EXHIBIT (d)(1)
DUNDEE BANCORP INC.
SHARE INCENTIVE PLAN
AMENDED AND RESTATED
JULY 1, 2003
ARTICLE ONE
DEFINITIONS AND INTERPRETATION
Section 1.01 DEFINITIONS: For purposes of the Plan, unless such word or term is
otherwise defined herein or the context in which such word or term is used
herein otherwise requires, the following words and terms with the initial letter
or letters thereof capitalized shall have the following meanings:
(a) "Act" means the Business Corporations Act (Ontario) or its
successor, as amended from time to time;
(b) "Aggregate Contribution" means the aggregate of a Participant's
Contribution and the related Corporation's Contribution for the
purposes of the Share Purchase Plan;
(c) "Basic Annual Salary" means the basic annual remuneration of a
Participant from the Corporation and any Designated Affiliate
exclusive of any overtime pay, bonuses or allowances of any kind
whatsoever or such other amount as may be determined by the
Committee from time to time in respect of a Participant;
(d) "Business Day" means a day which is not a Saturday or Sunday or a
statutory or civic holiday in the City of Toronto, Ontario;
(e) "Committee" means the Directors or, if the Directors so determine in
accordance with Section 2.03 of the Plan, the committee of the
Directors authorized to administer the Plan which may include any
compensation committee of the Directors;
(f) "Common Shares" means the class B common shares of the Corporation
which the Corporation is authorized to issue;
(g) "Corporation" means Dundee Bancorp Inc., a corporation incorporated
under the Act, and the successors thereof;
(h) "Corporation's Contribution" means the amount the Corporation
credits a Participant under Section 3.05 hereof or the amount the
Employer contributes to the Trust in accordance with Section 3.05
hereof;
(i) "Current Market Price" means the weighted average price per
Subordinate Voting Share for the five immediately prior consecutive
trading days on the Toronto
2.
Stock Exchange or, if there is no listed market for the Subordinate
Voting Shares during all or part of such period during which the
"Current Market Price" would otherwise be determined, the "Current
Market Price" shall, in respect of all or such part of the period,
as the case may be, be determined by the Committee, in its sole
discretion, acting reasonably and in good faith;
(j) "Designated Affiliate" means the affiliates of the Corporation
designated by the Committee for purposes of the Plan from time to
time;
(k) "Directors" means the board of directors of the Corporation from
time to time;
(l) "Eligible Assignee" means, with respect to a Participant, (i) the
spouse of the Participant, (ii) any minor children of the
Participant, (iii) any minor grandchildren of the Participant, (iv)
a corporation controlled by the Participant where the only other
shareholders of such corporation are the spouse, minor children or
minor grandchildren of the Participant, or (v) a family-trust, where
the Participant is the trustee of such trust and the beneficiaries
of such trust do not include anyone other than the spouse, minor
children or minor grandchildren of the Participant;
(m) "Eligible Directors" means the Directors or the directors of any
Designated Affiliate from time to time;
(n) "Eligible Employees" means full-time and part-time employees and
officers, whether Directors or not, of the Corporation or any
Designated Affiliate;
(o) "Employer" means the corporation that is the employer of a
Participant, being the Corporation or a Designated Affiliate;
(p) "Employment Agreement" means any agreement or arrangement between
the Corporation or any Designated Affiliate and (i) any Eligible
Employee relating to, or entered into in connection with, the
employment or termination of employment of the Eligible Employee, or
(ii) any Eligible Director in connection with the appointment or
resignation of such Eligible Director;
(q) "Holding Period" means a period of twelve months or such longer
period as may be required by law or the Stock Exchange or any
regulatory authority having jurisdiction over the securities of the
Corporation or such other period as the Committee may in its sole
and absolute discretion, determine;
(r) "Insider" has the meaning ascribed thereto in section 627 of the
Company Manual of the Toronto Stock Exchange as of the date hereof;
(s) "Issue Price" means the simple average of the high and low trading
prices of the Subordinate Voting Shares on the Toronto Stock
Exchange for the five prior consecutive trading days ending three
trading days immediately prior to the date of issue of Subordinate
Voting Shares under the Share Purchase Plan;
3.
(t) "Long Term Disability" means the long term disability of a
Participant as determined in accordance with the long term
disability policy of the Corporation or Designated Affiliate as such
policy may exist from time to time;
(u) "Option" means an option to purchase Subordinate Voting Shares
granted pursuant to, or governed by, the Share Option Plan;
(v) "Optionee" means a Participant to whom an Option has been granted
pursuant to the Share Option Plan;
(w) "Option Period" means the period of time during which the particular
Option may be exercised;
(x) "Participant" for the Share Purchase Plan means each Eligible
Employee and for the Share Option Plan and Share Bonus Plan means
each Eligible Director or Eligible Employee as designated by the
Committee from time to time;
(y) "Participant Quarter" means each three month period ending on March
31, June 30, September 30 and December 31 in each calendar year;
(z) "Participant's Contribution" means the amount a Participant elects
to contribute to the Share Purchase Plan pursuant to Section 3.03
hereof;
(aa) "Plan" means this share incentive plan which includes the Share
Purchase Plan, the Share Option Plan and the Share Bonus Plan;
(bb) "Purchase Plan Market Option" means the share purchase plan market
option described in Section 3.05, Section 3.06, Section 3.07 and
Section 3.08 hereof;
(cc) "Purchase Plan Treasury Option" means the share purchase plan
treasury option described in Section 3.05, Section 3.06 and Section
3.07 hereof;
(dd) "Retirement" means the retirement of a Participant at the age of 65
or over in accordance with the retirement policy of the Corporation
or Designated Affiliate as such policy may exist from time to time;
(ee) "Service Provider" means an employee or Insider of the Corporation
or any of its subsidiaries and any other person or corporation
engaged to provide ongoing management or consulting services for the
Corporation or any entity controlled by the Corporation;
(ff) "Share Bonus Plan" means the share bonus plan described in Article
Five hereof;
(gg) "Share Compensation Arrangement" means a stock option, stock option
plan, employee stock purchase plan or any other compensation or
incentive mechanism involving the issuance or potential issuance of
securities of the Corporation to one or more Service Providers,
including a share purchase from treasury which is financially
assisted by the Corporation by way of a loan, guaranty or otherwise;
4.
(hh) "Share Option Plan" means the share option plan described in Article
Four hereof;
(ii) "Share Purchase Plan" means the share purchase plan described in
Article Three hereof;
(jj) "Subordinate Voting Shares" means the class A subordinate voting
shares of the Corporation which the Corporation is authorized to
issue, as adjusted in accordance with the provisions of Article
Seven of the Plan;
(kk) "Trust" means the employee share purchase plan trust and includes
the trust constituted thereby attached as schedule A hereto, as
amended from time to time; and
(ll) "Trustee" means Dundee Bancorp Inc., in its capacity as trustee of
the Trust, or any substitute trustee or trustees of the Trust as may
be appointed in accordance with the Trust.
Section 1.02 SECURITIES DEFINITIONS: In the Plan, the terms "affiliate",
"associate" and "subsidiary" shall have the meanings given to such terms in the
Securities Act (Ontario).
Section 1.03 HEADINGS: The headings of all articles, sections, and paragraphs in
the Plan are inserted for convenience of reference only and shall not affect the
construction or interpretation of the Plan.
Section 1.04 CONTEXT, CONSTRUCTION: Whenever the singular or masculine are used
in the Plan, the same shall be construed as being the plural or feminine or
neuter or vice versa where the context so requires.
Section 1.05 REFERENCES TO THIS PLAN: The words "hereto", "herein", "hereby",
"hereunder", "hereof" and similar expressions mean or refer to the Plan as a
whole and not to any particular article, section, paragraph or other part
hereof.
Section 1.06 CANADIAN FUNDS: Unless otherwise specifically provided, all
references to dollar amounts in the Plan are references to lawful money of
Canada.
Section 1.07 SCHEDULE: The following schedule is attached to, forms part of, and
shall be deemed to be incorporated in, the Plan:
Schedule Title
A Trust
5.
ARTICLE TWO
PURPOSE AND ADMINISTRATION OF THE PLAN
Section 2.01 PURPOSE OF THE PLAN: The Plan provides for the acquisition of
Subordinate Voting Shares by Participants for the purpose of (i) advancing the
interests of the Corporation through the motivation, attraction and retention of
employees, officers and directors of the Corporation and Designated Affiliates
who are responsible for the direction, management, growth and sound development
of the business of the Corporation and Designated Affiliates and (ii) securing
for the Corporation and the shareholders of the Corporation the benefits
inherent in the ownership of Subordinate Voting Shares by Participants, it being
generally recognized that share incentive plans aid in attracting, retaining and
encouraging employees and directors due to the opportunity offered to them to
acquire a proprietary interest in the Corporation.
Section 2.02 ADMINISTRATION OF THE PLAN: The Plan shall be administered by the
Committee and the Committee shall have full authority to administer the Plan
including the authority to interpret and construe any provision of the Plan and
to adopt, amend and rescind such rules and regulations for administering the
Plan as the Committee may deem necessary in order to comply with the
requirements of the Plan or any applicable law or regulatory requirement. All
actions taken and all interpretations and determinations made by the Committee
in good faith shall be final and conclusive and shall be binding on the
Participants and the Corporation. No member of the Committee shall be personally
liable for any action taken or determination or interpretation made in good
faith in connection with the Plan and all members of the Committee shall, in
addition to their rights as Directors, be fully protected, indemnified and held
harmless by the Corporation with respect to any such action taken or
determination or interpretation made. The appropriate officers of the
Corporation are hereby authorized and empowered to do all things and execute and
deliver all instruments, undertakings and applications and writings, all in such
form and containing such terms and conditions as they, in their absolute
discretion, consider necessary for the implementation of the Plan and of the
rules and regulations established for administering the Plan. All costs incurred
in connection with the Plan shall be for the account of the Corporation.
Section 2.03 DELEGATION TO COMMITTEE: All of the powers exercisable hereunder by
the Directors may, to the extent permitted by applicable law and as determined
by resolution of the Directors, be exercised by a committee of the Directors
comprised of not less than three Directors, including any compensation committee
of the board of directors.
Section 2.04 RECORD KEEPING: The Corporation shall maintain a register in which
shall be recorded:
(a) in respect of the Share Purchase Plan:
(i) the name and address of each Participant;
(ii) the Participant's Contributions and Corporation's
Contributions made on behalf of each Participant therein;
6.
(iii) the number of Subordinate Voting Shares to be issued for the
account of each Participant pursuant to the Purchase Plan
Treasury Option and the Purchase Plan Market Option;
(iv) the number of Subordinate Voting Shares held in safekeeping
for the account of a Participant issued pursuant to the
Purchase Plan Treasury Option; and
(v) the aggregate number of Subordinate Voting Shares held by the
Trust and the number of Subordinate Voting Shares held by the
Trust to be delivered to each Participant pursuant to the
Purchase Plan Treasury Option; and
(b) in respect of the Share Option Plan:
(i) the name and address of each Optionee;
(ii) the number of Subordinate Voting Shares subject to Options
granted to each Optionee;
(iii) the aggregate number of Subordinate Voting Shares subject to
Options;
(iv) the price per share at which any Subordinate Voting Share
which is the subject of an Option may be purchased; and
(v) the vesting schedule in respect of the Options granted;
and any other information the Committee shall determine should be recorded in
such register from time to time.
Section 2.05 DETERMINATION OF PARTICIPANTS AND PARTICIPATION: The Committee
shall from time to time designate the Participants who may participate in the
Share Purchase Plan, the Share Option Plan and the Share Bonus Plan. The
Committee shall from time to time determine, among other things, the number of
shares to be issued to any Participant under the Share Purchase Plan or Share
Bonus Plan, the Participants to whom Options shall be granted, the number of
Subordinate Voting Shares to be made subject to and the expiry date of each
Option granted to each Participant and the price per share at which any
Subordinate Voting Share which is the subject of an Option may be purchased, all
such determinations to be made in accordance with the terms and conditions of
the Plan, and the Committee may take into consideration the present and
potential contributions of and the services rendered by the particular
Participant to the success of the Corporation and any other factors which the
Committee deems appropriate and relevant.
Section 2.06 MAXIMUM NUMBER OF SHARES:
(a) Share Purchase Plan: The maximum number of Subordinate Voting Shares
made available for the Share Purchase Plan shall be determined from
time to time by the Committee but, in any case, shall not exceed
660,000 Subordinate Voting Shares in the aggregate.
7.
(b) Share Option Plan: The maximum number of Subordinate Voting Shares
made available for the Share Option Plan shall be determined from
time to time by the Committee but, in any case, shall not exceed
4,000,000 Subordinate Voting Shares (which include the 2,208,898
Subordinate Voting Shares under option as of March 23, 1998) in the
aggregate. In addition, the aggregate number of Subordinate Voting
Shares reserved for issuance at any time upon the exercise of
Options granted to Insiders shall not exceed 10% of the total number
of Subordinate Voting Shares then outstanding. The aggregate number
of Subordinate Voting Shares reserved for issuance to any one person
upon the exercise of Options shall not exceed 5% of the total number
of Subordinate Voting Shares then outstanding.
(c) Share Bonus Plan: The maximum number of Subordinate Voting Shares
made available for the Share Bonus Plan shall be determined from
time to time by the Committee but, in any case, shall not exceed
500,000 Subordinate Voting Shares in the aggregate.
In addition, the maximum number of Subordinate Voting Shares issuable to
Insiders pursuant to the Plan and any other Share Compensation Arrangement,
within a one-year period, shall not exceed 10% of the total number of
Subordinate Voting Shares then outstanding. The maximum number of Subordinate
Voting Shares issuable to any one Insider and such Insider's associates pursuant
to the Plan and any other Share Compensation Arrangement, within a one-year
period, shall not exceed 5% of the total number of Subordinate Voting Shares
then outstanding. For purposes of this section 2.06, the number of Subordinate
Voting Shares then outstanding shall mean the number of Subordinate Voting
Shares and Class B Common Shares outstanding on a non-diluted basis immediately
prior to the proposed grant of the applicable Option or issue of Subordinate
Voting Shares, as the case may be, excluding Subordinate Voting Shares issued
pursuant to Share Compensation Arrangements over the preceding one-year period.
If the Corporation repurchases for cancellation Subordinate Voting Shares such
that any of the foregoing percent tests are not met following such repurchase,
this shall not constitute non-compliance under the Plan.
ARTICLE THREE
SHARE PURCHASE PLAN
Section 3.01 THE SHARE PURCHASE PLAN: A Share Purchase Plan is hereby
established for Participants.
Section 3.02 PARTICIPANTS: The Committee shall designate the Eligible Employees
who may be entitled to participate in the Share Purchase Plan. Participants
entitled to participate in the Share Purchase Plan shall have provided services
to the Corporation or any Designated Affiliates for at least six consecutive
months. The Committee shall have the right, in its sole and absolute discretion,
to waive such six month period or to determine that an Eligible Employee may not
participate or is no longer eligible to participate in the Share Purchase Plan.
8.
Section 3.03 ELECTION TO PARTICIPATE IN SHARE PURCHASE PLAN AND PARTICIPANT'S
CONTRIBUTION:
(a) Any Participant who has been designated by the Committee pursuant to
Section 3.02 hereof as being entitled to participate in the Share
Purchase Plan may elect to contribute money to the Share Purchase
Plan in any calendar year if such Participant, prior to or at the
end of the immediately preceding calendar year, unless otherwise
determined by the Committee, delivers to the Employer and the
Corporation a written direction, in form and substance satisfactory
to the Corporation, authorizing the Employer to deduct the
Participant's Contribution from the remuneration of the Participant
in equal instalments over the calendar year, unless otherwise
determined by the Committee, with each instalment being equal to a
minimum of $25.00 for each remuneration period and to hold such
Participant's Contribution on behalf of the Participant.
(b) If, on December 31 of any year, a Participant has not been
continuously providing services to the Corporation or any Designated
Affiliate for at least six consecutive months (unless such six-month
requirement is waived by the Committee), then, in the calendar
quarter during which such Participant reaches six consecutive months
of such service, such Participant may elect to contribute money to
the Share Purchase Plan and make a Participant's Contribution with
respect to the balance of that calendar year, commencing at the
beginning of the next calendar quarter, by delivering to the
Employer and the Corporation the written direction referred to in
Section 3.03(a) hereof.
(c) The maximum amount or percentage amount of a Participant's
Contribution which may be made by a Participant to the Share
Purchase Plan in any calendar year shall be designated by the
Committee from time to time and shall not exceed 10% (unless
otherwise specified by the Committee), before deductions, of the
Basic Annual Salary of such Participant; provided that, for any
Participant making a Participant's Contribution for less than a full
year in accordance with Section 3.03(b) hereof, his or her Basic
Annual Salary shall be pro-rated for that calendar year.
(d) Notwithstanding Section 3.11 hereof, no adjustment shall be made to
the Participant's Contribution until the next succeeding calendar
year, and then only if a new written direction shall have been
delivered by the Participant to the Employer and the Corporation for
such calendar year in accordance with Section 3.03(a) hereof.
Section 3.04 ELECTION OF PURCHASE PLAN TREASURY OPTION OR PURCHASE PLAN MARKET
OPTION: At the commencement of every calendar quarter, the Committee shall
determine whether Participants in the Share Purchase Plan shall participate in
the Purchase Plan Treasury Option or the Purchase Plan Market Option for the
next following calendar quarter; provided that, if the Committee does not make
such a determination in respect of any calendar quarter, Participants shall
continue to participate in the Share Purchase Plan in the next following
calendar quarter on the same terms and in the same manner as in the preceding
calendar quarter.
9.
Participants shall initially participate in the Purchase Plan Market Option
until such determination is changed in respect of a particular Participant by
the Committee. Each Participant shall be advised in writing of his or her
participation in the Purchase Plan Treasury Option or the Purchase Plan Market
Option and shall be advised of any changes in such Participant's participation
under the Share Purchase Plan. Notwithstanding the foregoing and anything to the
contrary contained herein, Participants who are citizens or residents of the
United States of America shall participate only in the Purchase Plan Market
Option and shall not be eligible to participate in the Purchase Plan Treasury
Option.
Section 3.05 CORPORATION'S CONTRIBUTION: Following the receipt by the
Corporation of the written direction of a Participant in accordance with Section
3.03(a) hereof and no later than the commencement of each calendar year, the
Committee shall determine the amount of the Corporation's Contribution which
shall be made on behalf of each Participant during such calendar year; provided
that, if the Committee does not make such a determination, the amount of such
Corporation's Contribution shall be equal to the Corporation's Contribution made
on behalf of such Participant during the preceding calendar year. The maximum
amount of the Corporation's Contribution which shall be made in respect of each
Participant during a calendar year shall not exceed the amount equal to the
Participant's Contribution. The Corporation's Contribution on behalf of each
Participant shall be made pursuant to the Purchase Plan Treasury Option or the
Purchase Plan Market Option in accordance with Section 3.05(a) or Section
3.05(b) hereof.
(a) Purchase Plan Treasury Option: Under the Purchase Plan Treasury
Option, on or about the same time that the Employer deducts the
Participant's Contribution from the remuneration of a Participant
and immediately prior to the date on which any Subordinate Voting
Shares are issued on behalf of such Participant in accordance with
Section 3.06 hereof, the Corporation shall credit the Participant
with the Corporation's Contribution which shall be in the amount
determined by the Committee in accordance with this Section 3.05.
The Corporation shall not be required to segregate the Aggregate
Contribution from its own corporate funds or to pay interest
thereon.
(b) Purchase Plan Market Option: Under the Purchase Plan Market Option,
on or about the same time that the Employer deducts the
Participant's Contribution from the remuneration of a Participant,
the Employer shall pay, or cause to be paid, to the Trust the
Corporation's Contribution which shall be in the amount determined
by the Committee in accordance with this Section 3.05. The total of
the Corporation's Contribution for an Employer shall be reduced by:
(i) the cash portion of the Corporation's Contribution for that
Employer forfeited pursuant to Section 3.10(d) hereof, and
(ii) the value of any Subordinate Voting Shares which have been
forfeited pursuant to Section 3.10(d) hereof that have been
purchased with the Corporation's Contribution for that
Employer;
unless otherwise determined by the Committee, in its sole and
absolute discretion.
10.
Section 3.06 ISSUE OF SUBORDINATE VOTING SHARES: On the last Business Day of
each Participant Quarter, the Corporation shall issue for the account of each
Participant fully paid and non-assessable shares equal in value to:
(a) under the Purchase Plan Treasury Option, the Aggregate Contribution
made as of such date by such Participant and the Corporation on
behalf of such Participant converted into Subordinate Voting Shares
at the applicable Issue Price; or
(b) under the Purchase Plan Market Option, the Participant's
Contribution made by such Participant and held as of such date by
the Corporation on behalf of such Participant converted into
Subordinate Voting Shares at the applicable Issue Price.
No fractional Subordinate Voting Shares will be issued pursuant to either
conversion under this Section 3.06 and, subject to Section 3.09, Section 3.10
and Section 3.12 hereof, the Corporation shall hold any unused balance of the
Participant's Contribution on behalf of the Participant until used in accordance
with the Share Purchase Plan.
Section 3.07 DELIVERY OF SUBORDINATE VOTING SHARES:
(a) Purchase Plan Treasury Option: All Subordinate Voting Shares issued
by the Corporation for the account of a Participant pursuant to
Section 3.06 hereof for the Aggregate Contribution in respect of
such Participant under the Purchase Plan Treasury Option shall be
registered in the name of the Corporation or a nominee thereof and
shall be held by the Corporation or such nominee, in trust, for the
benefit of and as nominee of the Participant until such Subordinate
Voting Shares vest in the Participant in accordance with this
Section 3.07. Unless otherwise determined by the Committee, such
Subordinate Voting Shares shall be delivered (registered in the name
of the Participant or as the Participant shall otherwise direct in
writing) to such Participant upon the expiry of the Holding Period
which shall commence the date of issue of such Subordinate Voting
Shares. If the Corporation receives, on behalf of a Participant in
respect of any Subordinate Voting Shares so held:
(i) cash dividends;
(ii) options or rights to purchase additional securities of the
Corporation or any other corporation;
(iii) any notice of meeting, proxy statement and proxy for any
meeting of holders of Subordinate Voting Shares; or
(iv) other or additional Subordinate Voting Shares or other
securities (by way of dividend or otherwise);
then the Corporation shall forward to such Participant, at his or
her last address according to the register maintained under Section
2.04 hereof, any of the items referred to above in Section
3.07(a)(i), (ii) and (iii), and shall hold in safekeeping
11.
any additional securities referred to in Section 3.07(a)(iv) hereof
and shall deliver such securities to the Participant with the
delivery of the Subordinate Voting Shares in respect of which such
additional securities were issued.
(b) Purchase Plan Market Option: All Subordinate Voting Shares purchased
by the Corporation for the account of a Participant pursuant to
Section 3.06 hereof for the Participant's Contribution under the
Purchase Plan Market Option shall be delivered (registered in the
name of the Participant or as the Participant shall otherwise direct
in writing) to such Participant as soon as practicable after the
date of purchase of such Subordinate Voting Shares.
(c) Acceleration on Take-Over Bid or Issuer Bid: If there is a take-over
bid or issuer bid (within the meaning of the Securities Act
(Ontario)), other than an exempt take-over bid or exempt issuer bid
for purposes of the Securities Act (Ontario), made for all or a
portion of the outstanding Subordinate Voting Shares, or if the
Subordinate Voting Shares become convertible into Common Shares as a
result of a take-over bid being made for the Common Shares, then the
Committee may, by resolution, in order to permit Subordinate Voting
Shares or Common Shares, as applicable, to be tendered to such
take-over bid or issuer bid:
(i) permit fully paid and non-assessable Subordinate Voting Shares
to be issued equal in value to the then Aggregate
Contribution, in the case of the Purchase Plan Treasury
Option, or the Participant's Contribution, in the case of the
Purchase Plan Market Option, held as of such date by the
Corporation on behalf of each Participant in the Share
Purchase Plan at the applicable Issue Price prior to the
expiry of such take-over bid or issuer bid; and
(ii) permit Subordinate Voting Shares which are being held in
safekeeping for the benefit of Participants subject to the
expiry of the Holding Period relating thereto to be
immediately deliverable to such Participants prior to the
expiry of such take-over bid or issuer bid.
Section 3.08 PURCHASE PLAN MARKET OPTION - CORPORATION'S CONTRIBUTION:
(a) Under the Purchase Plan Market Option, following the receipt by the
Trust of Corporation's Contributions made on behalf of Participants,
the Trustee shall purchase, on behalf of the Trust, Subordinate
Voting Shares on the open market in accordance with the terms of the
Trust with the Corporation's Contributions made on behalf of such
Participant.
(b) All Subordinate Voting Shares purchased by the Trust in accordance
with this Section 3.08 with the Corporation's Contributions made on
behalf of Participants shall be held by the Trust in accordance with
the terms hereof and thereof and shall be distributed and delivered
to each such Participant (registered in the name of such Participant
or as such Participant shall otherwise direct in writing) prior to
December 31 of each calendar year; provided that any residual
Subordinate
12.
Voting Shares shall be held by the Trust and distributed in
accordance with the terms hereof and thereof in the next calendar
year in respect of which such Corporation's Contributions were made.
(c) If there is a take-over bid or issuer bid (within the meaning of the
Securities Act (Ontario)), other than an exempt take-over bid or
exempt issuer bid for purposes of the Securities Act (Ontario), made
for all or a portion of the outstanding Subordinate Voting Shares,
or if the Subordinate Voting Shares become convertible into Common
Shares as a result of a take-over bid being made for the Common
Shares, then the Committee may, by resolution and upon a written
direction to the Trustee, permit Subordinate Voting Shares held by
the Trust for Participants to be immediately deliverable to such
Participants prior to the expiry of such take-over bid or issuer bid
in order to permit such Subordinate Voting Shares or Common Shares,
as applicable, to be tendered to such take-over bid or issuer bid.
Section 3.09 TERMINATION OF EMPLOYMENT DUE TO RETIREMENT, LONG TERM DISABILITY
OR DEATH: If a Participant shall cease to be employed by the Corporation and all
Designated Affiliates by reason of (i) Retirement, (ii) Long Term Disability, or
(iii) the death of the Participant:
(a) such Participant shall automatically cease to be entitled to
participate in the Share Purchase Plan;
(b) the issue and delivery of Subordinate Voting Shares by the
Corporation for the Aggregate Contribution, in the case of the
Purchase Plan Treasury Option, or the Participant's Contribution, in
the case of the Purchase Plan Market Option, shall not be
accelerated by the Retirement, Long Term Disability or death of such
Participant and shall occur on the date on which such Subordinate
Voting Shares would otherwise have been issued and delivered to such
Participant in accordance with Section 3.06 and Section 3.07 hereof
had the Retirement, Long Term Disability or death of the Participant
not occurred and the Corporation shall pay any unused portion of the
Aggregate Contribution or the Participant's Contribution, as
applicable, then held by the Corporation or the Employer on behalf
of such Participant to the Participant or the estate of the
Participant, as the case may be;
(c) under the Purchase Plan Market Option, such Participant shall be
entitled to receive the Subordinate Voting Shares purchased by the
Trust with the Corporation's Contribution made in respect of the
Participant up to the date of the commencement of the Retirement,
Long Term Disability or the date of death of such Participant and
such Subordinate Voting Shares shall be delivered in accordance with
this Section 3.09;
(d) under the Purchase Plan Market Option, the delivery of Subordinate
Voting Shares purchased by the Trust with the Corporation's
Contribution made in respect of such Participant up to the date of
the commencement of the Retirement,
13.
Long Term Disability or the date of death of such Participant will
not be accelerated by the Retirement, Long Term Disability or death
of the Participant but will occur on the date on which such
Subordinate Voting Shares would otherwise have been delivered to the
Participant in accordance with this Section 3.09 had the Retirement,
Long Term Disability or death of the Participant not occurred and
any cash portion of the Corporation's Contribution in respect of the
Participant not used to purchase Subordinate Voting Shares shall be
paid to the Participant or the estate of the Participant, as the
case may be; and
(e) this Section 3.09 is subject to any Employment Agreement or any
other agreement to which the Corporation or any Designated Affiliate
is a party with respect to the rights of such Participant upon
termination due to Retirement, Long Term Disability or death.
Section 3.10 TERMINATION OTHER THAN DUE TO RETIREMENT, LONG TERM DISABILITY OR
DEATH: If a Participant shall cease to be employed by, provide services to or be
engaged by the Corporation and all Designated Affiliates for any reason other
than a reason described in Section 3.09 hereof or shall receive notice from the
Corporation or any of its Designated Affiliates of the termination of such
Participant's Employment Agreement (an "Employment Termination"):
(a) such Participant shall automatically cease to be entitled to
participate in the Share Purchase Plan;
(b) any cash portion of the Participant's Contribution then held on
behalf of such Participant shall be paid to the Participant;
(c) under the Purchase Plan Treasury Option,
(i) any cash portion of the Corporation's Contribution made on
behalf of such Participant then held on behalf of such
Participant shall be paid to the Corporation, and
(ii) subject to the discretion of the Committee to release such
Subordinate Voting Shares to such Participant, any Subordinate
Voting Shares issued on behalf of such Participant from time
to time for the Aggregate Contribution then held in
safekeeping for a Participant pursuant to Section 3.07 hereof
shall, subject to the provisions of the Act, any other
applicable law and any applicable regulatory requirement, be
purchased for cancellation by the Corporation for an aggregate
amount equal to the lesser of
(A) the Participant's Contribution, and
(B) one-half of the then Current Market Price of such
Subordinate Voting Shares,
and such proceeds shall be paid to such Participant;
14.
(d) under the Purchase Plan Market Option,
(i) any cash portion of the Corporation's Contribution made on
behalf of such Participant to the Trust then held by the Trust
shall be forfeited,
(ii) subject to the discretion of the Committee to make any other
determination with respect to the release of Subordinate
Voting Shares, such Participant shall be entitled to receive
the Subordinate Voting Shares purchased by the Trust with the
Corporation's Contribution made in respect of such Participant
up to the end of the Participant Quarter immediately prior to
the date of the Employment Termination and shall forfeit the
amount of the Corporation's Contribution and any Subordinate
Voting Shares purchased with such Corporation's Contribution
made in respect of such Participant after the end of such
Participant Quarter, and
(iii) the delivery of Subordinate Voting Shares purchased by the
Trust with the Corporation's Contribution made in respect of
such Participant shall not be accelerated by an Employment
Termination but shall occur on the date on which such
Subordinate Voting Shares would otherwise have been delivered
to such Participant in accordance with Section 3.07 hereof had
the Employment Termination not occurred; and
(e) this Section 3.10 is subject to any Employment Agreement or any
other agreement to which the Corporation or Designated Affiliate is
a party with respect to the rights of such Participant upon an
Employment Termination.
Section 3.11 ELECTION TO WITHDRAW FROM SHARE PURCHASE PLAN: Any Participant may
at any time during a calendar year, other than during the month of December,
elect to withdraw from the Share Purchase Plan. In order to withdraw, a
Participant must give at least two weeks' written notice to the Employer and the
Corporation, in form and substance satisfactory to the Employer and the
Corporation, directing the Employer to cease deducting from the Participant's
remuneration the Participant's Contribution. Deductions will cease to be made
commencing with the first pay date following the expiry of the two week notice.
The Participant's Contribution contributed to the date of withdrawal will
continue to be held by the Corporation on behalf of the Participant. On the next
following date for making the Corporation's Contribution, the Employer will
credit the Participant with the amount of the Corporation's Contribution,
calculated in accordance with Section 3.05 hereof. The issue and delivery of
Subordinate Voting Shares issued by the Corporation for the Aggregate
Contribution, in the case of the Purchase Plan Treasury Option, or the
Participant's Contribution, in the case of the Purchase Plan Market Option, up
to the date of withdrawal will not be accelerated by such withdrawal but will
occur on the date on which such Subordinate Voting Shares would otherwise have
been issued and delivered to the Participant in accordance with Section 3.07
hereof had the Participant not elected to withdraw from the Share Purchase Plan.
Under the Purchase Plan Market Option, the delivery of Subordinate Voting Shares
purchased by the Trust with the Corporation's Contribution made in respect of
the Participant will not be accelerated by such withdrawal but will occur on the
date on which such Subordinate Voting Shares would otherwise have been
15.
delivered to the Participant in accordance with Section 3.08 hereof had the
Participant not elected to withdraw from the Share Purchase Plan.
Section 3.12 NECESSARY APPROVALS: The obligation of the Corporation to issue or
deliver any Subordinate Voting Shares in accordance with the Share Purchase Plan
and the obligation of the Trust to purchase or deliver any Subordinate Voting
Shares in accordance with the Share Purchase Plan and the Trust shall be subject
to any necessary approval of any stock exchange or regulatory authority having
jurisdiction over the securities of the Corporation and compliance with all
applicable regulatory requirements and laws. If any Subordinate Voting Shares
cannot be issued or purchased or delivered by the Corporation or the Trust to a
Participant for whatever reason, the obligation of the Corporation to issue such
Subordinate Voting Shares and the obligation of the Trust to purchase or deliver
such Subordinate Voting Shares, respectively, shall terminate and the
Corporation shall have no obligation or liability to the Participant other than
(i) any Participant's Contribution held by the Employer or the Corporation on
behalf of the Participant shall be returned to the Participant without interest,
(ii) any Corporation's Contribution made by the Employer in respect of the
Participant held by the Employer or the Corporation or the Trust in cash shall
be paid to the Employer without interest, and (iii) any Subordinate Voting
Shares purchased by the Trust with the Corporation's Contribution in respect of
the Participant shall be liquidated by the Trustee in compliance with all
applicable regulatory requirements and laws and the net proceeds from such sale
shall be paid to the Employer without interest.
ARTICLE FOUR
SHARE OPTION PLAN
Section 4.01 THE SHARE OPTION PLAN AND PARTICIPANTS: The Share Option Plan is
hereby established for Participants.
Section 4.02 EXERCISE PRICE: The price per share at which any Subordinate Voting
Share which is the subject of an Option may be purchased shall be determined by
the Committee at the time the Option is granted, provided that such price shall
be not less than the closing price of the Subordinate Voting Shares on the
Toronto Stock Exchange on the last trading day immediately preceding the date of
grant of such Option.
Section 4.03 TERM OF OPTION: The Option Period for each Option shall be such
period of time as shall be determined by the Committee, subject to any
Employment Agreement, provided that no Option Period shall exceed 10 years,
commencing on the date of the grant of the Option. If the Committee does not
determine the Option Period for an Option, such Option Period shall be 10 years
commencing on the date of the grant of the Option.
Section 4.04 LAPSED OPTIONS: If Options granted under the Share Option Plan are
surrendered, terminate or expire without being exercised in whole or in part,
new Options may be granted in respect of the Subordinate Voting Shares not
purchased under such lapsed Options.
Section 4.05 LIMIT ON OPTIONS TO BE EXERCISED: Subject to Sections 4.09, 4.10
and 4.11, Options may be exercised (in each case to the nearest full share)
during the Option Period only in
16.
accordance with the vesting schedule determined by the Committee, in its sole
and absolute discretion, at the time of the grant of the Option, which vesting
schedule may include performance vesting or acceleration of vesting in certain
circumstances and which may be amended or changed by the Committee from time to
time with respect to a particular Option. If the Committee does not determine a
vesting schedule at the time of the grant of any particular Option, such Option
shall be exercisable as follows:
(a) at any time during the Option Period after the end of the first year
thereof, the Participant may purchase up to one third of the total
number of Subordinate Voting Shares set forth in his or her stock
option agreement;
(b) at any time during the Option Period after the end of the second
year thereof, the Participant may purchase an additional one third
of the total number of Subordinate Voting Shares set forth in his or
her stock option agreement plus any Subordinate Voting Shares not
purchased in accordance with subparagraph 4.05(a) hereof; and
(c) at any time during the Option Period after the expiration of the
third year thereof, the Participant may purchase any Subordinate
Voting Shares set forth in his or her stock option agreement not
purchased in accordance with subparagraphs 4.05(a) and (b) hereof.
Section 4.06 ELIGIBLE PARTICIPANTS ON EXERCISE: An Option may be exercised by
the Optionee in whole at any time, or in part from time to time, during the
Option Period as specified in Section 4.05 hereof and only to the extent that
such Optionee is entitled to exercise such Option in accordance with the vesting
schedule determined pursuant to Section 4.05 hereof, provided however that,
except as otherwise specifically provided in Section 4.09, Section 4.10 or
Section 4.11 hereof or in any Employment Agreement, no Option may be exercised
unless the Optionee at the time of exercise thereof is:
(a) in the case of an Eligible Employee, an officer of the Corporation
or a Designated Affiliate or in the employment of the Corporation or
a Designated Affiliate and has been continuously an officer or so
employed since the date of grant of such Option, provided however
that a leave of absence with the approval of the Corporation or such
Designated Affiliate shall not be considered an interruption of
employment for purposes of the Plan; and
(b) in the case of an Eligible Director who is not also an Eligible
Employee, a director of the Corporation or a Designated Affiliate
and has been such a director continuously since the date of grant of
such Option.
Section 4.07 PAYMENT OF EXERCISE PRICE: The issue of Subordinate Voting Shares
on the exercise of any Option shall be contingent upon receipt by the
Corporation of payment of the aggregate purchase price for the Subordinate
Voting Shares in respect of which the Option has been exercised by cash or
cheque delivered to the registered office of the Corporation together with a
validly completed notice of exercise substantially in the form attached hereto.
No Optionee or legal representative, legatee or distributee of any Optionee will
be, or will be
17.
deemed to be, a holder of any Subordinate Voting Shares with respect to which
such Optionee was granted an Option, unless and until certificates representing
such Subordinate Voting Shares have been issued to such Optionee, or the legal
representative, legatee or distributee of such Optionee, under the terms of the
Plan. Subject to Section 4.12 hereof, upon an Optionee exercising an Option and
paying the Corporation the aggregate purchase price for the Subordinate Voting
Shares in respect of which the Option has been exercised, the Corporation shall
as soon as practicable issue and deliver a certificate representing the
Subordinate Voting Shares so purchased.
Section 4.08 SHARE APPRECIATION RIGHTS: At the option of the Corporation, the
Corporation may elect to allow an Optionee to, rather than exercise any Option
which such Optionee is entitled to exercise under the Share Option Plan,
terminate any such Option, in whole or in part, and, in lieu of receiving
Subordinate Voting Shares to which the Option so terminated relates, (a) receive
that number of Subordinate Voting Shares, disregarding fractions, which, when
multiplied by the Current Market Price, has a value equal to the product of the
number of Subordinate Voting Shares to which the Option so terminated relates
multiplied by the difference between the Current Market Price determined as of
the day immediately preceding the date of termination of such Option and the
exercise price per share of the Subordinate Voting Shares to which the Option so
terminated relates, less any amount (which amount may be withheld in shares)
required to be withheld on account of income taxes, which withheld income taxes
will be remitted by the Corporation; or (b) receive cash equal to the product of
the number of Subordinate Voting Shares to which the Option so terminated
relates multiplied by the difference between the Current Market Price determined
as of the date immediately preceding the date of termination of such Option and
the exercise price per share of the Subordinate Voting Shares to which the
Option so terminated relates, less any amount required to be withheld on account
of income taxes, which withheld income taxes will be remitted by the
Corporation.
Section 4.09 ACCELERATION ON TAKE-OVER BID OR ISSUER BID: If there is a
take-over bid or issuer bid (within the meaning of the Securities Act
(Ontario)), other than an exempt take-over bid or exempt issuer bid for purposes
of the Securities Act (Ontario), made for all or any of the outstanding
Subordinate Voting Shares, or if the Subordinate Voting Shares become
convertible into Common Shares as a result of a take-over bid being made for the
Common Shares, then the Committee may, by resolution, permit all Options
outstanding to become immediately exercisable, notwithstanding Section 4.05
hereof, in order to permit Subordinate Voting Shares or Common Shares, as the
case may be, issuable under such Options to be tendered to such take-over bid or
issuer bid.
Section 4.10 EFFECT OF RETIREMENT, LONG TERM DISABILITY OR DEATH: Subject to any
Employment Agreement, in the event of the Retirement, Long Term Disability or
death of an Optionee, any Option held by such Optionee at the date of
Retirement, Long Term Disability or death shall become immediately exercisable
notwithstanding Section 4.05 hereof, and shall be exercisable in whole or in
part by the Optionee or the person or persons to whom the rights of the Optionee
under the Option shall pass by the will of the Optionee or the laws of descent
and distribution, as applicable, for such period of time, to be determined in
the sole and absolute discretion of the Committee, which shall be not less than
twelve months after the date of the Retirement, Long Term Disability or death of
the Optionee or prior to the expiration of the Option Period in respect of the
Option, whichever is sooner, but only to the extent that such
18.
Optionee was entitled to exercise the Option at the date of the Retirement, Long
Term Disability or death of such Optionee; provided that such time period may be
extended by the Committee, in its sole and absolute discretion, to the earlier
of the expiration of the Option Period in respect of the Option and three years
after the date of the Retirement, Long Term Disability or death of the Optionee
where the Optionee is an Eligible Employee (not including an outside Director).
Section 4.11 EFFECT OF TERMINATION OF EMPLOYMENT:
If a Participant shall
(a) cease to be a director of the Corporation and all Designated
Affiliates (and is not or does not continue to be an employee
thereof), or
(b) cease to be employed by, or provide services to, or be engaged by,
or be an officer of the Corporation and all Designated Affiliates
(and is not or does not continue to be a director or senior officer
thereof), for any reason (other than Retirement, Long Term
Disability or the death of the Participant or shall receive notice
from the Corporation or any Designated Affiliate of the termination
of his or her Employment Agreement,(collectively "Termination")
such Participant may exercise his or her Options, but only within
the 60 days next succeeding such Termination, which time period may
be extended by the Committee, in its sole and absolute discretion,
provided that, if extended, such time period may not exceed the
earlier of the expiration of the Option Period in respect of the
Option and three years after the date of such Termination where
such Participant is an Eligible Employee (not including an outside
Director), and only to the extent that such Participant was entitled
to exercise such Options at the date of such Termination, including
the rights under section 4.08 hereof provided that in no event
shall such right extend beyond the Option Period. This section
4.11 is subject to any Employment Agreement or any other agreement
to which the Corporation or its Designated Affiliates is a party
with respect to the rights of such Participant upon Termination or
change in control of the Corporation.
Section 4.12 NECESSARY APPROVALS: The obligation of the Corporation to issue and
deliver any Subordinate Voting Shares in accordance with the Share Option Plan
or make any cash payment to a Participant in accordance with Section 4.08 hereof
shall be subject to any necessary approval of any stock exchange or regulatory
authority having jurisdiction over the securities of the Corporation and
compliance with all applicable regulatory requirements and laws. If any
Subordinate Voting Shares cannot be issued or any cash payment cannot be made to
any Participant for whatever reason, the obligation of the Corporation to issue
such Subordinate Voting Shares or make such cash payment shall terminate and any
Option exercise price paid to the Corporation shall be returned to the
Participant.
19.
ARTICLE FIVE
SHARE BONUS PLAN
Section 5.01 THE SHARE BONUS PLAN: The Share Bonus Plan is hereby established
for Participants.
Section 5.02 PARTICIPANTS: The Committee shall have the right to determine, in
its sole and absolute discretion, the Participants eligible to participate in
the Share Bonus Plan and to issue for no cash consideration to any Participant
any number of Subordinate Voting Shares as a discretionary bonus subject to such
provisions and restrictions as the Committee may determine.
Section 5.03 NECESSARY APPROVALS: The obligation of the Corporation to issue and
deliver any Subordinate Voting Shares in accordance with the Share Bonus Plan
shall be subject to any necessary approvals of any stock exchange or regulatory
authority having jurisdiction over the securities of the Corporation and
compliance with all applicable regulatory requirements and laws. If any
Subordinate Voting Shares cannot be issued to any Participant for whatever
reason, the obligation of the Corporation to issue such Subordinate Voting
Shares shall terminate, without any obligation or liability to the Participant.
ARTICLE SIX
WITHHOLDING TAXES AND SECURITIES LAWS
OF THE UNITED STATES OF AMERICA
Section 6.01 WITHHOLDING TAXES: The Corporation or any Designated Affiliate may
take such steps as are considered necessary or appropriate for the withholding
of any taxes which the Corporation or any Designated Affiliate is required by
any law or regulation of any governmental authority whatsoever to withhold in
connection with any Option or Subordinate Voting Share including, without
limiting the generality of the foregoing, the withholding of all or any portion
of any payment or the withholding of the issue of Subordinate Voting Shares to
be issued upon the exercise of any Option, until such time as the Participant
has paid the Corporation or any Designated Affiliate for any amount which the
Corporation or Designated Affiliate is required to withhold with respect to such
taxes.
Section 6.02 SECURITIES LAWS OF THE UNITED STATES OF AMERICA: Neither the
Options which may be granted pursuant to the provisions of the Share Option Plan
nor the Subordinate Voting Shares which may be acquired pursuant to the exercise
of Options or participation in the Share Purchase Plan or Share Bonus Plan have
been registered under the United States Securities Act of 1933, as amended (the
"U.S. Act"), or under any securities law of any state of the United States of
America. Accordingly, any Participant who is issued Subordinate Voting Shares or
granted an Option in a transaction which is subject to the U.S. Act or the
securities laws of any state of the United States of America may be required to
represent, warrant, acknowledge and agree that:
(a) such Participant is acquiring the Option and/or any Subordinate
Voting Shares as principal and for the account of the Participant;
20.
(b) in granting the Option and/or issuing the Subordinate Voting Shares
to such Participant, the Corporation is relying on the
representations and warranties of the Participant to support the
conclusion of the Corporation that the granting of the Option and/or
the issue of Subordinate Voting Shares do not require registration
under the U.S. Securities Act or to be qualified under the
securities laws of any state of the United States of America;
(c) each certificate representing Subordinate Voting Shares issued may
be required to have the following legends:
"THE SUBORDINATE VOTING SHARES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES ACT"), AND
MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE
904 OF REGULATION S UNDER THE U.S. SECURITIES ACT AND IN COMPLIANCE
WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (C) WITH THE PRIOR
WRITTEN CONSENT OF THE CORPORATION, PURSUANT TO ANOTHER EXEMPTION
FROM REGISTRATION UNDER THE U.S. SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS."
"THE PRESENCE OF THIS LEGEND MAY IMPAIR THE ABILITY OF THE HOLDER
HEREOF TO EFFECT GOOD DELIVERY OF THE SUBORDINATE VOTING SHARES
REPRESENTED HEREBY ON A CANADIAN STOCK EXCHANGE. A CERTIFICATE
WITHOUT A LEGEND MAY BE OBTAINED FROM THE REGISTRAR AND TRANSFER
AGENT FOR THE SUBORDINATE VOTING SHARES OF THE CORPORATION IN
CONNECTION WITH A SALE OF THE SUBORDINATE VOTING SHARES REPRESENTED
HEREBY UPON DELIVERY OF THIS CERTIFICATE AND AN EXECUTED DECLARATION
BY THE SELLER, IN A FORM SATISFACTORY TO THE REGISTRAR AND TRANSFER
AGENT AND THE CORPORATION, TO THE EFFECT THAT SUCH SALE IS BEING
MADE IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S.
SECURITIES ACT.";
provided that if such Subordinate Voting Shares are being sold outside the
United States of America in compliance with the requirements of Rule 904
of Regulation S under the U.S. Securities Act, and in compliance with
applicable local laws and regulations the foregoing legends may be removed
by providing a written declaration by the holder to the registrar and
transfer agent for the Subordinate Voting Shares to the following effect:
"The undersigned (a) represents and warrants that the sale of the
securities of Dundee Bancorp Inc. (the "Corporation") to which this
declaration relates is being made in compliance with Rule 904 of
Regulation S under the United States Securities Act of 1933, as
amended (the "U.S. Securities Act"), and (b) certifies
21.
that (1) the undersigned is not an affiliate of the Corporation as
that term is defined in the U.S. Securities Act, (2) the offer of
such securities was not made to a person in the United States and
either (a) at the time the buy order was originated, the buyer was
outside the United States, or the undersigned and any person acting
on behalf of the undersigned reasonably believe that the buyer was
outside the United States or (b) the transaction was executed on or
through the facilities of The Toronto Stock Exchange and neither the
undersigned nor any person acting on behalf of the undersigned knows
that the transaction has been prearranged with a buyer in the United
States, and (3) neither the undersigned nor any affiliate of the
undersigned nor any person acting on any of their behalf has engaged
or will engage in any directed selling efforts in the United States
in connection with the offer and sale of such securities. Terms used
herein have the meanings given to them by Regulation S under the
U.S. Securities Act.";
(d) other than as contemplated by subsection 6.02(c) hereof, prior to
making any disposition of any Subordinate Voting Shares acquired
pursuant to the Plan which might be subject to the requirements of
the U.S. Securities Act, such Participant shall give written notice
to the Corporation describing the manner of the proposed disposition
and containing such other information as is necessary to enable
counsel for the Corporation to determine whether registration under
the U.S. Securities Act or qualification under any securities laws
of any state of the United States of America is required in
connection with the proposed disposition and whether the proposed
disposition is otherwise in compliance with such legislation and the
regulations thereto;
(e) other than as contemplated by subsection 6.02(c) hereof, such
Participant will not attempt to effect any disposition of the
Subordinate Voting Shares owned by such Participant and acquired
pursuant to the Plan or of any interest therein which might be
subject to the requirements of the U.S. Securities Act in the
absence of an effective registration statement relating thereto
under the U.S. Securities Act or an opinion of counsel satisfactory
in form and substance to counsel for the Corporation that such
disposition would not constitute a violation of the U.S. Securities
Act and then will only dispose of such Subordinate Voting Shares in
the manner so proposed;
(f) the Corporation may place a notation on the records of the
Corporation to the effect that none of the Subordinate Voting Shares
acquired by the Participant pursuant to the Plan shall be
transferred unless the provisions of the Plan have been complied
with; and
(g) the effect of these restrictions on the disposition of the
Subordinate Voting Shares acquired by such Participant pursuant to
the Plan is such that the Participant may not be able to sell or
otherwise dispose of such Subordinate Voting Shares for a
considerable length of time in a transaction which is subject to the
provisions of the U.S. Securities Act other than as contemplated by
subsection 6.02(c) hereof.
22.
Section 6.03 NON-QUALIFYING PLAN: The Plan is not meant to qualify as an
incentive stock option plan pursuant to Section 422 of the Internal Revenue
Code.
ARTICLE SEVEN
GENERAL
Section 7.01 EFFECTIVE TIME OF PLAN: The Plan shall become effective upon a date
to be determined by the board of directors.
Section 7.02 AMENDMENT OF PLAN: The Committee may from time to time in the
absolute discretion of the Committee amend, modify and change the provisions of
the Plan or any Options granted pursuant to the Plan, provided that any
amendment, modification or change to the provisions of the Plan or any Options
granted pursuant to the Plan which would:
(a) materially increase the benefits under the Plan or any Options
granted pursuant to the Plan;
(b) increase the number of Subordinate Voting Shares, other than by
virtue of sections 7.07 and 7.08 hereof, which may be issued
pursuant to the Plan; or
(c) materially modify the requirements as to eligibility for
participation in the Plan;
shall be subject to approval, if required, by any stock exchange or regulatory
authority having jurisdiction over the securities of the Corporation.
Section 7.03 TERMINATION OF THE PLAN: The Committee may, in its sole and
absolute discretion and without the consent of any Participant, terminate the
Plan or any part thereof provided that any rights acquired pursuant to the Plan
prior to the termination thereof shall not be affected by such termination and
provided that any Subordinate Voting Shares held on behalf of a Participant
shall be delivered to the Participant and any Options held by a Participant
shall vest in accordance with the terms of the Plan.
Section 7.04 NON-ASSIGNABLE: No rights under the Plan and no Option awarded
pursuant to the provisions of the Plan are assignable or transferable by any
Participant other than pursuant to a will or by the laws of descent and
distribution or as may be approved by the Committee and subject to compliance
with the following sentence. Subject to the approval of the Committee and, if
required, any stock exchange or regulatory authority having jurisdiction over
the securities of the Corporation and compliance with all applicable regulatory
requirements and laws, a Participant may assign an Option granted to such
Participant pursuant to the Plan to an Eligible Assignee; provided that, (i) no
consideration shall be paid by the Eligible Assignee in connection with the
transfer of such Option, and (ii) the Option held by the Eligible Assignee
following the assignment thereof by such Participant shall be deemed, as long as
such Option is outstanding, to be held by such Participant for purposes of the
limitations set forth in Section 2.06(b) hereof.
23.
Section 7.05 RIGHTS AS A SHAREHOLDER: No Optionee shall have any rights as a
shareholder of the Corporation with respect to any Subordinate Voting Shares
which are the subject of an Option. No Optionee shall be entitled to receive,
and no adjustment shall be made for, any dividends, distributions or other
rights declared for shareholders of the Corporation for which the record date is
prior to the date of exercise of any Option.
Section 7.06 NO CONTRACT OF EMPLOYMENT: Nothing contained in the Plan shall
confer or be deemed to confer upon any Participant the right to continue in the
employment of, or to provide services to, the Corporation or any Designated
Affiliate nor interfere or be deemed to interfere in any way with any right of
the Corporation or any Designated Affiliate to discharge any Participant at any
time for any reason whatsoever, with or without cause. Participation in any of
the Plans by a Participant shall be voluntary.
Section 7.07 CONSOLIDATION, MERGER, ETC.: If there is a consolidation, merger or
statutory amalgamation or arrangement of the Corporation with or into another
corporation, a separation of the business of the Corporation into two or more
entities or a transfer of all or substantially all of the assets of the
Corporation to another entity:
(a) each Participant for whom Subordinate Voting Shares are held in
safekeeping under the Share Purchase Plan or on whose behalf
Subordinate Voting Shares are held by the Trust shall receive on the
date that such Subordinate Voting Shares would otherwise be
delivered to the Participant, the securities, property or cash which
the Participant would have received upon such consolidation, merger,
amalgamation, arrangement, separation or transfer if the Participant
had held the Subordinate Voting Shares immediately prior to such
event; and
(b) upon the exercise of an Option under the Share Option Plan, the
holder thereof shall be entitled to receive the securities, property
or cash which the holder would have received upon such
consolidation, merger, amalgamation, arrangement, separation or
transfer if the holder had exercised the Option immediately prior to
such event, unless the Committee otherwise determines the basis upon
which such Option shall be exercisable, which may include permitting
all Options outstanding at the time of such event to become
immediately exercisable notwithstanding section 4.05 hereof.
Section 7.08 ADJUSTMENT IN NUMBER OF SHARES SUBJECT TO THE PLAN: In the event
there is any change in the Subordinate Voting Shares, whether by reason of a
stock dividend, consolidation, subdivision, reclassification or otherwise, an
appropriate adjustment shall be made by the Committee, in its sole and absolute
discretion, in:
(a) the number of Subordinate Voting Shares available under the Plan;
(b) the number of Subordinate Voting Shares subject to any Option; and
(c) the exercise price of the Subordinate Voting Shares subject to
Options.
24.
If the foregoing adjustment shall result in a fractional Subordinate Voting
Share, the fraction shall be disregarded. All such adjustments shall be
conclusive, final and binding for all purposes of the Plan.
Section 7.09 SECURITIES EXCHANGE TAKE-OVER BID: In the event that the
Corporation becomes the subject of a take-over bid (within the meaning of the
Securities Act (Ontario)) pursuant to which 100% of the issued and outstanding
Subordinate Voting Shares are acquired by the offeror, or pursuant to which the
Subordinate Voting Shares become convertible into class B common shares of the
Corporation as a result of a take-over bid being made for the class B common
shares of the Corporation and 100% of the class B common shares are acquired by
the offeror, either directly or as a result of the compulsory acquisition
provisions of the Act, and where consideration is paid in whole or in part in
equity securities of the offeror, the Committee may send notice to all Optionees
requiring them to surrender their Options within 10 days of the mailing of such
notice, and the Optionees shall be deemed to have surrendered such Options on
the tenth day after the mailing of such notice without further formality,
provided that:
(a) the offeror delivers with such notice an irrevocable and
unconditional offer to grant replacement options to the Optionees on
the equity securities offered as consideration;
(b) the Committee has determined, in good faith, that such replacement
options have substantially the same economic value as the Options
being surrendered; and
(c) the surrender of Options and the granting of replacement options can
be effected on a tax free rollover basis under the Income Tax Act
(Canada).
Section 7.10 NO REPRESENTATION OR WARRANTY: The Corporation makes no
representation or warranty as to the future market value of any Subordinate
Voting Shares issued or delivered in accordance with the provisions of the
Plans.
Section 7.11 COMPLIANCE WITH APPLICABLE LAW: If any provision of the Plan or any
right or any obligation thereunder or any Option contravenes any law or any
order, policy, by-law or regulation of any regulatory body having jurisdiction
over the Corporation or the securities of the Corporation, then such provision,
right, obligation or Option shall be deemed to be amended to the extent
necessary to bring such provision into compliance therewith.
Section 7.12 INTERPRETATION: This Plan shall be governed by and construed in
accordance with the laws of the Province of Ontario.
Section 7.13 EFFECTIVE DATE OF AMENDMENT: The amendments to the amended and
restated Share Incentive Plan dated January 1, 2001 set out in this amended and
restated share incentive plan shall become effective on July 1, 2003 and all
outstanding Options and Subordinate Voting Shares subject to the Share Purchase
Plan shall be governed by this Plan as amended and restated.
NOTICE OF EXERCISE
To: Dundee Bancorp Inc.
Suite 5500
Scotia Plaza
40 King Street West
Toronto, Ontario
M5H 4A9
The undersigned hereby notifies Dundee Bancorp Inc. (the "Corporation")
pursuant to the share incentive plan of the Corporation (the "Plan") that the
undersigned is hereby exercising options to acquire class A subordinate voting
shares of the Corporation granted to the undersigned pursuant to the Plan. The
particulars of such exercise are as follows:
(a) Number of options to be exercised: ________________________________
(b) Exercise price per option: ________________________________
(c) Expiry date of option: ________________________________
(d) Aggregate purchase price (tendered
in cash or by cheque): _____________________((a) x (b))
DATED this_________day of_____________________,____________.
_______________________________________
Signature
_______________________________________
Name of Optionee (please print)
_______________________________________
Address
SCHEDULE A
DUNDEE BANCORP INC.
EMPLOYEE SHARE PURCHASE PLAN TRUST
ARTICLE ONE
DEFINITIONS AND INTERPRETATIONS
Section 1.01 Section 1.01 DEFINITIONS: For purposes of the Trust, unless such
word or term is otherwise defined herein or the context in which such word or
term is used herein otherwise requires, the following words and terms with the
initial letter or letters thereof capitalized shall have the following meanings:
(a) "Committee" means the compensation committee of the Directors or, if
the Directors so determine, subsequent to the date hereof, in
accordance with section 2.03 of the Share Incentive Plan, any other
committee of the Directors authorized to administer the Share
Incentive Plan;
(b) "Corporation" means Dundee Bancorp Inc., a corporation incorporated
under the Business Corporations Act (Ontario);
(c) "Corporation's Contribution" means the amount the Corporation or any
of its Designated Affiliates contributes to the Trust from time to
time in accordance with the terms of the Share Incentive Plan;
(d) "Designated Affiliate" means the affiliates of the Corporation
designated by the Committee for purposes of the Share Incentive Plan
from time to time;
(e) "Directors" means the board of directors of the Corporation from
time to time;
(f) "Participants" means employees and officers, whether Directors or
not, and including both full-time and part-time employees, of the
Corporation or any Designated Affiliate;
(g) "Share Incentive Plan" means the share incentive plan of the
Corporation, as amended from time to time;
(h) "Subordinate Voting Shares" means the class A subordinate voting
shares of the Corporation;
(i) "Tax Act" means the Income Tax Act (Canada);
(j) "Trust" means this employee share purchase plan trust agreement and
includes the trust constituted hereby, as amended from time to time;
(k) "Trust Fund" has the meaning ascribed to that term in section 2.01
hereof; and
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(l) "Trustee" means Dundee Bancorp Inc. or any substitute trustee or
trustees of the Trust as may be appointed by the Committee.
Section 1.02 HEADINGS: The headings of all articles, sections and paragraphs in
the Trust are inserted for convenience of reference only and shall not affect
the construction or interpretation of the Trust.
Section 1.03 CONTEXT, CONSTRUCTION: Whenever the singular or masculine are used
in the Trust, the same shall be construed as being the plural or feminine or
neuter or vice versa where the context so requires.
Section 1.04 REFERENCES TO THIS TRUST: The words "hereto", "herein", "hereby",
"hereunder", "hereof" and similar expressions mean or refer to the Trust as a
whole and not to any particular article, section, paragraph or other part
hereof.
Section 1.05 CANADIAN FUNDS: Unless otherwise specifically provided, all
references to dollar amounts in the Trust are references to lawful money of
Canada.
ARTICLE TWO
CREATION OF TRUST
Section 2.01 CREATION OF TRUST: The Trustee acknowledges that all Corporation's
Contributions from time to time received by the Trustee, together with any
earnings, profits and increments thereon and property from time to time
substituted therefor, less any losses and authorized payments therefrom, shall
constitute a trust fund (the "Trust Fund") established in conjunction with the
share purchase plan comprising part of the Share Incentive Plan and shall be
held by the Trustee in trust and applied by the Trustee in the manner and for
the purposes provided in the Share Incentive Plan and this agreement. The
Trustee hereby accepts the trust created by this agreement, and agrees to hold,
invest and administer the Trust Fund subject to the terms of the Share Incentive
Plan and this agreement. In the event of a conflict between this agreement and
the Share Incentive Plan, the terms of the Share Incentive Plan shall govern.
Section 2.02 OWNERSHIP OF TRUST PROPERTY: Subject to section 4.10 hereof, the
Trustee shall be the sole legal owner of the property of the Trust upon and in
trust according and subject to the provisions of this agreement. All property of
the Trust shall, at all times, be considered as property held in trust by the
Trustee as trustee of the Trust and the Trustee shall be entitled to exercise,
in its discretion, all rights and powers of an owner of the property of the
Trust including the power to enter into all agreements which it deems necessary
on behalf of the Trust. No Participant shall have or be construed to have
individual ownership of any property of the Trust and the interest of a
Participant shall consist only of the right to receive distributions from the
Trust at the time and place and in the manner, subject to the conditions herein
expressly provided.
Section 2.03 RESPONSIBILITY OF THE TRUSTEE: The Trustee assumes no
responsibility for the administration of the provisions of the Share Incentive
Plan (other than the obligations of the Trustee expressly set forth in this
agreement), the collection of contributions required under the
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Share Incentive Plan or for the adequacy of the Trust Fund to meet and discharge
all payments and liabilities under the Share Incentive Plan.
ARTICLE THREE
ADMINISTRATION OF THE TRUST
Section 3.01 RECORD KEEPING: The Trustee shall maintain a register in which
shall be recorded:
(a) the name and address of each Participant in the share purchase plan
comprising part of the Share Incentive Plan;
(b) the Corporation's Contributions made on behalf of each Participant;
(c) the number of Subordinate Voting Shares purchased by the Trustee on
behalf of the Trust; and
(d) the number of Subordinate Voting Shares allocated and subsequently
distributed to each Participant.
A copy of such register shall be provided by the Trustee to the Corporation or
any Designated Affiliate upon request. The Corporation and any Designated
Affiliate shall provide the Trustee in writing with the information which is
required by the Trustee to maintain the registers described in subsections
3.01(a) and 3.01(b) hereof.
Section 3.02 PURCHASE OF SHARES: Following the receipt by the Trustee of a
Corporation's Contribution, the Trustee shall purchase from time to time, on
behalf of the Trust, Subordinate Voting Shares on the open market. All such
purchases shall be made by the Trustee at such times and at such prices as may
be determined by the Trustee in its absolute discretion; provided that the
Trustee shall use its best efforts to use all of the Corporation's Contributions
made in a particular calendar year to purchase Subordinate Voting Shares prior
to December 31 in such calendar year.
Section 3.03 INVESTMENT OF CASH BALANCES: Until a Corporation's Contribution (or
any part thereof) is used by the Trustee to purchase Subordinate Voting Shares
in accordance with the provisions of section 3.02 hereof, the Trustee may invest
and reinvest a Corporation's Contribution in accordance with such guidelines as
may be established by the Committee from time to time.
Section 3.04 DISTRIBUTIONS OF CAPITAL OF THE TRUST: Prior to December 31 of each
calendar year, the Trustee shall determine the number of Subordinate Voting
Shares to be distributed to each particular Participant, which number shall be
equal to the proportion of the aggregate number of Subordinate Voting Shares
delivered to all Participants in such calendar year that the amount of the
Corporation's Contributions made in respect of such Participant in such calendar
year is to the aggregate amount of the Corporation's Contributions made in
respect of all Participants in such calendar year and the Trustee shall use its
best efforts to deliver to each
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Participant (registered in the name of such Participant) as soon as practicable
but in any event prior to December 31 of such calendar year such number of
Subordinate Voting Shares. If such determination would otherwise result in the
delivery to a Participant of a fraction of a Subordinate Voting Share, the
Trustee will deliver only such whole Subordinate Voting Shares as are
deliverable. Any Subordinate Voting Shares not distributed by the Trustee prior
to December 31 in a calendar year shall be held by the Trust and distributed in
accordance with the terms hereof and the terms of the Share Incentive Plan in
the next calendar year. Upon the distribution by the Trustee to a Participant of
a Subordinate Voting Share pursuant to this section 3.04, such Subordinate
Voting Share shall no longer constitute property of the Trust Fund.
Section 3.05 DISTRIBUTION OF INCOME OF THE TRUST: In each calendar year, the
Trustee shall determine the amount of income of the Trust for the purposes of
the Tax Act and shall pay such income to the Corporation. If at the end of the
calendar year all such income has not been paid to the Corporation, the
Corporation shall be entitled on the last day of each calendar year to enforce
payment (to the extent not already paid) of such income.
Section 3.06 WITHHOLDING TAXES: The Trustee may take such steps as are
considered necessary or appropriate for the withholding and remittance of any
taxes that are required by any law or regulation of any governmental authority
whatsoever to be withheld and remitted in connection with the Trust.
Section 3.07 COMPENSATION AND EXPENDITURES: The Trustee shall be entitled to
receive such compensation as may from time to time be mutually agreed upon in
writing by the Trustee and the Committee. Such compensation and all other
disbursements made and expenditures incurred in the performance of the duties of
the Trustee hereunder or arising out of the Trust shall constitute a charge upon
the Trust Fund and shall be paid out of the Trust Fund unless such compensation,
disbursements and expenditures shall first be paid by the Corporation. The
Trustee is authorized to pay out of the Trust Fund the compensation,
disbursements and expenditures of others relating to the administration of the
Trust including, without limiting the generality of the foregoing, commission
expenditures incurred by the Trust in connection with the purchase of
Subordinate Voting Shares pursuant to section 3.02 hereof.
ARTICLE FOUR
THE TRUSTEE
Section 4.01 STANDARD OF CARE: The Trustee shall exercise the powers and
discharge the duties of its office honestly and in good faith and in connection
therewith shall exercise the degree of care, diligence and skill that a
reasonably prudent Canadian trustee would exercise in comparable circumstances.
Section 4.02 POWERS OF THE TRUSTEE: The Trustee:
(a) except as herein otherwise provided, shall, as regards all the
trusts, powers, authorities and discretions vested in it in respect
of, and under, the Trust, have absolute and uncontrolled discretion
as to the exercise thereof, whether in relation to the manner or as
to the mode of and time for the exercise thereof;
5
(b) may rely and act upon any statement, report or opinion prepared by
or any advice received from the accountants, solicitors or other
professional advisors of the Trust and shall not be responsible or
held liable for any loss or damage resulting from so relying or
acting if the advice was within the area of professional competence
of the person from whom it was received, the Trustee acted in good
faith in relying thereon and the professional advisor was aware that
the Trustee was receiving the advice in its capacity as trustee of
the Trust and the Trustee acted in good faith in relying thereon;
(c) may transfer, sell, assign or, to the maximum extent permitted by
law, delegate to any person (including any restricted party of the
Trustee as defined in the Loan and Trust Corporations Act (Ontario))
the performance of the trusts and powers vested in it hereunder, and
any such transfer, sale, assignment or delegation may be made upon
such terms and conditions and subject to such regulations as the
Trustee may think to be in the best interests of the Trust; and
(d) shall in no way be responsible for, nor incur any liability based
on, the action or failure to act or acting pursuant to or in
reliance on instructions of the Committee or any person to whom the
responsibilities of the Committee are delegated.
Section 4.03 SPECIFIC POWERS OF THE TRUSTEE: Without limiting the rights, powers
and authorities of the Trustee set out in section 4.02 hereof, the following
powers and authorities may be exercised by the Trustee in its sole judgement and
discretion and in such manner and upon such terms and conditions as it may from
time to time deem proper:
(a) to commence, defend, adjust or settle suits or legal proceedings in
connection with the Trust and to represent the Trust in any such
suits or legal proceedings and to inform the Committee with respect
thereto; provided, however, that the Trustee shall not be obligated
or required to do so unless it has been indemnified to its
satisfaction against all expenses and liabilities sustained or
anticipated by the Trustee by reason thereof;
(b) to hold any securities or other property which it may so acquire and
generally to exercise any of the powers of an owner with respect to
securities or other property held in the Trust;
(c) to renew, extend or substitute or participate in the renewal,
extension or substitution of any securities or other property held
in the Trust, upon such terms as it may deem advisable, and to agree
to a reduction in the rate of interest on any security or other
property or of any guarantee pertaining thereto, in any manner and
to any extent that it may deem advisable, to waive any default
whether in the performance of any covenant or condition of any
security or other property, or in the performance of any guarantee,
or to enforce rights in respect of any such default in such manner
and to such extent as it may deem advisable, to exercise and enforce
any and all rights of foreclosure, to bid on property on sale or
foreclosure with or without paying any consideration therefor and in
connection therewith to release the obligation on the covenant
secured by such security and to
6
exercise and enforce in any action, suit or proceeding at law or
equity any remedies in respect of any such security or guarantee
pertaining thereto;
(d) to make, execute, acknowledge and deliver any and all deeds,
conveyances, contracts, waivers, releases or other documents of
transfer and any and all other instruments in writing that may be
necessary or proper for the accomplishment of any of the powers
herein granted, whether for a term extending beyond the office of
the Trustee or beyond the possible termination of the Trust or for a
lesser term; and
(e) to dispose of any property of the Trust for the purpose of paying
obligations imposed on the Trust and the Trustee shall give prompt
notice of any such disposition to the Committee.
Section 4.04 SPECIFIC DUTIES OF THE TRUSTEE: On the written direction of the
Committee, the Trustee shall:
(a) exercise any conversion privileges, subscription rights, warrants or
other rights or options available in connection with any securities
or other property of the Trust at any time held by the Trustee and
make any payments incidental thereto or required in connection
therewith, consent to, or otherwise participate in or dissent from,
the re-organization, consolidation, amalgamation or merger of any
person, or to the sale, mortgage, pledge or lease of the property of
any person or of any of the securities which may be held in the
Trust, and do any act with reference thereto, including the
delegation of discretionary powers, the exercise of options, the
making of agreements, declarations or subscriptions and the payment
of expenses, assessments or subscriptions which it may deem
necessary or advisable in connection therewith; and
(b) vote personally, or by general or by limited proxy, any securities
or other property of the Trust which may be held by it at any time
and, similarly, to exercise personally, or by general or by limited
power of attorney, any right appurtenant to any securities or other
property of the Trust held by it at any time.
Section 4.05 DEALING WITH OTHERS AND SELF: The Trustee is hereby expressly
authorized from time to time in its sole discretion to appoint, employ, invest
in, contract with or deal with any person including itself and any person with
which it may be directly or indirectly affiliated, associated or interested or
in which it may be directly or indirectly interested, whether on its own account
or for the account of another (in a fiduciary capacity or otherwise) and,
without limiting the generality of the foregoing, the Trustee may:
(a) purchase, hold, sell, invest in or otherwise deal with securities or
other property of the same class and nature as may be held by the
Trust, whether for the Trustee's own account or for the account of
another (in a fiduciary capacity or otherwise);
(b) invest in the securities or other property of any person with which
the Trustee may be directly or indirectly associated, affiliated or
interested;
7
(c) retain cash balances from time to time on hand in the Trust with the
Trustee or any of its associates in such interest-bearing account or
accounts as the Trustee in its sole discretion may determine; and
(d) invest in the securities or other property of any person with which
the Trustees may be directly or indirectly associated, affiliated or
interested;
without being liable to account therefor and without being in breach of the
trust established hereunder.
Section 4.06 GENERAL DISCLAIMER OF LIABILITY:
(a) The Trustee shall not be liable to the Trust or to any Participant
or the Corporation or any Designated Affiliated for any loss or
damage relating to any property of, or matter regarding, the Trust,
including any loss or diminution in the value of the Trust or its
property.
(b) The Trustee shall not be liable to the Trust or to any Participant
or the Corporation or any Designated Affiliate for the acts,
omissions, receipts, neglects or defaults of any person employed or
engaged by it as permitted hereunder, or for joining in any receipt
or act of conformity, or for any loss, damage or expense caused to
the Trust through the insufficiency or deficiency of any security in
or upon which any of the monies of or belonging to the Trust shall
be laid out or invested, or for any loss or damage arising from the
bankruptcy, insolvency or tortious act of any person with whom or
which any monies, securities or property of the Trust shall be
lodged or deposited, or for any loss, damage or expense occasioned
by error in judgement or oversight on the part of the Trustee, or
for any other loss, damage or misfortune which may happen in the
execution by the Trustee of its duties hereunder, except to the
extent that the Trustee does not meet the standard of care set out
in section 4.01 hereof.
(c) The Trustee shall be fully protected in relying and acting upon the
written directions and instructions of the Committee and shall be
under no liability for any application of the Trust Fund made by it
pursuant to such written directions or instructions, and shall not
be under the duty to make inquiries with respect to whether any
application of the Trust Fund as directed or instructed complies
with the terms of the Trust or the Share Incentive Plan.
(d) The Trustee shall not be liable to the Trust or to any Participant
or the Corporation or to any Designated Affiliate for property not
actually received by the Trustee.
(e) The Trustee shall be fully protected in relying upon the information
provided to the Trustee by the Corporation in accordance with the
provisions of section 3.01 hereof.
(f) The Trustee shall be fully protected in relying upon the guidelines
provided to the Trustee by the Committee in accordance with the
provision of section 3.03 hereof.
8
Section 4.07 INDEMNIFICATION OF THE TRUSTEE: The Trustee shall at all times be
indemnified and saved harmless by the Corporation from and against:
(a) all claims whatsoever (including costs, charges and expenses in
connection therewith) brought, commenced or prosecuted against it
for or in respect of any act, deed, matter or thing whatsoever made,
done, acquiesced in or omitted in or about or in relation to the
execution of its duties as Trustee; and
(b) all other costs, charges and expenses which it sustains or incurs in
or about or in relation to the affairs of the Trust.
Section 4.08 EXCEPTION: Section 4.07 hereof does not apply to the extent that
any such claim, cost, charge or expense has been caused by the negligence,
wilful default or dishonesty of the Trustee.
Section 4.09 BANKING ARRANGEMENTS: The banking business of the Trust, or any
part thereof, shall be transacted with such Canadian chartered bank or other
person carrying on a banking business, which may include any associate or
affiliate of the Trustee, as the Trustee, subject to the Committee's consent,
may designate, appoint or authorize from time to time and all such banking
business, or any part thereof, shall be transacted by the Trustee, such one or
more of the Trustee and/or other persons as the Trustee may designate, appoint
or authorize from time to time. In all such banking transactions the Trustee
shall ensure that the Trust is credited with interest at prevailing bank rates
on all amounts deposited to the credit of the account of the Trust.
Section 4.10 CUSTODIAN:
(a) The Trustee is the current custodian of the Trust Fund. The Trustee,
with the consent of the Committee, shall have authority to appoint a
new custodian and/or one or more other custodians of the Trust Fund
and to make contractual arrangements for that purpose. In the event
any person other than the Trustee is appointed custodian of the
Trust Fund, the contract with any such custodian may include
provisions whereby the Committee may give instructions directly to
the custodian concerning the investment of the Trust Fund and the
custodian may act thereon without approval by the Trustee. The
Trustee shall be under no obligation to supervise and shall have no
responsibility or liability for acts of omission or commission of
any such custodian under such arrangement unless the Trustee is the
custodian.
(b) The Trustee may register the securities or other property of the
Trust in the name of the Trust or in the name of a nominee,
including The Canadian Depository for Securities Limited, The
Depository Trust Company or may have the property of the Trust held
in bearer form. The Trustee is hereby expressly empowered to keep
the same, wholly or partly, at the office of any financial
institution that is authorized to act as a custodian of securities
by the laws of any country, province, state or any other political
subdivision of any country in which such financial institution is
located, all as the Trustee may determine in its sole discretion so
long as the securities and other property of the Trust at all times
are kept distinct
9
from its own assets and those of its nominees and any other person
in the registers and other books of account kept by the Trustee. The
Trustee may, on the advice of the Committee, delegate custodial and
safekeeping functions to various Canadian financial institutions.
Section 4.11 EXECUTION OF DOCUMENTS BY THE TRUST: All documents required to be
executed on behalf of the Trust may be signed by the Trustee or by any other
person or persons approved in writing from time to time by the Committee and the
Trustee. The Trustee and any other person or persons approved by the Committee
and the Trustee under this section 4.11 shall not execute any instrument which
contains a material obligation unless such instrument contains a term or
provision to the effect that the obligation being created is not personally
binding upon, and resort shall not be had to, nor shall recourse or satisfaction
be sought from, the private property of the Trustee, any of the Participants,
any agent of the Trust or the Corporation, but the property of the Trust or a
specific portion thereof only shall be bound.
Section 4.12 RESIGNATION AND REMOVAL:
(a) The Trustee may resign from the trust created hereunder by giving
notice to the Committee not less than 60 days prior to the date when
such resignation shall take effect. Such resignation shall take
effect on the date specified in such notice, unless at or prior to
such date a successor Trustee or Trustees shall be appointed by the
Committee, in which case such resignation shall take effect
immediately upon the appointment of such successor Trustee or
Trustees.
(b) The Trustee may be removed by the Committee at any time by notice to
the Trustee not less than 60 days prior to the date that such
removal is to take effect provided a successor Trustee or Trustees
is or are appointed on such date.
(c) In the event that the Trustee resigns or is removed or becomes
incapable of acting or if for any reason a vacancy shall occur in
the office of the Trustee, a successor Trustee or Trustees shall
forthwith be appointed by the Committee to fill such vacancy. In the
event that the Committee shall fail to appoint a successor Trustee
or Trustees within 120 days of such vacancy, the Trust shall be
terminated and the property of the Trust shall be distributed in
accordance with the provisions of sections 3.04 and 3.05 hereof and
the terms of the Share Incentive Plan and the Trustee shall continue
to act as trustee of the Trust as though the Trust had not been
terminated in accordance with subsection 4.12 hereof until all of
the property of the Trust has been so distributed.
Section 4.13 SUCCESSOR TRUSTEE: In the event that a successor Trustee or
Trustees is or are appointed, the Trustee shall forthwith execute and deliver
such documents as may be required for the conveyance of any property of the
Trust held in the name of the Trustee, shall account to the Committee for all
property of the Trust which the Trustee holds as trustee of the Trust and shall
thereupon be discharged as trustee of the Trust.
Section 4.14 COMPLIANCE WITH LAW: The Trustee is authorized to comply with any
law, order or regulation now or hereafter in force which purports to impose on
the Trustee a duty to take or
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refrain from taking any action under this agreement and to permit authorized
parties to have access to and the right on reasonable notice to examine and make
copies of any records relating in any way to the Trust Fund.
Section 4.15 SERVICES: Except as expressly stated herein or as may be agreed
upon in writing between the Corporation and the Trustee, the Trustee makes no
representations or warranties express or implied regarding the services which it
will provide to, or in respect of, the Trust.
ARTICLE FIVE
GENERAL
Section 5.01 EFFECTIVE TIME OF TRUST: The Trust shall become effective upon
receipt by the Trustee of the initial Corporation's Contribution.
Section 5.02 AMENDMENT: The Corporation, acting through the Directors or the
Committee, reserves the right at any time and from time to time to amend, in
whole or in part, any or all of the provisions of this agreement by written
notice thereof and delivered to the Trustee, provided that no such amendment
which affects the rights, duties or responsibilities of the Trustee may be made
without its written consent, and provided further that no such amendment shall
authorize the Trust Fund to be applied, paid or diverted to any purposes other
than those provided for under the terms of the Share Incentive Plan and this
agreement. No amendment to this agreement shall operate to reduce any award
previously made to a Participant pursuant to section 3.04 hereof.
Section 5.03 TERMINATION OF TRUST: This agreement may be terminated at any time
by resolution of the Corporation acting through the Directors or by resolution
of the Committee. On the date of termination of this agreement, all the property
of the Trust shall be distributed in accordance with the provisions of sections
3.04 and 3.05 hereof and the terms of the Share Incentive Plan and if any money
remains after the distribution of the Trust Fund and the payment of all
liabilities of the Trust, the balance shall be paid to the Corporation or the
Designated Affiliate. For greater certainty, apart from the right to receive any
such funds on the termination of the Trust and the right of the Corporation to
receive the income of the Trust pursuant to section 3.05 hereof, the Corporation
and any Designated Affiliate shall have no other right to or interest in any of
the Trust Fund.
Section 5.04 GOVERNING LAW: This agreement shall be construed, administered and
enforced according to the laws of the Province of Ontario and the federal laws
of Canada applicable therein, and the Trustee shall be liable to account only in
the courts of that Province.
IN WITNESS WHEREOF the Trust has been executed by the properly authorized
officers of the Corporation and by the Trustee as of the 31st day of December,
1998.
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DUNDEE BANCORP INC.
By: /s/ Lucie Presot
-------------------------------------
By: /s/ Ray Benzinger
-------------------------------------
-------------------------------------
Trustee - Dundee Bancorp Inc.