Item
6. Indemnification of Directors and Officers.
The
corporate laws of British Columbia allow the Registrant to indemnify its directors and officers or former directors and officers and
its corporate Articles, as amended (the “Registrant’s Articles”), require the Registrant (subject to the provisions
of the BCBCA noted below), to indemnify its directors, former directors, alternate directors and their heirs and legal personal representatives
against all eligible penalties to which such person is or may be liable, and the Registrant 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 the Registrant on the terms of the indemnity contained in the Registrant’s Articles,
as amended.
For
the purposes of such an indemnification pursuant to the Registrant’s Articles:
○ |
“eligible
penalty” means a judgment, penalty or fine awarded or imposed in, or an amount paid in settlement of, an eligible proceeding;
and |
|
|
○ |
“eligible
proceeding” means a legal proceeding or investigative action, whether current, threatened, pending or completed, in which a
director, former director or alternative director of the Registrant (an “eligible party”) or any of the heirs and legal
personal representatives of the eligible party, by reason of the eligible party being or having been a director or alternative director: |
|
(1) |
is
or may be joined as a party, or |
|
|
|
|
(2) |
is
or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding. |
In
addition, under the BCBCA, the Registrant 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 (which pursuant to the provisions of the BCBCA includes directors,
former directors, officers and former officers) in respect of that proceeding, provided that the Registrant first receives from the eligible
party a written undertaking that, if it is ultimately determined that the payment of expenses is prohibited by the restrictions noted
below, the eligible party will repay the amounts advanced.
Notwithstanding
the provisions of the Registrant’s Articles, as amended, noted above, under the BCBCA the Registrant must not indemnify an eligible
party or pay the expenses of an eligible party, if any of the following circumstances apply:
(1)
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, the company was prohibited from giving the indemnity or paying the expenses by its memorandum or articles;
(2)
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, the company is prohibited from giving the indemnity or paying the expenses by its memorandum or articles;
(3)
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 the company or the associated corporation, as the case may be;
(4)
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.
In
addition, if an eligible proceeding is brought against an eligible party by or on behalf of the Registrant or by or on behalf of an associated
corporation, the Registrant must not do either of the following:
(1)
indemnify the eligible party under section 160(a) of the BCBCA in respect of the proceeding; or
(2)
pay the expenses of the eligible party in respect of the proceeding.
Notwithstanding
any of the foregoing, and whether or not payment of expenses or indemnification has been sought, authorized or declined under the BCBCA
or the Registrant’s Articles, on the application of the Registrant or an eligible party, the Supreme Court of British Columbia
may do one or more of the following:
(1)
order a company to indemnify an eligible party against any liability incurred by the eligible party in respect of an eligible proceeding;
(2)
order a company to pay some or all of the expenses incurred by an eligible party in respect of an eligible proceeding;
(3)
order the enforcement of, or any payment under, an agreement of indemnification entered into by a company;
(4)
order a company to pay some or all of the expenses actually and reasonably incurred by any person in obtaining an order under this section;
(5)
make any other order the court considers appropriate.
The
Registrant has entered into indemnification agreements with each of its directors and officers. The indemnification agreements provide
the directors and officers with contractual rights to indemnification, expense advancement and reimbursement, to the fullest extent permitted
under the Registrant’s Articles, as amended, and the BCBCA, subject to certain exceptions contained in those agreements.
The
Registrant maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss rising
from claims made by reason of breach of duty or other wrongful act, and (b) to the Registrant with respect to payments which may be made
by the Registrant to such officers and directors pursuant to the above indemnification provisions or otherwise as a matter of law.
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 represent 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; and
(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 registration statement is on Form S-8, and 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.