<PAGE> 1
As filed with the Securities and Exchange Commission on December 17, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------
CAMPBELL RESOURCES INC.
(Exact name of registrant as specified in its charter)
-----------------
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<S> <C>
CANADA NONE
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
120 ADELAIDE STREET WEST, SUITE 1910 M5H 1T1
TORONTO, ONTARIO, CANADA (Postal Code)
(Address of principal executive offices)
</TABLE>
EMPLOYEE INCENTIVE PLAN
(Full title of the plan)
-----------------
G.E. "KURT" PRALLE
64 SHADYSIDE ROAD
RAMSEY, NEW JERSEY 07466
(Name and address of agent for service)
(201) 236-3926
(Telephone number, including area code, of agent for service)
-----------------
The Commission is requested to send copies of all orders notices and
communications to:
ROBERT E. PEDERSEN, ESQ.
GOULD & WILKIE LLP
ONE CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005-1401
(212) 344-5680
-----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
Amount to be Proposed maximum Proposed maximum
Title of securities to be registered offering price per aggregate offering Amount of
registered unit(1) price(1) registration fee
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, without
nominal or par value 3,500,000(2) US $0.1719 $601,563 $158.81
==============================================================================================================================
</TABLE>
(1) Estimated, in accordance with Rule 457(c) and (h) under the Securities
Act of 1933, solely for the purpose of calculating the registration fee,
based on the average of the high and low prices of the Common Shares of
Registrant on December 13, 1999, as reported on the New York Stock
Exchange Composite Tape.
(2) Pursuant to Rule 416 under the Securities Act of 1933, there are also
registered hereunder an indeterminate amount of such additional Common
Shares as may become issuable under the Employee Incentive Plan through
the operation of applicable anti-dilution provisions.
===============================================================================
<PAGE> 2
EXPLANATORY NOTE
This Registration Statement, on Form S-8, is being filed by Campbell
Resources Inc. (the "Registrant") with the Securities and Exchange Commission
(the "SEC") pursuant to General Instruction E to Form S-8 for the purpose of
registering under the Securities Act of 1933, as amended (the "Securities Act")
an additional 3,500,000 Common Shares, without nominal or par value, of the
Registrant ("Common Shares") for issuance pursuant to the Registrant's Employee
Incentive Plan (the "Plan").
The Registrant has heretofore registered under the Securities Act a total
of 6,700,000 Common Shares for issuance under the Plan by means of the following
currently effective Registration Statements (collectively, the "Prior
Registration Statements") previously filed by the Registrant with the SEC:
- Registration Statement, on Form S-8 (File No. 33-28296), pursuant to
which 5,000,000 Common Shares were registered under the Act for
issuance under the Plan; and
- Registration Statement, on Form S-8 (File No 333-6236), pursuant to
which an additional 1,760,000 Common Shares were registered under the
Act for issuance under the Plan.
The contents of the Prior Registration Statements are hereby incorporated
by reference into this Registration Statement.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant by this reference hereby incorporates into this Registration
Statement the following which have been filed by the Registrant with the SEC:
1. The following reports which have been previously filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (File No.
1-8488):
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998; and
(b) Registrant's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1999, June 30, 1999 and September 30, 1999.
2. The description of the Registrant's Common Shares contained in its
Registration Statement on Form F-10 previously filed pursuant to the Securities
Act (File No. 333-770), including any amendment thereto or report filed for the
purpose of updating such description.
In addition all documents filed by the Registrant with the SEC pursuant to
Sections 13(a), 13(c), 14 and 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 have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part of this Registration
Statement from the date of filing of such documents.
Any statement contained in this Registration Statement or in a document
incorporated or deemed to be incorporated in this reference in this Registration
Statement shall be deemed to be modified or superseded for purpose of this or
any other subsequently filed document which is also incorporated or deemed to be
incorporated by reference in this Registration Statement modifies or supercedes
such statement. Any such statement or modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statements.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the Common Shares being registered hereby
has been passed upon for the Registrant by Lorna D. MacGillivray, Solicitor,
Vice President, Secretary and General Counsel of the Registrant. Ms.
MacGillivray, in her capacity as Vice President, Secretary and General Counsel,
is paid a salary by the Registrant and participates in various employee benefit
plans offered to officers of the Registrant generally, including the
Registrant's Employee Incentive Plan, consisting of the Share Option Plan, Share
Purchase Plan, Share Bonus Plan and Share Loan Plan. Ms. MacGillivray owns
83,111 Common Shares and holds options to acquire 400,000 Common Shares.
<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The indemnification of the Registrant's officers and directors is governed
by the Canada Business Corporations Act (the"CBCA") and by the Registrant's
By-Laws.
Under Section 124 of the CBCA, the Registrant may indemnify a director or
officer of the Registrant, a former director or officer of the Registrant or a
person who acts or acted at the Registrant's request as a director or officer of
a body corporate of which the Registrant is or was a shareholder or creditor,
and such person's heirs and legal representatives, against all costs, charges
and expenses, including amounts paid to settle an action or satisfy a judgement,
reasonably incurred by such person in respect of any civil, criminal or
administrative action or proceeding to which such person is made a party by
reason of being or having been such a director or officer, provided that such
person acted honestly and in good faith with a view to the best interests of the
Registrant and, in the case of a criminal or administrative action or proceeding
that is enforced by a monetary penalty, such person had reasonable grounds for
believing that his or her conduct was lawful. Such indemnification is mandatory
in the event that such person satisfies the foregoing tests and is substantially
successful on the merits in his or her defense of the action or proceeding.
Under Section 7.02 of By-Law No. 1 of the Registrant, as amended, the
Registrant is required to indemnify the officer or director against costs,
charges and expenses incurred by reason of the individual having acted as an
officer or director of the Registrant, subject to the individual satisfying the
tests set forth in the preceding paragraph.
The Registrant carries directors' and officer's liability insurance with a
liability limit of $20,000,000, for which the Registrant paid an annual premium
of $74,000 in 1999. The policy contains a deductible clause of $250,000 payable
by the Registrant.
ITEM 8. EXHIBITS.
Following is a list of Exhibits, as required by General Instruction E to
Form S-8:
<TABLE>
<CAPTION>
Exhibit Number
(Regulation S-K
Item 601
Designation) Exhibit
--------------- -------
<S> <C> <C>
(4) - Instruments defining the rights of security holders:
(a) - Restated Certificate of Incorporation dated August 9, 1999. (9 pages)
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
(b) - By-Law No. 1 of the Registrant, as
mended and as in effect of the
date hereof. (Incorporated herein by
reference to Exhibit 3.12 of Registrant's
Annual Report on Form 10-K for the fiscal
year ended December 31, 1987 (File No. 1-8488).)
(c) - Amendment of By-Law No. 1. (Incorporated herein by reference to
Exhibit 3.11 of Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1987 (File No. 1-8488).)
- Opinion re legality:
- Opinion of Lorna D. MacGillivray, Solicitor, Vice President,
(5)
Secretary and General Counsel of the Registrant.
(23) - Consents of experts and counsel:
(a) - Consent of KPMG LLP
(b) - Consent of Lorna D. MacGillivray (contained in her opinion filed as
Exhibit (5)).
(99) - Additional exhibits:
- Employee Incentive Plan as amended, May 18, 1999. (10 pages)
</TABLE>
<PAGE> 6
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 caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toronto, Ontario, Canada, on December 17, 1999.
CAMPBELL RESOURCES INC.
By: /s/ John O. Kachmar
----------------------------------
John O. Kachmar
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 and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- -----
<S> <C> <C>
/s/ John O. Kachmar
- ------------------------ President and Chief December 17, 1999
John O. Kachmar Executive Officer
/s/ Paul J. Ireland
- ------------------------ Vice President, Finance December 17, 1999
Paul J. Ireland and Chief Financial Officer
(Principal Financial Officer
and Principal Accounting
Officer)
/s/ James D. Beatty
- ------------------------ Director December 17, 1999
James D. Beatty
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Graham G. Clow
- ---------------------------- Director December 17, 1999
Graham G. Clow
/s/ Roderick P. Douglas
- ---------------------------- Director December 17, 1999
Roderick P. Douglas
/s/ James C. McCartney, Q.C.
- ---------------------------- Chairman of the Board of December 17, 1999
James C. McCartney, Q.C. Directors and Director
/s/ Donald R. Murphy
- ----------------------------
Donald R. Murphy Director December 17, 1999
/s/ Francis S. O'Kelly
- ----------------------------
Francis S. O'Kelly Director December 17, 1999
/s/ G. E. "Kurt" Pralle
- ----------------------------
G. E. "Kurt" Pralle Director and Authorized December 17, 1999
Representative in the United States
/s/ James D. Raymond
- ----------------------------
James D. Raymond Director December 17, 1999
</TABLE>
<PAGE> 8
EXHIBIT INDEX
Following is the list of Exhibits, as required by General Instruction E to
Form S-8:
<TABLE>
<CAPTION>
Exhibit Number
(Regulation S-K
Item 601
Designation) Exhibit
---------------- ---------
<S> <C> <C>
(4) - Instruments defining the rights of security
holders:
(a) - Restated Certificate of Incorporation,
dated August 9, 1999.
(b) - By-Law No. 1 of the Registrant, as
mended and as in effect of the
date hereof. (Incorporated herein by reference
to Exhibit 3.12 of Registrant's Annual Report
on Form 10-K for the fiscal year ended
December 31, 1987 (File No. 1-8488).)
(c) - Amendment of By-Law No. 1. (Incorporated
herein by reference to Exhibit 3.11
of Registrant's Annual Report on
Form 10-K for the fiscal year ended
December 31, 1987 (File No. 1-8488).)
(5) - Opinion re legality:
(23) - Consents of experts and counsel:
(a) - Consent of KPMG LLP
(b) - Consent of Lorna D. MacGillivray
(contained in her opinion filed as
Exhibit (5)).
(99) - Employee Incentive Plan as amended
May 18, 1999.
</TABLE>
<PAGE> 1
[CANADA FLAG] Industry Canada Industrie Canada
RESTATED CERTIFICATE CERTIFICAT
OF INCORPORATION DE CONSTITUTION A JOUR
CANADA BUSINESS LOI CANADIENNE SUR
CORPORATIONS ACT LES SOCIETES PAR ACTIONS
<TABLE>
<S> <C>
CAMPBELL RESOURCES INC.- 135848-1
LES RESSOURCES CAMPBELL INC.
- ------------------------------------------------------------ ------------------------------------------------------------
Name of corporation-Denomination de la societe Corporation number-Numero de la societe
I hereby certify that the articles of incorporation of the Je certifie que les statuts constitutifs de la societe
above-named corporation were restated under section 180 of susmentionnee ont ete mis a jour en vertu de l'article 180 de
the Canada Business Corporations Act as set out in the la Loi canadienne sur les societes par actions. tel qu'il est
attached restated articles of incorporation. indique dans les statuts mis a jour ci-joints.
[SIG] August 9, 1999 / le 9 aout 1999
Director - Directeur Effective Date of Restatement -
Date d'entree en vigueur de la mise a jour
</TABLE>
[CANADA ICON]
<PAGE> 2
<TABLE>
<S> <C> <C> <C>
[CANADA FLAG] Industry Canada Industrie Canada FORM 7 FORMULE 7
RESTATED ARTICLES OF STATUTS CONSTITUTIFS
Canada Business Loi canadienne sur les INCORPORATION MIS A JOUR
Incorporations Act societes par actions (SECTION 180) (ARTICLE 180)
</TABLE>
<TABLE>
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<S> <C>
1-- Name of corporation -- Denomination de la societe Corporation No. -- No de la societe
CAMPBELL RESOURCES INC. - Les Resources Campbell Inc. 135848-1
- ------------------------------------------------------------------------------------------------------------------------------------
2-- The place in Canada where the registered office is situated Lieu au Canada ou est situe le siege social
MUNICIPALITY OF METROPOLITAN TORONTO, PROVINCE OF ONTARIO
- ------------------------------------------------------------------------------------------------------------------------------------
3-- The classes and any maximum number of shares that the corporation is Categories et tout nombre maximal d'actions que la
authorized to issue societe est autorisee a emenre
See Attached Schedule "A"
- ------------------------------------------------------------------------------------------------------------------------------------
4-- Restrictions, if any, on share transfers Restrictions sur le transfert des actions, s'il y a
lieu
Not Applicable
- ------------------------------------------------------------------------------------------------------------------------------------
5-- Number for minimum and maximum number) of directors Nombre (ou nombre minimal et maximal)
d'administrateurs
Not fewer than 5 directors and not more than 15 directors
- ------------------------------------------------------------------------------------------------------------------------------------
6-- Restrictions, if any, on business the corporation may carry on Limites imposees a l'activite commerciale de la
societe, s'il y a lieu
Not Applicable
- ------------------------------------------------------------------------------------------------------------------------------------
7-- Other provisions, if any Autres dispositions, s'il y a lieu
Not Applicable
- ------------------------------------------------------------------------------------------------------------------------------------
The foregoing restated articles of incorporation correctly set out, Cette mise a jour des statuts constitutifs demontre
without substantive change, the corresponding provisions of the exaclement, sans changement substantiel, les
articles of incorporation as amended and supersede the original dispositions correspondantes des statuts constitutifs
articles of incorporation. modifies qui remplacent los status consititutifs
originaux.
- ------------------------------------------------------------------------------------------------------------------------------------
Signature Date FOR DEPARTMENTAL USE ONLY --
[SIG] 05 08 99 A L'USAGE DU MINISTERE SEULEMENT
- --------------------------------------------------------------------------------
TITLE - TITRE Filed - Deposee
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL AUG - 9 1999
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
CANADA BUSINESS CORPORATIONS ACT LOI CANADIENNE SURE LES SOCIETES PAR ACTIONS
RESTATED ARTICLES OF INCORPORATION STATUTS CONSTITUTIFS MIS A JOUR
FORM 7 FORMULE 7
INSTRUCTIONS INSTRUCTIONS
FORMAT PRESENTATION
Documents required to be sent to the Director pursuant to the Canada Tous les documents dont l'envoi au directeur est exige
Business Corporations Act must conform to sections 5 to 10 of the para la Loi canadienne sur les societes par actions
Canada Business Corporations Regulations. doivent etre conformes aux articles 5 a 10 du Roglement
sur les societes par actions de regime federal.
GENERAL GENERALITES
Restated articles of incorporation shall set out without substantive Les statuts mis a jour doivent indiquer san modification
change the Articles of Incorporation as previously amended. substantielle les statuts constitutifs modifies au
prealable.
ITEM 1 RUBRIQUE 1
Set out the full legal name of the corporation and the corporation number. Indiquer la denomination officielle complete de la
societe et son numero.
ITEM 2 RUBRIQUE 2
Set out the name of the place and province within Canada where the Indiquer le nom de l'endroit et de la province au Canada
registered office is to be situated. A specific street address is not ou le siege social doit etre situe. Une adresse precise
required. niest pas requise.
ITEM 3 RUBRIQUE 3
Set out the details required by paragraph 6(1)(c) of the Act, including Indiquer les details requis par l'alinea 6(1)c) de la
details of the rights, privileges, restrictions and conditions attached Loi, y compris les details des droits, privileges,
to each class of shares. All shares must be without nominal or par value restrictions et conditions assortis a chaque categorie
and must comply with the provisions of Part V of the Act. d'actions. Toutes les actions doivent etre sans valeur
nominale ou sans valeur au par et doivent etre
conformes aux dispoitions de la partie V de la Loi.
ITEM 4 RUBRIQUE 4
If restrictions are to be placed on the right to transfer shares of the Sile droit de transfert des actions de la societe doit
corporation, set out a statement to this effect and the nature of such etre restreint, inclure une delcaration a et effet et
restrictions. indiquer la nature de ces restrictions.
ITEM 5 RUBRIQUE 5
State the number of directors. If cumulative voting is permitted, the Idiquer le nombre d'administrateurs. Si un vote
number of directors must be invariable; otherwise it is permissible to cumulatif est prevu, ce nombre doit etre fixe;
specify a minimum and maximum number of directors. autrement, il est permis de specifier un nombre minimal
et maximal d'administrateurs.
ITEM 6 RUBRIQUE 6
If restrictions are to be placed on the business the corporation may Si des limites doivent etre imposees a l'activite
carry on, set out the restrictions. commerciale de la socite les indiquer.
ITEM 7 RUBRIQUE 7
Set out any provisions permitted by the Act or Regulations to be set Indiquer les dipositions que la Loi ou le reglement
out in the by-laws of the corporation that are to form part of the permet d'enoncer dans los reglements administratifs de
article, including any pre-emptive rights or cumulative voting la societe et qui doivent faire partie des statuts, y
provisions. compris les dispositions relatives au vote cumulatif
ou aux droits de preemption.
SIGNATURE SIGNATURE
A director or authorized officer of the corporation shall sign the Un administrateur ou un dirigeant autorise de societe
restated articles. doit signer les status mis a jour.
COMPLETED DOCUMENTS AND FEES PAYABLE TO THE RECEIVER GENERAL ARE LES DOCUMENTS REMPLIS ET LES DROITS PAYABLES AU RECEVEUR
TO BE SENT TO: GENERAL DOIVENT ETRE ENVOYES AU:
The Director, Canada Business Corporations Act Directeur, Loi canadienne sur les societes par actions
Journal Tower South, Edifice Journal tour sud,
9th floor 9ieme stage
365 Laurier Ave. West, 365 ave Laurier ouest,
Ottawa, Ontario Ottawa (Ontario)
K1A 0C8 K1A 0C8
</TABLE>
[CANADA ICON]
<PAGE> 4
SCHEDULE "A"
A. The authorized share capital of the Corporation shall consist of:
(i) an unlimited number of common shares (the "Common Shares"); and
(ii) an unlimited number of preference shares (the "Preference
Shares").
B. The Common Shares shall have attached the following rights:
(i) the holders of the Common Shares shall be entitled to one (1) vote
per share at any meeting of the shareholders of the Corporation;
(ii) the holders of the Common Shares shall be entitled equally share
for share to receive any share dividend which the directors of the
Corporation may determine to declare and pay; and
(iii) in the event of the liquidation, dissolution or winding-up of the
Corporation or other distribution for the purpose of winding-up
its affairs, the remaining property and assets of the Corporation
available for distribution shall be distributed equally share for
share to the holders of the Common Shares.
C. The Preference Shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(i) the directors of the Corporation may at any time and from time to
time issue the Preference Shares in one (1) or more series, each
series to consist of such number of shares as may before issuance
thereof be determined by the directors;
(ii) the directors of the Corporation may (subject as hereinafter
provided) from time to time fix before issuance the designation,
rights, restrictions, conditions and limitations to be attached to
the Preference Shares of each series including, without limiting
the generality of the foregoing, the rate, amount or method of
calculation of preferential dividends, whether or not cumulative
or noncumulative or partially cumulative, and whether such rate,
amount or method of calculation shall be subject to change or
adjustment in the future, the currency or currencies of payment,
the date or dates and place or places of payment thereof and the
date or dates from which such preferential dividends shall accrue,
the redemption price and terms and conditions of redemption, the
rights of retraction, if any, vested in the holders of Preference
Shares of such series, and the prices and the other terms and
conditions of any rights of retraction, and whether any additional
rights of retraction may be vested in such holders in the future,
voting rights and conversion rights (if any) and any
<PAGE> 5
-2-
sinking fund, purchase fund or other provisions attaching to the
Preference Shares of such series, the whole subject to the issue
pursuant to the Canada Business Corporations Act (the "Act") of a
certificate of amendment in respect of articles of amendment in
prescribed form to designate a series of shares;
(iii) when any fixed cumulative dividends or amounts payable on a return
of capital are not paid in full, the Preference Shares of all
series shall participate rateably in respect of such dividends
including accumulations, if any, in accordance with the sums which
would be payable on the Preference Shares if all such dividends
were declared and paid in full, and on any return of capital in
accordance with the sums which would be payable on such return of
capital if all sums so payable were paid in full;
(iv) the Preference Shares shall be entitled to preference over the
Common Shares of the Corporation and any other shares of the
Corporation ranking junior to the Preference Shares with respect
to the payment of dividends and may also be given such other
preference over the Common Shares of the Corporation and any other
shares of the Corporation ranking junior to the Preference Shares
as may be fixed by the directors of the Corporation as to the
respective series authorized to be issued;
(v) the Preference Shares of each series shall rank on a parity with
respect to priority in payment of dividends and in the
distribution of assets in the event of liquidation, dissolution or
winding-up of the Corporation whether voluntary or involuntary;
(vi) in the event of the liquidation, dissolution or winding-up of the
Corporation or other distribution of assets of the Corporation
among shareholders for the purpose of winding-up its affairs, the
holders of the Preference Shares shall, before any amount shall be
paid to or any property or assets of the Corporation distributed
among the holders of the Common Shares or any other shares of the
Corporation ranking junior to the Preference Shares, be entitled
to receive (a) an amount equal to the amount paid up on such
shares, together with, in the case of cumulative Preference
Shares, all unpaid cumulative dividends (which for such purposes
shall be calculated as if such cumulative dividends were accruing
from day to day for the period from the expiration of the last
period for which cumulative dividends have been paid up to and
including the date of distribution) and, in the case of
non-cumulative Preference Shares, all declared and unpaid
non-cumulative dividends, and (b) if such liquidation,
dissolution, winding-up or distribution shall be voluntary, an
additional amount equal to the premium, if any, which would have
been payable on the redemption of the said Preference Shares
respectively if they had been called for redemption by the
Corporation on the date of distribution and, if said Preference
Shares could not
<PAGE> 6
-3-
be redeemed on such date, then an additional amount equal to the
greatest premium, if any, which would have been payable on the
redemption of said Preference Shares respectively;
(vii) no dividends shall at any time be declared or paid on or set apart
for payment on any shares of the Corporation ranking junior to the
Preference Shares unless all dividends up to and including the
dividend payable for the last completed period for which such
dividends shall be payable on each series of Preference Shares
then issued and outstanding shall have been declared and paid or
set apart for payment at the dare of such declaration or payment
or setting apart for payment of such shares of the Corporation
ranking junior to the Preference Shares nor shall the Corporation
call for redemption or redeem or purchase for cancellation or
reduce or otherwise pay off any of the Preference Shares (less
than the total amount then outstanding) or any shares of the
Corporation ranking junior to the Preference Shares unless all
dividends up to and including the dividend payable for the last
completed period for which such dividends shall be payable on each
series of the Preference Shares then issued and outstanding shall
have been declared and paid or set apart for payment at the date
of such call for redemption, purchase, reduction or other payment;
(viii) The Preference Shares of any series may be purchased for
cancellation or made subject to redemption by the Corporation at
such times and at such prices and upon such other terms and
conditions as may be specified in the rights, privileges,
restrictions and conditions attaching to the Preference Shares of
such series as set forth in the resolution of the board of
directors of the Corporation and certificate of amendment relating
to such series; and
(ix) the provisions of this section C may be deleted or varied in whole
or in part by a certificate of amendment, but only with the prior
approval of the holders of the Preference Shares given as
hereinafter specified in addition to any other approval required
by the Act (or any other statutory provision of like or similar
effect, from time to time in force). The approval of the holders
of the Preference Shares with respect to any and all matters
hereinbefore referred to may be given by at least 2/3 of the votes
cast at a meeting of the holders of the Preference Shares duly
called for that purpose and held upon at least 21 days' notice at
which the holders of a majority of the outstanding Preference
Shares are present or represented by proxy. If at any such meeting
the holders of a majority of the outstanding Preference Shares are
not present or represented by proxy within one-half an hour after
the time appointed for such meeting, then the meeting shall be
adjourned to such date being not less than 30 days later and to
such time and place as may be appointed by the chairman and not
less than 21 days' notice shall be given of such adjourned meeting
but it shall not be necessary in such notice to specify the
purpose for which the meeting
<PAGE> 7
-4-
was originally called. At such adjourned meeting the holders of
Preference Shares present or represented by proxy may transact the
business for which the meeting was originally called and a
resolution passed thereat by not less than 2/3 of the votes cast
at such adjourned meeting shall constitute the authorization of
the holders of the Preference Shares referred to above. The
formalities to be observed in respect of the giving of notice of
any such meeting or adjourned meeting and the conduct thereof
shall be those from time to time prescribed by the by-laws of the
Corporation with respect to meetings of shareholders. On every
poll taken at every such meeting or adjourned meeting every holder
of Preference Shares shall be entitled to one (1) vote in respect
of each Preference Share held.
D. Of the Preference Shares issuable in series of the Corporation, an
unlimited number are hereby designated as Redeemable Retractable Preference
Shares with the following rights, privileges, restrictions and conditions (in
addition to the rights, privileges, restrictions and conditions attaching to the
Preference Shares as a class):
(a) Definitions
(i) "Meston Amalgamation" means the amalgamation contemplated in the
agreement made as of the 1st day of September, 1987 between the Corporation and
Meston Lake Resources Inc. whereby Meston Lake Resources Inc. is amalgamated
with a wholly-owned subsidiary or the Corporation pursuant to and in accordance
with the provisions of Part IA of the Companies Act (Quebec).
(ii) "Meston Amalgamation Date" means the date the certificate of
amalgamation, pursuant to the Meston Amalgamation, is issued under the Companies
Act (Quebec).
(b) Dividends
The holders of the Redeemable Retractable Preference Shares shall not be
entitled to receive dividends.
(c) Redemption by the Corporation
(i) Subject to the provisions of the Act, cash Redeemable Retractable
Preference Share issued by the Corporation will be redeemable by the Corporation
on the earlier of the 30th day following the Meston Amalgamation Date and
December 31, 1987 (the "Redemption Date"), without the requirement for giving
notice to the holders of Redeemable Retractable Preference Shares so to be
redeemed, by payment for each share to be so redeemed of the amount of Cdn.
$6.75 in cash (the "Redemption Amount"). Any Redeemable Retractable Preference
Share outstanding as a consequence of the Meston Amalgamation shall be deemed to
have
<PAGE> 8
-5-
been issued at the date the certificate of amalgamation, pursuant to such
amalgamation, is issued under the Companies Act (Quebec).
(ii) Upon the redemption of Redeemable Retractable Preference Shares, provided
that a holder of any such redeemed Redeemable Retractable Preference Shares
shall have, on or before the Redemption Date, presented and surrendered to
Montreal Trust Company ("Montreal Trust") at its principal offices in Toronto,
Calgary, Montreal and Vancouver the certificates representing all of the
Subordinate Voting Shares of Meston Lake Resources Inc. held by such holder as
were exchanged upon the Meston Amalgamation into Redeemable Retractable
Preference Shares, the Corporation shall pay or cause to be paid to such holder
the Redemption Amount. A registered holder of Redeemable Retractable Preference
Shares who has not so presented and surrendered, on or before the Redemption
Date, the certificates representing all such Subordinate Voting Shares of Meston
Lake Resources Inc., shall be entitled to receive, and the Corporation shall pay
or cause to be paid to such holder, the Redemption Amount, only upon
presentation and surrender by such holder to Montreal Trust at its principal
offices in Toronto, Calgary, Montreal and Vancouver of the certificates
representing all of the Subordinate Voting Shares of Meston Lake Resources Inc.
held by such holder as were exchanged upon the Meston Amalgamation into
Redeemable Retractable Preference Shares. On or after the redemption of any such
Redeemable Retractable Preference Shares, the holder thereof shall not be
entitled to exercise any of the rights of shareholders in respect thereof, other
than the right to receive payment, without interest, of the Redemption Amount or
as provided in section D(c)(iii) below or as provided for in the Act, unless
payment of the Redemption Amount shall not be made in accordance with the
foregoing provisions, in which case the rights of such shareholder shall remain
unaffected.
(iii) The Corporation shall have the right, at any time on or after the
Redemption Date, to deposit the Redemption Amount for such of the Redeemable
Retractable Preference Shares registered to shareholders who have not at the
date of such deposit presented and surrendered to Montreal Trust certificates
representing all of their Subordinate Voting Shares of Meston Lake Resources
Inc. which upon the Meston Amalgamation were exchanged into Redeemable
Retractable Preference Shares, in a special account with Montreal Trust to be
paid without interest to or to the order of the respective holders of such
Redeemable Retractable Preference Shares upon presentation and surrender by
them, respectively, to Montreal Trust of their respective share certificates to
be so presented and surrendered. Any interest allowed on any such deposit shall
belong to the Corporation. Upon such deposit being made or upon the Redemption
Date (whichever is later) the Redeemable Retractable Preference Shares in
respect of which such deposit is made shall be deemed to be redeemed and the
rights of their holders shall be limited to receiving out of the monies so
deposited, without interest, the Redemption Amount applicable to their
respective Redeemable Retractable Preference Shares upon surrender of the
certificates representing all of the Subordinate Voting Shares of Meston Lake
Resources Inc, held by such holder as were exchanged upon the Meston
Amalgamation into Redeemable Retractable Preference Shares.
<PAGE> 9
-6-
(iv) Redemption monies that are represented by a cheque which has not been
presented to the bankers of the Corporation for payment or that otherwise remain
unclaimed (including monies held on deposit in a special account as provided for
in section D(c)(iii) above) for a period of six years commencing on the
Redemption Date shall be forfeited to the Corporation.
(d) Retraction
Subject to the provisions of the Act, the Corporation shall, if requested
by any holder of Redeemable Retractable Preference Shares, redeem at any time
after the Redemption Date such number of Redeemable Retractable Preference
Shares held by such holder as such holder shall request to be so purchased at
the Redemption Amount. Payment of the Redemption Amount for the Redeemable
Retractable Preference Shares to be redeemed shall be made upon presentation and
surrender to Montreal Trust at its principal office in Toronto, Ontario the
certificates representing all of the Subordinate Voting Shares of Meston Lake
Resources Inc. held by such holder as were exchanged upon the Meston
Amalgamation into Redeemable Retractable Preference Shares.
(e) Purchase for Cancellation
Subject to the provisions of the Act, the Corporation may purchase for
cancellation at any time in the open market, by tender or by private contract,
any portion of the outstanding Redeemable Retractable Preference Shares at the
lowest price at which, in the opinion of the board of directors of the
Corporation, such shares are obtainable not exceeding an amount equal to the
Redemption Amount plus costs of purchase. If upon any invitation for tenders
under the provisions of this paragraph more Redeemable Retractable Preference
Shares are tendered than the Corporation is willing to purchase at a price or
prices acceptable to the Corporation, the Corporation shall accept the tenders
submitted at the lowest price and as required the next progressively higher
prices until the Corporation has accepted tenders for the aggregate number of
shares it is prepared to purchase for cancellation and, if more shares are
tendered at any price than the Corporation is prepared to purchase, the shares
tendered at that price shall be purchased as nearly as may be pro rata
(disregarding fractions).
(f) Non-Voting
The holders of the Redeemable Retractable Preference Shares shall not be
entitled as such (except as otherwise provided by the Act) to receive notice of
or to attend any meeting of the shareholders of the Corporation and shall not be
entitled to vote at any such meeting.
(g) Final Participation
If the Corporation is liquidated, wound up or dissolved or otherwise
distributes its property voluntarily or involuntarily among the shareholders for
the purpose of winding up its affairs, the holders of the Redeemable Retractable
Preference Shares shall be entitled to
<PAGE> 10
-7-
receive the Redemption Amount for each Redeemable Retractable Preference Share
held, before any distribution to the holders of any shares ranking junior to the
Redeemable Retractable Preference Shares. The holders of the Redeemable
Retractable Preference Shares shall not share further in the distribution or the
property of the Corporation.
(h) Amendments
As long as there are Redeemable Retractable Preference Shares
outstanding, the Corporation may not, except with the approval of the holders of
the Redeemable Retractable Preference Shares, repeal, amend or otherwise change
the particular rights, privileges, restrictions and conditions attached to the
Redeemable Retractable Preference Shares. Approval of the holders of Redeemable
Retractable Preference Shares shall be deemed to be validly given if contained
in (a) a resolution adopted by at least 66 2/3 % of the votes cast at a meeting
of the holders of the Redeemable Retractable Preference Shares held for that
purpose, at which meeting each holder shall be entitled to one (1) vote for each
Redeemable Retractable Preference Share held, or (b) a written instrument signed
by the holders of all of the Redeemable Retractable Preference Shares then
outstanding. Any approval given in such a manner shall be binding on all the
holders of the Redeemable Retractable Preference Shares.
<PAGE> 1
[CAMPBELL RESOURCES INC. LOGO] 120 Adelaide St. West
Suite 1910
Toronto, Ontario M5H 1T1
Telephone: 416/366-5201
Fax: 416-367-3294
email:[email protected]
December 17,1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re: CAMPBELL RESOURCES INC. - FORM S-8
Dear Sirs:
Reference is made to a Registration Statement on Form S-8 under the
United States Securities Act of 1933 (the "Registration Statement") which is to
be filed by Campbell Resources Inc. (the "Corporation") with the United States
Securities and Exchange Commission. The Registration Statement relates to
3,500,000 Common Shares ("Common Shares") which may be issued pursuant to the
Corporation's Employee Incentive Plan (the "Plan").
I am Vice President, Secretary and General Counsel of the Corporation
and have acted as counsel for the Corporation. I have examined the Plan, the
Registration Statement and such other documents and corporate records and have
considered such questions of law as I have deemed necessary or appropriate for
the purpose of this opinion.
On the basis of the foregoing, in my opinion:
1. the Corporation has been duly incorporated and is subsisting
under the Canada Business Corporations Act; and
2. the Common Shares issuable pursuant to the Plan have been duly
and validly authorized for issuance by the Corporation and, upon
issuance thereof and payment therefor in full in accordance with
the Plan, will be fully paid and non-assessable and the holders
thereof will have no personal liability as shareholders of the
Corporation.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to this opinion in the Registration
Statement. I am qualified to practice law only in the Province of Ontario and I
do not purport to be an expert on any laws other than the laws of the Province
of Ontario and the laws of Canada applicable therein.
Yours very truly
/s/ Lorna D. MacGillivray
- -------------------------
Lorna D. MacGillivray
<PAGE> 1
Securities and Exchange Commission
450 5th Street N.W.
Washington, D.C. 20549
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
dated December 17, 1999, on Form S-8 of Campbell Resources Inc. of our report
dated February 18, 1999 relating to the consolidated balance sheets of Campbell
Resources Inc. as of December 31, 1998 and 1997, and the related consolidated
statements of operations, retained earnings and cash flows for each of the
years in the three-year period ended December 31, 1998, which report appears in
the December 31, 1998 annual report on Form 10-K of Campbell Resources Inc.
KPMG LLP
KPMG LLP
Toronto, Canada
December 17, 1999
<PAGE> 1
CAMPBELL RESOURCES INC.
EMPLOYEE INCENTIVE PLAN
AS AMENDED MAY 18, 1999
PART 1 - INTRODUCTION:
1.01 PURPOSE: The purpose of the Employee Incentive Plan (the "Plan") is to
establish an improved plan to replace the existing employee incentive plan and
to advance the interests of the Corporation by encouraging equity participation
in the Corporation by its employees through acquisition of shares of the
Corporation (the "Shares"). The Plan will consist of a share purchase plan (the
"Share Purchase Plan"), share option plan (the "Share Option Plan"), share bonus
plan (the "Share Bonus Plan") and share loan plan (the "Share Loan Plan") for
certain employees including officers thereof (whether or not directors) (the
"Participants") of Campbell Resources Inc. and its subsidiaries (the
"Corporation").
PART 2 - SHARE PURCHASE PLAN
2.01 PARTICIPANTS: Participants in the Share Purchase Plan will be employees of
the Corporation (including officers whether or not directors) who have been
continuously employed by the Corporation for at least 12 consecutive months. The
Board of Directors or the Compensation Committee shall have the right to in its
absolute discretion to waive such 12 month period or to refuse any employee or
group of employees the right of participation or continued participation in the
Share Purchase Plan.
2.02 ELECTION TO PARTICIPATE IN THE SHARE PURCHASE PLAN AND PARTICIPANT'S
CONTRIBUTION: Any Participant may elect to contribute an amount (the
"Participant's Contribution") to the Share Purchase Plan in any calendar year if
the Participant, in January of that calendar year, delivers to the Corporation a
written direction in form and substance satisfactory to the Corporation:
(a) authorizing the Corporation to deduct from the Participant's salary in
equal instalments the Participant's Contribution; and
(b) directing the Corporation to register a municipal address as the
Participant's address on the shareholders' register for any Shares issued
to the Participant in accordance with the Share Purchase Plan.
The Participant's Contribution shall not exceed 5% of the Participant's basic
annual salary from the Corporation before deductions, exclusive of any overtime
pay, bonuses or allowances of any kind whatsoever (the "Basic Annual Salary").
No adjustment shall be made to the Participant's Contribution until the next
succeeding calendar year and then only if a new written direction has been
delivered to the Corporation for such calendar year. The Participant's
Contribution shall be held by the Corporation in trust for the purposes of the
Share Purchase Plan.
2.03 CORPORATION'S CONTRIBUTION: Immediately prior to the date any Shares are
issued to a Participant in accordance with Section 2.05, the Corporation will
credit the Participant with and thereafter hold in trust for the Participant an
amount (the "Corporation's Contribution") equal to 50% of the Participant's
Contribution then held in trust by the Corporation.
<PAGE> 2
2.04 AGGREGATE CONTRIBUTION: The Participant's Contribution plus the
Corporation's Contribution shall be the "Aggregate Contribution". The
Corporation shall not be required to segregate the Aggregate Contribution from
its own corporate funds or to pay interest thereon.
2.05 ISSUE OF SHARES: On March 31, June 30, September 30 and December 31 in each
calendar year or if such day is not a business day then on the next business day
immediately thereafter, the Corporation will issue to each Participant fully
paid and non-assessable Shares equal in value to the Aggregate Contribution held
in trust on such date by the Corporation converted into Shares at the Issue
Price on such dates. If such conversion would otherwise result in the issue to a
Participant of a fraction of a share, the Corporation will issue only such whole
Shares as are issuable. "Issue Price" means the average of the closing prices
for the Shares on The Toronto Stock Exchange ("TSE") or in the event of no
trades, the average of the bid and asked prices, on the last five business days
prior to the date of issue. The Corporation shall hold any unused balance of the
Aggregate Contribution in trust for a Participant until used in accordance with
the Share Purchase Plan.
2.06 WITHDRAWAL FROM THE SHARE PURCHASE PLAN: In the event that a Participant
ceases to be employed by the Corporation for any reason or in the event of the
death of a Participant while participating in the Share Purchase Plan, no
further purchases of Shares will be made and the Participant's Contribution then
held in trust by the Corporation for the Participant shall be paid to the
Participant or his estate or successor, as the case may be, and the
Corporation's Contribution then held in trust for the Participant shall be paid
to the Corporation. A Participant shall not be entitled to withdraw from the
Share Purchase Plan under any other circumstances during the calendar year for
which he has elected to participate.
2.07 TERMINATION OF THE SHARE PURCHASE PLAN: Termination of the Share Purchase
Plan shall not affect the rights of Participants to the Shares purchased by them
pursuant to the Share Purchase Plan. In the event of termination of the Share
Purchase Plan, the Corporation shall pay to each Participant, the Participant's
Contributions then held in trust by the Corporation for such Participant and the
Corporation's Contribution then held in trust for the Participants shall be paid
to the Corporation.
PART 3 - SHARE OPTION PLAN:
3.01 OPTIONS: The Board of Directors or the Compensation Committee of the
Corporation may, from time to time, in its discretion, grant to any officer or
salaried employee of the Corporation (whether or not directors) (the "Options")
rights ("Options") to purchase Shares from the Corporation during five years
from the date of grant (the "Option Period") except as the same may be reduced
as provided in Section 3.05, and otherwise upon and subject to such terms,
conditions, limitations, prohibitions and restrictions as are herein contained
and as the Board of Directors or the Compensation Committee may from time to
time impose on the Option and by any rules or regulations which may be adopted
by the Board of Directors or the Compensation Committee with respect to the
operation or administration of the Share Option Plan.
3.02 AMOUNT OF OPTIONS: The determination regarding the amount of optioned
Shares to be granted each Participant will take into consideration the
Participant's present and potential contribution to the success of the
Corporation.
3.03 PURCHASE PRICE: The purchase price of the Share under Option granted under
the Share Option Plan from time to time shall be set by the Board of Directors
or the Compensation Committee in its discretion
2
<PAGE> 3
but in any event shall not be less than the Market Price. Subject to the
foregoing limitation, the said purchase price may differ between Options granted
under the Share Option Plan. "Market Price" for the purposes of this Share
Option Plan shall be the average of the closing prices for the Shares on the TSE
or in the event of no trades, the average of the bid and asked prices, on the
last five business days prior to the date of the grant of an Option.
3.04 ISSUANCES OF SHARES: If, as and when any Shares have been duly purchased
and paid for in cash under the terms of an Option granted or when a Right is
exercised pursuant to Section 3.06 under the Share Option Plan and in accordance
with the terms of such Options and any rules or regulations adopted by the Board
of Directors or the Compensation Committee in respect thereof, such Shares shall
be issued to the Optionee as fully paid and non-assessable Shares at the price
paid therefor. No Optionee shall have any rights as a shareholder in respect of
Shares subject to any Option granted to him until such Shares have been paid for
in full and issued to the said Optionee or a Right has been exercised pursuant
to Section 3.06.
3.05 TERMINATION OF EMPLOYMENT OR DEATH: No Option may be exercised after the
employment of an Optionee ceases with the Corporation and the Optionee shall
have no rights or claims against the Corporation in respect of the Options or in
respect of any Shares subject to Options which have not been purchased prior to
such date except that:
(a) if such employment ceases by reason of permanent disability of the
Optionee, or the retirement of the Optionee on or after attaining the
age of sixty years or the death of the Optionee, any Option granted to
the Optionee may be exercised in full by the Optionee or by his legal
representatives as if such employment had not ceased provided that all
Options held by the Optionee or his legal representatives must be
exercised on or before one (1) year after employment so ceased and
thereafter any portion which remains unexercised shall terminate and be
of no force or effect; and
(b) the Board of Directors or the Compensation Committee may in its
discretion, in special circumstances, give its express consent to the
exercise, after the effective date of the Optionee ceasing to be employed
by the Corporation, of any Options which are exercisable at the time the
Optionee's employment ceases.
3.06 SHARE APPRECIATION RIGHT: A Participant to whom an Option is granted under
the Share Option Plan may, if determined by the Board of Directors or the
Compensation Committee, have the right (the "Right"), when entitled to exercise
an Option to terminate such Option in whole or in part (the "Terminated
Option"), by notice in writing to the Corporation, and, in lieu of receiving the
Shares (the "Option Shares") to which the Terminated Option relates, to receive
that number of Shares, disregarding fractions, which when multiplied by the Fair
Value have a total value (the "Total Value") equal to the product of the number
of Option Shares times the difference between the Fair Value and the Option
price per Share of the Option Shares, less the Withheld Amount, if any. "Fair
Value" means the average of the closing prices for the Shares on the TSE or in
the event of no trades, the average of the bid and asked prices, on the last
five business days prior to the exercise of the Right; and "Withheld Amount"
means the greater of:
(a) any amount required to be paid by the Corporation or an affiliate; or
3
<PAGE> 4
(b) any amount the Participant directs the Corporation or an affiliate to pay
(provided such amount shall not exceed 50% of the Total Value before
deduction of the Withheld Amount), to any taxation authority in respect of
the grant of the Terminated Option and/or exercise of the Right.
3.07 TERMINATION OF THE SHARE OPTION PLAN: Termination of the Plan shall not
affect the rights of an Optionee holding an Option at the time of the
termination of the Plan without the consent of the Optionee.
3.08 LIMITATION: Options shall not be granted to a Participant if such Options
together with all other Options then held by such Participant and any Rights
attached thereto would upon exercise result in the issue to such Participant of
more than 5% of the Shares then outstanding.
PART 4 - SHARE BONUS PLAN:
4.01 PARTICIPANTS: The Board of Directors or the Compensation Committee, shall
have the right to determine in its sole and absolute discretion to issue for no
cash consideration to any full-time employees of the Corporation any number of
Shares (subject to Section 4.02 and 6.05) as a discretionary bonus in
consideration of past services subject to such terms, conditions, limitations,
prohibitions and restrictions as the Board of Directors or the Compensation
Committee may determine.
4.02 NUMBER OF SHARES: The maximum number of Shares that may be issued and
reserved for issuance under the Share Bonus Plan shall not exceed 5% of the
total number of shares issued and reserved for issuance pursuant to the Plan nor
1% of the issued capital.
PART 5 - SHARE LOAN PLAN:
5.01 PARTICIPANTS: Officers of the Corporation, (whether or not directors) may
participate in the Share Loan Plan (the "Share Loan Participants").
5.02 ELIGIBILITY: The Board of Directors or the Compensation Committee shall
from time to time determine the officers eligible for participation in the Share
Loan Plan. Each Share Loan Participant may elect to participate in the Share
Loan Plan by signing and delivering to the Corporation such documentation as the
Corporation may require.
5.03 TERMS: The Board of Directors or the Compensation Committee may in its
discretion (subject to Sections 5.04, 5.05 and 6.05) determine the amount of the
loan to be made to the Share Loan Participant, the number of Shares in respect
of which the loan is made and the value per share in respect of which the loan
is made. The loan shall be subject to such terms and conditions, including rates
of interest (if any), as the Board of Directors or the Compensation Committee
may determine.
5.04 SHARES: The number of Shares issued and reserved for issuance pursuant to
the Share Loan Plan to any one person shall not exceed 12% of the aggregate
number of Shares issued and reserved for issuance pursuant to the Plan. The
number of Shares issued and reserved for issuance pursuant to the Share Loan
Plan (whether or not such Shares are issued pursuant to the exercise of Options
granted under the Share Option Plan) shall not exceed 25% of the aggregate
number of Shares issued and reserved for issuance pursuant to the Plan.
5.05 AMOUNT OF LOAN: The amount of the loan made under the Share Loan Plan shall
be determined by
4
<PAGE> 5
the Board of Directors or the Compensation Committee and shall, except where a
loan is made with respect to Shares that are issued pursuant to the exercise of
an Option granted under the Share Option Plan, not be more that the product of
the number of Shares in respect of which the loan is made multiplied by the
average of the closing prices for the Shares of the Corporation on the TSE or in
the event of no trades, the average of the bid and asked prices, on the last
five business days immediately preceding the date of approval of the loan and,
where such Shares are issued pursuant to the exercise of an Option granted under
the Share Option, be the purchase price of the Shares as determined in the Share
Option Plan.
5.06 TRUSTEE: The Board of Directors or the Compensation Committee shall appoint
a trustee (the Trustee) to act as Trustee of the Share Loan Plan, who shall be
competent to carry out all of the trust provisions contained in the Share Loan
Plan.
5.07 LOAN: Upon receipt by the Corporation from a Share Loan Participant of the
required documentation referred to in paragraph 5.02, the Corporation, subject
to Section 5.05, shall make a loan to the Share Loan Participant in an amount
sufficient to purchase, at the purchase price per Share as set by the Board of
Directors or the Compensation Committee, the number of Shares of the Corporation
that the Share Loan Participant is entitled to purchase as determined and
approved by the Board of Directors or the Compensation Committee.
5.08 DELIVERY OF SHARE CERTIFICATE: All Shares issued under the Share Loan Plan
shall be delivered to the Trustee who shall hold such Shares in trust subject to
the provisions contained herein.
Upon repayment of the loan, in whole or in part and any interest thereon, each
Share Loan Participant shall be entitled to the delivery from the Trustee of
such percentage of the Shares as corresponds to the percentage of such Share
Loan Participant's loan which has been repaid, upon delivery of a written
request to that effect to the Trustee.
5.09 REPAYMENT OF LOAN: In order to repay the loan in whole or in part and any
interest thereon, the Share Loan Participant may direct the Trustee in writing
to sell on his behalf all or part of his Shares and to repay out of the proceeds
of such sale his loan to the Corporation.
5.10 TERMINATION OF EMPLOYMENT: In the event that the Share Loan Participant
ceases to be an employee of the Corporation for any reason whatsoever (other
than the death of the employee), his loan, or the amount thereof remaining
outstanding, shall mature and be payable, together with any applicable interest
thereon, eighteen (18) months from the date he ceases to be an employee:
(a) if the loan and any interest thereon have not been repaid in full to the
Corporation within eighteen (18) months of the date the Participant
ceases to be an employee:
(i) the Trustee shall sell on behalf of such Share Loan Participant all
or such part of the Shares then held by it on his behalf as shall be
necessary to repay the loan and any interest thereon in full and the
Trustee shall pay to the Corporation the proceeds of such sale;
(ii) the Trustee shall transfer and deliver to the Share Loan Participant
the balance of the Shares, if any, that are not so sold; and
(iii) the Board of Directors or the Compensation Committee shall fix such
terms and conditions with
5
<PAGE> 6
regard to repayment of all or part of the balance of the loan or
forgiveness of all or part of the balance of the loan as the Board
of Directors or the Compensation Committee may in its discretion
determine.
(b) if the loan and any interest thereon have been repaid in full to the
Corporation within eighteen (18) months of the date the Participant ceases
to be an employee, the Trustee shall forthwith upon repayment transfer and
deliver to the Share Loan Participant the Shares, if any, then held by it
on behalf of such Share Loan Participant.
5.11 DEATH OF EMPLOYEE: In the event that a Share Loan Participant dies while
in the employ of the Corporation, the loan, or the amount thereof
remaining outstanding shall mature and be payable, together with any
applicable interest thereon, one year from the date of such Share Loan
Participant, and:
(a) if the loan and any such interest thereon have not been repaid in full
to the Corporation within one year from the date of death of such Share
Loan Participant;
(i) the Trustee shall sell on behalf of such deceased Share Loan
Participant all or such part of the Shares then held by it on his
behalf as shall be necessary to repay to the Corporation the loan
and such interest in full and the Trustee shall pay to the
Corporation the proceeds of such sale;
(ii) the Trustee shall transfer and deliver the balance of the Shares, if
any, to the legal personal representatives of the deceased Share
Loan Participant; and
(iii) the Board of Directors or the Compensation Committee shall fix such
terms and conditions with regard to repayment of all or part of the
balance of the loan or forgiveness of all or part of the balance of
the loan as the Board of Directors or the Compensation Committee may
in its discretion determine.
(b) if the loan and any interest thereon have been repaid in full to the
Corporation within one year of the date of the death of the Share Loan
Participant, the Trustee shall then transfer and deliver the Shares held
by it to the legal personal representatives of the deceased Participant.
5.12 MISCELLANEOUS DISTRIBUTION: In the event that the Shares held by the
Trustee pursuant hereto on behalf of a Share Loan Participant have not been
transferred and delivered to such Share Loan Participant or sold on behalf of
such Share Loan Participant by the Trustee in accordance with the provisions of
section 5.08, 5.10 or 5.11 hereof within five years from the purchase date, the
Trustee shall transfer and deliver such Shares then held by it to such Share
Loan Participant, unless the loan and any such interest thereon of such Share
Loan Participant have not been repaid in full to the Corporation in which case:
(a) the Trustee shall sell on behalf of the Share Loan Participant all or
such part of the Shares as shall be necessary to repay the loan,
together with any applicable interest thereon, in full and the Trustee
shall pay to the Corporation the proceeds of such sale;
(b) the Trustee shall transfer and deliver the balance of the Shares, if any,
to such Share Loan Participant; and
6
<PAGE> 7
(c) if the loan and any such interest thereon have not been repaid in full
the Board of Directors or the Compensation Committee shall fix such
terms and conditions with regard to repayment of all or part of the
balance of the loan or forgiveness of all or part of the balance of the
loan as the Board of Directors or the Compensation Committee may in its
discretion determine.
5.13 DIVIDENDS AND OTHER RIGHTS: The Trustee shall pay and transfer all
dividends received by it in respect of the Shares held by it on behalf of any
Share Loan Participant to the Corporation in repayment of the loan. In the event
the Trustee becomes entitled to subscribe for additional Shares of the
Corporation by virtue of the Trustee being the registered holder of the Share,
the Trustee, if so requested by the Share Loan Participant or his legal personal
representatives and upon the receipt of applicable subscription monies therefor,
shall subscribe for such additional Shares or securities on behalf of the Share
Loan Participant. Upon issuance of the additional Shares, the Trustee shall
transfer and deliver such additional Shares so received by it on behalf of the
Share Loan Participant to or to the order of the Share Loan Participant or his
legal personal representatives.
5.14 THE TRUSTEE shall attend all meetings of shareholders of the Corporation
which the Trustee shall be entitled to attend by virtue of being the registered
holder of the Shares and shall vote the Shares held on behalf of each Share Loan
Participant at every such meeting in such manner as the Board of Directors of
the Corporation shall have previously directed in writing, and in default of any
such direction the Trustee shall vote or refrain from voting at its discretion.
5.15 GENERAL: The Trustee shall be entitled to rely on the certificate of two
officers of the Corporation under the seal of the Corporation as to any of the
following matters:
(a) whether a Share Loan Participant has repaid the loan to the Corporation;
(b) whether the employment of any Share Loan Participant with the Corporation
has terminated;
(c) the date of the death of any Share Loan Participant and whether the loan
has been repaid in full within one year from the date of death of such
Share Loan Participant; and
(d) the balance owing to the Corporation at the date of such certificate in
respect of any loan.
5.16 THE CORPORATION AND THE TRUSTEE shall enter into such trust agreement with
regard to the terms of the Share Loan Plan as the Trustee and the Corporation
may deem necessary and appropriate.
PART 6 - GENERAL
6.01 TRANSFERABILITY: All benefits, rights and options accruing to any
Participant in accordance with the terms and conditions of the Plan shall not be
transferable except as provided for in section 3.05(a). During the lifetime of a
Participant all benefits, rights and options may only be exercised by the
Participant.
6.02 EMPLOYMENT: Nothing contained in the Plan shall confer upon any Participant
any right with respect to employment or continuance of employment with the
Corporation or any affiliate, or interfere in any way with the right of the
Corporation or any affiliate to terminate the Participant's employment at any
time. Participation in the Plan by a Participant is voluntary.
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6.03 RECORD KEEPING: The Corporation shall maintain a register in which shall
be recorded:
(a) the number of Shares issued and reserved for issuance pursuant to the
Plan, including: the number of Shares purchased and reserved for
purchase under the Share Purchase Plan; the number of Shares issued and
subject to issuance upon the exercise of Options or Rights granted under
the Share Option Plan; the number of Shares issued and reserved for
issuance under the Share Bonus Plan; and the number of Shares purchased
and reserved for purchase under the Share Loan Plan;
(b) the name and address of each Participant;
(c) the Plan in which the Participant participates;
(d) any Participant's contributions;
(e) the number of options granted to a Participant and the number of options
outstanding; and
(f) the amount of a loan made to any Participant, the repayment terms and
the rate of interest (if any).
6.04 NECESSARY APPROVALS: The Plan and the obligation of the Corporation to
issue and deliver any Shares in accordance with the Plan is subject to the
approval of all regulatory authorities having jurisdiction over the securities
of the Corporation. If any Shares cannot be issued to any Participant for
whatever reason, the obligation of the Corporation to issue such Shares shall
terminate and any Participant's Contribution held in trust for a Participant and
any purchase price paid to the Corporation will be returned to the Participant.
Any participation rights granted prior to such approvals shall be conditional
upon and suspended until such approvals have been given.
6.05 SHARES: A maximum of 10,260,000 Shares have been reserved for issuance from
time to time, pursuant to the Plan, including any Shares subject to issuance
upon the exercise of any outstanding Options or Rights granted under the Share
Option Plan and any Shares previously issued pursuant to the Plan or other such
plans.
The number of Shares issued and reserved for issuance pursuant to the Plan to
any one person shall not exceed 20% of the aggregate number of Shares issued and
reserved for issuance pursuant to the Plan. The number of Shares issued and
reserved for issuance pursuant to the Plan, together with the Directors' Stock
Option Plan, to any one person shall not exceed 5% of the issued capital.
As used in the Plan, "Shares" means common shares without par value of the
Corporation as constituted on November 10, 1988, subject to Section 6.06. The
number of shares outstanding at any time for purposes of the Plan shall be
determined on the basis of the number of shares that are outstanding immediately
before the share issuance in question, excluding shares issued pursuant to the
Plan over the proceeding one-year period.
6.06 ADJUSTMENT IN CASE OF CHANGES AFFECTING THE SHARES:
(a) In the event of a subdivision, consolidation, exchanges or
reclassification of outstanding Shares or other capital adjustment, or
the payment of a stock dividend thereon, the number of Shares reserved
or authorized to be reserved under the Plan and the purchase prices
thereof shall be increased or
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reduced proportionately and such other adjustments shall be made as may
be deemed necessary or equitable by the Board of Directors or the
Compensation Committee;
(b) If the Corporation amalgamates, consolidates with or merges with or into
another corporation, any Shares receivable on the exercise of an Option
granted under the Share Option Plan shall be converted into the
securities, property or cash which the Optionee would have received upon
such amalgamation, consolidation or merger if the Optionee had exercised
his Option immediately prior to the record date applicable to such
amalgamation, consolidation or merger, and the purchase price shall be
adjusted appropriately by the Board of Directors or the Compensation
Committee and such adjustment shall be binding for all purposes of the
Share Option Plan; and
(c) In the event of a change in the Corporation's presently authorized
Shares which is limited to a change in the designation thereof, the
Shares resulting from any such change shall be deemed to be Shares
within the meaning of this Plan. In the event of any other change
affecting the Shares, such adjustment shall be made as may be deemed
equitable by the Board of Directors or the Compensation Committee to
give proper effect to such event.
6.07 DECISION OF DIRECTORS: For purposes of the Plan, those Directors of the
Corporation who are eligible and who have at any time within one year prior
thereto been eligible for selection as persons to whom Shares may be issued or
to whom options or rights may be granted pursuant to the Plan shall not be
eligible to, and shall not participate in the decision of the Board of Directors
or the Compensation Committee to issue any Shares or grant any Options under the
Plan or approve any amendments thereto.
6.08 ADMINISTRATION AND AMENDMENT OF THE PLAN: The Plan will be administered by
the Board of Directors and the Compensation Committee of the Corporation. The
Board of Directors and the Compensation Committee are authorized to interpret
the Plan and may from time to time establish, amend or rescind rules and
regulations required for carrying out the Plan. Any such interpretation or
construction of any provision of the Plan shall be final and conclusive. All
administrative costs of the Plan shall be paid by the Corporation. The senior
officers of the Corporation are authorized and directed to do all things and
execute and deliver all instruments, undertakings and applications and writings
as they in their absolute discretion consider necessary for the implementation
of the rules and regulations established for administering the Plan.
The Board of Directors and the Compensation Committee reserve the right to
amend, modify or terminate the Plan at any time if and when it is advisable in
the absolute discretion of the Board of Directors or the Compensation Committee.
However, any amendment of the Plan which would:
(a) materially increase the benefits under the Plan;
(b) materially increase the number of Shares which would be issued under the
Plan;
(c) materially modify the requirements as to eligibility for participation
in the Plan; or
(d) otherwise require approval by shareholders (or disinterested shareholders
as the case may be) in accordance with the requirements of any regulatory
body having jurisdiction over the Shares;
shall be effective only upon the approval of the shareholders (or disinterested
shareholders as the case may
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be) of the Corporation. Any amendment to any provision of the Plan shall be
subject to approval by any regulatory body having jurisdiction over the
securities of the Corporation.
6.09 NO REPRESENTATION OR WARRANTY: The Corporation makes no representation or
warranty as to the future market value of any Share issued in accordance with
the provisions of the Plan.
6.10 INTERPRETATION: The Plan will be governed by and construed in accordance
with the laws of the Province of Ontario.
6.11 APPROVAL BY SHAREHOLDERS: Should any regulatory authority require, the Plan
shall be subject to the approval of the shareholders of the Corporation to be
given by resolution approved by a simple majority of votes cast at the next
Annual and Special Meeting to be held on May 11, 1989 and the approval of all
regulatory authorities having jurisdiction. Any participation rights granted
prior to such approvals shall be conditional upon and suspended until such
approvals have been given.
Currency: June, 1999
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