Item 6. Indemnification of Directors and Officers.
We are subject to the
provisions of Part 5, Division 5 of the Business Corporations Act (British Columbia), or “BCBCA”. Under Section 160 of
the BCBCA, the Registrant may, subject to Section 163 of the BCBCA:
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indemnify an individual who:
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is or was a director or officer of our company;
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is or was a director or officer of another corporation (i) at a time when such corporation is or was an affiliate of our company; or (ii) at our request, or
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at our request, is or was, or holds or held a position equivalent to that of, a director or officer of a partnership, trust, joint venture or other unincorporated entity,
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and including, subject to certain limited exceptions, the heirs and personal or other legal representatives of that individual (collectively,
an “eligible party”), against all eligible penalties to which the eligible party is or may be liable; and
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after final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by an eligible party in respect of that proceeding, where:
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“eligible penalty” means a judgment, penalty or fine awarded or imposed in, or an amount paid in settlement of, and eligible proceeding.
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“eligible proceeding” means a proceeding in which an eligible party or any of the heirs and personal or other legal representatives of the eligible party, by reason of the eligible party being or having been a director or officer of, or holding or having held a position equivalent to that of a director or officer of, our company or an associated corporation (a) is or may be joined as a party, or
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(b) is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding.
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“proceeding” includes any legal proceeding or investigative action, whether current, threatened, pending or completed.
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Under Section 161
of the BCBCA, and subject to Section 163 of the BCBCA, we must, after the final disposition of an eligible proceeding, pay the expenses
actually and reasonably incurred by an eligible party in respect of that proceeding if the eligible party (a) has not been reimbursed
for those expenses, and (b) is wholly successful, on the merits or otherwise, in the outcome of the proceeding or is substantially
successful on the merits in the outcome of the proceeding.
Under Section 162
of the BCBCA, and subject to Section 163 of the BCBCA, we may pay, as they are incurred in advance of the final disposition of an
eligible proceeding, the expenses actually and reasonably incurred by an eligible party in respect of the proceeding, provided that we
must not make such payments unless we first receive from the eligible party a written undertaking that, if it is ultimately determined
that the payment of expenses is prohibited under Section 163 of the BCBCA, the eligible party will repay the amounts advanced.
Under Section 163
of the BCBCA, we must not indemnify an eligible party against eligible penalties to which the eligible party is or may be liable or pay
the expenses of an eligible party in respect of that proceeding under Sections 160, 161 or 162 of the BCBCA, as the case may be, if any
of the following circumstances apply:
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if the indemnity or payment is made under an earlier agreement to indemnify or pay expenses and, at the time that the agreement to indemnify or pay expenses was made, we were prohibited from giving the indemnity or paying the expenses by our memorandum or articles;
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if the indemnity or payment is made otherwise than under an earlier agreement to indemnify or pay expenses and, at the time that the indemnity or payment is made, we are prohibited from giving the indemnity or paying the expenses by our memorandum or articles;
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if, in relation to the subject matter of the eligible proceeding, the eligible party did not act honestly and in good faith with a view to the best interests of our company or the associated corporation, as the case may be; or
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in the case of an eligible proceeding other than a civil proceeding, if the eligible party did not have reasonable grounds for believing that the eligible party’s conduct in respect of which the proceeding was brought was lawful.
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If an eligible proceeding
is brought against an eligible party by or on behalf of our company or by or on behalf of an associated corporation, we must not either
indemnify the eligible party against eligible penalties to which the eligible party is or may be liable, or pay the expenses of the eligible
party under Sections 160, 161 or 162 of the BCBCA, as the case may be, in respect of the proceeding.
Under Section 164
of the BCBCA, and despite any other provision of Part 5, Division 5 of the BCBCA and whether or not payment of expenses or indemnification
has been sought, authorized or declined under Part 5, Division 5 of the BCBCA, on application of our company or an eligible party, the
Supreme Court of British Columbia may do one or more of the following:
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order us to indemnify an eligible party against any liability incurred by the eligible party in respect of an eligible proceeding;
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order us to pay some or all of the expenses incurred by an eligible party in respect of an eligible proceeding;
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order the enforcement of, or payment under, an agreement of indemnification entered into by us;
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order us to pay some or all of the expenses actually and reasonably incurred by any person in obtaining an order under Section 164 of the BCBCA; or
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make any other order the court considers appropriate.
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Section 165 of the
BCBCA provides that we may purchase and maintain insurance for the benefit of an eligible party or the heirs and personal or other legal
representatives of the eligible party against any liability that may be incurred by reason of the eligible party being or having been
a director or officer of, or holding or having held a position equivalent to that of a director or officer of, our company or an associated
corporation.
Under our articles, and
subject to the BCBCA, we must indemnify our directors, former directors or alternate directors and his or her heirs and legal personal
representatives against all eligible penalties to which such person is or may be liable, and we must, after the final disposition of
an eligible proceeding, pay the expenses actually and reasonably incurred by such person in respect of that proceeding. Each director
and alternate director is deemed to have contracted with our company on the terms of the indemnity contained in our articles.
Under our articles, and
subject to the BCBCA, we may agree to indemnify and may indemnify any person (including an eligible party) against eligible penalties
and pay expenses incurred in connection with the performance of services by that person for us. We have entered into indemnity agreements
with our directors and certain of our officers.
Pursuant to our articles,
the failure of an eligible party to comply with the BCBCA or our articles does not, of itself, invalidate any indemnity to which he or
she is entitled under our articles.
Under our articles, we
may purchase and maintain insurance for the benefit of any person (or his or her heirs or legal personal representatives) who:
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is or was our director, alternate director, officer, employee or agent;
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is or was a director, alternate director, officer, employee or agent of a corporation at a time when the corporation is or was our affiliate;
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at our request, is or was a director, alternate director, officer, employee or agent of a corporation or of a partnership, trust, joint venture or other unincorporated entity; or
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at our request, holds or held a position equivalent to that of a director, alternate director or officer of a partnership, trust, joint venture or other unincorporated entity;
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against any liability incurred by him or her as such director, alternate director, officer, employee or agent or person who holds or held such equivalent position.
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In addition, we have entered
into an indemnification agreement with each of our directors and officers, which requires us to indemnify them.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 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 act and is therefore unenforceable.
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 a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement;
(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 the undertakings set forth
in paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in 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.
(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 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.