3. | 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: | [ ] | Fee paid previously with preliminary materials | | | | [ ] | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11 (Set forth0–11(a)(2) and identify the amount onfiling for which the offsetting fee was paid previously. Identify the previous filing fee is calculatedby registration statement number, or the Form or Schedule and state how it was determined):the date of its filing |
(1) Amount Previously Paid: (2) Form, Schedule or Registration Statement No.: (3) Filing Party: (4) Date Filed:
4. TIERRA GRANDE RESOURCES INC. | Proposed maximum aggregate value of transaction:666 Stirling Hwy | | Mosman Park, WA 6012 | | +61 8 9384 6835 |
o Fee paid previously with preliminary materials.
o Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
1. | Amount Previously Paid: |
2. | Form, Schedule or Registration Statement No.: |
BUCKINGHAM EXPLORATION INC.
Suite 418-831 Royal Gorge Blvd.
Cañon City, CO 81212, USA
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON JUNE ●, 2010
TO THE SHAREHOLDERS:
Notice is hereby given that the Special Meeting of the Shareholders of Buckingham Exploration Inc. will be held at Suite 418-831 Royal Gorge Blvd, Cañon City, CO 81212, on June ●, 2010, at ● p.m. (Pacific Standards Time) for the following purposes:
1. | to approve a possible reverse stock split of our issued and outstanding common stock at a the ratio of one (1) new share for every four hundred shares (400) existing shares (the “Reverse Split”); and |
2. | to consider and act upon any other matter that June properly come before the meeting or any adjournment thereof. |
If any other matters properly come before the Special Meeting of the Shareholders or any adjournments of the Special Meting of the Shareholder, the persons named in the proxy card will have the authority to vote the shares represented by all properly executed proxies in their discretion. The Board of Directors of the Company does not know of any matters to be raised at the Special Meeting of the Shareholders other than the proposal contained in this proxy statement.
The Board of Directors has fixed the close of business on June ●, 2010 as record date for determining the shareholders having the right to vote at the meeting or any adjournment thereof.
A proxy statement and proxyAugust 28, 2013 ACTION REQUIRED BY STOCKHOLDER Dear Stockholder: We are enclosed. If you are unable to attend the meeting in person you are urged to sign, date and returnfurnishing the enclosed proxy promptly in the self addressed stamped envelope provided. If you attend the meeting in person, you may withdraw your proxyConsent Solicitation Statement and vote your shares. By order of the Board of Directors
C. ROBIN RELPH, President and Chief Executive Officer
Vancouver, British Columbia
June ●, 2010
YOUR VOTE IS IMPORTANT.
Whether or not you expect to attend the Special Meeting of the Shareholders, we urge you to promptly vote your shares by completing, signing, dating and returning your proxy card in the enclosed envelope. If you hold your shares through a bank, broker or other nominee holder, please follow the voting instructions providedConsent Card to you by such bank,
broker or other nominee holder.
If you plan to attend the meeting:
If you are a shareholder of record and you plan to attend the meeting, please keep the admission ticket that is attached to the enclosed proxy card, as you must present this ticket to be admitted to the meeting. Each shareholder may be asked to present valid picture identification, such as a driver’s license or passport. Shareholders who do not present an admission ticket will need to present proof of ownership of shares. Those shareholders holding shares in brokerage accounts (“street-name shareholders”) will need to bring a copy of a brokerage statement, a legal proxy or letter from the broker confirming ownership of the Company shares.
PROXY STATEMENT
BUCKINGHAM EXPLORATION INC.
Suite 418-831 Royal Gorge Blvd.
Cañon City, CO 81212, USA
INTRODUCTION
This proxy statement is furnished in connection with the solicitation byfollowing actions of the company: (i) the appointment of three (3) new directors to our Board of Directors, (ii) the waiver of Buckingham Exploration Inc. (hereinafter, “we”, “our”, “Corporation” or “Company”)the annual meeting of proxies in the accompanying formshareholders for the Special Meeting of Shareholders to be held at Suite 418-831 Royal Gorge Blvd, Cañon City, CO 81212, on June ●, 2010 at ● p.m. (Pacific Standard Time)fiscal year ending May 31, 2014 and at any adjournment thereof. This proxy and the enclosed form of proxy were first sent to shareholders on or about June ●, 2010. If the form of proxy enclosed therewith is executed and returned as requested, it may nevertheless be revoked at any time prior to exercise by filing an instrument revoking it or a duly executed proxy bearing a later date. Solicitation of proxies may be made by mail and thro ugh telephonic or telegraphic communications to, or by meetings with, shareholders or their representatives by directors, officers and other employeesratification of the Company who will receive no additional compensation for this service.
OUTSTANDING SHARES AND VOTING RIGHTS
RECORD DATE; OUTSTANDING SHARES
Aswaiver by shareholders of the close of business on June ●, 2010, the record date for the Special Meeting, the Company had outstanding and entitled to vote 45,126,850 shares of Common Stock. Each share of Common Stock is entitled to one vote per share on all matters submitted to a voteprior annual meetings of shareholders of the Company. Only shareholders of record atcompany, (iii) the close of business on June ●, 2010 are entitled to vote at the Special Meeting or at any adjournment thereof.
REVOCABILITY OF PROXIES
If you attend the meeting, you may vote in person, regardless of whether you have submitted a proxy. Any person giving a proxy in the form accompanying this proxy statement has the power to revoke it at any time before it is voted. It may be revoked by filing, with our corporate secretary at the principal offices, Suite 418-831 Royal Gorge Blvd, Cañon City, CO 81212, a written notice of revocation of a duly executed proxy bearing later date, or it may be revoked by attending the meeting in person.
VOTING AND SOLICITATION
The presence at the meeting, in person or by proxy,ratification of the holders of Common Stock holding infollowing actions previously undertaken by the aggregate a majority of the voting power of the Company’s stock entitled to vote shall constitute a quorum for the transaction of business. Every shareholder of record is entitled, for each share held, to vote on each proposal or item that comes before the meeting. The number of votes cast in favor of a proposal must exceed the votes cast against it in order for the matter to pass. Abstentions and broker non-votes will count for purposes of establishing a quorum, but will not count as votes cast for the election of directors or any other question and accordingly will have no effect. Shareholders who send in proxies but attend the meeting in person may vote directly if they prefer and withdraw their proxies or may allow their proxies to be votedcompany with the similar proxies sent in by other shareholders.
We have bornerequired consent of shareholders: (a) the costappointments of preparing, assemblingAndrew Gasmier and mailing this proxy solicitation material. The total cost estimated to be spent and the total expenditures to date for, in furtherance of, or in connection with the solicitation of shareholders is approximately $1,000. We may reimburse brokerage firms and other persons representing beneficial owners of shares for their expenses in forwarding soliciting materials to beneficial owners. Proxies may be solicited by certainBrad Evans as directors of our directors, officers and employees, without additional compensation, personally, by telephone or by facsimile.
ADJOURNED MEETING
The chair ofcompany, (b) our name change to Tierra Grande Resources Inc. (c) the meeting may adjourn the meeting from timeincrease in our authorized capital to time to reconvene at the same or some other time, date and place. Notice need not be given of any such adjournment meeting if the time, date and place thereof are announced at the meeting at which the adjournment is taken. If the time, date and place of the adjournment meeting are not announced at the meeting which the adjournment is taken, then our Secretary shall give written notice of the time, date and place of the adjournment meeting not less than ten (10) days prior to the date of the adjournment meeting. Notice of the adjournment meeting also shall be given if the meeting is adjourned in a single adjournment to a date more than 30 days after the original date fixed for the meeting or if a new record date for the adjourned meeting is fixed.
TABULATION OF VOTES
The votes will be tabulated and certified by our transfer agent.
VOTING BY STREET NAME HOLDERS
If you are the beneficial owner of shares held in “street name” by a broker, the broker, as the record holder of the shares, is required to vote those shares in accordance with your instructions. If you do not give instructions to the broker, the broker will nevertheless be entitled to vote the shares with respect to “discretionary” items but will not be permitted to vote the shares with respect to “non-discretionary” items (in which case, the shares will be treated as “broker non-votes”).
QUORUM; ABSTENTIONS; BROKER NON-VOTES
The required quorum for the transaction of business at the Special Meeting is a majority of the500,000,000 shares of Common Stock entitled to vote atcommon stock, (d) the Special Meeting, in person or by proxy. Shares that are voted "FOR," "AGAINST" or "WITHHELD FROM" a matter are treated as being present atadoption of our 2012 stock incentive plan, and (e) the meeting for purposesadoption of establishing a quorummore comprehensive bylaws, and are also treated as shares represented(IV) the approval and voting the votes cast at the Special Meeting with respect to such matter.
Proxies marked “abstain” will be counted as shares present for the purposeratification of determining the presence of a quorum. For purposes of determining the outcome of a proposal, abstentions will have the same effect as a vote against the proposal.
Broker “non-votes” occur when a nominee holding shares for a beneficial owner does not vote on a particular proposal because the nominee does not have discretionary voting power for that particular item and has not received voting instructions from the beneficial owner. Broker “non-votes” will be counted as shares present for purposes of determining the presence of a quorum. However, broker “non-votes” will not be counted for purposes of determining the number of votes cast with respect to the particular proposal on which the broker has expressly not voted. Where a proposal requires the vote of a majority of the shares entitled to vote rather than a majority of the votes present and voting at a meeting, the general effect of a broker “non-vote” is a vote against the proposal.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE SHAREHOLDER MEETING TO BE HELD ON JUNE ●. 2010.
The Proxy Statement for the Special Meeting of Shareholders to be held on June ●, 2010 is available on the SEC website http://www.sec.gov.
PROPOSALS TO BE CONSIDERED AT THE SHAREHOLDER MEETING
ITEM 1: APPROVAL OF A REVERSE STOCK SPLIT OF OUR ISSUED AND OUTSTANDING SHARES OF COMMON STOCK AT THE RATIO OF ONE NEW SHARE FOR EVERY FOUR HUNDRED EXISTING SHARES OF THE COMPANY
our independent auditors.Our Board of Directors has reviewed and unanimously approved and is recommending out our shareholdersthe above actions by the company. The holders of a proposal to effect a reverse stock split of all issued and outstanding shares of our common stock at the ratio of one (1) new share for every four hundred (400) existing shares of the Company (the “Reverse Stock Spit”). We currently have 45,126,850 sharemajority of our issued and outstanding common stock. Upon the corporate action coming into effect,stock have also passed resolutions approving such actions. However, to fully comply with applicable securities laws, we shall have 112,817 shares of our issued and outstanding capital.
We will not issue fractional share sin connection with the Reverse Stock Split. Any fractional shares that result for the Reverse Stock Split will be rounded up to the next whole share.
Reasons for the Proposed Amendment
Higher and more attractive share price of our stock. The anticipated stock price resulting form the Reverse Stock Split would bring our stock price to a level more consistent with other public gold exploration companies. The higher stock price would attract more institutional and other investors who generally refrainare hereby seeking formal written consent from investing in a stock below a certain price threshold.
Improved position for repayment of debt and additional financing. The Reverse Stock Split, which should result into more attractive share capital structure, will allow us to repay our debts in Company’s equity, as our creditors will be more likely to accept our shares. The Company also will be better positioned to raise capital by issuing stock to new investors.
Increased earnings per share visibility. A decrease in out outstanding shares would result in increased visibility for our earnings per share, making it easier to reflect changes in our quarterly and annual results of operations in our earnings per share calculations.
Reduced shareholder transaction costs. Many investors pay commissions based on the number of shares traded when they buy or sell our common stock. If our stock price was higher, such investors would pay lower commissions to trade a fixed dollar amount of our stock.
While the Board believes that the Reverse Stock Split will cause our shares of Common Stock to trade at higher prices than those which have prevailed in recent fiscal quarters, especially given our current healthy operating status and prospects, the actual effect of the Reverse Stock Split upon the market price for our Common Stock cannot be predicted. There are numerous factors and contingencies that could adversely affect the value of the Common Stock, including prevailing economic or market conditions, and our reported results of operations in future fiscal periods. There is no assurance that:
● | the trading price per share of our Common Stock after the Reverse Stock Split will rise in proportion to the reduction in the number of pre-split shares of Common Stock outstanding before the Reverse Stock Split; |
● | the total market capitalization of our Common Stock (the aggregate of the then market price) after the proposed Reverse Stock Split will be equal to or greater than the total market capitalization before the proposed split; or |
● | the market price of our Common Stock will also be based on our performance and other factors, some of which are unrelated to the number of shares outstanding. |
Material Effect of the Proposed Capitalization Changes
If the Reverse Stock Split receives the necessary shareholder approval, the number of issued and outstanding shares of Common Stock would be reduced by a ratio of one (1) new share for every four hundred (400) old shares of the company. Except for the adjustments that may result from the treatment of fractional shares as described below, each shareholder will hold the same percentage of the outstanding Common Stock immediately following the Reverse Stock Split as such shareholders held immediately prior to the Reverse Stock Split. Voting rights and other rights and preferences of the holders of Common Stock will not be affected by the Reverse Stock Split. The number of shareholders of record also will not be affected by the Reverse Stock Split.
The Reverse Stock Split will not affect total shareholder’s equity on our balance sheet. As a result of the reverse split, the stated capital component attributable to our Common Stock will be reduced to an amount equal to 1/400 of its present amount, and the additional paid up capital component will be increased by the amount by which the shareholder’s equity is reduced. The per share net loos and net book value per share of our Common Stock will be increased as a result of the reverse split because there will be fewer shares of our Common Stock outstanding.
The following table contains approximate information relating to the effect on outstanding and reserved shares of Common Stock under the proposed corporate action based on share information as of May 28, 2010:
| | Pre – Reverse Stock Split | Post – Reverse Stock Split | | Outstanding | 45,126,850 | 112,817 | | Reserved for future issuance pursuant to outstanding options and warrants | 0 | 0 | | Total | 45,126,850 | 112,817 |
Fractional Shares
No fractional certificates will be issued as a result of the Reverse Stock Split. Instead, all fractional shares resulting from the Reverse Stock Split will be rounded up to the next whole share.
Exchange of Stock Certificates
If approved by our shareholders, the Reverse Stock Split would become effective on [● or on any date selected by our Board of Directors] (the “Effective Date”). As soon as practicable after the Effective Date,
Our transfer agent, Island Stock Exchange, will act as exchange agent for purposes of implementing the exchange of physical stock certificates (the “Exchange Agent”). Holders of certificates of pre-reverse split shares will be asked to surrender to the exchange agent their certificates in exchange for certificates representing post-reverse stock split shares in accordance with the procedures to be set forth in a letter o transmittal to be sent by the Exchange Agent. No new certificates will be issued to a shareholder until such shareholder has surrendered such shareholders’ outstanding certificate(s) together with the properly completed and executed letter of transmittal to the Exchange Agent. As soon as practicable after the surrender to the Exchange Agent of any certificate which prior to the Reverse Stock Split represented s hares of Common Stock, together with a duly executed transmittal letter and any other documentations the Exchange Agent may specify, the Exchange Agent shall deliver to the person in whose name such certificate has been issued, certificates registered in the name of such person representing the number of full shares of Common Stock, into which the shares of Common Stock previously represented by the surrendered certificate shall have been reclassified, with any resulting fractional share being rounded up to the next whole share. Until surrendered as contemplated herein, each certificate which immediately prior to the Effective Date represented any share of Common Stock shall be deemed at and after the Effective Date to represent the number of full shares of Common Stock contemplated by the preceding sentence. Each certificate representing shares of Common Stock issued in connection with the Reverse Stock Split will continue to bear any legends restricting the transfer of such shares that were borne by the su rrendered certificates representing the share of Common Stock. Shareholders should not destroy any stock certificates and should not submit any certificates until requested to do so and until they receive a transmittal from the Exchange Agent.
Shares held in “street name” (e.g., through an account at a brokerage firm, bank dealer or other similar organization) will automatically be adjusted to reflect the Reverse Stock Split.
Dissenters’ Right of Appraisal
Under the Nevada Revised Statues (“NRS”), our voting shareholders who would be obligated to accept money or scrip rather than receive a fraction of a share resulting from the Reverse Stock Split, may dissent in accordance with provisions NRS 92.300 to 92A.500 and obtain cash payment of the fair value of the fraction of a share to which the shareholders would otherwise be entitled.
In order to assert the right to dissent, a shareholder must satisfy the following conditions:
1. | deliver a written notice of dissent to the Company before the vote is taken; and |
2. | not vote their shares in favour of the Reverse Stock Split. |
The shareholder has to deliver to the Company, at its address at Suite 418-831 Royal Gorge Blvd., Cañon City, CO 81212, before the vote is taken, a written notice of the shareholder intention to demand payment if the proposed action is effectuated. The written notice should state that the shareholder intends to demand payment for their shares if the Reverse Stock Split is completed.
A vote against the action is not deemed to satisfy the written notice requirement. Further, the dissenting shareholder must not vote, permit or case the shareholder’s shares to be voted in favor of the proposed action. However, failure of the shareholder to vote against the Reverse Stock Split will not constitute a waiver of dissenters’ rights.
Where the shareholder satisfies those conditions, the Company will send to him or her a written dissenter’s notice within 10 days after the Revere Stock Split is effective, which will provide information on where the demand for payment must be sent and where and when share certificates, if any, must be deposited. The Company will also forward a form for demanding payment, a copy of which is enclosed with this statement in Appendix A.
When the dissenting shareholder receives a dissenter’s notice from the Company and wishes to exercise dissenter’s rights, the shareholder must send the form for demanding payment to the Company and certify that the date of acquisition of the subject shares either by the shareholder or the beneficial owner of the shares, was prior to the fist announcement of the terms of the Reverse Stock Split. The shareholder should also deposit the shareholder’s certificates in accordance with the terms of the notice.
A dissenting shareholder shall be deemed to have waived the right to demand payment with respect to his or her shares, unless the Company receivesabove actions.These actions require the shareholder’s demand for payment on or before ●.
After receiving the dissenter’s notice, the dissenting shareholder must deposit their share certificates representing their holdings in the capital of the Company at the Company’s address Suite 418-831 Royal Gorge Blvd., Cañon City, CO 81212. Dissenting shareholders of the Company, whose shares are not represented by certificates will be restricted in their ability to transfer their share in the capital of the Company after their demand for payment is received by the Company.
FAILURE TO DEMAND PAYMENT IN THE PROPER FORM OR DEPOSIT YOUR CERTIFICATES AS DESCRIBED IN THE DISSENTER’S NOTICE WILL TERMINATE YOUR RIGHT TO RECEIVE PAYMENT FOR YOUR SHARES PURSUANT TO NEVADA’S DISSENTERS’ RIGHTS STATUE. YOUR RIGHTS AS SHAREHOLDER WILL CONTINUE UNTIL THOSE RIGHTS ARE CANCELED OR MODIFIED BY THE COMPLETION OF THE REVERSE STOCK SPLIT.
Within 30 days after receiving the shareholder’s properly executed payment demand, the Company will pay the shareholder what it determines to be the fair value of the shareholder’s shares, plus accrued interest (computed from the effective date of the Reverse Stock Split until the date of payment). The payment will be accompanied by:
1. | the Company’s balance sheet as of the end of the a fiscal year ended not more than 16 months before the date of payment, an income statement for that year, a statement of changes in the stockholder’s equity for that year, and the latest available interim financial statements, if any; |
2. | a statement of the Company’s estimate of the fair value of the shareholder’s shares; and |
3. | information regarding the dissenter’s rights to challenge the estimated fair value. |
If you are considering exercising your dissenters’ rights, please carefully review the provisions governing dissenters’ rights of the shareholders of the Company set out in Appendix B hereto, particularly the steps required to perfect dissenters’ rights. Failure to take any one of the required steps may result in termination of your dissenters’ rights under Nevada law. If you are considering dissenting, you should consult with your legal advisor.
Dividends
The Company has never paid or declared dividends on its securities and is unlikely to pay dividends in the immediate or foreseeable future.
Recommendation and Vote Necessary to Approve the Proposal
Approval and adoption of the proposed amendment requires the affirmative votewritten consent of the holders of a majority of our issued and outstanding common sharesstock. We have enclosed a Consent Card for completion by you. Please fully complete, sign and return the Consent Card to us as soon as possible (and within 60 days of beneficial interest, voting as a class.
Thethe date of this solicitation) at the following address: PO Box 116, West Perth 6872, Western Australia, Australia, or by facsimile to (+61 8) 9385 4737.We thank you for your continued support of the company. By Order of the Board of Directors, /s/ Mark Kalajzich
Mark Kalajzich
President 2
CONSENT SOLICITATION STATEMENT Introduction This consent solicitation is being made by Tierra Grande Resources Inc. (‘we’, ‘us’, ‘our’ or the “Company”). We are furnishing this Consent Solicitation Statement and enclosed Consent Card to you in connection with the following actions of the Company: (i) the appointment of three (3) new directors to our Board of Directors, (ii) the waiver of the annual meeting of shareholders for the fiscal year ending May 31, 2014 and ratification of the waiver by shareholders of all prior annual meetings of shareholders of the company, (iii) the ratification of the following actions previously undertaken by the company with the required consent of shareholders: (a) the appointments of Andrew Gasmier and Brad Evans as directors of our company, (b) our name change to Tierra Grande Resources Inc. (c) the increase in our authorized capital to 500,000,000 shares of common stock, (d) the adoption of our 2012 stock incentive plan, and (e) the adoption of more comprehensive bylaws, and (IV) the approval and ratification of our independent auditors. Our Board of Directors has reviewed and unanimously recommends that you vote FORapproved the consolidationabove actions by the Company. The holders of a majority of our issued and outstanding common stock athave also passed resolutions approving such actions. However, to fully comply with applicable securities laws, we are hereby seeking formal written consent from shareholders with respect to the ratio of one (1) new share for every four hundred (400) existing shares.
ITEM 2: OTHER MATTERS
Asabove actions.These actions require the written consent of the mailingholders of a majority of our issued and outstanding common stock. An abstention will effectively be a vote against the actions or any of them. We have enclosed a Consent Card for completion by you. Please fully complete, sign and return the Consent Card to us as soon as possible (and within 60 days of the date of this proxy statement,solicitation) at the Board knowsfollowing address: PO Box 116, West Perth 6872, Western Australia, Australia, or by facsimile to (+61 8) 9385 4737. Date, Time and Place Information We are seeking approval from our stockholders by written consent of no other mattersthe actions contemplated herein. Accordingly, there will not be a meeting of our stockholders relating to these actions. Under the Nevada Revised Statutes, the proposed actions require approval by the written consent of holders of a majority of our common stock. Please fully complete, sign and return the enclosed Consent Card to us as soon as possible (and within 60 days of the date of this solicitation) at the following address: PO Box 116, West Perth 6872, Western Australia, Australia, or by facsimile to (+61 8) 9385 4737. This Statement and enclosed Consent Card are expected to be presented atmailed on or about August __, 2013 to the meeting. Should any other matter requiring a voteholders of the shareholders arise at the meeting, the persons named in the proxyour common stock as of August __, 2013. We will vote the proxies in accordanceincur all costs associated with their best judgment.
ADDITIONAL INFORMATION
Proxypreparing, printing and mailing this Consent Solicitation Costs
The Company is soliciting the enclosed proxies. The cost of soliciting proxies in the enclosed formStatement and Consent Card. We will be borne by the Company. Officer and regular employees of the Company may, but without compensation other then their regular compensation, solicit proxies by further mailing or personal conversations or by telephone, telex, facsimile or electronic means. The Company will, upon request, reimburse brokerage firms and other custodians, nominees and fiduciaries for their reasonable expenses incurred by them in forwarding solicitation materialssending this Consent Solicitation Statement and Consent Card to the beneficial owners of our common stock. We will only deliver one Consent Solicitation Statement and Consent Card to multiple security holders sharing an address unless we have received contrary instructions from one or more of the security holders. Upon written or oral request, we will promptly deliver a separate copy of this Consent Solicitation Statement and Consent Card and any future annual reports and Consent Solicitation Statements and Consent Cards to any security holder at a shared address to which a single copy of this Consent Solicitation Statement and Consent Card was delivered, or deliver a single copy of this Consent Solicitation Statement and any future annual reports and Consent Solicitation Statements and Consent Cardsto any security holder or holders sharing an address to which multiple copies are now delivered. You should direct any such requests to the attention of our President at our principal executive office. The address of our principal executive office is Cnr Stirling Hwy & Fairlight Street, Mosman Park, Western Australia 6012, Australia and our phone number is +61 8 9384 6835.3
Dissenters’ Right of Appraisal Under the Nevada Revised Statutes or pursuant to our Articles of Incorporation and Bylaws, our stockholders do not have dissenters' rights in connection with the actions contemplated herein. Revocation of Consents A shareholder may revoke his, her or its consent at any time prior to September __, 2013 or other conclusion of the consent process (whichever is earlier) by mailing a properly executed Consent Card bearing a later date or by mailing a signed, written notice of revocation to our company at the following address: PO Box 116, West Perth 6872, Western Australia, Australia, or by facsimile to (+61 8) 9385 4737. Revocation of a Consent will be effective upon receipt by us of either (i) an instrument revoking the consent or (ii) a duly executed Consent bearing a later date. Voting Securities and Principal Holders Thereof The record date for the determination of stockholders entitled to consent to the actions contemplated herein is August __, 2013 (the “Record Date”). As of that date, we had 78,769,712 outstanding shares of common stock, $0.0001 par value, and no outstanding shares of preferred stock, $0.0001 par value. Each share of our common stock entitles the holder thereof to one vote on each matter that may come before a meeting or vote of our stockholders. Security Ownership of Certain Beneficial Owners and Management: The following table sets forth the ownership, as of the Record Date, of our common stock by each of our directors, director nominees and executive officers, by all of our executive officers, directors and director nominees as a group and by each person known to us to be the beneficial owner of more than 5% of any class of our securities. As of the Record Date, there were 78,769,712 shares of our common stock issued and outstanding. All persons named have sole voting and investment power with respect to the securities held by them, except as otherwise noted. The number of securities described below includes shares which the beneficial owner has the right to acquire within 60 days of the date of this Information Statement.
Title of Class |
Name
of Beneficial Owner |
Amount and Nature of
Beneficial Ownership | Percent of
Class
| | Common Stock | Simon Eley | 1,850,000(1) | 2.3% | | Common Stock | Andrew Gasmier | 1,000,000 | 1.3% | | Common Stock | Brad Evans | 150,000(2) | 0.2% | | Common Stock | Mark Kalajzich | 0 | 0% |
4
Title of Class |
Name
of Beneficial Owner |
Amount and Nature of
Beneficial Ownership | Percent of
Class
| | Common Stock | Miguel Cardozo | 0 | 0% | | Common Stock | Eduardo Ferrero | 0 | 0% | | All Officers, Directors and Director Nominees as a Group | 3,000,000(1)(2) | 3.8% | | Common Stock | Christopher Robin Relph | 6,805,208(3) | 8.4% | | Common Stock | Aviador Corporation Pty. Ltd. | 22,500,000(4) | 26.1% | | Common Stock | BC & N Pollard ATF Geovet Family Trust | 5,400,000(5) | 6.7% | | Common Stock | Six Fingers Pty Ltd. | 8,160,000(6) | 10.1% | | Common Stock | Smart Train Australian Pty Ltd. | 5,400,000(7) | 6.7% | | Common Stock | Resmin Pty Ltd. | 4,500,000(8) | 5.6% |
Communicating| (1) | In addition, Aviador Corporation Pty. Ltd. (“Aviador”) owns 15,000,000 shares of common stock and warrants to acquire 7,500,000 shares of common stock of the Company and Resmin Pty Ltd. (“Resmin”) owns 3,000,000 shares of common stock and warrants to acquire 1,500,000 shares of common stock of the Company. Mr. Eley is a director of both Aviador and Resmin and disclaims beneficial ownership of these securities as investment and voting control over these securities rests with the board of directors of Aviador and Resmin, respectively. | | | | (2) | These shares are held by CLM Resources Pty. Ltd. Mr. Evans is a director and officer of CLM Resources and disclaims beneficial ownership of these securities as investment and voting control over these securities rests with the board of directors of CLM Resources. The shareholder of CLM Resources is Kylie Evans (wife of Brad Evans). | | | | (3) | Mr. Relph resigned as a director and officer in September 2012. Represents 4,805,208 shares of common stock and warrants to acquire 2,000,000 shares of common stock of the Company held by Mr. Relph. | | | | (4) | Represents 15,000,000 shares of common stock and warrants to acquire 7,500,000 shares of common stock of the Company. The shareholders of Aviador are: (i) Six Fingers Pty Ltd ATF Six Fingers Discretionary Trust (of which the shareholder is Six Fingers Pty Ltd, and the shareholders of Six Fingers Pty Ltd are Benjamin Auld and Alison Auld), (ii) Benjamin Craig Pollard & Neeta Pollard ATF Geovet Family Trust (of which the trustees and beneficiaries are Benjamin Craig Pollard & Neeta Pollard), (iii) Allister Leon Blyth ATF Gabal Trust (of which the trustee and beneficiary is Allister Blyth), (iv) Resmin Pty Ltd ATF SPE Investment Trust (of which the trustee and beneficiary is Simon Eley), (v) Smart Train Australia Pty Ltd ATF Byrne Family Trust (of which the trustees and beneficiaries are Tobias Byrne and Bianca Byrne), and (vi) Richard Paul Pappas ATF Pappas Family Trust (of which the trustee and beneficiary is Richard Paul Pappas). | | | | (5) | Represents 3,600,000 shares of common stock and warrants to acquire 1,800,000 shares of common stock of the Company. The trustees and beneficiaries of the trust are Benjamin Craig Pollard & Neeta Pollard. | | | | (6) | Represents 6,360,000 shares of common stock and warrants to acquire 1,800,000 shares of common stock of the Company. The shareholders of Six Fingers Pty Ltd. are Benjamin Auld and Alison Auld. | | | | (7) | Represents 3,600,000 shares of common stock and warrants to acquire 1,800,000 shares of common stock of the Company. The shareholder of Smart Train is Smart Train Australia Pty Ltd ATF Byrne Family Trust (of which the trustees and beneficiaries are Tobias Byrne and Bianca Byrne). | | | | (8) | Represents 3,000,000 shares of common stock and warrants to acquire 1,500,000 shares of common stock of the Company. The shareholder of Resmin is Simon Eley. |
Changes in Control There are no arrangements known to us the operation of which may at a later date result in a change in control of our company. 5
CORPORATE ACTIONS PROPOSAL 1 - Appointment and Ratification of Directors Management and Directors Our bylaws allow the number of directors to be fixed by the Board of Directors. We currently have three directors, Simon Eley, Andrew Gasmier and Brad Evans. On June 21, 2013, our Board of Directors and our stockholders owning a majority of our voting securities approved the appointments of Mark Kalajzich, Miguel Cardozo and Eduardo Ferrero as new directors of our company. Our Board of Directors and our stockholders owning a majority of our voting securities also previously approved the appointments of Mr. Gasmier and Mr. Evans as directors of our company. We are hereby seeking shareholder consent for the appointments of Mark Kalajzich, Miguel Cardozo and Eduardo Ferrero as new directors of our company, and the ratification of the appointments of Andrew Gasmier and Brad Evans as directors of our company. Our current directors, proposed directors and executive officers are as follows: | Name | Age | Position | | Simon Eley | 40 | Director and Chairman | | Allister Blyth | 31 | Chief Financial Officer | | Andrew Gasmier | 40 | Director | | Brad Evans | 37 | Director | | Mark Kalajzich | 32 | Proposed Director, President and Chief Executive Officer | | Miguel Cardozo | 63 | Proposed Director | | Eduardo Ferrero | 39 | Proposed Director |
Our directors serve as directors until our next annual shareholders’ meeting or until a successor is elected and qualified. Officers hold their positions at the discretion of the Board of Directors. There are no arrangements, agreements or understandings between non-management shareholders and management under which non-management shareholders may directly or indirectly participate in or influence the management of our affairs. Simon Eley, Chairman and Director Mr. Eley has been a director since December 20, 2010, Chief Executive Officer since September 22, 2011 and Chief Financial Officer since September 12, 2012. He is an Australian solicitor with wide experience in the resources sector. Mr. Eley is currently a director of Auricup Resources Ltd and was a director of Aragon Resources Ltd. He led the team that secured the Central Murchison Gold Project which became Aragon's core asset with approximately 2 million ounces in JORC compliant resources. Aragon was taken over by Westgold Resources Ltd in 2011 valuing Aragon at $76 million. He worked for Woodside in Mauritania, West Africa in an advisory and commercial role dealing with government, joint venture partners and local and international contractors. He has also worked for Aquila Resources, Manhattan Corporation, Clough and Clayton Utz. Mr. Eley’s experience includes capital raisings, corporate matters, various commercial arrangements (including joint venture and farm-in agreements), and matters relating to mining law, toll treatment arrangements, litigation and alternative dispute resolution. At Aquila and Manhattan he was engaged in corporate management and strategy. He also has hands on experience in operating base metal and gold mines in Western Australia and the Northern Territory. 6
Allister Blyth, Chief Financial Officer Mr. Blyth has been Chief Financial Officer since December 3, 2012. Mr. Blyth is a Certified Practicing Accountant in Australia with over 10 years of experience with both the public and private companies and specializes in financial management, reporting and strategic corporate planning. He has held financial controller and senior management positions with companies across various industries including mining exploration and development, and has been responsible for reporting compliance for various companies. Mr. Blyth has also actively participated in establishing a start-up exploration company in Australia. Mr. Blyth is a partner at Blyth Partners, a distinguished public accounting and business advisory firm based in Subiaco, Western Australia. Andrew Gasmier, Director Mr. Gasmier is a West Australian School of Mines educated Mining Engineer with over 16 years’ experience in both underground and open pit operations. He has extensive experience in the assessment, evaluation and feasibility of mineral projects in Africa, Australia, Laos and Russia. Mr. Gasmier has held General Management roles in operations in Queensland and Western Australia, and in the past five years Mr. Gasmier has held senior positions for Metals X, Monarch Gold, AngloGold Ashanti and Mining Plus. Mr. Gasmier is a current member of AusIMM, holds First Class Mine Managers Certificate of Competency and holds a West Australian Underground Supervisor’s Certificate of Competency. Brad Evans, Director Mr. Evans has been the General Manager of Mining Plus Pty. Ltd. for the past five years and has more than 15 years of experience in the mining industry in a diverse range of roles, from production, planning and management of mine sites, to organizational leadership. He has led the growth in Mining Plus from 10 to 70 employees with five offices around the world. Mr. Evans has a Bachelor of Engineering (Mining) degree from the University of Ballarat in Australia and holds a Mine Managers Certificates of Competency in Western Australia and New South Wales. Mark Kalajzich, President and Chief Executive Officer, Proposed Director Mark Kalajzich has held senior executive roles in the Telecommunications, Workforce Management and Retail sectors in Australia and Asia. Mark also has significant experience in Equity Capital Markets and Stock Broking with a fundamental focus of Global Resources and Commodities. He has been heavily involved in the operation and listing of resource companies and for the past 2 years, Mark has successfully foundered and held Executive Director roles in a number of successful start-up entities. Mark continues to hold a Directors role in the Private Venture Capital and Greenfields Investment Company, Chapman Valley Capital. Throughout these positions, Mark has traditionally focused on the creation of corporate structures, the execution of capital management strategies and driven change through management outcomes. 7
Miguel Cardozo, Proposed Director Dr. Cardozo has over 39 years of gold and base metals experience throughout the Americas, holding senior management roles with companies such as Newmont, North Ltd. and Teck Cominco, as well as in consulting roles to Placer Dome and AurionGold, and he is a Director of Rio Cristal Resources and Minandex, junior exploration companies. As Senior Geologist with Newmont between 1985 and 1995, Dr. Cardozo was responsible for the exploration program that led to the discovery of the Yanacocha gold district, and the Galeno copper-gold porphyry in Peru. He is a member of the Society of Economic Geologists (currently holding the position of Council for the period 2010-2012), the Colegio de Ingenieros del Perú, the Instituto de Ingenieros de Minas del Perú, the Sociedad Geológica del Perú and the Society for Geology Applied to Mineral Deposits. Dr. Cardozo is the current Vice President of the Canada Peru Chamber of Commerce and a former President of its Mining and Exploration Committee. Since 2009, he is the President of the Organizing Committee of the Peruvian Delegation to the yearly PDAC Convention in Toronto. He is also a former President of the Explorers Association of Peru and of the Mining Committee of the Canada Peru Chamber of Commerce Eduardo Ferrero, Proposed Director Mr Ferrero is an Australian-Peruvian Executive with more than 16 years professional experience in the fields of Engineering, Banking & Finance, Management Consulting and Business Start-Ups. Mr Ferrero has extensive business networks across Corporates, Banks and Government in Australia and Peru. He is a Director of LaEncontre.com, Social Coil, Re/max-Pro and Delante Consultores, and currently lives in Lima with his family. Significant Employees Other than our officers, there are no other individuals that make a significant contribution to our business. Family Relationships There are no family relationships among our directors and officers. Other Directorships None of our directors or proposed directors currently hold, or within the past five years have held, directorships in companies with a class of securities registered pursuant to Section 12 of the Exchange Act or that are subject to the requirements of Section 15(d) of such Act. Involvement in Certain Legal Proceedings We are not a party to any material legal proceedings. In addition, to our knowledge, no director, officer or affiliate of the Company, any owner of record or beneficially of more than five percent of any class of voting securities of the Company, or any associate of any such director, officer, affiliate of the Company, or security holder is a party adverse to the Company or any of its subsidiaries or has a material interest adverse to the Company or any of its subsidiaries in any material legal proceeding. 8
None of our directors, executive officers, promoters or control persons have been involved in any of the following events during the past five years: - any bankruptcy petition filed by or against any business of which such person was a general partner or executive officer either at the time of the bankruptcy or within two years prior to that time;
- any conviction in a criminal proceeding or being subject to a pending criminal proceeding (excluding traffic violations and other minor offenses);
- being subject to any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining, barring, suspending or otherwise limiting his involvement in any type of business, securities or banking activities; or
- being found by a court of competent jurisdiction (in a civil action), the SEC or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended, or vacated.
Corporate Governance Director Independence Our securities are not listed on a national securities exchange or on any inter-dealer quotation system which has a requirement that a majority of directors be independent. We evaluate independence by the standards for director independence set forth in the NYSE MKT Marketplace Rules. Under these rules, a director or proposed direrctor is not considered to be independent if he or she also is an executive officer or employee of the Company or has loaned funds to us within the past two years. As a result, Mr. Eley and Mr. Kalajzich would not be considered independent because each serves as an officer of our company. Our other directors or proposed directors, Mr. Gasmier, Mr. Evans, Mr. Cardozo and Mr. Ferrero, would be considered independent under these rules. Board of Directors’ Meetings During the fiscal year ended March 31, 2013, our board of directors did not formally meet. Our board conducted all business and approved all corporate actions during the fiscal year ended March 31, 2013 by the unanimous written consent of its members in the absence of formal board meetings. Committees of the Board of Directors As our common stock is not presently listed for trading or quotation on a national securities exchange or NASDAQ, we are not presently required to have board committees. We currently have an audit committee comprised of our current directors and Allister Blyth, our CFO. Mr. Blyth is considered a “financial expert” under applicable rules. The purpose of the Audit Committee is, among other things, to assist the board in its oversight of the integrity of our financial statements and other relevant public disclosures, our compliance with legal and regulatory requirements relating to financial reporting, the external auditors' qualifications and independence and the performance of the internal audit function and the external auditors. 9
Due to our small size and limited operations to date, we do not presently have a nominating committee, compensation committee or other committee performing similar functions. We have not adopted any procedures by which security holders may recommend nominees to our board, and we do not have a diversity policy. Code of Ethics Due to our small size and limited operations to date, we have not adopted a formal code of ethics. Our Board has found that the fiduciary duties placed on individual directors by applicable legislation and the restrictions placed by applicable legislation on an individual director's participation in decisions of the Board in which the director has an interest have been sufficient to ensure that the Board operates independently of management and in the best interests of our company. Board Leadership Structure and Role on Risk Oversight At present, we have determined our current leadership structure, comprised of our directors and officers, is appropriate due to our small size and limited operations and resources. We have no policy requiring the combination or separation of the Principal Executive Officer and Chairman roles and our governing documents do not mandate a particular structure. Our directors recognize that the leadership structure and the combination or separation of these leadership roles is driven by our needs at any point in time. Our directors are involved in the general oversight of risks that could affect our business and they will continue to evaluate our leadership structure and modify such structure as appropriate based on our size, resources and operations. Stockholder Communication with the Board of Directors
The Board welcomes your questions and comments. If you would like to communicate directly with the Board, then youStockholders may submit your communicationsend communications to our Secretaryboard of directors by writing to us at Suite 418-831 Royal Gorge Blvd, Cañon City, CO 81212. PO Box 116, West Perth 6872, Western Australia, Australia, Attention: President.Other Information Incorporated by Reference :
The following financialWe are required to file periodic reports, proxy statements and other portionsinformation with the SEC. You may read and copy this information at the Public Reference Room of the Company’s Annual ReportSEC, 100 F. Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. You may also obtain a copy of these reports by accessing the SEC’s website at http://www.sec.gov. You may also send communications to our board of directors at Tierra Grande Resources Inc., PO Box 116, West Perth 6872, Western Australia, Australia, Attention: President. Section 16(a) Beneficial Ownership Compliance Reporting Section 16(a) of the Securities Exchange Act of 1934 requires a company’s directors and officers, and persons who own more than ten-percent (10%) of the company’s common stock, to file with the Securities and Exchange Commission reports of ownership on Form 3 and reports of change in ownership on Forms 4 and 5. Such officers, directors and ten-percent stockholders are also required to furnish the company with copies of all Section 16(a) reports they file. Based on information provided to us, all such reports have been filed under Section 16(a) of the Securities Exchange Act of 1934 in a timely manner since the filing of our annual report on Form 10-K for the year ended May 31, 2009 (the “Form 10-K”)2012, except that Allister Blyth and Brad Evans were late in filing a Form 3, and Andrew Gasmier was late in filing a Form 3 and Form 4. 10
Compensation of Management and Directors Summary Compensation Table The following table sets forth, as of May 31, 2013, the Quarterly Report on Form 10-Q forcompensation paid to our principal executive officers during the third quarter ended February 28, 2010 (the “Form 10-Q”), which are being delivered to the shareholders with this proxy statement, are incorporated by reference herein:last two completed fiscal years. | Summary Compensation Table | Name and
Principal
Position
| Year
| Salary
| Bonus
| Stock
Awards
| Option
Awards
| Non-Equity
Incentive
Plan
Compen-
sation | Nonqualified
Deferred
Compensation
Earnings
| All Other
Compen
-sation
| Total
| | | | ($) | ($) | ($) | ($) | | ($) | ($) | ($) | C. Robin
Relph (1) | 2013 | $32,000 | 0 | 0 | 0 | 0 | 0 | 0 | $32,000 | | 2012 | $96,000 | 0 | 0 | 0 | 0 | 0 | 0 | $96,000 | Simon
Eley(1) | 2013 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | | 2012 | $56,000 | 0 | 0 | 0 | 0 | 0 | 0 | $56,000 |
●(1) | Market for Registrant’s Common Equity, Related Stockholder MattersChristopher Robin Relph was our President, Chief Executive Officer and Issuer PurchasesChief Financial Officer during the year ended May 31, 2011 and until September 2011, when Simon Eley was appointed our President and Chief Executive Officer in place of Equity Securities, appearingMr. Relph, who was appointed our Chairman and remained as Chief Financial Officer. Mr. Eley replaced Mr. Relph as Chief Financial Officer in Part II, Item 5September 2012 upon the resignation of the Form 10-K;Mr. Relph as a director and officer of our company. |
● | Changes in and disagreements with accountants on accounting and financial disclosure, appearing in Part II, Item 9 of the Form 10-K; |
● | The consolidated financial statements of the Company and its subsidiaries appearing in Part IV, Item 15 to the Form 10-K and the notes thereto; |
● | Management’s discussion and analysis of financial condition and results of operations appearing in Part II, Item 7 of the Form 10-K. |
● | The unaudited interim consolidated financial statements of the Company appearing in Part I, Item 1 of the Form 10-Q and the notes thereto; and |
● | Management’s discussion and analysis of financial condition and results of operations appearing in Part 1, Item 2 of the Form 10-Q. |
General
Unless contrary instructionsOption Grants We did not grant any stock options or other similar securities to our directors or officers during the years ended May 31, 2012 or 2013. Our directors and officers do not own any stock options or other similar securities of our company, except that Mr. Relph (a director and officer until September 2012) holds warrants to acquire up to two million shares at a price of $0.10 per share expiring February 11, 2013. See “Security Ownership of Certain Beneficial Owners and Management”. Management Agreements We had agreed to pay Robin Relph, an officer and director until September 2012, CDN$8,000 for his services. Mr. Relph resigned as a director and officer of our company in September 2012. Compensation upon Change of Control As of May 31, 2013, we had no pension plans or compensatory plans or other arrangements, which provide compensation in the event of the termination of directors, officers or employees or a change in control of our company. 11
Pension, Retirement or Similar Benefit Plans There are indicated on the proxy, all shares of Common Stock represented by valid proxies receivedno arrangements or plans pursuant to this solicitation and not revoked before hey are voted, willwhich we provide pension, retirement or similar benefits for directors or executive officers. We have no material bonus or profit sharing plans pursuant to which cash or non-cash compensation is or may be voted FOR Proposal No.1.
IT IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY. WE URGE YOU TO FILL IN, SIGN AND RETURN THE ACCOMPANYING FORM OF PROXY IN THE PREPAID ENVELOPE PROVIDED, REGARDLESS OF THE NUMBER OF COMPANY’S SHARES HELD BY YOU.
By Orderpaid to our directors or executive officers, except that stock options may be granted at the discretion of the Board of Directors
C. or a committee thereof.Compensation of Directors We did not pay director's fees or other cash compensation to our directors for services rendered as directors in the year ended May 31, 2012 or 2013. We have no standard arrangements pursuant to which our directors are compensated for their services in their capacity as directors. The Board of Directors may award special remuneration to any director undertaking any special services on behalf of our company other than services ordinarily required of a director. No director has received and/or accrued any compensation for his services as a director, including committee participation and/or special assignments. Certain Relationships and Related Transactions During the years ended May 31, 2013 and 2012, we incurred $32,000 and $98,778, respectively, to Christopher Robin Relph, President, CEOthe former Chairman of the Company. The amounts represent unpaid management fees, cash advances and/or expenses paid on behalf of the Company. These amounts are unsecured, non-interest bearing and Secretary
Vancouver, British Columbia
June ●, 2010
BUCKINGHAM EXPLORATION INC.
SPECIAL MEETING OF SHAREHOLDERS
June __, 2010
THIS PROXY IS SOLICTED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints C. Robin Ralphhave no repayment terms.On September 1, 2011, the Company entered into a Domain Purchase Agreement with full powerthe Mr. Relph whereby the Company purchased the domain name Buckingham.com in consideration for $10,000. At May 31, 2012, $10,000 was due from a company with common directors which was subsequently repaid. On January 25, 2012, the Company issued 500,000 shares of substitution,common stock with a fair value of $0.13 per share to a former director of the Company as proxya one-time incentive for joining the Company’s board of directors and other contributions to-date. Other than as described above, since the beginning of our last fiscal year, we have not entered into any transactions, and there are no currently proposed transactions, with our officers, directors, persons nominated for these positions, beneficial owners of 5% or more of our common stock, or family members of these persons wherein the amount involved in the transaction or a series of similar transactions exceeded the lesser of $120,000 or 1% of the average of our total assets for the last three fiscal years. While we do not have any special committee, policy or procedure related to represent the undersignedreview, approval or ratification of transactions with related persons, our board of directors reviews all such transactions. PROPOSAL 2 – Waiver of Annual Meetings Section 1 of Article 1 of our Bylaws provides that an annual meeting of our shareholders may be waived by the written consent of our shareholders owning a majority of the entire issued and outstanding capital stock of our company. Given our currently limited financial resources and the size of our company, we are seeking shareholder consent for the waiver of the annual meeting of our shareholders for the year ending May 31, 2014. In addition, our Board of Directors and shareholders owning a majority of our outstanding capital stock have previously approved the waiver of prior annual meetings, and we are seeking shareholder ratification of the waiver of all prior annual meetings. 12
Given our size and limited financial resources, we have not held annual meetings in the past. However, we plan to hold annual meetings in the future, subject to an increase in our operations and financial condition. Pursuant to our bylaws, we are required to hold an annual meeting at the Special Meetingrequest in writing of shareholders owning a majority of the entire issued and outstanding capital stock of the Company and entitled to vote. Shareholders that wish to submit a proposal or nominate a director for our next annual meeting may do so at any time, and in any event should do so within 10 days of filing of a preliminary proxy statement by us with the SEC, after which the submission or nomination will be considered untimely. PROPOSAL 3 – Ratification of Name Change On March 1, 2013, our Board of Directors and stockholders owning a majority of our outstanding common stock approved resolutions authorizing us to amend our Articles of Incorporation to change our company’s name to Tierra Grande Resources Inc. The Board believes that the name change better reflects the nature of our anticipated operations. On March 18, 2013, we filed a Definitive Information Statement on Schedule 14C with the SEC in respect of the name change and certain other corporate actions. On April 10, 2013, we received approval from “FINRA” for the name change and resulting trading symbol change for our common stock to “TGRI” and, on April 11, 2013, we filed a Form 8-K with the SEC disclosing the completion of these actions. We are hereby seeking shareholder ratification of our name change to Tierra Grande Resources Inc. to fully comply with applicable securities rules. PROPOSAL 4 – Ratification of Capital Increase On March 1, 2013, our Board of Directors and stockholders owning a majority of our outstanding common stock approved a resolution authorizing us to amend our Articles of Incorporation to increase the number of our authorized shares of common stock to 500,000,000 shares from 300,000,000 shares. The Board of Directors believes that this increase in the number of authorized shares is in the best interest of our company in that it will provide us with available shares which could be issued for various corporate purposes, including financings, acquisitions, stock dividends, stock splits, stock options, convertible debt and equity financings, as the Board of Directors determines in its discretion. The Board further believes that the increase in the number of authorized shares will enable us to promptly take advantage of market conditions and the availability of favorable opportunities without the delay and expense associated with holding a special meeting of shareholders. We presently have no specific plans, arrangements or understandings, either written or oral, to issue any of the additional authorized shares of common stock. The newly authorized shares of common stock will have voting and other rights identical to those of the currently authorized shares of common stock. 13
On March 18, 2013, we filed a Definitive Information Statement on Schedule 14C with the SEC in respect of the capital and certain other corporate actions. On April 10, 2013, we received approval from “FINRA” for the capital increase and, on April 11, 2013, we filed a Form 8-K with the SEC disclosing the completion of this action. We are hereby seeking shareholder ratification of the increase in our authorized capital stock as described above to fully comply with applicable securities rules. PROPOSAL 5 – Ratification of Stock Incentive Plan On March 1, 2013, our Board of Directors and stockholders owning a majority of our outstanding common stock approved a 2012 Stock Incentive Plan. On March 18, 2013, we filed a Definitive Information Statement on Schedule 14C with the SEC in respect of our 2012 Stock Incentive Plan and certain other corporate actions. The Plan was adopted on April 10, 2013 and, on April 11, 2013, we filed a Form 8-K with the SEC with respect to the adoption of the Plan. All prior equity compensation plans of the Company were terminated by our board in accordance with their terms. We are hereby seeking shareholder ratification of the adoption of the 2012 Stock Incentive Plan and termination of all prior equity compensation plans to fully comply with applicable securities rules. The purpose of the Plan is to promote the long-term success of our company and the creation of stockholder value by encouraging the attraction and retention of qualified employees and non-employee directors, encouraging them to focus on critical long-range objectives of our company and linking their interests directly to stockholder interests through increased stock ownership. The Plan seeks to achieve this purpose by providing for various types of incentive awards to participants. We believe it is important to have flexibility to grant various types of equity awards to our employees so that we can react appropriately to the changing environment. No securities have been issued under the Plan to date. The Plan shall be administered by our Board until the appointment of an appropriate committee (the “Committee”). The Committee has the discretion to determine the types and terms of awards made under the Plan. The Plan allows the Company to grant stock options; restricted stock rights; restricted stock; performance shares; performance share units; and stock appreciation rights to employees, officers, consultants to, and non-employee directors of, our company on the grant date of the award. The total number of shares subject to all awards under the Plan is fifteen million, subject to adjustment as provided in the Plan for stock splits, dividends, distributions, recapitalizations and other similar transactions or events. The maximum number of shares that may be granted to a participant in any year is three million. If any shares subject to an award are forfeited, expire, lapse or otherwise terminate without issuance of such shares, such shares shall, to the extent of such forfeiture, expiration, lapse or termination, again be available for issuance under the Plan. The Plan may be amended, terminated or modified with shareholder approval to the extent required by applicable rules, other than for non-substantive amendments to the Plan. The Plan also sets out provisions relating to a change in control of the Company, the non-transferability of awards, the forfeiture and substitution of awards, as well as other provisions customary for plans of this type. Federal Income Tax Consequences of Awards 14
The following summary is not intended to (and does not) constitute tax advice, is not intended to be held atexhaustive and, among other things, does not describe state, local or foreign tax consequences. There will be no U.S. federal income tax consequences to the Company’s Colorado Office located at Suite 418-831 Royal Gorge Blvd, Cañparticipant or us upon the grant of an option under the Plan. Upon exercise of an option that is not an incentive stock option, a participant generally will recognize ordinary income in an amount equal to (i) the fair market value, on City, CO 81212, on June ●, 2010, at ● p.m. pacific standard timethe date of exercise, of the acquired shares, less (ii) the exercise price of the option. We will generally be entitled to a tax deduction in the same amount. Upon the exercise of an incentive stock option, a participant recognizes no immediate taxable income. Income recognition is deferred until the participant sells the shares. If the option is exercised no later than three months after the termination of the participant’s employment, and at any adjournment thereof, and to vote allthe participant does not dispose of the shares acquired pursuant to the exercise of Common Stockthe option within two years from the date the option was granted and within one year after the exercise of Buckingham Exploration Inc. (the “Company”) the undersigned wouldoption, the gain on the sale will be treated as long-term capital gain. We are not entitled to any tax deduction with respect to the grant or exercise of incentive stock options, except that if the shares are not held for the full term of the holding period outlined above, the gain on the sale of such shares, being the lesser of: (i) the fair market value of the shares on the date of exercise minus the option price or (ii) the amount realized on disposition minus the exercise price, will be taxed to the participant as ordinary income and, we will generally be entitled to vote if personally present,a deduction in the same amount. The excess of the fair market value of the shares acquired upon exercise of an incentive stock option over the exercise price therefor constitutes a tax preference item for purposes of computing the “alternative minimum tax” under the Code. There will be no U.S. federal income tax consequences to either the participant or us upon the following matters:
Please mark boxgrant of a stock appreciation right (“SAR”). However, the participant generally will recognize ordinary income upon the exercise of an SAR in blue or black ink.
1. Proposal No.1- Reverse stock splitan amount equal to the aggregate amount of cash and the fair market value of the Company’sshares received upon exercise. We will generally be entitled to a deduction equal to the amount includible in the participant’s income.Unless a participant makes a “Section 83(b) election” under the Code, there will be no U.S. federal income tax consequences to either the participant or us upon the grant of restricted stock until expiration of the restricted period and the satisfaction of any other conditions applicable to the restricted stock. At that time, the participant generally will recognize taxable income equal to the then fair market value for the shares. We will generally be entitled to a corresponding tax deduction. There generally will be no U.S. federal income tax consequences to the participant or us upon the grant of performance awards (unless the participant makes a “Section 83(b) election” under the Code) or restricted stock units. Participants generally will recognize taxable income at the time when such awards are paid or settled in an amount equal to the aggregate amount of cash and the fair market value of shares acquired. We will generally be entitled to a tax deduction equal to the amount includible in the participant’s income. The Plan is intended to provide for Awards that are exempt from, or comply with Section 409A of the Code to the extent that such section would apply to any Award under the Plan. Section 409A of the Code governs the taxation of deferred compensation. Any participant that is granted an Award that is deemed to be deferred compensation, such as a grant of restricted stock rights or units that does not qualify for an exemption from Section 409A of the Code, and does not comply with Section 409A of the Code, could be subject to taxation on the Award as soon as the Award is no longer subject to a substantial risk of forfeiture (even if the Award is not exercisable) and an additional 20% excise tax (and a penalty based upon an amount of interest determined under Section 409A of the Code) on the value of the Award. 15
Importance of Consulting Tax Advisor The information set forth above is a summary only and does not purport to be complete. In addition, the information is based upon current Federal income tax rules and therefore is subject to change when those rules change. Moreover, because the tax consequences to any recipient will depend on his or her particular situation, each recipient should consult his or her tax adviser as to the Federal, state, local, foreign and other tax consequences of the grant or exercise of an Award or the disposition of shares acquired as a result of an Award. The foregoing summary of the Plan is qualified in its entirety by reference to the full text of the Plan, a copy of which is attached as an exhibit to our Form 8-K filed April 11, 2013. PROPOSAL 6 – Ratification of Bylaws On December 21, 2010, our Board of Directors and stockholders owning a majority of our outstanding common stock approved an amendment to our bylaws and an increase in our authorized capital from 80,000,000 shares of Common Stock, $.0001common stock, par value at a ratio of one new share for every four hundred old$0.0001, to 300,000,000 shares of the Company. For o Against o Abstain o
In their discretion, the proxiescommon stock, par value $0.0001. The number of shares of preferred stock we are authorized to voteissue did not change as a result of the capital increase.The purpose of the Bylaw amendment was to update our bylaws and make them more comprehensive, while the purpose of the capital increase was to reorganize our capital structure in connection with a recent change of control, which management believed would better position us to attract financing. On January 31, 2011, pursuant to applicable securities laws, we formally effected the Bylaw amendment and capital Increase. A copy of the Certificate of Amendment to our Articles of Incorporation reflecting the capital increase is attached as Exhibit 3.1 to our Form 8-K filed February 1, 2011. We are hereby seeking shareholder ratification of the adoption of the Bylaw amendment and capital increase to fully comply with applicable securities rules. PROPOSAL 7- Approval and Ratification of Auditors We are proposing to reappoint Malone Bailey LLP as our independent auditors for the fiscal year ending May 31, 2014 and ratify their appointment for the last two fiscal years. Malone Bailey LLP has served as our independent auditors for the last two fiscal years. The following table represents fees for the professional audit services and fees billed for other services rendered by our auditors, Malone Bailey LLP, for the audit of our annual financial statements for the years ended May 31, 2012 and 2013 and any other fees billed for other services rendered by Malone Bailey LLP during these periods.
| Year Ended May 31,
2012 | Year Ended May 31,
2013 |
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| Audit fees | $25,920 | $18,000 | | Audit-related fees | 0 | 0 | | Tax fees | 0 | 0 | | All other fees | 0 | 0 | | Total | $25,920 | $18,000 |
Since our inception, our Board of Directors, performing the duties of the Audit Committee, reviews all audit and non-audit related fees at least annually. The Board of Directors as the Audit Committee pre-approved all audit related services in fiscal 2013. Interest of Certain Persons in Matters to be Acted Upon Except as disclosed elsewhere in this Statement, none of the following persons have any substantial interest, direct or indirect, by security holdings or otherwise, in any matter to be acted upon such other business as may properly come before the meeting. THIS PROXY WILL BE VOTED AS DIRECTED, OR, IF NO DIRECTION IS INDICATED, WILL BE VOTED “FOR” ALL OF THE PROPOSALS AND, IN THE DISCRETION OF THE PROXIES, ON ALL OTHER MATTERS PROPERLY BROUGHT BEFORE THE SPECIAL MEETING. THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS.
Please date, sign as name appears at left, and return promptly. If the stock is registered in the name of two or more persons, each should sign. When signing as Corporate Officer, Partner, Executor, Administrator, Trustee, or Guardian, please give full title. Please note any change in your address alongside the address as it appears in the Proxy.
(other than elections to office):| | Dated: 1. | any director or officer of our Company since the beginning of our last fiscal year; | | | | | | | 2. | Signatureany proposed nominee for election as a director of our Company; and | | | | | | | 3. | (Print Name)any associate of any of the foregoing persons. |
The shareholdings of our directors and officers are set forth above in the section entitled "Security Ownership of Certain Beneficial Owners and Management." To our knowledge, no director has advised that he intends to oppose the corporate actions as more particularly described herein. | By Order of the Board of Directors: | | | | Dated: August 28, 2013 | By:/s/ Mark Kalajzich | | Mark Kalajzich | | President |
17
TIERRA GRANDE RESOURCES INC. REVOCABLE CONSENT SOLICITED BY THE BOARD OF DIRECTORS The undersigned stockholder of Tierra Grande Resources Inc. (the “Company”) hereby revokes all previously granted consents and appoints each of Mark Kalajzich and Simon Eley (each a director and officer of the Company) as their attorneys, agents and proxies, each with the power to appoint his substitute, and hereby authorizes them to represent and to vote as the undersigned has designated, all the shares of common stock of the undersigned. 1(a)Approval of Mark Kalajzich as a director of the Company. | ¨ | ¨ | ¨ | | CONSENT | CONSENT WITHHELD | ABSTAIN |
1(b)Approval of Miguel Cardozo as a director of the Company. | ¨ | ¨ | ¨ | | CONSENT | CONSENT WITHHELD | ABSTAIN |
1(c)Approval of Eduardo Ferrero as a director of the Company. | ¨ | ¨ | ¨ | | CONSENT | CONSENT WITHHELD | ABSTAIN |
1(d)Ratification of Andrew Gasmier as a director of the Company. | ¨ | ¨ | ¨ | | CONSENT | CONSENT WITHHELD | ABSTAIN |
1(e)Ratification of Brad Evans as a director of the Company. | ¨ | ¨ | ¨ | | CONSENT | CONSENT WITHHELD | ABSTAIN |
| 2 | Approval of waiver of the annual meeting of shareholders of the Company for the year ending May 31, 2014 and ratification of waiver by shareholders of all prior annual meetings of the Company. |
| ¨ | ¨ | ¨ | | CONSENT | CONSENT WITHHELD | ABSTAIN |
| 3 | Ratification of approval of the name change of the Company to Tierra Grande Resources Inc. |
| ¨ | ¨ | ¨ | | CONSENT | CONSENT WITHHELD | ABSTAIN |
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| 4 | Ratification of the approval of the increase in the authorized number of shares of common stock of the Company to 500,000,000 shares of common stock. |
| ¨ | ¨ | ¨ | | CONSENT | CONSENT WITHHELD | ABSTAIN |
| 5 | Ratification of the adoption of the 2012 Stock Incentive Plan of the Company and termination of all prior equity compensation plans of the Company. |
| ¨ | ¨ | ¨ | | CONSENT | CONSENT WITHHELD | ABSTAIN |
| 6 | Ratification of the adoption of amended Bylaws and prior increase in the authorized number of shares of common stock of the Company to 300,000,000 shares of common stock. |
| ¨ | ¨ | ¨ | | CONSENT | CONSENT WITHHELD | ABSTAIN |
| 7 | Approval of Malone Bailey LLP as the Company’s independent auditors for the fiscal year ending May 31, 2014 and ratification of their appointment as the Company’s independent auditors for the last two fiscal years. |
| ¨ | ¨ | ¨ | | CONSENT | CONSENT WITHHELD | ABSTAIN |
THIS CONSENT WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED BY THE UNDERSIGNED STOCKHOLDER. IF NO DIRECTION IS GIVEN, THIS CONSENT WILL BE VOTED FOR EACH OF THE ABOVE NOTED MATTERS. This Consent revokes any consent to vote such shares heretofore given by the undersigned. Please sign and date below. The undersigned hereby ratifies and confirms all that said attorneys and proxies, or any of them, or their substitutes, shall lawfully do or cause to be done because of this consent, and hereby revokes any and all consents the undersigned has given before. The undersigned acknowledges receipt of the Consent Solicitation Statement which accompanies the notice. DATED: __________, 2013 | | | (Signature) | | | | | Number of Shares Owned: | (Signature, if held jointly) |
Sign exactly as name(s) appear(s) on stock certificate(s). If stock is held jointly, each holder must sign. If signing is by attorney, executor, administrator, trustee or guardian, give full title as such. A corporation or partnership must sign by an authorized officer or general partner, respectively. PLEASE SIGN, DATE AND RETURN PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE 8
THIS CONSENT TO PO Box 116, West Perth 6872, Western Australia, Australia.19
APPENDIX A
FORM FOR DEMANDING PAYMENT BY
DISSENTING SHAREHOLDERS
Name and AddressYou may also submit your consent by facsimile to (+61 8) 9385 4737. Important Notice Regarding the Availability of the Shareholder exercising dissent rights:
Number of Shares of the Shareholder over which the ShareholderConsent Materials.This consent solicitation is exercising dissent rights:
_________________________________________ (the “Shares”)
The undersigned hereby certifies that he/she/it acquired beneficial ownership of the Shares of the Company on or before , being the date of the first announcement of the terms of the proposed Reverse Stock Split.
Dated: ____________, 2010
______________________________ ________________________
Signature Signature of Co-owners, if applicable
Print Name:
Print Title:
APPENDIX B
DISSENT PROCEDURE
SECTIONS 92A.300 TO 92A.500 OF THE
NEVADA REVISED STATUTES
RIGHTS OF DISSENTING OWNERS
NRS 92A.300 Definitions. As used in NRS 92A.300 to 92A.500, inclusive, unless the context otherwise requires, the words and terms defined in NRS 92A.305 to 92A.335, inclusive, have the meanings ascribed to them in those sections.
(Added to NRS by 1995, 2086)
NRS 92A.305 “Beneficial stockholder” defined. “Beneficial stockholder” means a person who is a beneficial owner of shares held in a voting trust or by a nominee as the stockholder of record.
(Added to NRS by 1995, 2087)
NRS 92A.310 “Corporate action” defined. “Corporate action” means the action of a domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.315 “Dissenter” defined. “Dissenter” means a stockholder who is entitled to dissent from a domestic corporation’s action under NRS 92A.380 and who exercises that right when and in the manner required by NRS 92A.400 to 92A.480, inclusive.
(Added to NRS by 1995, 2087; A 1999, 1631)
NRS 92A.320 “Fair value” defined. “Fair value,” with respect to a dissenter’s shares, means the value of the shares determined:
1. Immediately before the effectuation of the corporate action to which the dissenter objects, excluding any appreciation or depreciation in anticipation of the corporate action unless exclusion would be inequitable;
2. Using customary and current valuation concepts and techniques generally employed for similar businesses in the context of the transaction requiring appraisal; and
3. Without discounting for lack of marketability or minority status.
(Added to NRS by 1995, 2087; A 2009, 1720)
NRS 92A.325 “Stockholder” defined. “Stockholder” means a stockholder of record or a beneficial stockholder of a domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.330 “Stockholder of record” defined. “Stockholder of record” means the person in whose name shares are registered in the records of a domestic corporation or the beneficial owner of shares to the extent of the rights granted by a nominee’s certificate on file with the domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.335 “Subject corporation” defined. “Subject corporation” means the domestic corporation which is the issuer of the shares held by a dissenter before the corporate action creating the dissenter’s rights becomes effective or the surviving or acquiring entity of that issuer after the corporate action becomes effective.
(Added to NRS by 1995, 2087)
NRS 92A.340 Computation of interest. Interest payable pursuant to NRS 92A.300 to 92A.500, inclusive, must be computed from the effective date of the action until the date of payment, at the rate of interest most recently established pursuant to NRS 99.040.
(Added to NRS by 1995, 2087; A 2009, 1721)
NRS 92A.350 Rights of dissenting partner of domestic limited partnership. A partnership agreement of a domestic limited partnership or, unless otherwise provided in the partnership agreement, an agreement of merger or exchange, may provide that contractual rights with respect to the partnership interest of a dissenting general or limited partner of a domestic limited partnership are available for any class or group of partnership interests in connection with any merger or exchange in which the domestic limited p artnership is a constituent entity.
(Added to NRS by 1995, 2088)
NRS 92A.360 Rights of dissenting member of domestic limited-liability company. The articles of organization or operating agreement of a domestic limited-liability company or, unless otherwise provided in the articles of organization or operating agreement, an agreement of merger or exchange, may provide that contractual rights with respect to the interest of a dissenting member are available in connection with any merger or exchange in which the domestic limited-liability company is a constituent entity.
(Added to NRS by 1995, 2088)
NRS 92A.370 Rights of dissenting member of domestic nonprofit corporation.
1. Except as otherwise provided in subsection 2, and unless otherwise provided in the articles or bylaws, any member of any constituent domestic nonprofit corporation who voted against the merger may, without prior notice, but within 30 days after the effective date of the merger, resign from membership and is thereby excused from all contractual obligations to the constituent or surviving corporations which did not occur before the member’s resignation and is thereby entitled to those rights, if any, which would have existed if there had been no merger and the membership had been terminated or the member had been expelled.
2. Unless otherwise provided in its articles of incorporation or bylaws, no member of a domestic nonprofit corporation, including, but not limited to, a cooperative corporation, which supplies services described in chapter 704 of NRS to its members only, and no person who is a member of a domestic nonprofit corporation as a condition of or by reason of the ownership of an interest in real property, may resign and dissent pursuant to subsection 1.
(Added to NRS by 1995, 2088)
NRS 92A.380 Right of stockholder to dissent from certain corporate actions and to obtain payment for shares.
1. Except as otherwise provided in NRS 92A.370 and 92A.390, any stockholder is entitled to dissent from, and obtain payment of the fair value of the stockholder’s shares in the event of any of the following corporate actions:
(a) Consummation of a plan of merger to which the domestic corporation is a constituent entity:
(1) If approval by the stockholders is required for the merger by NRS 92A.120 to 92A.160, inclusive, or the articles of incorporation, regardless of whether the stockholder is entitled to vote on the plan of merger; or
(2) If the domestic corporation is a subsidiary and is merged with its parent pursuant to NRS 92A.180SEC’S website atwww.sec.gov.
(b) Consummation of a plan of conversion to which the domestic corporation is a constituent entity as the corporation whose subject owner’s interests will be converted.
(c) Consummation of a plan of exchange to which the domestic corporation is a constituent entity as the corporation whose subject owner’s interests will be acquired, if the stockholder’s shares are to be acquired in the plan of exchange.
(d) Any corporate action taken pursuant to a vote of the stockholders to the extent that the articles of incorporation, bylaws or a resolution of the board of directors provides that voting or nonvoting stockholders are entitled to dissent and obtain payment for their shares.
(e) Accordance of full voting rights to control shares, as defined in NRS 78.3784, only to the extent provided for pursuant to NRS 78.3793.
(f) Any corporate action not described in this subsection that will result in the stockholder receiving money or scrip instead of fractional shares except where the stockholder would not be entitled to receive such payment pursuant to NRS 78.205, 78.2055 or 78.207.
2. A stockholder who is entitled to dissent and obtain payment pursuant to NRS 92A.300 to 92A.500, inclusive, may not challenge the corporate action creating the entitlement unless the action is unlawful or fraudulent with respect to the stockholder or the domestic corporation.
3. From and after the effective date of any corporate action described in subsection 1, no stockholder who has exercised the right to dissent pursuant to NRS 92A.300 to 92A.500, inclusive, is entitled to vote his or her shares for any purpose or to receive payment of dividends or any other distributions on shares. This subsection does not apply to dividends or other distributions payable to stockholders on a date before the effective date of any corporate action from which the stockholder has dissented.
(Added to NRS by 1995, 2087; A 2001, 1414, 3199; 2003, 3189; 2005, 2204; 2007, 2438; 2009, 1721)
NRS 92A.390 Limitations on right of dissent: Stockholders of certain classes or series; action of stockholders not required for plan of merger.
1. There is no right of dissent with respect to a plan of merger, conversion or exchange in favor of stockholders of any class or series which is:
(a) A covered security under section 18(b)(1)(A) or (B) of the Securities Act of 1933, 15 U.S.C. § 77r(b)(1)(A) or (B), as amended;
(b) Traded in an organized market and has at least 2,000 stockholders and a market value of at least $20,000,000, exclusive of the value of such shares held by the corporation’s subsidiaries, senior executives, directors and beneficial stockholders owning more than 10 percent of such shares; or
(c) Issued by an open end management investment company registered with the Securities and Exchange Commission under the Investment Company Act of 1940 and which may be redeemed at the option of the holder at net asset value,
Ê unless the articles of incorporation of the corporation issuing the class or series provide otherwise.
2. The applicability of subsection 1 must be determined as of:
(a) The record date fixed to determine the stockholders entitled to receive notice of and to vote at the meeting of stockholders to act upon the corporate action requiring dissenter’s rights; or
(b) The day before the effective date of such corporate action if there is no meeting of stockholders.
3. Subsection 1 is not applicable and dissenter’s rights are available pursuant to NRS 92A.380 for the holders of any class or series of shares who are required by the terms of the corporate action requiring dissenter’s rights to accept for such shares anything other than cash or shares of any class or any series of shares of any corporation, or any other proprietary interest of any other entity, that satisfies the standards set forth in subsection 1 at the time the corporate action becomes effective.
4. There is no right of dissent for any holders of stock of the surviving domestic corporation if the plan of merger does not require action of the stockholders of the surviving domestic corporation under NRS 92A.130.
5. There is no right of dissent for any holders of stock of the parent domestic corporation if the plan of merger does not require action of the stockholders of the parent domestic corporation under NRS 92A.180.
(Added to NRS by 1995, 2088; A 2009, 1722)
NRS 92A.400 Limitations on right of dissent: Assertion as to portions only to shares registered to stockholder; assertion by beneficial stockholder.
1. A stockholder of record may assert dissenter’s rights as to fewer than all of the shares registered in his or her name only if the stockholder of record dissents with respect to all shares of the class or series beneficially owned by any one person and notifies the subject corporation in writing of the name and address of each person on whose behalf the stockholder of record asserts dissenter’s rights. The rights of a partial dissenter under this subsection are determined as if the shares as to which the partial dissenter dissents and his or her other shares were registered in the names of different stockholders.
2. A beneficial stockholder may assert dissenter’s rights as to shares held on his or her behalf only if the beneficial stockholder:
(a) Submits to the subject corporation the written consent of the stockholder of record to the dissent not later than the time the beneficial stockholder asserts dissenter’s rights; and
(b) Does so with respect to all shares of which he or she is the beneficial stockholder or over which he or she has power to direct the vote.
(Added to NRS by 1995, 2089; A 2009, 1723)
NRS 92A.410 Notification of stockholders regarding right of dissent.
1. If a proposed corporate action creating dissenters’ rights is submitted to a vote at a stockholders’ meeting, the notice of the meeting must state that stockholders are, are not or may be entitled to assert dissenters’ rights under NRS 92A.300 to 92A.500, inclusive. If the domestic corporation concludes that dissenter’s rights are or may be available, a copy of NRS 92A.300 to 92A.500, inclusive, must accompany the meeting notice sent to those record stockholders entitled to exercise dissenter’s rights.
2. If the corporate action creating dissenters’ rights is taken by written consent of the stockholders or without a vote of the stockholders, the domestic corporation shall notify in writing all stockholders entitled to assert dissenters’ rights that the action was taken and send them the dissenter’s notice described in NRS 92A.430.
(Added to NRS by 1995, 2089; A 1997, 730; 2009, 1723)
NRS 92A.420 Prerequisites to demand for payment for shares.
1. If a proposed corporate action creating dissenters’ rights is submitted to a vote at a stockholders’ meeting, a stockholder who wishes to assert dissenter’s rights with respect to any class or series of shares:
(a) Must deliver to the subject corporation, before the vote is taken, written notice of the stockholder’s intent to demand payment for his or her shares if the proposed action is effectuated; and
(b) Must not vote, or cause or permit to be voted, any of his or her shares of such class or series in favor of the proposed action.
2. If a proposed corporate action creating dissenters’ rights is taken by written consent of the stockholders, a stockholder who wishes to assert dissenters’ rights with respect to any class or series of shares must not consent to or approve the proposed corporate action with respect to such class or series.
3. A stockholder who does not satisfy the requirements of subsection 1 or 2 and NRS 92A.400 is not entitled to payment for his or her shares under this chapter.
(Added to NRS by 1995, 2089; A 1999, 1631; 2005, 2204; 2009, 1723)
NRS 92A.430 Dissenter’s notice: Delivery to stockholders entitled to assert rights; contents.
1. The subject corporation shall deliver a written dissenter’s notice to all stockholders entitled to assert dissenters’ rights.
2. The dissenter’s notice must be sent no later than 10 days after the effective date of the corporate action specified in NRS 92A.380, and must:
(a) State where the demand for payment must be sent and where and when certificates, if any, for shares must be deposited;
(b) Inform the holders of shares not represented by certificates to what extent the transfer of the shares will be restricted after the demand for payment is received;
(c) Supply a form for demanding payment that includes the date of the first announcement to the news media or to the stockholders of the terms of the proposed action and requires that the person asserting dissenter’s rights certify whether or not the person acquired beneficial ownership of the shares before that date;
(d) Set a date by which the subject corporation must receive the demand for payment, which may not be less than 30 nor more than 60 days after the date the notice is delivered and state that the stockholder shall be deemed to have waived the right to demand payment with respect to the shares unless the form is received by the subject corporation by such specified date; and
(e) Be accompanied by a copy of NRS 92A.300 to 92A.500, inclusive.
(Added to NRS by 1995, 2089; A 2005, 2205; 2009, 1724)
NRS 92A.440 Demand for payment and deposit of certificates; loss of rights of stockholder; withdrawal from appraisal process.
1. A stockholder who receives a dissenter’s notice pursuant to NRS 92A.430 and who wishes to exercise dissenter’s rights must:
(a) Demand payment;
(b) Certify whether the stockholder or the beneficial owner on whose behalf he or she is dissenting, as the case may be, acquired beneficial ownership of the shares before the date required to be set forth in the dissenter’s notice for this certification; and
(c) Deposit the stockholder’s certificates, if any, in accordance with the terms of the notice.
2. If a stockholder fails to make the certification required by paragraph (b) of subsection 1, the subject corporation may elect to treat the stockholder’s shares as after-acquired shares under NRS 92A.470.
3. Once a stockholder deposits that stockholder’s certificates or, in the case of uncertified shares makes demand for payment, that stockholder loses all rights as a stockholder, unless the stockholder withdraws pursuant to subsection 4.
4. A stockholder who has complied with subsection 1 may nevertheless decline to exercise dissenter’s rights and withdraw from the appraisal process by so notifying the subject corporation in writing by the date set forth in the dissenter’s notice pursuant to NRS 92A.430. A stockholder who fails to so withdraw from the appraisal process may not thereafter withdraw without the subject corporation’s written consent.
5. The stockholder who does not demand payment or deposit his or her certificates where required, each by the date set forth in the dissenter’s notice, is not entitled to payment for his or her shares under this chapter.
(Added to NRS by 1995, 2090; A 1997, 730; 2003, 3189; 2009, 1724)
NRS 92A.450 Uncertificated shares: Authority to restrict transfer after demand for payment. The subject corporation may restrict the transfer of shares not represented by a certificate from the date the demand for their payment is received.
(Added to NRS by 1995, 2090; A 2009, 1725)
NRS 92A.460 Payment for shares: General requirements.
1. Except as otherwise provided in NRS 92A.470, within 30 days after receipt of a demand for payment, the subject corporation shall pay in cash to each dissenter who complied with NRS 92A.440 the amount the subject corporation estimates to be the fair value of the dissenter’s shares, plus accrued interest. The obligation of the subject corporation under this subsection may be enforced by the district court:
(a) Of the county where the subject corporation’s principal office is located;
(b) If the subject corporation’s principal office is not located in this State, in the county in which the corporation’s registered office is located; or
(c) At the election of any dissenter residing or having its principal or registered office in this State, of the county where the dissenter resides or has its principal or registered office.
Ê The court shall dispose of the complaint promptly.
2. The payment must be accompanied by:
(a) The subject corporation’s balance sheet as of the end of a fiscal year ending not more than 16 months before the date of payment, a statement of income for that year, a statement of changes in the stockholders’ equity for that year or, where such financial statements are not reasonably available, then such reasonably equivalent financial information and the latest available quarterly financial statements, if any;
(b) A statement of the subject corporation’s estimate of the fair value of the shares; and
(c) A statement of the dissenter’s rights to demand payment under NRS 92A.480 and that if any such stockholder does not do so within the period specified, such stockholder shall be deemed to have accepted such payment in full satisfaction of the corporation’s obligations under this chapter.
(Added to NRS by 1995, 2090; A 2007, 2704; 2009, 1725)
NRS 92A.470 Withholding payment for shares acquired on or after date of dissenter’s notice: General requirements.
1. A subject corporation may elect to withhold payment from a dissenter unless the dissenter was the beneficial owner of the shares before the date set forth in the dissenter’s notice as the first date of any announcement to the news media or to the stockholders of the terms of the proposed action.
2. To the extent the subject corporation elects to withhold payment, within 30 days after receipt of a demand for payment, the subject corporation shall notify the dissenters described in subsection 1:
(a) Of the information required by paragraph (a) of subsection 2 of NRS 92A.460;
(b) Of the subject corporation’s estimate of fair value pursuant to paragraph (b) of subsection 2 of NRS 92A.460;
(c) That they may accept the subject corporation’s estimate of fair value, plus interest, in full satisfaction of their demands or demand appraisal under NRS 92A.480;
(d) That those stockholders who wish to accept such an offer must so notify the subject corporation of their acceptance of the offer within 30 days after receipt of such offer; and
(e) That those stockholders who do not satisfy the requirements for demanding appraisal under NRS 92A.480 shall be deemed to have accepted the subject corporation’s offer.
3. Within 10 days after receiving the stockholder’s acceptance pursuant to subsection 2, the subject corporation shall pay in cash the amount offered under paragraph (b) of subsection 2 to each stockholder who agreed to accept the subject corporation’s offer in full satisfaction of the stockholder’s demand.
4. Within 40 days after sending the notice described in subsection 2, the subject corporation shall pay in cash the amount offered under paragraph (b) of subsection 2 to each stockholder described in paragraph (e) of subsection 2.
(Added to NRS by 1995, 2091; A 2009, 1725)
NRS 92A.480 Dissenter’s estimate of fair value: Notification of subject corporation; demand for payment of estimate.
1. A dissenter paid pursuant to NRS 92A.460 who is dissatisfied with the amount of the payment may notify the subject corporation in writing of the dissenter’s own estimate of the fair value of his or her shares and the amount of interest due, and demand payment of such estimate, less any payment pursuant to NRS 92A.460. A dissenter offered payment pursuant to NRS 92A.470 who is dissatisfied with the offer may reject the offer pursuant to NRS 92A.470 and demand payment of the fair value of his or her shares and interest due.
2. A dissenter waives the right to demand payment pursuant to this section unless the dissenter notifies the subject corporation of his or her demand to be paid the dissenter’s stated estimate of fair value plus interest under subsection 1 in writing within 30 days after receiving the subject corporation’s payment or offer of payment under NRS 92A.460 or 92A.470 and is entitled only to the payment made or offered.
(Added to NRS by 1995, 2091; A 2009, 1726)
NRS 92A.490 Legal proceeding to determine fair value: Duties of subject corporation; powers of court; rights of dissenter.
1. If a demand for payment remains unsettled, the subject corporation shall commence a proceeding within 60 days after receiving the demand and petition the court to determine the fair value of the shares and accrued interest. If the subject corporation does not commence the proceeding within the 60-day period, it shall pay each dissenter whose demand remains unsettled the amount demanded by each dissenter pursuant to NRS 92A.480 plus interest.
2. A subject corporation shall commence the proceeding in the district court of the county where its principal office is located in this State. If the principal office of the subject corporation is not located in the State, it shall commence the proceeding in the county where the principal office of the domestic corporation merged with or whose shares were acquired by the foreign entity was located. If the principal office of the subject corporation and the domestic corporation merged with or whose shares were acquired is not located in this State, the subject corporation shall commence the proceeding in the district court in the county in which the corporation’s registered office is located.
3. The subject corporation shall make all dissenters, whether or not residents of Nevada, whose demands remain unsettled, parties to the proceeding as in an action against their shares. All parties must be served with a copy of the petition. Nonresidents may be served by registered or certified mail or by publication as provided by law.
4. The jurisdiction of the court in which the proceeding is commenced under subsection 2 is plenary and exclusive. The court may appoint one or more persons as appraisers to receive evidence and recommend a decision on the question of fair value. The appraisers have the powers described in the order appointing them, or any amendment thereto. The dissenters are entitled to the same discovery rights as parties in other civil proceedings.
5. Each dissenter who is made a party to the proceeding is entitled to a judgment:
(a) For the amount, if any, by which the court finds the fair value of the dissenter’s shares, plus interest, exceeds the amount paid by the subject corporation; or
(b) For the fair value, plus accrued interest, of the dissenter’s after-acquired shares for which the subject corporation elected to withhold payment pursuant to NRS 92A.470.
(Added to NRS by 1995, 2091; A 2007, 2705; 2009, 1727)
NRS 92A.500 Assessment of costs and fees in certain legal proceedings.
1. The court in a proceeding to determine fair value shall determine all of the costs of the proceeding, including the reasonable compensation and expenses of any appraisers appointed by the court. The court shall assess the costs against the subject corporation, except that the court may assess costs against all or some of the dissenters, in amounts the court finds equitable, to the extent the court finds the dissenters acted arbitrarily, vexatiously or not in good faith in demanding payment.
2. The court may also assess the fees and expenses of the counsel and experts for the respective parties, in amounts the court finds equitable:
(a) Against the subject corporation and in favor of all dissenters if the court finds the subject corporation did not substantially comply with the requirements of NRS 92A.300 to 92A.500, inclusive; or
(b) Against either the subject corporation or a dissenter in favor of any other party, if the court finds that the party against whom the fees and expenses are assessed acted arbitrarily, vexatiously or not in good faith with respect to the rights provided by NRS 92A.300 to 92A.500, inclusive.
3. If the court finds that the services of counsel for any dissenter were of substantial benefit to other dissenters similarly situated, and that the fees for those services should not be assessed against the subject corporation, the court may award to those counsel reasonable fees to be paid out of the amounts awarded to the dissenters who were benefited.
4. In a proceeding commenced pursuant to NRS 92A.460, the court may assess the costs against the subject corporation, except that the court may assess costs against all or some of the dissenters who are parties to the proceeding, in amounts the court finds equitable, to the extent the court finds that such parties did not act in good faith in instituting the proceeding.
5. To the extent the subject corporation fails to make a required payment pursuant to NRS 92A.460, 92A.470 or 92A.480, the dissenter may bring a cause of action directly for the amount owed and, to the extent the dissenter prevails, is entitled to recover all expenses of the suit.
6. This section does not preclude any party in a proceeding commenced pursuant to NRS 92A.460 or 92A.490 from applying the provisions of N.R.C.P. 68 or NRS 17.115.
(Added to NRS by 1995, 2092; A 2009, 1727)
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