British Columbia, Canada
(State or other jurisdiction of incorporation or organization) |
Not Applicable
(I.R.S. Employer Identification No.) |
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9000 Glenlyon Parkway
Burnaby, British Columbia
Canada V5J 5J8 (Address of Principal Executive Offices) |
Consolidated Share Option Plan
Consolidated Share Distribution Plan
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(Full titles of the plans)
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DL Services Inc.
701 Fifth Avenue, Suite 6100
Seattle, Washington 98101
(Name and address of agent for service)
(206) 903-8800
(Telephone number, including area code, of agent for service) With a copy to
Randal R. Jones
Dorsey & Whitney LLP
701 Fifth Avenue, Suite 6100
Seattle, WA 98104
(206) 903-8800
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Title of Each Class of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Offering Price Per Share(2) |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
Common shares, no par value(3)
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8,411,014
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$2.95
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$24,812,491
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$3,089
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Common shares, no par value(4)
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3,894,016
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$1.79
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$6,957,769
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$866
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Total
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$31,770,261
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$3,955
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(1) |
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this registration statement also covers any additional securities that may be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions in accordance with the provisions of the plans.
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(2) |
Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h)(1) and 457(c). The proposed maximum aggregate offering price is based upon (a) the exercise prices for outstanding options under the Consolidated Share Option Plan (the "Option Plan") and (b) the average of the high and low prices of the common shares reported on NASDAQ on June 4, 2018 for common shares reserved for future option issuances under the Option Plan and for common shares reserved for issuance under the Consolidated Share Distribution Plan (the "Share Distribution Plan").
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(3) |
Represents common shares, without par value, issuable pursuant to the Option Plan and Share Distribution Plan.
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(4) |
Represents common shares, without par value, issuable pursuant to 3,894,016 outstanding options granted under the Option Plan, with a weighted average exercise price of Cdn$2.31 per share. The amounts have been converted to U.S. dollars for purposes of this registration fee table based on the daily exchange rate reported by the Bank of Canada on June 4, 2018, which was Cdn$1.00 to $0.7735.
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(a)
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The Annual Report on Form 40-F for the year ended December 31, 2017, filed with the Commission on March 2, 2018;
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(b)
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All other reports filed by the Registrant under Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") since December 31, 2017; and
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(c)
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The description of the Registrant's securities contained in the Registrant's registration statement on Form F-10 filed with the Commission on December 11, 2002, including any amendment or report filed for the purpose of updating such description.
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·
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is or was a director or officer of the Registrant,
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·
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is or was a director or officer of another corporation (i) at a time when the corporation is or was an affiliate of the Registrant, or (ii) at the request of the Registrant, or
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·
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at the request of the Registrant, is or was, or holds or held a position equivalent to that of, a director or officer of a partnership, trust, joint venture or other unincorporated entity,
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·
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if the indemnity or payment is made under an earlier agreement to indemnify or pay expenses and, at the time that the agreement to indemnify or pay expenses was made, the Registrant was prohibited from giving the indemnity or paying the expenses by its memorandum or articles;
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·
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if the indemnity or payment is made otherwise than under an earlier agreement to indemnify or pay expenses and, at the time that the indemnity or payment is made, the Registrant is prohibited from giving the indemnity or paying the expenses by its memorandum or articles;
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·
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if, in relation to the subject matter of the eligible proceeding, the eligible party did not act honestly and in good faith with a view to the best interests of the Registrant or the associated corporation, as the case may be; or
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·
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in the case of an eligible proceeding other than a civil proceeding, if the eligible party did not have reasonable grounds for believing that the eligible party's conduct in respect of which the proceeding was brought was lawful.
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Exhibit Number
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Exhibit
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4.1
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Consolidated Share Option Plan
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4.2 | Consolidated Share Distribution Plan |
5.1
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Opinion and Consent of Stikeman Elliott LLP
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23.1
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Consent of Stikeman Elliott LLP (included in Exhibit 5.1)
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23.2
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Consent of KPMG LLP
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24.1
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Power of Attorney (included in signature page)
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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to include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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(ii)
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to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;
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(iii)
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to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
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(2)
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that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and
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(3)
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to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(b)
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(h)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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BALLARD POWER SYSTEMS INC.
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By:
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/s/ R. Randall MacEwen |
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Name: R. Randall MacEwen
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Title: President & Chief Executive Officer
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Signature
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Title
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Date
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/s/ R. Randall MacEwen
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President, Chief Executive Officer and Director
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June 7, 2018
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R. Randall MacEwen
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(Principal Executive Officer)
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/s/ Tony Guglielmin |
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Vice President and Chief
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June 7, 2018
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Tony Guglielmin
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Financial Officer (Principal Financial
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Officer and Principal Accounting Officer)
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/s/ Douglas P. Hayhurst |
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Director
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June 7, 2018
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Douglas P. Hayhurst
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/s/ Duy-Loan Le |
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Director
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June 7, 2018
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Duy-Loan Le
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/s/ Marty Neese |
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Director and Authorized United States Representative
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June 7, 2018
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Marty Neese
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/s/ James Roche |
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Director
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June 7, 2018
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James Roche
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/s/ Ian Sutcliffe |
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Director
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June 7, 2018
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Ian Sutcliffe
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/s/ Janet Woodruff |
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Director
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June 7, 2018
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Janet Woodruff
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Exhibit Number
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Exhibit
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4.1
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Consolidated Share Option Plan
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4.2 | Consolidated Share Distribution Plan |
5.1
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Opinion and Consent of Stikeman Elliott LLP
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23.1
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Consent of Stikeman Elliott LLP (included in Exhibit 5.1)
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23.2
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Consent of KPMG LLP
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24.1
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Power of Attorney (included in signature page)
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(a)
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Accelerated Vesting Event means the occurrence of any one of the following events:
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(i)
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a take-over bid (as defined under Securities Legislation) is made for Shares or Convertible Securities which, if successful would result (assuming the conversion, exchange or exercise of the Convertible Securities, if any, that are the subject of the take-over bid) in any person or persons acting jointly or in concert (as determined under Securities Legislation) or persons associated or affiliated with such person or persons (as determined under Securities Legislation) beneficially, directly or indirectly, owning shares that would, notwithstanding any agreement to the contrary, entitle the holders thereof for the first time to cast more than 50% of the votes attaching to all shares in the capital of the Corporation that may be cast to elect Directors;
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(ii)
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the acquisition or continuing ownership by any person or persons acting jointly or in concert (as determined under Securities Legislation), directly or indirectly, of Shares or of Convertible Securities, which, when added to all other securities of the Corporation at the time held by such person or persons, persons associated with such person or persons, or persons affiliated with such person or persons (as determined under Securities Legislation) (collectively, the "Acquirors"), and assuming the conversion, exchange or exercise of Convertible Securities beneficially owned by the Acquirors, results in the Acquirors beneficially owning shares that would, notwithstanding any agreement to the contrary, entitle the holders thereof for the first time to cast more than 50% of the votes attaching to all shares in the capital of the Corporation that may be cast to elect Directors;
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(iii)
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the sale, lease, exchange or other disposition of all or substantially all of the Corporation's assets, other than to a Subsidiary;
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(iv)
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an amalgamation, merger, arrangement or other business combination (a "Business Combination") involving the Corporation that results in the security holders of the parties to the Business Combination other than Ballard owning, directly or indirectly, shares of the continuing entity that entitle the holders thereof to cast more than 50% of the votes attaching to all shares in the capital of the continuing entity that may be cast to elect directors; or
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(v) |
any other transaction, a consequence of which is to Privatize the Corporation, receives the approval of, or is accepted by, the security holders of the Corporation (or all classes of security holders of the Corporation whose approval or acceptance is required) or, if their approval or acceptance is not required in the circumstances, is approved or accepted by the Corporation;
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(b)
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Annual Retainer means" for a particular Director means either:
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(i) |
the aggregate of the annual retainer (including any additional amounts payable for serving as lead Director or committee Chair or member of a committee) and the Attendance Fee, payable to that Director, or
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(ii) |
the annual retainer (which may include any additional amounts payable for serving as lead Director or committee Chair or member of a committee), payable to that Director,
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(c)
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Applicable Laws means all applicable federal, provincial and foreign laws, rules and regulations, the rules, regulations and requirements of any stock exchange(s) on which the Shares are listed for trading;
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(d)
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Associate, unless otherwise specified, has the meaning ascribed thereto under Securities Legislation;
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(e)
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Attendance Fee means, for any 12-month period, amounts payable to a Director as a Board meeting attendance fee or a committee meeting attendance fee;
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(f)
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Board means the board of directors of the Corporation;
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(g)
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Business Day means any day other than a Saturday, Sunday or statutory or civic holiday in the City of Vancouver, B.C.;
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(h)
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Committee means the Corporate Governance & Compensation Committee of the Board, or any other committee to which the Board delegates responsibility for the interpretation and administration of this Share Option Plan;
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(i)
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Convertible Securities means securities convertible into, exchangeable for or representing the right to acquire Shares;
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(j)
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Corporation means Ballard Power Systems Inc.;
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(k)
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Director means a member of the Board;
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(l)
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Effective Date of an Option means the date on which the Option is granted, whether or not the grant is subject to any Regulatory Approval;
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(m)
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Employee means a permanent employee (including Officers, whether or not Directors) of the Corporation or a Subsidiary, and for greater certainty, includes:
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(i)
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a part-time employee of the Corporation or a Subsidiary; and
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(ii)
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an individual that is seconded to the Corporation or a Subsidiary who is approved for participation in this Share Option Plan by the Board and in respect of whom, to the extent necessary, the Corporation has qualified by way of an exemption, or has obtained an order from any securities commission or other regulatory authority having jurisdiction over the granting of options, permitting granting of the Option;
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(n)
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Expiry Date of an Option means the day on which the Option lapses;
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(o)
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Fair Market Value means not less than the closing sale price per Share at which Shares are traded on the TSX (in respect of Options issued or to be issued to a person who is resident in any country other than the U.S.) or NASDAQ (in respect of Options issued or to be issued to a person who is resident in the U.S.) on the relevant date. If the Shares are not listed on the TSX or NASDAQ, the Fair Market Value will be the value established by the Board based on the average of the closing prices per Share on any other public exchange on which the Shares are listed, or if the Shares are not listed on any public exchange, by the Board based on its determination of the fair value of the Shares;
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(p)
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Insider means:
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(i)
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an insider of the Corporation as defined under Securities Legislation, other than a person who is excluded (in the relevant context) as such by virtue of a policy, staff notice, guidance, rule or requirement of the TSX (including the provisions of the TSX Company Manual); and
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(ii)
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an associate or affiliate (as determined in accordance with Securities Legislation) of a person who is an Insider by virtue of (i) above;
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(q)
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NASDAQ means the Nasdaq Global Market;
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(r)
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Officer means an individual who is an officer of the Corporation or a Subsidiary;
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(s)
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Option means a right to purchase Shares granted under this Share Option Plan to a Director, Officer or Employee;
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(t)
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Option Commitment means the notice of grant of an Option delivered by the Corporation to an Optionee and, in the case of a Director, Officer or Employee, substantially in the form of set out in Schedule "A" hereto;
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(u)
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Optioned Shares means Shares subject to an Option;
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(v)
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Optionee means an individual to whom an Option is granted by the Corporation under this Share Option Plan;
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(w)
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Privatize the Corporation means any transaction or other act a consequence of which is that the Shares of the Corporation will no longer be listed and posted for trading on any nationally recognized stock exchange in Canada or the United States (such as the TSX, the New York Stock Exchange or NASDAQ);
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(x)
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Regulatory Approval means the approval of the TSX and every other stock exchange or securities agency whose approval is required in the circumstances;
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(y)
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Retired means:
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(i)
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with respect to an Officer or Employee, the termination of his or her employment; or
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(ii)
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with respect to a Director the resignation of his or her office,
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(z)
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Securities Legislation means the laws, rules and regulations applicable in the Canadian jurisdiction in which the Corporation's principal securities regulator is located in includes, at the date hereof, Multilateral Instrument 62-104 (Take-Over Bids and Issuer Bids);
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(aa)
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Share Compensation Arrangement has the meaning ascribed to "security based compensation arrangement" in Section 613(b) of the TSX Company Manual, as amended from time to time, and includes this Share Option Plan;
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(bb)
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Share Option Plan means this Consolidated Share Option Plan, as amended from time to time;
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(cc)
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Shares means the common shares in the capital of the Corporation;
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(dd)
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Subscription Price means the amount payable on an exercise of an Option;
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(ee)
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Subsidiary means a subsidiary of the Corporation, as determined under Securities Legislation;
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(ff)
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the words "the last day on which the Officer or Employee worked for the Corporation or a Subsidiary" and the words "the last day on which the Optionee, if an Officer or Employee, worked for the Corporation or a Subsidiary" mean, with respect to an Officer or Employee whose employment has been terminated by the Corporation or a Subsidiary:
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(i)
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other than for just cause, either:
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(A)
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the day specified by the Corporation or such Subsidiary in writing to the Officer or Employee as being the last day on which the Officer or Employee is to report for work for the Corporation or a Subsidiary; or
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(B)
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if such Officer or Employee is given pay in lieu of advance notice of a pending effective date of termination, the day on which such notice of termination is given in writing by the Corporation or such Subsidiary to the Officer or Employee; and
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(ii)
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for just cause, the day on which the notice of termination was given; and
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(gg)
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Totally Disabled with respect to an Officer or Employee, means that the Officer or Employee:
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(i)
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is unable to engage in a substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months; or
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(ii)
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is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering Employees; and
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(hh)
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TSX means the Toronto Stock Exchange.
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(a)
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a reference to a statute includes all regulations made thereunder, all amendments to the statute or regulations in force from time to time, and any statute or regulation that supplements or supersedes such statute or regulations;
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(b)
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references to Sections are to sections of this Share Option Plan;
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(c)
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unless the context requires otherwise, words importing the singular include the plural and vice versa; and
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(d)
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all headings and titles are included for convenience only and they are to be ignored in the interpretation of this Share Option Plan.
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(a)
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as to a number of Shares not exceeding 33 1/3% of the Optioned Shares, at any time after the first year of the term of such Option;
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(b)
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as to a number of Shares not exceeding an additional 33 1/3% of the Optioned Shares, at any time after the second year of the term of such Option; and
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(c)
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as to the balance of the Optioned Shares, at any time after the third year of the term of such Option.
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(a)
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the time that the Optionee, if a Director, ceases to be a Director;
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(b)
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5:00 p.m. (Pacific Standard Time) on the last day on which the Optionee, if an Officer or Employee, worked for the Corporation or a Subsidiary; and
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(c)
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5:00 p.m. (Pacific Standard Time) on the Expiry Date of the Option,
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(a)
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by reason of his or her death:
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(i)
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all unvested rights of the Optionee under the Option will be deemed to have become fully vested immediately before the time of his or her death;
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(ii)
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the personal representatives of the Optionee will be entitled to exercise the Option at any time and from time to time until 5:00 p.m. (Pacific Standard Time) on the earlier of:
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(A)
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the Expiry Date of the Option; and
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(B)
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the date which is the first anniversary of the date of death of the Optionee; and
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(iii)
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the Option may be exercised only as to the number of Optioned Shares in respect of which the Optionee did not exercise the Option before the time of his or her death;
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(b)
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by reason that the Optionee has become Totally Disabled:
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(i)
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all rights of the Optionee under the Option will vest; and
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(ii)
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the Optionee or, if the Optionee dies after becoming Totally Disabled, the personal representatives of the Optionee, will be entitled to exercise the Option;
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(c)
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in circumstances in which none of Section 3.9(a), Section 3.9(b) or Section 3.9(d) applies, but subject to Section 3.9(e), by reason of the Optionee:
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(i)
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if a Director, ceasing to be a Director other than as a result of his or her voluntary resignation as such; or
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(ii)
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if an Officer or Employee,
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(A)
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being terminated by the Corporation or a Subsidiary as such other than with just cause; and
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(B)
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there being no circumstance under which such Optionee's employment might have been terminated with just cause immediately before the time when the Optionee ceased to be an Officer or Employee;
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(iii)
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the Expiry Date of the Option; and
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(iv)
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the day that is 90 days after the date that the Optionee ceased to be a Director, Officer or Employee; and
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(d)
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in circumstances in which none of Section 3.9(a), Section 3.9(b) or Section 3.9(c) applies, by reason of the Optionee:
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(i)
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if a Director, ceasing to be a Director due to his or her voluntary resignation; or
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(ii)
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if an Officer or Employee:
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(A)
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voluntarily terminating his or her employment; and
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(B)
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there being no circumstance under which such Optionee's employment might have been terminated for just cause immediately before the time when the Optionee ceased to be an Officer or Employee;
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(iii)
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the Expiry Date of the Option; and
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(iv)
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the day that is 30 days after the date the Optionee ceased to be a Director, Officer or Employee; and
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(e)
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in circumstances in which Section 3.9(c) would otherwise apply, by reason of the Optionee:
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(i)
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if a Director, ceasing to be a Director; or
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(ii)
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if an Officer or Employee:
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(A)
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being terminated by the Corporation or a Subsidiary as such other than with just cause in circumstances under which such Optionee's employment might not have been terminated with
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just cause immediately before the time when the Optionee ceased to be an Officer or Employee; or
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(B)
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voluntarily terminating his or her employment, in circumstances under which such Optionee's employment might not have been terminated with just cause immediately before the time when the Optionee ceased to be an Officer or Employee;
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(iii)
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the vesting of all unvested rights of the Optionee under the Option which might have otherwise vested in the ordinary course during a period of up to one year after the date on which the Optionee ceased to be a Director, Officer or Employee as if the Optionee had continued to be such for such period of time; and
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(iv)
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the Optionee, or if the Optionee dies after ceasing to be a Director, Officer or Employee, the personal representatives of the Optionee, to exercise the Option at any time and from time to time until 5:00 p.m. (Pacific Standard Time) on the earlier of:
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(A)
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the Expiry Date of the Option; and
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(B)
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the date determined by the Chief Executive Officer of the Corporation, such date to be no more than one year after the date on which the Optionee ceased to be a Director, Officer or Employee; and
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(v)
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in the case where subsection (iii) applies, before the end of the period permitted under subsection (iii); or
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(vi)
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in the case where subsection (iii) does not apply, before the Optionee ceased to be a Director, Officer or Employee;
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(f)
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by reason that the Optionee has been deemed to have Retired:
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(i)
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all rights of the Optionee will vest; and
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(ii)
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the Optionee will be entitled to exercise the Option
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(a)
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if the Shares are subdivided or consolidated after the Effective Date of an Option, or the Corporation pays to holders of Shares of record as of a date after the Effective Date of an Option a dividend payable in Shares:
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(i)
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the number of Shares which would be acquired on any exercise of the Option thereafter will be adjusted to the number of such Shares that the Optionee would hold through the combined effect of such exercise and such subdivision, consolidation or stock dividend if the time of the subdivision or consolidation or the record date of such stock dividend had been immediately after the exercise;
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(ii)
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the Subscription Price will be adjusted in inverse proportion to the adjustment under subsection (i) in the number of Shares that may be acquired or such exercise; and
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(iii)
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the number of such Shares referred to in Section 2.3 and considered as previously allotted for the purposes of applying Section 2.3 will be correspondingly adjusted; and
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(b)
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if there is any capital reorganization, reclassification or other change or event affecting the Shares to which Section 3.11(a) does not apply, the Board will determine whether in the circumstances it is just and equitable that there be some alteration in the securities or other consideration to be acquired by Optionees on the exercise of Options then outstanding and will make such amendments to this Share Option Plan as the Board considers appropriate in the circumstances to ensure a just and equitable result.
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(a)
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issued to Insiders within any one year under this Share Option Plan, when aggregated with the number of Shares issued to Insiders within that one year period under all other Share Compensation Arrangements of the Corporation may not exceed 10% of the issued and outstanding Shares of the Corporation at that time; and
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(b)
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issuable to Insiders, at any time, under this Share Option Plan, when aggregated with the number of Shares that may be issuable to Insiders under all other Share Compensation Arrangements of the Corporation may not exceed 10% of the issued and outstanding Shares of the Corporation at that time.
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(a) |
amendments to the definitions within this Share Option Plan and other amendments of a clerical nature;
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(b) |
amendments to any provisions relating to the granting or exercise of Options, including but not limited to provisions relating to the vesting period, acceleration of vesting, term, extension of term, termination or expiry, amount and payment of the Subscription Price or adjustment of Options, provided that, without shareholder approval, such amendment does not entail:
|
(i) |
a change in the number or percentage of Shares reserved for issuance under this Share Option Plan;
|
(ii) |
a reduction in the Subscription Price of an Option held by an Insider;
|
(iii) |
an extension beyond the original Expiry Date of an Option held by an Insider;
|
(iv) |
an increase to the maximum number of Shares that may be:
|
(v) |
an increase in the maximum number of securities (other than securities issued in respect of the relevant Director's Annual Retainer) that can be granted to Directors (other than Directors who are also Officers) under Share Compensation Arrangements of the Corporation, which could exceed such number of securities in respect of which the underlying Shares have a Fair Market Value on the date of grant of such securities of Cdn$100,000; or
|
(vi) |
a change to the amendment provisions of this Share Option Plan;
|
(c) |
the addition or amendment of terms relating to the provision of financial assistance to Optionees or resulting in Optionees receiving any securities of the Corporation, including pursuant to a cashless exercise feature;
|
(d) |
any amendment in respect of the persons eligible to participate in this Share Option Plan, provided that, without shareholder approval, such amendment does not permit non-employee directors to re-gain participation rights under this Share Option Plan at the discretion of the Board if their eligibility to participate had previously been removed or increase limits previously imposed on non-employee director participation;
|
(e) |
such amendments as are necessary for the purpose of complying with any changes in any relevant law, rule, regulation, regulatory requirement or requirement of any applicable stock exchange or regulatory authority; or
|
(f) |
amendments to correct or rectify any ambiguity, defective provision, error or omission in this Share Option Plan or in any agreement to purchase Options.
|
(b) |
if to an Optionee or to his or her personal representative to the Optionee or personal representative in person or at the Optionee's last known address shown in the records of the Corporation or any Subsidiary.
|
(a)
|
This Share Option Plan, Option Commitments and the grant and exercise of Options hereunder and the Corporation's obligation to deliver Shares upon exercise of Options shall be subject to all Applicable Laws. The Corporation shall not be obligated by any provision of this Share Option Plan or any Option Commitment or the grant of any Option hereunder to issue Shares in violation of any Applicable Law. In this connection the Corporation shall, to the extent necessary, take all reasonable steps to comply with all Applicable Laws.
|
(b)
|
Subject to Section 5.6, the Corporation may, at any time and from time to time, postpone or adjust the exercise of any Option or the issuance of any Shares or adjust the Subscription Price of any Option pursuant to this Share Option Plan as the Board in its discretion may deem necessary in order to comply with any Applicable Law.
|
(c)
|
If the Shares are listed on a stock exchange, the Corporation will have no obligation to issue any Shares pursuant to this Share Option Plan unless the Shares have been duly listed, upon official notice of issuance, on the stock exchange on which the Shares are listed for trading.
|
(d)
|
None of the Corporation, the Board, the Directors, the Chief Executive Officer or any person acting pursuant to authority delegated by it hereunder shall be liable to an Optionee or any other person for any action taken (whether before or after the grant of any Option) in connection with this Share Option Plan in order to comply with Applicable Law.
|
SECTION 1
PURPOSE, DEFINITIONS AND INTERPRETATION |
||
1.1
|
Purpose
|
1
|
1.2
|
Definitions
|
1
|
1.3
|
Interpretation
|
11
|
SECTION 2
SHARE DISTRIBUTION |
||
2.1
|
Eligibility
|
11
|
2.2
|
Maximum Shares to be Issued
|
11
|
2.3
|
Determination of Issue Price
|
12
|
SECTION 3
PERFORMANCE SHARE UNITS |
||
3.1
|
Awards of Performance Share Units
|
12
|
3.2
|
Awards of Performance Share Units
|
12
|
3.3
|
Restriction Period
|
13
|
3.4
|
Conversion of Performance Share Units
|
14
|
3.5
|
Conversion of Performance Share Units of U.S. Participants
|
15
|
3.6
|
Limitations on Conversion; Forfeiture
|
15
|
3.7
|
Exceptions to Limitations
|
15
|
SECTION 4
DEFERRED SHARE UNITS FOR EXECUTIVE OFFICERS |
||
4.1
|
Determination of Deferred Share Units for Eligible Executives
|
16
|
4.2
|
Annual Election
|
17
|
4.3
|
Termination of Service of Non-U.S. Executives
|
17
|
4.4
|
Termination of Service of U.S. Executives
|
19
|
4.5
|
Eligibility to be in the Total Discretion of the Board
|
19
|
4.6
|
Determination of Deferred Share Units during Blackout
|
19
|
SECTION 5
DEFERRED SHARE UNITS FOR DIRECTORS |
||
5.1
|
Determination of Deferred Share Units for Directors
|
20
|
5.2
|
Annual Election
|
20
|
5.3
|
Termination of Service of Non-U.S. Directors
|
22
|
5.4
|
Termination of Service of U.S. Directors
|
23
|
SECTION 6
COMMON TERMS OF DEFERRED SHARE UNITS FOR EXECUTIVE OFFICERS AND DIRECTORS |
||
6.1
|
Dividend Equivalents
|
24
|
6.2
|
Eligible Executive's or Eligible Director's Account
|
24
|
SECTION 7
PLAN AMENDMENT AND TERMINATION |
||
7.1
|
Plan Amendment
|
24
|
7.2
|
Plan Termination
|
26
|
SECTION 8
GENERAL |
||
8.1
|
Effective Date of this Plan
|
27
|
8.2
|
Satisfaction of Performance Share Units and Deferred Share Units
|
27
|
8.3
|
Administration
|
27
|
8.4
|
Delegation
|
28
|
8.5
|
Regulatory and Shareholder Approval
|
28
|
8.6
|
Limitations on Issue
|
28
|
8.7
|
Specific Limitations on Issue to Directors
|
28
|
8.8
|
Adjustments and Reorganization
|
29
|
8.9
|
Applicable Trading Policies
|
30
|
8.10
|
Compliance with Law
|
30
|
8.11
|
Applicable Withholding Tax
|
31
|
8.12
|
No Right to Service
|
31
|
8.13
|
Nature of Performance Share Units and Deferred Share Units
|
32
|
8.14
|
No Other Benefit
|
32
|
8.15
|
Unfunded Plan
|
32
|
8.16
|
Foreign Participants
|
32
|
8.17
|
U.S. PSU Participants, U.S. Executives, U.S. Directors and Section 409A of the Code
|
33
|
8.18
|
Transferability of Awards
|
34
|
8.19
|
Successors and Assigns
|
34
|
8.20
|
Notice
|
34
|
8.21
|
Severance
|
35
|
8.22
|
Governing Law
|
35
|
8.23
|
Adoption of Plan
|
35
|
1.1
|
Purpose
|
(a)
|
annually recognize contributions made by certain Employees in accordance with the Corporation's bonus plan and allow certain Employees to participate in the long-term success of the Corporation through the granting of Performance Share Units and to satisfy any conversion, settlement or surrender of Performance Share Units; and
|
(b)
|
satisfy Annual Retainers and recognise contributions of certain senior executives that is reflective of the responsibility, commitment and risk accompanying their management role and to allow them to participate in the long-term success of the Corporation through the granting of Deferred Share Units and to satisfy any redemption of Deferred Share Units.
|
1.2
|
Definitions
|
(a)
|
a take-over bid (as defined in Securities Legislation) is made for Shares or Convertible Securities which, if successful would result (assuming the conversion, exchange or exercise of the Convertible Securities, if any, that are the subject of the take-over bid) in any person or persons acting jointly or in concert
|
|
(as determined under Securities Legislation) or persons associated or affiliated with such person or persons (as determined under Securities Legislation) beneficially, directly or indirectly, owning shares that would, notwithstanding any agreement to the contrary, entitle the holders thereof for the first time to cast more than 50% of the votes attaching to all shares in the capital of the Corporation that may be cast to elect Directors;
|
(b)
|
the acquisition or continuing ownership by any person or persons acting jointly or in concert (as determined under Securities Legislation), directly or indirectly, of Shares or of Convertible Securities, which, when added to all other securities of the Corporation at the time held by such person or persons, persons associated with such person or persons, or persons affiliated with such person or persons (as determined under Securities Legislation) (collectively, the "Acquirors"), and assuming the conversion, exchange or exercise of Convertible Securities beneficially owned by the Acquirors, results in the Acquirors beneficially owning shares that would, notwithstanding any agreement to the contrary, entitle the holders thereof for the first time to cast more than 50% of the votes attaching to all shares in the capital of the Corporation that may be cast to elect Directors;
|
(c)
|
the sale, lease, exchange or other disposition of all or substantially all of the Corporation's assets, other than to a Subsidiary;
|
(d)
|
an amalgamation, merger, arrangement or other business combination (a "Business Combination") involving the Corporation that results in the security holders of the parties to the Business Combination other than Ballard owning, directly or indirectly, shares of the continuing entity that entitle the holders thereof to cast more than 50% of the votes attaching to all shares in the capital of the continuing entity that may be cast to elect directors; or
|
(e)
|
any other transaction, a consequence of which is to Privatize the Corporation, receives the approval of, or is accepted by, the security holders of the Corporation (or all classes of security holders of the Corporation whose approval or acceptance is required) or, if their approval or acceptance is not required in the circumstances, is approved or accepted by the Corporation;
|
(a)
|
the aggregate of the annual retainer (including any additional amounts payable for serving as lead Director or committee Chair or member of a committee) and the Attendance Fee, payable to that Director, or
|
(b)
|
the annual retainer (which may include any additional amounts payable for serving as lead Director or committee Chair or member of a committee), payable to that Director,
|
(a)
|
a part-time employee of the Corporation or a Subsidiary; and
|
(b)
|
an individual that is seconded to the Corporation or a Subsidiary who is approved for participation in this Plan by the Board and in respect of whom, to the extent necessary, the Corporation has qualified by way of an exemption, or has obtained an order from any securities commission or other regulatory authority having jurisdiction over the granting of Registered Share Units,
|
(a)
|
an insider of the Corporation as defined in Securities Legislation, other than a person who is excluded (in the relevant context) as such by virtue of a policy, staff notice,
|
|
guidance, rule or requirement of the TSX (including the provisions of the TSX Company Manual); and
|
(b)
|
an associate or affiliate (as determined under Securities Legislation) of a person who is an Insider by virtue of (a) above;
|
(a)
|
the date, not to exceed three years less one day from the date upon which the Performance Share Units were awarded, specified in the written agreement under which the Performance Share Units were awarded as being the date upon which the Restriction Period expires; and
|
(b)
|
the date upon which an Accelerated Vesting Event occurs,
|
(a)
|
with respect to an Officer or Employee, the termination of his or her employment; or
|
(b)
|
with respect to a Director the resignation of his or her office,
|
(a)
|
in respect of an Eligible Executive, that that Eligible Executive has, except as a result of death, ceased to be an employee of the Corporation on the Termination Date; and
|
(b)
|
in respect of an Eligible Director, that that Eligible Director has, except as a result of death, ceased to be a director of the Corporation,
|
(a)
|
with respect to a PSU Participant whose employment is voluntarily terminated by such individual, the last day on which the individual reported for work to the Corporation or a Subsidiary; and
|
(b)
|
with respect to a PSU Participant whose employment has been terminated by the Corporation or a Subsidiary:
|
(i)
|
other than for cause, either:
|
(A)
|
the day specified by the Corporation or such Subsidiary in writing to the individual as being the last day on which the individual is to report for work for the Corporation or a Subsidiary; or
|
(B)
|
if such individual is given pay in lieu of advance notice of a pending effective date of termination, the day on which such notice of termination is given in writing by the Corporation or such Subsidiary to the individual; and
|
(ii)
|
for cause, the day on which the notice of termination was given;
|
(a)
|
is unable to engage in a substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months; or
|
(b)
|
is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering Employees;
|
1.3
|
Interpretation
|
(a)
|
references to awards made or granted under this Plan or a Section of it shall be deemed to include equivalent awards made or granted under any Predecessor Plan which are outstanding as of the Effective Date;
|
(b)
|
a reference to a statute includes all regulations made thereunder, all amendments to the statute or regulations in force from time to time, and any statute or regulation that supplements or supersedes such statute or regulations;
|
(c)
|
references to Sections are to sections of this Plan;
|
(d)
|
unless the context requires otherwise, words importing the singular include the plural and vice versa; and
|
(e)
|
all headings and titles are included for convenience only and they are to be ignored in the interpretation of this Plan.
|
2.1
|
Eligibility
|
2.2
|
Maximum Shares to be Issued
|
2.3
|
Determination of Issue Price
|
3.1
|
Awards of Performance Share Units
|
3.2
|
Awards of Performance Share Units
|
3.3
|
Restriction Period
|
(a)
|
the date which is three years less one day after the day upon which such Performance Share Units were awarded; and
|
(b)
|
the date upon which an Accelerated Vesting Event occurs.
|
3.4
|
Conversion of Performance Share Units
|
(a)
|
the Performance Share Units have not expired prior to the last day of the Restriction Period; and
|
(b)
|
any performance criteria or other conditions specified in the award of such Performance Share Units has been satisfied (or has been deemed to be satisfied).
|
3.5
|
Conversion of Performance Share Units of U.S. Participants
|
3.6
|
Limitations on Conversion; Forfeiture
|
3.7
|
Exceptions to Limitations
|
(a)
|
if a PSU Participant ceases to work for the Corporation or a Subsidiary by reason that he or she is Totally Disabled or by reason of his or her death, the Restriction Period in respect of every award of Performance Share Units to such PSU Participant will end, any performance criteria or other conditions specified in any award of Performance Share Units will, unless otherwise specified in the award, be deemed to have been satisfied and the PSU Participant or the PSU Participant's estate or legal representative, as the case may be, will be entitled to receive any Shares issuable upon conversion of all outstanding Performance Share Units awarded to the PSU Participant.
|
(b)
|
if a PSU Participant ceases to work for the Corporation or a Subsidiary, in circumstances where such PSU Participant is considered to have Retired, the PSU Participant will be entitled to receive any Shares issuable upon conversion of all outstanding Performance Share Units awarded to the PSU Participant, subject to the terms and conditions of this Plan as if the PSU Participant had continued to work for the Corporation or the Subsidiary, as applicable. For greater certainty, where a PSU Participant is considered to have Retired, every award of Performance Share Units to the PSU Participant will continue to be subject to the Restriction Period pursuant to Section 3.3 of the Plan or any Performance Share Unit Agreement, as applicable, and any performance criteria or other conditions as specified in the award of such Performance Share Units.
|
(c)
|
If a PSU Participant who is deemed to have Retired dies, the PSU Participant's estate shall be entitled to receive any shares issuable upon the conversion of all outstanding Performance Share Units awarded to the PSU Participant in accordance with Section 3.7(a) as if the PSU Participant had ceased to work for the Corporation or a Subsidiary due to their death.
|
4.1
|
Determination of Deferred Share Units for Eligible Executives
|
4.2
|
Annual Election
|
(a)
|
Each Eligible Executive who is not a U.S. Executive may elect, with respect to any particular Performance Period, to receive a percentage (from zero to one hundred percent) of his or her Incentive Bonus in the form of Deferred Share Units. The election must be completed, signed and delivered to the Corporation before the earlier of: (a) the last business day of the Performance Period or (b) the date occurring during the Performance Period that the Corporation has determined or paid the Incentive Bonus for that Performance Period. If no election is made in respect of a particular Performance Period, such Eligible Executive will receive the Incentive Bonus in cash.
|
(b)
|
Each Eligible Executive who is a U.S. Executive may elect, with respect to any particular Performance Period, to receive a percentage (from zero to one hundred percent) of his or her Incentive Bonus in the form of Deferred Share Units. The
|
|
election must be completed, signed and delivered to the Corporation with respect to any Incentive Bonus, on or before the day prior to the first day of the fiscal year which constitutes the applicable Performance Period. If no election is made in respect of a particular Performance Period, such Eligible Executive will receive the Incentive Bonus in cash.
|
(c)
|
If an Eligible Executive who is not a U.S. Executive has Terminated Service during the Performance Period, the Eligible Executive will not be entitled to elect to receive any portion of the Incentive Bonus for such Performance Period in the form of Deferred Share Units.
|
4.3
|
Termination of Service of Non-U.S. Executives
|
(a)
|
An Eligible Executive who is not a U.S. Executive who has Terminated Service may receive Shares in respect of the Deferred Share Units credited to the Eligible Executive's account (determined in accordance with Section 4.3(b) by filing with the Secretary of the Corporation a notice of redemption in the form prescribed from time to time by the Corporation on or before December 15 of the first calendar year commencing after the date of the Eligible Executive's Terminated Service. If the Eligible Executive fails to file such notice on or before that December 15, the Eligible Executive will be deemed to have filed with the Secretary of the Corporation a notice of redemption on that December 15.
|
(b)
|
Upon receipt or deemed receipt of a notice of redemption, the Corporation shall issue one Share for each whole Deferred Share Unit to the Eligible Executive (net of any Applicable Withholding Tax). Such payment shall be made by the Corporation as soon as reasonably possible following the Filing Date. In no event will payment be made later than December 31 of the first calendar year commencing after the Eligible Executive has Terminated Service.
|
(c)
|
In the event of the death of an Eligible Executive who is not a U.S. Executive, the Corporation will, within two months of the Eligible Executive's death, issue one Share for each whole Deferred Share Unit credited to the deceased Eligible Executive's account (net of any Applicable Withholding Tax) to or for the benefit of the legal representative of the Eligible Executive.
|
(d)
|
If an Eligible Executive who is not a U.S. Executive who dies after the Eligible Executive has Terminated Service but before filing a notice of redemption with the Corporate Secretary of the Corporation, Section 4.3(c) will apply provided that, in no event will payment be made later than December 31 of the first calendar year commencing after the Eligible Executive has Terminated Service.
|
(e)
|
Fractional Shares shall not be issued, and where an Eligible Executive, or a deceased Eligible Executive's legal representative, would be entitled to receive a fractional Share in respect of any fractional Deferred Share Unit, the Corporation shall pay to such Eligible Executive or legal representative, in lieu of such fractional Share, cash equal to the Fair Market Value of such fractional Share, calculated as at the day before such payment is made.
|
4.4
|
Termination of Service of U.S. Executives
|
(a)
|
In the event that an Eligible Executive who is a U.S. Executive has Terminated Service, the Corporation will issue one Share for each whole Deferred Share Unit credited to the Eligible Executive's account (net of any Applicable Withholding Tax) to the Eligible Executive. Subject to Section 8.9, such payment shall be made by the Corporation on the first business day of the month following the date that is six months after the date of the Eligible Executive's Termination Date.
|
(b)
|
In the event of the death of an Eligible Executive who is a U.S. Executive, the Corporation will issue one Share for each whole Deferred Share Unit credited to the deceased Eligible Executive's account (net of any Applicable Withholding Tax) to or for the benefit of the legal representative of the Eligible Executive. Subject to Section 8.9, such payment shall be made by the Corporation on the first business day of the month following the date that is six months after the death of the Eligible Executive who is a U.S. Executive.
|
(c)
|
Fractional Shares shall not be issued, and where an Eligible Executive, or a deceased Eligible Executive's legal representative, would be entitled to receive a fractional Share in respect of any fractional Deferred Share Unit, the Corporation shall pay to such Eligible Executive or legal representative, in lieu of such fractional Share, cash equal to
|
|
the Fair Market Value of such fractional Share, calculated as at the day before such payment is made.
|
4.5
|
Eligibility to be in the Total Discretion of the Board
|
4.6
|
Determination of Deferred Share Units during Blackout
|
5.1
|
Determination of Deferred Share Units for Directors
|
(a)
|
each Eligible Director who is not a U.S. Director may elect, with respect to a Remuneration Period, to be paid a percentage (from zero to one hundred percent) of his or her Eligible Remuneration that represents the Annual Retainer, net of any Applicable Withholding Taxes, in Deferred Share Units, with the balance, if any, being paid in cash. The election must be completed, signed and delivered to the Corporation:
|
(i)
|
subject to (ii), for any other Remuneration Period, by April 15 of each year, in which case the election will apply to all amounts of the Annual Retainer payable with respect to services rendered during the entire Remuneration Period, and
|
(ii)
|
for an Eligible Director who is not a U.S. Director and who was not an Eligible Director either on the Effective Date or on April 15 of a particular year, within 30 days of becoming an Eligible Director, in which case the election will only apply to the portion of the Annual Retainer payable with respect to services rendered no earlier than 30 days after the delivery of the election.
|
(b)
|
each Eligible Director who is a U.S. Director may elect, with respect to a Remuneration Period, to be paid a percentage (from zero to one hundred percent) of his or her Eligible Remuneration that represents the Annual Retainer, net of any Applicable Withholding Taxes, in Deferred Share Units, with the balance, if any, being paid in cash. The election must be completed, signed and delivered to the Corporation:
|
(i)
|
subject to (ii), for any Remuneration Period, by December 31 of each year, in which case the election will apply to all amounts of the Annual Retainer payable with respect to services rendered during the following calendar year, notwithstanding the fact that services rendered during the latter portion of the calendar year are rendered in a subsequent fiscal year. When an Eligible Director who is a U.S. Director makes an election relating to Deferred Share Units for a period of performance for which the Corporation has not yet determined the total number of Deferred Share Units that will be payable as compensation to that Eligible Director for the period in question, the Eligible Director's election must specify the percentage of
|
|
compensation that the Eligible Director elects to receive in Deferred Share Units, and the Corporation will apply the percentages set out in the election to the compensation at the time that the Corporation determines the number of Deferred Share Units that will be payable during the performance period for which the election is made; and
|
(ii)
|
for an Eligible Director who is a U.S. Director and who was not an Eligible Director either on the Effective Date or on December 31 of a particular year and who has not previously participated in this Plan or any other plan that is required to be aggregated with this Plan for purposes of section 409A of the Code, within 30 days of becoming an Eligible Director, in which case the election will only apply to the portion of the Annual Retainer payable with respect to services rendered no earlier than 30 days after the delivery of the election.
|
(c)
|
If no election is made in respect of a particular calendar year, the new or existing Eligible Director will receive the Eligible Remuneration in cash.
|
5.3
|
Termination of Service of Non-U.S. Directors
|
(a)
|
An Eligible Director who is not a U.S. Director and who has Terminated Service may receive Shares in respect of the Deferred Share Units credited to the Eligible Director's account (determined in accordance with Section 5.3(b) by filing with the Secretary of the Corporation a notice of redemption in the form prescribed from time to time by the Corporation on or before December 15 of the first calendar year commencing after the date of the Eligible Director's Terminated Service). If the Eligible Director fails to file such notice on or before that December 15, the Eligible Director will be deemed to have filed with the Secretary of the Corporation a notice of redemption on that December 15.
|
(b)
|
Upon receipt or deemed receipt of a notice of redemption, the Corporation shall issue one Share for each whole Deferred Share Unit to the Eligible Director (net of any Applicable Withholding Tax). Such payment shall be made by the Corporation as soon as reasonably possible following the Filing Date. In no event will payment be made later than
|
|
December 31 of the first calendar year commencing after the Eligible Director has Terminated Service.
|
(c)
|
In the event of the death of an Eligible Director who is not a U.S. Director, the Corporation will, within two months of the Eligible Director's death, issue one Share for each whole Deferred Share Unit credited to the deceased Eligible Director's account (net of any Applicable Withholding Tax) to or for the benefit of the legal representative of the Eligible Director.
|
(d)
|
If an Eligible Director who is not a U.S. Director dies after the Eligible Director has Terminated Service but before filing a notice of redemption with the Corporate Secretary of the Corporation, Section 5.3(c) will apply provided that, in no event will payment be made later than December 31 of the first calendar year commencing after the Eligible Director has Terminated Service.
|
(e)
|
Fractional Shares shall not be issued, and where an Eligible Executive, or a deceased Eligible Executive's legal representative, would be entitled to receive a fractional Share in respect of any fractional Deferred Share Unit, the Corporation shall pay to such Eligible Executive or legal representative, in lieu of such fractional Share, cash equal to the Fair Market Value of such fractional Share, calculated as at the day before such payment is made.
|
5.4
|
Termination of Service of U.S. Directors
|
(a)
|
In the event that an Eligible Director who is a U.S. Director has Terminated Service, the Corporation will issue one Share for each whole Deferred Share Unit credited to the Eligible Director's account (net of any Applicable Withholding Tax) to the Eligible Director. Except as otherwise provided herein and subject to Section 8.9, such payment shall be made by the Corporation as soon as reasonably possible (but in all events within ninety days) following the first date on which the Eligible Director has Terminated Service. Notwithstanding the foregoing, if an Eligible Director who is a U.S. Director is, at the commencement of Terminated Service, a Specified Employee, then the payment (delivery of Shares) will be delayed at least six (6) months following such commencement of Terminated Service and will occur on the
|
|
first business day following the expiration of that six (6) month period.
|
(b)
|
In the event of the death of an Eligible Director who is a U.S. Director, the Corporation will issue one Share for each whole Deferred Share Unit credited to the deceased Eligible Director's account (net of any Applicable Withholding Tax) to or for the benefit of the legal representative of the Eligible Director. Subject to Section 8.9, such payment shall be made by the Corporation as soon as reasonably possible (but in all cases within ninety days) following the date of death of the Eligible Director.
|
(c)
|
Fractional Shares shall not be issued, and where an Eligible Executive, or a deceased Eligible Executive's legal representative, would be entitled to receive a fractional Share in respect of any fractional Deferred Share Unit, the Corporation shall pay to such Eligible Executive or legal representative, in lieu of such fractional Share, cash equal to the Fair Market Value of such fractional Share, calculated as at the day before such payment is made.
|
6.1
|
Dividend Equivalents
|
6.2
|
Eligible Executive's or Eligible Director's Account
|
7.1
|
Plan Amendment
|
(a)
|
amendments to the definitions within this Plan and other amendments of a clerical nature;
|
(b)
|
amendments to any provisions relating to the issuance of Shares, granting or conversion of Performance Share Units or the granting or redemption of Deferred Share Units under this Plan, including but not limited to provisions relating to the term, termination, and number of Performance Share Units or Deferred Share Units to be awarded, provided that, without shareholder approval, such amendment does not entail:
|
(i)
|
a change in the number or percentage of Shares reserved for issuance under this Plan;
|
(ii)
|
a reduction of the issue price of the Shares issued under this Plan or the cancellation and reissue of Shares;
|
(iii)
|
a reduction to the Fair Market Value used to calculate the number of Deferred Share Units to be awarded to an Eligible Executive or Eligible Director;
|
(iv)
|
an extension of the time for redemption of a Deferred Share Unit by an Eligible Executive or Eligible Director;
|
(v)
|
an extension beyond the original Restriction Period of a Performance Share Unit held by an PSU Participant;
|
(vi)
|
an increase to the maximum number of Shares that may be:
|
(A)
|
issued to Insiders within a one-year period; or
|
(B)
|
issuable to Insiders at any time,
|
(vii)
|
an increase in the maximum number of securities (other than securities issued in respect of the relevant Director's Annual Retainer) that can be granted to Directors (other than Directors who are also Officers) under Share Compensation Arrangements of the Corporation, which could exceed such number of securities in respect of which the underlying Shares have a Fair Market Value on the date of grant of such securities of Cdn$100,000;
|
(viii)
|
permitting Performance Share Units or Deferred Share Units to be transferable or assignable other than for normal course estate settlement purposes; or
|
(ix)
|
a change to the amendment provisions of this Plan;
|
(c)
|
any amendment in respect of the persons eligible to participate in this Plan (or any part of this Plan), provided that, without shareholder approval, such amendment does not permit non-employee Directors to:
|
(i)
|
participate as holders of Performance Share Units under Section 3 at the discretion of the Board;
|
(ii)
|
re-gain participation rights under any Section of this Plan at the discretion of the Board if their eligibility (as a class) to participate had previously been removed; or
|
(iii)
|
increase limits previously imposed on non-employee Director participation;
|
(d)
|
such amendments as are necessary for the purpose of complying with any changes in any relevant law, rule, regulation, regulatory requirement or requirement of any applicable stock exchange or regulatory authority; or
|
(e)
|
amendments to correct or rectify any ambiguity, defective provision, error or omission in this Plan or in any option
|
|
agreement, Performance Share Unit Agreement or notice to redeem Deferred Share Units.
|
7.2
|
Plan Termination
|
8.1
|
Effective Date of this Plan
|
8.2
|
Satisfaction of Performance Share Units and Deferred Share Units
|
(a)
|
Shares issuable under Section 2 will be used to satisfy the conversion of Performance Share Units into, and the redemption of Deferred Share Units for, Shares.
|
(b)
|
Notwithstanding any other provision of this Plan, the Board may authorise from time to time the purchase of Shares on the open market (by either the Corporation or a trustee) and the use of those Shares to satisfy the conversion of Performance Share Units into Shares, provided that the terms of any such authorisation shall stipulate that the relevant Shares shall be delivered to the relevant PSU Participant no later than December 31 of the third calendar year after the year in which the relevant Performance Share Units were awarded.
|
8.3
|
Administration
|
8.4
|
Delegation
|
8.5
|
Regulatory and Shareholder Approval
|
8.6
|
Limitations on Issue
|
(a)
|
issued to Insiders within any one year under this Plan, when aggregated with the number of Shares issued to Insiders within that one year period under all other Share Compensation Arrangements of the Corporation may not exceed 10% of the issued and outstanding Shares; and
|
(b)
|
issuable to Insiders, at any time, under this Plan, when aggregated with the number of Shares that may be issuable to Insiders under all other Share Compensation Arrangements of the Corporation may not exceed 10% of the issued and outstanding Shares.
|
8.7
|
Specific Limitations on Issue to Directors
|
8.8
|
Adjustments and Reorganization
|
(a)
|
The number of Shares which may be issued under, and subject to the terms and conditions of, this Plan in respect of Deferred Share Units will be subject to adjustment in the events and in the manner following:
|
(i)
|
if the Shares are subdivided or consolidated after the Effective Date, or the Corporation pays to holders of Shares of record as of a date after the Effective Date a dividend payable in Shares, the number of Shares which may be issued under this Plan will be adjusted to the number of such shares that may be issued through the combined effect of such exercise and such subdivision, consolidation or stock dividend if the time of the subdivision or consolidation or the record date of such stock dividend had been immediately after the issue of such shares; and
|
(ii)
|
if there is any capital reorganization, reclassification or other change or event affecting the Shares to which paragraph (i) above does not apply, the Board will determine (in its sole discretion) whether in the circumstances it is just and equitable that there be some alteration in the number and kind of shares issuable under this Plan and will make such amendments to the Plan as the Board may deem appropriate in the circumstances.
|
(b)
|
In the event of any stock dividend, stock split, combination or exchange of shares, merger, consolidation, spin-off or other distribution (other than normal cash dividends) of the Corporation's assets to shareholders, or any other change in
|
|
the capital of the Corporation affecting Shares, such proportionate adjustment, if any, as the Board in its sole discretion may deem appropriate to reflect such change, will be made with respect to the number of outstanding Performance Share Units and/or Deferred Share Units governed by this Plan.
|
(c)
|
The existence of any Performance Share Units or Deferred Share Units shall not affect in any way the right or power of the Corporation or its shareholders to make or authorize any adjustment, recapitalization, reorganization or other change in the Corporation's capital structure or its business, or to create or issue any bonds, debentures, shares or other securities of the Corporation or to amend or modify the rights and conditions attaching thereto or to effect the dissolution or liquidation of the Corporation, or any amalgamation, combination, merger or consolidation involving the Corporation or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar nature or otherwise.
|
8.9
|
Applicable Trading Policies
|
8.10
|
Compliance with Law
|
(a)
|
This Plan, PSU Agreements and the grant of Performance Share Units and Deferred Share Units and the Corporation's obligation to deliver Shares hereunder shall be subject to all Applicable Laws. The Corporation shall not be obligated by any provision of this Plan or any PSU Agreement or the grant of any Performance Share Unit or Deferred Share Unit hereunder to issue Shares in violation of any Applicable Law. In this connection the Corporation shall, to the extent necessary, take all reasonable steps to obtain such approvals, registrations and qualifications as may be necessary for issuances of such Shares in compliance with Applicable Law.
|
(b)
|
Subject to Section 7.1, the Corporation may, at any time and from time to time, postpone or adjust the issuance of any Shares or adjust the number of Performance Share Units or Deferred Share Units issued to any PSU Participant, Eligible Executive or Eligible Director pursuant to this Plan as the Board in its discretion may deem necessary in order to comply with any Applicable Law.
|
(c)
|
If the Shares are listed on a stock exchange, the Corporation will have no obligation to issue any Shares pursuant to this Plan unless the Shares have been duly listed, upon official notice of issuance, on the stock exchange on which the Shares are listed for trading.
|
(d)
|
None of the Corporation, the Board, the Directors, the Chief Executive Officer or any person acting pursuant to authority delegated by the Board or the Committee hereunder shall be liable to any PSU Participant, Eligible Executive, Eligible Director or any other person for any action taken (whether before or after the grant of any Performance Share Unit or Deferred Share Unit) in connection with this Plan in order to comply with Applicable Law.
|
8.11
|
Applicable Withholding Tax
|
8.12
|
No Right to Service
|
(a)
|
Neither participation in this Plan nor any action under this Plan will, or will be construed to, give any Employee or Director a right to be retained as an employee, executive officer, director or otherwise in the service of the Corporation
|
|
or a Subsidiary, or interfere in any way with the right of the Corporation or a Subsidiary to terminate the Employee's employment or a Director's service at any time.
|
(b)
|
Participation in this Plan by an Employee or Director will be voluntary.
|
(c)
|
The payment of any sum of money in lieu of notice of the termination of employment will not be considered as extending the period of employment for the purposes of this Plan.
|
8.13
|
Nature of Performance Share Units and Deferred Share Units
|
8.14
|
No Other Benefit
|
8.15
|
Unfunded Plan
|
8.16
|
Foreign Participants
|
8.17
|
U.S. PSU Participants, U.S. Executives, U.S. Directors and Section 409A of the Code
|
(a)
|
The Corporation intends that Section 4 and Section 5 comply with the requirements of section 409A of the Code insofar as this Plan pays benefits in respect of Deferred Share Units that (i) are subject to taxation under the Code, and (ii) are subject to section 409A of the Code, and has drafted and will construe and administer this Plan accordingly.
|
(b)
|
The Corporation intends that most PSUs awarded to U.S. PSU Participants will be exempt from Section 409A of the Code pursuant to U.S. Treasury Regulation 1.409A-1(b)(4) ("Short Term Deferral"). Depending on the terms of the applicable PSU Agreement, in some cases the PSUs of Retirement-Eligible U.S. PSU Participants, or other U.S. PSU Participants, will be subject to Section 409A and as to such PSUs, the Plan has been drafted to comply with Section 409A of the Code and will be construed and administered accordingly. In such a case, if a U.S. PSU Participant becomes entitled to payment of benefits in respect of Performance Share Units under Section 3 (i.e. delivery of Shares) as a result of the PSU Participant's Separation from Service with the Corporation or a Subsidiary, and if such PSU Participant is a Specified Employee at the time of such PSU Participant's Separation from Service, then the payment (delivery of Shares) will be delayed at least six (6) months following such PSU Participant's Separation from Service with the Corporation or a Subsidiary and will occur on the first business day following the expiration of that six (6) month period.
|
(c)
|
Neither the Corporation nor any of its officers, directors, agents or affiliates shall be obligated, directly or indirectly, to any U.S. PSU Participant, U.S. Executive, U.S. Director or any other person for any taxes, penalties, interest or like amounts that may be imposed on the U.S. PSU Participant, U.S. Executive, U.S. Director or other person on account of any amounts under this Plan or on account of any failure to comply with any Code section.
|
8.18
|
Transferability of Awards
|
(a)
|
Rights respecting Performance Share Units will not be transferable or assignable other than by will or the laws of descent and distribution.
|
(b)
|
Subject to (a) above, no Eligible Executive or Eligible Director may assign any Deferred Share Unit or any other right, benefit or interest in this Plan in respect of Deferred Share Units without the written consent of the Corporation, and any purported assignment without such consent will be void and need not be recognized by the Corporation, except that in the event of the death of the Eligible Executive or Eligible Director, the legal representatives of the Eligible Executive or Eligible Director will be entitled to receive the amount of any payment otherwise payable to the Eligible Executive or Eligible Director hereunder in respect of Deferred Share Units in accordance with the provisions hereof.
|
8.19
|
Successors and Assigns
|
8.20
|
Notice
|
(a)
|
if to the Corporation to its Corporate Secretary at its head office; and
|
(b)
|
if to a PSU Participant, Eligible Officer or Eligible Director or to his or her personal representative to the PSU Participant, Eligible Officer, Eligible Director or personal representative in person or at the PSU Participant's, Eligible Officer's or Eligible Director's last known address shown in the records of the Corporation or any Subsidiary.
|
8.22
|
Governing Law
|
8.23
|
Adoption of Plan
|
(a) |
on ____________________ (the "Award Date");
|
(b) |
______________________________ (the "PSU Participant");
|
(c) |
was granted ________ Performance Share Units;
|
(d) |
having a Restriction Period [three years less one day], expiring on _________________________;
|
(e) |
[any further conditions as established by the Committee to be inserted.]
|
|
BALLARD POWER SYSTEMS INC.
|
|
|
|
|
__________________________
PSU Participant
|
By: ______________________
Authorized Signatory
|
Re: |
Ballard Power Systems Inc. – Registration Statement on Form S-8
|
(a)
|
all individuals had the requisite legal capacity;
|
(b)
|
all signatures are genuine;
|
(c)
|
all documents submitted to us as originals are complete and authentic and all photostatic, certified, telecopied, notarial or other copies conform to the originals;
|
(d)
|
all facts set forth in the official public records, certificates and documents supplied by public officials or otherwise conveyed to us by public officials are complete, true and accurate as of the date hereof;
|
(e)
|
all facts set forth in the certificates supplied by the officers of the Company including, without limitation, the Officer's Certificate are complete, true and accurate as of the date hereof;
|
(f)
|
any awards were validly granted or will be validly granted in accordance with the terms of the Option Plan or the Share Distribution Plan, as applicable; and
|
(g)
|
prior to the issuance and delivery of the Plan Shares the Company will receive the full consideration in respect of the Plan Shares.
|
1.
|
The issuance of the Outstanding Plan Shares has been duly and properly authorized, and the Outstanding Plan Shares will, upon the due and proper exercise of options in accordance with the terms of the Option Plan, be validly issued as fully paid and non-assessable common shares of the Company.
|
2.
|
The available Plan Shares will, upon:
|
(a)
|
the grant of one or more options under the Plans, the allotment for issuance of Available Plan Shares under such options, and the fixing of a price for such Available Plan Shares in accordance with the applicable Plans, by the board of directors of the Company (the "Board") and receipt by the Company of payment in full for each such Available Plan Share to be issued and the issuance of such Available Plan Shares in accordance with the terms of the applicable Plans; and/or
|
(b)
|
the grant of one or more deferred share units or performance share units under the Plans, the allotment for issuance of Available Plan Shares pursuant to such deferred share units or performance share units, by the Board and the issuance of such Available Plan Shares in accordance with the terms of the applicable Plans,
|