Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement of a Foreign Private Issuer — Form F-1 Filing Table of Contents
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1: F-1/A Pre-Effective Amendment to Registration Statement HTML 896K
of a Foreign Private Issuer
2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 20K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 97K
4: EX-10.1 Material Contract HTML 174K
12: EX-10.10 Material Contract HTML 55K
13: EX-10.11 Material Contract HTML 80K
14: EX-10.15 Material Contract HTML 77K
5: EX-10.2 Material Contract HTML 121K
6: EX-10.3 Material Contract HTML 110K
7: EX-10.5 Material Contract HTML 58K
8: EX-10.6 Material Contract HTML 62K
9: EX-10.7 Material Contract HTML 48K
10: EX-10.8 Material Contract HTML 36K
11: EX-10.9 Material Contract HTML 73K
to promote a greater alignment of interests between directors of the Company
and the shareholders of the Company; and
(b)
to provide a compensation system for directors that, together with the other
director compensation mechanisms of the Company, is reflective of the responsibility,
commitment and risk accompanying Board membership and the performance of the duties
required of the various committees of the Board.
1.2 Definitions
As used in the Plan, the following terms have the following meanings:
(a)
“Account” has the meaning ascribed thereto in Section 2.5;
(b)
“Affiliate” means an affiliate of the Company, as applicable, as the term
“affiliate” is defined in paragraph 8 of the Canada Revenue Agency’s interpretation
bulletin IT-337R4, Retiring Allowances;
(c)
“Annual Remuneration” means all amounts payable to an Eligible Director by the
Company in respect of the services provided by the Eligible Director to the Company in
connection with such Eligible Director’s service on the Board in a fiscal year,
including without limitation (i) the annual base retainer fee for serving as a
director, (ii) the annual retainer fee for serving as a member of a Board committee;
and (iii) the annual retainer fee for chairing a Board committee but, for greater
certainty, excluding any meeting fees payable in respect of attendance at individual
meetings or any amounts received by an Eligible Director as a reimbursement for
expenses incurred in attending meetings, which amounts shall, unless otherwise
determined by the Board or the Committee, be payable Quarterly in arrears;
(d)
“Beneficiary” means an individual who, on the date of an Eligible Director’s
death, is the person who has been designated in accordance with Section 4.7 and the
laws applying to the Plan, or where no such individual has been validly designated by
the Eligible Director, or where the individual does not survive the Eligible Director,
the Eligible Director’s legal representative;
(e)
“Board” means those individuals who serve from time to time as the directors of
the Company;
(f)
“Code” means the United States Internal Revenue Code of 1986, as amended;
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(g)
“Committee” means the Compensation, Corporate Governance and Nominating
Committee of the Board, or such other persons designated by the Board;
(h)
“Common Share” means a common share of the Company;
(i)
“Company” means Photowatt Technologies Inc.;
(j)
“Conversion Date” means the date used to determine the Fair Market Value of a
Deferred Stock Unit for purposes of determining the number of Deferred Stock Units to
be credited to an Eligible Director under Section 2.3.1, which date shall, subject to
variation as determined by the Board or Committee taking into account the trading
blackout period applicable to the Company’s directors as specified in the Company’s
Insider Trading Policy, be the date of the sixth trading day on the Toronto Stock
Exchange following the announcement and release of the Company’s financial results for
each Quarter and, in any event, shall not be earlier than the first business day of the
year in respect of which the Deferred Stock Units are being provided;
(k)
“Corporate Transaction” means a merger, amalgamation or plan of arrangement
involving the Company, acquisition or take-over bid of the Company, or similar
transaction, in each case resulting in a Change of Control (as defined below), or sale
of all or substantially all of the assets of the Company. A “Change of Control” shall
occur in the event that any one person or entity, or more than one person or entity
acting as a group, acquires ownership of voting securities of the Company that,
together with voting securities already held by that person, entity and/or group,
constitutes in excess of 50% of the votes attaching to all outstanding voting
securities of the Company;
(l)
“Deferred Stock Unit” or “DSU” means a unit credited by the Company to an
Eligible Director by way of a bookkeeping entry in the books of the Company, as
determined by the Board, pursuant to the Plan, the value of which at any particular
date shall be the Fair Market Value at that date;
(m)
“Election Notice” means the written election in the form of Schedule A hereto;
(n)
“Eligible Director” means all directors of the Company who are not full-time
employees of the Company or any Affiliate
(o)
“Entitlement Date” has the meaning ascribed thereto in Section 3.1 or Section
3.2, as applicable;
(p)
“Fair Market Value” means, with respect to any particular date, the simple
average closing price of the Common Shares as traded on the stock exchange on
which the highest aggregate volume of Common Shares have traded on each of the five
trading days immediately preceding the particular date. In the event that the Common
Shares are not listed and posted for trading on any stock exchange, the Fair Market
Value shall be the fair market value of the Common Shares as
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determined by the Company in its sole discretion, acting reasonably and in good
faith;
(q)
“Plan” means this Photowatt Technologies Inc. Directors’ Deferred Stock Unit
Plan, as amended from time to time;
(r)
“Quarter” means a fiscal quarter of the Company, which, until changed by the
Company, shall be the three month period ending June 30, September 30, December 31 or
March 31 in any year and “Quarterly” means each “Quarter”;
(s)
“Redemption Amount” means the amount calculated by multiplying the number of
Deferred Stock Units in an Eligible Director’s Account by the Fair Market Value as of
the Redemption Date;
(t)
“Redemption Date” means the date which is the sixth trading day on the Toronto
Stock Exchange following the announcement and release by the Company of its financial
results for the Quarter in which the Termination Date occurred or, if the Common Shares
are then no longer listed on the Toronto Stock Exchange, the Redemption Date shall be
deemed to the Termination Date;
(u)
“Termination Date” means the date of (i) the voluntary resignation or
retirement of an Eligible Director from the Board; (ii) the death of an Eligible
Director; (iii) removal of an Eligible Director from the Board whether by shareholder
resolution or failure to achieve re-election, provided that the Eligible Director is
not then an employee of the Company or an employee or director of an Affiliate and
provided further that in the case of an Eligible Director who is a U.S. Taxpayer, the
Termination Date shall not be prior to the date the Eligible Director terminates
employment for purposes of section 409A of the Code;
(v)
“U.S. Taxpayer” means a citizen or resident of the United States for United
States federal income tax purposes.
If an Eligible Director should become an employee of the Company while remaining as a
director, his eligibility for the Plan shall be suspended effective the date of the commencement of
his employment and shall resume upon termination of such employment provided he continues as a
director of the Company. During the period of such ineligibility, such individual shall not be
entitled to receive or be credited with any Deferred Stock Units under the Plan, other than
dividend allocations under Section 2.4.
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1.5 Construction
In this Plan, all references to the masculine include the feminine; references to the singular
shall include the plural and vice versa, as the context shall require. If any provision of the
Plan or part hereof is determined to be void or unenforceable in whole or in part, such
determination shall not affect the validity or enforcement of any other provision or part thereof.
Headings wherever used herein are for reference purposes only and do not limit or extend the
meaning of the provisions contained herein. References to “Section” or “Sections” mean a section
or sections contained in the Plan unless expressly stated otherwise.
1.6 Administration
The Committee shall, in its sole and absolute discretion: (i) interpret and administer the
Plan; (ii) establish, amend and rescind any rules and regulations relating to the Plan; (iii) have
the power to delegate, on such terms as the Committee deems appropriate, any or all of its powers
hereunder to the Chief Financial Officer or Secretary of the Company; and (iv) make any other
determinations that the Committee deems necessary or desirable for the administration of the Plan.
The Committee may correct any defect or supply any omission or reconcile any inconsistency in the
Plan in the manner and to the extent the Committee deems, in its sole and absolute discretion,
necessary or desirable. Any decision of the Committee with respect to the administration and
interpretation of the Plan shall be conclusive and binding on the Eligible Director and any other
person claiming an entitlement or benefit through the Eligible Director. All expenses of
administration of the Plan shall be borne by the Company as determined by the Committee.
1.7 Governing Law
The Plan shall be governed by and construed in accordance with the laws of the Province of
Ontario and the federal laws of Canada applicable therein.
Section 2 Election Under the Plan
2.1 Payment of Annual Remuneration
Subject to Section 2.2 and such rules, regulations, approvals and conditions as the Committee
may impose, an Eligible Director may elect to receive his Annual Remuneration in the form of
Deferred Stock Units or cash or any combination thereof.
2.2 Method of Electing
(a)
To elect a form or forms of payment of Annual Remuneration for the Company’s
fiscal year commencing April 1, 2007 and each fiscal year thereafter, an Eligible
Director shall complete and deliver to the Secretary of the Company an initial Election
Notice by no later than March 31st, 2007, which shall apply to the Eligible
Director’s Annual Remuneration payable after the effective date of such election,
subject to the provisions of this Section 2.2(a).
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An Eligible Director may change the form or forms of payment of his Annual
Remuneration for a subsequent fiscal year by completing and delivering to the
Secretary of the Company a new Election Notice no later than the last day of the
Company’s preceding fiscal year. For greater certainty, the Committee may prescribe
election forms for use by Eligible Directors who are residents of a jurisdiction
other than Canada that differ from the election forms it prescribes for use by
Canadian resident Eligible Directors where the Committee determines it is necessary
or desirable to do so to obtain comparable treatment for the Plan, the Eligible
Directors or the Company under the laws or regulatory policies of such other
jurisdiction as is provided under the laws and regulatory policies of Canada and its
Provinces, provided that no election form prescribed for use by a non-resident of
Canada shall contain terms that would cause the Plan to cease to meet the
requirements of paragraph 6801(d) of the regulations under the Income Tax Act
(Canada) and any successor to such provisions.
(b)
An individual who becomes an Eligible Director during a year may elect the form
or forms of payment of Annual Remuneration earned in Quarters that commence after the
date the election is made by completing and delivering to the Secretary of the Company
and Election Notice. An Election Notice shall not be effective to require that Annual
Remuneration earned in the year in which the individual becomes an Eligible Director be
provided in the form of Deferred Stock Units if (i) such Election Notice is not
completed and delivered to the Secretary of the Company within 30 days after the
individual becomes an Eligible Director; or (ii) the individual previously participated
in this Plan or any other plan that is required to be aggregated with this Plan for
purposes of Section 409A of the Code.
2.3 Deferred Stock Units
2.3.1 Deferred Stock Units elected by an Eligible Director pursuant to the Plan shall be credited
to the Eligible Director’s Account as of the applicable Conversion Date. The number of Deferred
Stock Units (including fractional Deferred Stock Units) to be credited to an Eligible Director’s
Account as of a particular Conversion Date pursuant to this Section 2.3.1 shall be determined by
dividing the portion of that Eligible Director’s Annual Remuneration for the applicable period to
be satisfied by Deferred Stock Units by the Fair Market Value on the particular Conversion Date.
2.3.2 In addition to Deferred Stock Units granted pursuant to Section 2.3.1, the Board may, at
their complete discretion, award such number of Deferred Stock Units to an Eligible Director as the
Board deems advisable to provide the Eligible Director with appropriate equity-based compensation
for the services he or she renders to the Company. The Board shall determine the date on which
such Deferred Stock Units may be granted and the date as of which such Deferred Stock Units shall
be credited to an Eligible Director’s Account.
2.3.3 Deferred Stock Units granted under Section 2.3.1 or Section 2.3.2, together with any
additional Deferred Stock Units granted in respect thereof under Section 2.4, will be fully vested
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upon being credited to an Eligible Director’s Account and the Eligible Director’s entitlement to
payment of such Deferred Stock Units at his Termination Date shall not thereafter be subject to
satisfaction of any requirements as to any minimum period of membership on the Board..
2.4 Dividends
On any payment date for dividends paid on Common Shares, an Eligible Director shall be
credited with dividend equivalents in respect of Deferred Stock Units credited to the Eligible
Director’s Account as of the record date for payment of dividends. Such dividend equivalents shall
be converted into additional Deferred Stock Units (including fractional Deferred Stock Units) based
on the Fair Market Value as of the date such additional Deferred Stock Units are credited.
2.5 Eligible Director’s Account
The Company shall maintain in its books an account for each Eligible Director (an “Account”)
recording at all times the number of Deferred Stock Units standing to the credit of an Eligible
Director. Upon payment in satisfaction of Deferred Stock Units credited to an Eligible Director in
the manner described herein, such Deferred Stock Units shall be cancelled. A written confirmation
of the balance in each Eligible Director’s Account shall be provided by the Company to the Eligible
Director at least annually.
2.6 Adjustments and Reorganizations
In the event of any stock split, stock consolidation, combination or exchange of Common
Shares, Corporate Transaction, spin-off, dividend or other distribution of the Company’s assets to
shareholders, or any other change in the capital of the Company affecting Common Shares, such
proportionate adjustments, if any, as the Committee in its discretion may deem appropriate to
reflect such change, shall be made with respect to the number of Deferred Stock Units outstanding
under the Plan.
Section 3 Redemptions
3.1 Redemption of Deferred Stock Units
Subject to Sections 3.2 and 3.4 , an Eligible Director may elect up to two separate dates as
of which either a portion (specified in whole percentages or number of Deferred Stock Units on any
one date) or all of the Deferred Stock Units credited to the Eligible Director’s Account shall be
redeemed (each such date being an “Entitlement Date”) by filing one or two irrevocable written
redemption elections with the Secretary of the Company. No Entitlement Date elected by an Eligible
Director pursuant to this Section 3.1 shall be before the Eligible Director’s Termination Date or
later than December 15 of the calendar year commencing immediately after the Eligible Director’s
Termination Date. Where an Eligible Director does not elect a particular date or dates within the
permissible period set out above as his Entitlement Date or Entitlement Dates, as the case may be,
there shall be a single Entitlement Date for such Eligible Director which shall be the date,
subject to Sections 3.2 and 3.4, which is six months after the Eligible Director’s Termination
Date.
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3.2 Redemption of Deferred Stock Units – U.S. Taxpayers
Notwithstanding Section 3.1, in the case of an Eligible Director who is a U.S. Taxpayer,
subject to Section 3.4, his Entitlement Date shall be the date that is six months after his
Termination Date and all Deferred Stock Units Credited to such Eligible Director’s Account shall be
redeemed as of such date.
3.3 Payment of Deferred Stock Units
The value of the Deferred Stock Units redeemed by or in respect of an Eligible Director as of
an Entitlement Date shall, after deduction of any applicable taxes and other source deductions
required to be withheld by the Company, be paid to the Eligible Director or the Eligible Director’s
Beneficiary, as applicable as soon as practicable following such Entitlement Date.
3.4 Extended Entitlement Date
In the event that the Committee is unable, by an Eligible Director’s Entitlement Date, to
compute the final value of the Deferred Stock Units recorded in such Eligible Director’s Account by
reason of the fact that any data required in order to compute the market value of a Share has not
been made available to the Committee and such delay is not caused by the Eligible Director, then
the Entitlement Date shall be the next following trading day on which such data is made available
to the Committee.
3.5 Limitation on Extension of Entitlement Date
Notwithstanding any other provision of the Plan, all amounts payable to, or in respect of, an
Eligible Director hereunder shall be paid on or before December 31 of the calendar year commencing
immediately after the Eligible Director’s Termination Date.
Section 4 General
4.1 Unfunded Plan
Unless otherwise determined by the Committee, the Plan shall be unfunded. To the extent any
individual holds any rights by virtue of an election under the Plan, such rights (unless otherwise
determined by the Committee) shall be no greater than the rights of an unsecured general creditor
of the Company.
4.2 Successors and Assigns
The Plan shall be binding on all successors and permitted assigns of the Company and an
Eligible Director, including without limitation, the estate of such Eligible Director and the legal
representative of such estate, or any receiver or trustee in bankruptcy or representative of the
Company’s or the Eligible Director’s creditors.
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4.3 Plan Amendment
4.3.1 The Board may amend the Plan as it deems necessary or appropriate, but no such amendment
shall, without the consent of the Eligible Director or unless required by law, adversely affect the
rights of an Eligible Director with respect to any amount of Annual Remuneration in respect of
which an Eligible Director has then elected to receive Deferred Stock Units or Deferred Stock Units
to which the Eligible Director has then been granted under the Plan.
4.3.2 Notwithstanding section 4.3.1, any amendment of the Plan shall be such that the Plan
continuously meets the requirements of paragraph 6801(d) of the regulations under the Income Tax
Act (Canada) or any successor to such provision, and the requirements of Section 409A of the Code
as may apply to Eligible Directors who are U.S. Taxpayers. For avoidance of doubt, and
notwithstanding section 4.3.1, if any provision of the Plan contravenes any regulations or Treasury
guidance promulgated under Section 409A of the Code or would cause the Share Units to be subject to
the interest and penalties under Section 409A of the Code such provision of the Plan shall, to the
extent that it applies to US Taxpayers, be modified, without the consent of any Eligible Director,
to maintain, to the maximum extent practicable, the original intent of the applicable provision
without violating the provisions of Section 409A of the Code.
4.4 Plan Termination
The Board may terminate the Plan at any time, including in the event of a Corporate
Transaction, but no such termination shall, without the consent of the Eligible Director or unless
required by law, adversely affect the rights of an Eligible Director with respect to any amount of
Annual Remuneration in respect of which an Eligible Director has then elected to receive Deferred
Stock Units or Deferred Stock Units which the Eligible Director has then been granted under the
Plan. Notwithstanding the foregoing, any termination of the Plan shall be such that the Plan
continuously meets the requirements of paragraph 6801(d) of the regulations under the Income Tax
Act (Canada) or any successor to such provision, and the requirements of Section 409A of the Code
as may apply to Eligible Directors who are U.S. Taxpayers.
4.5 Applicable Trading Policies and Reporting Requirements
The Committee and each Eligible Director will ensure that all actions taken and decisions made
by the Committee or an Eligible Director, as the case may be, pursuant to the Plan, comply with
applicable securities regulations and policies of the Company relating to the insider trading and
“black out” periods. All Deferred Stock Units shall be considered a “security” of the Company
solely for the reporting purposes of the Insider Trading Policy of the Company.
4.6 Currency
All payments and benefits under the Plan shall be determined and paid in the lawful currency
of Canada.
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4.7 Designation of Beneficiary
Subject to the requirements of applicable laws, an Eligible Director shall designate in
writing a person who is a dependant or relation of the Eligible Director as a beneficiary to
receive any benefits that are payable under the Plan upon the death of such Eligible Director. The
Eligible Director may, subject to applicable laws, change such designation from time to time. Such
designation or change shall be in the form of Schedule B. The initial designation of each Eligible
Director shall be executed and filed with the Secretary of the Company within sixty (60) days
following the Effective Date of the Plan. Changes to such designation may be filed from time to
time thereafter.
4.8 Death of Participant
In the event of an Eligible Director’s death, any and all Deferred Stock Units then credited
to the Eligible Director’s Account shall become payable to the Eligible Director’s Beneficiary in
accordance with Section 3 and the date of death shall be deemed to be the Termination Date.
4.9 Rights of Participants
4.9.1 Except as specifically set out in the Plan, no Eligible Director, or any other person shall
have any claim or right to any benefit in respect of Deferred Stock Units granted or Annual
Remuneration payable pursuant to the Plan.
4.9.2 Rights of Eligible Directors respecting Deferred Stock Units and other benefits under the
Plan shall not be transferable or assignable other than by will or the laws of descent and
distribution.
4.9.3 The Plan shall not be construed as granting an Eligible Director a right to be retained as a
member of the Board or a claim or right to any future grants of Deferred Stock Units, future Annual
Remuneration or other benefits under the Plan.
4.9.4 Under no circumstances shall Deferred Stock Units be considered Common Shares nor shall they
entitle any Eligible Director or other person to exercise voting rights or any other rights
attaching to the ownership of Common Shares, nor shall any Eligible Director or other person be
considered the owner of Common Shares or any interest therein by virtue of this Plan.
4.10 Compliance with Law
Any obligation of the Company pursuant to the terms of the Plan is subject to compliance with
all applicable laws. The Eligible Directors shall comply with all applicable laws and furnish the
Company with any and all information and undertakings as may be required to ensure compliance
therewith.
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4.11 Withholding
The Company shall be entitled to deduct any amount of withholding taxes and other withholdings
from any amount paid or credited hereunder.
SCHEDULE A
Photowatt Technologies Inc. Directors’ Deferred Stock Unit Plan (the “Plan”)
ELECTION NOTICE
I. Election:
Subject to Part II of this Notice, for the period April 1, to March 31, , I hereby elect to receive the following percentage of Annual Remuneration by way
of Deferred Stock Units (“DSUs”):
Amount
Percentage in DSUs
Percentage in Cash*
Annual Retainer Fee
$
___%
___%
Annual Committee Fees
$
___%
___%
*cash payments will be made Quarterly in arrears
II. Acknowledgement
I confirm and acknowledge that:
1.
I have received and reviewed a copy of the terms of the Plan and agree to be
bound by them.
2.
I will not be able to cause the Company or any Affiliate thereof to redeem DSUs
granted under the Plan until my Termination Date.
3.
When DSUs credited to my account pursuant to this election are redeemed in
accordance with the terms of the Plan after my Termination Date, income tax and other
withholdings as required will arise at that time. Upon redemption of the DSUs, the
Company will make all appropriate withholdings as required by law at that time.
4.
The value of DSUs are based on the value of the Common Shares of the Company
and therefore are not guaranteed.
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5.
No funds will be set aside to guarantee the payment of DSUs. Future payment of
DSUs will remain an unfunded and unsecured liability recorded on the books of the
Company.
6.
This election is irrevocable.
7.
The foregoing is only a brief outline of certain key provisions of the Plan.
In the event of any discrepancy between the terms of the Plan and the terms of this
Election Notice, the terms of the Plan shall prevail. All capitalized expressions used
herein shall have the same meaning as in the Plan unless otherwise defined herein.
Date
(Name of Eligible Director)
(Signature of Eligible Director)
SCHEDULE B
BENEFICIARY DESIGNATION
To: Photowatt Technologies Inc.
I, , being a participant in the Photowatt Technologies Inc. Directors’ Deferred Stock Unit Plan
(the “Plan”) hereby designate the following person as my Beneficiary for purposes of the Plan:
Name of Beneficiary:
Address of Beneficiary:
This designation revokes any previous beneficiary designation made by me under the Plan. Under the
terms of the Plan, I reserve the right to revoke this designation and to designate another person
as my Beneficiary.
