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Superior Plus Corp. — Governance Information 2025
Apr 11, 2025
42632_rns_2025-04-11_c789f979-bcde-402a-820c-dafccbc80cfb.pdf
Governance Information
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SUPERIOR PLUS CORP.
STOCK OPTION PLAN
Effective as of ☐, 2025
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TABLE OF CONTENTS
Page
SECTION 1. INTERPRETATION AND ADMINISTRATIVE PROVISIONS 1
1.1 Purpose 1
1.2 Definitions 1
1.3 Interpretation 5
1.4 Currency 5
1.5 Administration 5
1.6 Governing Law 6
1.7 Shares Subject to the Plan 6
1.8 Participation Limits 6
SECTION 2. OPTIONS 7
2.1 Granting of Options 7
2.2 Vesting of Options 7
2.3 Exercise Price 7
2.4 Option Term; Blackout Period 7
2.5 Exercise of Options 7
SECTION 3. TERMINATION OF EMPLOYMENT 8
3.1 Termination for Cause 8
3.2 Resignation 9
3.3 Retirement 9
3.4 Disability and Death 9
3.5 Termination Without Cause 10
3.6 Ceasing Employment Following a Change of Control Transaction 10
SECTION 4. GENERAL 11
4.1 Capital Adjustments 11
4.2 Effect of a Change of Control Transaction 11
4.3 Amendment and Termination 12
4.4 Clawback 13
4.5 Non-Exclusivity 13
4.6 Unfunded Plan 13
4.7 Successors and Assigns 13
4.8 Transferability of Options 14
4.9 No Special Rights 14
4.10 Other Employee Benefits 14
4.11 Withholding Taxes 14
4.12 No Liability 15
4.13 Government Regulation and Grant Restrictions 15
4.14 Priority of Agreements 15
4.15 Compliance with Applicable Laws 16
4.16 Non-Canadian Participants 16
4.17 Severability 16
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TABLE OF CONTENTS
(continued)
Page
4.18 General ... 16
4.19 Effective Date ... 16
SCHEDULE A OPTION AGREEMENT ... 1
SCHEDULE B NOTICE OF EXERCISE ... 1
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SUPERIOR PLUS CORP.
STOCK OPTION PLAN
Section 1. Interpretation and Administrative Provisions
1.1 Purpose
The purposes of this Plan are to: (i) support the achievement of the Corporation’s performance objectives; (ii) align the interests of Service Providers with those of the Corporation’s shareholders; and (iii) attract, retain and motivate Service Providers critical to the long-term success of the Corporation and its subsidiaries.
1.2 Definitions
For the purposes of the Plan, the following terms have the following meanings:
“Active Employment” means that a Participant is employed and actively providing services to a Participating Corporation, or a Participant is on vacation or a leave of absence approved by a Participating Corporation or authorized under applicable law. For purposes of this Plan, except as may be required to comply with the minimum requirements of applicable employment standards legislation, a Participant is not “Actively Employed” if his or her employment has been terminated by the Participant’s resignation or Retirement or by a Participating Corporation, regardless of whether the Participant’s employment has been terminated with or without cause, lawfully or unlawfully or with or without notice, and, except as may be required to comply with the minimum requirements of applicable employment standards legislation, being “Actively Employed” does not include any period during, or in respect of, which a Participant is receiving or is entitled to receive payments in lieu of notice (whether by way of lump sum or salary continuance), benefits continuance, severance pay, damages for wrongful dismissal or other termination related payments or benefits, in each case, whether pursuant to contract, common law, civil law or otherwise.
“Affiliate” means any person or entity which controls, is controlled by or is under common control with the Corporation and “control” means, with respect to any entity, the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership or voting securities, by contract or otherwise.
“Applicable Withholding Taxes” means any and all taxes and other source deductions or other amounts which a Participating Corporation is required by law to withhold from any amounts to be paid or credited hereunder.
“Blackout Period” means the period of time when, pursuant to any policies or determinations of the Corporation, securities of the Corporation may not be traded by insiders or other specified persons, including any period in which insiders or other specified persons are in possession of material undisclosed information, but excluding any period during which a regulator has halted trading in the Corporation’s securities.
“Board” means the board of directors of the Corporation as it may be properly constituted from time to time.
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"Business Day" means any day on which the Toronto Stock Exchange is open for business.
"Change of Control Transaction" means:
(a) the direct or indirect sale or disposition of, by conveyance, transfer, lease or otherwise, in any single transaction or series of related transactions, all or substantially all of the property and assets of the Corporation, other than to an entity which was an Affiliate of the Corporation prior to the sale or disposition;
(b) a reorganization, amalgamation, merger, arrangement or combination of the Corporation with or into any other entity, which results in all of the persons who were the beneficial owners of the voting securities of the Corporation immediately prior to such reorganization, amalgamation, merger, arrangement or combination, together being entitled to exercise less than 50% of the voting rights attached to the outstanding voting securities of the entity resulting from the applicable transaction;
(c) a formal bid or tender offer for voting securities of the Corporation or other acquisition of voting securities of the Corporation being completed which results in the offeror, its Affiliates and any other person acting jointly or in concert with the offeror together being entitled to exercise more than 50% of the voting rights attached to the outstanding voting securities of the Corporation; provided that, prior to such offer or acquisition, such persons were not entitled to exercise more than 50% of the voting rights attached to the outstanding voting securities of the Corporation;
(d) the majority of the members of the Board are replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of members of the Board prior to the date of the appointment or election;
(e) any transaction or series of related transactions determined by the Board to be substantially similar to any of the transactions noted above; or
(f) in the case of a U.S. Participant, a Change of Control Transaction shall be limited to a "change of control event" as defined under Section 409A of the Code to the extent necessary to avoid the imposition of taxes, penalties, and interest under Section 409A of the Code.
"Code" means the U.S. Internal Revenue Code of 1986, as amended from time to time, and the Treasury Regulations promulgated thereunder.
"Committee" means the Compensation Committee of the Board or such other committee of the Board as designated by the Board from time to time to administer the Plan.
"Corporation" means Superior Plus Corp., and any successor thereto.
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"Disability" in respect of a Participant means that such Participant is receiving benefits under any long term disability plan of the Corporation or of the Corporation's Affiliates.
"Exercise Price" means the price at which a Share may be purchased upon the exercise of an Option as determined by the Board, provided that in no event shall the Exercise Price be less than the Fair Market Value as at the Grant Date.
"Fair Market Value" means the volume-weighted average trading price of the Shares on the five trading days immediately preceding the applicable day on the Toronto Stock Exchange or, if the Shares are not then listed on the Toronto Stock Exchange, on such other principal stock exchange or over-the-counter market on which the Shares are listed or quoted. If the Shares are not publicly traded or quoted, then "Fair Market Value" shall mean the fair market value of a Share as determined in good faith by the Board on the applicable day and consistent with the principles of Section 409A of the Code to the extent applicable.
"Good Reason" means (i) if the Participant has a written employment agreement with a Participating Corporation, the meaning attributed to such term in such agreement, or (ii) if there is no such employment agreement or definition, means, without the Participant's prior written consent: (a) a material reduction in the Participant's base salary (other than a reduction that is applied consistently to all similarly situated employees of the Corporation); (b) a material reduction in the Participant's total annual compensation opportunity (other than solely as a result of a reduction in the Participant's base salary that would not constitute "Good Reason" under subsection (a) above); (c) a material adverse change in the Participant's title, authority, duties, responsibilities or reporting relationship, or (d) a material breach by a Participating Corporation of any material term of the Participant's employment agreement; provided that, notwithstanding the foregoing, Good Reason shall not be deemed to exist unless (x) the Participant gives the Participating Corporation written notice within 30 days after the Participant first has knowledge of the occurrence of the event which the Participant believes constitutes the basis for Good Reason, specifying the particular act or failure to act which the Participant believes constitutes the basis for Good Reason, (y) the Participating Corporation fails to cure such act or failure to act within 30 days after receipt of such notice and (z) the Participant terminates their employment with the Participating Corporation within 30 days after the end of such 30-day cure period.
"Grant Date" means the date an Option is granted to a Participant as set out in the Participant's Option Agreement.
"insider" has the meaning attributed thereto in the Toronto Stock Exchange Corporation Manual in respect of the rules governing security-based compensation arrangements, as amended from time to time.
"Net Settlement Amount" has the meaning ascribed to such term in Section 2.5(c).
"Notice of Exercise" means a notice substantially in the form set out as Schedule B to this Plan, as amended by the Board from time to time, or such other form(s) as may be determined by the Board from time to time.
"Option" means a right granted to a Service Provider to purchase a Share pursuant to the terms of this Plan.
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"Option Agreement" means an agreement substantially in the form set out as Schedule A to this Plan, as amended by the Board from time to time, or such other form(s) as may be determined by the Board from time to time, specifying the terms and conditions of an Option.
"Participant" means any Service Provider to whom an Option is granted.
"Participating Corporation" means the Corporation and any of its subsidiaries, as designated by the Board from time to time.
"Plan" means this Superior Plus Corp. Stock Option Plan, as amended or restated from time to time, and including the Addendum for U.S. Participants attached hereto.
"Retirement" or "Retire" means a voluntary separation from employment by the Participant for reasons of age and service or medical condition. Subject to the discretion of the Board, to be considered a "Retirement" a Participant must have made application for retirement prior to the date of separation and (i) the Participant must be 55 years of age or older and have completed 10 years of continuous employment with the Corporation or any of its Affiliates; or (ii) the sum of the Participant's age and years of continuous employment with the Corporation or any of its Affiliates must equal to 65 years or more.
"Share" means a common share in the capital of the Corporation and such other shares or securities as may be substituted therefore as a result of any change to the shares of the Corporation or any capital reorganization, arrangement, amalgamation or merger affecting all of the shares of the Corporation.
"security-based compensation arrangement" has the meaning attributed thereto in the Toronto Stock Exchange Corporation Manual, as amended from time to time.
"Service Provider" means any full-time officers or employees of the Corporation or any Participating Corporation.
"subsidiary" means any entity that is a "subsidiary" for the purposes of National Instrument 45-106 — Prospectus Exemptions, as amended from time to time.
"Termination Date" means the later of (i) a Participant's last day of Active Employment with any Participating Corporation, as determined by the Corporation, and (ii) the last day of any statutory minimum notice period applicable to the Participant in connection with the Participant's termination of employment pursuant to applicable employment standards legislation, and does not include any other period of contractual or reasonable notice of termination of employment, severance period or any period of deemed employment or salary continuance in respect of the Participant's termination of employment whether pursuant to common law, civil law, contract or otherwise. Any such non-statutory severance period or notice period shall not be considered a period of employment for the purposes of a Participant's rights under the Plan.
"U.S. Participant" means a Participant who is a United States citizen or United States resident alien as defined for purposes of Code Section 7701(b)(1)(A) or for whom an Option is otherwise subject to taxation under the Code; provided, however, that a Participant shall be a U.S. Participant solely with respect to those affected Options.
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"Vesting Date" means the date or dates set out in the Option Agreement on which an Option will vest, or such earlier date as is provided for in the Plan or is determined by the Board.
1.3 Interpretation
Where the context so requires, words importing the singular number include the plural and vice versa, and words importing any gender include any other gender. Whenever the Board or Committee is entitled to exercise discretion in the administration of the Plan, the term "discretion" means the sole and absolute discretion of the Board or Committee, as applicable. The division of the Plan into Articles and Sections and the insertion of headings are for reference purposes only and shall not affect the interpretation of the Plan. Unless otherwise indicated, any reference in the Plan to an Article or Section refers to the specified Article or Section of the Plan.
1.4 Currency
Unless otherwise specifically provided, all references to dollars in this Plan are references to Canadian dollars.
1.5 Administration
This Plan will be administered by the Committee; however, any determinations of the Committee shall be subject to review and approval by the Board.
The Committee shall, subject to the review and approval of the Board, have the authority at its discretion to administer the Plan and to exercise all the powers and authorities either specifically granted to it under the Plan or necessary or advisable in the administration of the Plan, including, without limitation the authority to:
(a) grant Options to Service Providers;
(b) determine the Exercise Price, vesting schedule, term, limitations, restrictions and conditions applicable to Options;
(c) waive or amend the vesting schedule;
(d) interpret and administer the Plan;
(e) determine the Service Providers to whom, and the time or times at which Options shall be granted;
(f) prescribe, amend and rescind rules and regulations relating to the Plan; and
(g) make any other determinations deemed necessary or advisable for the administration of the Plan.
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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 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 Participants.
The Committee may delegate to one or more of its members or to one or more agents such administrative duties as it may deem advisable, and the Committee or any person to whom it has delegated duties as aforesaid may employ one or more persons to render advice with respect to any responsibility the Committee or such person may have under the Plan.
For greater certainty and without limiting the discretion conferred on the Committee pursuant to this Section, the Committee’s decision to approve the grant of an Option in any year shall not require the Committee to approve the grant of an Option to any Service Provider in any other year; nor shall the Committee’s decision with respect to the size or terms and conditions of an Option in any year require it to approve the grant of an Option of the same size or with the same terms and conditions to any Service Provider in any other year. The Committee shall not be precluded from approving the grant of an Option to any Service Provider solely because such Service Provider may previously have been granted an Option under this Plan or any other similar compensation arrangement of the Corporation or of the Corporation’s Affiliates.
1.6 Governing Law
The Plan shall be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein.
1.7 Shares Subject to the Plan
Subject to adjustment pursuant to Section 4.1, the maximum number of Shares that shall be available for issuance under the Plan is 5,000,000. Shares underlying Options that have expired or been terminated for any reason shall be available for subsequent issuance under the Plan. If Options are disposed of pursuant to section 2.5(c), the full number of Shares underlying the vested Options being disposed of shall be deducted from the maximum number of Shares issuable under the Plan. No fractional Shares may be purchased or issued hereunder.
1.8 Participation Limits
The grant of Options under the Plan is subject to the following limitations:
(a) no more than 5% of the outstanding Shares may be issued under the Plan alone or when combined with all other security-based compensation arrangements of the Corporation to any one Participant; and
(b) the number of Shares that may be (i) issued to insiders within any one (1) year period, and (ii) issuable to insiders at any time, in each case, under this Plan alone or when combined with all other security-based compensation arrangements of the Corporation, cannot exceed 10% of the outstanding Shares.
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Section 2. Options
2.1 Granting of Options
The Committee may, from time to time, grant Options to Service Providers. The grant of an Option to a Service Provider at any time shall neither entitle such Service Provider to receive, nor preclude such Service Provider from receiving, a subsequent grant of an Option. Each Option granted by the Committee shall be evidenced by an Option Agreement.
2.2 Vesting of Options
The Committee shall determine when an Option will become vested and may determine that the Option will become vested in installments and/or may make vesting of the Option conditional on the achievement of performance targets. Subject to the terms of any employment or other agreement between the Participant and a Participating Corporation, or the Committee expressly providing to the contrary, a Participant’s Options shall vest as to 33.33% on each of the first 3 anniversaries of the Grant Date.
2.3 Exercise Price
The Exercise Price of an Option shall be fixed by the Committee on the Grant Date and will not be less than the Fair Market Value of a Share as of the Grant Date, subject to all applicable regulatory requirements. Notwithstanding the foregoing, if an Option is approved during or within five trading days immediately following a Blackout Period, the Grant Date shall not be earlier than the sixth Business Day immediately following the expiration of the Blackout Period and the Exercise Price will not be less than the volume-weighted average trading price of the Shares on the Toronto Stock Exchange on the five trading days immediately preceding the Grant Date.
2.4 Option Term; Blackout Period
Subject to Section 3, each Option must be exercised no later than seven (7) years after the Grant Date or such shorter period as set out in the Participant’s Option Agreement, at which time such Option will expire. Notwithstanding any other provision of this Plan, each Option that would expire during a Blackout Period shall expire on the date that is ten (10) Business Days immediately following the expiration of the Blackout Period.
2.5 Exercise of Options
Vested Options may be exercised by the Participant or their personal legal representative delivering to the Corporation a Notice of Exercise signed by the Participant or their legal representative, accompanied by payment in full of the aggregate Exercise Price and any Applicable Withholding Taxes in respect of the Options being exercised, payable:
(a) in cash, or by certified cheque, bank draft or money order payable to the Corporation or by such other means as might be specified from time to time by the Committee;
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(b) pursuant to a broker-assisted cashless exercise, whereby the Participant or their personal legal representative shall elect on the Notice of Exercise to receive:
(i) an amount in cash equal to the cash proceeds realized upon the sale in the capital markets of the Shares underlying the Options by a securities dealer designated by or on behalf of the Corporation, less the aggregate Exercise Price, any Applicable Withholding Taxes, and any transfer costs charged by the securities dealer to sell the Shares;
(ii) an aggregate number of Shares that is equal to the number of Shares underlying the Options minus the number of Shares sold in the capital markets by a securities dealer designated by or on behalf of the Corporation as required to realize cash proceeds equal to the aggregate Exercise Price, any Applicable Withholding Taxes and any transfer costs charged by the securities dealer to sell the Shares; or
(iii) a combination of (i) and (ii); or
(c) pursuant to a net settlement, whereby the Participant or their personal legal representative shall elect on the Notice of Exercise to transfer and dispose of a specified number of vested Options to the Corporation in exchange for an amount (the "Net Settlement Amount") equal to (i) the aggregate Fair Market Value as of the exercise date of the number of Shares underlying the vested Options being disposed, minus (ii) the aggregate Exercise Price of the number of Shares underlying the vested Options being disposed, minus (iii) any Applicable Withholding Taxes. The Corporation shall satisfy the payment of such Net Settlement Amount by issuing to the Participant or their personal legal representative, as applicable, such number of Shares (rounded down to the nearest whole number) with an aggregate Fair Market Value equal to the Net Settlement Amount.
Subject to Section 4.13, upon receipt of payment in full, the number of Shares in respect of which the Options are exercised and issuable in accordance with this Section 2.5 will be duly issued to the Participant as fully paid and non-assessable, following which the Participant shall have no further rights, title or interest with respect to such Options.
Section 3. Termination of Employment
3.1 Termination for Cause
If a Participant’s employment with a Participating Corporation is terminated for cause, all unvested and vested Options held by the Participant on the Participant’s Termination Date shall automatically terminate on the Termination Date and be of no further force or effect, and no amount shall be payable to the Participant in respect thereof as compensation, damages or otherwise, including on account of severance, payment in lieu of notice or damages for wrongful dismissal.
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3.2 Resignation
If a Participant voluntarily resigns from a Participating Corporation (other than in circumstances constituting Retirement), all unvested and vested Options held by the Participant on the Participant’s Termination Date shall automatically terminate on the Termination Date and be of no further force or effect, and no amount shall be payable to the Participant in respect thereof as compensation, damages or otherwise, including on account of severance, payment in lieu of notice or damages for wrongful dismissal.
3.3 Retirement
If a Participant’s employment with a Participating Corporation ceases as a result of the Participant’s Retirement, all unvested Options held by the Participant on the Participant’s Termination Date shall remain outstanding and continue to vest and become exercisable pursuant to the terms of the Plan as if the Participant had remained employed up to and including the earlier of: (i) 36 months after the Participant’s Termination Date; and (ii) the remaining term of the Option. All vested Options held by the Participant on the Participant’s Termination Date together will all Options that vest in accordance with the preceding sentence shall be exercisable up to and including the earlier of: (i) 36 months after the Participant’s Termination Date; and (ii) the remaining term of the Option.
At the end of such 36-month period or such shorter period as is remaining in the term of the Options, the unexercised Options shall automatically terminate and be of no further force or effect, and no amount shall be payable to the Participant in respect thereof as compensation, damages or otherwise.
3.4 Disability and Death
If a Participant’s employment with a Participating Corporation ceases as a result of the Participant’s Disability or as a result of death, all unvested Options held by the Participant on the Participant’s Termination Date or death, as applicable, shall remain outstanding and continue to vest and become exercisable by the Participant (or the Participant’s personal legal representatives) pursuant to the terms of the Plan as if the Participant had remained employed up to and including the earlier of: (i) 12 months after the Participant’s Termination Date or death, as applicable; and (ii) the remaining term of the Option. All vested Options held by the held by the Participant (or the Participant’s personal legal representatives) on the Participant’s Termination Date or death, as applicable, together with all Options that vest in accordance with the preceding sentence shall be exercisable up to and including the earlier of: (i) 12 months after the Participant’s Termination Date or death, as applicable; and (ii) the remaining term of the Option.
At the end of such 12-month period or such shorter period as is remaining in the term of the Options, the unexercised Options shall automatically terminate and be of no further force or effect, and no amount shall be payable to the Participant (or the Participant’s personal legal representatives) in respect thereof as compensation, damages or otherwise.
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3.5 Termination Without Cause
If a Participant's employment with a Participating Corporation is terminated without cause, all unvested Options held by the Participant on the Participant's Termination Date shall automatically terminate on the Termination Date and be of no further force or effect, and no amount shall be payable to the Participant in respect thereof as compensation, damages or otherwise, including on account of severance, payment in lieu of notice or damages for wrongful dismissal.
All vested Options held by the Participant on the Participant's Termination Date shall be exercisable up to and including 90 days after the Participant's Termination Date. At the end of such 90-day period, the unexercised Options shall automatically terminate and be of no further force or effect, and no amount shall be payable to the Participant in respect thereof as compensation, damages or otherwise.
3.6 Ceasing Employment Following a Change of Control Transaction
Notwithstanding anything in this Section 3 to the contrary, if a Participant's employment with a Participating Corporation is terminated without cause or the Participant resigns for Good Reason, in each case, within 24 months following a Change of Control Transaction, all unvested Options held by the Participant on the Participant's Termination Date shall immediately vest. The Participant may within 24 months after the Participant's Termination Date, or such shorter period as is remaining in the term of the Options, exercise all Options held by the Participant on the Participant's Termination Date. At the end of such 24-month period or such shorter period as is remaining in the term of the Options, the unexercised Options shall automatically terminate and be of no further force or effect, and no amount shall be payable to the Participant in respect thereof as compensation, damages or otherwise, including on account of severance, payment in lieu of notice or damages for wrongful dismissal.
3.7 Termination of a Participant's Status as a Service Provider.
For purposes of the Plan, a Participant's status as a Service Provider will be considered terminated as of their Termination Date. Accordingly, a Participant's eligibility to receive grants of Options under the Plan ceases as of the Participant's Termination Date. Except only if and as required to comply with the minimum requirements of applicable employment standards legislation or as otherwise specifically provided in the Plan, no Participant is eligible for continued vesting of any Options during any period in which the Participant receives, or claims to be entitled to receive, any compensatory payments or damages in lieu of notice of termination of employment pursuant to contract, statute, common law, civil law or otherwise, and no Participant will be entitled to any damages or other compensation in respect of any Option that does not vest, is not exercisable or is not granted due to the termination of the Participant's employment with the Corporation or any Participating Corporation for any reason. The Plan displaces any and all common law rights the Participant may have or claim to have in respect of any Options, including any right to damages. The foregoing will apply regardless of: (i) the reason for the termination of the Participant's employment; (ii) whether such termination is lawful or unlawful, with or without cause; and (iii) whether it is the Participant or a Participating Corporation that initiates the termination.
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Section 4. General
4.1 Capital Adjustments
In the event of any corporate event or transaction involving a Participating Corporation (including, but not limited to, a change in the Shares or the capitalization of the Corporation), such as a merger, consolidation, reorganization, recapitalization, separation, stock dividend, stock split, reverse stock split, split-up, spin-off, combination of shares, exchange of shares, dividend in kind, extraordinary cash dividend, amalgamation or other like change in capital structure (other than normal cash dividends to shareholders of the Corporation), or any similar corporate event or transaction, the Committee, to prevent inappropriate dilution or enlargement of Participants' rights under the Plan, may substitute or adjust, in its sole discretion: (i) the number and kind of shares or other securities that may be issued pursuant to the Plan; (ii) the number and kind of shares subject to outstanding Options; (iii) the Exercise Price applicable to outstanding Options; and/or (iv) other value determinations (including vesting conditions) applicable to the Plan or outstanding Options; however, no adjustment will obligate the Corporation to issue or sell fractional securities. All adjustments shall be made in good-faith compliance with paragraph 7(1.4) of the Income Tax Act (Canada) and/or Code Section 409A, as applicable. For the avoidance of doubt, the purchase of Shares or other equity securities of the Corporation by a shareholder of the Corporation or by any third party from the Corporation shall not constitute a corporate event or transaction giving rise to an adjustment pursuant to this Section 4.1.
4.2 Effect of a Change of Control Transaction
Notwithstanding any other provision of this Plan, in the event of a Change of Control Transaction, the surviving, successor or acquiring entity may assume outstanding Options or substitute similar options for the outstanding Options, as applicable. If the surviving, successor or acquiring entity does not assume the outstanding Options or substitute similar options for the outstanding Options, or if the Committee otherwise determines in its discretion, the Corporation shall give written notice to all Participants advising that the Plan shall be terminated effective immediately prior to the Change of Control Transaction and that all Options shall be deemed to be vested and, unless otherwise exercised, settled, forfeited or cancelled prior to the termination of the Plan, shall expire immediately prior to the termination of the Plan.
In the event of a Change of Control Transaction, the Committee has the power to: (i) make such other changes to the terms of the Options as it considers fair and appropriate in the circumstances, provided such changes are not adverse to the Participants; (ii) otherwise modify the terms of the Options to assist the Participants to tender into a takeover bid or other arrangement leading to a Change of Control Transaction; and (iii) terminate, conditionally or otherwise, the Options not exercised or settled, as applicable, following successful completion of such Change of Control Transaction. If the Change of Control Transaction is not completed within the time specified therein (as the same may be extended), the Options which vest pursuant to this Section 4.2 shall be returned by the Corporation to the Participant and the original terms applicable to such Options shall be reinstated.
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4.3 Amendment and Termination
(a) The Board may amend or suspend any provision of the Plan or any Option, or terminate this Plan, at any time without approval of security holders, subject to any required approval of the Toronto Stock Exchange, regardless of whether any such amendment or suspension is material, fundamental or otherwise, and notwithstanding any rule of common law or equity to the contrary. However, except as expressly set forth herein or as required pursuant to applicable law or to qualify for any intended tax treatment, no such action of the Board may materially adversely alter or impair the rights of a Participant under any Option previously granted to the Participant without the consent of the affected Participant. Without limiting the generality of the foregoing, the Board may make the following types of amendments to this Plan or any Options without seeking security holder approval:
(i) amendments of a “housekeeping” or administrative nature, including any amendment for the purpose of curing any ambiguity, error or omission in this Plan or any Option or to correct or supplement any provision of this Plan or any Option that is inconsistent with any other provision of this Plan or any Option;
(ii) amendments necessary to comply with the provisions of applicable law or the rules, regulations and policies of the Toronto Stock Exchange and any other stock exchange on which the Shares are listed;
(iii) amendments necessary for Options to qualify for favourable treatment under applicable tax laws;
(iv) amendments to the vesting provisions of this Plan or any Option;
(v) amendments to include or modify a cashless exercise feature, payable in cash or Shares, which provides for a full deduction of the number of underlying Shares from the Plan maximum;
(vi) amendments to the termination or early termination provisions of this Plan or any Option, whether or not such Option is held by an insider, provided such amendment does not entail an extension beyond the original expiry date of the Option; and
(vii) amendments necessary to suspend or terminate this Plan.
(b) Security holder approval will be required for the following types of amendments:
(i) any amendment to increase the maximum number of Shares issuable under this Plan, other than pursuant to Section 4.1;
(ii) any amendment to this Plan that increases the length of the period after a Blackout Period during which Options may be exercised;
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(iii) any amendment that would permit the introduction or reintroduction of non-employee directors as Service Providers on a discretionary basis;
(iv) any amendment to remove or to exceed the insider participation limit set out in Section 1.8(b);
(v) any amendment which reduces the Exercise Price of an Option or allows for the cancellation and reissuance of an Option, which would be considered a repricing under the rules of the Toronto Stock Exchange, in each case, other than pursuant to Sections 4.1 or 4.2;
(vi) any amendment extending the term of an Option beyond the original expiry date, except as provided in Section 2.4;
(vii) any amendment to this Section 4.3(b); and
(viii) any amendment which would allow for the transfer or assignment of Options under this Plan, other than for normal estate settlement purposes.
4.4 Clawback
Notwithstanding any other provision of this Plan, any Option which is subject to recovery or recoupment under applicable laws, stock exchange listing requirements or policies adopted by the Corporation, as may be adopted and amended from time to time, will be subject to such deductions and clawbacks as may be required pursuant to such laws, stock exchange listing requirements or policies.
4.5 Non-Exclusivity
Nothing contained herein shall prevent the Board from adopting other or additional compensation arrangements for the benefit of any Participant, subject to any required regulatory or shareholder approval.
4.6 Unfunded Plan
This Plan shall be unfunded and the Corporation will not secure its obligations hereunder. To the extent any individual holds any rights under the Plan, such rights (unless otherwise determined by the Board) shall be no greater than the rights of an unsecured general creditor of the Corporation.
4.7 Successors and Assigns
The Plan shall be binding on all successors and assigns of the Participating Companies and each Participant, including without limitation, the legal representative of a Participant, or any receiver or trustee in bankruptcy or representative of the creditors of a Participating Corporation or a Participant.
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4.8 Transferability of Options
Options are personal to the Participant. Rights of a Participant respecting Options shall not be transferable or assignable, except by will or the laws of descent and distribution. A purported transfer or assignment of any Option in any other circumstances will not be valid, and the Corporation will not issue any Shares upon the attempted exercise of any such improperly transferred or assigned Option. A Participant may not mortgage, hypothecate, pledge or grant a security interest in any Option.
4.9 No Special Rights
No Participant shall be induced to acquire, exercise or settle an Option by expectation of employment, engagement or other service or continued employment, engagement or other service. Nothing contained in the Plan or by the grant of any Options will confer upon any Participant any right to the continuation of the Participant’s employment, engagement or other service by or with a Participating Corporation or interfere in any way with the right of any Participating Corporation at any time to terminate a Participant’s employment, engagement or other service or to increase or decrease the compensation of a Participant. Nothing in this Plan may be construed to provide any Participant with any rights whatsoever to compensation or damages in lieu of notice or continued participation in, or entitlements under, the Plan as a consequence of a Participant’s termination of employment, engagement or other service (regardless of the reason for the termination and the party causing the termination, including a termination without cause). The Plan does not give any Participant any right to claim any benefit or compensation except to the extent specifically provided in the Plan. Options shall not be considered Shares nor shall they entitle a Participant to any interest in or title to any Shares or to exercise voting rights or any other rights attaching to the Shares. Participation in the Plan by a Service Provider shall be voluntary.
4.10 Other Employee Benefits
The amount of any compensation received or deemed to be received by a Participant as a result of his or her participation in the Plan will not constitute compensation, earnings or wages with respect to which any other employee benefits of that Participant are determined, including, without limitation, benefits under any bonus, pension, profit-sharing, insurance, termination, severance or salary continuation plan or any other employee benefit plans, except as otherwise specifically determined by the Board.
4.11 Withholding Taxes
It is the responsibility of the Participant to complete and file any tax returns which may be required under Canadian, U.S. or other applicable jurisdiction’s tax laws within the periods specified in those laws as a result of the Participant’s participation in the Plan.
Notwithstanding any other provision of this Plan, a Participant shall be solely responsible for all Applicable Withholding Taxes resulting from their participation in the Plan, including in connection with the receipt of Shares or other property pursuant to this Plan. In connection with the issuance of Shares or other property pursuant to this Plan or any other taxable event, a Participant shall, at the Participant’s discretion:
(a) pay to the Corporation an amount as necessary so as to ensure that the Corporation is in compliance with the applicable provisions of any federal, provincial, local or other law relating to the Applicable Withholding Taxes in connection therewith;
(b) authorize a securities dealer designated by or on behalf of the Corporation, on behalf of the Participant, to sell in the capital markets a portion of the Shares issued hereunder to realize cash proceeds to be used to satisfy the Applicable Withholding Taxes;
(c) authorize the Corporation to remit, on behalf of the Participant, an amount equal to the Applicable Withholding Taxes out of the Corporation’s funds upon the net settlement of the Participant’s Options in accordance with Section 2.5(c); or
(d) make other arrangements acceptable to the Corporation to fund the Applicable Withholding Taxes.
4.12 No Liability
No Participating Corporation shall be liable to any Participant for any loss resulting from a decline in the market value of the Shares.
4.13 Government Regulation and Grant Restrictions
The Corporation’s obligation to issue and deliver Shares under any Option is subject to: (i) the completion of such registration or other qualification of such Shares or obtaining approval of such regulatory authority as the Corporation shall determine to be necessary or advisable in connection with the authorization, issuance or sale thereof; (ii) the admission of such Shares to listing on any stock exchange on which such Shares may then be listed; and (iii) the receipt from the Participant of such representations, agreements and undertakings as to future dealings in such Shares as the Corporation determines to be necessary or advisable in order to safeguard against the violation of the securities laws of any jurisdiction. The Corporation shall take all reasonable steps to obtain such approvals, registrations and qualifications as may be necessary for the issuance of such Shares in compliance with applicable securities laws and for the listing of such Shares on any stock exchange on which such Shares are then listed. The Corporation may endorse such legend or legends upon the certificates for, or other evidences of, Shares issued upon the exercise or settlement of an Option and may issue such “stop transfer” instructions to its transfer agent in respect of such Shares as, in its absolute discretion, it determines to be necessary or appropriate. Options may not be granted with a Grant Date or effective date earlier than the date on which all actions required to grant the Options have been completed.
4.14 Priority of Agreements
In the event of any inconsistency or conflict between the provisions of the Plan and any Option Agreement, the provisions of the Plan shall prevail. In the event of any inconsistency or conflict between the provisions of the Plan or any Option Agreement, on the one hand, and a Participant’s employment agreement with a Participating Corporation (or a similar agreement), on the other hand, the provisions of the employment agreement (or a similar agreement) shall prevail.
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4.15 Compliance with Applicable Laws
If any provision of the Plan or any Option Agreement contravenes any law or any order, policy, by-law, rule or regulation of any regulatory body or stock exchange having jurisdiction or authority over the securities of the Corporation or its Affiliates or the Plan, then such provision may in the sole discretion of the Board be amended to the extent considered necessary or desirable to bring such provision into compliance therewith. The Corporation is not obligated to grant any Options, issue any Shares or other securities, make any payments or take any other action if, in the opinion of the Board or Committee, in its sole discretion, such action would constitute a violation by a Participant, the Corporation or any of its Affiliates of any provision of any applicable statutory or regulatory enactment of any government or government agency.
4.16 Non-Canadian Participants
In order to assure the viability of Options granted to Participants employed or resident in countries other than Canada, the Board and/or Committee may adopt such addendums, subplans and procedures, and may provide for such additional or varied terms in the Option Agreements entered into with such Participants, as it may consider necessary or appropriate to accommodate participation in the Plan by such persons, including, without limitation, in light of differences in local law or practice.
4.17 Severability
The invalidity or unenforceability of any provision of the Plan shall not affect the validity or enforceability of any other provision and any invalid or unenforceable provision shall be severed from the Plan.
4.18 General
The existence of any Option does not affect in any way the right or power of the Corporation to make, authorize or determine any adjustment, recapitalization, reorganization or any other change in the Corporation's capital structure or its business, or any amalgamation, arrangement, combination, merger or consolidation involving the Corporation, to create or issue any bonds, debentures, Shares or other securities of the Corporation or to determine the rights and conditions attaching thereto, to effect the dissolution or liquidation of the Corporation or any sale or transfer of all or any part of its assets or business, or to effect any other corporate act or proceeding, whether of a similar character or otherwise, whether or not any such action referred to in this Section 4.18 would have an adverse effect on this Plan or any Option pursuant to this Plan.
4.19 Effective Date
This Plan applies to Options granted hereunder on and after the date written above.
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ADDENDUM FOR U.S. PARTICIPANTS
SUPERIOR PLUS CORP
STOCK OPTION PLAN
The provisions of this addendum to the Plan (the “Addendum”) apply to Options granted to or held while a U.S. Participant. All capitalized terms used but not defined in this Addendum have the meanings ascribed to them in the Plan. Section references set forth below refer to sections of the Plan. This Addendum shall have no effect on any other terms and provisions of the Plan or any Options except as set forth below.
1. Plan Not Subject to ERISA
The Plan is not subject to the Employee Retirement Income Security Act of 1974, as amended.
2. Options Granted to U.S. Participants
Each Option granted to a U.S. Participant is intended as a “nonqualified stock option” exempt from Code Section 409A and is not intended to meet the requirements of Code Section 422. An Option may be granted to a U.S. Participant only if, with respect to such U.S. Participant, the Corporation is an “eligible issuer of service recipient stock” within the meaning of Code Section 409A.
3. Change of Control Transaction
Section 4.2 is deleted in its entirety and replaced with the following:
Notwithstanding any other provision of this Plan, in the event of a Change of Control Transaction, the surviving, successor or acquiring entity may assume any outstanding Options or, in accordance with Code Section 409A to the extent applicable, substitute similar options for the outstanding Options.
If the surviving, successor or acquiring entity does not assume the outstanding Options or substitute similar options for the outstanding Options, or if the Board otherwise determines in its sole discretion, the Corporation shall give written notice to all Participants advising that all outstanding Options shall be deemed to be vested and, unless earlier exercised, forfeited or cancelled, shall expire immediately prior to the consummation of the Change of Control Transaction.
In the event of a Change of Control Transaction, and subject in all cases to Code Section 409A, the Board has the power to: (i) make such other changes to the terms of the Options as it considers fair and appropriate in the circumstances, provided such changes are not adverse to the Participants; (ii) otherwise modify the terms of the Options to assist the Participants to tender into a takeover bid or other arrangement leading to a Change of Control Transaction, and thereafter; and (iii) terminate, conditionally or otherwise, the Options not exercised or settled, as applicable, following successful completion of such Change of Control Transaction.
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- No Acceleration or Delay
With respect to any Option held by a U.S. Participant that is subject to Code Section 409A, the acceleration or delay of the time or schedule of any payment except as provided under the Plan (including this Addendum) is prohibited, except as provided in regulations and administrative guidance promulgated under Code Section 409A.
- Code Section 409A
With respect to Options to U.S. Participants under the Plan, each Option is intended to be exempt from Code Section 409A, and each provision of the Plan and applicable Option Agreement shall be interpreted and construed consistent with the intent.
If any provision of the Plan or any Option or Option Agreement contravenes Code Section 409A or could cause a U.S. Participant to incur any tax, interest or penalties under Code Section 409A, the Board may, in its sole discretion and without the U.S. Participant's consent, modify such provision to: (i) comply with, or avoid being subject to Code Section 409A, or to avoid incurring taxes, interest and penalties under Code Section 409A; and/or (ii) maintain, to the maximum extent practicable, the original intent and economic benefit to the U.S. Participant of the applicable provision without materially increasing the cost to the Corporation or contravening Code Section 409A. However, the Corporation shall have no obligation to modify the Plan or any Option or Option Agreement and does not guarantee that Options will not be subject to taxes, interest and penalties under Code Section 409A.
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SCHEDULE A
OPTION AGREEMENT
[insert name of officer or employee] (the "Participant")
Pursuant to the Stock Option Plan (the "Plan") of Superior Plus Corp. (the "Corporation") and in consideration of services provided by the Participant to any Participating Corporation, the Corporation hereby grants to the Participant on __, __ (the "Grant Date") Options to purchase Shares of the Corporation at an Exercise Price of C$ _____ per Share.
Capitalized terms used but not otherwise defined in this Option Agreement shall have the meanings set out in the Plan.
Subject to earlier expiry in accordance with the Plan, the Options shall cease to be exercisable and shall expire on, __, __ [insert expiry date - no longer than 7 years after the Grant Date]. The Options shall vest on the following dates:
| Option Vesting Date | Number of Options |
|---|---|
| First anniversary of the Grant Date | ■ (i.e., 33.33% of the total) (“Tranche 1 Option”) |
| Second anniversary of the Grant Date | ■ (i.e., 33.33% of the total) (“Tranche 2 Option”) |
| Third anniversary of the Grant Date | ■ (i.e., 33.33% of the total) (“Tranche 3 Option”) |
Option Designation: Any portion of the Options which represents the right to acquire Non-Qualified Securities (as such term is defined in section 110 of the Income Tax Act (Canada) (the "Tax Act")) is generally not eligible for preferential employee stock option tax treatment. In accordance with paragraph 110(1.9)(a) of the Tax Act, notice is hereby given that pursuant to subsection 110(1.31) of the Tax Act, an aggregate of (i) [■] of the [■] Shares underlying the Tranche 1 Option; (ii) [■] of the [■] Shares underlying the Tranche 2 Option; and (iii) [■] of the [■] Shares underlying the Tranche 3 Option are deemed to be Non-Qualified Securities. For U.S. federal income tax purposes, the Options are not intended to qualify as "incentive stock options" under Section 422 of the Code.
If any provision of this Option Agreement shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof, and the Option Agreement shall be construed and enforced as if such provisions had not been included.
The Corporation and the Participant understand and agree that the granting and exercise of the Options and the issuance of Shares are subject to the terms and conditions of the Plan, all of which
are incorporated into and form a part of this Option Agreement. By signing and returning this Option Agreement, the Participant acknowledges having received and read a copy of the Plan, including the termination provisions set out in Section 3 of the Plan, and agrees to comply with it, this Option Agreement and all applicable laws and regulations.
DATED ___, _____.
Superior Plus Corp.
By: _______
Name:
Title:
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I agree to the terms and conditions set out herein and confirm and acknowledge that I have not been induced to enter into this Option Agreement or acquire any Option or Shares by expectation of employment or continued employment with any Participating Corporation. I confirm and acknowledge that I have received and reviewed a copy of the Plan and that I understand and accept its terms and provisions, including the termination provisions set out in Section 3 of the Plan that provide that my Options may be forfeited upon various events of termination, including a termination with or without cause.
I agree to provide the Corporation with all information (including personal information) required by the Corporation to administer the Plan. I consent to the Corporation and any of its affiliates sharing and exchanging my information held in order to administer and operate the Plan (including personal details, data relating to my participation, salary, taxation and employment and sensitive personal data, including data relating to physical or mental health, criminal conviction or the alleged commission of offences) (“my Information”) and providing the Board, the Committee, the Corporation’s and/or any of its affiliates’ agents, officers, employees and/or third parties with my Information for the administration and operation of the Plan. I acknowledge that the collection, processing and transfer of my Information is important to the Plan administration and that failure to consent to same may prohibit participation in the Plan or my receipt of the Option.
Signature
Name (please print)
CHECK THE BOX BELOW IF APPLICABLE:
☐ I am a U.S. Participant, and I understand that my Option is subject to the terms and conditions of the Plan specifically applicable to U.S. Participants, including the Addendum for U.S. Participants.
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SCHEDULE B
NOTICE OF EXERCISE
To: Superior Plus Corp.
Attention: [Corporate Secretary]
I, ____ hereby exercise ____ options ("Options") to purchase Shares of Superior Plus Corp. (the "Corporation") at an Exercise Price of C$ __ per Share. This Notice of Exercise is delivered in respect of the __ Options that were granted to me on ___ under the Corporation’s Stock Option Plan (the "Plan"). Capitalized terms used but not otherwise defined herein have the meanings set out in the Plan. In connection with the foregoing:
(tick one)
☐ I enclose cash, a certified cheque, bank draft or money order payable to the Corporation in the amount of C$ __ (which reflects the aggregate Exercise Price of the Options) plus the amount of C$ __ (which reflects the amount the Corporation believes is necessary to remit as part of any Applicable Withholding Taxes), and the foregoing shall be the full payment for the Shares to be received upon exercise of the Options and I acknowledge that the Shares will be issued to me only upon satisfaction of the requirements of Section 2.5 of the Plan;
☐ I hereby elect to receive an amount in cash equal to the cash proceeds realized upon the sale in the capital markets of the Shares underlying the Options by a securities dealer designated by or on behalf of the Corporation, less the aggregate Exercise Price, any Applicable Withholding Taxes and any transfer costs incurred to sell the Shares;
☐ I hereby elect to receive an aggregate number of Shares that is equal to the number of Shares underlying the Options being exercised minus the number of Shares sold in the capital markets by a securities dealer designated by or on behalf of the Corporation as required to realize cash proceeds equal to the aggregate Exercise Price, any Applicable Withholding Taxes and any transfer costs incurred to sell the Shares; or
☐ I hereby elect to transfer and dispose of my Options to the Corporation in exchange for an aggregate number of Shares (rounded down to the nearest whole Share) that is equal to the number of Shares underlying the Options minus the number of Shares with a Fair Market Value equal to the aggregate Exercise Price and any Applicable Withholding Taxes, in accordance with Section 2.5(c) of the Plan.
Date
Participant’s Signature
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