<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 30, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
INTRAWEST CORPORATION
(Exact name of registrant as specified in its charter)
British Columbia, Canada N/A
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Suite 800, 200 Burrard Street
Vancouver, British Columbia, Canada V6C 3L6
(604) 669-9777
(Address, including ZIP code, and telephone number, including area code,
of registrant's principal executive offices)
INTRAWEST CORPORATION
STOCK OPTION PLAN
(Full title of plan)
PTSGE Corp. Copies to:
Preston Gates & Ellis LLP Gary J. Kocher
5000 Columbia Center Preston Gates & Ellis LLP
701 Fifth Avenue 5000 Columbia Center
Seattle, Washington 98104-7078 701 Fifth Avenue
(206) 623-7580 Seattle, Washington 98104-7078
(Name, address and telephone number, (206) 623-7580
including area code, of agent
for service in the United States)
<TABLE>
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============================================================================================================
Proposed Proposed Maximum
Title of securities Amount to be Maximum offering aggregate Amount of
to be registered registered (1) price per unit (2) offering price (2) registration fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Common Shares,
without par value 161,500 shares $14.00 $2,261,000 $629.00
============================================================================================================
</TABLE>
(1) Together with an indeterminate number of additional shares which may
be necessary to adjust the number of shares reserved for issuance
pursuant to such plan as the result of any future stock split, stock
dividend or similar adjustment of the outstanding Common Shares of
the Registrant. In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to
the Stock Option Plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee
and, pursuant to Rule 457(c) of the Act, based upon the average high
and low prices of the Common Shares of the Registrant on the New York
Stock Exchange on October 23, 1998.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Intrawest Corporation (the "Company")
are incorporated herein by reference:
(a) The Company's Annual Report on Form 40-F for the fiscal year ended
June 30, 1998 (the "Annual Report").
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end
of the fiscal year covered by the Annual Report.
(c) The description of the Company's Common shares without par value
(the "Common Shares") that is contained in the Company's Registration Statement
on Form 8-A filed pursuant to Section 12 of the Exchange Act including any
amendment or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold are deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the respective dates of
filing of such documents (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 128 of the Company Act (British Columbia) (the "BCCA") provides:
(1) A company, with the approval of the court, may indemnify a
person who is a director or former director of the company or is
a director or former director of a corporation of which the
company is or was a shareholder, and the person's heirs and
personal representatives, against all costs, charges and
expenses, including an amount paid to settle an action or
satisfy a judgment, actually and reasonably incurred by the
person, including an amount paid to settle an action or satisfy
a judgment in a civil, criminal or administrative action or
proceeding to which the person is made a party because of being
or having been a director, including an action brought by the
company or corporation, if
(a) the person acted honestly and in good faith with a view
to the best interests of the corporation of which the
person is or was a director, and
(b) in the case of a criminal or administrative action or
proceeding, the person had reasonable grounds for
believing that the person's conduct was lawful.
(2) The court, on the application of a company, director or a former
director, may make an order approving an indemnity under this
section, and the court may make any further order it considers
appropriate.
(3) On an application under subsection (2), the court may order
notice to be given to any interested person.
(4) A company may purchase and maintain insurance for the benefit of
a person referred to in this section against any liability
incurred by the person as a director or officer.
(5) Subsections (1) to (3) apply to officers or former officers of a
company or of a corporation of which the company is or was a
shareholder.
The Articles of the Company provide that:
23.1 (1) Subject to the provisions of the Company Act, the
Company shall indemnify a director or former director of
the Company and a director or a former director of a
corporation of which the Company is or was a
shareholder, and the heirs and personal representatives
of any such director or former director, against all
costs, charges and expenses, including an
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<PAGE> 4
amount paid to settle an action or satisfy a judgment,
actually and reasonably incurred by him, including an
amount paid to settle an action or satisfy a judgment in
a civil, criminal or administrative action or proceeding
to which the person is made a party by reason of being
or having been a director of the Company or a director
of such corporation, including any action brought by the
Company or corporation if (a) the person acted honestly
and in good faith with a view to the best interests of
the Company or the corporation of which the person is or
was a director, and (b) in the case of a criminal or
administrative action or proceeding, the person had
reasonable grounds for believing that his conduct was
lawful.
(2) The determination of any action, suit or proceeding by
judgment, order, settlement, conviction or otherwise
shall not, of itself, create a presumption that the
person did not so act or did not have reasonable
grounds, as aforesaid.
(3) Each director of the Company upon being elected or
appointed shall be deemed to have contracted with the
Company on the terms of the foregoing indemnity.
23.2 The Company shall indemnify an officer or former officer of the
Company and an officer or former officer of a corporation of
which the Company is or was a shareholder, and the heirs and
personal representatives of any such officer or former officer,
to the full extent permitted by the Company Act.
23.3 (1) The indemnification provided by this Part shall not be
deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any other
Part, or any valid and lawful agreement, vote of members
or disinterested directors or otherwise, or under the
provisions of any statute now or hereafter existing,
both as to action in the official capacity of such
person and as to action in another capacity while
holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or
agent and shall enure to the benefit of the heirs and
personal representatives of such person.
(2) The indemnification provided by this Part shall not be
exclusive of any powers, rights, agreements or
undertakings which may be legally permissible or
authorized by or under any applicable law.
(3) Notwithstanding any other provisions set forth in this
Part, the indemnification authorized by this Part shall
be applicable only to the extent that any such
indemnification shall not duplicate indemnity or
reimbursement which that person has received or shall
receive otherwise than under this Part.
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23.4 The directors are authorized from time to time to cause the
Company to give indemnities to any director, officer, employee,
agent or other person who has undertaken or is about to
undertake any liability on behalf of the Company or any
corporation of which it is a shareholder.
A policy of directors' and officers' liability insurance is maintained
by the Company which insures directors and officers for losses as a result of
claims against the directors and officers of the Company in their capacity as
directors and officers and also reimburses the Company for payments made
pursuant to the indemnity provisions under the Articles and the BCCA.
Insofar as indemnification for liabilities under the Securities Act of
1933 (the "Securities Act") may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy in the United States as expressed in the Securities Act
and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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EXHIBIT DESCRIPTION
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<S> <C> <C>
4.1 -- Intrawest Corporation Stock Option Plan
5.1 -- Opinion of McCarthy Tetrault
23.1 -- Consent of McCarthy Tetrault (see Exhibit 5.1)
23.2 -- Consent of KPMG LLP Independent Chartered Accountants
</TABLE>
-4-
<PAGE> 6
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement: (i) to
include any prospectus required by section 10(a)(3) of the Securities Act of
1933; (ii) 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;
(iii) 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.
(2) That, for 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.
(3) 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.
(b) 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
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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.
(c) 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly authorized and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Vancouver, Province of
British Columbia, Country of Canada, on this 28th day of October, 1998.
INTRAWEST CORPORATION
By: /s/ JOE S. HOUSSIAN
---------------------------------------
Name: Joe S. Houssian
Title: Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on this 28th day of October, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/s/ JOE S. HOUSSIAN Chairman, President and Chief Executive Officer
- ----------------------------------- (Principal Executive Officer)
Joe S. Houssian
/s/ DANIEL O. JARVIS Executive Vice President and Chief Financial Officer
- ----------------------------------- and Director (Principal Financial Officer)
Daniel O. Jarvis
/s/ DAVID C. BLAIKLOCK Corporate Controller
- ----------------------------------- (Principal Accounting Officer)
David C. Blaiklock
/s/ R. THOMAS M. ALLAN Director
- -----------------------------------
R. Thomas M. Allan
/s/ DAVID A. KING Director
- -----------------------------------
David A. King
/s/ GORDON H. MACDOUGALL Director
- -----------------------------------
Gordon H. MacDougall
/s/ PAUL M. MANHEIM Director
- -----------------------------------
Paul M. Manheim
Director
- -----------------------------------
Paul A. Novelly
/s/ BERNARD A. ROY Director
- -----------------------------------
Bernard A. Roy
Director
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Khaled C. Sifri
Director
- -----------------------------------
Hugh R. Smythe
/s/ NICHOLAS C. H. VILLIERS Director
- -----------------------------------
Nicholas C. H. Villiers
Director
- -----------------------------------
Charles E. Young
</TABLE>
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INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
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EXHIBIT DESCRIPTION PAGE
<S> <C> <C> <C>
4.1 -- Intrawest Corporation Stock Option Plan
5.1 -- Opinion of McCarthy Tetrault
23.1 -- Consent of McCarthy Tetrault (see Exhibit 5.1)
23.2 -- Consent of KPMG LLP Independent Chartered Accountants
</TABLE>
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<PAGE> 1
EXHIBIT 4.1
STOCK OPTION PLAN
INTRAWEST CORPORATION
(Amended and Restated to Reflect Amendments Approved
to and including March 3, 1998)
SECTION 1 - PURPOSE
The purpose of this Stock Option Plan (the "Plan") is to promote the interests
of Intrawest Corporation (the "Company") by:
(a) furnishing certain senior officers and employees of the Company
and its subsidiaries and certain senior officers and employees of
limited partnerships of which the general partner is the Company
or a subsidiary of the Company (the "Eligible Persons") with
greater incentive to further develop and promote the business and
financial success of the Company; and
(b) furthering the identity of interests of Eligible Persons with
those of the shareholders of the Company generally through share
ownership in the Company.
The Company believes that these purposes may best be effected (i) upon the Share
Capital Reorganization (as defined in the Information Circular of the Company
dated January 30, 1997) coming into effect, by granting to each Eligible Person
who disposes of rights under an option agreement to acquire common shares
without par value in the capital of the Company as constituted before the Share
Capital Reorganization (such rights and such shares referred to herein as the
"Exchanged Option" and the "Old Shares", respectively), in sole consideration
therefor, rights to acquire common shares without par value ("Common Shares")
and Non Resort Preferred Shares without par value ("NRP Shares") in the capital
of the Company, in each case as constituted immediately after the Share Capital
Reorganization (such rights and such shares referred to herein as the "New
Option" and collectively as the "New Shares", respectively), on the terms set
forth herein and (ii) after the Share Capital Reorganization comes into effect,
by granting to Eligible Persons options ("Future Options") to acquire Common
Shares.
SECTION 2 - EFFECTIVE DATE OF PLAN
The effective date (the "Effective Date") of this Plan is February 28, 1990, the
date of its adoption by the board of directors (the "Board of Directors") of the
Company.
SECTION 3 - ADMINISTRATION OF PLAN
This Plan will be administered by a committee (the "Committee") of the Board of
Directors consisting of two or more directors, as constituted from time to time,
charged with, among other things, the administration of this Plan. The Board of
Directors will take all steps which in its opinion are required to ensure that
the Committee has the necessary authority to fulfil its functions under this
<PAGE> 2
Plan. The members of the Committee will be ineligible to receive options granted
under this Plan while serving on the Committee.
SECTION 4 - REGULATIONS
The Committee may from time to time establish such regulations, make such
determinations and take such steps in connection with this Plan which in its
opinion are necessary or desirable for the administration of this Plan.
SECTION 5 - COMPLIANCE WITH LAWS
The Committee may from time to time take such steps and require such
documentation from Eligible Persons which in its opinion are necessary or
desirable to ensure compliance with all applicable laws, including (i) the
applicable securities laws and regulations of Canada (including the Provinces)
and of the United States of America (including the States and the District of
Columbia) and its territories and possessions and other areas subject to its
jurisdiction (the "United States"), and any political subdivision of either, and
the bylaws, rules and regulations of any stock exchange or other organized
market (the "Stock Exchanges") on which the Common Shares or the NRP Shares may
from time to time be listed or traded and (ii) the withholding provisions of the
Income Tax Act (Canada), as amended, and of the United States Internal Revenue
Code of 1986, as amended. The Committee may also from time to time take such
steps which in its opinion are necessary or desirable to restrict the
transferability of any Common Shares or NRP Shares acquired on the exercise of
any New Option or Common Shares acquired on the exercise of any Future Option in
order to ensure such compliance, including the endorsement of a legend on any
certificate representing such Common Shares or NRP Shares to the effect that
such Common Shares or NRP Shares may not be offered, sold or delivered except in
compliance with the applicable securities laws and regulations of the United
States.
SECTION 6 - LIMITATIONS
Subject to Section 11, the maximum aggregate number of Common Shares which may
be issued under this Plan from and after March 3, 1998 is 3,400,000 and the
maximum number of NRP Shares which may be issued under this Plan is 2,070,600.
The Board of Directors will reserve for allotment out of the authorized but
unissued Common Shares and NRP Shares sufficient Common Shares and NRP Shares to
provide for issuance of all Common Shares and NRP Shares which are issuable
under this Plan.
The maximum number of Common Shares that may be reserved for issuance to
Insiders pursuant to options granted under this Plan and any other Share
Compensation Arrangement, or issued to Insiders under this Plan and any other
Share Compensation Arrangement within a one-year period, is 10% of the number of
Common Shares outstanding. The maximum number of Common Shares that may be
issued to any one Insider under this Plan and any other Share Compensation
Arrangement within a one-year period is 5% of the number of Common Shares
outstanding.
For the purposes of the limitations set forth in this Section:
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<PAGE> 3
(a) any entitlement to acquire Common Shares granted pursuant to this
Plan or any other Share Compensation Arrangement prior to the
grantee becoming an Insider is to be excluded; and
(b) the number of Common Shares outstanding is to be determined on a
non-diluted basis and on the basis of the number of Common Shares
outstanding at the time of the reservation or issuance, as the
case may be, excluding Common Shares issued under this Plan or
under any other Share Compensation Arrangement over the preceding
one-year period.
SECTION 7 - ELIGIBILITY
The Committee may from time to time while this Plan is in force name as an
Eligible Person any senior officer or employee of the Company or any of its
subsidiaries or any senior officer or employee of any limited partnership of
which the general partner is the Company or a subsidiary of the Company whose
participation in this Plan would, in the opinion of the Committee, accomplish
the purposes of this Plan.
SECTION 8 - GRANT OF NEW OPTIONS
Subject to the following rules, the Committee will grant to each Eligible Person
who holds one or more Exchanged Options a New Option (in this Section 8, called
an "Option") in respect of each Exchanged Option held by such Eligible Person in
consideration for such Eligible Person relinquishing such Eligible Person's
rights under such Exchanged Option:
(a) Date Option Granted. Each Option will become effective upon the
Share Capital Reorganization coming into effect and will be
deemed to have been granted at such time.
(b) Cancellation of Exchanged Option. The Exchanged Option disposed
of in consideration for any Option will be cancelled and will
have no further force or effect when such Option comes into
effect.
(c) Number of Common Shares and NRP Shares. Each Option will entitle
the Eligible Person to whom such Option is granted (in this
Section 8, called the "Optionee") to purchase one Common Share
and one NRP Share for each Old Share that could have been
purchased under the Exchanged Option disposed of in consideration
for such Option.
(d) Exercise Price. The aggregate exercise price for one Common Share
and one NRP Share under the Option granted to an Eligible Person
in consideration for the disposition of an Exchanged Option will
be the amount equal to the greater of:
(i) the exercise price per one Old Share under such Exchanged
Option; and
(ii) the amount which will result in:
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<PAGE> 4
A. the amount, if any, by which the total value of the
New Shares that may be purchased under such Option
immediately after the disposition of such Exchanged
Option exceeds the total amount payable by the
Optionee to acquire such New Shares under such
Option;
being equal to:
B. the amount, if any, by which the total value of the
Old Shares that could have been purchased under
such Exchanged Option immediately before the
disposition of such Exchanged Options exceeds the
amount that would have been payable by the Optionee
to acquire such Old Shares under such Exchanged
Option;
and such amount will be allocated between such Common Share and
such NRP Share pro rata according to the respective weighted
average trading prices per share of the Common Shares and the NRP
Shares on The Toronto Stock Exchange for the 10 consecutive
trading days commencing the date of grant of such Option. The
Board of Directors will determine such aggregate exercise price
and the allocation thereof, and the Company will deliver to the
Optionee an addendum to the Option Agreement (as hereinafter
defined) in respect of such Option which set out the results of
such determinations and is executed on behalf of the Company by
any member of the Committee or by the President, the Executive
Vice President and Chief Financial Officer or the Corporate
Secretary of the Company, as promptly as reasonably practical
after the Share Capital Reorganization comes into effect.
(e) Option Agreement. Each Option will be granted under an agreement
(in this Section 8, called an "Option Agreement") which
incorporates such terms and conditions as the Committee in its
discretion deems appropriate and consistent with the provisions
of this Plan. Each Option Agreement will be executed by the
Optionee and on behalf of the Company by any member of the
Committee or by the President, the Executive Vice President and
Chief Financial Officer or the Corporate Secretary of the
Company.
(f) Expiry of Options. Each Option will expire in accordance with the
terms and provisions of the option agreement evidencing the
Exchanged Option disposed of in consideration for such Option,
mutatis mutandis, and, subject to the earlier expiry of such
Option in accordance with such terms and provisions, the rights
to purchase NRP Shares under each Option will terminate:
(i) if such Option has not been exercised prior to July 1,
1998 as to at least that number of NRP Shares which equals
25% of the NRP Shares initially subject thereto, on July
1, 1998 as to that number of NRP Shares which equals 25%
of the NRP Shares initially subject
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<PAGE> 5
thereto less the number of NRP Shares, if any, in respect
of which such Option has been exercised prior to such
date;
(ii) if such Option has not been exercised prior to July 1,
1999 as to at least that number of NRP Shares which equals
50% of the NRP Shares initially subject thereto less the
number of NRP Shares, if any, in respect of which such
Option has terminated pursuant to clause (i) above, on
July 1, 1999 as to that number of NRP Shares which equals
50% of the NRP Shares initially subject thereto less the
aggregate number of NRP Shares in respect of which such
Option has been exercised prior to such date or has
terminated pursuant to clause (i) above;
(iii) if such Option has not been exercised prior to July 1,
2000 as to at least that number of NRP Shares which equals
75% of the NRP Shares initially subject thereto less the
number of NRP Shares, if any, in respect of which such
Option has terminated pursuant to clause (i) or (ii)
above, on July 1, 2000 as to that number of NRP Shares
which equals 75% of the NRP Shares initially subject
thereto less the aggregate number of NRP Shares in respect
of which such Option has been exercised prior to such date
or has terminated pursuant to clause (i) or (ii) above;
and
(iv) on October 1, 2000 as to any and all NRP Shares, if any,
then subject thereto.
(g) Non-Transferability of Options. Each Option Agreement will
provide that the Option granted thereunder is not assignable or
transferable and may be exercised only by the Optionee or, in the
event of the death of the Optionee or the appointment of a
committee of the estate of the Optionee on the grounds that the
Optionee is incapable, by reason of physical or mental infirmity,
of managing the Optionee's affairs, the Optionee's legal
representative or such committee, as the case may be (in this
Section 8, called the "Legal Representative").
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<PAGE> 6
(h) Exercise of Options. Each Option will be exercisable separately
in respect of the Common Shares and NRP Shares from time to time
subject thereto. Subject to the provisions of paragraphs (i) and
(j) below, each Option Agreement will restrict the Optionee
holding the Option granted thereunder from exercising such Option
to the extent, if any, during any period after such Option is
granted that the Optionee would have been restricted from
exercising the Exchanged Option disposed of by the Optionee in
consideration for such Option, mutatis mutandis, provided that,
if applicable, at any time after March 31, 1998, March 31, 1999,
March 31, 2000 and June 30, 2000 the Optionee will have the right
to purchase any NRP Shares subject thereto in respect of which
such Option will terminate on July 1, 1998, July 1, 1999, July 1,
2000 and October 1, 2000, respectively, if such Option is not
exercised in respect of such NRP Shares prior to such date. The
Committee may impose such other limitations or conditions on the
exercise of any Option as the Committee in its discretion deems
appropriate. Each Option Agreement will provide that the Option
granted thereunder may be exercised only by signed notice
accompanied by full payment for the Common Shares or NRP Shares
being purchased.
(i) Early Vesting. The Committee may, in its discretion, incorporate
into any Option Agreement terms which will, notwithstanding the
time or times specified in such Option Agreement for the exercise
of the Option granted thereunder, allow the Optionee to purchase
all or any of the Common Shares or NRP Shares then subject to
such Option if the Committee, in its discretion, determines to
permit the Optionee to exercise such Option in respect of such
Common Shares or NRP Shares.
(j) Formal Bids and Extraordinary Distributions. Each Option
Agreement will provide that in the event of (i) a formal bid (as
defined in the Securities Act (British Columbia)) being made for
any Common Shares or (ii) a distribution referred to in paragraph
1(3) of Schedule A attached to this Plan being proposed which
would result in the fraction calculated pursuant to clause (f)
thereof being a negative number, the Optionee may,
notwithstanding the time or times specified in such Option
Agreement for the exercise of the Option granted thereunder,
purchase all or any of the Common Shares then subject to such
Option for the purpose of tendering such Common Shares under such
formal bid or participating in such distribution, provided that
the Committee may take such steps and require such documentation
from the Optionee which in its opinion are necessary to ensure
that such Common Shares are purchased for such purpose.
(k) Going Private Transactions. Each Option Agreement will provide
that in the event that an amalgamation, arrangement,
consolidation or other transaction is proposed to be carried out
as a consequence of which the interest of some or all of the
holders of Common Shares may be terminated, whether pursuant to a
statutory right of acquisition or otherwise, without the consent
of such holders and without the substitution therefor of an
interest of equivalent value in a security of the Company, a
successor to the Company or an affiliate of the Company that
carries the right to participate in earnings to an unlimited
degree or that by its terms is convertible into or exchangeable
for or carries the right to purchase such a security, subject to
the
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<PAGE> 7
completion of such amalgamation, arrangement, consolidation or
other transaction and the approval of the amount to be paid to
the Optionee by all stock exchanges and other organized markets
on which the Common Shares may then be listed or traded from
which such approval is required, the Company may terminate all of
the Optionee's rights to purchase Common Shares under the Option
granted under such Option Agreement by giving at least 10 days
prior written notice of such termination to the Optionee and
paying to the Optionee at the time of completion of such
amalgamation, arrangement, consolidation or other transaction an
amount equal to the fair value of such rights as determined by an
investment dealer of recognized national standing in Canada who
has not otherwise been retained by the Company or any other
person in connection with such amalgamation, arrangement,
consolidation or other transaction. For such purpose the Optionee
will be deemed to be entitled to exercise the Optionee's rights
as to the purchase of all of the Common Shares then subject to
such Option notwithstanding the provisions of paragraph (h) above
and the fair value of such rights will be determined as the
amount obtained by multiplying the amount, if any, by which the
fair value of the consideration per Common Share received by the
holders whose interest is to be terminated exceeds the Common
Share Exercise Price under such Option by the number of Common
Shares then subject to such Option and, absent manifest error,
the determination of such investment dealer will be conclusive
and binding on the Optionee and the Company.
(l) Representations and Covenants of Optionees. Each Option Agreement
will contain representations and covenants of the Optionee that:
(i) the Optionee has not been induced to enter into such
Option Agreement by the expectation of employment or
continued employment;
(ii) the Optionee is aware that the grant of the Option and the
issuance by the Company of Common Shares and NRP Shares
thereunder are exempt from registration and have not been
registered or otherwise qualified under any applicable
securities laws; and
(iii) if the Optionee or the Legal Representative exercises the
Option, the Optionee or the Legal Representative, as the
case may be, will prior to and upon any sale or
disposition of any Common Shares and NRP Shares purchased
pursuant to the exercise of the Option, comply with all
applicable securities laws and all applicable rules and
regulations of all regulatory authorities to which the
Company is subject, including the Stock Exchanges, and
will not offer, sell or deliver any of such Common Shares
and NRP Shares, directly or indirectly, in the United
States or to any citizen or resident of, or any
corporation, partnership or other entity created or
organized in or under the laws of, the United States, or
any estate or trust the income of which is subject to
United States federal income taxation regardless of its
source, except in compliance with the securities laws of
the United States.
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<PAGE> 8
(m) Provisions Relating to Share Issuances. Each Option Agreement
will contain such provisions as in the opinion of the Committee
are required to ensure that no Common Shares or NRP Shares are
issued on the exercise of an Option unless the Committee is
satisfied that the issuance of such Common Shares and NRP Shares
will be exempt from all registration or qualification
requirements of applicable securities laws and will be permitted
under the applicable rules and regulations of all regulatory
authorities to which the Company is subject, including the Stock
Exchanges.
SECTION 9 - GRANT OF FUTURE OPTIONS
Subject to the following rules, the Committee may from time to time grant to any
Eligible Person one or more Future Options (in this Section 9, called an
"Option") as the Committee deems appropriate:
(a) Date Option Granted. The date on which an Option will be deemed
to have been granted under this Plan will be the date on which
the Committee authorizes the grant of such Option.
(b) Number of Common Shares. The number of Common Shares that may be
purchased under any Option will be determined by the Committee,
provided that immediately after giving effect to the grant of any
Option to any Eligible Employee the aggregate number of Common
Shares reserved for issuance to such Eligible Employee pursuant
to all Options granted to such Eligible Employee and all other
stock options granted by the Company to such Eligible Employee
may not exceed 5% of the number of Common Shares that are then
outstanding.
(c) Exercise Price. The exercise price (the "Future Option Exercise
Price") per share under any Option will be determined by the
Committee, provided that such price may not be less than the
closing price per share for the Common Shares on The Toronto
Stock Exchange on the trading day immediately preceding the date
of grant of such Option (or, if no trade of Common Shares
occurred on The Toronto Stock Exchange on such date, the simple
average of the high and low board lot trading prices per share
for the Common Shares on The Toronto Stock Exchange on the five
trading days immediately preceding such date on which a trade of
a board lot of Common Shares occurred).
(d) Option Agreements. Each Option will be granted under an agreement
(in this Section 9, called an "Option Agreement") which
incorporates such terms and conditions as the Committee in its
discretion deems appropriate and consistent with the provisions
of this Plan. Each Option Agreement will be executed by the
Eligible Person to whom the Option is granted (the "Optionee")
and on behalf of the Company by any member of the Committee or by
the President, the Executive Vice President and Chief Financial
Officer or the Corporate Secretary of the Company.
(e) Expiry of Options. Each Option will expire on the earlier of:
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<PAGE> 9
(i) the date determined by the Committee and specified in the
Option Agreement pursuant to which such Option is granted,
provided that such date may not be later than the earlier
of (A) the date which is the tenth anniversary of the date
on which such Option is granted and (B) the latest date
permitted under the applicable rules and regulations of
all regulatory authorities to which the Company is
subject, including the Stock Exchanges; and
(ii) the date which is the 90th day after the date on which the
Optionee ceases to be a senior officer or employee of the
Company or a subsidiary of the Company or a senior officer
or employee of a limited partnership of which the general
partner is the Company or a subsidiary of the Company;
or such earlier date as may be provided for in the Option
Agreement pursuant to which the Option is granted.
(f) Non-Transferability of Options. Each Option Agreement will
provide that the Option granted thereunder is not assignable or
transferable and may be exercised only by the Optionee or, in the
event of the death of the Optionee or the appointment of a
committee of the estate of the Optionee on the grounds that the
Optionee is incapable, by reason of physical or mental infirmity,
of managing the Optionee's affairs, the Optionee's legal
representative or such committee, as the case may be (in this
Section 9, called the "Legal Representative").
(g) Exercise of Options. Subject to the provisions of paragraphs (h)
and (i) below, each Option Agreement may (but need not), at the
discretion of the Committee, provide that the Option granted
thereunder may not be exercised except in accordance with such
limitations based upon the passage of time after the date on
which such Option is granted, the satisfaction of specified
performance criteria relating generally to the Company or
particularly to the Optionee or the satisfaction or fulfilment of
any other conditions (including any combination of the
foregoing), and subject to such provisos, as the Committee may in
its discretion determine to be appropriate. Each Option Agreement
will provide that the Option granted thereunder may be exercised
only by signed notice accompanied by full payment for the Common
Shares being purchased.
(h) Early Vesting. Without limiting the generality of section 9(g),
the Committee may in its discretion incorporate into any Option
Agreement terms which will, notwithstanding the limitations
specified in such Option Agreement for the right of the Optionee
to exercise the Option granted thereunder, allow the Optionee to
purchase all or any of the Common Shares then subject to such
Option if the Committee in its discretion determines to permit
the Optionee to exercise such Option in respect of such Common
Shares.
(i) Formal Bids and Extraordinary Distributions. Each Option
Agreement will provide that in the event of (i) a formal bid (as
defined in the Securities Act (British Columbia)) being made for
any Common Shares or (ii) a distribution referred to in
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<PAGE> 10
paragraph 1(3) of Schedule A attached to this Plan being proposed
which would result in the fraction calculated pursuant to clause
(f) thereof being a negative number, the Optionee may,
notwithstanding the time or times specified in such Option
Agreement for the exercise of the Option granted thereunder,
purchase all or any of the Common Shares then subject to such
Option for the purpose of tendering such Common Shares under such
formal bid or participating in such distribution, provided that
the Committee may take such steps and require such documentation
from the Optionee which in its opinion are necessary to ensure
that such Common Shares are purchased for such purpose.
(j) Going Private Transactions. Each Option Agreement will provide
that in the event that an amalgamation, arrangement,
consolidation or other transaction is proposed to be carried out
as a consequence of which the interest of some or all of the
holders of Common Shares may be terminated, whether pursuant to a
statutory right of acquisition or otherwise, without the consent
of such holders and without the substitution therefor of an
interest of equivalent value in a security of the Company, a
successor to the Company or an affiliate of the Company that
carries the right to participate in earnings to an unlimited
degree or that by its terms is convertible into or exchangeable
for or carries the right to purchase such a security, subject to
the completion of such amalgamation, arrangement, consolidation
or other transaction and the approval of the amount to be paid to
the Optionee by all stock exchanges and other organized markets
on which the Common Shares may then be listed or traded from
which such approval is required, the Company may terminate the
Option granted under such Option Agreement by giving at least 10
days prior written notice of such termination to the Optionee and
paying to the Optionee at the time of completion of such
amalgamation, arrangement, consolidation or other transaction an
amount equal to the fair value of such Option as determined by an
investment dealer of recognized national standing in Canada who
has not otherwise been retained by the Company or any other
person in connection with such amalgamation, arrangement,
consolidation or other transaction. For such purpose the Optionee
will be deemed to be entitled to exercise the Optionee's rights
as to the purchase of all of the Common Shares then subject to
such Option notwithstanding the provisions of paragraph (g) above
and the fair value of such Option will be determined as the
amount obtained by multiplying the amount, if any, by which the
fair value of the consideration per Common Share received by the
holders whose interest is to be terminated exceeds the Future
Option Exercise Price under such Option by the number of Common
Shares then subject to such Option and, absent manifest error,
the determination of such investment dealer will be conclusive
and binding on the Optionee and the Company.
(k) Representations and Covenants of Optionees. Each Option Agreement
will contain representations and covenants of the Optionee that:
(i) the Optionee has not been induced to enter into such
Option Agreement by the expectation of employment or
continued employment;
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<PAGE> 11
(ii) the Optionee is aware that the grant of the Option and the
issuance by the Company of Common Shares thereunder are
exempt from registration and have not been registered or
otherwise qualified under any applicable securities laws;
and
(iii) if the Optionee or the Legal Representative exercises the
Option, the Optionee or the Legal Representative, as the
case may be, will prior to and upon any sale or
disposition of any Common Shares purchased pursuant to the
exercise of the Option, comply with all applicable
securities laws and all applicable rules and regulations
of all regulatory authorities to which the Company is
subject, including the Stock Exchanges, and will not
offer, sell or deliver any of such Common Shares, directly
or indirectly, in the United States or to any citizen or
resident of, or any corporation, partnership or other
entity created or organized in or under the laws of, the
United States, or any estate or trust the income of which
is subject to United States federal income taxation
regardless of its source, except in compliance with the
securities laws of the United States.
(l) Provisions Relating to Share Issuances. Each Option Agreement
will contain such provisions as in the opinion of the Committee
are required to ensure that no Common Shares are issued on the
exercise of an Option unless the Committee is satisfied that the
issuance of such Common Shares will be exempt from all
registration or qualification requirements of applicable
securities laws and will be permitted under the applicable rules
and regulations of all regulatory authorities to which the
Company is subject, including the Stock Exchanges.
SECTION 10 - SUSPENSION, AMENDMENT OR TERMINATION OF PLAN
This Plan will terminate on the 10th anniversary of the Effective Date or on
such earlier date as the Committee may determine (without prejudice to New
Options or Future Options granted prior to the termination of this Plan). The
Committee will have the right at any time to suspend, amend or terminate this
Plan in any manner including, without limitation, to reflect any requirements of
any regulatory authorities to which the Company is subject, including the Stock
Exchanges, and on behalf of the Company agree to any amendment to any option
agreement under which a New Option or Future Option is outstanding provided that
the Committee in its discretion deems such amendment consistent with the terms
of this Plan, but the Committee will not have the right to:
(a) affect in a manner that is adverse or prejudicial to, or that
impairs, the benefits and rights of any Eligible Person under any
New Option or Future Option previously granted under this Plan
except for the purpose of complying with applicable securities
laws or the bylaws, rules and regulations of the Stock Exchanges;
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<PAGE> 12
(b) extend the term of any New Option beyond a period of ten years
from the date on which the Exchanged Option disposed of in
consideration for such New Option was granted or the term of any
Future Option beyond a period of ten years; or
(c) grant any Future Option if this Plan is suspended or has been
terminated.
The full powers of the Committee as provided for in this Plan will survive the
termination of this Plan until all New Options and Future Options have been
exercised in full or have otherwise expired.
The Company will seek approval of the amendments to this Plan approved by the
Committee on March 3, 1998 (with any subsequent amendments thereto as may be
approved by the Committee) by all applicable regulatory authorities (including
the Exchanges) and, if required by the Exchanges, the shareholders of the
Company, on or before December 31, 1998. If any such approvals are required but
are not obtained by such date, such amendments and any Option Agreement in
respect of any Future Option entered into on the basis thereof will terminate on
December 31, 1998 and have no further effect thereafter.
SECTION 11 - ADJUSTMENTS
(a) If, but only if, an event described in Schedule A attached to
this Plan occurs, each option agreement (in this Section 11,
called an "Option Agreement") under which a New Option or Future
Option (in this Section 11, both New Options and Future Options
are called "Options") is outstanding at such time will be amended
upon the occurrence of such event so that the rights of the
Eligible Person holding such Option, if any, to purchase Common
Shares pursuant to such Option Agreement, including the number of
Common Shares that may be purchased on exercise of such Option
and the Common Share Exercise Price or the Future Option Exercise
Price, as the case may be, at which such Common Shares may be
purchased thereunder, will be adjusted in accordance with the
provisions set forth in Schedule A attached to this Plan from and
after, but not before, the occurrence of such event. Successive
adjustments will be made in the case of the occurrence of more
than one such event as provided for therein, but, in the case of
each such event, only from and after the occurrence of such
event. Until the occurrence of such event, the rights of the
optionee pursuant to each Option Agreement under which an Option
is outstanding, including the number of Common Shares that may be
purchased on the exercise of the Option granted under such Option
Agreement and the Common Share Exercise Price or the Future
Option Exercise Price, as the case may be, at which such Common
Shares may be purchased thereunder, will remain unamended as set
out in such Option Agreement.
(b) If and whenever at any time prior to the expiry or termination of
all rights to purchase NRP Shares under any New Option the
Company takes any action affecting or relating to the NRP Shares
which in the opinion of the Committee would prejudicially affect
the rights of the Eligible Person holding such New Option, the
number of NRP Shares that may be purchased by such Eligible
Person upon the exercise of such New Option and the NRP Share
Exercise Price under such New
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<PAGE> 13
Option will be adjusted by the Committee in such manner, if any,
and at such time as the Committee may in its sole discretion
determine to be equitable in the circumstances to such Eligible
Person. Failure of the Committee to take any action so as to
provide for any such adjustment on or before the effective date
of any such action by the Company affecting or relating to the
NRP Shares will be conclusive evidence that the Committee has
determined that it is equitable to make no such adjustment in the
circumstances.
SECTION 12 - INTERPRETATION
Any question arising as to the interpretation of this Plan will be determined by
the Committee and, absent manifest error, such determination will be conclusive
and binding on the Company and all Eligible Persons holding New Options or
Future Options.
In this Plan, unless there is something in the subject matter or context
inconsistent therewith:
(a) "employee stock purchase plan" means a plan designed by the
Company to facilitate the purchase of shares of the Company by
employees, through payroll deduction, loans, guarantees or
otherwise, but does not include a stock option plan or a plan
which does not at any time entail an issuance of securities;
(b) "Insider" means:
(i) an insider of the Company (as defined in the
Securities Act (British Columbia)), other than a
person who falls within that definition solely by
virtue of being a director or senior officer of a
subsidiary; and
(ii) an associate (as defined in the Securities Act
(British Columbia)) of any person who is an insider
by virtue of (i) above;
(c) "reserved for issuance" refers to shares which may be issued in
the future upon the exercise of stock options which have been
granted (shares are considered "reserved for issuance" commencing
when the options are granted, regardless of when they can be
exercised);
(d) "service provider" for the Company means:
(i) an employee or Insider of the Company or of any of
its subsidiaries; and
(ii) any other person engaged to provide ongoing
management or consulting services for the Company
or for any entity controlled by the Company;
(e) "Share Compensation Arrangement" means any stock option, stock
option plan, employee stock purchase plan or any other
compensation or incentive mechanism
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<PAGE> 14
involving the issuance or potential issuance of Common Shares to
one or more service providers, including a share purchase from
treasury which is financially assisted by the Company by way of
loan, guarantee or otherwise;
(f) "stock option" means an option to purchase shares from treasury
granted to a service provider as a compensation or incentive
mechanism; and
(g) "subsidiary" has the meaning ascribed to that term in the
Securities Act (British Columbia).
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<PAGE> 15
Schedule A
Attached to and forming part of
the Stock Option Plan of
Intrawest Corporation
Unless otherwise defined in this Schedule A, the terms and
expressions used herein have the same meaning as the corresponding terms and
expressions used in the Plan.
1. Adjustment
(1) If and whenever at any time prior to the expiry or termination of
all rights to purchase Common Shares under any New Option or Future Option (in
this Schedule A, each is called an "Option"), as the case may be, the Company:
(a) issues any Common Shares to all or substantially all of the
holders of Common Shares by way of a stock dividend or other
distribution (other than the issue of Common Shares to holders of
Common Shares as dividends by way of stock dividend in lieu of a
cash Dividend Paid in the Ordinary Course or pursuant to any
dividend reinvestment plan in force from time to time);
(b) subdivides or redivides the outstanding Common Shares into a
greater number of Common Shares; or
(c) combines, reduces or consolidates the outstanding Common Shares
into a lesser number of Common Shares;
then, in each such event, the Common Share Exercise Price or the Future Option
Exercise Price (in this Schedule A, each, if subject to adjustment hereunder, is
called the "Exercise Price") of such Option will, on the record date for such
event, be adjusted to a price which is equal to the product of:
(d) the Exercise Price of such Option in effect immediately prior to
such date; and
(e) the fraction of which:
(i) the numerator is equal to the total number of Common
Shares that are outstanding on such date before giving
effect to such event; and
(ii) the denominator is equal to the total number of Common
Shares that are outstanding on such date after giving
effect to such event.
Any such issue of Common Shares by way of a stock dividend or
other distribution will be deemed to have been made on the record date for such
stock dividend or other distribution
<PAGE> 16
for the purpose of calculating the number of outstanding Common Shares under
paragraphs 1(2) and (3).
(2) If and whenever at any time prior to the expiry or termination of
any Option the Company fixes a record date for the issuance of rights, options
or warrants to all or substantially all of the holders of Common Shares
entitling the holders thereof, within a period expiring not more than 45 days
after the date of issue thereof, to subscribe for or purchase Common Shares (or
securities convertible into or exchangeable for Common Shares) at a price per
share (or having a conversion or exercise price per share) of less than 95% of
the Current Market Price of the Common Shares on the earlier of such record date
and the date on which the Company announces its intention to make such issuance,
then, in each such case, the Exercise Price of such Option will be adjusted
immediately after such record date to a price which is equal to the product of:
(a) the Exercise Price of such Option in effect on such record date;
and
(b) the fraction of which:
(i) the numerator is equal to the aggregate of:
(A) the total number of Common Shares that are
outstanding on such record date; and
(B) the number determined by dividing the aggregate
price of the total number of additional Common
Shares so offered for subscription or purchase (or
the aggregate conversion or exchange price of the
convertible or exchangeable securities so offered)
by the Current Market Price of the Common Shares on
the earlier of such record date and the date on
which the Company announces its intention to make
such issuance; and
(ii) the denominator is equal to the aggregate of:
(A) the total number of Common Shares that are
outstanding on such record date; and
(B) the total number of additional Common Shares so
offered for subscription or purchase (or into or
for which the convertible or exchangeable
securities so offered are convertible or
exchangeable).
Such adjustment will be made successively whenever such a record
date is fixed, provided that if two or more such record dates or record dates
referred to in paragraph 1(3) are fixed within a period of 25 trading days, such
adjustment will be made successively as if each of such record dates occurred on
the earliest of such record dates. To the extent that any such rights, options
or warrants are not so issued or any such rights, options or warrants are not
exercised prior to the expiration thereof, the Exercise Price will then be
readjusted to the Exercise Price which would then be in
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<PAGE> 17
effect if such record date had not been fixed or to the Exercise Price
which would then be in effect based upon the number of Common Shares (or
securities convertible into or exchangeable for Common Shares) actually issued
upon the exercise of such rights, options or warrants, as the case may be.
(3) If and whenever at any time prior to the expiry or termination of
any Option the Company fixes a record date for the making of a distribution to
all or substantially all of the holders of Common Shares of:
(a) shares of any class other than Common Shares whether of the
Company or any other corporation (other than shares distributed
to holders of Common Shares as Dividends Paid in the Ordinary
Course as stock dividends);
(b) rights, options or warrants (other than rights, options or
warrants exercisable by the holders thereof not more than 45 days
after the date of issue thereof);
(c) evidences of indebtedness; and
(d) cash, securities or other property or assets (other than cash
Dividends Paid in the Ordinary Course);
then, in each such case, the Exercise Price of such Option will be adjusted
immediately after such record date to a price which is equal to the product of:
(e) the Exercise Price of such Option in effect on such record date;
and
(f) the fraction of which:
(i) the numerator is equal to the amount by which:
(A) the product of (x) the total number of Common
Shares that are outstanding on such record date and
(y) the Current Market Price of the Common Shares
on the earlier of such record date and the date on
which the Company announces its intention to make
such distribution;
exceeds
(B) the aggregate fair market value (as determined by
the Board of Directors at the time such
distribution is authorized) of such shares rights,
options or warrants or evidences of indebtedness or
cash, securities or other property or assets so
distributed; and
(ii) the denominator is equal to the product determined under
clause (A) above.
Such adjustment will be made successively whenever such a record
date is fixed, provided that if two or more such record dates or record dates
referred to in paragraph 1(2) are fixed
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<PAGE> 18
within a period of 25 trading days, such adjustment will be made successively as
if each of such record dates occurred on the earliest of such record dates. To
the extent that such distribution is not so made or to the extent that any such
rights, options or warrants so distributed are not exercised prior to the
expiration thereof, the Exercise Price of such Option will then be readjusted to
the Exercise Price of such Option which would then be in effect if such record
date had not been fixed or to the Exercise Price of such Option which would then
be in effect based upon such shares or rights, options or warrants or evidences
of indebtedness or cash, securities or other property or assets actually
distributed or based upon the number or amount of securities or the property or
assets actually issued or distributed upon the exercise of such rights, options
or warrants, as the case may be.
(4) In the event that any adjustment of the Exercise Price of any Option
is made pursuant to paragraph 1(1), (2) or (3), including any readjustment, the
number of Common Shares that may be purchased upon the exercise of such Option
will, contemporaneously with such adjustment of such Exercise Price, be adjusted
to a number which is equal to the product of:
(a) the total number of Common Shares so purchaseable immediately
before such adjustment of such Exercise Price; and
(b) the fraction which is the reciprocal of the fraction used in such
adjustment of such Exercise Price.
(5) If and whenever at any time prior to the expiry or termination of
any Option there is:
(a) any reclassification of the Common Shares at any time
outstanding, any change of the Common Shares into other shares or
any other capital reorganization of the Company other than as
described in paragraphs 1(1), (2) and (3);
(b) any consolidation, amalgamation, merger or other form of business
combination of the Company with or into any other corporation
resulting in a reclassification of the outstanding Common Shares,
any change of the Common Shares into other shares or any other
capital reorganization of the Company; or
(c) any sale, lease, exchange or transfer of the undertaking or
assets of the Company as an entirety or substantially as an
entirety to another corporation or entity;
then the Optionee who thereafter exercises such Option will be entitled to
receive, and will accept, for the Exercise Price of such Option then in effect,
in lieu of the number of Common Shares to which he would otherwise have been
entitled, the kind and number or amount of shares or other securities or
property that he would have been entitled to receive as a result of such event
if, on the effective date thereof, he had been the registered holder of the
number of Common Shares which he would have received had he so exercised such
Option immediately before such effective date. If necessary as a result of any
such event, appropriate adjustments will be made in application of the
provisions set forth in this Schedule A with respect to the rights and interests
of Optionees so that the provisions set forth in this Schedule A will thereafter
correspondingly be made applicable, as nearly as may reasonably be, in relation
to any shares or other securities or property thereafter
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<PAGE> 19
deliverable on the exercise of any Option. Any such adjustment will be made by
and set forth in an amendment hereto approved by the Committee and will for all
purposes be conclusively deemed to be an appropriate adjustment.
(6) As a condition precedent to taking any action that would require an
adjustment pursuant to this paragraph 1, the Company will take all action which
may, in the opinion of counsel to the Company, be necessary in order that the
Company, or any successor to the Company or successor to the undertaking and
assets of the Company, will be obligated to and may validly and legally issue as
fully paid and non-assessable all the Common Shares or other shares or
securities or property to which Optionees would be entitled to receive
thereafter on the exercise thereof in accordance with the provisions hereof.
(7) The Company will give notice to each Optionee under each outstanding
Option of its intention to make a distribution referred to in paragraph 1(3)
which results in the fraction calculated pursuant to clause (f) thereof being a
negative number at least 10 days prior to the record date for the making of such
distribution.
2. Adjustment Rules
(1) The following rules and procedures will be applicable to adjustments
made pursuant to paragraph 1, including any readjustment:
(a) the adjustments provided for in paragraph 1 are cumulative, will,
in the case of any adjustment to the Exercise Price of any
Option, be computed to the nearest one-tenth of one cent and,
subject to clause (b) below, will apply (without duplication) to
successive subdivisions, consolidations, distributions, issuances
or other events that require such an adjustment;
(b) no such adjustment in the Exercise Price of any Option will be
made unless the price adjustment would result in an increase or
decrease of at least 1% in such Exercise Price, provided that any
such adjustment which, except for the provisions of this clause
(b), would otherwise have been required to be made, will be
carried forward and taken into account in any subsequent
adjustment;
(c) for the purposes of paragraphs 1(1), (2), and (3) there will be
deemed not to be outstanding:
(i) any Common Share owned by or held for the account of the
Company;
(ii) any Common Share owned by or held for the account of any
subsidiary of the Company that is a wholly-owned
subsidiary; and
(iii) that percentage of the Common Shares owned by or held for
the account of any subsidiary of the Company that is not a
wholly-owned subsidiary, that is equal to the direct and
indirect percentage interest of the Company in the
outstanding shares of such subsidiary that carry a
residual right to participate
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<PAGE> 20
to an unlimited degree in its earnings and in its assets
on liquidation or winding-up;
(d) no such adjustment will be made in respect of an event described
in clause (a) of paragraph 1(1) or paragraph 1(2) or (3) if the
Optionees are entitled to participate in such event, or are
entitled to participate within 45 days in a comparable event, on
the same terms, mutatis mutandis, as if they had exercised their
Options immediately before the record date for or effective date
of such event;
(e) in the absence of a resolution of the Board of Directors fixing a
record date at which holders of Common Shares are determined for
purposes of any event referred to in paragraph 1, the Company
will be deemed to have fixed as the record date therefor the date
on which the event is effected or such other date as may be
required by law; and
(f) no fractional Common Share shall be issued upon the exercise of
any Option and accordingly if as a result of any such adjustment
an Optionee becomes entitled to purchase a fractional Common
Share such Optionee shall have the right to purchase only the
next lowest whole number of Common Shares and no payment or other
adjustment will be made with respect to the fractional Common
Share so disregarded.
(2) In any case in which paragraph 1 requires an adjustment to take
effect on or immediately after the record date for an event referred to therein,
the Company may postpone, until the occurrence and consummation of such event,
issuing to any Optionee who holds an Option exercised after such record date and
before the occurrence and consummation of such event the additional Common
Shares or other securities or property issuable upon such exercise by reason of
the adjustment required by such event, provided, however, that the Company will
deliver to such Optionee an appropriate instrument evidencing such Optionee's
right to receive such additional Common Shares or other securities or property
upon the occurrence and consummation of such event and the right to receive any
dividend or other distribution in respect of such additional Common Shares or
other securities or property declared in favour of the holders of record of
Common Shares or of such other securities or property on or after the date of
exercise of such Option or such later date as such Optionee would, but for the
provisions of this paragraph 2(2), have become the holder of record of such
additional Common Shares or of such other securities or property.
(3) If and whenever at any time prior to the expiry or termination of
any Option the Company takes any action affecting or relating to the Common
Shares, other than any action described in paragraph 1, which in the opinion of
the Committee would prejudicially affect the rights of any Optionee, the number
of Common Shares that may be purchased by such Optionee upon the exercise of his
Option and the Exercise Price of such Option will be adjusted by the Committee
in such manner, if any, and at such time, as the Committee may in its sole
discretion determine to be equitable in the circumstances to such Optionee.
Failure of the Committee to take any action so as to provide for any such
adjustment on or before the effective date of any such action by the Company
affecting or relating to the Common Shares will be conclusive evidence that the
Committee has determined that it is equitable to make no such adjustment in the
circumstances.
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<PAGE> 21
3. Definitions
In this Schedule A, unless there is something in the subject
matter or context inconsistent therewith:
(a) "Current Market Price", on any date, means the average, during
the period of 20 consecutive trading days ending on the fifth
trading day before such date, of the average of the high and low
prices per share at which the Common Shares have traded on The
Toronto Stock Exchange (or, if the Common Shares are not listed
on The Toronto Stock Exchange, then on such stock exchange on
which the Common Shares are listed as may be selected for that
purpose by the Committee or, if the Common Shares are not listed
on any stock exchange, then in the over-the-counter market) as
reported by The Toronto Stock Exchange (or such other stock
exchange or as quoted by the most commonly quoted or carried
source of quotations for Common Shares traded in the
over-the-counter market), provided that if, on any such trading
day, there are no such reported or quoted high and low prices,
the average of the closing bid and asked prices per share for
board lots of the Common Shares reported by The Toronto Stock
Exchange (or such other stock exchange or as quoted by the most
commonly quoted or carried source of quotations for shares traded
in the over-the-counter market) for such trading day will be
utilized in computing such average, and provided further that if
the Common Shares are not listed on any stock exchange or traded
in any over-the-counter market, then the Current Market Price of
the Common Shares will be determined by the Committee.
(b) "Dividend Paid in the Ordinary Course" means any dividend paid by
the Company on the Old Shares or the Common Shares in any fiscal
year of the Company (whether in cash, securities, property or
other assets), provided that the amount of such dividend paid in
cash and the value of such dividend paid otherwise than in cash
(any securities, property or other assets so distributed as a
dividend to be valued at an amount equal to the fair market value
thereof as determined by the Board of Directors at the time such
dividend is declared), plus the aggregate amount or value (as so
determined) of all other dividends previously paid by the Company
on the Old Shares or the Common Shares (or on any other shares in
the capital of the Company ranking with respect to the payment of
dividends on a parity with the Common Shares) in such fiscal
year, does not exceed the greatest of:
(i) the amount or value (as so determined) which results in
the amount or value (as so determined) of dividends per
share paid by the Company on the Old Shares or the
Common Shares (or on any other shares in the capital of
the Company ranking with respect to the payment of
dividends on a parity with the Common Shares) during
such fiscal year not exceeding 200% of the amount or
value (as so determined) per share of all dividends
paid by the Company on the Old Shares or the Common
Shares (or on any other shares in the capital of the
Company ranking with respect to the payment of
dividends on a parity with the Common Shares) during
the fiscal year of the Company ended immediately prior
to the commencement of such fiscal year;
-7-
<PAGE> 22
(ii) the amount or value (as so determined) which results in
the amount or value (as so determined) of dividends per
share of all dividends paid by the Company on the Old
Shares or the Common Shares (or on any other shares in
the capital of the Company ranking with respect to the
payment of dividends on a parity with the Common
Shares) during such fiscal year not exceeding 100% of
the amount or value (as so determined) per share of all
dividends paid by the Company on the Old Shares or the
Common Shares (or on any other shares in the capital of
the Company ranking with respect to the payment of
dividends on a parity with the Common Shares) during
the three successive fiscal years of the Company ended
immediately prior to the commencement of such fiscal
year; and
(iii) 150% of the consolidated net income of the Company
before extraordinary items for (but after dividends
payable on all shares in the capital of the Company
ranking with respect to the payment of dividends prior
to the Common Shares in respect of) the fiscal year of
the Company ended immediately prior to the commencement
of such fiscal year (such consolidated net income,
extraordinary items and dividends to be as shown in the
audited consolidated financial statements of the
Company for such fiscal year or, if there are no
audited consolidated financial statements for such
fiscal year, computed in accordance with generally
accepted accounting principles);
provided that if any fiscal year which is relevant for purposes
of the foregoing provisions of this definition is less than 365
days any amount or value determined in respect of such fiscal
year pursuant to such provisions will be adjusted by multiplying
such amount or value by the number obtained by dividing 365 by
the number of days in such fiscal year;
(c) "subsidiary" has the meaning assigned to that term in the Company
Act (British Columbia); and
(d) "trading day", with respect to any stock exchange or
over-the-counter market, means a day on which shares may be
traded through the facilities of such stock exchange or in such
over-the-counter market.
-8-
<PAGE> 1
EXHIBIT 5.1
[Letterhead of McCarthy Tetrault]
October 28, 1998
Securities and Exchange Commission
450 Fifth Street NW
Washington, DC 20549
Dear Sirs/Mesdames:
Re: Registration Statement on Form S-8 of Intrawest Corporation;
Intrawest Corporation Stock Option Plan
We have acted as Canadian counsel to Intrawest Corporation (the
"Company") in connection with the filing of the above-referenced Registration
Statement (the "Registration Statement") relating to the registration of
2,700,000 Common shares without par value of the Company (the "Shares") issuable
upon the exercise of options granted or to be granted under the Company's Stock
Option Plan (the "Plan"). In connection therewith, we have considered such
questions of law and have examined and relied upon such resolutions, records,
certificates of public officials and officers of the Company and other documents
we deemed necessary or appropriate to enable us to render the opinion express
below.
Based on the foregoing, it is our opinion that the Shares will, upon
the exercise of such options in accordance with the terms of the Plan and the
receipt by the Company of the exercise price under such options for such Shares,
be validly issued and outstanding as fully paid and non-assessable shares.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to our firm included in or made a
part of the Registration Statement.
Yours Truly,
/s/ McCARTHY TETRAULT
<PAGE> 1
EXHIBIT 23.2
[KPMG LETTERHEAD]
The Board of Directors
Intrawest Corporation
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Intrawest Corporation pertaining to the Intrawest Corporation
Stock Option Plan of our report dated September 10, 1998 relating to
the consolidated balance sheet of Intrawest Corporation as at June 30, 1998 and
the consolidated statements of operations, retained earnings, cash flow from
operations, and changes in financial position for the year then ended, which
report appears in the annual report on Form 40-F of Intrawest Corporation for
the fiscal year ended June 30, 1998.
/s/ KPMG LLP
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Independent Chartered Accountants
Vancouver, Canada
October 29, 1998
