews.
Short Term Incentive Plan (STIP)
The STIP is intended to allow executive officers and management personnel to earn discretionary incentive payments based on a percentage of base salary. All executive officers and management personnel participate in the STIP. Mr. Earnest, the President and Chief Executive Officer of the Corporation, is entitled to earn a discretionary incentive payment in an amount determined annually by the Board. The performance of the President and Chief Executive Officer is, however, generally evaluated using the same performance objectives applied to other executive officers and management personnel.
The Compensation Committee determines executive incentive compensation considering three primary factors: (1) corporate liquidity; (2) achievement of overall corporate goals, which are typically established early in each year; and, (3) individual performance.
The following table summarizes the criteria and weighting used to evaluate the performance of the executive officers. It summarizes the target and maximum discretionary incentive payments contemplated under the STIP.
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Performance Objectives and Relative Importance
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Target Bonus as a
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Maximum Bonus as a
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Bonus paid in 2018 as a
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Corp. Performance
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Financial
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Project Advance
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Compliance
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Leadership Succession
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percentage of salary
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percentage of salary
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percentage of salary
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Frederick H. Earnest, President and Chief Executive Officer
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High
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High
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High
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High
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High
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50%
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100%
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23%
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John F. Engele, Senior Vice President and Chief Financial Officer
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High
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High
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Medium
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High
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Medium
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50%
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75%
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13%
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John W. Rozelle, Senior Vice President
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High
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Medium
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High
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High
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Medium
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50%
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75%
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22%
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In 2018, the Corporation granted awards under the STIP to incentivize and reward the achievement of corporate goals and objectives. During 2012 to 2017, the Corporation did not grant annual awards under the STIP. During such time, RSUs (defined below) were granted to incentivize and reward the achievement of corporate goals and objectives. See “Summary Compensation Table” below.
Phantom Units
Commencing 2018, the Corporation introduced a phantom unit compensation program for employees as a tool to link employee cash compensation to the Corporation’s share price performance. The Corporation granted a total of 265,000 phantom units of the Corporation (each, a “
Phantom Unit
”) to certain employees during the year ended December 31, 2018. The value of each Phantom Unit is equal to the Corporation’s share price on the vesting date and is payable in cash. The Phantom Units vest on fixed future dates provided the recipient continues to be affiliated with Vista on those dates.
Share-Based Incentive Awards
The Corporation provides share-based incentives to employees and directors under two separate share-based incentive plans, the Stock Option Plan and the LTIP (together, the “
Plans
”), which are designed to align compensation with the enhancement of shareholder value. The Plans are administered by the Compensation Committee (as delegated by the Board).
The Stock Option Plan provides for grants
of options
to purchase Common Shares (“
Options
”)
to directors, officers, employees and consultants of the Corporation or its subsidiaries (each, an “
Optionee
”).
The LTIP provides for grants of RSUs and Restricted Stock to directors, officers, employees and consultants of the Corporation or its subsidiaries (each, an “
LTIP Participant
”). If the proposed amendments to the LTIP are approved, non-employee directors will no longer be eligible for grants of RSUs and Restricted Stock under the LTIP. The Plans are designed to be complementary.
The following table sets out the maximum number of Common Shares issuable pursuant to the terms of the Plans and applicable securities
laws.
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Maximum Number of Common Shares Issuable:
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Under Each Plan
(
1
)
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Under the Plans in Aggregate
(1)
(2)
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To Non-Employee Directors
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At any Time to Insiders of the Corporation
(1)
(2)
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Issued to Insiders Within a Calendar Year
(1)
(2)
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To Any One Individual
(1)
(2)
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To Any One Individual Within a Calendar Year
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Stock Option Plan
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10%
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10%
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The lesser of: 1%
(
1
)
and an annual value of $150,000
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10%
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10%
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5%
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3,000,000 Common Shares
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LTIP
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10%
(3)
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10%
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The lesser of: 1%
(
1
)
and an annual value of $150,000
(3)
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10%
(3)
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10%
(3)
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N/A
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3,000,000 Common Shares
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Notes:
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(1)
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To be calculated based on the aggregate number of issued and outstanding Common Shares on a non-diluted basis.
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(2)
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Together with all other security based compensation of the Corporation.
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(3)
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At the Meeting, shareholders will be asked to consider and, if thought appropriate, approve, an ordinary resolution approving amendments to the LTIP such that non-employee directors will be excluded from participating in the LTIP and the maximum number of Common Shares issuable pursuant to the LTIP shall be 5% of the total number of issued and outstanding Common Shares on a non-diluted basis.
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As of March 9, 2019, the total number of Common Shares issuable under the Stock Option Plan and LTIP comprised (i) 1,303,749 Common Shares (or 1.3% of the total number of issued and outstanding Common Shares) issuable upon the due exercise of vested Options granted under the Stock Option Plan and (ii) 683,670 Common Shares (or 0.7% of the total number of issued and outstanding Common Shares) issuable upon the vesting of RSUs granted under the LTIP. The maximum number of Common Shares which may be reserved, set aside and made available for issue under the Stock Option Plan and LTIP combined is a variable number equal to 10% of the issued and outstanding Common Shares on the date of the grant on a non-diluted basis. As of March 9, 2019, an aggregate of 1,987,419 Common Shares (or 2.0% of the total number of issued and outstanding Common Shares) are issuable under the Stock Option Plan and LTIP pursuant to outstanding Options and RSUs and 8,055,175 Common Shares (or 8.0% of the total number of issued and outstanding Common Shares) in aggregate remain available for future grants under the Stock Option Plan and LTIP. Assuming that the LTIP Amendment Resolution is passed at the Meeting, subsequent to the Meeting an aggregate of 4,337,627 Common Shares (or 4.3% of the total number of issued and outstanding Common Shares) in aggregate will remain available for future grants under the LTIP.
Annual Burn Rates of Options and LTIP Awards
In accordance with the requirements of section 613 of the TSX Company Manual, the following table sets out the burn rate of Options and LTIP Awards as of the end of the financial year ended December 31, 2018 and for the two preceding financial years. The burn rate is calculated by dividing the number of Options or LTIP Awards, as applicable, granted under the Plans during the relevant fiscal year by the weighted average number of securities outstanding for the applicable financial year.
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8
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7
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6
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Year ended December
31, 2018
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Year ended December
31, 2017
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Year ended December
31, 2016
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Number of Options granted under the Stock Option Plan
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1,142,000
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Nil
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50,000
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Number of LTIP Awards granted under the LTIP
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319,000
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966,003
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1,057,987
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Weighted average of outstanding securities
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99,738,461
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98,627,255
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89,064,260
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Annual Burn Rate: Options
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1.14%
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Nil
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0.06%
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Annual Burn Rate: LTIP
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0.3%
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1.0%
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1.1%
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Further details of the objectives and operations of each of the Plans are discussed in the sections below.
Stock Option Plan
The Compensation Committee has discretion to determine (i) the total number of optioned shares made available under the Stock Option Plan, (ii) the directors, officers, employees and consultants of the Corporation or its subsidiaries who are eligible to receive Options, (iii) the time when and the price at which
Options
will be granted and exercised, and (iv) the conditions and restrictions on the exercise of
Options
.
The exercise price of an Option must not be less than the closing price of the Common Shares on (i) in the case of Options with an exercise price in US dollars, the NYSE
American
, or (ii) in the case of Options with an exercise price in Canadian dollars, the TSX,
in either case, on the last trading day preceding the date of grant.
Options become exercisable only after they vest in accordance with the respective option agreement and must expire no later than ten years from the date of grant; provided that, if the expiry date of an Option occurs during a blackout period, such expiry date will be extended pursuant to the terms of the Stock Option Plan. An Optionee has no rights whatsoever as a Shareholder in respect of unexercised Options. Options are subject to withholding taxes at the discretion of the Corporation.
Causes of Cessation of Options
Pursuant to the terms of the Stock Option Plan, if any Optionee ceases to be a director, officer or employee of the Corporation or its subsidiaries, as a result of termination for “cause” (as defined in the Stock Option Plan), all unexercised Options will immediately terminate. If an Optionee ceases to be a director, officer or employee of the Corporation, or its subsidiaries, or ceases to be a consultant to the Corporation, for any reason other than termination for cause, his or her Options may be exercised up to, but not after, the earlier of 30 days from the date of ceasing to be a director, officer, employee or consultant, or the expiry date of the
Option
. In the event of death of an Optionee, the legal representatives of such Optionee have the right to exercise the Options at any time up to, but not after, the earlier of 90 days from the date of death or the expiry date of such Option.
No Assignment or Transfer of Options
An Option is not transferable or assignable other than by will or other testamentary instrument or the laws of succession or administration and may be exercisable during the lifetime of the Optionee only by such Optionee.
Long Term Equity Incentive Plan (LTIP)
The Compensation Committee determines the persons to whom LTIP Awards are to be made; the type, size, terms and conditions of LTIP Awards; the prices to be paid for LTIP Awards; interprets the LTIP; adopts, amends and rescinds administrative guidelines and other rules and regulations relating to the LTIP; and makes all other determinations and takes all other actions it believes are necessary or advisable for the implementation and administration of the LTIP.
The LTIP provides that the Compensation Committee may, in its sole discretion, grant awards of RSUs and/or Restricted Stock to any LTIP Participant. All grants of LTIP Awards are subject to the terms and conditions of an LTIP Award agreement entered into between the Corporation and the LTIP Participant at the time the LTIP Award is granted.
RSUs are not Common Shares, but rather represent a right to receive from the Corporation at a future date newly-issued Common Shares. The Compensation Committee has the authority to make the receipt of Common Shares under the RSUs conditional upon the expiry of a time-based vesting period, the attainment of specified performance goals or such other factors as the Compensation Committee determines in its discretion. Common Shares issuable pursuant to the vesting of RSUs will be registered in the name of the LTIP Participant and upon such issuance of Common Shares the vested RSUs will be cancelled. RSUs are settled in Common Shares, unless (i) the
Company withholds shares equivalent to the value of employee withholding tax obligations which result from RSUs vesting; or (ii) the Corporation offers the LTIP Participant the option to receive cash in lieu of Common Shares based on the Fair Market Value (as defined in the LTIP) at the time of settlement.
Restricted Stock are Common Shares which are subject to such restrictions as the Compensation Committee may impose, such as 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. The Compensation Committee has the authority to establish the terms for the lapse of restrictions applicable to Restricted Stock conditional upon the expiry of a time-based vesting period, the attainment of specified performance goals or such other factors as the Compensation Committee may determine in its discretion. Upon grant of Restricted Stock, the Corporation issues and holds share certificates registered in the name of such LTIP Participants. The share certificates bear a legend referring to the LTIP Award agreement and the possible forfeiture of such shares of Restricted Stock.
The duration of the vesting period and other vesting terms applicable to grants of RSUs or Restricted Stock is determined at the time of the grant by the Compensation Committee and such vesting period must be a minimum of one year in duration. Notwithstanding certain provisions that allow the Compensation Committee to accelerate vesting of an award under the LTIP, the Compensation Committee cannot use this discretion to accelerate the vesting of an award under the LTIP to a period of less than one year in duration.
In administering the LTIP, the Compensation Committee conducts bi-annual reviews of corporate performance and the LTIP Participants’ performance to determine whether performance goals have been achieved. The Compensation Committee also takes into consideration past LTIP Award grants and existing unvested LTIP Awards when considering whether to grant new LTIP Awards. The Compensation Committee typically sets specific goals for each LTIP Participant, which are aligned with items of corporate strategy. Performance goals in the past included items such as attainment of certain regulatory permits relating to Mt Todd; completion of economic and technical feasibility studies on Mt Todd, including the preliminary feasibility study for Mt Todd updated on March 2, 2018; and the achievement of certain share price performance criteria.
In 2018, overall corporate goals were divided into three broad categories:
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1.
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Corporate:
achieve cost control and financing objectives,
maintain compliance
with all securities regulations
, and conduct the Corporation’s business in an ethical and environmentally sound manner
while
ensuring all operations are conducted to protect employee safety and health.
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2.
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Strategic: increase shareholder value by achieving a valuation for Common Shares that reasonably reflects the fair value of the Mt Todd gold project.
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3.
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Mt Todd: attain project permitting and optimization,
including
identifying and completing optimization initiatives
.
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Causes of Cessation of LTIP Awards
Except as otherwise determined by the Compensation Committee, upon a Termination Date (as defined in the LTIP) that occurred as a result of the death or disability of the LTIP Participant, all vested LTIP Awards will enure to the benefit of the LTIP Participant’s heirs, executors and administrators. Except as otherwise determined by the Compensation Committee, if an LTIP Participant’s employment, term of office or engagement is terminated for cause or in the case of a consultant participant, for breach of contract, any LTIP Awards held by the LTIP Participant (whether vested or not) are forfeited to the Corporation. The LTIP provides for a number of instances that permit the Compensation Committee to accelerate the vesting of any outstanding LTIP Awards.
Unless otherwise determined by the Compensation Committee or the Board at or after the date of grant, if an LTIP Participant ceases to be employed or engaged by the Corporation or its subsidiaries within 12 months following a Change in Control (as defined in the LTIP) for any reason other than for cause, voluntary resignation (other than for good reason (as defined by the LTIP)), retirement, death or disability, each LTIP Award held by that LTIP Participant that is not fully vested on the date at which such person ceases to be a director, officer or consultant shall become free of all restrictions, conditions and limitations, and become fully vested.
The Board shall have the discretion to authorize such steps to be taken as it may consider to be equitable and appropriate in the event of any Share Reorganization, Corporate Reorganization or Special Distribution (each of such terms as defined in the LTIP), including the acceleration of vesting in order to preserve proportionately the rights, value and obligations of the LTIP Participants holding LTIP Awards in such circumstances.
No Assignment or Transfer of LTIP Awards
No assignment or transfer of LTIP Awards, whether voluntary, involuntary, by operation of law or otherwise, vests any interest or right in such LTIP Awards whatsoever in any assignee or transferee. Immediately upon any assignment or transfer, or any attempt to make the same, such LTIP Awards will terminate, provided that any LTIP Awards held by a LTIP Participant that have vested at the Termination Date will enure to the benefit of the LTIP Participant’s heirs, executors and administrators.
Amendments to the Plans, Options and LTIP Award Agreements
Subject to the rules, regulations and policies of the TSX, the NYSE American and applicable law, the Compensation Committee may, without notice or Shareholder approval, make certain amendments to the Plans or a specific Option or LTIP Award for the purposes of: (i) altering, extending or accelerating the terms of vesting; (ii) amending the general vesting provisions; (iii) changing termination provisions; (iv) accelerating the expiry date; (v) amending termination of employment provisions under the LTIP; (vi) making amendments to protect LTIP Participants; (vii) curing or correcting any ambiguity, defect, inconsistent provision or manifest error; (viii) amending definitions; (ix) making amendments of a “housekeeping” or administrative nature; (x) effecting amendments necessary to comply with the provisions of applicable laws, or desirable for any advantages of any tax law; and (xi) any other amendment, whether fundamental or otherwise, not requiring Shareholder approval under applicable law. No amendment of the Plans may contravene applicable laws, including the rules, regulations, and policies of the TSX and the NYSE
American
.
Shareholder approval must be obtained
for amendments to the Plans
that
: (i)
increase the maximum number of Common Shares issuable under the
Plans;
(ii) reduce the exercise price of an Option held by a non-insider of the Corporation; (iii) extend the term of any Options held by a non-insider of the Corporation, other than an extension during a Black Out Period; (iv)
increase the number of Common Shares issuable to
insiders of the Corporation
or to non-employee directors participants, as applicable; (v) permit Options to be transferrable or assignable; (vi)
amend the amendment provisions in the
Plans; (vii) add any form of financial assistance to an LTIP Participant;
or (vii
i
) where approval is required by the Exchanges (whether it be Exchange or shareholder approval).
Approval by disinterested Shareholders is required for amendments that: (i) could result in the number of Common Shares issuable to insiders of the Corporation exceeding 10% of the issued and outstanding Common Shares; (ii) reduce the exercise price of an Option (including cancellation and reissuance at a lower exercise price) held by insiders of the Corporation; (iii) extend the term of any Option or LTIP Award held by insiders of the Corporation, other than an extension during a Black Out Period; and (iv) require disinterested Shareholder approval under applicable law (including rules of the Exchanges).
Perquisites and Other Personal Benefits
The Corporation’s named executive officers are not generally entitled to significant perquisites or other personal benefits not offered to the Corporation’s employees. The Corporation does sponsor a qualified tax-deferred savings plan in accordance with the provisions of Section 401(k) of the Tax Code, which is described further below under the heading “Executive Compensation - Pension and Retirement Savings Plans”.
Compensation for the Corporation’s Named Executive Officers in 2018
The Corporation’s named executive officers (defined below) for the fiscal year ended December 31, 2018 were Frederick H. Earnest, who served as the Corporation’s President and Chief Executive Officer, John F. Engele, who served as the Corporation’s Senior Vice President and Chief Financial Officer and John W. Rozelle, who served as the Corporation’s Senior Vice President.
The Corporation’s employment agreements with our named executive officers are described below under the heading “Executive Compensation - Executive Employment Agreements”. The compensation paid to the Corporation’s named executive officers is described below under the heading “Executive Compensation - Summary Compensation Table”.
Effects of Regulatory Requirements on Executive Compensation
Section 409A of the Tax Code generally affects the granting of most forms of deferred compensation which were not earned and vested prior to 2005. The Corporation’s compensation program is designed to comply with the final regulations of the U.S. Internal Revenue Service and other guidance with respect to Section 409A of the Tax Code, and we anticipate that the Compensation Committee will continue to design and administer the Corporation’s compensation programs accordingly.
Various rules under current generally accepted accounting practices impact the manner in which the Corporation accounts for grants of Options to employees, including executive officers, on its financial statements. While the Compensation Committee reviews the effect of these rules (including FAS 123(R)) when determining the form and timing of grants of Options to the Corporation’s employees, including executive officers, this analysis is not necessarily the determinative factor in any such decision regarding the form and timing of these grants.
Compensation Committee Interlocks and Insider Participation
No executive officer of the Corporation is or has been a director or a member of the Compensation Committee of another entity having an executive officer who is or has been a director or a member of the Compensation Committee of the Corporation.
Compensation Committee Report on Executive Compensation
The Compensation Committee has reviewed and discussed this Compensation Discussion and Analysis with management and, based on such review and discussions, the Compensation Committee recommended to the Board of the Corporation that this Compensation Discussion and Analysis be included in this Information Circular.
Submitted on behalf of the Compensation Committee
John M. Clark (Chairman)
W. Durand Eppler
Tracy A. Stevenson
The above filed report of the Compensation Committee will not be deemed to be “soliciting material” or to be “filed” with the SEC, nor shall such information be incorporated by reference in any of the Corporation’s filings under the United States Securities Act of 1933 or the Exchange Act, each as amended, except to the extent that we specifically so incorporate the same by reference.
Summary Compensation Table
The table below sets forth, for the fiscal years indicated, all compensation awarded to, paid to or earned by (i) those individuals who, during the fiscal year ended December 31, 2018, served as the Corporation’s President and Chief Executive Officer, (ii) Senior Vice President and Chief Financial Officer and (iii) the Corporation’s one other most highly compensated executive officer during the fiscal year ended December 31, 2018. These officers are referred to in this Information Circular as the Corporation’s “named executive officers”.
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Name and Principal Position
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Year
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Salary
(
1
)
($)
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Bonus
(2)
($)
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Stock Awards
(
3
)
($)
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Option Awards
(
3
)(
4
)
($)
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All Other Compensation
(
5
)(
6
)
($)
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Total
($)
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Frederick H. Earnest,
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2018
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325,000
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75,000
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164,160
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104,139
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10,900
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679,199
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President and Chief Executive Officer
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2017
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325,000
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–
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231,681
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–
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10,800
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567,481
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2016
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292,500
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–
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260,320
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–
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10,600
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563,420
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John F. Engele,
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2018
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280,000
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35,000
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70,440
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44,972
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10,900
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441,312
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Senior Vice President
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2017
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280,000
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–
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100,427
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–
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10,800
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391,227
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and Chief Financial Officer
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2016
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280,000
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–
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105,670
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–
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10,600
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396,270
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John W. Rozelle,
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2018
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225,000
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50,000
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45,800
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28,859
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8,250
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357,909
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Senior Vice President
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2017
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225,000
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–
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64,367
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–
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10,800
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300,167
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2016
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225,000
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–
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67,730
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–
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10,600
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303,330
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______________________________
(1)
Effective on August 1, 2013, senior management accepted a 20% reduction to base salary. Effective on August 1, 2015, the Board of Directors authorized: (i) restoration of one-half of the 20% reduction in base salary, resulting in a remaining 10% reduction to base salary; and (ii) a one-time payment equal to 10% of base salary, of which Mr. Earnest was paid in the equivalent value in RSU’s, while Mr. Engele and Mr. Rozelle were paid in cash. Similarly, in 2016, a one-time payment equal to 10% of base salary, of which Mr. Earnest was paid in the equivalent value in RSU’s, while Mr. Engele and Mr. Rozelle were paid in cash. In July 2017, with an effective date of August 1, 2017, the Board restored the remaining 10% reduction to base compensation. In addition, a one-time payment equal to 7/10 of 10% of each respective manager’s base salary was paid in cash to each member of senior management.
(2)
In first quarter of 2018, the Corporation paid a cash bonus pursuant to the STIP to each named executive officer based on achievement of performance goals.
(
3
)
For assumptions regarding the valuation of Awards, phantom units and Options, see note 6 to the Corporation’s audited annual financial statements for the year ended December 31, 2018 as filed with the Corporation’s Form 10-K on February 22, 2019.
(
4
)
The amounts in this column represent the dollar amounts for the aggregate grant-date fair value computed in accordance with FASB ASC Topic 718, of Options granted pursuant to the Stock Option Plan.
(
5
)
Perquisites and other personal benefits for the most recently completed financial year do not exceed $10,000 for any of the named executive officers unless otherwise noted.
(
6
)
Represents the Corporation’s contribution under the Corporation’s Retirement Savings Plan, except where otherwise indicated. The named executive officers of the Corporation participate in this plan on the same basis as all other employees of the Corporation. See “Pension and Retirement Savings Plans”.
Executive Employment Agreements
Employment Agreement with Frederick H. Earnest
. Frederick H. Earnest has been engaged under an employment contract effective September 22, 2006, pursuant to which he was initially engaged to serve as Senior Vice President of Project Development of the Corporation and Vista Gold U.S., Inc., its wholly-owned subsidiary. From August 1, 2007 to January 1, 2012, Mr. Earnest served as President and Chief Operating Officer of the Corporation and of Vista Gold U.S., Inc., which was reflected in an employment agreement dated March 17, 2009.
Since January 1, 2012, Mr. Earnest has served as President and Chief Executive Officer of the Corporation and Vista Gold U.S., Inc. Effective March 17, 2009, Mr. Earnest’s employment agreement was amended and restated, and it was further amended effective January 1, 2012. On November 1, 2012, Mr. Earnest entered a new employment agreement, which was amended effective March 12, 2014 and January 1, 2016.
Pursuant to the terms of his amended employment contract, Mr. Earnest is to receive an annual base salary of $325,000 and annual discretionary incentive payments.
The grant of any incentive payment shall be in the sole discretion of the Board and shall be earned only after the grant thereof by the Board
. Mr. Earnest’s eligibility to receive such incentive payment is conditioned upon his continued employment, both at the time the Board considers the grant of incentive payments and at the time such incentive payments are actually granted and paid. Mr. Earnest is also eligible to receive other benefits made available to the Corporation’s senior executive officers, including participation in any benefit plans and policies. Effective August 1, 2013, Mr. Earnest received a 20% reduction to his salary and elimination of discretionary incentive payments under the STIP. In July
2015,
with an effective date of August 1, 2015, the Board restored one-half of the 20% compensation reduction, resulting in a remaining 10% reduction to Mr. Earnest’s base compensation. In addition, at the same time, the Board
authorized a one-time payment equal to 10% of Mr. Earnest’s base salary, which was paid in the equivalent value in RSU’s, at Mr. Earnest’s option. Similarly, in 2016, the Board authorized a one-time payment equal to 10% of Mr. Earnest’s base salary, which was paid in the equivalent value in RSU’s, at Mr. Earnest’s option. In July 2017, with an effective date of August 1, 2017, the Board restored the remaining 10% reduction to base compensation for Mr. Earnest. In addition, a one-time payment equal to 7/10 of 10% Mr. Earnest’s base salary was paid in cash. For the year ended December 31, 2018, in addition to his annual salary, Mr. Earnest received a cash bonus of $75,000 pursuant to the STIP based on achievement of performance goals.
On July 24, 2018, the Corporation granted Mr. Earnest 114,000 phantom units. The phantom units vest in three equal parts: 1/3 at 12 months from grant, 1/3 at 24 months from grant, and 1/3 at 36 months from grant. If Mr. Earnest is no longer employed by or contractually affiliated with Vista at the vesting date, he will forfeit the right to his phantom units. At each vesting date, each phantom unit will be settled in cash at an amount equal to Vista’s closing share price on that day.
In addition, in 2016, the Corporation granted Mr. Earnest 306,279 RSUs to receive 306,279 Common Shares under the LTIP. In 2017, the Corporation granted to Mr. Earnest 277,000 RSUs to receive 277,000 Common Shares under the LTIP. In 2018, the Corporation granted to Mr. Earnest 126,000 RSUs to receive 126,000
Common Shares under the LTIP. See “
Executive Compensation -
Outstanding Equity Awards and Options Exercised as at December 31, 2018 Table” below for a description of vesting and other terms applicable to Mr. Earnest’s Options.
Employment Agreement with John F. Engele
. John F. Engele has been engaged under an employment contract effective May 29, 2012, pursuant to which he was engaged to serve as Senior Vice President and Chief Financial Officer of the Corporation and Vista Gold U.S., Inc., its wholly-owned subsidiary. Mr. Engele entered into a new employment agreement effective November 1, 2012, which was amended on March 12, 2014 and January 1, 2016.
Pursuant to the terms of his amended employment contract, Mr. Engele is to receive an annual base salary of $280,000 and annual discretionary incentive payments.
The grant of any incentive payment shall be in the sole discretion of the Board and shall be earned only after the grant thereof by the Board
. Mr. Engele’s eligibility to receive such incentive payment is conditioned upon his continued employment, both at the time the Board considers the grant of incentive payments and at the time such incentive payments are actually granted and paid. Mr. Engele is also eligible to receive other benefits made available to the Corporation’s senior executive officers, including participation in any benefit plans and policies. Effective August 1, 2013, Mr. Engele received a 20% reduction to his salary and elimination of discretionary incentive payments under the STIP. In July
2015,
with an effective date of August 1, 2015, the Board restored one-half of the 20% compensation reduction, resulting in a remaining 10% reduction to Mr. Engele’s base compensation. In addition, at the same time, the Board authorized a one-time payment equal to 10% of Mr. Engele’s base salary, which was paid in cash, at Mr. Engele’s option. Similarly, in 2016, the Board authorized a one-time payment equal to 10% of Mr. Engele’s base salary, which was paid in cash, at Mr. Engele’s option. In July 2017, with an effective date of August 1, 2017, the Board
restored the remaining 10% reduction to base compensation for Mr. Engele. In addition, a one-time payment equal to 7/10 of 10% Mr. Engele’s base salary was paid in cash. For the year ended December 31, 2018, in addition to his annual salary, Mr. Engele received a cash bonus of $35,000 pursuant to the STIP based on achievement of performance goals.
On July 24, 2018, the Corporation granted Mr. Engele 49,000 phantom units. The phantom units vest in three equal parts: 1/3 at 12 months from grant, 1/3 at 24 months from grant, and 1/3 at 36 months from grant. If Mr. Earnest is no longer employed by or contractually affiliated with Vista at the vesting date, he will forfeit the right to his phantom units. At each vesting date, each phantom unit will be settled in cash at an amount equal to Vista’s closing share price on that day.
In addition, in 2016, the Corporation granted Mr. Engele 134,000 RSUs to receive 134,000 Common Shares under the LTIP. In 2017, the Corporation granted to Mr. Engele 120,000 RSUs to receive 120,000 Common Shares under the LTIP. In 2018, the Corporation granted to Mr. Engele 54,000 RSUs to receive 54,000
Common Shares under the LTIP. See “Executive Compensation - Outstanding Equity Awards and Options Exercised as at December 31, 2018 Table” below for a description of vesting and other terms applicable to Mr. Engele’s Options.
Employment Agreement with John W. Rozelle
. John W. Rozelle has been engaged under an employment contract effective May 16, 2011, pursuant to which he was initially engaged to serve as Vice President Technical Services of the Corporation and Vista Gold U.S., Inc., its wholly-owned subsidiary. Mr. Rozelle entered into a new employment agreement on August 1, 2012, Mr. Rozelle has served as Senior Vice President of the Corporation and Vista Gold U.S., Inc.. Effective November 1, 2012, Mr. Rozelle entered a new employment agreement, which was amended effective January 1, 2016.
Pursuant to the terms of his amended employment contract, Mr. Rozelle is to receive an annual base salary of $225,000 and annual discretionary incentive payments.
The grant of any such incentive payment shall be in the sole discretion of the Board and shall be earned only after the grant thereof by the Board
. Mr. Rozelle’s eligibility to receive such incentive payment is conditioned upon his continued employment, both at the time the Board
considers the grant of incentive payments and at the time such incentive payments are actually granted and paid. Mr. Rozelle is also eligible to receive other benefits made available to the Corporation’s senior executive officers, including participation in any benefit plans and policies. Effective August 1, 2013, Mr. Rozelle received a 20% reduction to his salary and elimination of discretionary incentive payments under the STIP. In July
2015,
with an effective date of August 1, 2015, the Board restored one-half of the 20% compensation reduction, resulting in a remaining 10% reduction to Mr. Rozelle’s base compensation. In addition, at the same time, the Board authorized a one-time payment equal to 10% of Mr. Rozelle’s base salary, which was paid in cash, at Mr. Rozelle’s option. Similarly, in 2016, the Board authorized a one-time payment equal to 10% of Mr. Rozelle’s base salary, which was paid in cash, at Mr. Rozelle’s option. In July 2017, with an effective date of August 1, 2017, the Board restored the remaining 10% reduction to base compensation for Mr. Rozelle. In addition, a one-time payment equal to 7/10 of 10% Mr. Rozelle’s base salary was paid in cash.
For the year ended December 31, 2018, in addition to his annual salary, Mr. Rozelle received a cash bonus of $50,000 pursuant to the STIP based on achievement of performance goals.
On July 24, 2018, the Corporation granted Mr. Rozelle 32,000 phantom units. The phantom units vest in three equal parts: 1/3 at 12 months from grant, 1/3 at 24 months from grant, and 1/3 at 36 months from grant. If Mr. Earnest is no longer employed by or contractually affiliated with Vista at the vesting date, he will forfeit the right to his phantom units. At each vesting date, each phantom unit will be settled in cash at an amount equal to Vista’s closing share price on that day.
In addition, in 2016, the Corporation granted Mr. Rozelle 86,000 RSUs to receive 86,000 Common Shares under the LTIP. In 2017, the Corporation granted to Mr. Rozelle 77,000 RSUs to receive 77,000 Common Shares under the LTIP. In 2018, the Corporation granted to Mr. Rozelle 35,000
RSUs to receive 35,000
Common Shares under the LTIP. See “Executive Compensation - Outstanding Equity Awards and Options Exercised as at December 31, 2018 Table” below for a description of vesting and other terms applicable to Mr. Rozelle’s Options.
Grants of Plan Based Awards as at December 31, 2018 Table
A summary of plan-based awards granted during the year ended December 31, 2018 to named executive officers is set out in the table below. All grants are of RSUs under the LTIP.
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Name
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Grant Date
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All Other Stock Awards: Number of Shares of Stock or Units
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Grant Date Fair Value of Stock and Option Awards
(1)
($)
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Frederick H. Earnest,
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3/9/2018
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126,000
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95,760
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President and Chief Executive Officer
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John F. Engele,
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3/9/2018
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54,000
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41,040
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Senior Vice President and Chief Financial Officer
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John W. Rozelle,
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3/9/2018
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35,000
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26,600
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Senior Vice President
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________________________________
(1)
The base price for Common Shares underlying grants of RSUs awarded under the LTIP is the closing market price of the Common Shares on the NYSE American on the day prior to the date of the grant. Pursuant to the terms of the Stock Option Plan, the exercise price for Common Shares underlying grants awarded under the Stock Option Plan is not less than the closing market price of the Common Shares on either the TSX or the NYSE American as of the day prior to the date of the grant.
The reported high and low trading prices of the Common Shares on the NYSE American for the 30 days prior to the date of the grants of RSUs referred to above are set out in the table below.
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NYSE American
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High
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Low
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2/9/2018 – 3/9/2018 (RSUs)
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$0.87
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$0.71
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Outstanding Equity Awards and Options Exercised as at December 31, 2018 Table
A summary of the number and the value of the outstanding equity awards at December 31, 2018 held by the named executive officers is set out in the table below.
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Option Awards
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Stock Awards
(1)
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Name
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Number of Securities Underlying Unexercised Options (#) Exercisable
(
11
)
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Option Exercise Price ($)
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Option Expiration Date
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Value of unexercised in-the-money options ($)
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Number of Shares or Units of Stock That Have Not Vested (#)
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Market Value of Shares or Units of Stock That Have Not Vested ($)
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Frederick H. Earnest,
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25,000
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0.52
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3/25/2019
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250
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18,933
(2)
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10,034
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President and
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33,333
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0.75
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3/9/2023
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-
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164,667
(3)
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87,274
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Chief Executive Officer
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49,000
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0.62
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7/24/2023
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-
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126,000
(4)
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66,780
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John F. Engele,
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25,000
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0.52
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3/25/2019
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250
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8,133
(
5
)
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4,310
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Senior Vice President and
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16,666
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0.75
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3/9/2023
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-
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71,067
(
6
)
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37,666
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Chief Financial Officer
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18,334
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0.62
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7/24/2023
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-
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54,000
(
7
)
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28,620
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John W. Rozelle,
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25,000
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0.52
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3/25/2019
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250
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5,200
(
8
)
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2,756
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Senior Vice President
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16,666
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0.75
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3/9/2023
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-
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45,933
(
9
)
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24,344
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4,334
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0.62
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7/24/2023
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-
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35,000
(
10
)
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18,550
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________________________________
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(1)
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Each RSU represents a contingent right to receive one Common Share.
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(2)
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RSUs vest on August 18, 2019.
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(3)
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114,000 of the RSUs vest on August 3, 2019 provided share price performance of the Common Shares meets certain criteria; 25,333 vest on August 3, 2019 and 25,334 vest on August 3, 2020.
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(4)
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126,000 of the RSUs vest March 9, 2019 provided share price performance of the Common Shares meets certain criteria and based on achievement of certain goals and objectives.
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(5)
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RSUs vest on August 18, 2019.
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(6)
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49,200 of the RSUs vest on August 3, 2019 provided share price performance of the Common Shares meets certain criteria; 10,933 vest on August 3, 2019 and 10,934 vest on August 3, 2020.
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(7)
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54,000 of the RSUs vest March 9, 2019 provided share price performance of the Common Shares meets certain criteria and based on achievement of certain goals and objectives.
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(8)
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RSUs vest on August 18, 2019.
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(9)
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31,800 of the RSUs vest on August 3, 2019 provided share price performance of the Common Shares meets certain criteria; 7,067 vest on August 3, 2019 and 7,066 vest on August 3, 2020.
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(10)
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35,000 of the RSUs vest March 9, 2019 provided share price performance of the Common Shares meets certain criteria and based on achievement of certain goals and objectives.
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(11)
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In July 2018, the Corporation amended certain 2013 stock option agreements, expiring December 30, 2018 for seven executives and directors (the “
Option Amendment
”). The amendment provided each grantee the opportunity to receive a cash buyout of certain vested, unexercised 2013 options in lieu of exercising the option to purchase shares (the “
Option Buyout
”). This cash buyout was based on the intrinsic value of each option at the time of the buyout as determined by the Corporation’s Compensation Committee prior to the buyout. In December 2018, all 502,500 of the options under the Option Amendment were settled with cash buyouts totaling $61,875, representing an average price per the underlying shares of $0.12, and the related options were cancelled by the Corporation. The buy back was approved by the Corporation’s Board and Compensation Committee and was funded through cash on hand from the Corporation’s available surplus. Other than these private transactions, the Corporation’s Board has not authorized any stock repurchase program or plan and the Corporation has no current plans of making any open market purchases of its common shares or other repurchases of equity securities.
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In 2018, the following Options were exercised or settled pursuant to the Option Buyout by named executive officers: (i) 150,000 Options were exercised by Mr. Earnest, (ii) 112,500 Options were exercised by Mr. Engele, and 112,500 Options were exercised by Mr. Rozelle. In 2018, the following RSUs held by named executive officers vested: (i) 213,827 RSUs held by Mr. Earnest, (ii) 95,947
RSUs held by Mr. Engele, and (iii) 95,947 RSUs held by Mr. Rozelle.
Pension and Retirement Savings Plans
The Corporation sponsors a qualified tax-deferred savings plan in accordance with the provisions of Section 401(k) of the Tax Code, which is available to permanent US-based employees. Under the terms of this plan, the Corporation makes contributions of up to 4% of eligible employees’ salaries, subject to statutory maximums. The Corporation has no plans to provide pension or other retirement benefits.
Nonqualified Deferred Compensation
The Corporation has no plans that provide for deferred compensation to its executive officers.
Termination of Employment, Change in Responsibilities and Employment Contracts
Payments Upon Termination or Change in Responsibilities
The employment agreements with Frederick H. Earnest, John F. Engele, and John W. Rozelle contain provisions which entitle each of them to payments following termination or alteration of their respective employment with the Corporation in the event of a material adverse change, or termination of employment following a change of control or termination of employment by the Corporation without just cause. Each individual, depending on the nature of the termination, will be entitled to continuation of salary, accrued vacation pay, and employer-paid fringe benefits, for a stated period of time. Alternatively, each individual may elect to receive a lump sum payment of these amounts. In the event of termination following a change in control, each individual would also receive payment of amounts due under the STIP program. The total continuation period and lump sum benefit payment amounts between which the executives can choose are set out below.
“Material adverse change”
means the assignment of any duties that are substantially inconsistent with or materially diminish his respective position; a material reduction in base salary or other compensation; or the relocation of the primary work location to any location more than 50 miles away from the primary work location as of the date of his applicable agreement.
“Just cause”
includes any of his failure to perform assigned responsibilities that continues unremedied after written notice from the Corporation; death or permanent disability; breach of any fiduciary duty owed to the Corporation; or conviction in a criminal proceeding.
“
Change of control”
means any consolidation, merger, reorganization or other transaction of the Corporation that results in the Shareholders owning less than the majority of the aggregate voting power; sale or disposition of all or substantially all of the Corporation’s assets; or any transaction which results in the current Board ceasing to constitute the majority of the Board.
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Material adverse change:
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Name
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Period
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Total benefit amount
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Mr. Earnest
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|
24 months
|
$
|
794,917
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Mr. Engele
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18 months
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$
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495,893
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Mr. Rozelle
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18 months
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$
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388,415
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Without just cause:
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Name
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Period
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Total benefit amount
|
Mr. Earnest
|
|
24 months
|
$
|
794,917
|
Mr. Engele
|
|
12 months
|
$
|
333,941
|
Mr. Rozelle
|
|
12 months
|
$
|
264,755
|
|
|
|
|
|
Change of control:
|
Name
|
|
Period
|
|
Total benefit amount
|
Mr. Earnest
|
|
24 months
|
$
|
1,058,167
|
Mr. Engele
|
|
18 months
|
$
|
635,893
|
Mr. Rozelle
|
|
18 months
|
$
|
388,415
|
For a description of the treatment of outstanding Options held by named executive officers upon termination, see “Executive Compensation - Compensation Discussion and Analysis - Elements of the Corporation’s Compensation Program for Fiscal Year 2018 - Stock Incentive Awards - Stock Option Plan” above.
Other than as described above, the Corporation has no plan or arrangement in respect of compensation received or that may be received by named executive officers to compensate such officers in the event of the termination of their employment, resignation or retirement, following a change of control of the Corporation, or in the event of a change in responsibilities following any such change of control.
Compensation of Directors
The following table sets forth a summary of the compensation earned by the directors of the Corporation during fiscal year ended December 31, 2018
(1)
.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Fees Earned ($)
|
|
Stock Awards ($)
|
|
Option Awards ($)
|
|
Total ($)
|
Michael B. Richings
|
|
54,800
|
|
-
|
|
47,470
|
|
102,540
|
John M. Clark
|
|
33,800
|
|
-
|
|
47,470
|
|
81,540
|
W. Durand Eppler
|
|
42,800
|
|
-
|
|
47,470
|
|
90,540
|
C. Thomas Ogryzlo
|
|
30,800
|
|
-
|
|
47,470
|
|
78,540
|
Tracy A. Stevenson
|
|
37,175
|
|
-
|
|
47,470
|
|
84,915
|
________________________________
Notes:
|
(1)
|
|
Directors did not receive any compensation as non-equity incentive plan compensation, through pensions or any other form of compensation, including any agreement to make charitable donations in the director’s name, except for compensation disclosed in the table.
|
|
(2)
|
|
Deborah J. Friedman was appointed to the Board on March 13, 2019 and therefore did not attend any Board or committee meetings during the year ended December 31, 2018.
|
In 2018, each director earned a fee of $24,000. In addition, the Chair of the Board earned $24,000 in 2018. The Chairman of the Audit Committee earned an additional $6,375
in 2018. The Chair of the Compensation Committee earned an annual fee of $3,000
in 2018. The directors also earned a fee ranging from $400 to $1,200 per meeting held during 2018. In addition, during the fiscal year ended December 31, 2018, each director was granted100,000 stock options. The Corporation also reimburses directors for out-of-pocket expenses related to their attendance at meetings. W. Durand Eppler earned an additional $12,000 as Chairman of a special Mt Todd Strategy committee of the Board. No other amounts were paid or are payable to directors of the Corporation for committee participation or special assignments.
The total aggregate cash remuneration paid or payable by the Corporation and its subsidiaries during the financial year ended December 31, 2018 (i) to the directors of the Corporation, in their capacity as directors of the Corporation and any of its subsidiaries, was $199,375, and (ii) to the executive officers of the Corporation and any of its subsidiaries who received in their capacity as officers or employees of the Corporation aggregate remuneration in excess of C$150,000, was $1,478,420. This sum includes compensation paid to executive officers pursuant to retirement savings plan of $30,050.
Securities Authorized For Issuance Under Equity Compensation Plans
The following table sets out information relating to the Corporation’s equity compensation plans as at December 31, 2018. The Corporation’s equity compensation plans as of December 31, 2018 were the Stock Option Plan and the LTIP.
|
|
|
|
|
|
|
Plan Category
|
|
Number of securities to be issued upon exercise/conversion of outstanding options and rights
|
|
Weighted-average exercise price of outstanding options
|
|
Number of securities remaining available for future grants under equity compensation plans (excluding securities reflected in column (a))
|
|
|
(a)
|
|
(b)
|
|
(c)
|
Equity compensation plans approved by securityholders
|
|
2,321,819
|
|
0.40
|
|
7,704,997
|
Equity compensation plans not approved by securityholders
|
|
N/A
|
|
N/A
|
|
N/A
|
Total
|
|
2,321,819
|
|
0.40
|
|
7,704,997
|
As of March 9, 2019, 683,670 RSUs are outstanding under the LTIP and 1,303,749 Options are outstanding under the Stock Option Plan to acquire in aggregate 1,987,419 Common Shares, which RSUs and Options have been granted to the directors, officers, employees and consultants of the Corporation.
Exchange Controls
There are no governmental laws, decrees or regulations in Canada that restrict the export or import of capital, including foreign exchange controls, or that affect the remittance of dividends, interest or other payments to non-resident holders of the securities of Vista Gold, other than Canadian withholding tax. See “Certain Canadian Federal Income Tax Considerations for U.S. Residents” below.
Certain Canadian Federal Income Tax Considerations for U.S. Residents
The following summarizes certain Canadian federal income tax consequences generally applicable under the Income Tax Act (Canada) and the regulations enacted thereunder (collectively, the “
Canadian Tax Act
”) and the Canada-
United States Income Tax Convention (1980) (the “
Convention
”) to the holding and disposition of Common Shares.
Comment is restricted to holders of Common Shares each of whom, at all material times for the purposes of the Canadian Tax Act and the Convention,
|
(i)
|
|
is resident solely in the United States,
|
|
(ii)
|
|
is entitled to the benefits of the Convention,
|
|
(iii)
|
|
holds all Common Shares as capital property,
|
|
(iv)
|
|
holds no Common Shares that are “taxable Canadian property” (as defined in the Canadian Tax Act)
of the holder,
|
|
(v)
|
|
deals at arm’s length with and is not affiliated with the Corporation,
|
|
(vi)
|
|
does not and is not deemed to use or hold any Common Shares in a business carried on in Canada, and
|
|
(vii)
|
|
is not an insurer that carries on business in Canada and elsewhere,
|
(each such holder, a “
U.S. Resident Holder
”).
Certain U.S.-resident entities that are fiscally transparent for United States federal income tax purposes (including limited liability companies) may not in all circumstances be regarded by the Canada Revenue Agency (the “
CRA
”) as entitled to the benefits of the Convention. Members of or holders of an interest in such an entity that holds Common Shares should consult their own tax advisers regarding the extent, if any, to which the CRA will extend the benefits of the Convention to the entity in respect of its Common Shares.
Generally, a holder’s Common Shares will be considered to be capital property of the holder provided that the holder is not a trader or dealer in securities, did not acquire, hold or dispose of the Common Shares in one or more transactions considered to be an adventure or concern in the nature of trade (i.e. speculation), and does not hold the Common Shares as inventory in the course of carrying on a business.
Generally,
a
holder’s
Common
Shares
will not constitute
“
taxable Canadian property
”
of
the holder
at a particular time at which the Common Shares are listed on a “designated stock exchange” (which currently includes the TSX
and NYSE American
) unless both of the following conditions
are
true at any time
during
the 60
month period immediately
preceding the particular time:
|
(i)
|
|
the holder
, any one or more persons with whom the
holder
does not deal at arm’s length
, or any partnership
in which
the holder or
persons with whom the
holder
did not deal at arm’s length holds
a membership interest
directly or indirectly through one or more partnerships
, alone or in any combination, owned
25% or more of the issued shares of any class of the capital stock of the Corporation
; and
|
|
(ii)
|
|
more than 50% of the fair market value of the Common
Shares
was derived directly or indirectly from, or from any combination of, real or immovable property situated in Canada, “Canadian resource properties”
(as defined in the Canadian Tax Act)
, “timber resource properties”
(as defined in the Canadian Tax Act)
, or options
in respect of
or interests
in such properties whether or not such properties exist
.
|
In certain circumstances, a Common Share may be deemed to be “taxable Canadian property”
for purposes of the Canadian Tax Act
.
This summary is based on the current provisions of the Canadian Tax Act and the Convention in effect on the date hereof, all specific proposals to amend the Canadian Tax Act and Convention publicly announced by or on behalf of the Minister of Finance (Canada) on or before the date hereof, and the current published administrative and assessing policies of the CRA. It is assumed that all such amendments will be enacted as currently proposed, and
that there will be no other material change to any applicable law or administrative or assessing practice, although no assurance can be given in these respects. Except as otherwise expressly provided, this summary does not take into account any provincial, territorial or foreign tax considerations, which may differ materially from those set out herein.
This summary is of a general nature only, is not exhaustive of all possible Canadian federal income tax considerations, and is not intended to be and should not be construed as legal or tax advice to any particular U.S. Resident Holder. U.S. Resident Holders are urged to consult their own tax advisers for advice with respect to their particular circumstances. The discussion below is qualified accordingly.
A U.S. Resident Holder who disposes or is deemed to dispose of one or more Common Shares generally should not thereby incur any liability for Canadian federal income tax in respect of any capital gain arising as a consequence of the disposition.
A U.S. Resident Holder to whom the Corporation pays
or is deemed to pay
a dividend on the holder’s Common Shares will be subject to Canadian withholding tax, and the Corporation will be required to withhold the tax from the dividend and remit it to the CRA for the holder’s account. The rate of withholding tax under the Canadian Tax Act is 25% of the gross amount of the dividend
(subject to reduction under the provisions of an applicable tax treaty). Under the Convention, a U.S. Resident Holder who beneficially owns the dividend will generally be subject to Canadian withholding tax at the rate of
15% (or, if the U.S. Resident Holder
who beneficially owns the dividend
is a company
which
owns at least 10% of the voting stock of the Corporation, 5%) of the gross amount of the dividend.
Indebtedness of Directors and Executive Officers
None of the current or former directors, executive officers or employees, nor any associates or affiliates of the foregoing persons is, as of the date hereof, indebted to the Corporation or any of its subsidiaries.
Orders, Penalties and Settlement Agreements
To the knowledge of the Corporation, no proposed director of the Corporation is, as at the date of this Information Circular, or was within 10 years before the date of this Information Circular, a director, chief executive officer or chief financial officer of any company (including the Corporation), that:
(a)
was subject to an order that was issued while the proposed director was acting in the capacity as director, chief executive officer or chief financial officer, or
(b)
was subject to an order that was issued after the proposed director ceased to be a director, chief executive officer or chief financial officer and which resulted from an event that occurred while that person was acting in the capacity as director, chief executive officer or chief financial officer.
For the purposes of paragraph (a), above, “order” means: (i) a cease trade order; (ii) an order similar to a cease trade order; or (iii) an order that denied the relevant company access to any exemption under securities legislation that was in effect for more than 30 consecutive days.
To the knowledge of the Corporation, no proposed director of the Corporation is, as at the date of this Information Circular, or has been within the 10 years before the date of this Information Circular, a director or executive officer of any company (including the Corporation) that, while that person was acting in that capacity, or within a year of that person ceasing to act in that capacity, became bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency or was subject to or instituted any proceedings, arrangement or compromise with creditors or had a receiver, receiver manager or trustee appointed to hold its assets.
To the knowledge of the Corporation, no proposed director of the Corporation has, within 10 years before the date of this Information Circular, become bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency, or become subject to or instituted any proceedings, arrangement or compromise with creditors, or had a receiver, receiver manager or trustee appointed to hold the assets of the proposed director of the Corporation.
To the knowledge of the Corporation, no proposed director of the Corporation has been subject to (a) any penalties or sanctions imposed by a court relating to securities legislation or by a securities regulatory authority or has entered into a settlement agreement with a securities regulatory authority; or (b) any other penalties or sanctions imposed by a court or regulatory body that would likely be considered important to a reasonable shareholder in deciding whether to vote for a proposed director.
Interest of Certain Persons in Matters to be Acted Upon
Except as described in this Information Circular, no (i) person who has been a director or executive officer of the Corporation at any time since the beginning of Corporation’s the last financial year, (ii) proposed nominee for director, or (iii) associate or affiliate of any of the foregoing persons, has any material interest, direct or indirect by way of beneficial ownership of securities or otherwise, in any matter to be acted upon at the Meeting (other than the election of directors).
Interest of Informed Persons in Material Transactions
Except as described in this Information Circular, no (i) informed person of the Corporation, (ii) proposed director of the Corporation, or (iii) associate or affiliate of any of the foregoing persons, has had any material interest, direct or indirect, in any transaction since the commencement of the Corporation’s most recently completed financial year or in any proposed transaction which has materially affected or would materially affect the Corporation or its subsidiaries.
Review, Approval or Ratification of Transactions with Related Parties
The Corporation has adopted a written policy for the review of transactions with related persons which is available on the Corporation’s website at
www.vistagold.com
. The policy requires review, approval or ratification of all transactions in which
(
i
) the aggregate amount involved will or may be expected to exceed $100,000 in any calendar year; (ii) the Corporation is a participant; and (iii) any directors, executive officers, significant shareholders and any immediate family member of the foregoing persons has
or will have
a direct or indirect
material
interest
subject to certain categories of transactions that are deemed to be pre-approved under the policy. As set forth in the policy, the pre-approved transactions include, among others, employment of executive officers, director compensation (in general, where such transactions are required to be reported in the Corporation’s proxy statement pursuant to the SEC compensation disclosure requirements), as well as certain transactions where the amounts involved do not exceed specified thresholds, certain charitable contributions and transactions where all shareholders receive proportional benefits. All related party transactions must be reported for review by the Corporate Governance and Nominating Committee of the Board
. Transactions deemed to be pre-approved are not required to be reported to the Committee, except for certain pre-approved transactions, a summary of which must be submitted to the
Corporate Governance and Nominating
Committee for review at its next following meeting.
In determining whether to approve or ratify related party transactions, the Corporate Governance and Nominating Committee will take into consideration, among other factors it deems appropriate, whether the transactions are on terms no less favorable to the Corporation than those available to unaffiliated third-parties under the same or similar circumstances and the extent of the related person’s interest in the transaction. If a related party transaction is to be ongoing, the Corporate Governance and Nominating Committee may establish guidelines for the Corporation’s management to follow in its ongoing dealings with the related person.
Management Contracts
There are no management functions of the Corporation which are to any substantial degree performed by persons other than the directors, senior officers or managers of the Corporation. The Corporation has entered into employment agreements with Frederick H. Earnest, President and Chief Executive Officer
John F. Engele, Senior Vice President and Chief Financial Officer, and John Rozelle, Senior Vice President
as set forth above under the heading “Executive Compensation - Executive Employment Agreements”.
Shareholder Proposals
Under the Exchange Act, the deadline for submitting Shareholder proposals for inclusion in the management information and proxy circular for an annual general meeting of the Corporation is calculated in accordance with Rule 14a-8(e) of Regulation 14A to the Exchange Act. If the proposal is submitted for a regularly scheduled annual general meeting, the proposal must be received at the Corporation’s principal executive offices not less than 120 calendar days before the anniversary date of the Corporation’s management information and proxy circular released to the Shareholders in connection with the previous year’s annual general meeting. However, if the Corporation did not hold an annual general meeting the previous year, or if the date of the current year’s annual general meeting has been changed by more than 30 days from the date of the previous year’s meeting, then the deadline is a reasonable time before the Corporation begins to print and mail its proxy materials. Accordingly, unless the date of the next annual general meeting is changed by more than 30 days from the date of this year’s meeting the deadline for submitting Shareholder proposals for inclusion in the management information and proxy circular for the next annual general meeting
of the Corporation will be November 25, 2019. If a Shareholder proposal is not submitted to the Corporation by November 25, 2019, the Corporation may still grant discretionary proxy authority to vote on a Shareholder proposal, if such proposal is received by the Corporation by February 6, 2020
in accordance with Rule 14a-4(c)(1) of Regulation 14A of the Exchange Act.
In addition, there are (i) certain requirements relating to Shareholder proposals contained in the
Business Corporations Act
(British Columbia); and (ii) certain requirements relating to the nomination of directors contained the Articles of the Corporation. A Shareholder wishing to make a proposal for consideration at an annual general meeting of the Corporation or wishing to nominate a person to act as a director of the Corporation should ensure they follow the applicable procedures set forth in the
Business Corporations Act
(British Columbia) and the Articles of the Corporation.
Other Matters
Management of the Corporation knows of no other matters which will be brought before the Meeting other than those set forth in the Notice of Meeting. Should any other matters properly come before the Meeting, the Common Shares represented by the proxies solicited hereby will be voted on those matters in accordance with the best judgement of the persons voting such proxies.
Dissenters’ Rights of Appraisal
No action is proposed herein for which the laws of the British Columbia or the Articles of the Corporation provide a right of a Shareholder to dissent and obtain appraisal of or payment for such Shareholder’s Common Shares.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires the Corporation’s officers and directors, and persons who own more than 10% of the Common Shares, to file reports of ownership and changes of ownership of such securities with the SEC.
Based solely on a review of the reports received by the SEC, furnished to the Corporation, or written representations from reporting persons that all reportable transactions were reported, management believes that, during the fiscal year ended December 31, 2018, the Corporation’s officers, directors and greater than ten percent owners timely filed all reports they were required to file under Section 16(a).
Multiple Shareholders Sharing the Same Address
The regulations regarding the delivery of copies of proxy materials and annual reports to Shareholders permit the Corporation and brokerage firms to send one annual report and proxy statement to multiple Shareholders who share the same address under certain circumstances. Shareholders who hold their shares through a broker may have consented to reducing the number of copies of materials delivered to their address. In the event that a Shareholder wishes to revoke such a consent previously provided to a broker, the Shareholder must contact the broker to revoke the consent. In any event, if a shareholder wishes to receive a separate Information Circular and accompanying materials for the Meeting, or the Corporation’s Annual Report on Form 10-K for the year ended December 31, 2018,
the Shareholder may receive copies by contacting the Corporate Secretary at (720) 981-1185, 7961 Shaffer Parkway, Suite 5, Littleton, Colorado 80127. Shareholders receiving multiple copies of these documents at the same address can request delivery of a single copy of these documents by contacting the Corporation in the same manner. Persons holding shares through a broker can request a single copy by contacting the broker.
Board of Directors Approval
The undersigned hereby certifies that the contents and sending of this Information Circular to the Shareholders have been approved by the Board.
DATED at Littleton, Colorado, this 21
t
h
day of March, 2019.
BY ORDER OF THE BOARD OF DIRECTORS
/s/ Frederick H. Earnest
Frederick H. Earnest
President and Chief Executive Officer
APPENDIX “A”
FORM OF PROXY
APPENDIX “B”
VISTA GOLD CORP.
(the “Company”)
MANDATE OF THE BOARD OF DIRECTORS
|
I.
|
|
STEWARDSHIP OF THE COMPANY
|
The Board of Directors of the Company (the “Board”) is responsible for:
|
1.
|
|
The stewardship of the business and affairs of the Company;
|
|
2.
|
|
Supervising the management of the business and affairs of the Company;
|
|
3.
|
|
Providing leadership to the Company by practicing responsible, sustainable and ethical decision making;
|
|
4.
|
|
Ensuring that all major issues affecting the Company are given proper consideration, including the identification and management of risks relating to the business and affairs of the Company; and
|
|
5.
|
|
Directing management to ensure that legal, regulatory and stock exchange requirements applicable to the Company have been met.
|
Each Director has the responsibility to:
|
1.
|
|
Attend all regularly scheduled meetings of the Board and all of the Committees on which they serve and to be prepared for such meetings by reviewing materials provided in advance of meetings;
|
|
2.
|
|
Act honestly and in good faith with a view to the best interests of the Company; and
|
|
3.
|
|
Exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
|
A majority of the Board will, at all times, be independent directors as defined in then- current laws applicable to the Company.
The Board shall appoint a chair of the Board. Where it is not appropriate for the chair to be an independent director, the Board should consider whether it should appoint an independent director to act as a lead director. The Board shall develop a written position description delineating the chair’s role.
To be considered for nomination and election to the Board, directors must demonstrate integrity and high ethical standards in their business dealings, their personal affairs, and in the discharge of their duties to and on behalf of the Company.
|
IV.
|
|
NOMINATION OF DIRECTORS
|
Prior to nominating or appointing individuals as directors, the Board will consider what competencies and skills the Board, as a whole, should possess and assess what competencies and skills each existing director possesses. The Board will consider the appropriate size of the Board, with a view to facilitating effective decision making. In addition, the Board will consider diversity in the selection criteria of new Board members. In carrying out each of these functions, the Board will consider the advice and input of the Corporate Governance and Nominating Committee.
The Board is responsible to meet in person, or by telephone conference call (or by other means permitted by applicable laws), at least once each quarter and otherwise as often as required to discharge the duties of the Board.
The independent members of the Board shall hold regular meetings at which non-independent members of the Board and members of management are not in attendance.
|
VI.
|
|
COMMITTEES OF THE BOARD
|
The Board discharges its responsibilities directly and through its committees. Accordingly, the Board shall:
|
1.
|
|
Establish such committees of the Board (“Committees”) as are required by applicable laws and stock exchange requirements and as are necessary to effectively discharge the duties of the Board, which Committees shall include an audit committee (the “Audit Committee”);
|
|
2.
|
|
Appoint directors, including independent directors when applicable, to serve as members of each Committee;
|
|
3.
|
|
Appoint a chair of each Committee to:
|
(i)
provide leadership to the Committee,
(ii)
manage the affairs of the Committee, and
(iii)
ensure that the Committee functions effectively in fulfilling its duties to the Board and the Company; and
|
4.
|
|
Regularly receive and consider reports and recommendations of each Committee, including, in particular, the Audit Committee reports and recommendations, particularly with respect to the Company’s annual audit and annual and quarterly reports and financial statements.
|
|
VII.
|
|
SUPERVISION OF MANAGEMENT
|
The Board is responsible to:
|
1.
|
|
Select and appoint the Chief Executive Officer (“CEO”), establish CEO goals and objectives, and evaluate CEO performance and develop a written position description for the CEO which includes delineating management’s responsibilities;
|
|
2.
|
|
Assist the CEO to select and appoint executive officers, establish executive officers’ goals and objectives, and monitor their performance;
|
|
3.
|
|
Determine the compensation of the CEO, and in conjunction with the CEO, set the compensation of the other executive officers of the Company; and
|
|
4.
|
|
Maintain a succession plan for the replacement of the CEO and other executive officers.
|
|
VIII.
|
|
CORPORATE GOVERNANCE
|
The Board is responsible to:
|
1.
|
|
Develop the Company’s approach to corporate governance and annually review and either approve or require revisions to the mandate of the Board and the charters of each Committee, position descriptions, the code of business conduct and ethics (the “Code”) and all other policies of the Company (collectively the “Governance Documents”);
|
|
2.
|
|
Take reasonable steps to satisfy itself that each director, the CEO and the executive officers are:
|
(i)
performing their duties ethically;
(ii)
conducting business on behalf of the Company in accordance with the requirements and the spirit of the Governance Documents; and
(iii)
fostering a culture of integrity throughout the Company;
|
3.
|
|
Arrange for the public disclosure of the Governance Documents required by law to be publicly disclosed;
|
|
4.
|
|
Ensure that all new directors receive a comprehensive orientation and that all new directors fully understand: (i) the role of the Board, its Committees and its directors; (ii) the commitment of time and resources that the Company expects; and (iii) the nature and extent of the Company’s business and operations; and
|
|
5.
|
|
Provide continuing education opportunities for all directors, so that individuals may maintain or enhance their skills and abilities as directors, as well as to ensure their knowledge and understanding of the Company’s business and operations remains current.
|
The Board is responsible to:
|
1.
|
|
Approve and implement a disclosure policy which provides for disclosure and communications practices governing the Company; and
|
|
2.
|
|
Approve and maintain a process for the Company’s stakeholders to contact the independent directors directly with concerns and questions regarding the Company.
|
The Board is responsible for:
|
1.
|
|
Monitoring compliance with the Code and reviewing departures from the Code;
|
|
2.
|
|
Providing or denying waivers from the Code; and
|
|
3.
|
|
Disclosing departures from the Code that constitute a material change (including material departures from the Code by directors or executive officers) and filing the required material change reports containing:
|
(i)
the date of the departure;
(ii)
the parties involved;
(iii)
the reason why the Board has or has not sanctioned the departure; and
(iv)
any measures taken to address or remedy the departure.
The Board has the duty to:
|
1.
|
|
Adopt a strategic planning process, annually approve a strategic plan taking into account, among other things, the opportunities and risks of the Company’s business and operations, and regularly monitor the Company’s performance against its strategic plan;
|
|
2.
|
|
Approve capital and operating budgets to implement the strategic plan;
|
|
3.
|
|
Conduct periodic reviews of the Company’s resources, risks, and regulatory constraints and opportunities to facilitate the strategic plan; and
|
|
4.
|
|
Evaluate management’s analysis of the strategies of existing and potential competitors and their impact, if any, on the Company’s strategic plan.
|
The Board has the duty to:
|
1.
|
|
Adopt a process to identify business risks and ensure appropriate systems to manage risks;
|
|
2.
|
|
Ensure that appropriate internal controls and management information systems are in place;
|
|
3.
|
|
Together with the Audit Committee, ensure policies and procedures are in place and are effective to maintain the integrity of the Company’s:
|
(i)
disclosure controls and procedures;
(ii)
internal control over financial reporting; and
(iii)
management information systems.
|
XIII.
|
|
FINANCIAL MANAGEMENT
|
The Board has the duty to:
|
1.
|
|
Review and, on the advice of the Audit Committee, approve, prior to their public dissemination:
|
(i)
interim and annual financial statements and notes thereto;
(ii)
management’s discussion and analysis of financial condition and results of operations;
(iii)
relevant sections of the annual report and management information circular containing financial information;
(iv)
forecasted financial information and forward-looking statements; and
(v)
all press releases and other documents in which financial statements, earnings forecasts, results of operations or other financial information is disclosed (this is currently delegated by the Board to the Chair of the Audit Committee); and
|
2.
|
|
Approve dividends and distributions, material financings, transactions affecting authorized capital or the issue and repurchase of shares and debt securities, and all material divestitures and acquisitions.
|
The Board shall have access to all books, records, facilities and personnel of the Company necessary for the discharge of its duties.
The Board has the power, at the expense of the Company, to retain, instruct, compensate and terminate independent advisors to assist the Board in the discharge of its duties.
APPENDIX “C”
TEXT OF ORDINARY RESOLUTIONS
Part I
LTIP Amendment Resolution
“BE IT RESOLVED, as an ordinary resolution, that:
|
1.
|
|
the
the proposed amendments to the Long Term Equity Incentive Plan (the “LTIP”) of the Corporation, the text of which is set out in Appendix “D” of the Information Circular, be and is hereby approved; and
|
|
2.
|
|
any director or officer of the Corporation is authorized to do all acts and things, to execute under the common seal of the Corporation or otherwise and to deliver all agreements, documents and instructions, to give all notices and to deliver, file and distribute all documents and information which such director or officer (as the case may be) determines to be necessary or desirable in connection with or to give effect to and carry out this resolution.
”
|
Part II
Unallocated Awards Under the LTIP Resolution
“BE IT RESOLVED, as an ordinary resolution, that:
|
1.
|
|
all unallocated options, rights and other entitlements under the Corporation’s Long Term Equity Incentive Plan are hereby ratified, approved and confirmed until May 2, 2022; and
|
|
2.
|
|
any director or officer of the Corporation is authorized to do all acts and things, to execute under the common seal of the Corporation or otherwise and to deliver all agreements, documents and instructions, to give all notices and to deliver, file and distribute all documents and information which such director or officer (as the case may be) determines to be necessary or desirable in connection with or to give effect to and carry out these resolutions.
”
|
Part III
Deferred Share Unit Plan Resolution
“BE IT RESOLVED as an ordinary resolution, that:
|
1.
|
|
the Corporation’s Deferred Share Unit Plan (the “DSU Plan”), the text of which is set out in Appendix “E” of the Information Circular, be and is hereby approved;
|
|
2.
|
|
the Corporation has the ability to grant deferred share units under the DSU Plan; and
|
3.
any director or officer of the Corporation is authorized to do all acts and things, to execute under the common seal of the Corporation or otherwise and to deliver all agreements, documents and instructions, to give all notices and to deliver, file and distribute all documents and information which such director or officer (as the case may be) determines to be necessary or desirable in connection with or to give effect to and carry out these resolutions.
”
APPENDIX “D”
Vista Gold Corp.
Long Term Equity Incentive Plan
as adopted on May 3, 2010, as amended May 6, 2015
and May 2, 2019
Vista Gold Corp.
Long Term Equity Incentive Plan
The purpose of this Long Term Equity Incentive Plan (the “
Plan
”) is to assist Vista Gold Corp. (the “
Corporation
”) in attracting, retaining and motivating key employees,
directors,
officers and consultants of the Corporation and its subsidiaries and to more closely align the personal interests of such persons with shareholders, thereby advancing the interests of the Corporation and its shareholders and increasing the long-term value of the Corporation.
When used herein, unless the context otherwise requires, the following terms have the indicated meanings, respectively:
“
Affiliate
”
has the meaning set forth in the
Securities Act
(Ontario), as amended from time to time;
“
Associate
”
has the meaning set forth in the
Securities Act
(Ontario), as amended from time to time;
“
Award
” means any Restricted Share Unit or Restricted Stock granted under this Plan;
“
Award Agreement
”
means a signed, written agreement between a Participant
or a Director Participant
and the Corporation, substantially in the form attached as Schedule A in the case of a RSU Award and substantially in the form attached as Schedule B in the case of a Restricted Stock Award, subject to any amendments or additions thereto as may, in the discretion of the Committee, be necessary or advisable, evidencing the terms and conditions on which an Award has been granted under this Plan;
“
Black-Out Period
” means, with respect to an Award, any period during which the holder of the Award is not permitted to trade Common Shares pursuant to the policies of the Corporation;
“
Board
”
means the board of directors of the Corporation;
“
Business Day
” means a day, other than a Saturday or Sunday, on which the principal commercial banks in the City of Denver, Colorado, are open for commercial business during normal banking hours;
“
BCA
”
means the
Business Corporations Act
(British Columbia) and the regulations promulgated thereunder, both as amended from time to time;
“
Change in Control
”
means the happening of any of the following events:
|
(i)
|
|
any transaction at any time and by whatever means pursuant to which (A) the Corporation goes out of existence, except for any corporate transaction or reorganization in which the proportionate voting power among holders of securities of the entity resulting from such corporate transaction or reorganization is substantially the same as the proportionate voting power of such holders of the Corporation’s voting securities immediately prior to such corporate transaction or reorganization or (B) any Person or any group of two or more Persons acting jointly or in concert (other than the Corporation,
|
a wholly-owned Subsidiary of the Corporation, an employee benefit plan of the Corporation or of any of its wholly-owned Subsidiaries, including the trustee of any such plan acting as trustee) hereafter acquires the direct or indirect beneficial ownership of, or acquires the right to exercise control or direction over, securities of the Corporation representing 50% or more of the then issued and outstanding Common Shares in any manner whatsoever, including, without limitation, as a result of a take-over bid, an exchange of securities, an amalgamation of the Corporation with any other entity, an arrangement, a capital reorganization or any other business combination or reorganization;
|
|
(ii)
|
|
the sale, assignment or other transfer of all or substantially all of the assets of the Corporation to a Person other than a wholly-owned Subsidiary of the Corporation;
|
|
(iii)
|
|
the dissolution or liquidation of the Corporation except in connection with the distribution of assets of the Corporation to one or more Persons which were wholly-owned Subsidiaries of the Corporation immediately prior to such event;
|
|
(iv)
|
|
the occurrence of a transaction requiring approval of the Corporation’s shareholders whereby the Corporation is acquired through consolidation, merger, exchange of securities, purchase of assets, amalgamation, arrangement or otherwise by any other Person (other than a short form amalgamation or exchange of securities with a wholly-owned Subsidiary of the Corporation); or
|
|
(v)
|
|
the Board passes a resolution to the effect that, for the purposes of some or all of the Award Agreements, an event set forth in (i), (ii), (iii) or (iv) above has occurred;
|
“
Code
” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated under it;
“
Common
Shares
”
means the common shares in the capital of the Corporation and any other securities of the Corporation or any Affiliate or any successor that may be so designated by the Committee;
“
Committee
”
has the meaning set forth in Section 3.2;
“
Corporation
”
means Vista Gold Corp., a corporation continued under the laws of the Province of British Columbia, and any successor corporation;
“
Consultant
Participant
” means an individual or a consultant company (other than an Employee Participant
or a Director Participant
) that:
|
(i)
|
|
is engaged to provide services to the Corporation or an Affiliate other than services provided in relation to a distribution of securities of the Corporation or an Affiliate;
|
|
(ii)
|
|
provides the services under a written contract with the Corporation or an Affiliate; and
|
|
(iii)
|
|
spends or will spend a significant amount of time and attention on the affairs and business of the Corporation or an Affiliate,
|
and includes a Consultant Participant’s Permitted Assigns. For the purposes of this definition, “
consultant company
” means, with respect to an individual consultant, either (A) a company of which the individual consultant is an employee or shareholder or (B) a partnership of which the individual consultant is an employee or partner;
“
Corporate Reorganization
”
has the meaning set forth in Section 8.3;
“
Covered Employee
” shall have the meaning set forth in Section 162(m)(3) of the Code;
“
Date of Grant
” means, for any Award, the date the Committee provides notice to a Participant
or Director Participant
of the grant of an Award (which, for greater certainty, shall be no earlier than the date on which the Committee meets for the purpose of granting such Award) or the date upon which the Award Agreement is entered into with the Participant
or the Director Participant;
“
Director Participant
”
means a director of the Corporation who is not an employee of the Corporation or an Affiliate and includes a Director Participant’s Permitted Assigns
;
“
Disabled
”
or
“
Disability
”
means the permanent and total incapacity of a
Participant or a Director
Participant as determined in accordance with procedures established by the Committee for purposes of this Plan;
“
Disinterested Shareholder Approval
”
means approval by the shareholders of the Corporation excluding any votes of securities held directly or indirectly by Insiders benefiting directly or indirectly from the approval or amendment in accordance with the rules, regulations, and policies of any Exchange, securities commission or regulatory body;
“
Employee Participant
” means a current full-time or part-time
employee or officer of the Corporation or an Affiliate (other than
a Director Participant or
a Consultant Participant) and includes an Employee Participant’s Permitted Assigns;
“
Exchange Act
” means the
United States Securities Exchange Act of 1934
, as amended from time to time;
“
Exchanges
”
means the Toronto Stock Exchange and the NYSE MKT and such other exchanges upon which the Common Shares may become listed from time to time;
“
Fair Market Value
” means, with respect to any Common Share at a particular date, provided that such Common Shares are not then listed on any stock exchange in Canada or the United States, the fair market value as determined by the Board in its discretion; provided that if such Common Shares are then listed on the NYSE MKT, the Fair Market Value shall be the volume weighted average trading price of the Common Shares on the NYSE MKT for the five trading days immediately prior to such date (or if such Common Shares did not trade on such exchange on such days, the average of the bid and ask prices of such Common Shares at the close of trading on such days); provided that in the event that such Common Shares are not then listed on such stock exchange, the Fair Market Value shall be determined based on the closing price of such Common Shares on any stock exchange in Canada or the United States on which such Common Shares are then listed on the last trading day prior to the particular date (or if such Common Shares did not trade on such exchange on such day, the average of the bid and ask prices of such Common Shares at the close of trading on such day);
“
Good Reason
” means:
|
(i)
|
|
material diminution in the Participant’s authority, duties or responsibilities assigned immediately prior to a Change in Control;
|
|
(i)
|
|
a material reduction in the Participant’s annual base salary in effect immediately prior to a Change in Control; or
|
|
(i)
|
|
a requirement that the Participant be based at any office or location more than 50 miles from the Participant’s primary work location immediately prior to the Change in Control;
|
“
Insider
”
has the meaning set forth in the
Securities Act
(Ontario), as amended from time to time, and includes Associates and Affiliates of such Person;
“
NI 45-106
”
means National Instrument 45-106
Prospectus and Registration Exemptions
of the Canadian Securities Administrators, as amended from time to time;
“
Participant
” means an Employee Participant or a Consultant Participant
but not a Director Participant
;
“
Performance Awards
” has the meaning set forth in Section 5.1;
“
Performance Goals
” means performance goals based on one or more of the following criteria: (i) earnings, including operating income, earnings before or after taxes, earnings before or after interest, depreciation, amortization, or extraordinary or special items or book value per share (which may exclude nonrecurring items); (ii) pre-tax income or after-tax income; (iii) earnings per Common Share (basic or diluted); (iv) operating profit; (v) revenue, revenue growth or rate of revenue growth; (vi) return on assets (gross or net), return on investment, return on capital, or return on equity; (vii) returns on sales or revenues; (viii) operating expenses; (ix) stock price appreciation; (x) cash flow, free cash flow, cash flow return on investment (discounted or otherwise), net cash provided by operations, or cash flow in excess of cost of capital; (xi) implementation or completion of critical projects or processes; (xii) economic value created; (xiii) cumulative earnings per share growth; (xiv) operating margin or profit margin; (xv) Common Share price or total shareholder return; (xvi) cost targets, reductions and savings, productivity and efficiencies; (xvii) strategic business criteria, consisting of one or more objectives based on meeting specified geographic business expansion, employee satisfaction, human resources management, supervision of litigation, information technology, and goals relating to acquisitions, divestitures, joint ventures and similar transactions, and budget comparisons; (xviii) personal professional objectives, including any of the foregoing performance goals, the implementation of policies and plans, the negotiation of transactions, the development of long term business goals, formation of joint ventures, research or development collaborations, and the completion of other corporate transactions; and (xix) any combination of, or a specified increase in, any of the foregoing. Where applicable, the Performance Goals may be expressed in terms of attaining a specified level of the particular criteria or the attainment of a percentage increase or decrease in the particular criteria, and may be applied to one or more of the Corporation, a Subsidiary, or a division or strategic business unit of the Corporation, or may be applied to the performance of the Corporation relative to a market index, a group of other companies or a combination thereof, all as determined by the Committee. The Performance Goals may include a threshold level of performance below which no payment will be made (or no vesting will occur), levels of performance at which specified payments will be made (or specified vesting will occur), and a maximum level of performance above which no additional payment will be made (or at which full vesting will occur). Each of the foregoing Performance Goals shall be determined in accordance with generally accepted accounting principles, if applicable, and shall be subject to certification by the Committee; provided that the Committee shall have the authority to make equitable adjustments to the Performance Goals in recognition of unusual or non-recurring events affecting the Corporation or any Subsidiary or the financial statements of the Corporation or any Subsidiary, in response to changes in applicable laws or regulations, or to account for items of gain, loss or expense determined to be extraordinary or unusual in nature or infrequent in occurrence or related to the disposal of a segment of a business or related to a change in accounting principles;
“
Permitted Assign
” has the meaning given to that term in NI 45-106;
“
Person
”
includes an individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate, and a natural person in his or her capacity as trustee, executor, administrator or other legal representative;
“
Plan
”
means this Long Term Equity Incentive Plan of the Corporation;
“
Restricted Share Unit
”
or “
RSU
”
means a right to receive from the Corporation at some future date a newly-issued Common Share, which right is granted, as determined by the Committee, under Section 4.1;
“
Restricted Stock
” means any Common Shares granted under Section 4.5;
“
Retirement
”
means retirement from active employment with the Corporation or an Affiliate in accordance with the policies of the Corporation in place from time to time or, with the consent for purposes of the Plan of such officer of the Corporation as may be designated by the Committee, at or after such earlier age and upon the completion of such years of service as the Committee may specify;
“
Securities Act
”
means the United States
Securities Act of 1933
, as amended from time to time;
“
Security Based Compensation Arrangement
”
has the meaning given to that term in the TSX Rules;
“
Share Reorganization
”
has the meaning set forth in Section 8.2;
“
Special Distribution
”
has the meaning set forth in Section 8.4;
“
Termination Date
”
means, in the case of a
Participant or Director
Participant whose employment or term of office or engagement with the Corporation or an Affiliate terminates:
|
(i)
|
|
by reason of the Participant
’s or Director Participant
’s death, the date of death;
|
|
(ii)
|
|
for any reason whatsoever other than death, the later of:
|
|
(A)
|
|
in the case of a Participant whose employment is terminated by the Corporation or Affiliate, the last day of the minimum statutory notice period, if any, to which that Participant is entitled upon such termination pursuant to applicable employment and/or labour standards legislation; and
|
|
(B)
|
|
the date designated by the Corporation or the Affiliate, as the case may be, as the last day of the
Participant’s or Director
Participant’s employment or term of office or engagement with the Corporation or the Affiliate, as the case may be,
|
provided that in the case of termination by reason of voluntary resignation by the
Participant or Director
Participant, such date shall not be earlier than the date that notice of resignation was received from such Participant
or Director Participant
,
and for greater certainty “
Termination Date
”
in any such case
specifically does not mean the date on which any period of contractual notice or reasonable notice that the Corporation or the Affiliate, as the case may be, may be required at law to provide to a Participant would expire;
“
TSX Rules
”
means Part VI of the Company Manual of the Toronto Stock Exchange, as amended from time to time;
“
U.S. Taxpayer
” shall mean a Participant
or Director Participant
who is a U.S. citizen, U.S. permanent resident or U.S. tax resident for the purposes of the Code;
“
Vesting Date
” has the meaning set forth in Section 4.4; and
“
Withholding Obligations
” has the meaning set forth in Section 9.3.
|
(a)
|
|
Whenever the Board or, where applicable, the Committee is to exercise discretion in the administration of this Plan, the term “discretion” means the sole and absolute discretion of the Board or the Committee, as the case may be.
|
|
(b)
|
|
As used herein, the terms “
Article
”, “
Section
”, “
Subsection
” and “
clause
” mean and refer to the specified Article, Section, Subsection and clause of this Plan, respectively.
|
|
(c)
|
|
Words importing the singular include the plural and vice versa and words importing any gender include any other gender.
|
|
(d)
|
|
Whenever any payment is to be made or action is to be taken on a day which is not a Business Day, 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)
|
|
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.
|
Subject to Section 3.2, this Plan will be administered by the Board and the Board has sole and complete authority, in its discretion, to:
|
(a)
|
|
determine the Persons to whom grants under the Plan may be made;
|
|
(b)
|
|
make grants of Awards under the Plan relating to the issuance of Common Shares (including any combination of Restricted Share Units or Restricted Stock) in such amounts, to such Persons and, subject to the provisions of this Plan, on such terms and conditions as it determines including without limitation:
|
|
(i)
|
|
the time or times at which Awards may be granted;
|
|
(ii)
|
|
the conditions under which:
|
|
(A)
|
|
Awards may be granted to Participants
or Director Participants
; or
|
|
(B)
|
|
Awards may be forfeited to the Corporation,
|
including any conditions relating to the attainment of specified Performance Goals;
|
(iii)
|
|
whether restrictions or limitations are to be imposed on the Common Shares issuable pursuant to grants of Awards, and the nature of such restrictions or limitations, if any; and
|
|
(iv)
|
|
any acceleration of exercisability or vesting, or waiver of termination regarding any Award, based on such factors as the Board may determine;
|
|
(c)
|
|
interpret this Plan and adopt, amend and rescind administrative guidelines and other rules and regulations relating to this Plan; and
|
|
(d)
|
|
make all other determinations and take all other actions necessary or advisable for the implementation and administration of this Plan.
|
The Board’s determinations and actions within its authority under this Plan are conclusive and binding on the Corporation and all other persons. The day-to-day administration of the Plan may be delegated to such officers and employees of the Corporation or of a Subsidiary as the Board determines.
|
3.2
|
|
Delegation to Committee
|
To the extent permitted by applicable law and the Corporation’s articles, the Board may, from time to time, delegate to a committee (the
“
Committee
”) of the Board all or any of the powers conferred on the Board under the Plan. In connection with such delegation, the Committee 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 and conclusive. Notwithstanding any such delegation or any reference to the Committee in this Plan, except for Performance Awards made to Covered Employees, the Board may also take any action and exercise any powers that the Committee is authorized to take or has power to exercise under this Plan.
To the extent applicable in respect of certain Awards granted to a Participant who is a Section 16 officer or a Covered Employee,
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.
All
Participants and Director
Participants are eligible to participate in the Plan, subject to subsections 6.1(b) and 6.2(g). Eligibility to participate does not confer upon any
Participant or Director
Participant any right to receive any grant of an Award pursuant to the Plan. The extent to which any Participant
or Director Participant
is entitled to receive a grant of an Award pursuant to the Plan will be determined in the sole and absolute discretion of the Committee, provided however that the following restrictions shall apply to this Plan, together with all other Security Based Compensation Arrangements of the Corporation:
|
(a)
|
|
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;
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
; and
.
|
(c)
the number of Common Shares issued to Director Participants, shall not exceed the lesser of: (i) 1% of the
issued and outstanding
Common Shares
; and (ii) an annual Award value of $150,000 per Director Participant.
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
,
together with all other Security Based Compensation Arrangements of
the Corporation,
:
|
(a)
|
|
not exceed
10
5
% of the total number of issued and outstanding Common Shares at that time on a non-diluted basis
, and
|
|
(b)
|
|
together with all other Security Based Compensation Arrangements of
the Corporation, not exceed 10% of the total number of
issued and outstanding Common Shares
at that time on a non-diluted basis
.
|
No grant may be made under the Plan if such grant would result in the number of Common Shares that are the subject of or issuable pursuant to Awards exceeding the above-noted
limit
limits
. Subject to applicable law, the requirements of any stock exchange upon which the Common Shares may then be listed and any shareholder or other approval which may be required, the Board may in its discretion amend the Plan to increase such limit without notice to any Participants.
For purposes of computing the total number of Common Shares available for grant under the Plan, Common Shares that were the subject of or issuable pursuant to any Award (or any portion thereof) that has vested or expired or has been forfeited, surrendered, cancelled or otherwise terminated shall again be available for grant under the Plan.
All grants of Awards under this Plan will be evidenced by Award Agreements. Award Agreements will be subject to the applicable provisions of this Plan and will contain such provisions as are required by this Plan and any other provisions that the Committee may direct. Any one officer of the Corporation is authorized and empowered to execute and deliver, for and on behalf of the Corporation, an Award Agreement to each Participant
or Director Participant
granted an Award pursuant to this Plan.
Each Participant
or Director Participant
will, when requested by the Corporation, sign and deliver all such documents relating to the granting or vesting of Awards which the Corporation deems necessary or desirable.
|
3.7
|
|
Non-transferability of Awards
|
Subject to Section 6.1, Awards granted under this Plan may only be exercised during the lifetime of the Participant
or Director Participant
by such
Participant or Director
Participant personally. Subject to Section 6.1, no assignment or transfer of Awards, whether voluntary, involuntary, by operation of law or otherwise, vests any interest in or right to such Awards whatsoever in any assignee or transferee (except that a Participant
or Director Participant
may transfer Awards to Permitted Assigns) and immediately upon any assignment or transfer, or any attempt to make the
same, such Awards will terminate and be of no further force or effect. If any
Participant or Director
Participant has transferred Awards to a Permitted Assign that is a corporation pursuant to this Section 3.7, such Awards will terminate and be of no further force or effect if at any time the transferor should cease to own all of the issued shares of such corporation.
|
3.8
|
|
Section 162(m) Award
Limited
Limit
|
Subject to restrictions in Section 3.3 and to adjustment as provided for in Article 8 of the Plan, no Participant may be granted Performance Awards for more than 3,000,000 Common Shares in the aggregate in any calendar year.
|
Article 4
GRANT OF RESTRICTED SHARE UNITS AND RESTRICTED STOCK
|
The Committee may, from time to time, subject to the provisions of this Plan and such other terms and conditions as the Committee may prescribe, grant RSUs to any Participant
or any Director Participant
.
The Committee shall have the authority to make the receipt of Common Shares under the RSUs conditional upon:
|
(a)
|
|
the expiry of a time-based vesting period;
|
|
(b)
|
|
the attainment of specified Performance Goals; or
|
|
(c)
|
|
such other factors (which may vary as between awards of RSUs) as the Committee may determine in its discretion.
|
In general, the Committee shall, in whole or in part, make the receipt of Common Shares under RSUs conditional upon the attainment of specified Performance Goals.
The Committee shall have the authority to determine at the time of grant, in its discretion, the duration of the vesting period and other vesting terms applicable to the grant of RSUs, provided that
in all circumstances such vesting period shall be a minimum of one year in duration.
Upon the expiry of the applicable vesting period of RSUs or at such later date as may be otherwise specified in the relevant Award Agreement (the “
Vesting Date
”), the Common Shares issuable pursuant to the RSUs shall be registered in the name of the Participant
or Director Participant
or as the
Participant or Director
Participant may direct, subject to applicable securities laws, and upon such issuance of Common Shares the RSUs shall be cancelled.
|
(a)
|
|
The actual issuance of the Common Shares shall occur as soon as practicable following or contemporaneously with the applicable Vesting Date specified in the Award Agreement, but in no event later than:
|
|
(i)
|
|
60 days following the Vesting Date for a Participant
or Director Participant
that is resident in the United States; or
|
|
(ii)
|
|
the earlier of (
A
) 60 days following the Vesting Date and (
B
) December 31 of the third calendar year following the year of service for which the RSU was granted for a Participant
or Director Participant
that is resident in Canada.
|
|
(b)
|
|
Notwithstanding anything in the Plan or an Award Agreement to the contrary, to the extent that any RSU Award Agreement provides for the issuance of Common Shares to a Participant
or Director 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
or any Director Participant
with the terms and conditions set forth herein and with such additional terms and conditions not inconsistent with the provisions of the Plan as the Committee shall determine. The Committee shall have the authority to make the lapse of restrictions applicable to Restricted Stock conditional upon:
|
(a)
|
|
the expiry of a time-based vesting period;
|
|
(b)
|
|
the attainment of specified Performance Goals; or
|
|
(c)
|
|
such other factors (which may vary as between awards of Restricted Stock) as the Committee may determine in its discretion.
|
In general, the Committee shall, in whole or in part, make the lapse of restrictions applicable to Restricted Stock conditional upon the attainment of specified Performance Goals.
|
4.6
|
|
Vesting of Restricted Stock
|
The Committee shall have the authority to determine at the time of grant, in its discretion, the duration of the vesting period and other vesting terms applicable to the grant of Restricted Stock, provided that in all circumstances such vesting period shall be a minimum of one year in duration.
|
4.7
|
|
Restrictions on Restricted Stock
|
Common Shares of Restricted Stock shall be subject to such restrictions as the Committee may impose (including, without limitation, forfeiture conditions, transfer restrictions or a restriction on or prohibition against the right to receive any dividend or other right or property with respect thereto), which restrictions may lapse separately or in combination at such time or times, in such instalments or otherwise as the Committee may deem appropriate.
|
4.8
|
|
Share Certificates for Restricted Stock
|
Any Restricted Stock granted under the Plan shall be evidenced by the issuance of a share certificate or certificates, which shall be held by the Corporation. Such certificate or certificates shall be registered in the name of the Participant
or Director Participant
and shall bear an appropriate legend referring to the applicable Award Agreement and possible forfeiture of such shares of Restricted Stock.
If on its terms an Award would vest during a Black-Out Period, the vesting of such Award shall be deemed to be extended until the first Business Day following the end of the relevant Black-Out Period.
|
Article 5
PERFORMANCE-BASED COMPENSATION
|
For purposes of Awards granted pursuant to Article 3 or Article 4 which are intended to constitute “qualified performance-based compensation” within the meaning of Section 162(m) of the Code (“
Performance Awards
”), the following additional rules shall apply:
|
(a)
|
|
For each Performance Award, the Committee shall, not later than 90 days after the beginning of each performance period, (i) designate all Participants for such performance period and (ii) establish the objective performance factors for each Participant for that performance period on the basis of one or more of the Performance Goals, the outcome of which is substantially uncertain at the time the Committee actually establishes the Performance Goal. The Committee shall have sole discretion to determine the amount of any payment or transfer to be made pursuant to any Performance Award. In addition, the Committee shall have the sole discretion to determine the applicable performance period, provided that in the case of a performance period of less than 12 months, in no event shall a Performance Goal be considered to be pre-established if it is established after 25 percent of the performance period (as scheduled in good faith at the time the Performance Goal is established) has elapsed. To the extent required under Section 162(m) of the Code, the terms of the objective performance factors must preclude discretion to increase an amount paid in connection with an Award, but may permit discretion to reduce such amount.
|
|
(b)
|
|
Following the close of each performance period and prior to payment of any amount to a Participant with respect to a Performance Award, the Committee shall certify in writing as to the attainment of all factors (including the performance factors for a Participant) upon which any payments to a Participant for that performance period are to be based.
|
|
Article 6
TERMINATION OF EMPLOYMENT
|
|
6.1
|
|
Retirement, Death or Disability
|
If a
Participant or Director
Participant dies or becomes Disabled while an employee
,
or
officer
or director
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
or Director Participant
that are not yet vested at the Termination Date are immediately forfeited to the Corporation on the Termination Date;
|
|
(b)
|
|
such Participant’s
or Director Participant’s
eligibility to receive further grants of Awards under the Plan ceases as of the Termination Date; and
|
|
(c)
|
|
in the case of death or Disability, any Awards held by a
Participant or Director
Participant that have vested at the Termination Date will enure to the benefit of the Participant
or Director Participant
’s heirs, executors and administrators.
|
|
6.2
|
|
Termination of Employment or Services
|
|
(a)
|
|
Where a Participant’s
or Director 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
or, in the case of a Director Participant, the Director Participant’s death or Disability
, then the provisions of Section 6.1 will apply.
|
|
(b)
|
|
Where
a 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)
|
|
Where
a 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)
Where a Director Participant’s term of office is terminated by the Corporation for breach by the Director Participant of his or her fiduciary duty to the Corporation (as determined by the Committee in its discretion), then any Awards held by the Director Participant at the Termination Date (whether or not vested) are immediately forfeited to the Corporation on the Termination Date.
(f)
Where a Director Participant’s term of office terminates for any reason other than death or Disability of the Director Participant or a breach by the Director Participant of his or her fiduciary duty to the Corporation (as determined by the Committee in its discretion), the Committee or the Board may, in its discretion, at any time prior to or following the Termination Date, provide for the vesting of any or all Awards held by a Director Participant on the Termination Date.
|
(e)
|
|
(g)
The eligibility of a Participant
or Director 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
or Director Participant
with written notification that the Participant’s employment or term of office or engagement
, or the Director Participant’s term of office, as the case may be,
is terminated, notwithstanding that such date may be prior to the Termination Date.
|
|
(f)
|
|
(h)
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
, including without limitation a change in the employment arrangement of a Participant whereby such Participant becomes a Director Participant
.
|
|
(g)
|
|
(i)
Subject to applicable law and unless the Committee, in its discretion, otherwise determines, at any time and from time to time, Awards are not affected by a change of employment arrangement within or among the Corporation or an Affiliate where the Participant ceases to be an employee and continues as a Consultant Participant of the Corporation or an Affiliate so long as the Participant continues to be a Consultant Participant of the Corporation or an Affiliate.
|
|
6.3
|
|
Discretion to Accelerate Vesting
|
Notwithstanding the provisions of Sections 6.1 and 6.2, the Committee may, in its discretion, at any time prior to or following the events contemplated in such Sections, permit the acceleration of vesting of any or all RSU Awards or Restricted Stock Awards, all in the manner and on the terms as may be authorized by the Committee, provided that this Section 6.3 shall not permit the Committee, to use its discretion notwithstanding the provisions of Section 6.1 and 6.2 to accelerate the vesting of any or all RSU Awards or Restricted Awards where there has been a Change of Control. For greater certainty, in the event of a Change of Control the provisions of Section 7.1 shall apply.
|
Article 7
CHANGE IN CONTROL
|
Unless otherwise determined by the Committee or the Board at or after the Date of Grant, notwithstanding Article 6, if a Participant
or Director 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
, Director 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
or Director 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 or Director
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
or Director Participant
is not subject to excise tax under Section 4999 of the Code if such reduction would result in the Participant
or Director Participant
receiving a greater after-tax payment.
|
Article 8
SHARE 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 or on any Award granted hereunder.
Should the Corporation effect a subdivision or consolidation of Common Shares or any similar capital reorganization or a payment of a stock dividend (other than a stock dividend that is in lieu of a cash dividend), or should any other change be made in the capitalization of the Corporation that does not constitute a Change in Control and that would warrant the amendment or replacement of any existing Awards in order to adjust: (a) the number of Common Shares that may be 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
or Director 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
or Director 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
or Director 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 Corporation 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
or Director Participant
would become entitled to a fractional Common Share, the Participant
or Director 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 Board, in its discretion, such action would constitute a violation by a
Participant, Director
Participant or the Corporation of any provision of any applicable statutory or regulatory enactment of any government or government agency or the requirements of any stock exchange upon which the Common Shares 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 any change in the relationship between, or ownership of, the Corporation and an Affiliate. For greater certainty, all grants of Awards remain valid in accordance with the terms and conditions of this Plan and are not affected by reason only that, at any time, an Affiliate ceases to be an Affiliate.
The granting or vesting of each Award granted under this Plan is subject to the condition that if at any time the Committee determines, in its 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
”) is necessary or desirable in respect of such grant or vesting, such grant or vesting is not effective unless such withholding has been effected to the satisfaction of the Committee. In such circumstances, the Committee may establish procedures to ensure satisfaction of all applicable Withholding Obligations arising in connection with the Award and Committee shall require that a Participant
or Director Participant
agrees to:
|
(a)
|
|
make adequate provision for any Withholding Obligations that arise in connection with the Award no later than the date on which any amount with respect to the Award is required to 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 in payment of the Award, provided, however, that the number of the Common Shares so withheld shall not exceed the number necessary to satisfy the required Withholding Obligations using applicable statutory withholding rates and, if 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
Director Participant or
by causing the
Participant or Director
Participant to tender a cash payment to the Corporation, or (iii) selling on the
Participant’s or Director
Participant’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 Award 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.
|
9.4
|
|
Rights of Participant
|
No
Participant or Director
Participant has any claim or right to be granted an Award and the granting of any Award is not to be construed as giving a Participant
or Director Participant
a right to remain as an employee
,
or
consultant
or director
of the Corporation or an Affiliate. No Participant
or Director 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
or Director 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
or Director 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
or Director Participants, as the case may be;
;
|
|
(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
and Director 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 or Director
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
and Director 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
or Director 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
or Director 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 the Plan which would increase the number of Common Shares issuable to Director Participants under the Plan, otherwise than in accordance with the terms of this Plan;
|
(iii)
|
|
(iv)
amendments to this Section 9.5 of the Plan;
|
|
(iv)
|
|
(v)
the addition of any form of financial assistance to a Participant
or Director Participant
; and
|
|
(v)
|
|
(vi)
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 guidance under that section. In no event will the Corporation be responsible if Awards under this Plan result in adverse tax consequences to a U.S. Taxpayer under Section 409A of the Code. Notwithstanding any provisions of the Plan to the contrary, in the case of any “specified employee” within the meaning of Section 409A of the Code who is a U.S. Taxpayer, distributions of defined compensation under Section 409A of the Code made in connection with a “separation from service” within the meaning set forth in Section 409A of the Code may not be made prior to the date which is 6 months after the date of separation from service (or, if earlier, the date of death of the U.S. Taxpayer). Any amounts subject to a delay in payment pursuant to the preceding sentence shall be paid as soon as practicable following such 6-month anniversary of such separation from service.
|
9.7
|
|
Requirement of Notification of Election Under Section 83(b) of the Code
|
If a
Participant or Director
Participant, in connection with the issuance of Common Shares pursuant to a Restricted Stock Award, is permitted under the terms of the Award Agreement to make the election permitted under Section 83(b) of the Code (i.e., an election to include in gross income in the year of transfer the amounts specified in Section 83(b) of the Code notwithstanding the continuing transfer restrictions) and the
Participant or Director
Participant makes such an election, the Participant
or Director Participant
shall notify the Corporation of such election within ten (10) days of filing notice of the election with the Internal Revenue Service, in addition to any filing and notification required pursuant to regulations issued under Section 83(b) of the Code. A Section 83(b) election shall not be permitted with respect to an RSU Award.
|
9.8
|
|
Additional Conditions in Connection with Awards Granted to
Participants and Director
Participants Residing in Canada
|
Notwithstanding any other provision of the Plan, the following additional terms, conditions and restrictions apply to Awards granted to
Participants and Director
Participants residing in Canada:
|
(a)
|
|
Restricted Share Units.
Restricted Share Units shall be settled in Common Shares, unless the Corporation offers the
Participant or Director
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
or Director 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
or Director 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 or Director
Participant in the Plan is entirely voluntary and not obligatory and shall not be interpreted as conferring upon such Participant
or Director 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
or Director 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
Director
Participants
and they
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.
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.
SCHEDULE A
Form of RSU Award Agreement
Vista Gold Corp. (the “
Corporation
”) hereby grants the following Award(s) to the
Participant or Director
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 RSUs:
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 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
or Director 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.
|
3.
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|
As soon as administratively practicable following the Recipient’s vesting date under Section 2 hereof, but in no event later than:
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|
(a)
|
|
60 days following the vesting date for a Participant
or Director Participant
that is resident in the United States or;
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|
(a)
|
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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
or Director Participant
that is resident in Canada,
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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.
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4.
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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.
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5.
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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.
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6.
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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.
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7.
|
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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.
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8.
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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.
|
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9.
|
|
The Recipient hereby agrees that:
|
|
(a)
|
|
any rule, regulation or determination, including the interpretation by the Board of the Plan, with respect to
the 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.
|
|
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.
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|
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.
|
|
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Date Accepted
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Recipient’s Signature
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Recipient’s Name
(Please Print)
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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 or Director
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:
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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.
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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:
|
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(a)
|
|
____________ Restricted Shares on ______________;
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(b)
|
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____________ Restricted Shares on ______________;
|
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(c)
|
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____________ Restricted Shares on ______________; and
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(d)
|
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____________ Restricted Shares on ______________.
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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.
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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.
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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.
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5.
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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.
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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
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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:
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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.
|
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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 to
the 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.
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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.
|
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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.
|
|
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Date Accepted
|
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Recipient’s Signature
|
|
|
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Recipient’s Name
(Please Print)
|
APPENDIX “E”
VISTA GOLD CORP.
DEFERRED SHARE UNIT PLAN
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.
For purposes of this Plan:
“
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;
“
Common
Shares
” 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 Account, 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.
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(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.
|
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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.
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3.2
|
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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.
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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)
|
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such other terms and conditions of the DSUs applicable to each grant.
|
|
(a)
|
|
The Corporation shall not make any grant of DSU’s pursuant to this Plan unless and until such grant or issuance and delivery can be completed in compliance with all applicable laws, regulations, rules, orders of governmental or regulatory authorities and the requirements of the Exchanges. The Corporation shall be obligated to take all reasonable action to comply with any such laws, regulations, rules, orders or requirements.
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|
(b)
|
|
Certificates will not be issued to evidence DSUs. Book entry accounts, to be known as the “
Deferred Share Unit Account
” shall be maintained by the Corporation for each Participant and will be credited with DSUs granted to a Participant from time to time.
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(c)
|
|
The term during which a DSU may be outstanding shall, subject to the provisions of this Plan requiring or permitting the acceleration or the extension of the term, be such period as may be determined from time to time by the Board, but subject to the rules of the Exchanges or other regulatory body having jurisdiction.
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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.
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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.
|
2.5
|
|
Reporting of Deferred Share Units
|
Statements of the Deferred Share Unit Accounts will be provided to Participants on an annual basis.
|
2.6
|
|
Distribution Date Election
|
A Participant shall have the right to receive Payment Shares in respect of Deferred Share Units recorded in the Participant’s Account in accordance with Section 4.7, on one of the following dates (the “
Distribution Date
”):
|
(a)
|
|
the Separation Date, if (i) the Participant has resigned at the end of their term on the Board, or (ii) upon death of the Participant;
|
|
(b)
|
|
60 days after the Separation Date, if the Participant resigns or is removed from the Board prior to the end of their term on the Board, for any reason; or
|
|
(c)
|
|
such later date as the Participant may elect by written notice delivered to the Chief Financial Officer of the Corporation prior to the Separation Date, provided that in no event shall a Participant be permitted to elect a date which is later than December 1
st
of the calendar year following the calendar year in which the Separation Date occurs.
|
|
2.7
|
|
Distribution of Deferred Share Units in Payment Shares
|
Deferred Share Units shall be 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)
|
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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.
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(c)
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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.
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(d)
|
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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.
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2.8
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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.
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2.9
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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.
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(a)
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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,
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arising upon the grant or exercise of rights under this Plan by a Participant who is resident in Canada for income tax purposes.
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(b)
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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.
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5.1
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Amendment, Suspension, or Termination of Plan
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(a)
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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:
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|
(i)
|
|
altering, extending or accelerating the terms of vesting applicable to any grant of DSUs or group of DSU grants under this Plan;
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(ii)
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making any amendments to the general vesting provisions of DSUs granted under this Plan;
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|
(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;
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|
(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;
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(vi)
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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;
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(vii)
|
|
making any amendments to the definitions of this Plan;
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|
(viii)
|
|
effecting amendments with respect to the administration of this Plan; and
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|
(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
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|
(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.
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|
(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
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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.
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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.
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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.
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5.5
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|
DSUs Non-Transferable
|
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.
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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.
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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.
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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.
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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.
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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 3
rd
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.
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.
|
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.
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.
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”
).
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
This Deferred Share Unit Agreement is entered into between Vista Gold Corp. (the “
Corporation
”) 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.
By:
Signature of Eligible Director
Vista Gold (AMEX:VGZ)
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