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GOLDEN STAR RESOURCES LTD.
Issuer
TO
IBJ WHITEHALL BANK & TRUST COMPANY
Trustee
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FIRST SUPPLEMENTAL
INDENTURE
Dated as of August 24, 1999
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DESIGNATION AND TERMS OF
THE CONVERTIBLE DEBENTURES.......................................2
SECTION 1.1 Designation and Principal Amount..................2
SECTION 1.2 Stated Maturity...................................2
SECTION 1.3 Form and Payment..................................2
SECTION 1.4 Interest..........................................2
ARTICLE TWO
CONVERSION.......................................................3
SECTION 2.1 Right to Convert..................................3
SECTION 2.2 Exercise of Conversion Privilege; Issuance of
Common Shares on Conversion; No Adjustment
for Interest or Dividends.........................3
SECTION 2.3 Cash Payments in lieu of Fractional Shares........5
SECTION 2.4 Taxes on Shares Issued............................5
SECTION 2.5 Compliance with Governmental
Requirements; Listing of Common Shares............5
SECTION 2.6 Conversion to Prescribed Securities...............6
ARTICLE THREE
MANDATORY REDEMPTION.............................................6
SECTION 3.1 Mandatory Redemption..............................6
SECTION 3.2 Notice............................................6
SECTION 3.3 Accrued Interest..................................7
SECTION 3.4 Payment of Mandatory Redemption Payment...........7
SECTION 3.5 Event of Default..................................7
ARTICLE FOUR
MISCELLANEOUS....................................................8
SECTION 4.1 Headings..........................................8
SECTION 4.2 Counterparts......................................8
SECTION 4.3 Conflict with Trust Indenture Act.................8
SECTION 4.4 Successors and Assigns............................8
SECTION 4.5 Separability Clause...............................8
SECTION 4.6 Governing Law.....................................8
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FIRST SUPPLEMENTAL INDENTURE, dated as of August 24, 1999, between
Golden Star Resources Ltd., a corporation duly incorporated and existing under
the laws of Canada, having its registered offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (herein called the "Company"),
and IBJ Whitehall Bank & Trust Company, as Trustee under the Indenture referred
to below (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee a certain indenture, dated as of August 24, 1999 (the "Original
Indenture"), which provides for the issuance from time to time of its
convertible unsecured debentures, notes or other evidences of indebtedness, to
be issued in one or more series as provided therein. Capitalized terms used in
this First Supplemental Indenture and not otherwise defined herein shall have
the meanings assigned to them in the Original Indenture;
WHEREAS, Section 9.1 (g) of the Original Indenture provides that
without the written consent of any Holder, the Company, when authorized by a
resolution of its Board of Directors, and the Trustee may enter into an
indenture supplemental to the Original Indenture to establish the form or terms
of Securities of any series as permitted by the Original Indenture;
WHEREAS, the Company desires, by this first Supplemental Indenture,
to create a series of 7.50% subordinated convertible debentures to be issuable
under the Original Indenture and to be known as the Company's "7.50%
Subordinated Convertible Debentures due 2004" (herein called the "Convertible
Debentures"), and the terms and provisions thereof to be as hereinafter set
forth;
WHEREAS, the general forms of the Convertible Debentures and the
Trustee's certificate of authentication to be borne by the Convertible
Debentures are to be in the respective forms established pursuant to or set
forth in the Original Indenture, with such insertions, omissions and variations
as the Board of Directors of the Company may determine to be appropriate in
accordance with the provisions of this Supplemental Indenture; and
WHEREAS, all things necessary to make this First Supplemental
Indenture a valid agreement of the Company and the Trustee and a valid amendment
of and supplement to the Original Indenture have been done.
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NOW, THEREFORE, for and in consideration of the premises and the
purchase of the Convertible Debentures by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Convertible Debentures as follows:
ARTICLE ONE
DESIGNATION AND TERMS OF
THE CONVERTIBLE DEBENTURES
SECTION 1.1 Designation and Principal Amount. The series of
Securities created by this First Supplemental Indenture shall be known and
designated as the "7.50% Subordinated Convertible Debentures" of the Company
and, subject to Section 3.3 of the Original Indenture, shall be limited in
aggregate principal amount to U.S. $4,155,000.
SECTION 1.2 Stated Maturity. The Stated Maturity of the Convertible
Debentures is August 24, 2004.
SECTION 1.3 Form and Payment. The Convertible Debentures
shall initially be issued in definitive fully registered, non-global form,
without interest coupon.
SECTION 1.4 Interest. Interest on the Convertible Debentures will
accrue from August 24, 1999. The Convertible Debentures will bear interest at a
rate of 7.50% per annum, payable semi-annually on August 15 and February 15,
commencing on February 15, 2000, to Holders of record at the close of business
on the preceding August 1 and February 1 (whether or not a Business Day) (each,
a "Regular Record Date"), respectively, except (i) that the interest payment
upon redemption (unless the Redemption Date is an Interest Payment Date) will be
payable to the Person to whom principal is payable and (ii) as set forth in the
next succeeding sentence. In the case of any Convertible Debenture (or portion
thereof) which is converted into Common Shares of the Company during the period
from (but excluding) a Regular Record Date to (but excluding) the next
succeeding Interest Payment Date either (i) if such Convertible Debenture (or
portion thereof) has been called for redemption on a Redemption Date which
occurs during such period, the Company shall not be required to pay interest on
such Interest Payment Date in respect of any such Convertible Debenture (or
portion thereof) or (ii) if otherwise, any Convertible Debenture (or portion
thereof) submitted for conversion during such period shall be accompanied by
funds equal to the interest payable on such succeeding Interest Payment Date on
the aggregate principal amount so converted. Interest may, at the Company's
option, be paid in U.S. dollars either (i) by a dollar check drawn on a bank in
New York City mailed to the address of the Person entitled thereto as it appears
in the Security Register or (ii) by transfer to an account maintained by such
Person located in the United States. Interest will be computed on the basis of a
360-day year composed of twelve 30-day months.
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ARTICLE TWO
CONVERSION
SECTION 2.1 Right to Convert. Subject to and upon compliance with
the provisions of the Original Indenture, the Holder of any Convertible
Debenture shall have the right, at his or her option, at any time prior to the
close of business on August 24, 2004 (except that, with respect to any
Convertible Debenture or portion of a Convertible Debenture which shall be
called for redemption, such right shall terminate, except as provided in Section
2.2, at the close of business on the Business Day next preceding the date fixed
for redemption of such Convertible Debenture or portion of Convertible Debenture
unless the Company shall default in payment due upon redemption thereof) to
convert the principal amount at maturity of any such Convertible Debenture, or
any portion of such principal amount at maturity which is $1,000 or an integral
multiple thereof, into that number of fully paid and non-assessable shares of
Common Shares (as such shares shall then be constituted), at a conversion price
of $0.70 per Common Share (the "Conversion Price") (subject to adjustment as set
forth in Section 14.4 of the Original Indenture), by surrender of the
Convertible Debenture so to be converted in whole or in part in the manner
provided, together with any required funds, in Section 2.2. A Holder of
Convertible Debentures is not entitled to any rights of a holder of Common
Shares until such holder has converted his Convertible Debenture to Common
Shares, and only to the extent such Convertible Debentures are deemed to have
been converted to Common Shares under this Article 2.
SECTION 2.2 Exercise of Conversion Privilege; Issuance of Common
Shares on Conversion; No Adjustment for Interest or Dividends.
(a) In order to exercise the conversion privilege with respect
to any Convertible Debenture in definitive certificated form, the Holder of any
such Convertible Debenture to be converted in whole or in part shall surrender
such Convertible Debenture, duly endorsed, at the Corporate Trust Office of the
Trustee in the Borough of Manhattan, The City of New York, and shall give
written notice of conversion in the form provided on the Convertible Debentures
(or such other notice which is acceptable to the Company) to the Trustee at such
office. Such notice shall also state the name or names (with address or
addresses) in which the certificate or certificates for Common Shares which
shall be issuable on such conversion shall be issued, and shall be accompanied
by transfer taxes, if required pursuant to Section 2.4. Each such Convertible
Debenture surrendered for conversion shall, unless the shares issuable on
conversion are to be issued in the same name as the registration as such
Convertible Debenture, be duly endorsed by, or be accompanied by instruments of
transfer in form satisfactory to the Company duly executed by, the Holder or his
duly authorized attorney.
(b) As promptly as practicable after satisfaction of the
requirements for conversion set forth above, subject to compliance with any
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restrictions on transfer if shares issuable on conversion are to be issued in a
name other than that of the Holder (as if such transfer were a transfer of the
Convertible Debenture or Convertible Debentures (or portion thereof) so
converted), the Company shall issue and shall forward to the Corporate Trust
Office of the Trustee for delivery to such Holder, a certificate or certificates
for the number of full Common Shares issuable upon such conversion of such
Convertible Debenture or portion thereof in accordance with the provisions of
this Section 2 and a check or cash in respect of any fractional interest in
respect of a Common Share arising upon such conversion, as provided in Section
2.3. In case any Convertible Debenture of a denomination greater than $1,000
shall be surrendered for partial conversion, and subject to Section 3.2 of the
Original Indenture, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of the Convertible Debenture so surrendered, without
charge to him, a new Convertible Debenture or Convertible Debentures in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Convertible Debenture.
(c) Each conversion shall be deemed to have been effected as
to any such Convertible Debenture (or portion thereof) on the date on which the
requirements set forth above in this Section 2.2 have been satisfied as to such
Convertible Debenture (or portion thereof), and the person in whose name any
certificate or certificates for Common Shares shall be issuable upon such
conversion shall be deemed to have become on said date the Holder of record of
the Common Shares represented thereby; provided, however, that any such
surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the person in whose name the certificates are to be
issued as the record Holder thereof for all purposes on the next succeeding day
on which such stock transfer books are open.
(d) Except as described in this Section 2.2, Holders of the
Convertible Debenture will not be entitled to any payment or adjustment on
account of accrued and unpaid interest upon conversion of the Convertible
Debentures. The Company's delivery of the fixed number of Common Shares into
which the Convertible Debentures are convertible will be deemed to satisfy the
Company's obligation to pay the principal amount at maturity of the Convertible
Debentures and all accrued interest that has not previously been (or is not
simultaneously being) paid. The Common Shares are treated as issued first in
payment of accrued interest and then in payment of principal.
(e) Any Convertible Debenture or portion thereof surrendered
for conversion during the period from the close of business on the Regular
Record Date for any Interest Payment Date to the close of business on the
Business Day next preceding the following Interest Payment Date shall (unless
such Convertible Debenture or portion thereof being converted shall have been
called for redemption during the period from the close of business on such
record date to the close of business on the Business Day next preceding the
following interest payment date) be accompanied by payment, in funds acceptable
to the Company and as set forth in the penultimate sentence of Section 1.4
above, of an amount equal to the interest otherwise payable on such Interest
Payment Date on the principal amount
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being converted; provided, however, that no such payment need be made if there
shall exist at the time of conversion a default in the payment of interest on
the Convertible Debentures. Except as provided above in this Section 2.2, no
payment or other adjustment shall be made for interest accrued on any
Convertible Debenture converted or for dividends on any shares issued upon the
conversion of such Convertible Debenture as provided in this Section 2.2.
SECTION 2.3 Cash Payments in lieu of Fractional Shares. No
fractional Common Shares or scrip representing fractional shares shall be issued
upon conversion of Convertible Debentures. If more than one Convertible
Debenture shall be surrendered for conversion at one time by the same Holder,
the number of full shares which shall be issuable upon conversion shall be
computed on the basis of the aggregate principal amount at maturity of the
Convertible Debentures (or specified portions thereof to the extent permitted
hereby) so surrendered. If any fractional share would be issuable upon the
conversion of any Convertible Debenture or Convertible Debentures, the Company
shall make an adjustment and payment therefor in cash at the current market
value thereof to the Holder of Convertible Debentures. The current market value
of a Common Share shall be the reported closing trading price per share of the
Common Shares on the American Stock Exchange at the close of business on the day
on which the Convertible Debentures (or specified portions thereof) are deemed
to have been converted.
SECTION 2.4 Taxes on Shares Issued. The issue of share certificates
on conversions of Convertible Debentures shall be made without charge to the
converting Holder of such Convertible Debentures for any tax in respect of the
issue thereof. The Company shall not, however, be required to pay any tax which
may be payable in respect of any transfer involved in the issue and delivery of
shares in any name other than that of the Holder of any Convertible Debenture
converted, and the Company shall not be required to issue or deliver any such
share certificate unless and until the person or persons requesting the issue
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 2.5 Compliance with Governmental Requirements;
Listing of Common Shares.
(a) The Company covenants that if any Common Shares to be
provided for the purpose of conversion of Convertible Debentures hereunder
require registration with or approval of any governmental authority under any
federal, state or provincial law before such shares may be validly issued upon
conversion, the Company will in good faith and as expeditiously as possible
endeavor to secure such registration or approval, as the case may be.
(b) The Company further covenants that if at any time the
Common Shares shall be listed on the American Stock Exchange, the Nasdaq
National Market, or any other national securities exchange or automated
quotation system the Company will, if permitted by the rules of such exchange or
automated quotation
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system, list and keep listed, so long as the Common Shares shall be so listed on
such exchange or automated quotation system, all Common Shares issuable upon
conversion of the Convertible Debentures; provided, however, that if rules of
such exchange or automated quotation system permit the Company to defer the
listing of such Common Shares until the first conversion of the Convertible
Debentures into Common Shares in accordance with the provisions of the Original
Indenture, the Company covenants to list such Common Shares issuable upon
conversion of the Convertible Debentures in accordance with the requirements of
such exchange or automated quotation system at such time.
SECTION 2.6 Conversion to Prescribed Securities. Sections 8.1 and
14.11 of the Original Indenture are hereby modified as necessary so that only
"prescribed securities" (within the meaning of the Income Tax Act) may be issued
on conversion of Convertible Debentures in the circumstances contemplated in
such sections.
ARTICLE THREE
MANDATORY REDEMPTION
SECTION 3.1 Mandatory Redemption. In the event that the Company
shall have not completed its acquisition of a direct or indirect interest in
Bogoso Gold Limited, a Ghanaian company, by the earlier of (i) December 10, 1999
and (ii) the date on which such acquisition is terminated or abandoned (the
"Failure to Complete"), the Company shall be required to repurchase and the
Holder of this Security shall surrender for purchase by the Company on a pro
rata basis fifty (50%) percent of the aggregate principal amount of such
Holder's Convertible Debentures pursuant to the terms described in Section 3.2
below (the "Mandatory Redemption") at a purchase price in cash equal to the
aggregate principal amount thereof plus accrued and unpaid interest, if any, to
the date of purchase (the "Mandatory Redemption Payment").
SECTION 3.2 Notice. Within 5 Business Days following any Failure to
Complete date, the Company shall send, by first-class mail, postage prepaid, a
notice to the Trustee and to each Holder of Convertible Debentures at the
address appearing in the register maintained by the Security Registrar of the
Convertible Debentures stating:
(a) that the Mandatory Redemption is being made pursuant to
this Article 3 and that all Convertible Debentures tendered will be accepted for
payment;
(b) the purchase price, the aggregate principal amount of
Convertible Debentures that will be purchased by the Company and the purchase
date, which will be no later than 30 days from the date of the Failure to
Complete (the "Mandatory Redemption Payment Date");
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(c) that any Convertible Debenture not tendered will continue
to accrue interest;
(d) that, unless the Company defaults in the payment of the
Mandatory Redemption Payment, all Convertible Debentures subject to the
Mandatory Redemption will cease to accrue interest after the Mandatory
Redemption Payment Date;
(e) that Holders surrendering Convertible Debentures purchased
pursuant to an Mandatory Redemption Offer will be required to surrender
certificates representing the Convertible Debentures, with the form entitled
"Mandatory Redemption Form" on the reverse of the Convertible Debentures
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Mandatory
Redemption Payment Date;
(f) that Holders whose Convertible Debentures are being
purchased only in part will be issued new Convertible Debentures equal in
principal amount to the unpurchased portion of the Convertible Debentures
surrendered.
SECTION 3.3 Accrued Interest. If the Mandatory Redemption Payment
Date is on or after an Regular Record Date and on or before the related Interest
Payment Date, any accrued and unpaid interest shall be paid to the Person in
whose name a Convertible Debenture is registered at the close of business on
such record date, and no additional interest shall be payable to Holders who
tender pursuant to the Mandatory Redemption.
SECTION 3.4 Payment of Mandatory Redemption Payment. On the
Mandatory Redemption Payment Date, the Company shall (1) accept for payment
Convertible Debentures or portions thereof properly tendered pursuant to the
Mandatory Redemption, (2) deposit with the Paying Agent an amount equal to the
Mandatory Redemption Payment in respect of all Convertible Debentures or
portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the Convertible Debentures so accepted together with an Officers'
Certificate stating the aggregate principal amount of the Convertible Debentures
or portions thereof tendered to the Company. The Paying Agent shall promptly
mail to each Holder of Convertible Debentures so accepted the Mandatory
Redemption Payment for such Convertible Debentures, and the Company shall issue,
and the Trustee shall promptly authenticate and mail or deliver (or cause to be
transferred by book-entry) to each Holder, a new Convertible Debenture in
principal amount equal to any unpurchased portion of the Convertible Debentures
surrendered, if any; provided, that each such new Convertible Debenture shall be
in denominations of $1,000 and any integral thereof. Any Convertible Debenture
not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof.
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SECTION 3.5 Event of Default. Failure by the Company to comply with
the Mandatory Redemption provisions herein, including default by the Company in
the payment of the Mandatory Redemption Payment shall constitute an Event of
Default under Article 5 of the Original Indenture.
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.1 Headings. The headings of the Articles and Sections of
this First Supplemental Indenture are inserted for convenience of reference and
shall not be deemed to be a part hereof.
SECTION 4.2 Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 4.3 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this First Supplemental Indenture by any of the
provisions of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 4.4 Successors and Assigns. All covenants and agreements in
this First Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 4.5 Separability Clause. In case any provision in this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 4.6 Governing Law. The internal law of the State of New York
shall govern and be used to construe this First Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
GOLDEN STAR RESOURCES LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, General Counsel
and Secretary
Attest:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Legal Assistant
IBJ WHITEHALL BANK & TRUST COMPANY
as Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
Attest:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title:
10
STATE OF Colorado )
) ss.:
COUNTY OF Denver )
On the 23rd day of August, 1999, before me personally came ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he
is VP and General Counsel of GOLDEN STAR RESOURCES LTD., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Notary Public
[NOTARIAL SEAL]
My Commission Expires:
STATE OF New York )
) ss.:
COUNTY OF New York )
On the 24th day of August, 1999, before me personally came ▇▇▇▇ ▇▇▇▇▇,
to me known, who, being by me duly sworn, did depose and say that he is
Assistant Vice President of IBJ WHITEHALL BANK & TRUST COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
/s/ ▇▇▇▇▇▇ Clunes
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Notary Public
[NOTARIAL SEAL]
My Commission Expires:
