Securities Registration: Employee Benefit Plan (s-8)
June 05 2017 - 5:32PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on June 5,
2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-8
REGISTRATION
STATEMENT
UNDER THE SECURITIES ACT OF 1933
SUNOPTA INC.
(Exact
name of registrant as specified in charter)
Canada
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Not Applicable
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(State or other jurisdiction of
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(IRS Employer
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incorporation or organization)
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Identification No.)
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2233 Argentia Road, Suite 401
Mississauga,
Ontario, L5N 2X7, Canada
(Address, including zip code,
of
registrants principal executive offices)
Amended 2013 Stock Incentive Plan
(Full title of the plan)
Robert McKeracher
Vice President and Chief
Financial Officer
2233 Argentia Road, Suite 401
Mississauga, Ontario, L5N 2X7, Canada
(905)
821-9669
(Name, address, including zip code, and
telephone
number, including area code, of agent for service)
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Copy to:
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Reed W. Topham, Esq.
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Stoel Rives LLP
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201 South Main Street, Suite 1100
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Salt Lake City, UT 84111
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801-328-3131
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Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large accelerated filer,
accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
Large accelerated filer [ ]
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Accelerated
filer [X]
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Non-accelerated filer [ ]
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Smaller reporting company [ ]
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
Title of
Securities
to Be
Registered(1)
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Amount
to Be
Registered
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Proposed
Maximum
Offering
Price Per
Share (2)
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Proposed
Maximum
Aggregate
Offering
Price (2)
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Amount
of
Registration
Fee
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Common Stock and
attached purchase rights
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3,800,000 Shares
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$9.43
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$35,834,000
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$4,153.16
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(1)
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In accordance with Rule 416(a) of the Securities Act of
1933, as amended (the Securities Act), this registration statement (this
Registration Statement) shall also cover any additional shares of Common
Stock and attached purchase rights which become issuable under the Amended
2013 Stock Incentive Plan by reason of any stock dividend, stock split, or
similar transaction.
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(2)
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Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) of the Securities Act of 1933
(the Securities Act). The calculation of the registration fee is based
on $9.43, which was the average of the high and low prices of the Common
Stock on May 31, 2017 on the NASDAQ Global Select Market. The registrants
shares of Common Stock trade on the NASDAQ Global Select Market under the
symbol STKL and on the Toronto Stock Exchange under the symbol
SOY.
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EXPLANATORY NOTE
SunOpta
Inc. (the Registrant) is registering under this Registration Statement on Form
S-8 3,800,000 shares of its Common Stock and attached purchase rights for
issuance under the 2013 Stock Incentive Plan, as amended (the 2013 Plan). The
2013 Plan originally reserved 1,250,000 shares of Common Stock (the Initial
Reserved Shares) plus additional shares of Common Stock reserved for purposes
of the Registrants 2002 Stock Option Plan, as Amended and Restated May 2011
(the 2002 Option Plan) as described below. On May 10, 2016, the Registrants
shareholders approved an amendment to the 2013 Plan to increase the number of
Initial Reserved Shares from 1,250,000 to 3,000,000 shares of Common Stock (the
Reserved Shares). The Registrant registered such additional 1,750,000 shares
of Common Stock pursuant to a Registration Statement on Form S-8 (Registration
No. 333-211873).
The
Registrant previously registered an aggregate of 7,500,000 shares of Common
Stock for issuance under the 2002 Option Plan pursuant to three Registration
Statements on Form S-8 (Registration Nos. 333-124911, 333-144827 and 333-176675)
(the Prior Plan Form S-8s). As of May 28, 2013, the Registrant combined the
2002 Option Plan into the 2013 Plan. According to the terms of the 2013 Plan,
the shares of Common Stock that were available for grant under the 2002 Option
Plan as of May 28, 2013 (the Carry Over Shares), and any shares of Common
Stock subject to options previously granted under the 2002 Option Plan that
expire or terminate subsequent to May 28, 2013 without being exercised, are
included in the reserve of shares of Common Stock available for issuance under
the 2013 Plan. The total number of shares of Common Stock previously reserved
and available for grants under the 2002 Option Plan on May 28, 2013 was 867,031.
On
October 17, 2013, the Registrant filed post-effective amendments to each of the
Prior Plan Form S-8s to deregister the Carry Over Shares previously registered
for issuance under the 2002 Option Plan. Also on October 17, 2013, the
Registrant filed a new registration statement on Form S-8 (File No. 333-191777)
(the 2013 Form S-8) to register the Initial Reserved Shares. In accordance
with the principles set forth in Interpretation 89 under Section G of the Manual
of Publicly Available Telephone Interpretations of the SEC Division of
Corporation Finance (July 1997) and Instruction E to the General Instructions to
Form S-8, the 2013 Form S-8, in addition to registering the 1,250,000 Initial
Reserved Shares, (i) reallocated the Carry Over Shares from the 2002 Option Plan
to the 2013 Plan and registered the Carry Over Shares which may be issued under
the 2013 Plan and (ii) carried over from the Prior Plan Form S-8s the
registration fees paid for the Carry Over Shares registered pursuant to the 2013
Registration Statement.
On May 24, 2017, the Registrants shareholders
approved further amendments to the 2013 Plan, which increased the number of
Reserved Shares from 3,000,000 to 6,800,000 shares of Common Stock. This
Registration Statement is being filed in order to register such additional
3,800,000 shares of Common Stock and attached purchase rights which may be
offered or sold to participants under the 2013 Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The
following documents, which have been filed previously by the registrant with the
Commission, are incorporated herein by reference and made a part hereof:
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(a)
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the registrants Annual Report on Form 10-K for the
fiscal year ended December 31, 2016 (the Annual Report), as filed with
the Commission on March 2, 2017;
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(b)
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the registrants Definitive Proxy Statement for the 2017
Annual and Special Meeting of Shareholders, as filed with the Commission
on April 13, 2017;
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(c)
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the registrants Quarterly Report on Form 10-Q for the
quarter ended April 1, 2017, as filed with the Commission on May 10,
2017;
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(d)
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the registrants Current Reports on Form 8-K filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended, since the end of the fiscal year covered by the Annual Report;
and
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(e)
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the descriptions of the registrants shares of Common
Stock and rights set forth in its Current Report on Form 8-K filed on
September 2, 2011, its Current Report on Form 8-K filed on November 13,
2015, its Current Report on Form 8-K filed on April 20, 2016, and its
Current Report on Form 8-K filed on October 12, 2016, including any
amendments or reports filed for the purpose of updating such
descriptions.
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All
reports and other documents filed by the registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
Exchange Act) subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment hereto, which indicates that all
securities offered hereunder have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not
applicable.
Item 5. Interests of Named Experts and Counsel.
Not
applicable.
Item 6. Indemnification of Directors and Officers.
The
Canada Business Corporations Act, as amended (the CBCA), as well as the
registrants By-Law No. 14, as amended (the By-Law) and the insurance policies
maintained by the registrant provide for the indemnification of the its
directors and officers in respect of certain liabilities incurred in the course
of their duties.
Under
the CBCA, the registrant may indemnify a present or former director or officer,
or former director or officer or another individual who acts or acted at its
request as a director or officer, or an individual acting in a similar capacity,
of another entity, against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment reasonably incurred by the
individual in respect of any civil, criminal, administrative, investigative or
other proceeding in which the individual is involved because of the association
with us or another entity. However, the registrant may only indemnify an
individual if the following conditions of indemnification are met: (a) the
individual acted honestly and in good faith with a view to the best interests of
the registrant, or as the case may be, to the best interests of the other entity for
which the individual acted as a director or officer or in a similar capacity at
our request; and (b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, if the individual had
reasonable grounds for believing the individuals conduct was lawful. The
registrant may also advance moneys to a director, officer or other individual
for the costs, charges and expenses of such a proceeding. However, the
individual is required to repay those amounts if he or she does not fulfill the
specified conditions. In the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, an individual is entitled to
indemnity from the registrant if the foregoing conditions of indemnification are
met and the individual was not judged by the court or other competent authority
to have committed any fault or omitted to do anything that such individual ought
to have done. Further, with the approval of a court, the registrant may
indemnify or advance moneys to a director or officer in respect of an action by
the registrant or on its behalf or on behalf of another entity to procure a
judgment in its favor, to which the individual is made a party because of his or
her association with the registrant or such other entity so long as the
foregoing conditions of indemnification are met.
The
By-Law provides for the mandatory indemnification of every director and officer
of the registrant and his or her heirs, executors, administrators and other
legal personal representatives against all liabilities, costs, charges and
expenses that he sustains or incurs in respect of any action, suit or proceeding
that is proposed or commenced against him or her for or in respect of anything
done or permitted by him or her in respect of the execution of the duties of his
office as well as all other costs, charges and expenses that he or she sustains
or incurs in respect of the affairs of the registrant; provided, in each case,
such person acted honestly and in good faith with a view to the best interests
of the registrant.
Both
the CBCA and the By-Law also permit the registrant to purchase and maintain
insurance for the benefit of any director and officer and his or her heirs,
executors, administrators and other legal personal representatives. The
registrant has purchased and intends to maintain insurance on behalf of any
person who is or was one of its directors or officers, or is or was one of its
directors or officers serving at its request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any liability asserted against him and
incurred by him or her in any such capacity, or arising out of his or her status
as such, so long as the director or officer acted honestly and in good faith
with a view to the best interests of the registrant.
Insofar
as indemnification for liabilities arising under the Act 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 Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not
applicable.
Item 8. Exhibits.
See
the accompanying Exhibit Index for a list of Exhibits to this Registration
Statement, which is incorporated by reference herein.
Item 9. Undertakings.
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of
the Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising
after the effective date of this 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.
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(iii)
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To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
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Provided,
however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
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(2)
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That, for the purpose of determining any liability under
the Securities Act, 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.
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(3)
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To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
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(b)
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The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the registrants annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plans annual report pursuant to section 15(d) of the
Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
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(c)
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Insofar as indemnification for liabilities arising under
the Securities Act 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
Commission such indemnification is against public policy as expressed in
the Securities 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 Securities 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, the registrant certifies that it has
reasonable grounds to believe that it meets all 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
Mississauga, Province of Ontario, Canada, on this 5th day of June, 2017.
SUNOPTA INC.
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By:
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/s/ Robert McKeracher
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Robert McKeracher
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Vice President and Chief
Financial Officer
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(Principal Financial and
Accounting Officer)
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POWER OF ATTORNEY
Each
of the undersigned hereby constitutes and appoints Robert McKeracher as his or
her attorney-in-fact and agent, with full power of substitution and
resubstitution for him or her in any and all capacities, to sign any and all
amendments or post-effective amendments to this registration statement, and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming that such attorney-in-fact and agent or his or
her substitute may do or cause to be done by virtue hereof.
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 date
indicated.
Signature
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Title
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Date
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/s/ David Colo
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Chief Executive Officer and Director
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June 5, 2017
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David Colo
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(Principal Executive Officer)
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/s/ Robert
McKeracher
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Vice President and Chief Financial Officer
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June 5, 2017
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Robert McKeracher
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(Principal Financial and Accounting
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Officer)
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/s/ Dean Hollis
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Director
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June 5, 2017
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Dean Hollis
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/s/ Katrina Houde
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Director
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June 5, 2017
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Katrina Houde
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/s/ Margaret Shân
Atkins
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Director
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June 5, 2017
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Margaret Shân Atkins
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/s/ Michael
Detlefsen
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Director
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June 5, 2017
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Michael Detlefsen
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/s/ Albert Bolles
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Director
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June 5, 2017
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Albert Bolles
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/s/ Brendan
Springstubb
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Director
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June 5, 2017
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Brendan Springstubb
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/s/ Gregg Tanner
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Director
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June 5, 2017
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Gregg Tanner
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EXHIBIT INDEX
Exhibit
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Number
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Exhibit Description
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4.1
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Amalgamation of Stake Technology Ltd. and 3754481 Canada
Ltd. (formerly George F. Pettinos (Canada) Limited) (incorporated herein
by reference to our Form 10-KSB for the year ended December 31, 2000).
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4.2
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Certificate of Amendment dated October 31, 2003 to change
our name from Stake Technology Ltd. to SunOpta Inc. (incorporated by
reference to Exhibit 3i(b) to our Form 10-K for the year ended December
31, 2003).
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4.3
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Articles of Amalgamation of SunOpta Inc. and Sunrich
Valley Inc., Integrated Drying Systems Inc., Kettle Valley Dried Fruits
Ltd., Pro Organics Marketing Inc., Pro Organics Marketing (East) Inc.,
4157648 Canada Inc. and 4198000 Canada Ltd. dated January 1, 2004
(incorporated by reference to Exhibit 3i(c) to our Form 10-K for the year
ended December 31, 2003).
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4.4
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Articles of Amalgamation of SunOpta Inc. and 6319734
Canada Inc., 4157656 Canada Inc. Kofman-Barenholtz Foods Limited dated
January 1, 2005 (incorporated herein by reference to Exhibit 3i(d) to our
Form 10-K for the year ended December 31, 2004).
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4.5
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Articles of Amalgamation of SunOpta Inc. and 4307623
Canada Inc., dated January 1, 2006 (incorporated herein by reference to
Exhibit 3i(e) to our Form 10-K for the year ended December 31, 2005).
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4.6
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Articles of Amalgamation of SunOpta Inc. and 4208862
SunOpta Food Ingredients Canada Ltd., 4406150 Canada Inc. and 4406168
Canada Inc. dated January 1, 2007 (incorporated herein by reference to
Exhibit 3i(f) to our Form 10-K for the year ended December 31, 2007).
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4.7
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Articles of Amalgamation of SunOpta Inc. and 4460596
Canada Inc. dated January 1, 2008 (incorporated herein by reference to
Exhibit 3i(g) to our Form 10-K for the year ended December 31, 2007).
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4.8
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Amended and Restated By-law 14 dated May 27, 2010
(incorporated herein by reference to Exhibit 4 to the Companys
Registration Statement on Form S-3 (File No. 333-197235) filed on July 3,
2014).
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4.9
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By-Law Number 15 of SunOpta Inc. (incorporated by
reference to Exhibit 3.1 to the Companys Current Report on Form 8-K filed
on November 13, 2015).
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4.10
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Form of Certificate representing Common Shares, no par
value (incorporated by reference to Exhibit 4.9 to the Companys
Registration Statement on Form S-8 filed on September 2, 2011).
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4.11
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Amended and Restated Shareholder Rights Plan Agreement,
dated November 10, 2015, amended and restated as of April 18, 2016,
between SunOpta Inc. and American Stock Transfer & Trust Company LLC,
as rights agent (incorporated by reference to Exhibit 4.1 to the Companys
Current Report on Form 8-K filed on April 20, 2016).
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4.12
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SunOpta Inc. Amended 2013 Stock Incentive Plan
(incorporated herein by reference to Exhibit C to our Definitive Proxy
Statement on Schedule 14A filed on March 31, 2016).
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4.13
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Amended and Restated Certificate of Incorporation of
SunOpta Foods Inc., setting forth the terms of its Series A Preferred
Stock, which is exchangeable for Common Shares of SunOpta Inc.
(incorporated by reference to Exhibit 4.1 to the Companys Current Report
on Form 8-K filed on October 12, 2016).
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4.14
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Articles of Amendment of SunOpta Inc., setting forth the
terms of its Special Shares, Series 1 (incorporated by reference to
Exhibit 4.2 to the Companys Current Report on Form 8-K filed on October
12, 2016).
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4.15
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SunOpta Inc. Amended 2013 Stock Incentive Plan
(incorporated herein by reference to Exhibit A to our Definitive Proxy
Statement on Schedule 14A filed on April 13, 2017).
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5.1*
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Opinion of Wildeboer Dellelce LLP.
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23.1*
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Consent of Wildeboer Dellelce LLP (included in Exhibit
5.1).
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23.2*
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Consent of Deloitte LLP, Independent Registered Public
Accounting Firm.
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24.1*
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Power of Attorney (included on signature page hereto).
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*Filed herewith
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