(1) | Title of each class of securities to which transaction applies: |
(2) | Aggregate number of securities to which transaction applies: |
(3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was determined): |
(4) | Proposed maximum aggregate value of transaction: |
(5) | Total fee paid: |
(1) | Amount Previously Paid: |
(2) | Form, Schedule or Registration Statement No.: |
(3) | Filing Party: |
(4) | Date Filed: |
1. | To elect eight directors of the Company, each to hold their offices until the next annual meeting of the Company’s stockholders or until their successors have been duly elected and qualified or until his earlier resignation, removal or death. |
2. | To approve an increase of the Company’s authorized capital stock to 450,000,000 from 350,000,000, of which 440,000,000 will be deemed common shares and the remaining 10,000,000 will be deemed eligible to be divisible into classes, series and types as designated by the Board of Directors. The Board of Directors suggests that the Stockholders vote “FOR” this proposal at the meeting. |
3. | To approve an amendment to the Company’s Amended and Restated Stock Option Plan to increase the authorized number of options for common shares of the Company authorized to be issued to 32,500,000 from 27,000,000. The Board of Directors recommends that the Stockholders vote “FOR” this Proposal at the Meeting. |
4. | To approve an amendment to the Company’s Articles of Incorporation to comply with the Toronto Stock Exchange requirements prohibiting the Company from issuing, for consideration, promissory notes or promises to pay for services to be performed in the future. The Board of Directors suggests that the Stockholders vote “FOR” this proposal at the meeting. |
5. | To ratify the appointment of MSCM LLP, Chartered Accountants, as the Company’s independent registered public accounting firm for the fiscal year ending June 30, 2013. The Board of Directors recommends that the Stockholders vote “FOR” this Proposal at the Meeting. |
6. | To transact such other business as may properly come before the Meeting. |
Dated: January 4, 2013 | By: | /s/ J.A. Kirk McKinnon | |
J.A. Kirk McKinnon, Chairman and Chief Executive Officer |
PROXY STATEMENT FOR 2012 ANNUAL AND SPECIAL MEETING OF STOCKHOLDERS OF ENERGIZER RESOURCES INC. February 19, 2013 |
· | FOR the election of persons put forth in this proxy to serve on the Board of the Company; |
· | FOR the approval to increase the authorized capital stock of the Company; |
· | FOR the approval of the amendment to the Company’s Amended and Restated Stock Option Plan that increases the number of options for common shares of the Company authorized to be issued; |
· | FOR the approval of the amendment to the Company’s Articles of Incorporation prohibiting the Company from issuing, for consideration, promissory notes or promises to pay for services to be performed in the future as required by the TSX; |
· | FOR the ratification of the appointment of MSCM LLP, Chartered Accountants, as the Company’s independent registered public accounting firm for the fiscal year ending June 30, 2013; and |
· | regarding any other matter that may properly be brought before the Meeting in accordance with the judgment of the person or persons voting. We do not expect that any matter other than the matters described in this proxy statement to be brought before the Meeting. |
Name | Age | Position |
J.A. Kirk McKinnon | 69 | Chief Executive Officer, Chairman and Director |
Richard E. Schler | 59 | Executive Vice President and Director |
Craig Scherba | 40 | President and Director |
John Sanderson | 77 | Vice Chairman and Director |
V. Peter Harder | 60 | Director |
Quentin Yarie | 47 | Director |
Johann de Bruin | 42 | Director |
Albert A. Thiess, Jr. | 65 | Director |
· | be responsible for the appointment, compensation, retention, termination and oversight of the work of any independent auditor engaged for the purpose of preparing or issuing an audit report or performing other audit, review or attest services for the Company; |
· | discuss the annual audited financial statements and the quarterly unaudited financial statements with management and the independent auditor prior to their filing with the SEC; |
· | periodically review with management (a) issues regarding accounting principles and financial statement presentations, including significant changes in the Company’s selection or application of accounting principles, and (b) the effect of any regulatory and accounting initiatives, as well as off-balance sheet structures, on the financial statements of the Company; |
· | monitor the Company’s policies for compliance with federal, state, local and foreign laws and regulations and the Company’s policies on corporate conduct; |
· | maintain open, continuing and direct communication between the Board, the committee and both the company’s independent auditors and its internal auditors; and |
· | monitor our compliance with legal and regulatory requirements, with the authority to initiate any special investigations of conflicts of interest, and compliance with federal, state and local laws and regulations, including, but not limited to, the Foreign Corrupt Practices Act. |
· | Strategic Planning Process: given the Company's size, the strategic plan is elaborated directly by management, with input from and assistance of the Board; |
· | Managing Risk: the Board directly oversees most aspects of the business of the Company and thus, does not require elaborate systems or numerous committees to effectively monitor and manage the principal risks of all aspects of the business of the Company; |
· | Appointing, Training, and Monitoring Senior Management: no elaborate system of selection, training and assessment of Management has been established, given the operations and size of the Company; however, the Board closely monitors Management's performance, which is measured against the overall strategic plan, through reports by and regular meetings with management; |
· | Communication Policy: it is and has always been the unwritten policy of the Board to communicate effectively with its shareholders, other stakeholders, and the public generally through statutory filings and mailings, as well as news releases; the shareholders are also given an opportunity to make comments or suggestions at shareholder meetings; these comments and suggestions are then factored into the Board's decisions; and |
· | Ensuring the integrity of the Company's Internal Control and Management Information System: given the involvement of the Board in operations, the reports from and the meetings with management, the Board can effectively track and monitor the implementation of approved strategies. |
Name and Principal Position | Fiscal Year | Salary ($) | Bonus ($) | Stock Awards ($) NOTE 6 | Option Awards ($) | Non Equity Inventive Plan Compens-aton ($) | Change in Pension Value and Non Qualified Deferred Compensation Earnings ($) | All Other Compens-ation ($) NOTE 1 | Total ($) NOTE 1 |
J.A. Kirk McKinnon, CEO and Director | 2012 | 248,207 (5) | 0 | 0 | 0 | 0 | 0 | 739,062 (1) | 987,269 (1) |
2011 | 261,810 (4) | 0 | 0 | 0 | 0 | 0 | 0 | 261,810 | |
2010 | 134,178 (3) | 0 | 80,750 (2) | 0 | 0 | 0 | 512,469 (1) | 727,397 (1) | |
Richard E. Schler, Executive Vice-President, Past CFO and Director | 2012 | 201,407 (5) | 0 | 0 | 0 | 0 | 0 | 557,033 (1) | 758,440 (1) |
2011 | 189,490 (4) | 0 | 0 | 0 | 0 | 0 | 0 | 189,490 | |
2010 | 129,953 (3) | 0 | 76,500 (2) | 0 | 0 | 0 | 488,218 (1) | 694,671 (1) | |
Craig Scherba President, COO and Director | 2012 | 105,214 (5) | 0 | 0 | 0 | 0 | 0 | 260,035 (1) | 365,249 (1) |
2011 | 71,048 (4) | 0 | 0 | 0 | 0 | 0 | 0 | 71,048 | |
2010 | 0 | 0 | 0 | 0 | 0 | 0 | 83,325 (1) | 83,325 (1) | |
Brent Nykoliation, Senior Vice President | 2012 | 162,085 (5) | 0 | 0 | 0 | 0 | 0 | 275,345 (1) | 437,430 (1) |
2011 | 99,488 (4) | 0 | 0 | 0 | 0 | 0 | 0 | 99,488 | |
2010 | 42,231 (3) | 0 | 34,000 (2) | 0 | 0 | 0 | 138,715 (1) | 214,946 (1) | |
Peter D. Liabotis, Chief Financial Officer | 2012 | 168,764 (5) | 0 | 0 | 0 | 0 | 0 | 247,975 (1) | 416,739 (1) |
2011 | 67,309 (4) | 0 | 0 | 0 | 0 | 0 | 0 | 67,309 | |
2010 | 0 | 0 | 0 | 0 | 0 | 0 | 83,325 (1) | 83,325 (1) |
Name and Principal Position | Fiscal Year | Salary ($) | Bonus ($) | Stock Awards ($) | Option Awards ($) | Non Equity Inventive Plan Compens-aton ($) | Change in Pension Value and Non Qualified Deferred Compensation Earnings ($) | All Other Compens-ation ($) NOTE 1 | Total ($) NOTE 1 |
J.A. Kirk McKinnon, CEO and Director | 2012 | 248,207 (5) | 0 | 0 | 0 | 0 | 0 | 739,062 (1) | 987,269 (1) |
2011 | 261,810 (4) | 0 | 0 | 0 | 0 | 0 | 0 | 261,810 | |
2010 | 134,178 (3) | 0 | 80,750 (2) | 0 | 0 | 0 | 512,469 (1) | 727,397 (1) | |
Richard E. Schler, Executive Vice-President, Past CFO and Director | 2012 | 201,407 (5) | 0 | 0 | 0 | 0 | 0 | 557,033 (1) | 758,440 (1) |
2011 | 189,490 (4) | 0 | 0 | 0 | 0 | 0 | 0 | 189,490 | |
2010 | 129,953 (3) | 0 | 76,500 (2) | 0 | 0 | 0 | 488,218 (1) | 694,671 (1) | |
Craig Scherba | 2012 | 105,214 (5) | 0 | 0 | 0 | 0 | 0 | 260,035 (1) | 365,249 (1) |
2011 | 71,048 (4) | 0 | 0 | 0 | 0 | 0 | 0 | 71,048 | |
2010 | 0 | 0 | 0 | 0 | 0 | 0 | 83,325 (1) | 83,325 (1) | |
Brent Nykoliation | 2012 | 162,085 (5) | 0 | 0 | 0 | 0 | 0 | 275,345 (1) | 437,430 (1) |
2011 | 99,488 (4) | 0 | 0 | 0 | 0 | 0 | 0 | 99,488 | |
2010 | 42,231 (3) | 0 | 34,000 (2) | 0 | 0 | 0 | 138,715 (1) | 214,946 (1) | |
Peter D. Liabotis | 2012 | 168,764 (5) | 0 | 0 | 0 | 0 | 0 | 247,975 (1) | 416,739 (1) |
2011 | 67,309 (4) | 0 | 0 | 0 | 0 | 0 | 0 | 67,309 | |
2010 | 0 | 0 | 0 | 0 | 0 | 0 | 83,325 (1) | 83,325 (1) |
(1) | The values in the “All Other Compensation” above do not represent a cash payment of any kind. Rather these values represent the calculated Black-Scholes theoretical value of granted options. It is important to note that these granted options may or may not ever be exercised. Whether granted options are exercised or not will be based primarily, but not singularly, on the Company’s future stock price and whether the granted options become “in-the-money”. If these granted options are unexercised and expire, the cash value or benefit to the above noted individuals is $nil. |
(2) | Shares valued at $0.17 per share based on quoted market price issued to these individuals and/or to companies controlled by them. |
(3) | Consulting fees paid and accrued for the fiscal year ended June 30, 2010. |
(4) | Consulting fees paid and accrued for the fiscal year ended June 30, 2011. |
(5) | Salary and/or consulting fees paid and accrued for the fiscal year ended June 30, 2012. |
(6) | The amounts listed in the “Stock Awards” column of the “Summary Compensation” table have been calculated based upon the aggregate grant date fair value computed in accordance with FASB ASC Topic 718 and there are no awards subject to performance conditions. |
Option Awards | |||||
Name | No. of Securities Underlying Unexercised Options Exercisable (#) | No. of Securities Underlying Unexercised Options Unexercisable (#) | Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#) | Option Exercise Price ($) | Option Expiration Date |
J.A. Kirk McKinnon, NEO | 975,000 225,000 1,150,000 675,000 575,000 650,000 1,420,000 | 0 | 0 | 0.15 0.352 0.395 0.30 0.20 0.21 0.28 | July 11, 2012 Sept 2, 2013 May 11, 2016 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Richard E. Schler, NEO | 875,000 200,000 1,100,000 600,000 225,000 200,000 1,340,000 | 0 | 0 | 0.15 0.352 0.395 0.30 0.20 0.21 0.28 | July 11, 2012 Sept 2, 2013 May 11, 2016 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Craig Scherba, NEO | 250,000 350,000 200,000 200,000 400,000 | 0 | 0 | 0.395 0.30 0.20 0.21 0.28 | May 11, 2016 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Brent Nykoliation, NEO | 75,000 400,000 450,000 200,000 200,000 350,000 | 0 | 0 | 0.352 0.395 0.30 0.20 0.21 0.28 | Sept 2, 2013 May 11, 2016 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Peter D. Liabotis, NEO | 250,000 350,000 200,000 200,000 350,000 | 0 | 0 | 0.395 0.30 0.20 0.21 0.28 | May 11, 2016 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Name | Stock awards | |||||||||||
Stock awards | ||||||||||||
Name | Number of shares or units of stock that have not vested (#) | Market value of shares or units of stock that have not vested (#) | Equity incentive plan awards: number of unearned shares, units or other rights that have not vested (#) | Equity incentive plan awards: market or payout value of unearned shares, units or other rights that have not vested ($) | Number of shares or units of stock that have not vested (#) | Market value of shares or units of stock that have not vested (#) | Equity incentive plan awards: number of unearned shares, units or other rights that have not vested (#) | Equity incentive plan awards: market or payout value of unearned shares, units or other rights that have not vested ($) | ||||
0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | |||||
Richard E. Schler, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | ||||
Craig Scherba, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | ||||
Brent Nykoliation, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | ||||
Peter D. Liabotis, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Name | Option awards | Stock awards | ||||||||||
Option awards | Stock awards | |||||||||||
Name | Number of Shares Acquired on Exercise (#) | Value Realized on Exercise ($) | Number of Shares Acquired on Vesting (#) | Value Realized on Investing ($) | Number of Shares Acquired on Exercise (#) | Value Realized on Exercise ($) | Number of Shares Acquired on Vesting (#) | Value Realized on Investing ($) | ||||
0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | |||||
Richard E. Schler, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | ||||
Craig Scherba, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | ||||
Brent Nykoliation, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | ||||
Peter D. Liabotis, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Name | Grant date | Estimated future payouts under non-equity incentive plan awards | Estimated future payouts under equity incentive plan awards | All other stock awards: Number of shares of stock or units (#) | All other option awards: Number of securities underlying options (#) | Exercise or base price of option awards ($/Sh) | Grant date fair value of stock and option awards | Grant date | Estimated future payouts under non-equity incentive plan awards | Estimated future payouts under equity incentive plan awards | All other stock awards: Number of shares of stock or units (#) | All other option awards: Number of securities underlying options (#) | Exercise or base price of option awards ($/Sh) | Grant date fair value of stock and option awards | ||||||||
Threshold ($) | Target ($) | Maximum ($) | Threshold (#) | Target (#) | Maximum (#) | Threshold ($) | Target ($) | Maximum ($) | Threshold (#) | Target (#) | Maximum (#) | |||||||||||
J.A. Kirk McKinnon, NEO | n/a | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | n/a | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | ||
Richard E. Schler, NEO | n/a | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | n/a | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | ||
Craig Scherba, NEO | n/a | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | n/a | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | ||
Brent Nykoliation, NEO | n/a | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | n/a | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | ||
Peter D. Liabotis, NEO | n/a | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | n/a | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Name | Executive contributions in last FY ($) | Registrant contributions in last FY ($) | Aggregate earnings in last FY ($) | Aggregate withdrawals/ distributions ($) | Aggregate balance at last FYE ($) | Executive contributions in last FY ($) | Registrant contributions in last FY ($) | Aggregate earnings in last FY ($) | Aggregate withdrawals/ distributions ($) | Aggregate balance at last FYE ($) |
J.A. Kirk McKinnon, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Richard E. Schler, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Craig Scherba, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Brent Nykoliation, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Peter D. Liabotis, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Name | Cash ($) | Equity ($) | Pension/ NQDC ($) | Perquisites/ benefits ($) | Tax reimbursement ($) | Other ($) | Total ($) | Cash ($) | Equity ($) | Pension/NQDC ($) | Perquisites/benefits ($) | Tax reimbursement ($) | Other ($) | Total ($) |
J.A. Kirk McKinnon, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Richard E. Schler, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Craig Scherba, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Brent Nykoliation, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Peter D. Liabotis, NEO | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Number of Shares | Weighted average exercise price ($) | |
Outstanding, June 30, 2010 | 13,620,000 | 0.30 |
Granted | 1,100,000 | 0.25 |
Cancelled | (590,000) | 0.57 |
Outstanding June 30, 2011 | 14,130,000 | 0.29 |
Granted | 15,845,000 | 0.27 |
Exercised | (510,000) | 0.15 |
Expired | (2,475,000) | 0.15 |
Cancelled | (3,300,000) | 0.31 |
Outstanding, June 30, 2012 | 23,690,000 | 0.29 |
Number of Shares | Weighted average exercise price ($) | |
Outstanding, June 30, 2010 | 13,620,000 | 0.30 |
Granted | 1,100,000 | 0.25 |
Cancelled | (590,000) | 0.57 |
Outstanding June 30, 2011 | 14,130,000 | 0.29 |
Granted | 15,845,000 | 0.27 |
Exercised | (510,000) | 0.15 |
Expired | (2,475,000) | 0.15 |
Cancelled | (3,300,000) | 0.31 |
Outstanding, June 30, 2012 | 23,690,000 | 0.29 |
Exercise price | Outstanding | Exercisable | |||
Number of shares | Weighted average remaining life (years) | Weighted average exercise price | Number of shares | Weighted average exercise price | |
$0.15 | 2,395,000 | 0.03 | $0.15 | 2,395,000 | $0.15 |
$0.35 | 750,000 | 1.18 | $0.35 | 750,000 | $0.35 |
$0.40 | 5,350,000 | 1.86 | $0.40 | 5,350,000 | $0.40 |
$0.30 | 4,525,000 | 4.01 | $0.30 | 4,525,000 | $0.30 |
$0.20 | 1,850,000 | 4.32 | $0.20 | 1,850,000 | $0.20 |
$0.21 | 2,365,000 | 4.42 | $0.21 | 2,365,000 | $0.21 |
$0.28 | 6,275,000 | 4.69 | $0.28 | 6,275,000 | $0.28 |
$0.23 | 180,000 | 4.90 | $0.23 | 180,000 | $0.23 |
Total/Average | 23,690,000 | 3.31 | $0.29 | 23,690,000 | $0.29 |
· | During early July, 2012, 700,000 stock options which were due to expire on July 11, 2012 were exercised. The remaining 1,695,000 stock options expired. |
· | On July 13, 2012, 1,695,000 stock options were issued at an exercise price of US$0.29 for a term of four years. |
Name | Fees Earned or Paid in Cash ($) | Stock Awards ($) | Option Awards (1) ($) | Non-Equity Incentive Plan Compensation ($) | Change in Pension Value and Nonqualified Deferred Compensation Earnings ($) | All other Comp-ensation ($) | Total (1) ($) | Fees Earned or Paid in Cash ($) | Stock Awards ($) | Option Awards (1) ($) | Non-Equity Incentive Plan Compensation ($) | Change in Pension Value and Nonqualified Deferred Compensation Earnings ($) | All other Comp-ensation ($) | Total (1) ($) |
John Sanderson, Director | 0 | 0 | 74,898 (1) | 0 | 0 | 0 | 74,898 (1) | 0 | 0 | 74,898 (1) | 0 | 0 | 0 | 74,898 (1) |
Quentin Yarie, Director | 0 | 0 | 187,535 (1) | 0 | 0 | 0 | 187,535 (1) | 0 | 0 | 187,535 (1) | 0 | 0 | 0 | 187,535 (1) |
Peter Harder, Director | 0 | 0 | 101,485 (1) | 0 | 0 | 0 | 101,485 (1) | |||||||
V. Peter Harder, Director | 0 | 0 | 101,485 (1) | 0 | 0 | 0 | 101,485 (1) | |||||||
Johann de Bruin, Director | 0 | 0 | 48,240 (1) | 0 | 0 | 0 | 48,240 (1) | 0 | 0 | 48,240 (1) | 0 | 0 | 0 | 48,240 (1) |
Albert A. Thiess, Jr, Director | 0 | 0 | 35,982 (1) | 0 | 0 | 0 | 35,982 (1) | 0 | 0 | 35,982 (1) | 0 | 0 | 0 | 35,982 (1) |
(1) | The values in the “Option Awards” and included within the “Total” columns above do not represent a cash payment of any kind. Rather these values represent the calculated Black-Scholes theoretical value of granted options. It is important to note that these granted options may or may not ever |
Name | Plan name | Number of years credited service (#) | Present value of accumulated benefit ($) | Payments during last fiscal year ($) | Plan name | Number of years credited service (#) | Present value of accumulated benefit ($) | Payments during last fiscal year ($) |
J.A. Kirk McKinnon, NEO | not applicable | 0 | 0 | 0 | not applicable | 0 | 0 | 0 |
Richard E. Schler, NEO | not applicable | 0 | 0 | 0 | not applicable | 0 | 0 | 0 |
Craig Scherba, NEO | not applicable | 0 | 0 | 0 | not applicable | 0 | 0 | 0 |
Brent Nykoliation, NEO | not applicable | 0 | 0 | 0 | not applicable | 0 | 0 | 0 |
Peter D. Liabotis, NEO | not applicable | 0 | 0 | 0 | not applicable | 0 | 0 | 0 |
Name and Address of Beneficial Owner | Number of Common Shares Beneficially Owned | Percentage of Outstanding Common Shares Beneficially Owned(1) |
Consolidated Thompson Iron Mines Limited 1155 University Street, Suite 508 Montréal, Québec, Canada | 13,333,334 | 5.72% |
Dundee Corporation 1 Adelaide Street East, Suite 2800 Toronto, Ontario, Canada | 11,896,450 | 5.10% |
J.A. Kirk McKinnon, Chairman, CEO & Director 46 Ferndale Crescent Brampton, Ontario, Canada (2) (13) | 10,457,000 | 4.49% |
Richard E. Schler, Executive Vice President & Director 80 Greybeaver Trail Toronto, Ontario, Canada (3) (13) | 9,100,000 | 3.90% |
John Sanderson, Director 1721 – 27th Street West Vancouver, BC, Canada (4) (10) (13) | 825,000 | 0.35% |
Quentin Yarie, Director 196 McAllister Road North York, Ontario (5) (10) (13) | 1,425,000 | 0.61% |
Peter Harder, Director 5538 Pattapiece Crescent Manotick, Ontario, Canada (6) (10) (13) | 1,000,000 | 0.44% |
Craig Scherba, President & Director 1480 Willowdown Road, Oakville, Ontario, Canada (7) (13) | 1,400,000 | 0.43% |
Johann de Bruin, Director 1283 Dunwoodie Ave Pretoria, South Africa (8) (13) | 200,000 | 0.09% |
Albert A. Thiess, Jr., Director 8 Lawson’s Pond Court Bluffton, SC, USA (9) (13) | 280,000 | 0.12% |
Peter D. Liabotis, SVP and CFO 2261 Rockingham Drive, Oakville, Ontario, Canada (11) (13) | 1,481,000 | 0.64% |
Brent Nykoliation, SVP 161 Fallingbrook Road Toronto, Ontario, Canada (12) (13) | 2,350,000 | 1.01% |
All directors and executive officers as a group (10 persons) (12) | 28,518,000 | 12.08% |
Name and Address of Beneficial Owner | Number of Common Shares Beneficially Owned | Percentage of Outstanding Common Shares Beneficially Owned(1) |
Consolidated Thompson Iron Mines Limited 1155 University Street, Suite 508 Montréal, Québec, Canada | 13,333,334 | 5.72% |
Dundee Corporation 1 Adelaide Street East, Suite 2800 Toronto, Ontario, Canada | 11,896,450 | 5.10% |
J.A. Kirk McKinnon, Chairman, CEO & Director 46 Ferndale Crescent Brampton, Ontario, Canada (2) (13) | 10,457,000 | 4.49% |
Richard E. Schler, Executive Vice President & Director 80 Greybeaver Trail Toronto, Ontario, Canada (3) (13) | 9,100,000 | 3.90% |
John Sanderson, Director 1721 – 27th Street West Vancouver, BC, Canada (4) (10) (13) | 825,000 | 0.35% |
Quentin Yarie, Director 196 McAllister Road North York, Ontario (5) (10) (13) | 1,425,000 | 0.61% |
V. Peter Harder, Director 5538 Pattapiece Crescent Manotick, Ontario, Canada (6) (10) (13) | 1,000,000 | 0.44% |
Craig Scherba, President & Director 1480 Willowdown Road, Oakville, Ontario, Canada (7) (13) | 1,400,000 | 0.43% |
Johann de Bruin, Director 1283 Dunwoodie Ave Pretoria, South Africa (8) (13) | 200,000 | 0.09% |
Albert A. Thiess, Jr., Director 8 Lawson’s Pond Court Bluffton, SC, USA (9) (13) | 280,000 | 0.12% |
Peter D. Liabotis, SVP and CFO 2261 Rockingham Drive, Oakville, Ontario, Canada (11) (13) | 1,481,000 | 0.64% |
Brent Nykoliation, SVP 161 Fallingbrook Road Toronto, Ontario, Canada (12) (13) | 2,350,000 | 1.01% |
All directors and executive officers as a group (10 persons) (12) | 28,518,000 | 12.08% |
Option Awards as of June 30, 2012 | ||||||
Name | No. of Shares of Common Stock Underlying Unexercised Common Stock Purchase Options Exercisable (#) | Date of Grant | Additional Consideration to be Received Upon Exercise or Material Conditions required to Exercise | Option Exercise Price ($) | Value Realized if Exercised ($) * | Option Expiration Date |
J.A. Kirk McKinnon, NEO | 975,000 225,000 1,150,000 675,000 575,000 650,000 1,420,000 | July 11, 2007 September 2, 2009 May 11, 2010 July 1, 2011 October 24, 2011 December 1, 2011 March 7, 2012 | None. None. None. None. None. None. None. | 0.15 0.352 0.395 0.30 0.20 0.21 0.28 | Expired 0 0 20,250 74,750 78,000 71,000 | July 11, 2012 Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Richard E. Schler, NEO | 875,000 200,000 1,100,000 600,000 225,000 200,000 1,340,000 | July 11, 2007 September 2, 2009 May 11, 2010 July 1, 2011 October 24, 2011 December 1, 2011 March 7, 2012 | None. None. None. None. None. None. None. | 0.15 0.352 0.395 0.30 0.20 0.21 0.28 | Expired 0 0 18,000 29,250 24,000 67,000 | July 11, 2012 Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Craig Scherba, NEO | 250,000 350,000 200,000 200,000 400,000 | May 11, 2010 July 1, 2011 October 24, 2011 December 1, 2011 March 7, 2012 | None. None. None. None. None. | 0.395 0.30 0.20 0.21 0.28 | 0 10,500 26,000 24,000 20,000 | May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Brent Nykoliation, NEO | 75,000 400,000 450,000 200,000 200,000 350,000 | September 2, 2009 May 11, 2010 July 1, 2011 October 24, 2011 December 1, 2011 March 7, 2012 | None. None. None. None. None. None. | 0.352 0.395 0.30 0.20 0.21 0.28 | 0 0 13,500 26,000 24,000 17,500 | Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Peter D. Liabotis, NEO | 250,000 350,000 200,000 200,000 350,000 | May 11, 2010 July 1, 2011 October 24, 2011 December 1, 2011 March 7, 2012 | None. None. None. None. None. | 0.395 0.30 0.20 0.21 0.28 | 0 10,500 26,000 24,000 17,500 | May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Quentin Yarie, Director | 50,000 250,000 300,000 50,000 150,000 300,000 | September 2, 2009 May 11, 2010 July 1, 2011 October 24, 2011 December 1, 2011 March 7, 2012 | None. None. None. None. None. None. | 0.352 0.395 0.30 0.20 0.21 0.28 | 0 0 9,000 6,500 18,000 15,000 | Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
V. Peter Harder, Director | 250,000 225,000 25,000 75,000 100,000 | May 11, 2010 July 1, 2011 October 24, 2011 December 1, 2011 March 7, 2012 | None. None. None. None. None. | 0.395 0.30 0.20 0.21 0.28 | 0 6,750 3,250 9,000 5,000 | May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
John Sanderson, Director | 50,000 200,000 125,000 50,000 50,000 100,000 | September 2, 2009 May 11, 2010 July 1, 2011 October 24, 2011 December 1, 2011 March 7, 2012 | None. None. None. None. None. None. | 0.352 0.395 0.30 0.20 0.21 0.28 | 0 0 3,750 6,500 6,000 5,000 | Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Johann de Bruin, Director | 200,000 | March 7, 2012 | None | 0.28 | 10,000 | March 7, 2017 |
Albert A. Thiess, Jr., Director | 180,000 | May 23, 2012 | None | 0.23 | 18,000 | May 23, 2017 |
Option Awards | |||||
Name | No. of Securities Underlying Unexercised Options Exercisable (#) | No. of Securities Underlying Unexercised Options Unexercisable (#) | Equity Incentive Plan Awards: No. of Securities Underlying Unexercised Unearned Options (#) | Option Exercise Price ($) | Option Expiration Date |
J.A. Kirk McKinnon, NEO | 975,000 225,000 1,150,000 675,000 575,000 650,000 1,420,000 | 0 | 0 | 0.15 0.352 0.395 0.30 0.20 0.21 0.28 | July 11, 2012 Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Richard E. Schler, NEO | 875,000 200,000 1,100,000 600,000 225,000 200,000 1,340,000 | 0 | 0 | 0.15 0.352 0.395 0.30 0.20 0.21 0.28 | July 11, 2012 Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Craig Scherba, NEO | 250,000 350,000 200,000 200,000 400,000 | 0 | 0 | 0.395 0.30 0.20 0.21 0.28 | May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Brent Nykoliation, NEO | 75,000 400,000 450,000 200,000 200,000 350,000 | 0 | 0 | 0.352 0.395 0.30 0.20 0.21 0.28 | Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Peter D. Liabotis, NEO | 250,000 350,000 200,000 200,000 350,000 | 0 | 0 | 0.395 0.30 0.20 0.21 0.28 | May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Quentin Yarie, Director | 50,000 250,000 300,000 50,000 150,000 300,000 | 0 | 0 | 0.352 0.395 0.30 0.20 0.21 0.28 | Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Peter Harder, Director | 250,000 225,000 25,000 75,000 100,000 | 0 | 0 | 0.395 0.30 0.20 0.21 0.28 | May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
John Sanderson, Director | 50,000 200,000 125,000 50,000 50,000 100,000 | 0 | 0 | 0.352 0.395 0.30 0.20 0.21 0.28 | Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Johann de Bruin, Director | 200,000 | 0 | 0 | $0.28 | March 7, 2017 |
Albert A. Thiess, Jr., Director | 180,000 | 0 | 0 | $0.23 | May 23, 2017 |
Option Awards as of June 30, 2012 | |||||
Name | No. of Shares of Common stock Underlying Unexercised Common Stock Purchase Options Exercisable (#) | Date of Grant | Additional Consideration to be Received Upon Exercise or Material Conditions required to Exercise | Option Exercise Price ($) | Option Expiration Date |
Named Executive Officers which includes all current executive officers, as a group on June 30, 2012 (5 persons) - J.A. Kirk McKinnon; Richard E. Schler; Craig Scherba; Brent Nykoliation;, Peter D. Liabotis | 1,850,000 500,000 3,150,000 2,425,000 1,400,000 1,450,000 3,860,000 | July 11, 2007 September 2, 2009 May 11, 2010 July 1, 2011 October 24, 2011 December 1, 2011 March 7, 2012 | None. None. None. None. None. None. None. | 0.15 0.352 0.395 0.30 0.20 0.21 0.28 | July 11, 2012 Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Total NEO’s on June 30, 2012, as a group (5 persons) | 14,635,000 (less 1,850,000 options that expired unexercised on July 11, 2012) | ||||
All current Directors who are not NEO’s or executive officers as a group on June 30, 2012 (5 persons) - Quentin Yarie; V. Peter Harder; John Sanderson; Johann de Bruin; Albert A. Thiess, Jr. | 100,000 700,000 650,000 125,000 275,000 700,000 180,000 | September 2, 2009 May 11, 2010 July 1, 2011 October 24, 2011 December 1, 2011 March 7, 2012 May 23, 2012 | None. None. None. None. None. None. None. | 0.352 0.395 0.30 0.20 0.21 0.28 0.23 | Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 May 23, 2017 |
Total all current Directors who are not NEO’s or executive officers as a group on June 30, 2012(5 persons) | 2,730,000 | ||||
All nominees for Directors (8 persons) | 1,850,000 525,000 3,200,000 2,275,000 1,125,000 1,325,000 3,860,000 180,000 | July 11, 2007 September 2, 2009 May 11, 2010 July 1, 2011 October 24, 2011 December 1, 2011 March 7, 2012 May 23, 2012 | None. None. None. None. None. None. None. None. | 0.15 0.352 0.395 0.30 0.20 0.21 0.28 0,23 | July 11, 2012 Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 December 1, 2016 March 7, 2017 May 23, 2017 |
Total All nominees for Directors (8 persons) | 14,340,000 (less 1,850,000 that expired unexercised on July 11, 2012) | ||||
All employees (excluding all Named Executive Officers as they also serve as executive officers and Directors) as a group on June 30, 2012 | 545,000 150,000 1,500,000 1,450,000 325,000 640,000 1,715,000 | July 11, 2007 September 2, 2009 May 11, 2010 July 1, 2011 October 24, 2011 December 1, 2011 March 7, 2012 | None. None. None. None. None. None. None. | 0.15 0.352 0.395 0.30 0.20 0.21 0.28 | July 11, 2012 Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 |
Total employees (excluding all NEO’s as they serve as executive officers) as a group on June 30, 2012 | 6,325,000 (less 545,000 that expired unexercised on July 11, 2012) | ||||
Outstanding Options as of June 30, 2012 (all parties) | 2,395,000 750,000 5,350,000 4,525,000 1,850,000 2,365,000 6,275,000 180,000 | July 11, 2007 September 2, 2009 May 11, 2010 July 1, 2011 October 24, 2011 December 1, 2011 March 7, 2012 May 23, 2012 | None. None. None. None. None. None. None. None. | 0.15 0.352 0.395 0.30 0.20 0.21 0.28 0,23 | July 11, 2012 Sept 2, 2013 May 11, 2014 July 1, 2016 Oct 24, 2016 Dec 1, 2016 March 7, 2017 May 23, 2017 |
Total Options as of June 30, 2012 (all parties) | 23,690,000 (less 2,395,000 that expired unexercised on July 11, 2012) |
· | On April 21, 2009, the Company re-priced the 7,630,000 then outstanding stock options by amending the exercise price ranging between $0.55 to $0.85 per share to $0.15 per share. These stock options were re-priced during the economic downturn in 2008/2009 in order to incentivize the holders of these stock options to continue to drive the Company towards its goals and objectives. No additional consideration was received by the Company. The options subsequently expired. Apart from the April 21, 2009 re-pricing to incentivize management, no consideration has been or will be received by the Company for the granting or extension, if any, of the options, warrants or rights. |
· | There are no associates of any such directors, executive officers, or nominees to that have or are to receive options or any other person who received or is to receive 5 percent of such options, warrants or rights |
· | All of the stock options in the above noted table are convertible into common stock. |
· | The exercise price of all of the stock options noted above was based on the closing price the date before the granting of the stock option. There are no cashless or and other provisions aside from the right for the holder of the stock option to exercise. |
· | Messrs McKinnon, Schler, Scherba, Nykoliation and Liabotis provide services to the Company on an ongoing basis. |
· | Messrs Yarie, Harder, Sanderson, de Bruin and Thiess provide director servicers to the Company on an ongoing basis. |
· | The purpose of the Plan is to advance the interests of the Company, by providing an additional incentive to attract, retain and motivate highly qualified and competent persons who are key to the Company and upon whose efforts and judgment the success of the Company and its Subsidiaries is largely dependent. |
· | Eligibility of the Plan includes key employees, consultants, independent contractors, Officers and Directors. |
· | The Board currently administers the Plan. |
· | There are 22,990,000 stock options outstanding, representing 14.1% of the non-diluted, currently issued and outstanding common shares of the Company. If this resolution is passed, excluding stock options previously exercised and not allowed to be reissued, 17.3% of the non-diluted currently issued and outstanding common shares of the Company would be eligible for issue under the Plan. |
· | Currently 27,000,000 stock options, including previously exercised stock options, are eligible for issue under the Plan. 32,500,000 are proposed to be eligible for issue under this resolution. This represents 16.6% and 19.9% of the non-diluted currently issued and outstanding common shares of the Company. |
· | Since the inception of the Plan, a total of 4,000,000 stock options have been exercised. This represents 2.5% of the non-diluted, currently issued and outstanding common shares of the Company. |
· | The Board, by resolution, will designate an exercise price for stock options as the prior day closing price on a stock exchange to which the Company’s shares trade. To date, the Company has used the prior day U.S. dollar closing price as quoted on the OTCQB: Bulletin Board. The exercise price of stock options in no event shall be less than the Fair Market Value, as defined by TSX policies, of the Company’s shares underlying such option, on the date such option is granted. |
· | Notwithstanding the amendment provisions included in the Plan, the following may not be amended without approval of security holders: (a) a reduction in the exercise price or purchase price benefiting an Insider of the issuer; (b) an extension of the term benefiting an insider of the issuer; (c) any amendment to remove or to exceed the insider participation limit; (d) an increase to the maximum number of securities issuable, either as a fixed number or a fixed percentage of the listed issuer's outstanding capital represented by such securities; and (e) amendments to an amending provision within a security based compensation arrangement. |
· | Subject to the policies of the TSX, the Board may amend the Plan or any option without the consent or approval of the stockholders of the Company. This includes but is not limited to amendments: (a) of a housekeeping or administrative nature; (b) changes to vesting provisions; (c) changes to the termination provisions or terminating an option; (d) changes to terms and conditions of options not held by Insiders of the Company; (e) anti-dilution adjustments provided; and (f) amendments necessary to comply with applicable laws or regulatory requirements. |
· | Stock options may be issued for a period of up to 10 years. |
· | Stock options shall vest in accordance to the vesting schedule determined by the Board. |
· | Stock options are non-transferrable. |
· | Holders of stock options who cease to be associated with the Company without cause will retain their stock options, at the Board’s discretion, for up to one year. |
· | The Board may grant stock appreciation rights in tandem with options that have been or are granted under the Plan. A stock appreciation right shall entitle the holder to receive in cash, with respect to each share as to which the right is exercised, payment in an amount equal to the excess of the share’s fair market value on the date the right is exercised over its fair market value on the date the right was granted. To date no stock appreciation rights have been granted. |
1. | “9. Limitation on the Issuance of Shares. Notwithstanding the Minnesota Business Corporation Act Section 302A.405, during such time as the common shares of the corporation are admitted for listing on the Toronto Stock Exchange, shares of the corporation shall not be issued for consideration consisting of promissory notes, promises to pay or services to be performed in the future.”; |
2. | the proposed Amendment be submitted to the shareholders of the Corporation for approval at the next annual shareholder meeting; |
3. | until such time as such Amendment has been approved by the shareholders of the Corporation, the board of directors hereby determines that no shares of the Corporation shall be issued for consideration consisting of promissory notes, promises to pay or services to be performed in the future; and |
4. | any one director or officer of the Corporation, is hereby authorized, for and in the name of and on behalf of the Corporation to take all such actions and to execute, deliver and all such agreements, notices, certificates, undertakings, instruments and documents, as may in the opinion of such director or officer be necessary or desirable to give effect to the foregoing.” |
Chief Financial Officer Energizer Resources Inc. 1224 Washington Avenue Miami Beach, FL, 33139, USA | Or to | Chief Financial Officer Energizer Resources Inc. 520 – 141 Adelaide Street West Toronto, Ontario, M5H 3L5, Canada |
Proposal 1 | For All | Withhold All | For All Except |
The election of the following individuals as Directors of the Company, each to serve a term of one year or until his or her successor is duly elected or appointed. · J.A. Kirk McKinnon · Richard E. Schler · Craig Scherba · John Sanderson · V. Peter Harder · Quentin Yarie · Johann de Bruin · Albert A. Thiess, Jr. | [_____] | [_____] | [_____] |
Proposal 2 | For | Against | Abstain | |
To approve an increase of the Company’s authorized capital stock to 450,000,000 from 350,000,000, of which 440,000,000 will be deemed common shares and the remaining 10,000,000 will be deemed eligible to be divisible into classes, series and types as designated by the Board of Directors. | [_____] | [_____] | [_____] |
Proposal 3 | For | Against | Abstain | |
To approve an amendment to the Company’s Amended and Restated Stock Option Plan to increase the authorized number of options for common shares of the Company authorized to be issued to 32,500,000 from 27,000,000. | [_____] | [_____] | [_____] |
Proposal 4 | For | Against | Abstain | |
Approval of the amendment to the Company’s Articles of Incorporation to comply with Toronto Stock Exchange regulations. | [_____] | [_____] | [_____] |
Proposal 5 | For | Against | Abstain | |
To ratify the appointment of MSCM LLP, Chartered Accountants, as the Company’s independent registered public accounting firm for the fiscal year ending June 30, 2013. | [_____] | [_____] | [_____] | |
Check here if you plan to attend the 2012 Annual and Special Meeting of Stockholders | [ ] |
__________________________________________ | _____________________________________________________________ | ||
Signature of Stockholder | Name of Stockholder (print exactly as it appears hereon) | ||
__________________________________________ | _____________________________________________________________ | ||
Signature of Joint Stockholder | Name of Stockholder (print exactly as it appears hereon) | ||
__________________________________________ | _____________________________________________________________ | ||
Certificate Number | Number of Shares Held | ||
__________________________________________ | |||
Date | |||
1. | Purpose. |
2. | Definitions. |
(a) | “Board” shall mean the Board of Directors of the Company. |
(b) | “Cause” shall mean any of the following: |
(i) | a determination by the Company that there has been a willful, reckless or grossly negligent failure by the Optionee to perform his or her duties as an employee or consultant of the Company; |
(ii) | a determination by the Company that there has been a willful breach by the Optionee of any of the material terms or provisions of any employment or consulting agreement between such Optionee and the Company; |
(iii) | any conduct by the Optionee that either results in his or her conviction of a felony under the laws of the United States of America or any state thereof, or of an equivalent crime under the laws of any other jurisdiction; |
(iv) | a determination by the Company that the Optionee has committed an act or acts involving fraud, embezzlement, misappropriation, theft, breach of fiduciary duty or material dishonesty against the Company, its properties or personnel; |
(v) | any act by the Optionee that the Company determines to be in willful or wanton disregard of the Company’s best interests, or which results, or is intended to result, directly or indirectly, in improper gain or personal enrichment of the Optionee at the expense of the Company; |
(vi) | a determination by the Company that there has been a willful, reckless or grossly negligent failure by the Optionee to comply with any rules, regulations, policies or procedures of the Company, or that the Optionee has engaged in any act, behavior or conduct demonstrating a deliberate and material violation or disregard of standards of behavior that the Company has a right to expect of its employees; or |
(vii) | if the Optionee, while employed by the Company and for two years thereafter, violates a confidentiality and/or noncompeting agreement with the Company, or fails to safeguard, divulges, communicates, uses to the detriment of the Company or for the benefit of any person or persons, or misuses in any way, any Confidential Information, provided however, that, if the Optionee has entered into a written employment agreement with the Company which remains effective and which expressly provides for a termination of such Optionee’s employment for “cause,” the term “Cause” as used herein shall have the meaning as set forth in the Optionee’s employment agreement in lieu of the definition of “Cause” set forth in this Section 2(b). |
(c) | “Change of Control” shall mean the acquisition by any person or group (as that term is defined in the Exchange Act, and the rules promulgated pursuant to that act) in a single transaction or a series of transactions of thirty percent (30%) or more in voting power of the outstanding stock of the Company and a change of the composition of the Board of Directors so that, within two years after the acquisition took place, a majority of the members of the Board of Directors of the Company, or of any corporation with which the Company may be consolidated or merged, are persons who were not Directors or Officers of the Company or one of its Subsidiaries immediately prior to the acquisition, or to the first of a series of transactions which resulted in the acquisition of thirty percent (30%) or more in voting power of the outstanding stock of the Company. |
(d) | “Code” shall mean the Internal Revenue Code of 1986, as amended. |
(e) | “Committee” shall mean the stock option committee appointed by the Board or, if not appointed, the Board. |
(f) | “Common Stock” shall mean the Company’s Common Stock, par value $0.001 per share. |
(g) | “Consultant” means any person or corporation engaged to provide ongoing management or consulting services for the Company or any employee of such person or corporation, other than a Director or an Employee. |
(h) | “Director” shall mean a member of the Board and Management Company Employees of the Company. |
(i) | “Employee” shall mean any person, including Officers, Directors, Consultants and independent contractors, employed by the Company or any parent or Subsidiary of the Company within the meaning of Section 3401(c) of the regulations promulgated thereunder. |
(j) | “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended. |
(k) | “Fair Market Value” of a Share on any date of reference shall be the Closing Price of a share of Common Stock on the business day immediately preceding such date, unless the Committee in its sole discretion shall determine otherwise in a fair and uniform manner. For this purpose, the “Closing Price” of the Common Stock on any business day shall be (i) if the Common Stock is listed or admitted for trading on any United States national securities exchange, or if actual transactions are otherwise reported on a consolidated transaction reporting system, the last reported sale price of the Common Stock on such exchange or reporting system, as reported in any newspaper of general circulation, (ii) if the common stock is listed for trading on the TSX, the last reported sale price of the common stock on such exchange, as reported in any newspaper of general circulation, (iii) if the Common Stock is quoted on The Nasdaq Stock Market (“Nasdaq”), or any similar system of automated dissemination of quotations of securities prices in common use, the mean between the closing high bid and low asked quotations for such day of the Common Stock on such system, or (iv) if neither clause (i), (ii) nor (iii) is applicable, the mean between the high bid and low asked quotations for the Common Stock as reported by the National Quotation Bureau Incorporated if at least two securities dealers have inserted both bid and asked quotations for the Common Stock on at least five of the 10 preceding days. If the information set forth in clauses (i) through (iii) above is unavailable or inapplicable to the Company (e.g., if the Company’s Common Stock is not then publicly traded or quoted), then the “Fair Market Value” of a Share shall be the fair market value (i.e., the price at which a willing seller would sell a Share to a willing buyer when neither is acting under compulsion and when both have reasonable knowledge of all relevant facts) of a share of the Common Stock on the business day immediately preceding such date as the Committee in its sole and absolute discretion shall determine in a fair and uniform manner. |
(l) | “Incentive Stock Option” shall mean an incentive stock option as defined in Section 422 of the Code. |
(m) | “Insider” means (i) a director or senior officer of the Company, (ii) a director or senior officer of a company that is an Insider or subsidiary of the Company, (iii) a person that beneficially owns or controls, directly, or indirectly, voting shares carrying more than 10% of the voting rights attached to all outstanding voting shares of the Company, or the Company itself if it holds any of its own securities. |
(n) | “Management Company Employee” means an individual employed by a person providing management services to the Company, which services are required for the ongoing successful operations of the business enterprise of the Company. |
(o) | “Non-Statutory Stock Option” or “Non-qualified Stock Option” shall mean an Option, which is not an Incentive Stock Option. |
(p) | “Officer” shall mean the Company’s chairman, president, principal financial officer, principal accounting officer (or, if there is no such accounting officer, the controller), any vice-president of the Company in charge of a principal business unit, division or function (such as sales, administration or finance), any other officer who performs a policy-making function, or any other person who performs similar policy-making functions for the Company. Officers of Subsidiaries shall be deemed Officers of the Company if they perform such policy-making functions for the Company. As used in this paragraph, the phrase “policy-making function” does not include policy-making functions that are not significant. Unless specified otherwise in a resolution by the Board, an “executive officer” pursuant to Item 401(b) of Regulation S-K (17 C.F.R. § 229.401(b)) shall be only such person designated as an “Officer” pursuant to the foregoing provisions of this paragraph. |
(q) | “Option” (when capitalized) shall mean any stock option granted under this Plan. |
(r) | “Optioned Shares” mean the Shares, which may be acquired on exercise of an Option. |
(s) | “Optionee” shall mean a person to whom an Option is granted under this Plan or any person who succeeds to the rights of such person under this Plan by reason of the death of such person. |
(t) | “Plan” shall mean this Amended and Restated Stock Option |
(u) | “Share” or “Shares” shall mean a share or shares, as the case may be, of the Common Stock, as adjusted in accordance with Section 10 of this Plan. |
(v) | “Subsidiary” shall mean any corporation (other than the Company) in any unbroken chain of corporations beginning with the Company if, at the time of the granting of the Option, each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50 percent or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. |
(w) | “TSX” means the Toronto Stock Exchange or any successor thereto. |
(x) | “TSX Manual” means the Toronto Stock Exchange Company Manual. |
(y) | “U.S. Optionee” means an Optionee who is a citizen of the United States or a resident of the United States, in each case as defined in section 7701(a)(30) and section 7701(b)(1) of the Code. |
3. | Shares and Options. |
4. | Limitations. |
5. | Conditions for Grant of Options. |
(a) | Each Option shall be evidenced by an option agreement that may contain any term deemed necessary or desirable by the Committee, provided such terms are not inconsistent with this Plan or any applicable law. Optionees shall be those persons selected by the Committee from the class of all regular Employees of the Company or its Subsidiaries, including Employees, Directors and Officers who are regular employees of the Company, Directors who are not regular employees of the Company, as well as Consultants to the Company. Any person who files with the Committee, in a form satisfactory to the Committee, a written waiver of eligibility to receive any Option under this Plan shall not be eligible to receive any Option under this Plan for the duration of such waiver. |
(b) | For so long as the Shares are listed on the TSX, the Company covenants that all Employees, Consultants or Management Company Employees shall be bona fide Employees, Consultants or Management Company Employees as the case may be, of the Company or its Subsidiaries. |
(c) | In granting Options, the Committee shall take into consideration the contribution the prospective Optionee has made, or is expected to make, to the success of the Company or its Subsidiaries and such other factors as the Committee shall determine. The Committee shall also have the authority to consult with and receive recommendations from Officers and other personnel of the Company and its Subsidiaries with regard to these matters. The Committee may from time to time in granting Options under this Plan prescribe such terms and conditions concerning such Options as it deems appropriate, provided that such terms and conditions are not more favorable to an Optionee than those expressly permitted herein; provided further, however, that to the extent not cancelled pursuant to Section 9(b) hereof, upon a Change in Control, any Options that have not yet vested, may, in the sole discretion of the Committee, vest upon such Change in Control. |
(d) | The Options granted to Employees under this Plan shall be in addition to regular salaries, consulting fees, pension, life insurance or other benefits related to their employment with the Company or its Subsidiaries. Neither this Plan nor any Option granted under this Plan shall confer upon any person any right to employment or continuance of employment (or related salary and benefits) by the Company or its Subsidiaries. |
(e) | If and for so long as the Shares are listed on the TSX: |
(i) | the number of Options granted to Insiders within a 12 month period may not exceed 10% of the number of issued and outstanding Shares, unless the Company has obtained Disinterested Shareholder Approval (as such term is defined in the TSX Manual) for such an |
(ii) | the maximum aggregate number of Shares that may be reserved under the Plan for issuance to any one individual in any 12 month period shall not exceed 5% of the issued and outstanding Shares at the time of grant; unless the Company has obtained Disinterested Shareholder Approval (as such term is defined in the TSX Manual) for such an |
(iii) | the maximum aggregate number of Shares that may be reserved under the Plan or other share compensation arrangements of the Company for issuance to any one Consultant during any 12 month period shall not exceed 2% of the issued and outstanding Shares at the time of grant; |
(iv) | the maximum aggregate number of Shares that may be reserved under the Plan or other share compensation arrangement of the Company for issuance to persons who are employed in investor relations activities (as defined in the TSX Manual) during any 12 month period shall not exceed 2% of the issued and outstanding Shares at the time of grant;and |
(v) | the Board shall, through the establishment of the appropriate procedures, monitor the trading in the securities of the Company by all Optionees performing Investor Relations Activities. |
(f) | Subject to the policies of the TSX, an Option shall vest and may be exercised (in each case to the nearest full Share) during the period for which the option is granted in accordance with a vesting schedule as the Board may determine in its discretion. |
(g) | Subject to TSX approval, the exercise price per Optioned Share under an Option may be reduced at the discretion of the Board or Committee if: |
a. | at least six months has elapsed since the later of the date such Option was granted and the date the exercise price for such Option was last amended; and |
b. | disinterested shareholder approval of the shareholders of the Company is obtained for any reduction in the exercise price under an Option held by an Insider of the Company; |
6. | Exercise Price. |
7. | Deemed Exercise of Options. |
(a) | An Option shall be deemed exercised when (i) the Company has received written notice of such exercise in accordance with the terms of the Option, (ii) full payment of the aggregate option price of the Shares as to which the Option is exercised has been made, (iii) the Optionee has agreed to be bound by the terms, provisions and conditions of any applicable stockholders’ agreement, and (iv) arrangements that are satisfactory to the Committee in its sole discretion have been made for the Optionee’s payment to the Company of the amount that is necessary for the Company or the Subsidiary employing the Optionee to withhold in accordance with applicable Federal, Provincial or state tax withholding requirements. Unless further limited by the Committee in any Option, the exercise price of any Shares purchased pursuant to the exercise of such Option shall be paid in cash, by certified or official bank check or by money order. |
(b) | No Optionee shall be deemed to be a holder of any Shares subject to an Option unless and until a stock certificate or certificates for such Shares are issued to such person(s) under the terms of this Plan. No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights for which the record date is prior to the date such stock certificate is issued, except as expressly provided in Section 10 hereof. |
8. | Exercise of Options. |
(a) | The expiration date(s) of an Option shall be determined by the Committee at the time of grant, but in no event shall an Option be exercisable after the expiration of 10 years from the date of grant of the Option. |
(b) | Unless otherwise expressly provided in any Option as approved by the Committee, notwithstanding the exercise schedule set forth in any Option, each outstanding Option, may, in the sole discretion of the Committee, become fully exercisable upon the date of the occurrence of any Change of Control, but, unless otherwise expressly provided in any Option, no earlier than six months after the date of grant, and if and only if Optionee is in the employ of the Company on such date. |
(c) | The Committee may in its sole discretion accelerate the date on which any Option may be exercised and may accelerate the vesting of any Shares subject to any Option or previously acquired by the exercise of any Option. |
9. | Termination of Option Period. |
(a) | Unless otherwise expressly provided in any Option Agreement, and subject to any applicable limitations contained in Section 15(c) of this Plan, the unexercised portion of any Option shall automatically and without notice immediately terminate and become forfeited, null and void at the time of the earliest to occur of the following: |
(i) | the expiration of a period not to exceed one year |
(ii) | immediately upon (a) the termination by the Company of the Optionee’s employment for Cause, or (b) an Improper Termination; |
(iii) | the later of (a) the expiration of a period not to exceed one year (such period to be determined by the Board in its sole |
(iv) | one year after the date of termination of the Optionee’s employment by reason of death of the employee ; or |
(v) | the expiration date of the Option established on the date of grant and set forth in the Option Agreement. |
(b) | The Committee in its sole discretion may, by giving written notice (“cancellation notice”), cancel effective upon the date of the consummation of any corporate transaction described in Subsection 10(d) hereof, any Option that remains unexercised on such date. Such cancellation notice shall be given a reasonable period of time prior to the proposed date of such cancellation and may be given either before or after approval of such corporate transaction. |
(c) | Upon termination of Optionee’s employment as described in this Section 9, or otherwise, any Option (or portion thereof) not previously vested or not yet exercisable pursuant to Section 8 of this Plan shall be immediately canceled. |
10. | Adjustment of Shares. |
(a) | If at any time while this Plan is in effect or unexercised Options are outstanding, there shall be any increase or decrease in the number of issued and outstanding Shares through the declaration of a stock dividend or through any recapitalization resulting in a stock split, combination or exchange of Shares (other than any such exchange or issuance of Shares through which Shares are issued to effect an acquisition of another business or entity or the Company’s purchase of Shares to exercise a “call” purchase option), then and in such event: |
(i) | appropriate adjustment shall be made in the maximum number of Shares available for grant under this Plan, so that the same percentage of the Company’s issued and outstanding Shares shall continue to be subject to being so optioned; |
(ii) | appropriate adjustment shall be made in the number of Shares and the exercise price per Share thereof then subject to any outstanding Option, so that the same percentage of the Company’s issued and outstanding Shares shall remain subject to purchase at the same aggregate exercise price; and |
(iii) | such adjustments shall be made by the Committee, whose determination in that respect shall be final, binding and conclusive. |
(b) | Subject to the prior consent of the TSX and the specific terms of any Option, the Committee may change the terms of Options outstanding under this Plan, with respect to the option price or the number of Shares subject to the Options, or both, when, in the Committee’s sole discretion, such adjustments become appropriate by reason of a corporate transaction described in Subsection 10(d) hereof, or otherwise, provided that any adjustment to an outstanding Option held by a U.S. Optionee will be made in a manner that complies with, and does not create adverse tax consequences under, section 409A of the Code. |
(c) | Except as otherwise expressly provided herein, the issuance by the Company of shares of its capital stock of any class, or securities convertible into or exchangeable for shares of its capital stock of any class, either in connection with a direct or underwritten sale, or upon the exercise of rights or warrants to subscribe therefor or purchase such Shares, or upon conversion of obligations of the Company into such Shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number of or exercise price of Shares then subject to outstanding Options granted under this Plan. |
(d) | Without limiting the generality of the foregoing, the existence of outstanding Options granted under this Plan shall not affect in any manner the right or power of the Company to make, authorize or consummate: |
(i) | any or all adjustments, reclassifications, recapitalizations, reorganizations or other changes in the Company’s capital structure or its business; |
(ii) | any merger or consolidation of the Company or to which the Company is a party; |
(iii) | any issuance by the Company of debt securities, or preferred or preference stock that would rank senior to or above the Shares subject to outstanding Options; |
(iv) | any purchase or issuance by the Company of Shares or other classes of common stock or common equity securities; |
(v) | the dissolution or liquidation of the Company; |
(vi) | any sale, transfer, encumbrance, pledge or assignment of all or any part of the assets or business of the Company; or |
(vii) | any other corporate act or proceeding, whether of a similar character or otherwise. |
(e) | The Optionee shall receive written notice within a reasonable time prior to the consummation of such action advising the Optionee of any of the foregoing. The Committee may, in the exercise of its sole discretion, in such instances declare that any Option shall terminate as of a date fixed by the Board and give each Optionee the right to exercise his or her Option. |
11. | Transferability. |
12. | Issuance of Shares. |
(i) | a representation and warranty by the Optionee to the Company, at the time any Option is exercised, that he or she is acquiring the Shares to be issued to him for investment and not with a view to, or for sale in connection with, the distribution of any such Shares; and |
(ii) | an agreement and undertaking to comply with all of the terms, restrictions and provisions set forth in any then applicable stockholders’ agreement relating to the Shares, including, without limitation, any restrictions on transferability, any rights of first refusal and any option of the Company to “call” or purchase such Shares under then applicable agreements, and |
(iii) | any restrictive legend or legends, to be embossed or imprinted on Share certificates, that are, in the discretion of the Committee, necessary or appropriate to comply with the provisions of any securities law or other restriction applicable to the issuance of the Shares. |
(iv) | if and for so long as the Shares are listed on the TSX, the exercise price is reduced to Discounted Market Price, Options will be subject to a four month hold period commencing from the date of grant and any Shares issued pursuant to the exercise of an Option prior to the expiry of the hold period will bear the following TSX legend (or similar wording, with the same effect): |
13. | Stock Appreciation Rights. |
14. | Administration of this Plan. |
(a) | This Plan shall be administered by the Committee, which shall consist of not less than two Directors. The Committee shall have all of the powers of the Board with respect to this Plan. Any member of the Committee may be removed at any time, with or without cause, by resolution of the Board and any vacancy occurring in the membership of the Committee may be filled by appointment by the Board. |
(b) | Subject to the provisions of this Plan and the policies of the TSX, the Committee shall have the authority, in its sole discretion, to: |
(i) | grant Options; |
(ii) | determine the exercise price per Share at which Options may be exercised; |
(iii) | determine the Optionees to whom, and time or times at which, Options shall be granted; |
(iv) | determine the number of Shares to be represented by each Option; |
(v) | determine the terms, conditions and provisions of each Option granted (which need not be identical) and, with the consent of the holder thereof, modify or amend each Option, provided that no modification of an outstanding Option held by a U.S. Optionee will be made if it would result in adverse tax consequences under Section 409A of the Code; |
(vi) | defer (with the consent of the Optionee) or accelerate the exercise date of any Option; and |
(vii) | make all other determinations deemed necessary or advisable for the administration of this Plan, including re-pricing, canceling and re-granting Options. |
(c) | The Committee, from time to time, may adopt rules and regulations for carrying out the purposes of this Plan. The Committee’s determinations and its interpretation and construction of any provision of this Plan shall be final, conclusive and binding upon all Optionees and any holders of any Options granted under this Plan. |
(d) | Any and all decisions or determinations of the Committee shall be made either: |
(i) | by a majority vote of the members of the Committee at a meeting of the Committee; or |
(ii) | without a meeting by the unanimous written approval of the members of the Committee. |
(e) | No member of the Committee, or any Officer or Director of the Company or its Subsidiaries, shall be personally liable for any act or omission made in good faith in connection with this Plan. |
15. | Incentive Stock Options for 10% Stockholders; Other Limitations on Incentive Stock Options. |
(a) | Notwithstanding any other provisions of this Plan to the contrary, an Incentive Stock Option shall not be granted to any person owning directly or indirectly (through attribution under Section 424(d) of the Code) at the date of grant, stock possessing more than 10% of the total combined voting power of all classes of stock of the Company (or of its Subsidiary) at the date of grant unless the exercise price of such Option is at least 110% of the Fair Market Value of the Shares subject to such Option on the date the Option is granted, and such Option by its terms is not exercisable after the expiration of 5 years from the date such Option is granted. |
(b) | An Incentive Stock Option may be granted only to a person who is an employee of the Company or of any parent or subsidiary of the Company (within the meaning of section 424 of the Code). |
(c) | Incentive Stock Options are subject to the limitations contained in Section 9(a) of this Plan and the applicable Option Agreement. In addition, in order to retain its status as an Incentive Stock Option, the following rules related to timing of exercise of the Incentive Stock Option following termination of employment apply, and failure to exercise within the applicable time period will result in loss of status as an Incentive Stock Option. |
(i) | If a U.S. Optionee who has been granted an Incentive Stock Option ceases to be an employee of the Company (or by a subsidiary of the Company within the meaning of Section 424 of the Code) for any reason, whether voluntary or involuntary, other than death, permanent disability or just cause, then in order for the Option to retain Incentive Stock Option status, the Incentive Stock Option must be exercised by the earlier of (a) the date that is three months after the date of cessation of employment or (b) the expiration of the term of such Incentive Stock Option. For the purposes of this Section, the employment of a U.S. Optionee who has been granted an Incentive Stock Option will not be considered interrupted or terminated upon (a) sick leave, military leave or any other leave of absence approved by the Committee that does not exceed ninety (90) days in the aggregate; provided, however, that if reemployment upon the expiration of any such leave is guaranteed by contract or applicable law, such ninety (90) day limitation will not apply, or (b) a transfer from one office of the Company (or of any subsidiary) to another office of the Company (or of any parent or subsidiary) or a transfer between the Company and any parent or subsidiary. |
(ii) | If a U.S. Optionee who has been granted Incentive Stock Options ceases to be employed by the Company (or by any parent or subsidiary of the Company within the meaning of Section 424 of the Code) because of a permanent disability, such U.S. Optionee may exercise such Incentive Stock Option (to the extent such Incentive Stock Option was exercisable on the date of permanent disability at any time prior to the earlier of (a) the expiration date of the Option established on the date of grant and set forth in the Option Agreement; or (b) the date that is later of (i) the expiration of a period not to exceed one year (such period to be determined by the Board in its sole discretion) after the date on which the U.S. Optionee’s employment is terminated by reason of a mental or physical disability (within the meaning of Code Section 22(e)) as determined by a medical doctor satisfactory to the Committee, or (ii) three months after the date on which the U.S. Optionee shall die if such death shall occur during such period. |
(d) | In the event that this Plan is not approved by the shareholders of the Company within twelve (12) months before or after the date on which this Plan is adopted by the Board, any Incentive Stock Option granted under this Plan will automatically be deemed to be a Non-Statutory Stock Option. |
16. | Interpretation. |
(a) | This Plan shall be administered and interpreted so that all Incentive Stock Options granted under this Plan will qualify as Incentive Stock Options under Section 422 of the Code. If any provision of this Plan should be held invalid for the granting of Incentive Stock Options or illegal for any reason, such determination shall not affect the remaining provisions hereof, and this Plan shall be construed and enforced as if such provision had never been included in this Plan. |
(b) | This Plan shall be governed by the laws of the Province of Ontario, Canada. |
(c) | Headings contained in this Plan are for convenience only and shall in no manner be construed as part of this Plan or affect the meaning or interpretation of any part of this Plan. |
(d) | Any reference to the masculine, feminine, or neuter gender shall be a reference to such other gender as is appropriate. |
(e) | Time shall be of the essence with respect to all time periods specified for the giving of notices to the company hereunder, as well as all time periods for the expiration and termination of Options in accordance with Section 9 hereof (or as otherwise set forth in an option agreement). |
17. | Amendment and Discontinuation of this Plan. |
(a) | a reduction in the exercise price or purchase price benefiting an insider of the issuer; |
(b) |
(c) | any amendment to remove or to exceed the insider participation limit; |
(d) | an increase to the maximum number of securities issuable, either as a fixed number or a fixed percentage of the listed issuer's outstanding capital represented by such securities; and |
(e) | amendments to an amending provision within a security based compensation arrangement. |
18. | Termination Date. |