UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO.1
(File No. 333-282163)
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
LITHIUM ARGENTINA AG
(Exact name of registrant as specified in its charter)
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Switzerland
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Not Applicable
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(Province or other jurisdiction of
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(I.R.S. Employer Identification No.)
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incorporation or organization)
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Dammstrasse 19
6300 Zug
Switzerland
(Address of principal executive offices)
900 West Hastings Street, Suite 300,
Vancouver, British Columbia,
Canada V6C 1E5
(North American Mailing Address)
Lithium Argentina AG Second Amended and Restated Equity Incentive Plan (as amended by the
Board on January 23, 2025)
(Full title of plan)
C T Corporation System
28 Liberty St.
New York, New York 10005
(Name and address of agent for service)
(212) 894-8940
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company" in Rule 12b-2 of the Exchange Act:
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Large Accelerated Filer ☐
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Accelerated Filer ☒
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Non-Accelerated Filer ☐
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Smaller Reporting Company ☐
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Emerging growth company ☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(b) of the Securities Act. ☐
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 is being filed pursuant to Rule 414(d) under the Securities Act of 1933, as amended (the "Securities Act"), by Lithium Argentina AG, a Swiss share corporation (the "Registrant" or "Lithium Argentina"), as the successor issuer to Lithium America (Argentina) Corp. ("LAAC").
On January 23, 2025, Lithium Argentina completed a plan of arrangement under the laws of the province of British Columbia (the "Arrangement") involving LAAC's continuation from the province of British Columbia into Zug, Canton of Zug, Switzerland as a Swiss share corporation (Aktiengesellschaft) under the name "Lithium Argentina AG" and concurrent discontinuance of LAAC from the jurisdiction of the Business Corporations Act (British Columbia), as amended (the "BCBCA"), resulting in the shareholders of LAAC becoming the holders of all the issued and outstanding common registered shares of Lithium Argentina (the "Continuation").
The Registrant assumes registration statement on Form S-8 (File No 333-227816), as filed with the Securities and Exchange Commission (the "SEC") on September 17, 2024 (the "Prior Registration Statements"). Pursuant to the Prior Registration Statement, common shares of LAAC were registered for issuance under LAAC's Second Amended and Restated Equity Incentive Plan (as amended by the Board on May 15 and December 3, 2023 and on May 10, 2024 (the "Prior Plan").
Upon the effectiveness of the Continuation, any award agreement previously evidencing outstanding stock options, restricted share units, performance share units and deferred share units granted under the Prior Plan (collectively, the "Incentive Securities") prior to the Continuation will thereafter continue to evidence and be deemed to evidence the same Incentive Securities and no new award agreements evidencing the Incentive Securities shall be required to be issued and they shall continue to be governed by the Prior Plan.
In accordance with Item 512(a)(1)(iii) of Regulation S-K and Compliance and Disclosure Interpretation 126.43, this Post-Effective Amendment No. 1 is hereby filed to cover the issuance of the Lithium Argentina common registered shares underlying the Incentive Securities pursuant to the Lithium Argentina AG Second Amended and Restated Equity Incentive Plan (as amended by the Board on January 23, 2025). The registration fees were paid at the time of filing of the Prior Registration Statement. Because no additional securities are being registered, no further registration fee is required.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from the Registration Statement in accordance with Rule 428 under the Act and Note 1 to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from the Registration Statement in accordance with Rule 428 under the Act and Note 1 to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents which have been and will in the future be filed by the Registrant with the SEC are incorporated into this Registration Statement by reference:
(a) Our Annual Report on Form 40-F as filed with the SEC on March 21, 2024;
(b) Our Current Reports on Form 6-K furnished to the SEC on March 14, 2024 and March 20, 2024. In addition, Exhibit 99.2 of our Current Report on Form 6-K furnished to the SEC on February 26, 2024, Exhibits 99.1 and 99.2 of our Current Report on Form 6-K furnished to the SEC on May 14, 2024, Exhibit 99.3 of our Current Report on Form 6-K furnished to the SEC on May 14, 2024, Exhibits 99.1 and 99.2 of our Current Report on Form 6-K furnished to the SEC on August 14, 2024, Exhibit 99.2 of our Current Report on Form 6-K furnished to the SEC on September 16, 2024, Exhibits 99.1, 99.2 and 99.6 of our Current Report on Form 6-K furnished to the SEC on November 6, 2024, and Exhibits 99.2, 99.7 and 99.8 of our Current Report on Form 6-K to the SEC on December 11, 2024;
(c) All other reports filed by the Registrant under Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") since December 31, 2023.
(d) The description of the Common Shares contained in our Form 8-K12B, as filed with the SEC on January 24, 2025.
In addition, all reports and documents filed by us under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities being offered have been sold or which deregisters all securities then remaining unsold, and any Form 6-K furnished by us during such period or portions thereof that are identified in such Form 6-K as being incorporated by reference into this Registration Statement, shall be deemed to be incorporated by reference in and to be part of this Registration Statement from the date of filing of each such document.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
This area of law is not expressly codified under the Swiss Code of Obligations. Through the application of general legal principles and corporate law concepts, the Registrant believes it may indemnify any of its directors or officers against losses and expenses, including attorney's fees, judgments and settlement amounts actually and reasonably incurred in a legal proceeding or investigative action by reason of having been the representative of, or serving at the request of, the corporation, as long as (i) such individuals acted honestly and in good faith with a view to the best interests of the company, and (ii) have not committed an intentional or grossly negligent breach of their statutory duties as a member of the board of directors or management of the company, as applicable, which, under the Swiss Code of Obligations. This includes the director or officer performing his or her duties with all due diligence and safeguarding the interests of the company in good faith.
Subject to Swiss law and the above mentioned limitations, the Registrant's articles of association provides for indemnification of directors and existing or former members of the executive management of the Registrant's board of directors, member of executive management as well as his or her heirs, and legal personal representatives against all eligible penalties to which such person is or may be liable.
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.
The Registrant has entered into indemnification agreements with each of the members of its board of directors and executive management members.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant, the Registrant has been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
* Previously filed
Item 9. Undertakings.
(a) The 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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this 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 SEC pursuant to Rule 424(b) under the Securities Act of 1933 if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference into this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this 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 of 1933 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 SEC such indemnification is against public policy as expressed in such 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 of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, on the 24th day of January, 2025.
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LITHIUM ARGENTINA AG |
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/s/ Sam Pigott |
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Name: |
Sam Pigott |
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Title: |
President and Chief Executive Officer |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Sam Pigott, Alex Shulga and John Kanellitsas as his or her attorney-in-fact, with the power of substitution, for them in any and all capacities, to sign any amendments to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact, or their substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
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Title |
Date |
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| /s/ Sam Pigott |
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President, Chief Executive Officer, and Executive Director |
January 24, 2025 |
| Sam Pigott |
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| /s/ Alex Shulga |
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VP and Chief Financial Officer |
January 24, 2025 |
| Alex Shulga |
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| /s/ John Kanellitsas |
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Executive Chair |
January 24, 2025 |
| John Kanellitsas |
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| /s/ George Ireland |
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Lead Independent Director |
January 24, 2025 |
| George Ireland |
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| /s/ Diego Lopez Casanello |
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Director |
January 24, 2025 |
| Diego Lopez Casanello |
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| /s/ Franco Mignacco |
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Director |
January 24, 2025 |
| Franco Mignacco |
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| /s/ Robert Doyle |
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Director |
January 24, 2025 |
| Robert Doyle |
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| /s/ Calum Morrison |
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Director |
January 24, 2025 |
| Calum Morrison |
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/s/ Monica Moretto
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Director
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January 24, 2025
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Monica Moretto
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AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the requirements of the Securities Act of 1933, the authorized representative has duly caused this Registration Statement to be signed on its behalf by the undersigned, solely in his capacity as the duly authorized representative of the Registrant in the United States, on the 24th day of January, 2025.
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By: |
/s/ John Kanellitsas
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Name: John Kanellitsas
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Title: Executive Chair
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LITHIUM ARGENTINA AG
(Formerly Lithium Americas (Argentina) Corp.)
SECOND AMENDED AND RESTATED EQUITY INCENTIVE PLAN
(as last amended by the Board on January 23, 2025)
PART 1
PURPOSE
1.1 Purpose
The purpose of this Plan is to secure for the Company and its shareholders the benefits inherent in share ownership by the employees and directors of the Company and its affiliates who, in the judgment of the Board, will be largely responsible for its future growth and success. It is generally recognized that equity incentive plans of the nature provided for herein aid in retaining and encouraging employees and directors of exceptional ability because of the opportunity offered them to acquire a proprietary interest in the Company.
1.2 Available Awards
Awards that may be granted under this Plan include:
(a) Options;
(b) Deferred Share Units; and
(c) Restricted Share Rights (time based or in the form of Performance Share Units).
PART 2
INTERPRETATION
2.1 Definitions
(a) "Affiliate" means any entity that is an affiliate of the Company as defined in National Instrument 45-106 - Prospectus and Registration Exemptions, as may be amended from time to time.
(b) "Arrangement Deferred Share Units" means Deferred Share Units issued as part of the Plan of Arrangement in partial exchange for Outstanding Deferred Share Units.
(c) "Arrangement Departing Participant" has such meaning ascribed thereto in Section 9.2 of this Plan.
(d) "Arrangement Effective Date" means the Effective Date as such term is defined in the Plan of Arrangement.
(e) "Arrangement Effective Time" means the Effective Time as such term is defined in the Plan of Arrangement.
(f) "Arrangement Restricted Share Rights" means Restricted Share Rights issued as part of the Plan of Arrangement in partial exchange for Outstanding Restricted Share Rights.
(g) "Award" means any right granted under this Plan, including Options, Restricted Share Rights and Deferred Share Units.
(h) "BCA" means the Business Corporations Act (British Columbia).
(i) "Blackout Period" means a period in which the trading of Shares or other securities of the Company is restricted under the Company's Corporate Disclosure, Confidentiality and Securities Trading Policy, or under any similar policy of the Company then in effect.
(j) "Board" means the board of directors of the Company.
(k) "Cashless Surrender Right" has the meaning set forth in Section 3.5 of this Plan.
(l) "CEO" means the Chief Executive Officer of the Company.
(m) "Change of Control" means, for greater certainty except for any transaction under the Plan of Arrangement, the occurrence and completion of any one or more of the following events:
(A) the Company shall not be the surviving entity in a merger, amalgamation or other reorganization (or survives only as a subsidiary of an entity other than a previously wholly-owned subsidiary of the Company);
(B) the Company shall sell or otherwise transfer, including by way of the grant of a leasehold interest or joint venture interest (or one or more subsidiaries of the Company shall sell or otherwise transfer, including without limitation by way of the grant of a leasehold interest or joint venture interest) property or assets (i) aggregating more than 50% of the consolidated assets (measured by either book value or fair market value) of the Company and its subsidiaries as at the end of the most recently completed financial year of the Company or (ii) which during the most recently completed financial year of the Company generated, or during the then current financial year of the Company are expected to generate, more than 50% of the consolidated operating income or cash flow of the Company and its subsidiaries, to any other person or persons (other than one or more Designated Affiliates of the Company), in which case the Change of Control shall be deemed to occur on the date of transfer of the assets representing one dollar more than 50% of the consolidated assets in the case of clause (i) or 50% of the consolidated operating income or cash flow in the case of clause (ii), as the case may be;
(C) the Company is to be dissolved and liquidated;
(D) any person, entity or group of persons or entities acting jointly or in concert acquires or gains ownership or control (including, without limitation, the power to vote) more than 50% of the Company's outstanding voting securities; or
(E) as a result of or in connection with: (i) the contested election of directors, or; (ii) a consolidation, merger, amalgamation, arrangement or other reorganization or acquisitions involving the Company or any of its Affiliates and another corporation or other entity in office immediately preceding such election or appointment, the nominees named in the most recent management information circular of the Company for election to the Board shall not constitute a majority of the Board (unless in the case of (ii) such election or appointment is approved by 50% or more of the Board prior to the completion of such transaction).
Notwithstanding the foregoing and to the extent Section 409A is applicable to an Award, for purposes of Awards issued to U.S. Taxpayers, a transaction described above in (A)-(E) will not be deemed a Change of Control unless the transaction qualifies as a change of control event within the meaning of Section 409A, as it has been and may be amended from time to time, and any proposed or final Treasury Regulations and Internal Revenue Service guidance that has been promulgated or may be promulgated thereunder from time to time.
For the purposes of the foregoing, "voting securities" means Shares and any other shares entitled to vote for the election of directors and shall include any securities, whether or not issued by the Company, which are not shares entitled to vote for the election of directors but are convertible into or exchangeable for shares which are entitled to vote for the election of directors, including any options or rights to purchase such shares or securities.
(n) "Code" means the United States Internal Revenue Code of 1986, as amended, and any applicable United States Treasury Regulations and other binding guidance thereunder.
(o) "Committee" has the meaning attributed thereto in Section 8.1.
(p) "Company" means Lithium Argentina AG, a company existing pursuant to art. 620 et seqq. of the Swiss Code of Obligations (previously existing under the BCA as Lithium Americas (Argentina) Corp, and, prior to the Plan of Arrangement, as Lithium Americas Corp.) and its successors.
(q) "Deferred Payment Date" for a Participant means the date after the Restricted Period which is the earlier of (i) the date which the Participant has elected to defer receipt of Shares underlying the Restricted Share Rights in accordance with Section 4.4 of this Plan; and (ii) the Participant's Separation Date.
(r) "Deferred Share Unit" means the agreement by the Company to pay, and the right of the Participant to receive, a Deferred Share Unit Payment for each Deferred Share Unit held, evidenced by way of book-keeping entry in the books of the Company and administered pursuant to this Plan.
(s) "Deferred Share Unit Grant Letter" has the meaning ascribed thereto in Section 5.2 of this Plan.
(t) "Deferred Share Unit Payment" means, subject to any adjustment in accordance with Section 5.5 of this Plan, the issuance to a Participant of one previously unissued Share for each whole Deferred Share Unit credited to such Participant.
(u) "Delegated Options" has the meaning ascribed thereto in Section 3.3 of this Plan.
(v) "Designated Affiliate" means affiliates of the Company designated by the Committee from time to time for purposes of this Plan.
(w) "Director Retirement" in respect of a Participant, means the Participant ceasing to hold any directorships with the Company, any Designated Affiliate and any entity related to the Company for purposes of the Income Tax Act (Canada) after attaining a stipulated age in accordance with the Company's normal retirement policy, or earlier with the Company's consent.
(x) "Director Termination" means the removal of, resignation or failure to re-elect the Eligible Director (excluding a Director Retirement) as a director of the Company, a Designated Affiliate and any entity related to the Company for purposes of the Income Tax Act (Canada).
(y) "Eligible Directors" means the directors of the Company or any Designated Affiliate who are, as such, eligible for participation in this Plan. Notwithstanding the foregoing, for the purposes of Part 5 of this Plan, Eligible Directors shall exclude any directors of the Company or any Designated Affiliate who are also employees of the Company or any Designated Affiliate.
(z) "Eligible Employees" means employees (including employees who are officers and directors) of the Company or any Designated Affiliate thereof, whether or not they have a written employment contract with Company, determined by the Committee as employees eligible for participation in this Plan. Eligible Employees shall include Service Providers eligible for participation in this Plan as determined by the Committee.
(aa) "Fair Market Value" means the closing price of the Shares on the New York Stock Exchange (or the Toronto Stock Exchange if the Company is not then listed on the New York Stock Exchange) on the last day on which Shares were traded immediately preceding the date in respect of which Fair Market Value is to be determined or, if the Shares are not, as of that date listed on the New York Stock Exchange or the Toronto Stock Exchange, on such other exchange or exchanges on which the Shares are listed on that date. If the Shares are not listed and posted for trading on an exchange on such day, the Fair Market Value shall be such price per Share as the Board, acting in good faith, may determine, and with respect to Awards to U.S. Taxpayers, applying valuation methods approved under U.S. Code Section 409A.
(bb) "Form S-8" means the Form S-8 registration statement promulgated under the U.S. Securities Act.
(cc) "Good Reason" in respect of an employee or officer of the Company or any of its Affiliates, means a material adverse change imposed by the Company or an Affiliate (as the case may be), without the consent of such employee or officer, as applicable, in position, responsibilities, salary, benefits, perquisites, as they exist immediately prior to the Change of Control, or a material diminution of title imposed by the Company or the Affiliate (as the case may be), as it exists immediately prior to the Change of Control, and includes other events defined as "Good Reason" under any employment agreement of such employee or officer with the Company or its Affiliate.
(dd) "Insider" has the meaning set out in the TSX Company Manual.
(ee) "Option" means an option to purchase Shares granted under the terms of this Plan.
(ff) "Option Period" means the period during which an Option is outstanding.
(gg) "Option Shares" has the meaning set forth in Section 3.5 of this Plan.
(hh) "Optionee" means an Eligible Employee or Eligible Director to whom an Option has been granted under the terms of this Plan.
(ii) "Outstanding Deferred Share Units" means Deferred Share Units outstanding immediately prior to the Arrangement Effective Time which, as part of the Plan of Arrangement, were exchanged for Arrangement Deferred Share Units and cancelled.
(jj) "Outstanding Restricted Share Rights" means Restricted Share Rights outstanding immediately prior to the Arrangement Effective Time which, as part of the Plan of Arrangement, were exchanged for Arrangement Restricted Share Rights and cancelled.
(kk) "Participant" means an Eligible Employee or Eligible Director who participates in this Plan.
(ll) "Performance Share Units" means Restricted Share Rights that are subject to performance conditions and/or multipliers and designated as such in accordance with Section 4.1 of this Plan.
(mm) "Plan" means this second amended and restated equity incentive plan, as it may be further amended and restated from time to time.
(nn) "Plan of Arrangement" means the plan of arrangement under section 288 of the BCA which has become effective in accordance with the terms of an amended and restated arrangement agreement between the Company and Spinco dated June 14, 2023.
(oo) "Restricted Period" means any period of time that a Restricted Share Right is not vested and the Participant holding such Restricted Share Right remains ineligible to receive the relevant Shares, determined by the Board in its absolute discretion, however, such period of time may be reduced or eliminated from time to time and at any time and for any reason as determined by the Board, including, but not limited to, circumstances involving death or disability of a Participant.
(pp) "Restricted Share Right" or "Restricted Share Units" has such meaning as ascribed to such term at Section 4.1 of this Plan.
(qq) "Restricted Share Right Grant Letter" has the meaning ascribed to such term in Section 4.2 of this Plan.
(rr) "Retirement" in respect of an Eligible Employee, means the Eligible Employee ceasing to hold any employment with the Company or any Designated Affiliate after attaining a stipulated age in accordance with the Company's normal retirement policy, or earlier with the Company's consent.
(ss) "Section 409A" means Section 409A of the Code and all regulations, guidance, compliance programs and other interpretative authority issued thereunder.
(tt) "Separation Date" means the date that a Participant ceases to be an Eligible Director or Eligible Employee; provided, however, that with respect to U.S. Taxpayers and only to the extent an Award is subject to Section 409A, the Separation Date will be the date on which the Eligible Director or Eligible Employee experiences a Separation from Service within the meaning of Section 409A
(uu) "Service Provider" means any person or company engaged by the Company or a Designated Affiliate to provide services for an initial, renewable or extended period of 12 months or more and that complies with the definition of "consultant" or "advisor" as set forth in Form S-8.
(vv) "Shares" means the common registered shares of the Company with a par value of US$0.01 per share.
(ww) "Specified Employee" means a U.S. Taxpayer who meets the definition of "specified employee", as defined in Section 409A(a)(2)(B)(i) of the Internal Revenue Code.
(xx) "Spinco" means, prior to the completion of the Plan of Arrangement, 1397468 B.C. Ltd. (and from and after the completion of the Plan of Arrangement the same corporation as renamed pursuant to the Plan of Arrangement), a corporation incorporated under the BCA and its successors.
(yy) "Spinco Designated Affiliate" means affiliates of Spinco designated by the board of directors of Spinco or the committee of the board of directors of Spinco authorized to administer the Spinco Equity Incentive Plan in accordance with its terms.
(zz) "Spinco Equity Incentive Plan" has the meaning ascribed thereto in the Plan of Arrangement.
(aaa) "Spinco Service Provider" has such meaning as ascribed to such term at Section 9.2 of this Plan.
(bbb) "Termination" means the termination of the employment (or consulting services) of an Eligible Employee with or without cause by the Company or a Designated Affiliate or the cessation of employment (or consulting services) of the Eligible Employee with the Company or a Designated Affiliate as a result of resignation or otherwise, other than the Retirement of the Eligible Employee. For clarity, an Eligible Employee's employment or engagement with the Company or a Designated Affiliate is considered to have terminated effective on the last day of the Eligible Employee's actual and active employment or engagement with the Company or a Designated Affiliate, whether or not the termination or engagement is with or without notice, contractual notice or legal notice.
(ccc) "Triggering Event" means (i) in the case of a director of the Company, the Director Termination of such director; (ii) in the case of an employee of the Company or any of its Affiliates, the termination of the employment of the employee without cause, as the context requires by the Company or the Affiliate or in the case of an officer of the Company or any of its Affiliates, the removal of or failure to re-elect or re-appoint the individual without cause as an officer of the Company or an Affiliate thereof; (iii) in the case of an employee or an officer of the Company or any of its Affiliates, his or her resignation following the occurrence of a Good Reason; (iv) in the case of a Service Provider, the termination of the services of the Service Provider by the Company or any of its Affiliates.
(ddd) "U.S. Securities Act" means the United States Securities Act of 1933, as amended.
(eee) "U.S. Taxpayer" means a Participant who is a U.S. citizen, U.S. permanent resident or other person whose Awards under the Plan are subject totaxation under the Code.
2.2 Interpretation
(a) This Plan is created under and is to be governed, construed and administered in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein.
(b) Whenever the Board or Committee is to exercise discretion in the administration of the terms and conditions of this Plan, the term "discretion" means the sole and absolute discretion of the Board or Committee.
(c) As used herein, the terms "Part" or "Section" mean and refer to the specified Part or Section of this Plan, respectively.
(d) Where the word "including" or "includes" is used in this Plan, it means "including (or includes) without limitation".
(e) Words importing the singular include the plural and vice versa and words importing any gender include any other gender.
(f) Unless otherwise specified, all references to money amounts are to Canadian dollars.
PART 3
STOCK OPTIONS
3.1 Participation
The Company may from time to time grant Options to Participants pursuant to this Plan.
3.2 Price
The exercise price (which will be set in U.S. dollars) per Share of any Option shall be not less than one hundred per cent (100%) of the Fair Market Value of the Share on the date of grant.
3.3 Grant of Options
The Board, on the recommendation of the Committee, may at any time authorize the granting of Options to such Participants as it may select for the number of Shares that it shall designate, subject to the provisions of this Plan. The Board may also, by way of Board resolution, delegate to the CEO the authority to grant any of a designated number of Options (such number to be specified by the Board in the aforementioned resolution) to Eligible Employees, other than Eligible Employees who are officers or directors of the Company (such Options, the "Delegated Options"). The date of grant of an Option shall be (i) the date such grant was approved by the Committee for recommendation to the Board, provided the Board approves such grant; or (ii) for a grant of an Option not approved by the Committee for recommendation to the Board, the date such grant was approved by the Board; or (iii) in respect of Delegated Options, the date such grant is made by the CEO. Notwithstanding the foregoing, the Board may authorize the grant of Options at any time with such grant to be effective at a later date and the corresponding determination of the exercise price to be done at such date to accommodate any Blackout Period or such other circumstances where such delayed grant is deemed appropriate, and the date of grant of such Options shall then be the effective date of the grant.
Each Option granted to a Participant shall be evidenced by a stock option grant letter or agreement, in physical or electronic format (including by way of an entry in any electronic incentive compensation system maintained by the Company or a third-party service provider on its behalf), with terms and conditions consistent with this Plan and as approved by the Board on the recommendation of the Committee, or, in respect of Delegated Options, by the CEO (and in all cases which terms and conditions need not be the same in each case and may be changed from time to time, subject to Section 7.8 of this Plan, and the approval of any material changes by the Toronto Stock Exchange or such other exchange or exchanges on which the Shares are then traded).
3.4 Terms of Options
The Option Period shall be five (5) years from the date such Option is granted, or such greater or lesser duration as the Board, on the recommendation of the Committee, or in the case of Delegated Options, the CEO, may determine at the date of grant, and may thereafter be reduced with respect to any such Option as provided in Section 3.6 hereof covering termination of employment or death of the Optionee; provided, however, that at any time the expiry date of the Option Period in respect of any outstanding Option under this Plan should be determined to occur either during a Blackout Period or within ten (10) business days following the expiry of the Blackout Period, the expiry date of such Option Period shall be deemed to be the date that is the tenth (10th) business day following the expiry of the Blackout Period. Notwithstanding the foregoing, the expiry date of any Option granted to a U.S. Taxpayer shall not be extended if such extension would violate Section 409A.
Unless otherwise determined from time to time by the Board, on the recommendation of the Committee, or, in respect of Delegated Options, by the CEO, Options shall vest and may be exercised (in each case to the nearest full Share) during the Option Period as follows:
(a) at any time during the first six (6) months of the Option Period, the Optionee may purchase up to 25% of the total number of Shares reserved for issuance pursuant to his or her Option; and
(b) at any time during each additional six (6) month period of the Option Period the Optionee may purchase an additional 25% of the total number of Shares reserved for issuance pursuant to his or her Option plus any Shares not purchased in accordance with the preceding subsection (a) and this subsection (b) until, after the 18th month of the Option Period, 100% of the Option will be exercisable.
Except as set forth in Section 3.6, no Option may be exercised unless the Optionee is at the time of such exercise:
(a) in the case of an Eligible Employee, in the employ (or retained as a Service Provider) of the Company or a Designated Affiliate and shall have been continuously so employed or retained since the grant of the Option; or
(b) in the case of an Eligible Director, a director of the Company or a Designated Affiliate and shall have been such a director continuously since the grant of the Option.
The exercise of any Option will be contingent upon the Optionee having entered into an Option agreement with the Company on such terms and conditions as have been approved by the Board, on the recommendation of the Committee, or, in respect of the Delegated Options, by the CEO, and which in any case incorporates by reference the terms of this Plan. The exercise of any Option will, subject to Section 3.5, also be contingent upon receipt by the Company of cash payment of the full purchase price of the Shares being purchased.
3.5 Cashless Surrender Right
Participants have the right (the "Cashless Surrender Right"), in lieu of the right to exercise an Option, to surrender such Option in whole or in part by notice in writing delivered by the Participant to the Company electing to exercise the Cashless Surrender Right, and, in lieu of receiving the full number of Shares (the "Option Shares") to which such surrendered Option (or portion thereof) relates, to receive the number of Shares (subject to the payment in cash of the par value of each such Share, to the extent applicable, and subject to satisfaction of applicable tax withholding requirements) disregarding fractions, which is equal to the quotient obtained by:
(a) subtracting the applicable Option exercise price per Share (after deducting the par value paid for each Share, to the extent applicable) from the Fair Market Value per Share on the business day immediately prior to the exercise of the Cashless Surrender Right and multiplying the remainder by the number of Option Shares; and
(b) dividing the product obtained under subsection 3.5(a) by the Fair Market Value per Share on the business day immediately prior to the exercise of the Cashless Surrender Right.
If a Participant exercises a Cashless Surrender Right in connection with an Option, it is exercisable only to the extent and on the same conditions that the related Option is exercisable under this Plan.
If an Optionee exercises a Cashless Surrender Right in connection with an Option, to the extent that such Optionee would be entitled to a deduction under paragraph 110(1)(d) of the Income Tax Act (Canada) in respect of such exercise if the election described in subsection 110(1.1) of the Income Tax Act (Canada) were made and filed (and the other procedures described therein were undertaken) on a timely basis after such exercise, the Corporation will cause such election to be so made and filed (and such other procedures to be so undertaken).
3.6 Effect of Termination of Employment or Death
If an Optionee:
(a) dies while employed by, or while a Service Provider or a director of, the Company or a Designated Affiliate, any Option held by him or her at the date of death shall become exercisable in whole or in part, but only by the person or persons to whom the Optionee's rights under the Option shall pass by the Optionee's will or applicable laws of descent and distribution. Unless otherwise determined by the Board, on the recommendation of the Committee, all such Options shall be exercisable only to the extent that the Optionee was entitled to exercise the Option at the date of his or her death and only for 12 months after the date of death or prior to the expiration of the Option Period in respect thereof, whichever is sooner; and
(b) ceases to be employed by, or act as a Service Provider or director of, the Company or a Designated Affiliate for cause, no Option will, unless otherwise determined by the Board, on the recommendation of the Committee, be exercisable following the date on which such Optionee ceases to be so engaged. If an Optionee ceases to be employed by, or act as a Service Provider or director of, the Company or a Designated Affiliate for any reason other than cause then, unless otherwise determined by the Board, on the recommendation of the Committee, any Option held by such Optionee at the effective date thereof shall become exercisable for a period of up to 12 months thereafter or prior to the expiration of the Option Period in respect thereof, whichever is sooner.
3.7 Effect of Change of Control
If a Triggering Event occurs within the 12-month period immediately following a Change of Control pursuant to the provisions of Section 2.1(m)(A), (B), (D) or (E), all outstanding Options shall vest immediately and become exercisable on the date of such Triggering Event.
In the event of a Change of Control pursuant to the provisions of Section 2.1(m)(C), all Options outstanding shall immediately vest and become exercisable on the date of such Change of Control.
The provisions of this Section 3.7 shall be subject to the terms of any employment agreement between the Participant and the Company.
3.8 Effect of Amalgamation or Merger
Subject to Section 3.7, if the Company amalgamates or otherwise completes a plan of arrangement or merges with or into another corporation, any Shares receivable on the exercise of an Option shall be converted into the securities, property or cash which the Participant would have received upon such amalgamation, arrangement or merger if the Participant had exercised his or her Option immediately prior to the record date applicable to such amalgamation, arrangement or merger, and the option price shall be adjusted appropriately by the Board and such adjustment shall be binding for all purposes of this Plan.
PART 4
RESTRICTED SHARE RIGHTS AND PERFORMANCE SHARE UNITS
4.1 Participants
The Board has the right to grant, in its sole and absolute discretion, to any Participant, rights to receive (subject to the payment in cash of the par value for each Share, to the extent applicable) any number of fully paid and non-assessable Shares ("Restricted Share Rights" or "Restricted Share Units") as a discretionary payment in consideration of past services to the Company or as an incentive for future services, subject to this Plan and with such additional provisions and restrictions as the Board may determine. Restricted Share Rights may be granted subject to performance conditions and/or performance multipliers, in which case such Restricted Share Rights may be designated as "Performance Share Units".
4.2 Restricted Share Right Grant Letter
Each grant of a Restricted Share Right under this Plan shall be evidenced by a grant letter or agreement. in physical or electronic format (including by way of an entry in any electronic incentive compensation system maintained by the Company or a third-party service provider on its behalf). (a "Restricted Share Right Grant Letter") issued to the Participant by the Company. Such Restricted Share Right Grant Letter shall be subject to all applicable terms and conditions of this Plan and may be subject to any other terms and conditions which are not inconsistent with this Plan and which the Board, on the recommendation of the Committee, deems appropriate for inclusion in a Restricted Share Right Grant Letter. The provisions of the various Restricted Share Right Grant Letters issued under this Plan need not be identical.
4.3 Restricted Period
Concurrent with the determination to grant Restricted Share Rights to a Participant, the Board, on the recommendation of the Committee, shall determine the Restricted Period and vesting requirements applicable to such Restricted Share Rights. Vesting of a Restricted Share Right shall be determined at the sole discretion of the Board at the time of grant and shall be specified in the Restricted Share Right Grant Letter. Vesting requirements may be based upon the continued employment or other service of a Participant, and/or to performance conditions to be achieved by the Company or a class of Participants or by a particular Participant on an individual basis, within a Restricted Period, for such Restricted Share Rights to entitle the holder thereof to receive the underlying Shares (and the number of underlying Shares that may be received may be subject to performance multipliers). Upon expiry of the applicable Restricted Period (or on the Deferred Payment Date, as applicable), a Restricted Share Right shall be automatically settled, and without the payment of additional consideration (subject to the payment in cash of the par value for each Share, to the extent applicable) or any other further action on the part of the holder of the Restricted Share Right, the underlying Shares shall be issued to the holder of such Restricted Share Rights, which Restricted Share Rights shall then be cancelled.
4.4 Deferred Payment Date
Participants who are residents of Canada for the purposes of the Income Tax Act (Canada), or who are residents of Argentina or elsewhere unless prohibited by the Board, and not, in any case, a U.S. Taxpayer, may elect to defer to receive all or any part of the Shares underlying Restricted Share Rights until one or more Deferred Payment Dates. Any other Participants may not elect a Deferred Payment Date.
4.5 Prior Notice of Deferred Payment Date
Participants who elect to set a Deferred Payment Date must, in respect of each such Deferred Payment Date, give the Company written notice of the Deferred Payment Date(s) not later than thirty (30) days prior to the expiration of the applicable Restricted Period. For certainty, Participants shall not be permitted to give any such notice after the day which is thirty (30) days prior to the expiration of the Restricted Period and a notice once given may not be changed or revoked. For the avoidance of doubt, the foregoing shall not prevent a Participant from electing an additional Deferred Payment Date, provided, however that notice of such election is given by the Participant to the Company not later than thirty (30) days prior to the expiration of the subject Restricted Period.
4.6 Retirement or Termination during Restricted Period
Subject to the terms of any employment agreement or Award agreement between the Company and the Participant, in the event and to the extent of the Retirement or Termination and/or, as applicable, the Director Retirement or Director Termination of a Participant from all such roles with the Company during the Restricted Period, any Restricted Share Rights held by the Participant shall immediately terminate and be of no further force or effect; provided, however, that the Board shall have the absolute discretion to modify the Restricted Share Rights, including to provide that the Restricted Period shall terminate immediately prior to the date of such occurrence or, with respect to any Participants that are not U.S. Taxpayers, allow the Restricted Share Rights to continue in accordance with their original Restricted Periods.
4.7 Retirement or Termination after Restricted Period
In the event and to the extent of the Retirement or Termination and/or, as applicable, the Director Retirement or Director Termination of the Participant from all such roles with the Company following the Restricted Period and prior to a Deferred Payment Date, the Participant shall be entitled to receive, and the Company shall issue forthwith, Shares in satisfaction of the Restricted Share Rights then held by the Participant.
4.8 Death or Disability of Participant
In the event of the death or total disability of a Participant, any Shares represented by Restricted Share Rights held by the Participant shall be immediately issued by the Company to the Participant or legal representative of the Participant.
4.9 Payment of Dividends
Subject to the absolute discretion of the Board, in the event that a dividend (other than a stock dividend) is declared and paid by the Company on the Shares, a Participant may be credited with additional Restricted Share Rights. The number of such additional Restricted Share Rights, if any, will be calculated by dividing (a) the total amount of the dividends that would have been paid to the Participant if the Restricted Share Rights (including Restricted Share Rights in which the Restricted Period has expired but the Shares have not been issued due to a Deferred Payment Date) in the Participant's account on the dividend record date had been outstanding Shares (and the Participant held no other Shares) by (b) the Fair Market Value of the Shares on the date on which such dividends were paid. If the foregoing results in a fractional Restricted Share Right, the fraction shall be disregarded. Any additional Restricted Share Rights awarded pursuant to this Section will be subject to the same terms, including the time of settlement, as the Restricted Share Rights to which they relate.
4.10 Change of Control
If a Triggering Event occurs within the 12-month period immediately following a Change of Control pursuant to the provisions of Section 2.1(m)(A), (B), (D) or (E), all outstanding Restricted Share Right Rights shall vest immediately and be settled by the issuance of Shares notwithstanding the Restricted Period and any Deferred Payment Date.
In the event of a Change of Control pursuant to the provisions of Section 2.1(m)(C), all Restricted Shares Rights outstanding shall immediately vest and be settled by the issuance of Shares notwithstanding the Restricted Period and any Deferred Payment Date.
Notwithstanding any provision of this Plan, in the event of a Change of Control, all Arrangement Restricted Share Rights outstanding held by Arrangement Departing Participants shall vest immediately and be settled by the issuance of Shares notwithstanding the Restricted Period and any Deferred Payment Date.
The provisions of this Section 4.10 shall be subject to the terms of any employment agreement between the Participant and the Company.
4.11 Settlement Basis for Performance Share Units
In respect of Performance Share Units that are accelerated as a result of a Change of Control or the total disability or death of a Participant, unless the Board determines otherwise and subject to any employment agreement or Award agreement between the Company and the Participant, (i) in respect of any performance measurement periods that are completed on or prior to the Change of Control, total disability or death of a Participant, the proportion of Performance Share Units equivalent to the performance measurement periods completed shall be settled by applying a performance multiplier calculated based on the actual performance in respect to such completed periods, and (ii) in respect of any performance measurement periods that are not completed on or prior to the Change of Control, total disability or death of a Participant, the equivalent proportion of Performance Share Units in respect to such periods shall be settled by applying a performance multiplier of one Share for each Performance Share Unit.
PART 5
DEFERRED SHARE UNITS
5.1 Deferred Share Unit Grants
The Board may from time to time determine to grant Deferred Share Units to one or more Eligible Directors in a lump sum amount or on regular intervals, based on such formulas or criteria as the Board may from time to time determine. Deferred Share Units will be credited to the Eligible Director's account when designated by the Board.
5.2 Deferred Share Unit Grant Letter
Each grant of a Deferred Share Unit under this Plan shall be evidenced by a grant letter or agreement, in physical or electronic format (including by way of an entry in any electronic incentive compensation system maintained by the Company or a third-party service provider on its behalf) (a "Deferred Share Unit Grant Letter") issued to the Eligible Director by the Company. Such Deferred Share Unit Grant Letter shall be subject to all applicable terms and conditions of this Plan and may be subject to any other terms and conditions which are not inconsistent with this Plan and which the Board deems appropriate for inclusion in a Deferred Share Unit Grant Letter. The provisions of Deferred Share Unit Grant Letters issued under this Plan need not be identical.
5.3 Redemption of Deferred Share Units and Issuance of Deferred Shares
The Deferred Share Units held by each Eligible Director shall be redeemed automatically and with no further action by the Eligible Director on the 20th business day following the Separation Date for that Eligible Director, subject to Section 7.10, if applicable. Upon redemption, the former Eligible Director shall be entitled to receive and the Company shall issue, subject to the limitations set forth in Section 7.1 of this Plan, the number of Shares issued out of the Company's conditional share capital for equity incentive plans equal to the number of Deferred Share Units in the Eligible Director's account, subject to any applicable deductions and withholdings. In the event a Separation Date occurs during a year and Deferred Share Units have been granted to such Eligible Director for that entire year, the Eligible Director will only be entitled to a pro-rated Deferred Share Unit Payment in respect of such Deferred Share Units based on the number of days that he or she was an Eligible Director in such year.
No amount will be paid to, or in respect of, an Eligible Director under this Plan or pursuant to any other arrangement, and no other additional Deferred Share Units will be granted to compensate for a downward fluctuation in the value of the Shares of the Company nor will any other benefit be conferred upon, or in respect of, an Eligible Director for such purpose.
Any issuance of Shares in settlement of Deferred Share Units shall be subject to the payment in cash of the par value for each Share to the extent applicable.
5.4 Death of Participant
In the event of the death of an Eligible Director, the Deferred Share Units shall be redeemed automatically and with no further action on the 20th business day following the death of an Eligible Director.
5.5 Payment of Dividends
Subject to the absolute discretion of the Board, in the event that a dividend (other than a stock dividend) is declared and paid by the Company on the Shares, an Eligible Director may be credited with additional Deferred Share Units. The number of such additional Deferred Share Units, if any, will be calculated by dividing (a) the total amount of the dividends that would have been paid to the Eligible Director if the Deferred Share Units in the Eligible Director's account on the dividend record date had been outstanding Shares (and the Eligible Director held no other Shares), by (b) the Fair Market Value of the Shares on the date on which such dividends were paid. If the foregoing results in a fractional Deferred Share Unit, the fraction shall be disregarded. Any additional Deferred Share Units awarded pursuant to this Section will be subject to the same terms, including the time of settlement, as the Deferred Share Units to which they relate.
PART 6
SOCIAL SECURITY AND WITHHOLDING TAXES
The Company or any Designated Affiliate may take such steps as are considered necessary or appropriate for the withholding of any social security contributions, payroll withholding taxes, or other taxes or other amounts which the Company or any Designated Affiliate is required by any law or regulation of any governmental authority whatsoever to withhold in connection with any Award including, without limiting the generality of the foregoing, the withholding of all or any portion of any payment or the withholding of the issue of any Shares to be issued under this Plan, until such time as the Participant has paid the Company or any Designated Affiliate for any amount which the Company or Designated Affiliate is required to withhold by law with respect to such taxes or other amounts. Without limitation to the foregoing, the Board may adopt administrative rules under this Plan, which provide for the automatic sale of Shares (or a portion thereof) in the market upon the issuance of such Shares under this Plan on behalf of the Participant to satisfy withholding obligations under an Award.
PART 7
GENERAL
7.1 Number of Shares
The aggregate number of Shares that may be issued under this Plan (together with any other securities-based compensation arrangements of the Company in effect from time to time) shall not exceed 8% of the outstanding issue (as defined below) from time to time, such Shares to be allocated among Awards and Participants in amounts and at such times as may be determined by the Board from time to time. In addition, the aggregate number of Shares that may be issued and issuable under this Plan (when combined with all of the Company's other security-based compensation arrangements, as applicable),
(a) to Insiders shall not exceed 10% of the Company's outstanding issue from time to time;
(b) to Insiders within any one-year period shall not exceed 10% of the Company's outstanding issue from time to time; and
(c) to any one Insider and his or her associates or Affiliates within any one-year period shall not exceed 5% of the Company's outstanding issue from time to time.
In no event will the number of Shares that may be issued to any one Participant pursuant to Awards under this Plan (when combined with all of the Company's other security-based compensation arrangement, as applicable) exceed 5% of the Company's outstanding issue from time to time.
The aggregate number of Options that may be granted under this Plan to any one non-employee director of the Company within any one-year period shall not exceed a maximum value of US$100,000 worth of securities, and together with any Restricted Share Rights and Deferred Share Units granted under this Plan and any securities granted under all other securities-based compensation arrangements, such aggregate value shall not exceed US$150,000 in any one-year period. The calculation of this limitation shall not include however: (i) the initial securities granted under securities-based compensation arrangements to a person who was not previously a director of the Company, upon such person becoming or agreeing to become a director of the Company; (ii) the securities granted under securities-based compensation arrangements to a person who was a director of the Company immediately prior to Arrangement Effective Time and who continued to be a director of the Company following the Arrangement Effective Time; (iii) the securities granted under securities-based compensation arrangements to a director of the Company who was also an officer of the Company at the time of grant but who subsequently became a non-employee director; and (iv) any securities granted to a non-employee director that is granted in lieu of any director cash fee provided the value of the security awarded has the same value as the cash fee given up in exchange for such security. For greater clarity, in this Plan, securities-based compensation arrangements include securities issued under this Plan and any other compensation arrangements implemented by the Company including stock options, other stock option plans, employee stock purchase plans, stock appreciation right plans, deferred share unit plans, performance share unit plans, restricted share unit plans or any other compensation or incentive mechanism involving the issuance or potential issuance of Shares from treasury, but excludes any compensation arrangement that does not involve the issuance of Shares from treasury and any other compensation arrangements assumed or inherited by the Company in connection with the acquisition of another entity.
For the purposes of this Section 7.1, "outstanding issue" means the total number of Shares, on a non-diluted basis, that are issued and outstanding immediately prior to the date that any Shares are issued or reserved for issuance pursuant to an Award.
For greater certainty, any increase in the issued and outstanding Shares will result in an increase in the available number of Shares issuable under the Plan, and the exercise or settlement of Awards will make new grants available under the Plan, subject to article 5 (conditional share capital for equity incentive plans) in the articles of association of the Company.
For greater clarity, the issuance of Arrangement Restricted Share Rights and Arrangement Deferred Share Units shall not be treated as a new grant of Restricted Share Rights and Deferred Share Units, respectively.
7.2 Lapsed Awards
If Awards are surrendered, terminated or expire without being exercised in whole or in part, new Awards may be granted covering the Shares not issued under such lapsed Awards, subject to any restrictions that may be imposed by the Toronto Stock Exchange.
7.3 Adjustment in Shares Subject to this Plan
If there is any change in the Shares through the declaration of stock dividends of Shares, through any consolidations, subdivisions or reclassification of Shares, or otherwise, the number of Shares available under this Plan, the Shares subject to any Award, and the exercise price of any Option shall be adjusted as determined to be appropriate by the Board, and such adjustment shall be effective and binding for all purposes of this Plan.
7.4 Transferability
Any Awards accruing to any Participant in accordance with the terms and conditions of this Plan shall not be transferable unless specifically provided herein. During the lifetime of a Participant all Awards may only be exercised by the Participant. Awards are non-transferable except by will or by the laws of descent and distribution.
7.5 Employment
Nothing contained in this Plan shall confer upon any Participant any right with respect to employment or continuance of employment with the Company or any Affiliate, or interfere in any way with the right of the Company or any Affiliate to terminate the Participant's employment at any time. Participation in this Plan by a Participant is voluntary.
7.6 Record Keeping
The Company (in physical or electronic format (including by way of an electronic incentive compensation system maintained by the Company or a third-party service provider on its behalf)) shall maintain a register in which shall be recorded:
(a) the name and address of each Participant;
(b) the number of Awards granted to each Participant and relevant details regarding such Awards; and
(c) such other information as the Board may determine.
7.7 Necessary Approvals
This second amended and restated equity incentive plan of the Company continues to be in effect. The amendments adopted by the Board on January 25, 2025 shall become effective on such date, subject in all cases to the approval of (a) the Toronto Stock Exchange and (b) the New York Stock Exchange, if applicable.
7.8 Amendments to Plan
The Board shall have the power to, at any time and from time to time, either prospectively or retrospectively, amend, suspend or terminate this Plan or any Award granted under this Plan without shareholder approval, including, without limiting the generality of the foregoing: changes of a clerical or grammatical nature, changes regarding the persons eligible to participate in this Plan, changes to the exercise price, vesting, term and termination provisions of the Award, changes to the Cashless Surrender Right provisions, changes to the authority and role of the Board under this Plan, and any other matter relating to this Plan and the Awards that may be granted hereunder, provided however that:
(a) such amendment, suspension or termination is in accordance with the articles of association of the Company, applicable laws and the rules of any stock exchange on which the Shares are listed;
(b) no amendment to this Plan or to an Award granted hereunder will have the effect of impairing, derogating from or otherwise adversely affecting the terms of an Award which is outstanding at the time of such amendment without the written consent of the holder of such Award;
(c) the expiry date of an Option Period in respect of an Option shall not be more than ten (10) years from the date of grant of an Option except as expressly provided in Section 3.4;
(d) the Directors shall obtain shareholder approval of:
(i) any amendment to the number of Shares specified in Section 7.1;
(ii) any amendment to the limitations on Shares that may be reserved for issuance, or issued, to Insiders, or remove participation limits on non-employee directors or increase the amounts of participation limits on non-employee directors;
(iii) any amendment that would reduce the exercise price of an outstanding Option other than pursuant to Section 7.3 or permits the cancellation and re-issuance of Options;
(iv) any amendment that would extend the expiry date of the Option Period in respect of any Option granted under this Plan except as expressly contemplated in Section 3.4;
(v) any amendment to permit Options to be transferred other than for normal estate settlement purposes; or
(vi) any amendment to reduce the range of amendments requiring shareholder approval contemplated in this Section.
If this Plan is terminated, the provisions of this Plan and any administrative guidelines and other rules and regulations adopted by the Board and in force on the date of termination will continue in effect as long as any Award or any rights pursuant thereto remain outstanding and, notwithstanding the termination of this Plan, the Board shall remain able to make such amendments to this Plan or the Award as they would have been entitled to make if this Plan were still in effect.
7.9 No Representation or Warranty
The Company makes no representation or warranty as to the future market value of any Shares issued in accordance with the provisions of this Plan.
7.10 Section 409A
It is intended that any payments under the Plan to U.S. Taxpayers shall be exempt from or comply with Section 409A, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes and penalties under Section 409A. If any amount of an Award subject to Section 409A is payable upon a Separation from Service to a Participant who is considered a Specified Employee, then no such payment shall be made prior to the date that is the earlier of (i) six months and one day after the Participant's Separation from Service, or (ii) the Participant's death, but only to the extent such delay is necessary to prevent such payment from being subject to interest, penalties and/or additional tax imposed pursuant to Section 409A.
7.11 Compliance with Applicable Law, etc.
If any provision of this Plan or any agreement entered into pursuant to this Plan contravenes any law or any order, policy, by-law or regulation of any regulatory body or stock exchange having authority over the Company or this Plan, then such provision shall be deemed to be amended to the extent required to bring such provision into compliance therewith.
All Awards and securities which may be acquired pursuant to the exercise of the Awards to be issued pursuant to the Plan will be issued pursuant to the registration requirements of the U.S. Securities Act and applicable state securities laws or an exemption or exclusion from such registration requirements.
7.12 Clawback and Recoupment
All Awards under this Plan shall be subject to forfeiture or other penalties pursuant to any Company clawback policy, as may be adopted or amended from time to time, and such forfeiture and/or penalty conditions or provisions as determined by the Committee.
7.13 Limitations on Grants under Swiss Law
Grants of Awards to directors of the Company and grants of Awards to officers of the Company who are designated by the Board as members of the Company's "executive management" in accordance with Swiss law, shall be subject to the aggregate amount of compensation to be paid to the directors or to executive management, as applicable, in respect of which such grants relate, having been approved by shareholders of the Company as required by the applicable Swiss law requirements with respect to say-on pay. Any Awards granted without the foregoing shareholder approval shall be null and void.
7.14 Term of the Plan
This Plan shall remain in effect until it is terminated by the Board.
PART 8
ADMINISTRATION OF THIS PLAN
8.1 Administration by the Committee
(a) Unless otherwise determined by the Board, this Plan shall be administered by the Governance, Nomination, Compensation and Leadership Committee (the "Committee") or equivalent committee appointed by the Board and constituted in accordance with such Committee's charter.
(b) The Committee shall have the power, where consistent with the general purpose and intent of this Plan and subject to the specific provisions of this Plan, to:
(i) adopt and amend rules and regulations relating to the administration of this Plan and make all other determinations necessary or desirable for the administration of this Plan. The interpretation and construction of the provisions of this Plan and related agreements by the Committee shall be final and conclusive. The Committee may correct any defect or supply any omission or reconcile any inconsistency in this Plan or in any related agreement in the manner and to the extent it shall deem expedient to carry this Plan into effect and it shall be the sole and final judge of such expediency; and
(ii) otherwise exercise the powers delegated to the Committee by the Board and under this Plan as set forth herein.
8.2 Board Role
(a) The Board, on the recommendation of the Committee or of its own volition, shall determine and designate from time to time the individuals to whom Awards shall be made, the amounts of the Awards and the other terms and conditions of the Awards. The Board may delegate this authority as it sees fit, including as set forth in Section 3.3.
(b) The Board may delegate any of its responsibilities or powers under this Plan to (i) the Committee, or (ii) the CEO as set forth in Section 3.3.
(c) In the event the Committee or, in respect of the Delegated Options, the CEO, is unable or unwilling to act in respect of a matter involving this Plan, the Board shall fulfill the role of the Committee (or CEO, as the case may be) provided for herein.
PART 9
PLAN OF ARRANGEMENT
9.1 Plan of Arrangement
This second amended and restated equity incentive Plan has been amended to contemplate the Plan of Arrangement. To the extent applicable, it is intended that the Outstanding Restricted Share Rights and the Outstanding Deferred Share Units will be exchanged for Arrangement Restricted Share Rights and Arrangement Deferred Share Units, respectively, pursuant to the Plan of Arrangement on a tax-deferred basis under subsection 7(1.4) of the Income Tax Act (Canada).
9.2 Arrangement Restricted Share Rights
(a) For all purposes under the Plan, the date on which an Arrangement Restricted Share Right is granted for purposes of the Plan shall be deemed to be the date of the grant of the Outstanding Restricted Share Right for which such Arrangement Restricted Share Right was exchanged as part of the Plan of Arrangement and, except as set out herein or in the Plan of Arrangement and with such adjustments as the circumstances require, the Arrangement Restricted Share Right shall be deemed (unless otherwise determined by the Board) to have the same terms and conditions (including vesting and expiration) as the Outstanding Restricted Share Right for which such Arrangement Restricted Share Right was exchanged as part of the Plan of Arrangement.
(b) With respect to Arrangement Restricted Share Rights that replace Performance Share Units, all such Arrangement Restricted Share Rights shall (unless otherwise determined by the Board) be subject to the same time based vesting period as the Performance Share Unit they replace and upon vesting such Arrangement Restricted Share Rights shall be fully satisfied by the issuance of one Share (unless otherwise determined by the Board) irrespective of the applicable performance multiplier to which the Performance Share Unit was subject. Notwithstanding the foregoing, Arrangement Restricted Share Rights that replace Performance Share Units that were fully vested and outstanding prior to the Arrangement Effective Time may be settled by the Company in accordance with the performance multiplier applicable to the Performance Share Units replaced.
(c) In addition, notwithstanding anything contained herein to the contrary, in respect of each person that is a Participant immediately prior to the Arrangement Effective Time that, due to or in connection with the Arrangement, who ceases to be an Eligible Director or an Eligible Employee and becomes a director, officer or employee of Spinco or any Spinco Designated Affiliate, or provides ongoing services for Spinco or any Spinco Designated Affiliate and complies with the definition of "consultant" or "advisor" as set forth in Form S-8 (a "Spinco Service Provider") (each such director, officer, employee or Spinco Service Provider, an "Arrangement Departing Participant"), all Arrangement Restricted Share Rights (other than those issued pursuant to paragraph (b)) issued to such Arrangement Departing Participant that replace Outstanding Restricted Share Rights shall (unless otherwise determined by the Board) immediately vest and the underlying Shares shall be issued to the holder of such Arrangement Restricted Share Rights as soon as practicable by the Company following the Arrangement Effective Date (provided that the Company may establish a schedule for the settlement of Arrangement Restricted Share Rights to ensure the orderly sale of Shares in the markets to satisfy tax withholding obligations), which Arrangement Restricted Share Rights shall then be cancelled.
(d) With respect to Arrangement Restricted Share Rights issued to an Arrangement Departing Participant that are not immediately vested, upon such Arrangement Departing Participant ceasing to be a director, officer or employee of Spinco or any Spinco Designated Affiliates, or a Spinco Service Provider, as applicable, such Arrangement Departing Participant shall be treated for the purposes of this Plan as having ceased to be so employed with the Company and its Designated Affiliates and such Arrangement Departing Participant's Arrangement Restricted Share Rights shall be dealt with in accordance with Section 4.6 of this Plan.
9.3 Arrangement Deferred Share Units
(a) For all purposes under the Plan, the date on which an Arrangement Deferred Share Unit is granted for purposes of the Plan shall be deemed to be the date of the grant of the Outstanding Deferred Share Unit for which such Arrangement Deferred Share Unit was exchanged as part of the Plan of Arrangement and, except as set out herein or in the Plan of Arrangement and with such adjustments as the circumstances require, the Arrangement Deferred Share Unit shall be deemed (unless otherwise determined by the Board) to have the same terms and conditions (including vesting and expiration) as the Outstanding Deferred Share Unit for which such Arrangement Deferred Share Unit was exchanged as part of the Plan of Arrangement.
(b) Notwithstanding anything contained herein to the contrary, (unless otherwise determined by the Board) all Arrangement Deferred Share Units issued to Arrangement Departing Participants shall immediately vest and the underlying Shares shall be issued to the holder of such Arrangement Deferred Share Units as soon as practicable by the Company following the Arrangement Effective Date (provided that the Company may establish a schedule for the settlement of Arrangement Deferred Share Units to ensure the orderly sale of Shares in the markets to satisfy tax withholding obligations), which Arrangement Deferred Share Units shall then be cancelled.
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To:
Lithium Argentina AG
Dammstrasse 19
6300 Zug
Switzerland
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Zurich, 24 January 2025
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Lithium Argentina AG: Swiss Legal Opinion Regarding Post-Effective Amendment No. 1 to the Registration Statement on Form S-8
Ladies and Gentlemen,
We have been retained by and are acting as independent Swiss counsel to Lithium Argentina AG, a Swiss share corporation (Aktiengesellschaft), with registered seat in Zug, Switzerland (the "Company"), which, with effectiveness as of 23 January 2025, implemented the continuation of Lithium (Americas) Argentina Corp. ("LAAC") from the province of British Columbia, Canada into Zug, Canton of Zug, Switzerland by way of a plan of arrangement under section 288 of the Business Corporations Act (British Columbia) (the "BCBCA") as a Swiss share corporation under the name "Lithium Argentina AG" pursuant to art. 161 et seq. of the Federal Act on Private International Law ("PILA") and art. 620 et seqq. of the Swiss Code of Obligations ("CO") and the concurrent discontinuance of LAAC from the jurisdiction of the province of British Columbia, Canada, resulting in the shareholders of LAAC becoming the holders of all the issued and outstanding common registered shares of the Company, with full continuation of its legal and corporate personality without applying any dissolution or winding-up procedures to LAAC and LAAC and the Company remaining the same legal person (the "Continuation").
We have been instructed by the Company to provide this opinion as to certain legal matters under Swiss law in connection with the Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 (the "Amended Registration Statement") to be filed by the Company with the United States Securities and Exchange Commission ("SEC") on the date hereof under the Securities Act of 1933, as amended (the "Securities Act"), relating to the issue of common shares of the Company, which may be issued by the Company pursuant to the Plan (as defined below) out of the Company's conditional share capital for equity incentive plans (the "Conditional Share Capital", and such shares, the "Shares" and each a "Share").
1. Documents Reviewed
In rendering this opinion, we have made no searches or enquiries concerning, and examined no documents entered into by or affecting LAAC (and now the Company) or any other person, or any corporate records of the aforesaid, save for those searches, enquiries, documents or corporate records expressly specified in this opinion as having been made or examined. As to questions of fact material to the opinions expressed herein, we have, without independent investigation, relied upon the information contained in the Documents Reviewed (as defined below).
For the purpose of this legal opinion, we have examined and relied upon the following documents:
(a) the Amended Registration Statement;
(b) an electronic copy of the Company's Second Amended and Restated Equity Incentive Plan (as last amended by the Company's board of directors on 23 January 2025) (the "Plan");
(c) an electronic copy of the written resolution of the Company's board of directors, dated 23 January 2025, relating to, inter alia, the approval of the Plan (the "Board Resolution");
(d) an electronic copy of LAAC's certificate of good standing, dated 13 December 2024;
(e) an electronic copy of LAAC's articles of incorporation, dated 3 October 2023 (the "Articles");
(f) executed documents in original form as pre-cleared and filed with the commercial register of the Canton of Zug, Switzerland (the "Commercial Register") on 23 January 2025 for the registration of the Continuation and the Name Change, including:
(i) the application to the commercial register dated 23 January 2025;
(ii) the public deed re minutes of the extraordinary general meeting of shareholders of the Company, dated 17 January 2025 (the "EGM"), evidencing, inter alia, the introduction of the Conditional Share Capital (the "Minutes" and together with the Board Resolution the "Resolutions");
(iii) the articles of association (Statuten) of the Company after Continuation, dated 17 January 2025 (the "Articles after Continuation");
(iv) the legal opinion of Norton Rose Fulbright Canada LLP to the Commercial Register regarding the permissibility of the Continuation pursuant to the BCBCA, dated 17 December 2024;
(v) the certification of Prof. Dr. Markus Müller-Chen regarding the feasibility of adaption to a Swiss legal form dated 8 January 2025;
(vi) the confirmation from the Company's board of directors regarding the principal place of business, dated 23 January 2025;
(vii) the circular resolution of the board of directors of the Company regarding constitution, dated 23 January 2025;
(viii) the confirmations of the function as member of the Company's board of directors, dated 23 January 2025;
(ix) the audit report by PricewaterhouseCoopers AG according to article 162 para. 3 PILA, dated 16 January 2025; and
(x) the declaration of acceptance of the auditor PricewaterhouseCoopers AG, dated 15 January 2025;
(g) original certified commercial register excerpt (Handelsregisterauszug) from the Commercial Register regarding the Company dated 23 January 2025; and
(h) legalized copy of the final order of the Supreme Court of British Columbia made pursuant to section 291 of the BCBCA, dated 21 January 2025,
(the documents listed under section (a)-(h) above, collectively the "Documents Reviewed").
2. Assumptions
For the purpose of this opinion, we have assumed:
(i) that all (electronic) signatures, seals and certifications on any documents submitted to us are genuine, all documents submitted to us as originals are authentic, all documents submitted to us as copies (including, without limitation, electronic or fax copies) conform with the originals and these originals are authentic, and each (electronic) signature on a document submitted to us is the (electronic) signature of the individual indicated next to such (electronic) signature, or, where no name is indicated (in print or handwriting) next to a (electronic) signature, it is assumed that such document has been (electronically) signed by authorized signatories and that all individuals executing (in electronic form) agreements, instruments or documents have, and had at the time of execution, the legal capacity (Handlungsfähigkeit) to do so;
(ii) that all Documents Reviewed including all certificates, dated prior to the date of this opinion letter, accurately reflect the relevant facts and remain true and accurate on and as of the date hereof and, have not been, and will not be, changed, amended or altered as of or prior to the date of this opinion letter and are in full force and effect, in particular that the Resolutions have not been revoked or amended and are in full force and effect;
(iii) that any applicable law (other than Swiss law) and the Company's Articles permit the Continuation of the Company from the jurisdiction of the laws of British Columbia to other jurisdictions and, specifically, to Switzerland, with full continuation of its legal and corporate personality without applying any dissolution or winding-up procedures to the Company, and that the EGM has been duly convened;
(iv) that the Company has obtained authorization from the Registrar of Companies under section 308 of the BCBCA to continue the Company under the laws of Switzerland pursuant to art. 161 et seq. of the PILA and under art. 620 et seqq. of the CO, as a Swiss share corporation domiciled in Zug, Canton of Zug, Switzerland, as if the Company had been incorporated under the CO and will, upon receipt of proof of the Continuation, reflect the Company as historical in the BC business registry;
(v) that there are no provisions of the laws of any jurisdiction other than Switzerland which would have implications on the opinion we express;
(vi) that no other agreements, documents or other factual circumstances exist that has not been provided or disclosed to us, or is not reflected in the Documents Reviewed, that is relevant or that might affect the opinions expressed in this opinion;
(vii) that the Amended Registration Statement has been filed by the Company as drafted;
(viii) the due authorization, execution and delivery of the Documents Reviewed or any document thereunder, which are governed by laws of any jurisdiction other than Switzerland, by each of the parties thereto (including the Company);
(ix) that all consents or approvals from and filings, registrations and notifications with or to all governmental authorities (other than in Switzerland) required in connection with the execution, delivery and performance of the Plan or other Documents Reviewed have been obtained or made and are in full force and effect; and
(x) that the (i) requisite reports of the Company's auditors according to article 653f of the CO; (ii) the amendments to the Articles after Continuation according to article 653g CO; and (iii) the entry of the corresponding share capital increase into the Commercial Register will be given or made, which, however, is not a precondition to the issuance of the Shares.
3. Opinion
Based on the Documents Reviewed, the foregoing assumptions and subject to the qualifications stated below, we are of the opinion that, each of the Shares will be validly issued, fully paid and non-assessable (which term means when used herein that no further contributions have to be made by the holder of the Shares to the Company), if the following conditions have been met prior to the issuance of any Shares in accordance with the applicable Plan:
(i) exercise of a duly executed exercise notice relating to subscribe to such Shares in accordance with Swiss law, the Articles after Continuation and applicable Plan rules has been validly issued;
(ii) payment of the relevant issue price (Ausgabebetrag), which at least must be equal to the nominal value of the Shares in cash, in respect of such Shares into a bank account of a Swiss-licensed bank in Switzerland;
(iii) the Shares have been entered into the Company's book of uncertificated securities.
4. Qualifications
This opinion is subject to the following qualifications:
A. We express no opinion nor do we imply any opinion as to the laws of any other jurisdiction, other than Swiss law.
B. In this opinion, Swiss legal concepts are mostly expressed in English terms and not in their original German, French or Italian terms (none of which is controlling). The concepts concerned may not be identical to the concepts described by the same English terms as they exist under the laws of other jurisdictions. This opinion may, therefore, only be relied upon subject to the reservation that any issues of interpretation or liability arising hereunder will be governed by Swiss law and that any disputes arising out of, or in connection with, this legal opinion are in the exclusive place of jurisdiction Zurich, Switzerland, venue being Zurich 1. With respect to the Documents Reviewed governed by laws other than the laws of Switzerland, we relied on the plain meaning of the words and expressions therein without regard to any import they may have under the relevant governing law.
C. The opinion herein is expressed as of the date hereof with no duty on the part of us to inform you of any subsequent change in fact or law, or both, which would affect its accuracy.
D. The opinion herein is subject to any matters not disclosed to us.
E. We express no opinion herein as to the accuracy or completeness of the information set out in the Amended Registration Statement or of the representations and warranties set out in the Amended Registration Statement.
F. We express no opinion herein as to regulatory matters or as to any commercial, accounting, calculating, auditing, tax, or other non-corporate law matter.
G. We express no opinion as regards the withdrawal of the shareholders' advanced subscription rights (Vorwegzeichnungsrecht) in connection with any issuance of Shares.
H. We express no opinion as to the future availability of conditional share capital of the Company.
I. As a matter of mandatory Swiss law, it should be noted that, shareholders as well as the board of directors of a company are entitled to challenge resolutions adopted by a general shareholders' meeting believed to violate the law or the company's articles of association by initiating legal proceedings against such company within two months following such meeting. Therefore, any shareholder or the board of directors of the Company may challenge the resolutions taken by the general shareholders' meeting of the Company passed at the EGM on 17 January 2025, on which the allocation of the Shares by the board of directors and the issuance of the Shares is based. As of the date hereof, such period has not lapsed with respect to the resolutions passed at the EGM.
J. This opinion is subject to applicable bankruptcy, insolvency, reorganisation, (voluntary or forced) liquidation, moratorium, civil procedure and other similar laws and regulations as applicable to creditors, debtors, claimants and defendants generally as well as principles of equity (good faith) and the absence of a misuse of rights.
5. Choice of Law and Jurisdiction
This opinion is governed by and to be construed in accordance with the laws of Switzerland. The exclusive place of jurisdiction is Zurich, Switzerland, venue being Zurich 1.
Further, this opinion speaks as of its date, and we disclaim any obligation to review or update this opinion if applicable law or the existing facts or circumstances should change.
This opinion is issued by Pestalozzi Attorneys at Law Ltd., a company limited by shares (Aktiengesellschaft) incorporated under the laws of Switzerland. No director, officer or other employee of Pestalozzi Attorneys at Law Ltd. may be held liable under or in connection with this opinion and terms such as "we", "us" and "ours" shall be interpreted accordingly.
We hereby consent to the use of this opinion as an exhibit to the Amended Registration Statement and to the use of our name where it appears in the Amended Registration Statement.
[Signatures on the following page]
Yours sincerely,
Pestalozzi Attorneys at Law Ltd
| /s/ Beat Schwarz |
/s/ Franz Schubiger |
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| Beat Schwarz |
Franz Schubiger |
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this Post-Effective Amendment No.1 to the registration statement on Form S-8 (File No. 333-282163) of Lithium Argentina AG (formerly Lithium Americas (Argentina) Corp.) (the "Company") of our report dated March 20, 2024 relating to the financial statements and effectiveness of internal control over financial reporting of the Company, which appears in Exhibit 99.2 incorporated by reference in the Company's Annual Report on Form 40-F for the year ended December 31, 2023.
We also consent to the references to us under the heading "Interests of Experts" in the Annual Information Form, which appears in Exhibit 99.1 incorporated by reference in the Company's Annual Report on Form 40-F which is incorporated by reference in this Post-Effective Amendment No.1 to the registration statement.
/s/PricewaterhouseCoopers LLP
Chartered Professional Accountants
Vancouver, Canada
January 24, 2025
CONSENT OF ERNEST BURGA
I, Ernest Burga, hereby consent to:
(i) the use of my name and information derived from the Technical Report titled "Updated Feasibility Study and Mineral Reserve Estimation to Support 40,000 tpa Lithium Carbonate Production at the Cauchari-Olaroz Salars, Jujuy Province, Argentina", dated September 30, 2020 (the "Technical Report");
(ii) the references to my involvement in the review and approval of the technical and scientific information contained in the Annual Information Form for the year ended December 31, 2023 (the "AIF"), and Management's Discussion & Analysis for the year ended December 31, 2023, which was filed by Lithium Argentina AG (formerly "Lithium Americas (Argentina) Corp.") (the "Company") as part of the Company's Annual Report on Form 40-F, other than that derived from the Technical Report and the technical report entitled "NI 43-101 Technical Report: Lithium Resource Update Pastos Grandes Project, Salta Province, Argentina" with an effective date of April 30, 2023 within the AIF (the "Annual Technical Information");
(iii) the references to my involvement in the preparation and review of the scientific and technical information contained in the Management's Discussion & Analysis for the three months ended March 31, 2024 filed with the United States Securities and Exchange Commission under cover of Form 6-K on May 14, 2024 (the "Q1 Technical Information");
(iv) the references to my involvement in the preparation and review of the scientific and technical information contained in the Management's Discussion & Analysis for the three and six months ended June 30, 2024 filed with the United States Securities and Exchange Commission under cover of Form 6-K on August 14, 2024 (the "Q2 Technical Information"); and
(v) the references to my involvement in the preparation and review of the scientific and technical information contained in the Management's Discussion & Analysis for the three and nine months ended November 5, 2024 filed with the United States Securities and Exchange Commission under cover of Form 6-K on November 6, 2024 (the "Q3 Technical Information", and together with the Technical Report, the Annual Technical Information, Q1 Technical Information and Q2 Technical Information, the "Technical Information")
I also hereby consent to the Technical Information being incorporated by reference into the Post-Effective Amendment No. 1 to Form S-8 Registration Statement of the Company being filed with the United States Securities and Exchange Commission, and any amendments thereto.
/s/Ernest Burga
Ernest Burga
January 24, 2025
McCarthy Tetrault LLP
PO Box 48, Suite 5300
Toronto-Dominion Bank Tower
Toronto ON M5K 1E6
Canada
Tel: 416-362-1812
Fax: 416-868-0673
January 24, 2025
Lithium Argentina AG
900 West Hastings Street, Suite 300
Vancouver, British Columbia
Canada, V6C 1E5
Re: Amendment No. 1 to Form S-8 Registration Statement
We hereby consent to the incorporation by reference in this Post-Effective Amendment No. 1 to Form S-8 Registration Statement of Lithium Argentina AG (Formerly Lithium Americas (Argentina) Corp.) (the "Form S-8 POS"), being filed on the date hereof with the United States Securities and Exchange Commission (the "Commission"), of the references to our opinions and our name under the heading "Eligibility for Investment" in the management information circular attached as exhibit 99.2 to the Form 6-K of Lithium Americas (Argentina) Corp. filed with the Commission on December 11, 2024. We also consent to the use of our name in the Form S-8 POS and the documents incorporated by reference.
In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder.
Yours truly,
/s/ McCarthy Tétrault LLP
McCarthy Tétrault LLP
Lithium Argentina AG
Dammstrasse 19
6300 Zug
Switzerland
Zurich, January 24, 2025
Re: Amendment No. 1 to Form S-8 Registration Statement
We hereby consent to the incorporation by reference in this Post-Effective Amendment No. 1 to Form S-8 Registration Statement of Lithium Argentina AG (Formerly Lithium Americas (Argentina) Corp.) (the "Form S-8 POS"), being filed on the date hereof with the United States Securities and Exchange Commission (the "Commission"), of the references to our opinions and our name under the heading "Certain Swiss Tax Considerations" in the management information circular attached as exhibit 99.2 to the Form 6-K of Lithium Americas (Argentina) Corp. filed with the Commission on December 11, 2024. We also consent to the use of our name in the Form S-8 POS and the documents incorporated by reference.
In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder.
Yours truly,
/s/ Pestalozzi Attorneys at Law Ltd.
Pestalozzi Attorneys at Law Ltd.
Lithium Americas Argentina (NYSE:LAAC)
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