UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
AUSTIN GOLD CORP.
(Exact name of registrant
as specified in its charter)
| British Columbia |
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Not Applicable |
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(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
1021 West Hastings Street, 9th Floor
Vancouver, British Columbia, Canada V6C 0C3
(Address of principal
executive offices)(Zip Code)
AUSTIN
GOLD Corp. 2023 STOCK Incentive plan
(Full title of the
plans)
Registered Agent Solutions, Inc.
4625 West Nevso Drive, Suite 2
Las Vegas, NV 89103
(Name and Address of Agent for Service)
(888) 705-7274
(Telephone Number, including
area code, of agent for service)
(Address, including zip code, and telephone number,
1including area code, of agent for service)
Copies to:
Jason K Brenkert, Esq.
Dorsey & Whitney LLP
1400 Wewatta Street, Suite 400
Denver, Colorado 80202
Telephone: (303) 352-1133
Fax Number: (303) 629-3450
Indicate by check mark
whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an
emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
¨ |
Accelerated filer |
¨ |
| Non-accelerated filer |
x |
Smaller reporting company |
x |
| |
Emerging Growth Company |
x |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
EXPLANATORY
NOTE
This registration statement on Form S-8 registers
the offer and sale of common shares of Austin Gold Corp. (the "Registrant") pursuant to the Registrant’s 2023 Stock Incentive
Plan.
PART I. INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan Information.*
Item
2. Registrant Information and Employee Plan Annual Information.*
| * | The information specified in Item 1 and Item 2 of Part I
of Form S-8 is omitted from this Registration Statement on Form S-8 (the “Registration Statement”) in accordance
with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory
note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered
to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under
the Securities Act. |
PART II. INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant
with the Securities and Exchange Commission (the "Commission") are hereby incorporated in this registration statement by reference:
| (b) | Exhibits 99.1 and 99.2 to the Registrant’s Foreign Report on Form 6-K filed with
the Commission on May 10, 2023, including the Registrant’s condensed interim consolidated
statements of financial position as at March 31, 2023 and the condensed interim consolidated
statements of loss and comprehensive loss, cash flows and changes in shareholders’
equity for the three months ended March 31, 2023 and 2022 and management’s discussion
and analysis for the three months ending March 31, 2023 and 2022; |
| (c) | All other reports filed by the Registrant
under Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") since December 31, 2022; and |
All documents filed by the Registrant pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment
that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, including any Reports
of Foreign Private Issuers on Form 6-K submitted during such period (or portion thereof) that is identified in such form as being
incorporated by reference into this registration statement, shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for the purposes of this registration statement to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part
of this registration statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Robert Hatch, the consulting geologist to the
Company who is the qualified person under subpart 1300 of Regulation S-K that reviewed certain of the Company’s mineral property
disclosure contained in documents that are incorporated herein by reference, currently has 33,333 options exercisable at Cdn$3.00 per
share, 76,667 options at $0.9161 per share and is eligible for option grants under the 2023 Stock Incentive Plan.
Item 6. Indemnification of Directors and Officers.
Under the Business Corporations Act (British Columbia)
(the “BCBCA”) the Registrant may indemnify a director or officer, a former director or officer, or an individual who acts
or acted as a director or officer of an affiliate of the Registrant, or at the Registrant’s request as a director or officer (or
in a similar capacity) of another corporation or other entity, against all judgments, penalties or fines awarded or imposed in, or amounts
paid in settlement of, any legal proceeding or investigative action, whether current, threatened, pending or completed, in which such
individual or any of his or her heirs and personal or other legal representatives is or may be joined as a party, or is or may be liable
for in respect of a judgment, penalty or fine in, or expenses related to such legal proceeding or investigative action because of serving
in such capacity (such legal proceeding or investigative action, an “Eligible Proceeding”), on condition that (i) the
individual acted honestly and in good faith with a view to the best interests of the Registrant or such other corporation or entity, and
(ii) in the case of such a proceeding or investigative action other than a civil proceeding, the individual had reasonable grounds
for believing that his or her conduct was lawful. The Registrant may, after the final disposition of such a legal proceeding or investigative
action, pay all costs, charges and expenses, including legal and other fees, actually and reasonably incurred by such person described
above in respect of such a legal proceeding or investigative action, providing such person complies with (i) and (ii) above.
The Registrant may, as they are incurred in advance of the final disposition of such legal proceeding or investigative action, pay such
costs, charges and expenses as they are actually and reasonably incurred by such person described above, provided it obtains a written
undertaking that such person will repay the amounts advanced if it is ultimately determined that the individual did not comply with (i) and
(ii) above. Under the BCBCA, an individual described above is entitled to indemnification from the Registrant in respect of such
costs, charges and expenses actually and reasonably incurred after the final disposition of such legal proceeding or investigative action
as a matter of right if the individual has not been reimbursed for such costs, charges and expenses and is wholly successful in the outcome
of such legal proceeding or investigative action, or is substantially successful on the merits thereof, providing such individual complies
with (i) and (ii) above. On application of the Registrant or an individual described above, the Supreme Court of British Columbia
may do one or more of the following: (A) order the Registrant to indemnify a person described above in respect of any liability incurred
by such person in respect of such a legal proceeding or investigative action, (B) order the Registrant to pay some or all of the
expenses incurred by such individual in respect of such legal proceeding or investigative action, (C) order the enforcement of, or
any payment under, an agreement of indemnification entered into by the Registrant, (D) order the Registrant to pay some or all of
the expenses actually and reasonably incurred by such person described above in obtaining such an order, and/or (E) make any other
order that the Court considers appropriate.
The Articles of the Registrant provide that, subject
to the BCBCA, the Registrant must indemnify a director or former director of the registrant, and such person’s heirs and legal personal
representatives against all eligible penalties to which such person is or may be liable and must, after the final disposition of an Eligible
Proceeding, pay the expenses actually and reasonably incurred by such person in respect of that proceeding. In addition, the Articles
of the Registrant provide that, subject to the BCBCA, the Registrant may indemnify any person.
The Registrant has entered into indemnification
agreements with each of its senior officers and directors pursuant to which they are indemnified and held harmless substantially to the
extent permitted by, and subject to the limitations of, the BCBCA.
A policy of directors’ and officers’
liability insurance is maintained by the Registrant which insures directors and officers for losses as a result of claims against the
directors and officers of the Registrant in their capacity as directors and officers and also reimburses the Registrant for payments made
pursuant to the indemnity provisions under the Articles of the Registrant and the BCBCA.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing
provisions, the Registrant has been informed 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.
Item 9. Undertakings.
| (a) | The undersigned Registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this
registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represents no more than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective registration statement; |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such information in the registration statement; |
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 Securities Exchange Act that are incorporated by reference in this Registration Statement.
| (2) | 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. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering. |
| (b) | The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act, (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act)
that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | 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 of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication
of such issue. |
Signatures
Pursuant to the requirements of the Securities
Act of 1933, as amended, 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 Vancouver, Province of British Columbia, on this 30th day of June, 2023.
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AUSTIN GOLD CORP. |
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/s/Dennis L. Higgs |
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Name: |
Dennis L. Higgs |
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Title: |
President and Director |
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(Principal Executive Officer) |
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/s/Grant Bond |
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Name: |
Grant Bond |
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Title: |
Chief Financial Officer |
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(Principal Financial and Accounting Officer) |
Power
of Attorney
Each person whose signature appears below constitutes
and appoints Dennis L. Higgs and Grant Bond as his/her true and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for them in any and all capacities, to sign any 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, hereby ratifying and confirming
all that said attorneys-in-fact, or their substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
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Title |
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Date |
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| /s/Dennis L. Higgs |
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President and Director |
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June 30, 2023 |
| Dennis L. Higgs |
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(Principal Executive Officer) |
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| /s/Grant Bond |
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Chief Financial Officer |
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June 30, 2023 |
| Grant Bond |
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(Principal Financial and Accounting Officer) |
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| /s/Joseph J. Ovsenek |
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Chairman and Director |
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June 30, 2023 |
| Joseph J. Ovsenek |
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| /s/Kenneth C. McNaughton |
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Vice President, Exploration and Director |
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June 30, 2023 |
| Kenneth C. McNaughton |
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| /s/Barbara A. Filas |
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Director |
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June 30, 2023 |
| Barbara A. Filas |
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| /s/Benjamin Leboe |
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Director |
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June 30, 2023 |
| Benjamin Leboe |
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| /s/Tom Yip |
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Director |
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June 30, 2023 |
| Tom Yip |
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| /s/Guillermo Lozano-Chavez |
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Director |
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June 30, 2023 |
| Guillermo Lozano-Chavez |
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Exhibit 4.3
AUSTIN
GOLD CORP.
2023
STOCK INCENTIVE PLAN
Section 1. Purpose.
The purpose of the Plan is
to promote the interests of the Company and its shareholders by aiding the Company in attracting and retaining employees, officers, consultants,
independent contractors, advisors and non-employee Directors capable of assuring the future success of the Company, to offer such persons
incentives to put forth maximum efforts for the success of the Company’s business and to compensate such persons through various
stock-based arrangements and provide them with opportunities for stock ownership in the Company, thereby aligning the interests of such
persons with the Company’s shareholders.
Section 2. Definitions.
As used in the Plan, the following terms shall have the meanings
set forth below:
(a) “Affiliate”
shall mean (i) any entity that, directly or indirectly through one or more intermediaries, is controlled by the Company and (ii) any
entity in which the Company has a significant equity interest, in each case as determined by the Committee.
(b) “Award”
shall mean any Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, Dividend Equivalent or Other Stock-Based Award
granted under the Plan.
(c) “Award
Agreement” shall mean any written agreement, contract or other instrument or document evidencing an Award granted under the Plan
(including a document in an electronic medium executed in accordance with the requirements of Section 9(b)).
(d)
“Board” shall mean the Board of Directors of the Company.
(e) “Change
in Control” shall mean any one of the following events for Awards granted under the Plan:
| (i) | a consolidation, reorganization, amalgamation, merger, acquisition or other business combination (or a plan of arrangement in connection
with any of the foregoing), other than solely involving the Company and any one or more of its Affiliates, with respect to which all or
substantially all of the persons who were the beneficial owners of the Shares and other securities of the Company immediately prior to
such consolidation, reorganization, amalgamation, merger, acquisition, business combination or plan of arrangement do not, following the
completion of such consolidation, reorganization, amalgamation, merger, acquisition, business combination or plan of arrangement, beneficially
own, directly or indirectly, more than 50% of the resulting voting rights (on a fully diluted basis) of the Company or its successor; |
| (ii) | the sale, exchange or other disposition to a person other than an Affiliate of the Company of all, or substantially all of the Company’s
assets; |
| (iii) | a resolution is adopted to wind up, dissolve or liquidate the Company; |
| (iv) | a change in the composition of the Board, which occurs at a single meeting of the shareholders of the Company or upon the execution
of a shareholders’ resolution, such that individuals who are members of the Board immediately prior to such meeting or resolution
cease to constitute a majority of the Board, without the Board, as constituted immediately prior to such meeting or resolution, having
approved of such change; or |
| (v) | any person, entity or group of persons or entities acting jointly or in concert (an “Acquiror”) acquires or acquires control
(including, without limitation, the right to vote or direct the voting) of Voting Securities of the Company which, when added to the Voting
Securities owned of record or beneficially by the Acquiror or which the Acquiror has the right to vote or in respect of which the Acquiror
has the right to direct the voting, would entitle the Acquiror and/or associates and/or affiliates of the Acquiror to cast or to direct
the casting of 20% or more of the votes attached to all of the Company’s outstanding Voting Securities which may be cast to elect
directors of the Company or the successor Company (regardless of whether a meeting has been called to elect directors). |
| (vi) | For the purposes of the foregoing, “Voting Securities” means Shares and any other shares entitled to vote for the election
of directors and shall include any security, whether or not issued by the Company, which are not shares entitled to vote for the election
of directors but are convertible into or exchangeable for shares which are entitled to vote for the election of directors including any
options or rights to purchase such shares or securities. |
(f) “Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time, and any regulations promulgated thereunder.
(g) “Committee”
shall mean the Compensation Committee of the Board or any successor committee of the Board designated by the Board to administer the Plan.
The Committee shall be comprised of not less than such number of Directors as shall be required to permit Awards granted under the Plan
to qualify under Rule 16b-3, and each member of the Committee shall be a “Non-Employee Director” within the meaning of
Rule 16b-3.
(h)
“Company” shall mean Austin Gold Corp., a
company incorporated under the Business Corporations Act (British
Columbia) on April 21, 2020, or any successor corporation.
(i)
“Director” shall mean a member of the Board.
(j)
“Dividend Equivalent” shall mean any right granted under Section 6(d) of the Plan.
(k) “Eligible
Person” shall mean any employee, officer, non-employee Director, consultant, independent contractor or advisor providing services
to the Company or any Affiliate, or any such person to whom an offer of employment or engagement with the Company or any Affiliate is
extended. An Eligible Person must be a natural person, and may only be granted an Award in connection with the provision of services not
related to capital raising or promoting or maintaining a market for the Shares.
(l)
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(m) “Fair
Market Value” shall mean, with respect to any property (including, without limitation, any Shares or other securities), the fair
market value of such property determined by such methods or procedures as shall be established from time to time by the Committee. Notwithstanding
the foregoing, unless otherwise determined by the Committee, the Fair Market Value of Shares on a given date for purposes of the Plan
shall be the closing sale price of the Shares as reported on the NYSE American Exchange on such date, or if the NYSE American Exchange
is not open for trading on such date, on the most recent preceding date when the NYSE American Exchange is open for trading.
(n) “Incentive
Stock Option” shall mean an option granted under Section 6(a) of the Plan that is intended to meet the requirements of
Section 422 of the Code or any successor provision.
(o) “Non-Qualified
Stock Option” shall mean an option granted under Section 6(a) of the Plan that is not intended to be an Incentive
Stock Option.
(p) “Option”
shall mean an Incentive Stock Option or a Non-Qualified Stock Option to purchase Shares of the Company.
(q)
“Other Stock-Based Award” shall mean any right
granted under Section 6(e) of the Plan.
(r)
“Participant” shall mean an Eligible Person
designated to be granted an Award under the Plan.
(s) “Person”
shall mean any individual or entity, including a corporation, partnership, limited liability company, association, joint venture or trust.
(t) “Plan”
shall mean this Austin Gold Corp. 2023 Stock Incentive Plan, as amended from time to time.
(u) “Prior
Stock Plans” shall mean the Stock Option Plan Amended and Restated as of July 5, 2021.
(v)
“Restricted Stock” shall mean any Share granted under Section 6(c) of the Plan.
(w) “Restricted
Stock Unit” shall mean any unit granted under Section 6(c) of the Plan evidencing the right to receive a Share (or a cash
payment equal to the Fair Market Value of a Share) at some future date.
(x) “Rule 16b-3”
shall mean Rule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act or any successor rule or
regulation.
(y) “Section 409A”
shall mean Section 409A of the Code, or any successor provision, and applicable Treasury Regulations and other applicable guidance
thereunder.
(z)
“Securities Act” shall mean the Securities Act of 1933, as amended.
(aa)
“Shares” shall mean common shares, without par value, of the Company (or such other securities or property as may
become subject to Awards pursuant to an adjustment made under Section 4(c) of the Plan).
(bb) “Specified Employee”
shall mean a specified employee as defined in Section 409A(a)(2)(B) of the Code or applicable proposed or final regulations
under Section 409A, determined in accordance with procedures established by the Company and applied uniformly with respect to all
plans maintained by the Company that are subject to Section 409A.
(cc) “Stock
Appreciation Right” shall mean any right granted under Section 6(b) of the Plan.
Section 3. Administration.
(a) Power
and Authority of the Committee. The Plan shall be administered by the Committee. Subject to the express provisions of the Plan,
the constating documents of the Company, and applicable law, the Committee shall have full power and authority to:
(i) designate Participants; (ii) determine the type or types of Awards to be granted to each Participant under the Plan;
(iii) determine the number of Shares to be covered by (or the method by which payments or other rights are to be calculated in
connection with) each Award; (iv) determine the terms and conditions of any Award or Award Agreement, including any terms
relating to the forfeiture of any Award and the forfeiture, recapture or disgorgement of any cash, Shares or other amounts payable
with respect to any Award; (v) amend the terms and conditions of any Award or Award Agreement, subject to the limitations
under Sections 6 and 7; (vi) accelerate the exercisability of any Award or the lapse of any restrictions relating to any
Award, subject to the limitations in Sections 6 and 7, (vii) determine whether, to what extent and under what circumstances
Awards may be exercised or settled in cash, Shares, other securities, other Awards or other property (excluding promissory notes),
or canceled, forfeited or suspended, subject to the limitations in Sections 6 and 7; (viii) determine whether, to what extent
and under what circumstances amounts payable with respect to an Award under the Plan shall be deferred either automatically or at
the election of the holder thereof or the Committee, subject to the requirements of Section 409A; (ix) interpret
and administer the Plan and any instrument or agreement, including an Award Agreement, relating to the Plan; (x) establish,
amend, suspend or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper
administration of the Plan; (xi) make any other determination and take any other action that the Committee deems necessary or
desirable for the administration of the Plan; and (xii) adopt such modifications, rules, procedures and sub-plans as may be
necessary or desirable to comply with provisions of the laws of non U.S. or Canadian jurisdictions in which the Company or an
Affiliate may operate, including, without limitation, establishing any special rules for Affiliates, Eligible Persons or
Participants located in any particular country, in order to meet the objectives of the Plan and to ensure the viability of the
intended benefits of Awards granted to Participants located in such non United States jurisdictions. Unless otherwise expressly
provided in the Plan, all designations, determinations, interpretations and other decisions under or with respect to the Plan or any
Award or Award Agreement shall be within the sole discretion of the Committee, may be made at any time and shall be final,
conclusive and binding upon any Participant, any holder or beneficiary of any Award or Award Agreement, and any employee of the
Company or any Affiliate.
(b) Delegation.
The Committee may delegate its powers and duties under the Plan to one or more Directors or officers of the Company, subject to such
terms, conditions and limitations as the Committee may establish in its sole discretion; provided, however, that the Committee shall
not delegate its powers and duties under the Plan (i) with regard to grants of Awards to be made to officers of the Company or
any Affiliate who are subject to Section 16 of the Exchange Act or (ii) in such a manner as would cause the Plan
not to comply with the requirements of applicable exchange rules or applicable corporate law.
(c) Power
and Authority of the Board of Directors. Notwithstanding anything to the contrary contained herein, (i) the Board may, at any
time and from time to time, without any further action of the Committee, exercise the powers and duties of the Committee under the Plan,
unless the exercise of such powers and duties by the Board would cause the Plan not to comply with the requirements of Rule 16b-3;
and (ii) only the Committee (or another committee of the Board comprised of directors who qualify as independent directors within
the meaning of the independence rules of any applicable securities exchange where the Shares are then listed) may grant Awards to
Directors who are not also employees of the Company or an Affiliate.
Section 4. Shares Available for Awards.
(a) Shares
Available. Subject to adjustment as provided in Section 4(c) of the Plan, the aggregate number of Shares that may be issued
under all Awards under the Plan shall equal:
| (i) | 2,500,000 Shares, plus |
| (ii) | any unused Shares available for awards under the Prior Stock Plans as of May 10th, 2023, plus |
| (iii) | any Shares subject to any outstanding award under the Prior Stock Plans that, after May 10th, 2023, are not purchased or are
forfeited, paid in cash or reacquired by the Company (subject to the limitations in Section 4(b) below), or otherwise not delivered
to the Participant due to termination or cancellation of such award. |
On and after shareholder approval of
this Plan, no awards shall be granted under the Prior Stock Plans, but all outstanding awards previously granted under the Prior Stock
Plans shall remain outstanding and subject to the terms of the Prior Stock Plans.
The aggregate number of Shares that may be
issued under all Awards under the Plan shall be reduced by Shares subject to Awards issued under the Plan in accordance with the
Share counting rules described in Section 4(b) below. When determining the Shares added to and subtracted from the
aggregate reserve under paragraphs (ii) and (iii) above, the number of Shares added or subtracted shall be also
determined in accordance with the Share counting rules described in Section 4(b) below.
(b) Counting
Shares. For purposes of this Section 4, except as set forth in this Section 4(b) below, if an Award entitles the holder
thereof to receive or purchase Shares, the number of Shares covered by such Award or to which such Award relates shall be counted on the
date of grant of such Award against the aggregate number of Shares available for granting Awards under the Plan:
| (i) | Shares Added Back to Reserve. Subject to the limitations in (ii) below, if any Shares covered by an Award or to which
an Award relates are not purchased or are forfeited or are reacquired by the Company, or if an Award otherwise terminates or is cancelled
without delivery of any Shares, then the number of Shares counted against the aggregate number of Shares available under the Plan with
respect to such Award, to the extent of any such forfeiture, reacquisition by the Company, termination or cancellation, shall again be
available for granting Awards under the Plan |
| (ii) | Shares Not Added Back to Reserve. Notwithstanding anything to the contrary in (i) above, the following Shares will not
again become available for issuance under the Plan: (A) any Shares which would have been issued upon any exercise of an Option but
for the fact that the exercise price was paid by a “net exercise” or any Shares tendered in payment of the exercise price
of an Option; (B) any Shares withheld by the Company or Shares tendered to satisfy any tax withholding obligation with respect to
an Award; (C) Shares covered by a stock-settled
Stock Appreciation Right issued under the Plan that are not issued in connection with settlement in Shares upon exercise; or (D) Shares
that are repurchased by the Company using Option exercise proceeds. |
| (iii) | Cash-Only Awards. Awards that do not entitle the holder thereof to receive or purchase Shares shall not be counted against
the aggregate number of Shares available for Awards under the Plan. |
| (iv) | Substitute Awards Relating to Acquired Entities. Shares issued under Awards granted in substitution for awards previously granted
by an entity that is acquired by or merged with the Company or an Affiliate shall not be counted against the aggregate number of Shares
available for Awards under the Plan. |
(c) Adjustments.
In the event that any dividend (other than a regular cash dividend) or other distribution (whether in the form of cash, Shares,
other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation,
split-up, spin-off, combination, repurchase or exchange of Shares or other securities of the Company, issuance of warrants or other
rights to purchase Shares or other securities of the Company or other similar corporate transaction or event affects the
Shares such that an adjustment is necessary in order to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all
of (i) the number and type of Shares (or other securities or other property) that thereafter may be made the subject of
Awards, (ii) the number and type of Shares (or other securities or other property) subject to outstanding Awards,
(iii) the purchase or exercise price with respect to any Award and (iv) the limitations contained in
Section 4(d) of the Plan.
(d) Limitation
for Awards Granted to Non-Employee Directors. Notwithstanding any provision to the contrary in the Plan, the sum of the grant date
fair value of equity-based Awards (such value computed as of the date of grant in accordance with applicable financial accounting rules)
and the amount of any cash-based compensation granted to a non-employee Director during any calendar year shall not exceed $600,000. The
independent members of the Board may make exceptions to this limit for a non-executive chair of the Board, provided that the non-employee
Director receiving such additional compensation may not participate in the decision to award such compensation
Section 5. Eligibility.
Any Eligible Person shall
be eligible to be designated as a Participant. In determining which Eligible Persons shall receive an Award and the terms of any Award,
the Committee may take into account the nature of the services rendered by the respective Eligible Persons, their present and potential
contributions to the success of the Company or such other factors as the Committee, in its discretion, shall deem relevant. Notwithstanding
the foregoing, an Incentive Stock Option may only be granted to full-time or part-time employees (which term as used herein includes,
without limitation, officers and Directors who are also employees), and an Incentive Stock Option shall not be granted to an employee
of an Affiliate unless such Affiliate is also a “subsidiary corporation” of the Company within the meaning of Section 424(f) of
the Code or any successor provision. Further, notwithstanding the foregoing, Options and Stock Appreciation Rights shall not be granted
to an Eligible Person providing direct services to an Affiliate unless the Company has a “controlling interest” in such Affiliate
within the meaning of Treas. Reg. Sec. 1.409A-1(b)(5)(iii)(E)(1).
Section 6. Awards.
(a) Options.
The Committee is hereby authorized to grant Options to Eligible Persons with the following terms and conditions and with such additional
terms and conditions not inconsistent with the provisions of the Plan as the Committee shall determine:
| (i) | Exercise Price. The purchase price per Share purchasable under an Option shall be determined by the Committee and shall not
be less than 100% of the Fair Market Value of a Share on the date of grant of such Option; provided, however, that the Committee may designate
a per share exercise price below Fair Market Value on the date of grant if the Option is granted in substitution for a stock option previously
granted by an entity that is acquired by or merged with the Company or an Affiliate. Except in the case where the Committee has designated
a per share exercise price below Fair Market Value on the date of grant of
an Option that is granted in substitution for a stock option previously granted by an entity that is acquired by or merged with the Company
or an Affiliate, which Option will not be subject to adjustment pursuant to this sentence, if the Committee determines that the exercise
price of Shares subject to an Option is not less than the Fair Market Value of such Shares at the time of grant but the Canada Revenue
Agency, the Internal Revenue Service or any other taxation authority disagrees and assesses, reassesses or proposes to assess or reassess
on the basis that the exercise price was less than the Fair Market Value of the Shares, and the parties or a court of law agree with such
taxation authority, then the exercise price shall be adjusted, on a nunc pro tunc basis, to the Fair Market Value of the Shares as of
the time of grant and the holder of the Option shall pay the Company the difference between the exercise price and the Fair Market Value
of the Shares as of the time of grant. |
| (ii) | Option Term. The term of each Option shall be fixed by the Committee (at the date of grant) but shall not be longer than 10
years from the date of grant. |
| (iii) | Time and Method of Exercise. The Committee shall determine the time or times at which an Option may be exercised within the
Option term, either in whole or in part, and the method of exercise, except that any exercise price tendered shall be in either cash,
Shares having a Fair Market Value on the exercise date equal to the applicable exercise price or a combination thereof, as determined
by the Committee. |
| (A) | Promissory Notes. For avoidance of doubt, the Committee may not accept a promissory note as consideration. |
| (B) | Net Exercises. Except in the case of Options issued to Participants subject to taxation in Canada, the terms of any Option
may be written to permit the Option to be exercised by delivering to the Participant a number of Shares having an aggregate Fair Market
Value (determined as of the date of exercise) equal to the excess, if any, of the Fair Market Value of the Shares underlying the Option
being exercised, on the date of exercise, over the exercise price of the Option for such Shares. |
| (iv) | Incentive Stock Options. Notwithstanding anything in the Plan to the contrary, the following additional provisions shall apply
to the grant of stock options which are intended to qualify as Incentive Stock Options. |
| (A) | The aggregate number of Shares that may be issued under all Incentive Stock Options under the Plan shall be 2,500,000 Shares. |
| (B) | To the extent that the aggregate Fair Market Value (determined at the time of grant) of the Shares with respect to which Incentive
Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans
of the Company and any Affiliates) exceeds $100,000 (or such other limit established in the Code) or otherwise does not comply with the
rules governing Incentive Stock Options, the Options or portions thereof that exceed such limit (according to the order in which
they were granted) or otherwise do not comply with such rules will be treated as Non-Qualified Stock Options, notwithstanding any
contrary provision of the applicable Award Agreement(s). |
| (C) | All Incentive Stock Options must be granted within ten years from the earlier of the date on which this Plan was adopted by the Board
or the date this Plan was approved by the shareholders of the Company. |
| (D) | Unless sooner exercised, all Incentive Stock Options shall expire and no longer be exercisable no later than 10 years after the date
of grant; provided, however, that in the case of a grant of an Incentive Stock Option to a Participant who, at the time
such Option is granted, owns (within the meaning of Section 422 of the Code) stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or of its Affiliates, such Incentive Stock Option shall expire and no longer be exercisable
no later than five years from the date of grant. |
| (E) | The purchase price per Share for an Incentive Stock Option shall be not less than 100% of the Fair Market Value of a Share on the
date of grant of the Incentive Stock Option; provided, however, that, in the case of the grant of an Incentive Stock Option to a Participant
who, at the time such Option is granted, owns (within the meaning of Section 422 of the Code) shares possessing more than 10% of
the total combined voting power of all classes of shares of the Company or of its Affiliates, the purchase price per Share purchasable
under an Incentive Stock Option shall be not less than 110% of the Fair Market Value of a Share on the date of grant of the Incentive
Stock Option. |
| (F) | Any Incentive Stock Option authorized under the Plan shall contain such other provisions as the Committee shall deem advisable, but
shall in all events be consistent with and contain all provisions required in order to qualify the Option as an Incentive Stock Option. |
(b) Stock
Appreciation Rights. The Committee is hereby authorized to grant Stock Appreciation Rights to Eligible Persons subject to the
terms of the Plan and any applicable Award Agreement. A Stock Appreciation Right granted under the Plan shall confer on the holder
thereof a right to receive upon exercise thereof the excess of (i) the Fair Market Value of one Share on the date of exercise
over (ii) the grant price of the Stock Appreciation Right as specified by the Committee, which price shall not be less than
100% of the Fair Market Value of one Share on the date of grant of the Stock Appreciation Right; provided, however, that
the Committee may designate a grant price below Fair Market Value on the date of grant if the Stock Appreciation Right is granted in
substitution for a stock appreciation right previously granted by an entity that is acquired by or merged with the Company or an
Affiliate. Subject to the terms of the Plan and any applicable Award Agreement, the grant price, term, methods of exercise, dates of
exercise, methods of settlement and any other terms and conditions of any Stock Appreciation Right shall be as determined by the
Committee (except that the term of each Stock Appreciation Right shall be subject to the same limitations in
Section 6(a)(ii) applicable to Options). The Committee may impose such conditions or restrictions on the exercise of any
Stock Appreciation Right as it may deem appropriate.
(c) Restricted
Stock and Restricted Stock Units. The Committee is hereby authorized to grant an Award of Restricted Stock and Restricted Stock Units
to Eligible Persons with the following terms and conditions and with such additional terms and conditions not inconsistent with the provisions
of the Plan as the Committee shall determine:
| (i) | Restrictions. Shares of Restricted Stock and Restricted Stock Units shall be subject to such restrictions as the Committee
may impose (including, without limitation, any limitation on the right to vote a Share of Restricted Stock or the right to receive any
dividend or other right or property with respect thereto), which restrictions may lapse separately or in combination at such time or times,
in such installments or otherwise as the Committee may deem appropriate. For purposes of clarity and without limiting the Committee’s
general authority under Section 3(a) but subject to any specific limitations in Sections 6 and 7, vesting of such Awards may,
at the Committee’s discretion, be conditioned upon the Participant’s completion of a specified period of service with the
Company or an Affiliate, or upon the achievement of one or more performance goals established by the Committee, or upon any combination
of service-based and performance-based conditions. Notwithstanding the foregoing, rights to dividend or Dividend Equivalent payments shall
be subject to the limitations described in Section 6(d). |
| (ii) | Issuance and Delivery of Shares. Any Restricted Stock granted under the Plan shall be issued at the time such Awards are granted
and may be evidenced in such manner as the Committee may deem appropriate, including book entry registration or issuance of a stock certificate
or certificates, which certificate or certificates shall be held by the Company or held in nominee name by the stock transfer agent or
brokerage service selected by the Company to provide such services for the Plan. Such certificate or certificates shall be registered
in the name of the Participant and shall bear an appropriate legend referring to the restrictions applicable to such Restricted Stock.
Shares representing Restricted Stock that are no longer subject to restrictions shall be delivered (including by updating the book entry
registration) to the Participant promptly after the applicable restrictions lapse or are waived. In the case of Restricted Stock Units,
no Shares shall be issued at the time such Awards are granted. Upon the lapse or waiver of restrictions and the restricted
period relating to Restricted Stock Units evidencing the right to receive Shares, such Shares shall be issued and delivered to the holder
of the Restricted Stock Units. |
(d) Dividend
Equivalents. The Committee is hereby authorized to grant Dividend Equivalents to Eligible Persons under which the Participant shall
be entitled to receive payments (in cash, Shares, other securities, other Awards or other property as determined in the discretion of
the Committee) equivalent to the amount of cash dividends paid by the Company to holders of Shares with respect to a number of Shares
determined by the Committee. Subject to the terms of the Plan and any applicable Award Agreement, such Dividend Equivalents may have such
terms and conditions as the Committee shall determine. Notwithstanding the foregoing, the Committee may not grant Dividend Equivalents
to Eligible Persons in connection with grants of Options, Stock Appreciation Rights or other Awards the value of which is based solely
on an increase in the value of the Shares after the grant of such Award.
(e) Other
Stock-Based Awards. The Committee is hereby authorized to grant to Eligible Persons such other Awards that are denominated or payable
in, valued in whole or in part by reference to, or otherwise based on or related to, Shares (including, without limitation, securities
convertible into Shares), as are deemed by the Committee to be consistent with the purpose of the Plan. The Committee shall determine
the terms and conditions of such Awards, subject to the terms of the Plan and any applicable Award Agreement. No Award issued under this
section shall contain a purchase right or an option-like exercise feature.
| (i) | Consideration
for Awards. Awards may be granted for no cash consideration or for any cash or other
consideration as may be determined by the Committee or required by applicable law; provided
however that upon the exercise, conversion or settlement of any Awards, Shares may not be
issued until the full amount of the consideration, fixed by the Board in accordance with
applicable law, has been paid; and provided further however that the Board has satisfied
itself that the value of the consideration fixed equals or exceeds the aggregate value of
the Shares issued, and the value attributed to the consideration does not exceed the fair
market value of the consideration. |
| (ii) | Awards May Be Granted Separately or Together. Awards may, in the discretion of the Committee, be granted either alone
or in addition to, in tandem with or in substitution for any other Award or any award granted under any other plan of the Company or any
Affiliate. Awards granted in addition to or in tandem with other Awards or in addition to or in tandem with awards granted under any other
plan of the Company or any Affiliate may be granted either at the same time as or at a different time from the grant of such other Awards
or awards. |
| (iii) | Limits on Transfer of Awards. No Award (other than fully vested and unrestricted Shares issued pursuant to any Award) and no
right under any such Award shall be transferable by a Participant other than by will or by the laws of descent and distribution, and no
Award (other than fully vested and unrestricted Shares issued pursuant to any Award) or right under any such Award may be pledged, alienated,
attached or otherwise encumbered, and any purported pledge, alienation, attachment or encumbrance thereof shall be void and unenforceable
against the Company or any Affiliate. The Committee shall have the discretion to permit the transfer of Awards; provided, however,
that such transfers shall be in accordance with the rules of Form S-8 (e.g., limited to immediate family members of Participants,
trusts and partnerships established for the primary benefit of such family members or to charitable organizations); and provided, further,
that such transfers shall not be made for consideration to the Participant. The Committee may also establish procedures as it deems
appropriate for a Participant to designate a person or persons, as beneficiary or beneficiaries, to exercise the rights of the Participant
and receive any property distributable with respect to any Award in the event of the Participant’s death. |
| (iv) | Restrictions; Securities Exchange Listing. All Shares or other securities delivered under the Plan pursuant to any Award or
the exercise thereof shall be subject to such restrictions as the Committee may deem advisable under the Plan, applicable federal, state
or provincial securities laws or other laws, rules or and regulatory requirements, and the Committee may cause appropriate entries
to be made with respect to, or legends to be placed on the certificates for, such Shares or other securities to reflect such restrictions.
The Company shall not be required to deliver any Shares or other securities covered by an Award unless and until the requirements of any
federal, state or provincial securities laws or other laws, rules or regulations (including the rules of any securities exchange)
as may be determined by the Company to be applicable are satisfied. |
| (v) | Prohibition on Option and Stock Appreciation Right Repricing. Except as provided in Section 4(c) hereof, the Committee
may not, without prior approval of the Company’s shareholders, seek to effect any re-pricing of any previously granted, “underwater”
Option or Stock Appreciation Right by: (i) amending or modifying the terms of the Option or Stock Appreciation Right to lower the
exercise price; (ii) canceling the underwater Option or Stock Appreciation Right and granting either (A) replacement Options
or Stock Appreciation Rights having a lower exercise price; or (B) Restricted Stock, Restricted
Stock Units or Other Stock-Based Award in exchange; or (iii) cancelling or repurchasing the underwater Option or Stock Appreciation
Right for cash or other securities. An Option or Stock Appreciation Right will be deemed to be “underwater” at any time when
the Fair Market Value of the Shares covered by such Award is less than the exercise price of the Award. |
| (vi) | Section 409A Provisions. Notwithstanding anything in the Plan or any Award Agreement to the contrary, to the extent that
any amount or benefit that constitutes “deferred compensation” to a Participant under Section 409A of the Code and applicable
guidance thereunder is otherwise payable or distributable to a Participant under the Plan or any Award Agreement solely by reason of the
occurrence of a Change of Control or due to the Participant’s disability or “separation from service” (as such term
is defined under Section 409A), such amount or benefit will not be payable or distributable to the Participant by reason of such
circumstance unless the Committee determines in good faith that (i) the circumstances giving rise to such Change of Control, disability
or separation from service meet the definition of a change in ownership or control, disability or separation from service, as the case
may be, in Section 409A(a)(2)(A) of the Code and applicable proposed or final regulations, or (ii) the payment or distribution
of such amount or benefit would be exempt from the application of Section 409A by reason of the short-term deferral exemption or
otherwise. Any payment or distribution that otherwise would be made to a Participant who is a Specified Employee (as determined by the
Committee in good faith) on account of separation from service may not be made before the date which is 6 months after the date of the
Specified Employee’s separation from service (or if earlier, upon the Specified Employee’s death) unless the payment or distribution
is exempt from the application of Section 409A by reason of the short-term deferral exemption or otherwise. |
| (vii) | Treatment of Awards Upon Corporate Transaction. No Award Agreement shall accelerate the exercisability of any Award or the
lapse of restrictions relating to any Award in connection with any corporate transaction described in Section 7(b) other than
a Change of Control, and such acceleration shall only occur upon the consummation of (or effective immediately prior to the consummation
of, provided that the consummation subsequently occurs) a Change of Control. |
Section 7. Amendment
and Termination; Corrections.
(a) Amendments
to the Plan. The Board may amend, alter, suspend, discontinue or terminate the Plan at any time; provided, however, that, notwithstanding
any other provision of the Plan or any Award Agreement, prior approval of the shareholders of the Company shall be required for any amendment
to the Plan that:
| (i) | requires shareholder approval under federal, state or provincial securities laws, or the rules or regulations of the Securities
and Exchange Commission, the NYSE American or any other securities exchange, in each case, that are applicable to the Company; |
| (ii) | increases the number of shares authorized under the Plan as specified in Section 4(a) of the Plan; |
| (iii) | increases the annual dollar limit under Section 4(d) of the Plan; |
| (iv) | permits repricing of Options or Stock Appreciation Rights, which is currently prohibited by Section 6(f) of the Plan; |
| (v) | permits the award of Options or Stock Appreciation Rights at a price less than 100% of the Fair Market Value of a Share on the date
of grant of such Option or Stock Appreciation Right, contrary to the provisions of Sections 6(a)(i) and 6(b) of the Plan; and |
| (vi) | increases the maximum term permitted for Options and Stock Appreciation Rights as specified in Sections 6(a)(ii) and 6(b). |
(b) Amendments
to Awards; Corporate Transactions. The Committee may amend the terms of any previously granted Award, provided that no amendment to
the terms of any previously granted Award may (except as expressly provided in the Plan) materially and adversely alter or impair the
terms or conditions of the Award previously granted to a Participant under this Plan without the written consent of the Participant or
holder thereof. However, in the event of any reorganization, merger, consolidation, split up, spin off, combination, plan of arrangement,
take-over bid or tender offer, repurchase or exchange of Shares or other securities of the Company or any other similar corporate transaction
or event involving the Company (or the Company shall enter into a written agreement to undergo such a transaction or event), the Committee
or the Board may, in its sole discretion, provide for any of the following to be effective upon the consummation of the event (or effective
immediately prior to the consummation of the event, provided that the consummation of the event subsequently occurs), and no action taken
under this Section 7(b) shall be deemed to impair or otherwise adversely alter the rights of any holder of an Award or beneficiary
thereof:
| (i) | either (A) termination of the Award, whether or not vested, in exchange for an amount of cash and/or other property, if any,
equal to the amount that would have been attained upon the exercise of the vested portion of the Award or realization of the Participant’s
vested rights (and, for the avoidance of doubt, if, as of the date of the occurrence of the transaction or event described in this Section 7(b)(i)(A),
the Committee or the Board determines in good faith that no amount would have been attained upon the exercise of the Award or realization
of the Participant’s rights, then the Award may be terminated by the Company without any payment) or (B) the replacement of
the Award with other similar rights or property selected by the Committee or the Board, with appropriate adjustments as to the number
and kind of shares and prices; |
| (ii) | that the Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for
by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with
appropriate adjustments as to the number and kind of shares and prices; |
| (iii) | that, subject the limitations in Section 6(f), the Award shall be exercisable or payable or fully vested with respect to all
Shares covered thereby, notwithstanding anything to the contrary in the applicable Award Agreement; or |
| (iv) | that the Award cannot vest, be exercised or become payable after a date certain in the future, which may be the effective date of
the event; |
(c) Correction
of Defects, Omissions and Inconsistencies. The Committee, without prior approval of the shareholders of the Company, may correct any
defect, supply any omission or reconcile any inconsistency in the Plan or in any Award or Award Agreement in the manner and to the extent
it shall deem desirable to implement or maintain the effectiveness of the Plan.
Section 8. Income
Tax Withholding.
In order to comply with all
applicable federal, state, local or foreign income tax laws or regulations, the Company may take such action or make such arrangements
as it deems appropriate to ensure that all applicable federal, provincial, state, local or foreign payroll, withholding, income or other
taxes, which are the sole and absolute responsibility of a Participant, are withheld, deducted or collected from such Participant. Without
limiting the foregoing, in order to assist a Participant in paying all or a portion of the applicable taxes to be withheld or collected
upon exercise or receipt of (or the lapse of restrictions relating to) an Award, the Committee, in its discretion and subject to such
additional terms and conditions as it may adopt, may permit the Participant to satisfy such tax obligation by (a) except in the case
of Awards issued to Participants subject to taxation in Canada, electing to have the Company withhold a portion of the Shares otherwise
to be delivered upon exercise or receipt of (or the lapse of restrictions relating to) such Award with a Fair Market Value equal to the
amount of such taxes (subject to any applicable limitations under ASC Topic 718 to avoid adverse accounting treatment) or (b) delivering
to the Company Shares other than Shares issuable upon exercise or receipt of (or the lapse of restrictions relating to) such Award with
a Fair Market Value equal to the amount of such taxes. The election, if any, must be made on or before the date that the amount of tax
to be withheld is determined.
Section 9. General
Provisions.
(a) No
Rights to Awards. No Eligible Person, Participant or other Person shall have any claim to be granted any Award under the Plan, and
there is no obligation for uniformity of treatment of Eligible Persons, Participants or holders or beneficiaries of Awards under the Plan.
The terms and conditions of Awards need not be the same with respect to any Participant or with respect to different Participants.
(b) Award
Agreements. No Participant shall have rights under an Award granted to such Participant unless and until an Award Agreement
shall have been signed by the Participant, or until such Award Agreement is delivered and accepted through an electronic medium in
accordance with procedures established by the Company. An Award Agreement need not be signed by a representative of the Company
unless required by the Committee. Each Award Agreement shall be subject to the applicable terms and conditions of the Plan and any
other terms and conditions (not inconsistent with the Plan) determined by the Committee, and shall be legally binding and
enforceable against the Company and the Participant.
(c) Plan
Provisions Control. In the event that any provision of an Award Agreement conflicts with or is inconsistent in any respect with the
terms of the Plan as set forth herein or subsequently amended, the terms of the Plan shall control.
(d) No
Rights of Shareholders. Neither a Participant nor the Participant’s legal representative shall be, or have any of the rights
and privileges of, a shareholder of the Company with respect to any Shares issuable upon the grant, exercise or payment of any Award,
in whole or in part, unless and until such Shares have been issued (and further subject to any restrictions thereon as provided in the
applicable Award).
(e) No
Limit on Other Compensation Plans or Arrangements. Nothing contained in the Plan shall prevent the Company or any Affiliate from adopting
or continuing in effect other or additional compensation plans or arrangements, and such plans or arrangements may be either generally
applicable or applicable only in specific cases.
(f) No
Right to Employment or Directorship. The grant of an Award shall not be construed as giving a Participant the right to be retained
as an employee of the Company or any Affiliate, or a Director to be retained as a Director, nor will it affect in any way the right of
the Company or an Affiliate to terminate a Participant’s employment at any time, with or without cause. In addition, the Company
or an Affiliate may at any time dismiss a Participant from employment free from any liability or any claim under the Plan or any Award,
unless otherwise expressly provided in the Plan or in any Award Agreement.
(g) Governing
Law. The Plan and each Award Agreement issued pursuant to the Plan shall be governed by the laws of the province of British Columbia.
(h) Severability.
If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or would
disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended
to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination of the Committee, materially
altering the purpose or intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction or Award, and the remainder
of the Plan or any such Award shall remain in full force and effect.
(i) No
Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind
or a fiduciary relationship between the Company or any Affiliate and a Participant or any other Person. To the extent that any Person
acquires a right to receive payments from the Company or any Affiliate pursuant to an Award, such right shall be no greater than the right
of any unsecured general creditor of the Company or any Affiliate.
(j) No
Fractional Shares. No fractional Shares shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine
whether cash shall be paid in lieu of any fractional Share or whether such fractional Share or any rights thereto shall be canceled, terminated
or otherwise eliminated.
(k) Headings.
Headings are given to the Sections and subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not
be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision thereof.
Section 10. Clawback
or Recoupment.
All Awards under this Plan
shall be subject to recovery or other penalties pursuant to (i) any Company clawback policy, as may be adopted or amended from time
to time, or (ii) any applicable law, rule or regulation or applicable stock exchange rule, including, without limitation, Section 304
of the Sarbanes-Oxley Act of 2002, Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any applicable
stock exchange listing rule adopted pursuant thereto.
Section 11. Effective
Date of the Plan; Effect on Prior Plan.
The Plan shall be subject
to approval by the shareholders of the Company at the annual meeting of shareholders of the Company to be held on May 10, 2023 and
the Plan shall be effective as of the date of such shareholder approval.
Section 12. Term
of the Plan.
Unless otherwise determined
by the Board to terminate earlier, the Plan shall terminate at midnight on May 10, 2033. Awards may be granted under the Plan until
the earlier to occur of termination of the Plan or the date on which all Shares available for Awards under the Plan have been purchased
or acquired; provided, however, that Incentive Stock Options may not be granted following the 10-year anniversary of the Board’s
adoption of the Plan. As long as any Awards are outstanding under the Plan, the terms of the Plan shall govern such Awards.
Adopted by the Board of Directors on March 30, 2023 subject to
and effective upon shareholder approval.
Exhibit 5.1
 |
|
DuMoulin Black LLP
10th Floor 595 Howe Street
Vancouver BC Canada V6C 2T5
www.dumoulinblack.com
Telephone No. (604) 687-1224 |
File No. 5653-001
June 30, 2023
Austin Gold Corp.
9th Floor, 1021 West Hastings Street
Vancouver, British Columbia V6E 0C3
Dear Sirs/Mesdames:
| Re: | Austin Gold Corp. (the "Company") Form S-8 Registration Statement |
We have acted as local counsel in the Province
of British Columbia to the Company. We understand the Company has adopted an equity incentive plan effective as of May 10, 2023 (the
"Equity Plan") pursuant to which the Company may grant to certain eligible persons, at the discretion of the Committee
(as defined in the Equity Plan): (i) stock options; (ii) stock appreciation rights; (iii) restricted stock and restricted stock units
(including performance-based restricted stock and stock units); (iv) dividend equivalents; and (v) other stock-based awards (collectively,
"Awards"). We further understand that the Company has prepared a Registration Statement on Form S-8 (the “Registration
Statement”) under the United States Securities Act of 1933, as amended (the “Act”). The Registration Statement
relates to the issuance by the Company of up to 2,733,842 common shares of the Company issuable upon the exercise or redemption of Awards
granted under the Equity Plan (the “Shares”), which includes 233,842 unissued common shares in the capital of the
Company remaining under the Company’s prior stock plans as of May 10, 2023, as more fully described in the Registration Statement.
All capitalized terms not defined herein shall have the meanings ascribed thereto in the Registration Statement.
We understand that the maximum number of common
shares in the capital of the Company that may be issued pursuant to all Awards under the Equity Plan is 2,500,000, plus any unissued common
shares in the capital of the Company remaining under the Company’s prior stock plans as of May 10, 2023.
For the purposes of our opinion, we have examined
originals, or copies certified or otherwise identified to our satisfaction, of:
| 1. | a certificate of an officer of the Company dated the date hereof (the “Officer’s Certificate”); |
| | | |
| 2. | the Registration Statement (excluding the documents incorporated by reference under Part II, Item 3 of
the Registration Statement); |
| | | |
| 3. | the Notice of Articles and Articles of the Company (collectively, the "Constating Documents");
and |
| | | |
Whenever our opinion refers to shares of the Company,
whether issued or to be issued, as being “fully paid and non-assessable”, such opinion indicates that the holder of
such shares will not be liable to contribute any further amounts to the Company by virtue of its status as a holder of such shares, either
in order to complete payment for the shares or to generally satisfy claims of creditors of the Company. No opinion is expressed as to
actual receipt by the Company of the consideration for the issuance of such shares or as to the adequacy of any consideration received.
For the purposes of our opinion below, we have
relied solely on the Officer’s Certificate in respect of certain factual matters.
The opinions expressed herein are subject to the
following exceptions, qualifications and assumptions:
| (a) | we have assumed the genuineness of all signatures, the legal capacity at all relevant times of any individual
signing such documents, the authenticity and completeness of all documents submitted to us as originals, the conformity to authentic original
documents of all documents submitted to us as certified or photostatic copies or facsimiles (including scanned copies provided by email),
and the authenticity of the originals of such certified or photostatic copies or facsimiles and the truth and accuracy of all corporate
records of the Company and certificates of officers provided to us by the Company; and |
| (b) | we have assumed that, at all relevant times, the Constating Documents, the resolutions of the directors
of the Company upon which we have relied and the Equity Plan have not been or will not be varied, amended or revoked in any respect. |
We are not qualified to practice law in the United
States of America. We are solicitors qualified to practice law in the Province of British Columbia only and we express no opinion as to
the laws of any jurisdiction, or as to any matters governed by the laws of any jurisdiction, other than the laws of the Province of British
Columbia and the laws of Canada applicable therein. Our opinion herein is based on the laws of the Province of British Columbia and the
laws of Canada applicable therein (and the interpretation thereof) as such laws are in effect and are construed as of the date hereof
(the “Effective Date”). Our opinion herein does not take into account any proposed rules or legislative changes that
may come into force following the Effective Date and we disclaim any obligation or undertaking to update our opinion or advise any person
of any change in law or fact that may come to our attention after the Effective Date.
Based and relying upon the foregoing, we are of
the opinion that as at the date hereof, the Shares issuable upon the exercise or redemption (as the case may be) of Awards outstanding
under the Equity Plan, when issued in accordance with the terms of the Equity Plan and any applicable award agreements, including the
Company having received the requisite consideration therefor and all necessary corporate resolutions having been passed, will be validly
issued as fully paid and non-assessable common shares in the capital of the Company.
The above opinion is rendered solely in connection
with the transactions described above and may not be used, circulated, quoted from or otherwise referred to for any other purpose without
our prior written consent. Further, the above opinion is limited to the matters stated herein, and no opinion or belief is implied or
should be inferred beyond the matters expressly stated herein. For greater certainty, we express no opinion as to matters of tax or as
to the contents of, or the disclosure in, the Registration Statement, or whether the Registration Statement provides full, true and plain
disclosure of all material facts relating to the Company within the meaning of applicable securities laws.
We hereby consent to the use of this opinion as
Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby admit that we are acting within the category of persons
whose consent is required under Section 7 of the Act or the rules or regulations of the United States Securities and Exchange Commission
thereunder.
Yours truly,
/s/ DuMoulin Black LLP
Exhibit 23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference
into the registration statement on Form S-8 of Austin Gold Corp. (the “Company”) being filed with the United States Securities
and Exchange Commission (the “SEC”) on June 30, 2023 (the “Registration Statement”) of (i) our report dated March
15, 2023, with respect to the consolidated financial statements of the Company as of December 31, 2022, December 31, 2021 and January
1, 2021 for the years ended December 31, 2022 and 2021, and (ii) our report dated March 15, 2022, with respect to the consolidated financial
statements of the Company as of December 31, 2021 and 2020 and for the year ended December 31, 2021 and the period from incorporation
on April 21, 2020 to December 31, 2020, included in the Company’s Annual Report on Form 20-F as filed with the SEC on March 29,
2023 and incorporated by reference into the Registration Statement.
CHARTERED PROFESSIONAL ACCOUNTANTS
Vancouver, British Columbia, Canada
June 30, 2023
Exhibit 23.3
CONSENT OF BARBARA CARROLL
The undersigned hereby consents to all references
to the undersigned’s name included in or incorporated by reference in this registration statement on Form S-8 of Austin Gold Corp.
in connection with certain technical and scientific information described therein.
| /s/Barbara Carroll |
|
| Barbara Carroll |
|
| |
|
| Date: June 30, 2023 |
|
Exhibit 23.4
CONSENT OF ROBERT HATCH
The undersigned hereby consents to all references
to the undersigned’s name included in or incorporated by reference in this registration statement on Form S-8 of Austin Gold Corp.
in connection with certain technical and scientific information described therein.
| /s/
Robert Hatch |
|
| Robert Hatch |
|
| |
|
| Date: June 30, 2023 |
|
Exhibit 107
CALCULATION OF FILING FEE TABLE
FORM S-8
(Form Type)
AUSTIN GOLD CORP.
(Exact Name of Registrant as Specified in its Charter)
Table I: Newly Registered Securities
Security
Type |
Security
Class
Title |
Fee
Calculation
Rule |
Amount
Registered (1) |
|
Proposed
Maximum
Offering
Price Per
Unit (3) |
Maximum
Aggregate
Offering
Price (4) |
Fee Rate |
Amount of
Registration
Fee (5) |
| Equity |
Common Shares, no par value per share |
457(c) and Rule 457(h |
2,733,842 |
(2) |
$0.8770 |
$2,397,579.43 |
0.0001102 |
$264.21 |
| Total Offering Amounts |
|
|
2,733,842 |
|
$0.8770 |
$2,397,579.43 |
0.0001102 |
$264.21 |
| Total Fees Previously Paid |
|
|
|
|
|
|
|
$0.00 |
| Total Fee Offsets |
|
|
|
|
|
|
|
$0.00 |
| Net Fee Due |
|
|
|
|
|
|
|
$264.21 |
| (1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement on Form S-8 (“Registration Statement”) shall also cover any additional shares of the common stock of Austin Gold Corp. (the “Registrant”) that become issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of the outstanding shares of the Registrant’s common stock. |
| |
|
| (2) |
Represents shares of Common Stock of the Registrant issuable under the Plan. |
| |
|
| (3) |
Estimated solely for purposes of calculating the registration fee pursuant to Rules 457 (c) and (h) of the Securities Act on the basis of the average of the high and low prices for the Registrant's Common Shares as reported on the NYSE American on June 27, 2023. |
| |
|
| (4) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act. Calculated in accordance with Section 6 of the Securities Act and Rule 457 under the Securities Act by multiplying 0.0001102 and the proposed maximum aggregate offering price. |
| |
|
| (5) |
The Registrant does not have any fee offsets. |
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