EXHIBIT 4.54
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AMENDED AND RESTATED
SHAREHOLDER RIGHTS PLAN AGREEMENT
BETWEEN
NEXEN INC.
and
CIBC MELLON TRUST COMPANY
as Rights Agent
Dated as of April 27, 2005
(amending and restating the Amended and Restated
Shareholder Rights Plan Agreement
dated May 2, 2002)
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
1.1 Definitions...........................................................2
1.2 Currency ............................................................11
1.3 Acting Jointly or in Concert.........................................11
1.4 Control ............................................................11
1.5 Holder of Rights and Trust Units.....................................12
1.6 References to this Agreement.........................................12
ARTICLE 2
THE RIGHTS
2.1 Legend on Common Share Certificates..................................12
2.2 Initial Exercise Price; Exercise of Rights;
Detachment of Rights..............................................13
2.3 Adjustments to Exercise Price; Number of Rights......................14
2.4 Date on Which Exercise is Effective..................................17
2.5 Execution, Authentication, Delivery and Dating of
Rights Certificates...............................................17
2.6 Registration, Registration of Transfer and Exchange..................18
2.7 Mutilated, Destroyed, Lost and Stolen Rights Certificates............18
2.8 Persons Deemed Owners................................................19
2.9 Delivery and Cancellation of Certificates............................19
2.10 Agreement of Rights Holders..........................................19
ARTICLE 3
ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in Event........................................................20
ARTICLE 4
THE RIGHTS AGENT
4.1 General ............................................................21
4.2 Merger, Amalgamation or Consolidation or Change of
Name of Rights Agent..............................................22
4.3 Duties of Rights Agent...............................................22
4.4 Change of Rights Agent...............................................23
ARTICLE 5
MISCELLANEOUS
5.1 Redemption and Termination...........................................24
5.2 Expiration...........................................................26
5.3 Issuance of New Rights Certificates..................................26
5.4 Supplements and Amendments...........................................26
5.5 Fractional Rights and Fractional Shares..............................27
5.6 Rights of Action.....................................................28
5.7 Holder of Rights Not Deemed a Shareholder............................28
5.8 Notice of Proposed Actions...........................................28
5.9 Notices ............................................................28
5.10 Costs of Enforcement.................................................29
5.11 Successors...........................................................29
5.12 Benefits of this Agreement...........................................29
5.13 Descriptive Headings.................................................30
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TABLE OF CONTENTS
(continued)
PAGE
5.14 Governing Law........................................................30
5.15 Language ............................................................30
5.16 Counterparts.........................................................30
5.17 Severability.........................................................30
5.18 Effective Date.......................................................30
5.19 Shareholder Review...................................................30
5.20 Regulatory Approvals.................................................31
5.21 Declaration as to Non-Canadian and Non-U.S. Holders..................31
5.22 Determinations and Actions by the Board of Directors.................31
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AMENDED AND RESTATED
SHAREHOLDER RIGHTS PLAN AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDER RIGHTS PLAN AGREEMENT made as of
the 27th day of April, 2005 (amending and restating the Amended and Restated
Shareholder Rights Plan Agreement dated May 2, 2002).
BETWEEN:
NEXEN INC., a body corporate organized under the laws of
Canada (hereinafter referred to as the "CORPORATION")
OF THE FIRST PART
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CIBC MELLON TRUST COMPANY, a trust company existing under the
laws of Canada (hereinafter referred to as the "RIGHTS AGENT")
OF THE SECOND PART
WHEREAS the Corporation and the Rights Agent entered into an agreement
dated August 6, 1999 respecting a shareholder rights plan, as amended and
restated on May 2, 2002, (the "ORIGINAL PLAN") that would be effective at the
latest until the close of business on the date on which the 2005 annual meeting
of the shareholders of the Corporation terminates unless a resolution ratifying
the continued existence of the Original Plan was approved by the Independent
Shareholders (as defined in the Original Plan);
AND WHEREAS the board of directors of the Corporation (the "BOARD OF
DIRECTORS") has determined that it is advisable to continue the rights plan by
adopting an amended and restated shareholder rights plan to take effect
immediately upon receipt of approval of the Independent Shareholders, to conform
to current practices and to effect the continued distribution of rights under
the Original Plan as further amended and restated herein (the "RIGHTS PLAN") to
ensure, to the extent possible, that all shareholders of the Corporation are
treated fairly in connection with any take-over offer or bid for the common
shares of the Corporation, and to ensure that the Board of Directors is provided
with sufficient time to evaluate unsolicited take-over bids and to explore and
develop alternatives to maximize shareholder value;
AND WHEREAS, in order to continue the Rights Plan, the Board of
Directors has:
(a) confirmed the distribution of one right (a "RIGHT") in respect
of each Common Share (as hereinafter defined) outstanding at
the close of business on August 6, 1999 (the "RECORD Time"),
such distribution having been made to shareholders of record
at the Record Time; and
(b) confirmed the issuance of one Right in respect of each Common
Share issued after the Record Time and prior to the earlier of
the Separation Time (as hereinafter defined) and the
Expiration Time (as hereinafter defined);
AND WHEREAS each Right entitles the holder thereof after the Separation
Time to purchase securities of the Corporation pursuant to the terms and subject
to the conditions set forth herein;
AND WHEREAS the Corporation desires to confirm the appointment of the
Rights Agent to act on behalf of the Corporation, and the Rights Agent is
willing to so act, in connection with the issuance, transfer, exchange and
replacement of Rights Certificates (as hereinafter defined), the exercise of
Rights and other matters referred to herein;
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NOW THEREFORE in consideration of the premises and the respective
agreements set forth herein, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
indicated:
(a) "ACQUIRING PERSON" shall mean any Person who is the Beneficial
Owner of 20% or more of the outstanding Common Shares of the
Corporation; provided, however, that the term "Acquiring
Person" shall not include:
(i) the Corporation or any Subsidiary of the Corporation;
(ii) any Person who becomes the Beneficial Owner of 20% or
more of the outstanding Common Shares of the
Corporation as a result of any one or a combination
of:
(A) an acquisition or redemption by the
Corporation of Common Shares of the
Corporation which, by reducing the number of
Common Shares outstanding, increases the
proportionate number of Common Shares
Beneficially Owned by such Person to 20% or
more of the Common Shares of the Corporation
then outstanding;
(B) share acquisitions made pursuant to a
Permitted Bid ("PERMITTED BID ACQUISITIONS");
(C) share acquisitions (1) in respect of which
the Board of Directors has waived the
application of Section 3.1 pursuant to
subsections 5.1(b), 5.1(c) or 5.1(d); or (2)
which were made on or prior to the Effective
Date; or (3) which were made pursuant to a
dividend reinvestment plan of the
Corporation; or (4) pursuant to the receipt
or exercise of rights issued by the
Corporation to all the holders of the Common
Shares (other than holders resident in a
jurisdiction where such distribution is
restricted or impracticable as a result of
applicable law) to subscribe for or purchase
Common Shares or Convertible Securities,
provided that such rights are acquired
directly from the Corporation and not from
any other person and provided that the Person
does not thereby acquire a greater percentage
of Common Shares or Convertible Securities so
offered than the Person's percentage of
Common Shares or Convertible Securities
beneficially owned immediately prior to such
acquisition; or (5) pursuant to a
distribution by the Corporation of Common
Shares or Convertible Securities made
pursuant to a prospectus, provided that the
Person does not thereby acquire a greater
percentage of Common Shares or Convertible
Securities so offered than the Person's
percentage of Common Shares or Convertible
Securities beneficially owned immediately
prior to such acquisition; or (6) pursuant to
a distribution by the Corporation of Common
Shares or Convertible Securities by way of a
private placement or a securities exchange
takeover bid circular or upon the exercise by
an individual employee of stock options
granted under a stock option plan of the
Corporation or rights to purchase securities
granted under a share purchase plan of the
Corporation, provided that (i) all necessary
stock exchange approvals for such private
placement, stock option plan or share
purchase plan have been obtained and such
private placement, stock option plan or share
purchase plan complies with the terms and
conditions of such approvals and (ii) such
Person does not become the Beneficial Owner
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of more than 25% of the Common Shares
outstanding immediately prior to the
distribution, and in making this
determination the Common Shares to be issued
to such Person in the distribution shall be
deemed to be held by such Person but shall
not be included in the aggregate number of
outstanding Common Shares immediately prior
to the distribution; or (7) pursuant to an
amalgamation, merger or other statutory
procedure requiring shareholder approval
("EXEMPT ACQUISITIONS");
(D) the acquisition of Common Shares upon the
exercise of Convertible Securities received
by such Person pursuant to a Permitted Bid
Acquisition, Exempt Acquisition or a Pro Rata
Acquisition (as defined below) ("CONVERTIBLE
SECURITY ACQUISITIONS"); or
(E) acquisitions as a result of a stock dividend,
a stock split or other event pursuant to
which such Person receives or acquires Common
Shares or Convertible Securities on the same
PRO RATA basis as all other holders of Common
Shares of the same class ("PRO RATA
ACQUISITIONS");
provided, however, that if a Person shall become the
Beneficial Owner of 20% or more of the Common Shares
of the Corporation then outstanding by reason of any
one or a combination of (i) share acquisitions or
redemptions by the Corporation or (ii) Permitted Bid
Acquisitions or (iii) Exempt Acquisitions or (iv)
Convertible Security Acquisitions or (v) Pro Rata
Acquisitions and, after such share acquisitions or
redemptions by the Corporation, Permitted Bid
Acquisitions, Exempt Acquisitions, Convertible
Security Acquisitions or Pro Rata Acquisitions, such
Person subsequently becomes the Beneficial Owner of
more than an additional 1.00% of the number of Common
Shares of the Corporation outstanding other than
pursuant to any one or a combination of share
acquisitions or redemptions of shares by the
Corporation, Permitted Bid Acquisitions, Exempt
Acquisitions, Convertible Security Acquisitions or
Pro Rata Acquisitions, then as of the date of any
such acquisition such Person shall become an
"Acquiring Person";
(iii) for a period of 10 days after the Disqualification
Date, any Person who becomes the Beneficial Owner of
20% or more of the outstanding Common Shares as a
result of such Person becoming disqualified from
relying on clause 1.1(e)(B) solely because such
Person makes or announces an intention to make a
Take-over Bid, either alone, through such Person's
Affiliates or Associates or by acting jointly or in
concert with any other Person. For the purposes of
this definition, "DISQUALIFICATION DATE" means the
first date of public announcement that any Person is
making or intends to make a Take-over Bid, either
alone, through such Person's Affiliates or Associates
or by acting jointly or in concert with any other
Person; or
(iv) an underwriter or member of a banking or selling
group that becomes the Beneficial Owner of 20% or
more of the Common Shares in connection with a
distribution of securities by way of prospectus or
private placement.
(b) "AFFILIATE", used to indicate a relationship with a specified
Person, shall mean a Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled
by, or is under common control with, such specified Person.
(c) "AMENDMENT DATE" means April 27, 2005.
(d) "ASSOCIATE" of a specified individual shall mean any
individual to whom such specified individual is married or
with whom such specified individual is living in a conjugal
relationship, outside marriage, or any relative of such
specified individual or said spouse who has the same home as
such specified individual.
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(e) A Person shall be deemed the "BENEFICIAL OWNER", and to have
"BENEFICIAL OWNERSHIP", of, and to "BENEFICIALLY OWN":
(i) any securities as to which such Person or any of such
Person's Affiliates or Associates is the owner at law
or in equity;
(ii) any securities as to which such Person or any of such
Person's Affiliates or Associates has the right to
acquire (A) upon the exercise of any Convertible
Securities, or (B) pursuant to any agreement,
arrangement or understanding, in either case where
such right is exercisable within a period of 60 days
and whether or not on condition or the happening of
any contingency (other than (1) customary agreements
with and between underwriters and banking group or
selling group members with respect to a distribution
to the public or pursuant to a private placement of
securities, or (2) pursuant to a pledge of securities
in the ordinary course of business); and
(iii) any securities which are Beneficially Owned within
the meaning of clauses 1.1(e)(i) or (ii) above by any
other Person with which such Person is acting jointly
or in concert;
provided, however, that a Person shall not be deemed the
"Beneficial Owner", or to have "Beneficial Ownership" of, or
to "Beneficially Own", any security:
(A) where (1) the holder of such security has
agreed to deposit or tender such security
pursuant to a Permitted Lock-up Agreement to
a Take-over Bid made by such Person or any of
such Person's Affiliates or Associates or any
other Person referred to in clause
1.1(e)(iii), or (2) such security has been
deposited or tendered pursuant to a Take-over
Bid made by such Person or any of such
Person's Affiliates or Associates or any
other Person referred to in clause
1.1(e)(iii), in each case until the earliest
time at which any such tendered security is
accepted unconditionally for payment or
exchange or is taken up and paid for;
(B) where such Person, any of such Person's
Affiliates or Associates or any other Person
referred to in clause 1.1(e)(iii), holds such
security provided that (1) the ordinary
business of any such Person (the "INVESTMENT
MANAGER") includes the management of
investment funds for others and such security
is held by the Investment Manager in the
ordinary course of such business in the
performance of such Investment Manager's
duties for the account of any other Person,
including the acquisition or holding of
securities for non-discretionary accounts
held on behalf of a client by a broker or
dealer registered under applicable securities
laws, or (2) such Person (the "TRUST
COMPANY") is licensed to carry on the
business of a trust company under applicable
laws and, as such, acts as trustee or
administrator or in a similar capacity in
relation to the estates of deceased or
incompetent Persons or in relation to other
accounts and holds such security in the
ordinary course of such duties for the
estates of deceased or incompetent Persons or
for such other accounts, or (3) such Person
(the "PLAN TRUSTEE") is the administrator or
trustee of one or more pension funds or plans
(each a "PLAN") registered under applicable
laws and holds such security for the purposes
of its activity as such, or (4) such Person
is a Plan or is a Person established by
statute (the "STATUTORY BODY") for purposes
that include, and the ordinary business or
activity of such Person includes the
management of investment funds for employee
benefit plans, pension plans, insurance plans
(other than plans administered by insurance
companies) or various public bodies or (5)
such Person is a Crown agent or agency or (6)
such Person (the "MANAGER") is the manager or
trustee of a mutual fund ("MUTUAL FUND") that
is registered or qualified to issue its
securities to investors under the securities
laws of any province of Canada or the laws of
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the United States of America or is a Mutual
Fund; provided in any of the above cases,
that the Investment Manager, the Trust
Company, the Plan Trustee, the Plan, the
Statutory Body, the Crown agent or agency,
the Manager or the Mutual Fund, as the case
may be, is not then making a Take-over Bid or
has not announced a current intention to make
a Take-over Bid, other than an Offer to
Acquire Common Shares or other securities
pursuant to a distribution by the Corporation
or by means of ordinary market transactions
(including pre-arranged trades entered into
in the ordinary course of business of such
Person) executed through the facilities of a
stock exchange, securities quotation system
or organized over-the-counter market, alone,
through its Affiliates or Associates or by
acting jointly or in concert with any other
Person; or
(C) because such Person is a client of or has an
account with the same Investment Manager as
another Person on whose account the
Investment Manager holds such security, or
where such Person is a client of or has an
account with the same Trust Company as
another Person on whose account the Trust
Company holds such security, or where such
Person is a Plan and has a Plan Trustee who
is also a Plan Trustee for another Plan on
whose account the Plan Trustee holds such
security; or
(D) where such Person is (i) a client of an
Investment Manager and such security is owned
at law or in equity by the Investment
Manager, or (ii) an account of a Trust
Company and such security is owned at law or
in equity by the Trust Company, or (iii) a
Plan and such security is owned at law or in
equity by the Plan Trustee; or
(E) where such Person is the registered holder of
securities as a result of carrying on the
business of or acting as a nominee of a
securities depositary.
For purposes of this Agreement, the percentage of Common
Shares Beneficially Owned by any Person, shall be and be
deemed to be the product determined by the formula:
100 x A/B
Where:
A = the number of votes for the election of all directors
generally attaching to the Common Shares Beneficially
Owned by such Person; and
B = the number of votes for the election of all directors
generally attaching to all outstanding Common Shares.
For the purposes of the foregoing formula, where any Person is
deemed to Beneficially Own unissued Common Shares which may be
acquired pursuant to Convertible Securities, such Common
Shares shall be deemed to be outstanding for the purpose of
calculating the percentage of Common Shares Beneficially Owned
by such Person in both the numerator and the denominator, but
no other unissued Common Shares which may be acquired pursuant
to any other outstanding Convertible Securities shall, for the
purposes of that calculation, be deemed to be outstanding.
(f) "BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or a day that is treated as a holiday at the
Corporation's principal executive offices in Calgary, Canada.
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(g) "BUSINESS CORPORATIONS ACT" shall mean the CANADA BUSINESS
CORPORATIONS ACT, R.S.C. 1985, c. C-44, as amended, and the
regulations thereunder, and any comparable or successor laws
or regulations thereto.
(h) "CANADIAN-U.S. EXCHANGE RATE" shall mean on any date the
inverse of the U.S. Canadian Exchange Rate.
(i) "CANADIAN DOLLAR EQUIVALENT" of any amount which is expressed
in United States dollars shall mean on any day the Canadian
dollar equivalent of such amount determined by reference to
the Canadian-U.S. Exchange Rate on such date.
(j) "CLOSE OF BUSINESS" on any given date shall mean the time on
such date (or, if such date is not a Business Day, the time on
the next succeeding Business Day) at which the office of the
transfer agent for the Common Shares in the City of Calgary
(or, after the Separation Time, the offices of the Rights
Agent in the City of Calgary) becomes closed to the public.
(k) "COMMON SHARES OF THE CORPORATION" and "COMMON SHARES" shall
mean the common shares in the capital stock of the Corporation
as constituted as at the Amendment Date and any other share of
the Corporation into which such common shares may be
subdivided, consolidated, reclassified or changed from time to
time.
(l) "COMPETING PERMITTED BID" means a Take-over Bid that:
(i) is made after a Permitted Bid or another Competing
Permitted Bid has been made and prior to the expiry
of the Permitted Bid or another Competing Permitted
Bid;
(ii) satisfies all components of the definition of a
Permitted Bid other than the requirements set out in
clause (ii) of that definition; and
(iii) contains, and the take-up and payment for securities
tendered or deposited is subject to, an irrevocable
and unqualified provision that no Common Shares will
be taken up or paid for pursuant to the Take-over Bid
prior to the close of business on the date that is no
earlier than the later of (1) the earliest date on
which Common Shares may be taken up or paid for under
any Permitted Bid or Competing Permitted Bid that is
then in existence and (2) 35 days (or such other
minimum period of days as may be prescribed by
applicable law in Alberta) after the date of the
Take-over Bid constituting the Competing Permitted
Bid.
(m) "CONVERTIBLE SECURITIES" means, at any time, any securities
issued by the Corporation from time to time (other than the
Rights) carrying any exercise, conversion or exchange right
pursuant to which the holder thereof may acquire Common Shares
or other securities which are convertible into or exercisable
or exchangeable for Common Shares.
(n) "CONVERTIBLE SECURITY ACQUISITIONS" has the meaning set forth
in the definition of "Acquiring Person" herein.
(o) "CO-RIGHTS AGENTS" shall have the meaning set forth in
subsection 4.1(a).
(p) "EFFECTIVE DATE" shall mean the close of business on August 6,
1999.
(q) "EXEMPT ACQUISITION" has the meaning set forth in the
definition of "Acquiring Person" herein.
(r) "EXERCISE PRICE" shall mean, as of any date after the
Amendment Date, the price at which a holder may purchase the
securities issuable upon exercise of one whole Right in
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accordance with the terms hereof and, subject to adjustment
thereof in accordance with the terms hereof, the Exercise
Price shall be:
(i) until the Separation Time, an amount equal to three
times the Market Price, from time to time, per Common
Share; and
(ii) from and after the Separation Time, an amount equal
to three times the Market Price, as at the Separation
Time, per Common Share.
(s) "EXPANSION FACTOR" shall have the meaning set forth in
subsection 2.3(a)(x).
(t) "EXPIRATION TIME" shall mean the earlier of:
(i) the Termination Time; and
(ii) the termination of the annual meeting of the
shareholders of the Corporation in the year 2008;
provided, however, that if the resolution referred to in
Section 5.19 is approved by Independent Shareholders in
accordance with Section 5.19 at or prior to such annual
meeting, "EXPIRATION TIME" means the earlier of (i) the
Termination Time and (ii) the termination of the annual
meeting of the shareholders of the Corporation in the year
2011.
(u) "FIDUCIARY" shall mean a trust company registered under the
trust company legislation of Canada or any province thereof, a
trust company organized under the laws of any state of the
United States, a portfolio manager registered under the
securities legislation of one or more provinces of Canada or
an investment adviser registered under the United States
Investment Advisers Act of 1940 or any other securities
legislation of the United States or any state of the United
States.
(v) A "FLIP-IN EVENT" shall mean a transaction occurring
subsequent to the date of this Agreement as a result of which
any Person shall become an Acquiring Person provided, however,
that a Flip-in Event shall be deemed to occur at the close of
business on the tenth day (or such later day as the Board of
Directors of the Corporation may determine) after the Stock
Acquisition Date.
(w) "INDEPENDENT SHAREHOLDERS" shall mean holders of outstanding
Common Shares of the Corporation excluding (i) any Acquiring
Person; or (ii) any Person (other than a Person referred to in
clause 1.1(e)(B)) that is making or has announced a current
intention to make a Take-over Bid for Common Shares of the
Corporation (including a Permitted Bid or a Competing
Permitted Bid) but excluding any such Person if the Take-over
Bid so announced or made by such Person has been withdrawn,
terminated or, expired; or (iii) any Affiliate or Associate of
such Acquiring Person or a Person referred to in clause (ii);
or (iv) any Person acting jointly or in concert with such
Acquiring Person or a Person referred to in clause (ii); or
(v) a Person who is a trustee of any employee benefit plan,
share purchase plan, deferred profit sharing plan or any
similar plan or trust for the benefit of employees of the
Corporation or a Subsidiary of the Corporation, unless the
beneficiaries of the plan or trust direct the manner in which
the Common Shares are to be voted or direct whether the Common
Shares are to be tendered to a Take-over Bid.
(x) "MARKET PRICE" per security of any securities on any date of
determination shall mean the average of the daily Closing
Price Per Security of such securities (determined as described
below) on each of the 20 consecutive Trading Days through and
including the Trading Day immediately preceding such date;
provided, however, that if an event of a type analogous to any
of the events described in Section 2.3 hereof shall have
caused the price used to determine the Closing Price Per
Security on any Trading Day not to be fully comparable with
the price used to determine the Closing Price Per Security on
such date of determination or, if the date of determination is
not a Trading Day, on the immediately preceding Trading Day,
each such price so used shall be appropriately adjusted in a
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manner analogous to the applicable adjustment provided for in
Section 2.3 hereof in order to make it fully comparable with
the price per security used to determine the Closing Price Per
Security on such date of determination or, if the date of
determination is not a Trading Day, on the immediately
preceding Trading Day. The "Closing Price Per Security" of any
securities on any date shall be:
(i) the closing board lot sale price or, if such price is
not available, the average of the closing bid and
asked prices, for such securities as reported by the
principal Canadian stock exchange on which such
securities are listed or admitted to trading, or if
for any reason neither of such prices is available on
such day or the securities are not listed or admitted
to trading on a Canadian stock exchange, the closing
board lot sale price or, if such price is not
available, the average of the closing bid and asked
prices, for such securities as reported by such other
securities exchange or national securities quotation
system on which such securities are listed or
admitted for trading on which the largest number of
such securities were traded during the most recently
completed calendar year;
(ii) if, for any reason, none of such prices is available
on such date or the securities are not listed or
admitted to trading on a Canadian stock exchange or
other securities exchange or on a national securities
quotation system, the last sale price, or in case no
sale takes place on such date, the average of the
high bid and low asked prices for such securities in
the over-the-counter market, as quoted by any
reporting system then in use (as selected by the
Board of Directors); or
(iii) if the securities are not listed or admitted to
trading as contemplated in clause 1.1(x)(i) or (ii),
the average of the closing bid and asked prices as
furnished by a professional market maker making a
market in the securities provided, however, that if
on any such date the Closing Price Per Security
cannot be determined in accordance with the
foregoing, the Closing Price Per Security of such
securities on such date shall mean the fair value per
share of such securities on such date as determined
in good faith by an internationally recognized
investment dealer or investment banker with respect
to the fair value per share of such securities.
The Market Price shall be expressed in Canadian dollars and,
if initially determined in respect of any day forming part of
the 20 consecutive Trading Day period in question in United
States dollars, such amount shall be translated into Canadian
dollars at the Canadian Dollar Equivalent thereof.
(y) "1933 SECURITIES ACT" shall mean the SECURITIES ACT of 1933 of
the United States, as amended, and the rules and regulations
thereunder, and any comparable or successor laws or
regulations thereto.
(z) "1934 EXCHANGE ACT" shall mean the SECURITIES EXCHANGE ACT of
1934 of the United States, as amended, and the rules and
regulations thereunder, and any comparable or successor laws
or regulations thereto.
(aa) "OFFER TO ACQUIRE" shall include:
(i) an offer to purchase, or a solicitation of an offer
to sell, Common Shares; and
(ii) an acceptance of an offer to sell Common Shares,
whether or not such offer to sell has been solicited;
or any combination thereof, and the Person accepting an offer
to sell shall be deemed to be making an offer to acquire to
the Person that made the offer to sell.
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(bb) "OFFEROR'S SECURITIES" means Common Shares Beneficially Owned
on the date of an Offer to Acquire by any Person who is making
a Take-over Bid and "OFFEROR" means a Person who has announced
a current intention to make or is making a Take-over Bid.
(cc) "PERMITTED BID" means a Take-over Bid made by a Person by
means of a Take-over Bid circular and which also complies with
the following additional provisions:
(i) the Take-over Bid is made to all holders of record of
Common Shares, other than the Offeror;
(ii) the Take-over Bid shall contain, and the provisions
for the take-up and payment for Common Shares
tendered or deposited thereunder shall be subject to,
an irrevocable and unqualified condition that no
Common Shares shall be taken up or paid for pursuant
to the Take-over Bid prior to the close of business
on a date which is not less than 60 days following
the date of the Take-over Bid;
(iii) the Take-over Bid shall contain irrevocable and
unqualified provisions that, unless the Take-over Bid
is withdrawn, Common Shares may be deposited pursuant
to the Take-over Bid at any time prior to the close
of business on the date of first take-up or payment
for Common Shares and that all Common Shares
deposited pursuant to the Take-over Bid may be
withdrawn at any time prior to the close of business
on such date;
(iv) the Take-over Bid shall contain an irrevocable and
unqualified condition that more than 50% of the
outstanding Common Shares held by Independent
Shareholders, determined as at the close of business
on the date of first take-up or payment for Common
Shares under the Take-over Bid, must be deposited to
the Take-over Bid and not withdrawn at the close of
business on the date of first take-up or payment for
Common Shares; and
(v) the Take-over Bid shall contain an irrevocable and
unqualified provision that in the event that more
than 50% of the then outstanding Common Shares held
by Independent Shareholders shall have been deposited
to the Take-over Bid and not withdrawn as at the
close of business on the date of first take-up or
payment for Common Shares under the Take-over Bid,
the Offeror will make a public announcement of that
fact and the Take-over Bid will remain open for
deposits and tenders of Common Shares for not less
than 10 Business Days from the date of such public
announcement;
provided that if a Take-over Bid constitutes a Competing
Permitted Bid, the term "Permitted Bid" shall also mean the
Competing Permitted Bid.
(dd) "PERMITTED BID ACQUISITIONS" has the meaning set forth in the
definition of "Acquiring Person" herein.
(ee) "PERMITTED LOCK-UP AGREEMENT" means an agreement (the "LOCK-UP
AGREEMENT") between a Person and one or more holders of Common
Shares (each such holder herein referred to as a "LOCKED-UP
PERSON") (the terms of which are publicly disclosed and a copy
of which is made available to the public (including the
Corporation) not later than the date of the Lock-up Bid (as
defined below), or if the Lock-up Bid has been made prior to
the date of the Lock-up Agreement not later than the first
Business Day following the date of the Lock-up Agreement)
pursuant to which each Locked-up Person agrees to deposit or
tender the Common Shares held by such holder to a Take-over
Bid (the "LOCK-UP BID") made by the Person or any of such
Person's Affiliates or Associates or any other Person referred
to in clause 1.1(e)(iii), provided that:
(i) the Lock-up Agreement permits the Locked-up Person to
withdraw its Common Shares from the Lock-up Agreement
in order to deposit or tender the Common Shares to
another Take-over Bid or to support another
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transaction prior to the Common Shares being taken up
and paid for under the Lock-up Bid at a price or
value per Common Share that exceeds the price or
value per Common Share offered under the Lock-up Bid;
or
(ii) the Lock-up Agreement permits the Locked-up Person to
withdraw its Common Shares from the Lock-up Agreement
in order to deposit or tender the Common Shares to
another Take-over Bid or to support another
transaction prior to the Common Shares being taken up
and paid for under the Lock-up Bid at an offering
price for each Common Share that exceeds by as much
as or more than a specified amount (the "SPECIFIED
AMOUNT") the offering price for each Common Share
contained in or proposed to be contained in the
Lock-up Bid and that does not by its terms provide
for a Specified Amount that is greater than 7% of the
offering price contained in or proposed to be
contained in the Lock-up Bid;
and, for greater clarity, the agreement may contain a right of
first refusal or require a period of delay to give the Person
who made the Lock-up Bid an opportunity to match a higher
price in another Take-over Bid or transaction or other similar
limitation on a Locked-up Person's right to withdraw Common
Shares from the agreement, so long as the limitation does not
preclude the exercise by the Locked-up Person of the right to
withdraw Common Shares during the period of the other
Take-over Bid or transaction; and
(iii) no "break-up" fees, "top-up" fees, penalties,
expenses or other amounts that exceed in aggregate
the greater of:
(A) 2.5% of the price or value of the
consideration payable under the Lock-up Bid
to a Locked-up Person; and
(B) 50% of the amount by which the price or value
of the consideration received by a Locked-up
Person under another Take-over Bid or
transaction exceeds the price or value of the
consideration that the Locked-up Person would
have received under the Lock-up Bid;
shall be payable by such Locked-up Person if the
Locked-up Person fails to deposit or tender Common
Shares to the Lock-up Bid, or withdraws Common Shares
previously tendered thereto in order to deposit or
tender such Common Shares to another Take-over Bid or
support another transaction.
(ff) "PERSON" shall mean any individual, firm, partnership,
association, trust, trustee, personal representative, body
corporate, corporation, unincorporated organization, syndicate
or other entity.
(gg) "PRO RATA ACQUISITION" has the meaning set forth in the
definition of "Acquiring Person" herein.
(hh) "RECORD TIME" shall mean the close of business on August 6,
1999.
(ii) "REDEMPTION PRICE" has the meaning set forth in subsection
5.1(a) herein.
(jj) "RIGHTS CERTIFICATE" shall mean, after the Separation Time,
the certificate representing the Rights substantially in the
form of Exhibit A hereto;
(kk) "SECURITIES ACT" shall mean the SECURITIES ACT (Alberta),
R.S.A. 2000, c. S-4, and the rules and regulations thereunder,
each as may be amended from time to time, and any comparable
or successor laws, rules or regulations thereto.
(ll) "SEPARATION TIME" shall mean the close of business on the
tenth Business Day after the earlier of:
(i) the Stock Acquisition Date;
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(ii) the date of the commencement of, or first public
announcement of the intent of any Person (other than
the Corporation or any Subsidiary of the Corporation)
to commence a Take-over Bid (other than a Take-over
Bid which is a Permitted Bid so long as such
Take-over Bid continues to satisfy the requirements
of a Permitted Bid), provided that, if any Take-over
Bid referred to in this clause (ii) expires, is
cancelled, terminated or otherwise withdrawn prior to
the Separation Time, such Take-over Bid shall be
deemed, for purposes of this subsection 1.1(ll),
never to have been made; and
(iii) the date upon which a Permitted Bid ceases to be a
Permitted Bid;
or such later date as may be determined by the Board of
Directors acting in good faith provided that, if the foregoing
results in the Separation Time being prior to the Record Time,
the Separation Time shall be the Record Time and if the Board
of Directors determines pursuant to Section 5.1 to waive the
application of Section 3.1 to a Flip-in Event, the Separation
Time in respect of such Flip-in Event shall be deemed never to
have occurred.
(mm) "STOCK ACQUISITION DATE" shall mean the first date of public
announcement (which, for purposes of this definition, shall
include, without limitation, a report filed pursuant to
Section 176 of the SECURITIES ACT or Section 13(d) under the
1934 EXCHANGE ACT) by the Corporation or an Acquiring Person
that a Person has become an Acquiring Person.
(nn) "SUBSIDIARY" of any specified Person shall mean any
corporation or other entity controlled by such specified
Person.
(oo) "TAKE-OVER BID" means an Offer to Acquire Common Shares or
securities convertible into Common Shares, where the Common
Shares subject to the Offer to Acquire, together with the
Common Shares into which the securities subject to the Offer
to Acquire are convertible, and the Offeror's Securities,
constitute in the aggregate 20% or more of the outstanding
Common Shares at the date of the Offer to Acquire.
(pp) "TERMINATION TIME" shall mean the time at which the right to
exercise Rights shall terminate pursuant to Section 5.1, 5.18
or 5.19 hereof.
(qq) "TRADING DAY", when used with respect to any securities, shall
mean a day on which the securities exchange or national
securities quotation system on which such securities are
listed or admitted to trading on which the largest number of
such securities were traded during the most recently completed
calendar year is open for the transaction of business or, if
the securities are not listed or admitted to trading on any
securities exchange, a Business Day.
(rr) "U.S. CANADIAN EXCHANGE RATE" shall mean on any date:
(i) if on such date the Bank of Canada sets an average
noon spot rate of exchange with a conversion of one
United States dollar into Canadian dollars, such
rate;
(ii) in any other case, the rate for such date for the
conversion of one United States dollar into Canadian
dollars which is calculated in the manner which shall
be determined by the Board of Directors from time to
time acting in good faith.
(ss) "U.S. DOLLAR EQUIVALENT" of any amount which is expressed in
Canadian dollars shall mean on any day the United States
dollar equivalent of such amount determined by reference to
the U.S.-Canadian Exchange Rate on such date.
1.2 CURRENCY
All sums of money which are referred to in this Agreement are expressed
in lawful money of Canada.
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1.3 ACTING JOINTLY OR IN CONCERT
For purposes of this Agreement, a Person is acting jointly or in
concert with another Person if such Person has any agreement, arrangement or
understanding (whether formal or informal and whether or not in writing) with
such other Person to acquire, or Offer to Acquire, any Common Shares of the
Corporation (other than (A) customary agreements with and between underwriters
and banking group or selling group members with respect to a distribution of
securities by way of prospectus or private placement, or (B) pursuant to a
pledge of securities in the ordinary course of business).
1.4 CONTROL
A Person is "CONTROLLED" by another Person or two or more other Persons
acting jointly or in concert if:
(a) in the case of a body corporate, securities entitled to vote
in the election of directors of such body corporate carrying
more than 50% of the votes for the election of directors are
held, directly or indirectly, by or for the benefit of the
other Person or Persons acting jointly or in concert and the
votes carried by such securities are entitled, if exercised,
to elect a majority of the board of directors of such body
corporate; or
(b) in the case of a Person which is not a body corporate, more
than 50% of the voting or equity interests of such entity are
held, directly or indirectly, by or for the benefit of the
other Person or Persons
and "CONTROLS", "CONTROLLING" and "UNDER COMMON CONTROL WITH" shall be
interpreted accordingly.
1.5 HOLDER OF RIGHTS
As used in this Agreement, unless the context otherwise requires, the
term "HOLDER" of any Rights shall mean the registered holder of such Rights (or,
prior to the Separation Time, the associated Common Shares).
1.6 REFERENCES TO THIS AGREEMENT
In this Agreement, unless otherwise provided herein and unless the
context otherwise requires, references to "THIS AGREEMENT", "HEREIN", "HEREBY"
and "HEREUNDER" mean this Amended and Restated Shareholder Rights Plan Agreement
dated April 27, 2005 between the Corporation and the Rights Agent as amended and
supplemented from time to time.
ARTICLE 2
THE RIGHTS
2.1 LEGEND ON COMMON SHARE CERTIFICATES
Certificates for the Common Shares, including without limitation Common
Shares issued upon the conversion of Convertible Securities, issued after the
Record Time but prior to the earlier of the Separation Time and the Expiration
Time shall evidence one Right for each Common Share represented thereby and,
commencing as soon as reasonably practicable after the Record Time, shall have
impressed on, printed on, written on or otherwise affixed to them (i) the legend
set forth in Section 2.1 of the Original Plan, or the legend set forth in
Section 2.1 of the Amended and Restated Shareholder Rights Plan Agreement dated
May 2, 2002, which legends shall be deemed to be amended for all purposes to
read the same as the following legend, or (ii) the following legend:
Until the Separation Time (as defined in the Rights
Agreement referred to below), this certificate also
evidences and entitles the holder hereof to certain
Rights as set forth in an Amended and Restated
Shareholder Rights Plan Agreement dated as of April
27, 2005 (amending and restating the Amended and
Restated Shareholder Rights Plan Agreement dated May
2, 2002), as such may from time to time be amended,
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restated, varied or replaced (the "Rights
Agreement"), between Nexen Inc. (the "Corporation")
and CIBC Mellon Trust Company as Rights Agent, the
terms of which are hereby incorporated herein by
reference and, a copy of which is on file at the
registered office of the Corporation. In certain
circumstances, as set forth in the Rights Agreement,
such Rights may be amended, redeemed, may expire,
may become void (if, in certain cases, they are
"Beneficially Owned" by an "Acquiring Person", as
such terms are defined in the Rights Agreement, or a
transferee thereof) or may be evidenced by separate
certificates and may no longer be evidenced by this
certificate. The Corporation will mail or arrange
for the mailing of a copy of the Rights Agreement to
the holder of this certificate without charge as
soon as practicable, after the receipt of a written
request therefor.
Certificates representing Common Shares that are issued and outstanding at the
Record Time or the Amendment Date shall evidence one Right for each Common Share
evidenced thereby notwithstanding the absence of the foregoing legend, until the
earlier of the Separation Time and the Expiration Time.
2.2 INITIAL EXERCISE PRICE; EXERCISE OF RIGHTS; DETACHMENT OF RIGHTS
(a) Subject to adjustment as herein set forth, each Right will
entitle the holder thereof, after the Separation Time, to
purchase, for the Exercise Price, or its U.S. Dollar
Equivalent as at the Business Day immediately preceding the
day of exercise of the Right, one Common Share.
Notwithstanding any other provision of this Agreement, any
Rights held by the Corporation or any of its Subsidiaries
shall be void.
(b) Until the Separation Time,
(i) no Right may be exercised; and
(ii) each Right will be evidenced by the certificate for
the associated Common Share and will be transferable
only together with, and will be transferred by a
transfer of, such associated share.
(c) After the Separation Time and prior to the Expiration Time,
the Rights (i) may be exercised; and (ii) will be transferable
independent of Common Shares. Promptly following the
Separation Time the Rights Agent will mail to each holder of
record of Common Shares as of the Separation Time and, in
respect of each Convertible Security converted into Common
Shares after the Separation Time and prior to the Expiration
Time promptly after such conversion to the holder so
converting (other than an Acquiring Person and, in respect of
any Rights Beneficially Owned by such Acquiring Person which
are not held of record by such Acquiring Person, the holder of
record of such Rights) at such holder's address as shown by
the records of the Corporation (the Corporation hereby
agreeing to furnish copies of such records to the Rights Agent
for this purpose), (x) a Rights Certificate with registration
particulars appropriately completed, representing the number
of Rights held by such holder at the Separation Time and
having such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the
Corporation may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required
to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange or securities quotation system on which the Rights
may from time to time be listed or traded, or to conform to
usage, and (y) a disclosure statement describing the Rights.
(d) Rights may be exercised in whole or in part on any Business
Day (or on any other day which, in the city at which an
Election to Exercise (as hereinafter defined) is duly
submitted to the Rights Agent in accordance with this
Agreement, is not a Saturday, Sunday or a day that is treated
as a holiday in such city) after the Separation Time and prior
to the Expiration Time by submitting to the Rights Agent (at
its office in the City of Calgary, Canada or at any other
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office of the Rights Agent in the cities designated from time
to time for that purpose by the Corporation), the Rights
Certificate evidencing such Rights together with an Election
to Exercise (an "ELECTION TO EXERCISE") substantially in the
form attached to the Rights Certificate duly completed,
accompanied by payment by certified cheque, banker's draft or
money order payable to the order of the Rights Agent, of a sum
equal to the Exercise Price multiplied by the number of Rights
being exercised and a sum sufficient to cover any transfer tax
or charge which may be payable in respect of any transfer
involved in the transfer or delivery of Rights Certificates or
the issuance or delivery of certificates for Common Shares in
a name other than that of the holder of the Rights being
exercised.
(e) Upon receipt of a Rights Certificate, with a duly completed
Election to Exercise (which does not indicate that the holder
so exercising is an Acquiring Person) accompanied by payment
as set forth in subsection 2.2(d) above, the Rights Agent will
thereupon promptly:
(i) requisition from the transfer agent or any
co-transfer agent of the Common Shares certificates
for the number of Common Shares to be purchased (the
Corporation hereby irrevocably authorizing its
transfer agent to comply with all such requisitions);
(ii) when appropriate, requisition from the Corporation
the amount of cash to be paid in lieu of issuing
fractional Common Shares and, after receipt, deliver
such cash to or to the order of the registered holder
of the Rights Certificate;
(iii) after receipt of the Common Share certificates,
deliver the same to or upon the order of the
registered holder of such Rights Certificate,
registered in such name or names as may be designated
by such holder; and
(iv) tender to the Corporation all payments received on
exercise of the Rights.
(f) In case the holder of any Rights shall exercise less than all
the Rights evidenced by such holder's Rights Certificate, a
new Rights Certificate evidencing the Rights remaining
unexercised will be issued by the Rights Agent to such holder
or to such holder's duly authorized assigns.
(g) The Corporation covenants and agrees that it will:
(i) take all such action as may be necessary and within
its power to ensure that all shares delivered upon
exercise of Rights shall, at the time of delivery of
the certificates for such shares (subject to payment
of the Exercise Price), be duly and validly
authorized, executed, issued and delivered and fully
paid and non-assessable;
(ii) take all such action as may be necessary and within
its power to comply with any applicable requirements
of the BUSINESS CORPORATIONS ACT, the SECURITIES ACT,
the securities acts or comparable legislation of each
of the other provinces of Canada, the 1933 SECURITIES
ACT and the 1934 EXCHANGE ACT, and the rules and
regulations thereunder or any other applicable law,
rule or regulation, in connection with the issuance
and delivery of the Rights Certificates and the
issuance of any shares upon exercise of Rights;
(iii) use reasonable efforts to cause all shares issued
upon exercise of Rights to be listed on the principal
exchanges or traded in the over-the-counter markets
on which the shares were traded immediately prior to
the Stock Acquisition Date;
(iv) cause to be reserved and kept available out of its
authorized and unissued Common Shares the number of
Common Shares that, as provided in this Agreement,
will from time to time be sufficient to permit the
exercise in full of all outstanding Rights; and
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(v) pay when due and payable any and all Canadian and
United States federal, provincial, and state transfer
taxes (for greater certainty not including any income
taxes or capital gains of the holder or exercising
holder or any liability of the Corporation to
withhold tax) and charges which may be payable in
respect of the original issuance or delivery of the
Rights Certificates or certificates for shares,
provided that the Corporation shall not be required
to pay any transfer tax or charge which may be
payable in respect of any transfer involved in the
transfer or delivery of Rights Certificates or the
issuance or delivery of certificates for shares in a
name other than that of the holder of the Rights
being transferred or exercised.
2.3 ADJUSTMENTS TO EXERCISE PRICE; NUMBER OF RIGHTS
The Exercise Price, the number and kind of securities subject to
purchase upon exercise of each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this Section 2.3.
(a) In the event the Corporation shall at any time after the
Amendment Date and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares
payable in Common Shares (or other capital stock or
securities exchangeable for or convertible into or
giving a right to acquire Common Shares or other
capital stock) other than pursuant to any optional
stock dividend program, dividend reinvestment plan or
a dividend payable on Common Shares in lieu of a
regular periodic cash dividend;
(ii) subdivide or change the then outstanding Common
Shares into a greater number of Common Shares;
(iii) combine or change the then outstanding Common Shares
into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other capital stock or
securities exchangeable for or convertible into or
giving a right to acquire Common Shares or other
capital stock) in respect of, in lieu of or in
exchange for existing Common Shares in a
reclassification, amalgamation, merger, statutory
arrangement or consolidation,
the Exercise Price and the number of Rights outstanding, or,
if the payment or effective date therefor shall occur after
the Separation Time, the securities purchasable upon exercise
of Rights shall be adjusted in the manner set forth below. If
the Exercise Price and number of Rights outstanding are to be
adjusted (x) the Exercise Price in effect after such
adjustment shall be equal to the Exercise Price in effect
immediately prior to such adjustment divided by the number of
Common Shares (or other capital stock) (the "EXPANSION
FACTOR") that a holder of one Common Share immediately prior
to such dividend, subdivision, change, combination or issuance
would hold thereafter as a result thereof and (y) each Right
held prior to such adjustment shall become that number of
Rights equal to the Expansion Factor, and the adjusted number
of Rights will be deemed to be allocated among the Common
Shares with respect to which the original Rights were
associated (if they remain outstanding) and the shares issued
in respect of such dividend, subdivision, change, combination
or issuance, so that each such Common Share (or other capital
stock) will have exactly one Right associated with it. If the
securities purchasable upon exercise of Rights are to be
adjusted, the securities purchasable upon exercise of each
Right after such adjustment will be the number of securities
that a holder of the securities purchasable upon exercise of
one Right immediately prior to such dividend, subdivision,
change, combination or issuance would hold thereafter as a
result thereof. If after the Amendment Date and prior to the
Expiration Time the Corporation shall issue any shares of
capital stock other than Common Shares in a transaction of a
type described in clause 2.3(a)(i) or (iv), shares of such
capital stock shall be treated herein as nearly equivalent to
Common Shares as may be practicable and appropriate under the
circumstances and the Corporation and the Rights Agent agree
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to amend this Agreement in order to effect such treatment. If
an event occurs which would require an adjustment under both
this Section 2.3 and Section 3.1 hereof, the adjustment
provided for in this Section 2.3 shall be in addition to and
shall be made prior to any adjustment required pursuant to
Section 3.1 hereof. Adjustments pursuant to subsection 2.3(a)
shall be made successively, whenever an event referred to in
subsection 2.3(a) occurs.
In the event the Corporation shall at any time after the
Amendment Date and prior to the Separation Time issue any
Common Shares otherwise than in a transaction referred to in
the preceding paragraph, each such Common Share so issued
shall automatically have one new Right associated with it,
which Right shall be evidenced by the certificate representing
such Common Share.
(b) In the event the Corporation shall at any time after the
Amendment Date and prior to the Expiration Time fix a record
date for the making of a distribution to all holders of Common
Shares of rights or warrants entitling them (for a period
expiring within 45 calendar days after such record date) to
subscribe for or purchase Common Shares (or securities
convertible into or exchangeable for or carrying a right to
purchase or subscribe for Common Shares) at a price per Common
Share (or, if a security convertible into or exchangeable for
or carrying a right to purchase or subscribe for Common
Shares, having a conversion, exchange or exercise price
(including the price required to be paid to purchase such
convertible or exchangeable security or right per share)) less
than 90% of the Market Price per Common Share on such record
date, the Exercise Price shall be adjusted in the manner set
forth below. The Exercise Price in effect after such record
date shall equal the Exercise Price in effect immediately
prior to such record date multiplied by a fraction, of which
the numerator shall be the number of Common Shares outstanding
on such record date plus the number of Common Shares which the
aggregate offering price of the total number of Common Shares
so to be offered (and/or the aggregate initial conversion,
exchange or exercise price of the convertible or exchangeable
securities or rights so to be offered (including the price
required to be paid to purchase such convertible or
exchangeable securities or rights)) would purchase at such
Market Price and of which the denominator shall be the number
of Common Shares outstanding on such record date plus the
number of additional Common Shares to be offered for
subscription or purchase (or into which the convertible or
exchangeable securities or rights so to be offered are
initially convertible, exchangeable or exercisable). In case
such subscription price is satisfied in whole or in part by
consideration in a form other than cash the value of such
consideration shall be as determined in good faith by the
Board of Directors whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on
the Rights Agent and the holders of Rights.
Such adjustment shall be made successively whenever such a
record date is fixed. For purposes of this paragraph (b), the
granting of the right to purchase Common Shares pursuant to
any dividend or interest reinvestment plan and/or any Common
Share purchase plan providing for the reinvestment of
dividends or interest payable on securities of the Corporation
and/or the investment of periodic optional payments and/or
employee benefit or similar plans (so long as such right to
purchase is in no case evidenced by the delivery of rights or
warrants) shall not be deemed to constitute an issue of rights
or warrants by the Corporation; provided, however, that in the
case of any dividend or interest reinvestment plan, the right
to purchase Common Shares is at a price per share of not less
than 90% of the current market price per share (determined as
provided in such plans) of the Common Shares.
(c) In the event the Corporation shall at any time after the
Amendment Date and prior to the Expiration Time fix a record
date for the making of a distribution to all holders of Common
Shares of evidences of indebtedness or assets (other than a
regular periodic cash dividend or a dividend paid in Common
Shares) or rights or warrants entitling them to subscribe for
or purchase Common Shares (or Convertible Securities in
respect of Common Shares) at a price per Common Share (or, in
the case of a Convertible Security in respect of Common Shares
having a conversion or exercise price per share (including the
price required to be paid to purchase such Convertible
Security) less than 90% of the Market Price per Common Share
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on such record date (excluding those referred to in subsection
2.3(b)), the Exercise Price shall be adjusted in the manner
set forth below. The Exercise Price in effect after such
record date shall equal the Exercise Price in effect
immediately prior to such record date less the fair market
value (as determined in good faith by the Board of Directors
of the Corporation) of the portion of the assets, evidences of
indebtedness, rights or warrants so to be distributed
applicable to each of the securities purchasable upon exercise
of one Right (such determination to be described in a
statement filed with the Rights Agent shall be binding on the
Rights Agent and the holders of the Rights). Such adjustment
shall be made successively whenever such a record date is
fixed.
(d) Each adjustment made pursuant to this Section 2.3 shall be
made as of:
(i) the payment or effective date for the applicable
dividend, subdivision, change, combination or
issuance, in the case of an adjustment made pursuant
to paragraph (a) above; and
(ii) the record date for the applicable dividend or
distribution, in the case of an adjustment made
pursuant to paragraph (b) or (c) above,
subject to readjustment to reverse the same if such
distribution shall not be made.
(e) In the event the Corporation shall at any time after the
Amendment Date and prior to the Expiration Time issue any
shares of capital stock (other than Common Shares), or rights
or warrants to subscribe for or purchase any such capital
stock, or securities convertible into or exchangeable for any
such capital stock, in a transaction referred to in clause
(a)(i) or (a)(iv) above, or if the Corporation shall take any
other action (other than the issue of Common Shares) which
might have a negative effect on the holders of Rights, if the
Board of Directors acting in good faith determines that the
adjustments contemplated by paragraphs (a), (b) and (c) above
are not applicable or will not appropriately protect the
interests of the holders of Rights, the Corporation may
determine what other adjustments to the Exercise Price, number
of Rights and/or securities purchasable upon exercise of
Rights would be appropriate and, if the adjustments
contemplated by paragraphs (a), (b) and (c) above are
applicable, notwithstanding such paragraphs, the adjustments
so determined by the Corporation, rather than adjustments
contemplated by paragraphs (a), (b) and (c) above, shall be
made. The Corporation and the Rights Agent shall amend this
Agreement in accordance with subsections 5.4(b) and 5.4(c), as
the case may be, to provide for such adjustments.
(f) Each adjustment to the Exercise Price made pursuant to this
Section 2.3 shall be calculated to the nearest cent. Whenever
an adjustment to the Exercise Price is made pursuant to this
Section 2.3, the Corporation shall:
(i) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts
accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each
transfer agent for the Common Shares a copy of such
certificate and mail a brief summary thereof to each
holder of Rights who requests a copy.
Failure to file such certificate or cause such summary to be
mailed as aforesaid, or any defect therein, shall not affect
the validity of any such adjustment or change.
(g) Subject to Section 5.3, irrespective of any adjustment or
change in the securities purchasable upon exercise of the
Rights, the Rights Certificates theretofore and thereafter
issued may continue to express the securities so purchasable
which were expressed in the initial Rights Certificates issued
hereunder.
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2.4 DATE ON WHICH EXERCISE IS EFFECTIVE
Each person in whose name any certificate for Common Shares is issued
upon the exercise of Rights shall for all purposes be deemed to have become the
holder of record of the Common Shares represented thereby, and such certificate
shall be dated, the date upon which the Rights Certificate evidencing such
Rights was duly surrendered (together with a duly completed Election to
Exercise) and payment of the Exercise Price for such Rights (and any applicable
transfer taxes and other governmental charges payable by the exercising holder
hereunder) was made; provided, however, that if the date of such surrender and
payment is a date upon which the Common Share transfer books of the Corporation
are closed, such person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next succeeding Business Day
on which the Common Share transfer books of the Corporation are open.
2.5 EXECUTION, AUTHENTICATION, DELIVERY AND DATING OF RIGHTS CERTIFICATES
(a) The Rights Certificates shall be executed on behalf of the
Corporation by any one of its Chairman of the Board, the
President, the Chief Executive Officer, the Chief Financial
Officer, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the
Corporation. The signature of any of these officers on the
Rights Certificates may be manual or facsimile. Rights
Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Corporation shall bind the Corporation, notwithstanding that
such individuals or any of them have ceased to hold such
offices prior to the countersignature and delivery of such
Rights Certificates. Promptly after the Corporation learns of
the Separation Time, the Corporation will notify the Rights
Agent of such Separation Time and will deliver Rights
Certificates executed by the Corporation to the Rights Agent
for countersignature, and the Rights Agent shall countersign
(manually or by facsimile signature in a manner satisfactory
to the Corporation) and mail such Rights Certificates to the
holders of the Rights pursuant to subsection 2.2(c) hereof. No
Rights Certificate shall be valid for any purpose until
countersigned by the Rights Agent as aforesaid.
(b) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.6 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
(a) The Corporation will cause to be kept a register (the "RIGHTS
REGISTER") in which, subject to such reasonable regulations as
it may prescribe, the Corporation will provide for the
registration and transfer of Rights. The Rights Agent is
hereby appointed "Rights Registrar" for the purpose of
maintaining the Rights Register for the Corporation and
registering Rights and transfers of Rights as herein provided.
In the event that the Rights Agent shall cease to be the
Rights Registrar, the Rights Agent will have the right to
examine the Rights Register at all reasonable times.
(b) After the Separation Time and prior to the Expiration Time,
upon surrender for registration of transfer or exchange of any
Rights Certificate, and subject to the provisions of
subsection 2.6(d) below, the Corporation shall execute, and
the Rights Agent shall countersign and deliver, in the name of
the holder or the designated transferee or transferees, as
required pursuant to the holder's instructions, one or more
new Rights Certificates evidencing the same aggregate number
of Rights as did the Rights Certificates so surrendered.
(c) All Rights issued upon any registration of transfer or
exchange of Rights Certificates shall be the valid obligations
of the Corporation, and such Rights shall be entitled to the
same benefits under this Agreement as the Rights surrendered
upon such registration of transfer or exchange.
(d) Every Rights Certificate surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to
the Corporation or the Rights Agent, as the case may be, duly
executed by the holder thereof or such holder's attorney duly
authorized in writing. As a condition to the issuance of any
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new Rights Certificate under this Section 2.6, the Corporation
may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation
thereto.
2.7 MUTILATED, DESTROYED, LOST AND STOLEN RIGHTS CERTIFICATES
(a) If any mutilated Rights Certificate is surrendered to the
Rights Agent prior to the Expiration Time, the Corporation
shall execute and the Rights Agent shall countersign and
deliver in exchange therefor a new Rights Certificate
evidencing the same number of Rights as did the Rights
Certificate so surrendered.
(b) If there shall be delivered to the Corporation and the Rights
Agent prior to the Expiration Time (i) evidence of ownership
of any Rights Certificate, (ii) evidence to their satisfaction
of the destruction, loss or theft of any Rights Certificate
and (iii) such security or indemnity as may be required by
each of them in their sole discretion to save each of them and
any of their agents harmless, then, in the absence of notice
to the Corporation or the Rights Agent that such Rights
Certificate has been acquired by a bona fide purchaser, the
Corporation shall execute and upon its request the Rights
Agent shall countersign and deliver, in lieu of any such
destroyed, lost or stolen Rights Certificate, a new Rights
Certificate evidencing the same number of Rights as did the
Rights Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate
under this Section 2.7, the Corporation may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the
Rights Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to this Section
2.7 in lieu of any destroyed, lost or stolen Rights
Certificate shall evidence an original additional contractual
obligation of the Corporation, whether or not the destroyed,
lost or stolen Rights Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the
benefits of this Agreement equally and proportionately with
any and all other Rights, duly issued hereunder.
2.8 PERSONS DEEMED OWNERS
The Corporation, the Rights Agent and any agent of the Corporation or
the Rights Agent may deem and treat the Person, in whose name a Rights
Certificate (or, prior to the Separation Time, the associated Common Share
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever.
2.9 DELIVERY AND CANCELLATION OF CERTIFICATES
All Rights Certificates surrendered upon exercise or for redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Rights Agent, be delivered to the Rights Agent and, in any case, shall
be promptly cancelled by the Rights Agent. The Corporation may at any time
deliver to the Rights Agent for cancellation any Rights Certificates previously
countersigned and delivered hereunder which the Corporation may have acquired in
any manner whatsoever, and all Rights Certificates so delivered shall be
promptly cancelled by the Rights Agent. No Rights Certificate shall be
countersigned in lieu of or in exchange for any Rights Certificates cancelled as
provided in this Section 2.9, except as expressly permitted by this Agreement.
The Rights Agent shall, subject to applicable law, destroy all cancelled Rights
Certificates and deliver a certificate of destruction to the Corporation.
2.10 AGREEMENT OF RIGHTS HOLDERS
Every holder of Rights by accepting the same consents and agrees with
the Corporation and the Rights Agent and with every other holder of Rights:
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(a) to be bound by and subject to the provisions of this
Agreement, as amended from time to time in accordance with the
terms hereof, in respect of all Rights held;
(b) that, prior to the Separation Time, each Right will be
transferable only together with, and will be transferred by a
transfer of, the associated Common Share;
(c) that, after the Separation Time, the Rights Certificates will
be transferable only on the Rights Register as provided
herein.
(d) that prior to due presentment of a Rights Certificate (or,
prior to the Separation Time, the associated Common Share
certificate) for registration of transfer, the Corporation,
the Rights Agent and any agent of the Corporation or the
Rights Agent may deem and treat the Person in whose name the
Rights Certificate (or, prior to the Separation Time, the
associated Common Share certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on such
Rights Certificate or the associated Common Share certificate
made by anyone other than the Corporation or the Rights Agent)
for all purposes whatsoever, and neither the Corporation nor
the Rights Agent shall be affected by any notice to the
contrary;
(e) that such holder of Rights has waived his right to receive any
fractional Rights or any fractional shares upon exercise of a
Right (except as provided herein);
(f) that, subject to the provisions of Section 5.4, without the
approval of any holder of Rights or Common Shares and upon the
sole authority of the Board of Directors acting in good faith
this Agreement may be supplemented or amended from time to
time as provided herein; and
(g) that, notwithstanding anything in this Agreement to the
contrary, neither the Corporation nor the Rights Agent shall
have any liability to any holder of a Right or any other
Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary
or permanent injunction or other order, decree or ruling
issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive
order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining performance of such
obligation.
ARTICLE 3
ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF CERTAIN TRANSACTIONS
3.1 FLIP-IN EVENT
(a) Subject to subsections 3.1(b), 5.1(b), 5.1(c) and 5.1(d),
hereof, in the event that prior to the Expiration Time a
Flip-in Event shall occur, the Corporation shall take such
action as shall be necessary to ensure and provide, within 10
Business Days thereafter or such longer period as may be
required to satisfy the requirements of the applicable
securities acts or comparable legislation so that, except as
provided below, each Right shall thereafter constitute the
right to purchase from the Corporation, upon exercise thereof
in accordance with the terms hereof, that number of Common
Shares of the Corporation having an aggregate Market Price on
the date of consummation or occurrence of such Flip-in Event
equal to twice the Exercise Price for an amount in cash equal
to the Exercise Price, (such right to be appropriately
adjusted in a manner analogous to the applicable adjustment
provided for in Section 2.3 in the event that after such date
of consummation or occurrence an event of a type analogous to
any of the events described in Section 2.3 shall have occurred
with respect to such Common Shares).
(b) Notwithstanding the foregoing or any other provisions of this
Agreement, upon the occurrence of any Flip-in Event, any
Rights that are or were Beneficially Owned on or after the
earlier of the Separation Time or the Stock Acquisition Date
by:
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(i) an Acquiring Person (or any Affiliate or Associate of
an Acquiring Person or any Person acting jointly or
in concert with an Acquiring Person or any Affiliate
or Associate of an Acquiring Person); or
(ii) a transferee, direct or indirect, of an Acquiring
Person (or any Affiliate or Associate of an Acquiring
Person or any Person acting jointly or in concert
with, an Acquiring Person or any Affiliate or
Associate of an Acquiring Person) in a transfer made
after the date hereof, whether or not for
consideration, that the Board of Directors acting in
good faith has determined is part of a plan,
arrangement or scheme of an Acquiring Person, (or any
Affiliate or Associate of an Acquiring Person) that
has the purpose or effect of avoiding clause (i) of
this subsection 3.1(b),
shall become void and any holder of such Rights (including
transferees) shall thereafter have no right, to exercise such
Rights under any provision of this Agreement and shall not
have any other rights whatsoever in respect of such Rights,
whether under any provision of this Agreement or otherwise.
(c) Any Rights Certificate that represents Rights Beneficially
Owned by a Person described in either clauses (i) or (ii) of
subsection 3.1(b) or transferred to any nominee of any such
Person, and any Rights Certificate issued upon transfer,
exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain the
following legend:
"The Rights represented by this Rights
Certificate were Beneficially Owned by a
Person who was an Acquiring Person or who
was an Affiliate or an Associate of an
Acquiring Person (as such terms are defined
in the Rights Agreement) or was acting
jointly or in concert with any of them.
This Rights Certificate and the Rights
represented hereby shall become void in the
circumstances specified in subsection
3.1(b) of the Rights Agreement.",
provided that the Rights Agent shall not be under any
responsibility to ascertain the existence of facts that would
require the imposition of such legend but shall be required to
impose such legend only if instructed to do so by the
Corporation or if a holder fails to certify upon transfer or
exchange in the space provided on the Rights Certificate that
such holder is not an Acquiring Person, an Affiliate or
Associate thereof or a Person acting jointly or in concert
with any of them.
ARTICLE 4
THE RIGHTS AGENT
4.1 GENERAL
(a) The Corporation hereby appoints the Rights Agent to act as
agent for the Corporation and the holders of Rights in
accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. The Corporation
may from time to time appoint such co-Rights Agents (the
"CO-RIGHTS AGENTS") as it may deem necessary or desirable,
subject to the consent of the Rights Agent, acting reasonably.
In the event the Corporation appoints one or more Co-Rights
Agents, the respective duties of the Rights Agent and
Co-Rights Agents shall be as the Corporation may determine
with the approval of the Rights Agent and Co-Rights Agent. The
Corporation agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and,
from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements
reasonably incurred in the execution and administration of
this Agreement and the exercise and performance of its duties
hereunder (including the reasonable fees and other
disbursements of any expert retained by the Rights Agent with
the approval of the Corporation, such approval not to be
unreasonably withheld). The Corporation also agrees to
indemnify the Rights Agent, its directors, officers, employees
and agents for, and to hold them harmless against, any loss,
liability, cost, claim, action, damage or expense, incurred
without negligence, bad faith or wilful misconduct on the part
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of the Rights Agent or its directors, officers, employees and
agents for anything done, suffered or omitted by the Rights
Agent in connection with the acceptance, execution and
administration of this Agreement and the exercise and
performance of its duties hereunder, including the costs and
expenses of defending against any claim of liability, which
right to indemnification will survive the termination of this
Agreement or the resignation or removal of the Rights Agent.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this
Agreement in reliance upon any certificate for Common Shares,
Rights Certificate, certificate for other securities of the
Corporation, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or document
believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper
person or persons.
(c) The Corporation shall inform the Rights Agent, in a reasonably
timely manner, of events which may materially affect the
administration of this Agreement by the Rights Agent. At any
time, upon request, the Corporation shall provide to the
Rights Agent an incumbency certificate with respect to the
current directors and officers of the Corporation.
4.2 MERGER, AMALGAMATION OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or amalgamated or with which it may
be consolidated, or any corporation resulting from any merger,
amalgamation or consolidation to which the Rights Agent or any
successor Rights Agent is a party or any corporation
succeeding to the shareholder or stockholder services business
of the Rights Agent or any successor Rights Agent, will be the
successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the
part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor
Rights Agent under the provisions of Section 4.4 hereof. In
case, at the time such successor Rights Agent succeeds to the
agency created by this Agreement, any of the Rights
Certificates have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of
the predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of
the Rights Certificates have not been countersigned, any
successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all
such cases such Rights Certificates will have the full force
provided in the Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is changed
and at such time any of the Rights Certificates shall have
been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such Rights
Certificates either in its prior name or in its changed name;
and in all such cases such Rights Certificates shall have the
full force provided in the Rights Certificates and in this
Agreement.
4.3 DUTIES OF RIGHTS AGENT
The Rights Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the
Corporation and the holders of Rights Certificates, by their acceptance thereof,
shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Corporation), and the opinion of such
counsel will be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in
good faith and in accordance with such opinion; the Rights
Agent may also, with the approval of the Corporation (such
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approval not to be unreasonably withheld) and at the expense
of the Corporation, consult with such other experts as the
Rights Agent shall consider necessary or appropriate to
properly carry out the duties and obligations imposed under
this Agreement and the Rights Agent shall be entitled to act
and rely in good faith on the advice of any such expert.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent deems it necessary or desirable that any fact
or matter be proved or established by the Corporation prior to
taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by a person
believed by the Rights Agent to be the Chairman of the Board,
the President, the Chief Executive Officer, the Chief
Financial Officer, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary
of the Corporation and delivered to the Rights Agent; and such
certificate will be full authorization to the Rights Agent for
any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent will be liable hereunder only for its own
negligence, bad faith or wilful misconduct.
(d) The Rights Agent will not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement
or in the certificates for Common Shares or the Rights
Certificates (except its countersignature thereof) or be
required to verify the same, but all such statements and
recitals are and will be deemed to have been made by the
Corporation only.
(e) The Rights Agent will not be under any responsibility in
respect of the validity of this Agreement or the execution and
delivery hereof (except the due authorization, execution and
delivery hereof by the Rights Agent) or in respect of the
validity or execution of any Common Share certificate or
Rights Certificate (except its countersignature thereof); nor
will it be responsible for any breach by the Corporation of
any covenant or condition contained in this Agreement or in
any Rights Certificate; nor will it be responsible for any
change in the exercisability of the Rights (including the
Rights becoming void pursuant to subsection 3.1(b) hereof) or
any adjustment required under the provisions of Section 2.3
hereof or responsible for the manner, method or amount of any
such adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect to
the exercise of Rights after receipt of the certificate
contemplated by Section 2.3 describing any such adjustment);
nor will it by any act hereunder be deemed to make any
representation or warranty as to the authorization of any
Common Shares to be issued pursuant to this Agreement or any
Rights or as to whether any Common Shares will, when issued,
be duly and validly authorized, executed, issued and delivered
and fully paid and non-assessable.
(f) The Corporation agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by
the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties
hereunder from any person believed by the Rights Agent to be
the Chairman of the Board, the President, the Chief Executive
Officer, the Chief Financial Officer, any Vice President, the
Secretary or any Assistant Secretary or the Treasurer or any
Assistant Treasurer of the Corporation, and to apply to such
persons for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or
suffered by it in good faith in reliance upon instructions of
any such person; it is understood that instructions to the
Rights Agent shall, except where circumstances make it
impracticable or the Rights Agent otherwise agrees, be given
in writing and, where not in writing, such instructions shall
be confirmed in writing as soon as reasonably possible after
the giving of such instructions.
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(h) The Rights Agent and any shareholder or stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal
in Common Shares, Rights or other securities of the
Corporation or become pecuniarily interested in any
transaction in which the Corporation may be interested, or
contract with or lend money to the Corporation or otherwise
act as fully and freely as though it were not Rights Agent
under this Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Corporation or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and
the Rights Agent will not be answerable or accountable for any
act, omission, default, neglect or misconduct of any such
attorneys or agents or for any loss to the Corporation
resulting from any such act, omission, default, neglect or
misconduct, provided reasonable care was exercised in the
selection and continued employment thereof.
4.4 CHANGE OF RIGHTS AGENT
The Rights Agent may resign and be discharged from its duties under
this Agreement upon 60 days' notice (or such lesser notice as is acceptable to
the Corporation) in writing mailed to the Corporation and to each transfer agent
of Common Shares by registered or certified mail, and to the holders of the
Rights in accordance with Section 5.9. The Corporation may remove the Rights
Agent upon 30 days' notice in writing given to the Rights Agent and to each
transfer agent of the Common Shares (by personal delivery, or registered or
certified mail). If the Rights Agent should resign or be removed or otherwise
become incapable of acting, the Corporation will appoint a successor to the
Rights Agent. If the Corporation fails to make such appointment within a period
of 30 days after such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent, then
the resigning Rights Agent, at the expense of the Corporation, or any holder of
any Rights may apply to any court of competent jurisdiction for the appointment
of a new Rights Agent. Any successor Rights Agent, whether appointed by the
Corporation or by such a court, shall be a corporation incorporated under the
laws of Canada or a province thereof authorized to carry on the business of a
trust company in the Province of Alberta. After appointment, the successor
Rights Agent will be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall, upon the receipt of
all outstanding fees and expenses, deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Corporation will file
notice thereof in writing with the predecessor Rights Agent and each transfer
agent of the Common Shares, and mail a notice thereof in writing to the holders
of the Rights. Failure to give any notice provided for in this Section 4.4,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
ARTICLE 5
MISCELLANEOUS
5.1 REDEMPTION AND TERMINATION
(a) The Board of Directors acting in good faith may, with the
prior consent of holders of Common Shares or of the holders of
Rights given in accordance with subsection 5.1(f) or 5.1(g),
as the case may be, at any time prior to the occurrence of a
Flip-in Event as to which the application of Section 3.1 has
not been waived pursuant to the provisions of this Section
5.1, elect to redeem all but not less than all of the then
outstanding Rights at a redemption price of $0.000001 per
Right appropriately adjusted in a manner analogous to the
applicable adjustment provided for in Section 2.3 in the event
that an event of the type analogous to any of the events
described in Section 2.3 shall have occurred (such redemption
price being herein referred to as the "REDEMPTION PRICE").
(b) The Board of Directors acting in good faith may, with the
prior consent of the holders of Common Shares given in
accordance with subsection 5.1(f), determine, at any time
prior to the occurrence of a Flip-in Event as to which the
application of Section 3.1 has not been waived pursuant to
this Section 5.1, if such Flip-in Event would occur by reason
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of an acquisition of Common Shares otherwise than pursuant to
a Take-over Bid made by means of a Take-over Bid circular to
all holders of record of Common Shares and otherwise than in
the circumstances set forth in subsection 5.1(d), to waive the
application of Section 3.1 to such Flip-in Event. In the event
that the Board of Directors proposes such a waiver, the Board
of Directors shall extend the Separation Time to a date
subsequent to and not more than ten Business Days following
the meeting of shareholders called to approve such waiver.
(c) The Board of Directors acting in good faith may, prior to the
occurrence of a Flip-in Event as to which the application of
Section 3.1 has not been waived under this clause, determine,
upon prior written notice to the Rights Agent, to waive the
application of Section 3.1 to that Flip-in Event provided that
the Flip-in Event would occur by reason of a Take-over Bid
made by means of a Take-over Bid circular sent to all holders
of record of Common Shares; further provided that if the Board
waives the application of Section 3.1 to such a Flip-in Event,
the Board of Directors shall be deemed to have waived the
application of Section 3.1 to any other Flip-in Event
occurring by reason of any Take-over Bid made by means of a
Take-over Bid circular to all holders of record of Common
Shares which is made prior to the expiry of any Take-over Bid
in respect of which a waiver is, or is deemed to have been,
granted under this subsection 5.1(c).
(d) The Board of Directors acting in good faith may, in respect of
any Flip-in Event waive the application of Section 3.1 to that
Flip-in Event, provided that both of the following conditions
are satisfied:
(i) the Board of Directors has determined that the
Acquiring Person became an Acquiring Person by
inadvertence and without any intent or knowledge that
it would become an Acquiring Person; and
(ii) such Acquiring Person has reduced its Beneficial
Ownership of Common Shares such that at the time of
waiver pursuant to this subsection 5.1(d) it is no
longer an Acquiring Person.
(e) Where, pursuant to a Permitted Bid, a Competing Permitted Bid
or a Take-over Bid in respect of which the Board of Directors
has waived, or is deemed to have waived, pursuant to
subsection 5.1(c), the application of Section 3.1, a Person
acquires outstanding Common Shares, then the Board of
Directors shall immediately upon the consummation of such
acquisition without further formality and without any approval
under subsections 5.4(b) or (c) be deemed to have elected to
redeem the Rights at the Redemption Price.
(f) If a redemption of Rights pursuant to subsection 5.1(a) or a
waiver of a Flip-in Event pursuant to subsection 5.1(b) is
proposed at any time prior to the Separation Time, such
redemption or waiver shall be submitted for approval to the
holders of Common Shares. Such approval shall be deemed to
have been given if the redemption or waiver is approved by the
affirmative vote of a majority of the votes cast by
Independent Shareholders represented in person or by proxy at
a meeting of such holders duly held in accordance with
applicable laws and the Corporation's by-laws.
(g) If a redemption of Rights pursuant to subsection 5.1(a) is
proposed at any time after the Separation Time, such
redemption shall be submitted for approval to the holders of
Rights. Such approval shall be deemed to have been given if
the redemption is approved by holders of Rights by a majority
of the votes cast by the holders of Rights represented in
person or by proxy at and entitled to vote at a meeting of
such holders. For the purposes hereof, each outstanding Right
(other than Rights which are Beneficially Owned by any Person
referred to in clauses (i) to (v) inclusive of the definition
of Independent Shareholders) shall be entitled to one vote,
and the procedures for the calling, holding and conduct of the
meeting shall be those, as nearly as may be, which are
provided in the Corporation's by-laws and the BUSINESS
CORPORATIONS ACT with respect to meetings of shareholders of
the Corporation.
-26-
(h) Where a Take-over Bid that is not a Permitted Bid is withdrawn
or otherwise terminated after the Separation Time has occurred
and prior to the occurrence of a Flip-in Event, the Board may
elect to redeem all the outstanding Rights at the Redemption
Price. Notwithstanding such redemption, all of the provisions
of this Agreement shall continue to apply as if the Separation
Time had not occurred and it shall be deemed not to have
occurred and Rights shall remain attached to the outstanding
Common Shares, subject to and in accordance with the
provisions of this Agreement.
(i) If the Board of Directors elects or is deemed to have elected
to redeem the Rights, and, in circumstances where subsection
5.1(a) is applicable, such redemption is approved by the
holders of Common Shares or the holders of Rights in
accordance with subsection 5.1(f) or (g), as the case may be,
the right to exercise the Rights will thereupon, without
further action and without notice, terminate and the only
right thereafter of the holders of Rights will be to receive
the Redemption Price.
(j) Within 10 Business Days of the Board of Directors electing or
having been deemed to have elected to redeem the Rights or, if
subsection 5.1(a) is applicable within 10 Business Days after
the holders of Common Shares or the holders of Rights have
approved a redemption of Rights in accordance with subsection
5.1(f) or 5.1(g), as the case may be, the Corporation shall
give notice of redemption to the holders of the then
outstanding Rights by mailing such notice to each such holder
at its last address as it appears upon the register of the
Rights Agent or, prior to the Separation Time, on the register
of the transfer agent for the Common Shares. Any notice which
is mailed in the manner herein provided will be deemed given,
whether or not the holder receives the notice. Each such
notice of redemption will state the method by which the
payment of the Redemption Price will be made. The Corporation
may not redeem, acquire or purchase for value any Rights at
any time in any manner other than that specifically set forth
in this Section 5.1 or in connection with the purchase of
Common Shares prior to the Separation Time.
(k) The Corporation shall give prompt written notice to the Rights
Agent of any waiver of the application of Section 3.1 made by
the Board of Directors under this Section 5.1.
5.2 EXPIRATION
No Person shall have any rights pursuant to this Agreement or in
respect of any Right after the Expiration Time, except the Rights Agent as
specified in subsection 4.1(a) of this Agreement.
5.3 ISSUANCE OF NEW RIGHTS CERTIFICATES
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Corporation may, at its option, issue new Rights
Certificates evidencing Rights in such form as may be approved by the Board of
Directors to reflect any adjustment or change in the number of or kind or class
of shares purchasable upon exercise of Rights made in accordance with the
provisions of this Agreement.
5.4 SUPPLEMENTS AND AMENDMENTS
(a) The Corporation may make amendments to this Agreement to
correct any clerical or typographical error or which are
required to maintain the validity of this Agreement as a
result of any change in any applicable legislation, rules or
regulations thereunder. The Corporation may, prior to the date
of the shareholders' meeting referred to in Section 5.18,
supplement, amend, vary, rescind or delete any of the
provisions of this Agreement without the approval of any
holders of Rights or Common Shares (whether or not such action
would materially adversely affect the interests of the holders
of Rights generally) where the Board of Directors acting in
good βββββ βββββ such action necessary or desirable.
Notwithstanding anything in this Section 5.4 to the contrary,
no such supplement or amendment shall be made to the
provisions of Article 4 except with the written concurrence of
the Rights Agents to such supplement or amendment.
-27-
(b) Subject to subsection 5.4(a), the Corporation may, with the
prior consent of the holders of Common Shares, obtained as set
forth below, at any time prior to the Separation Time,
supplement, amend, vary, rescind or delete any of the
provisions of this Agreement and the Rights (whether or not
such action would materially adversely affect the interests of
the holders of Rights generally). Such consent shall be deemed
to have been given if the action requiring such approval is
authorized by the affirmative vote of a majority of the votes
cast by Independent Shareholders present or represented at and
entitled to be voted at a meeting of the holders of Common
Shares duly called and held in compliance with applicable laws
and the articles and by-laws of the Corporation.
(c) The Corporation may, with the prior consent of the holders of
Rights, at any time on or after the Separation Time,
supplement, amend, vary, rescind or delete any of the
provisions of this Agreement and the Rights (whether or not
such action would materially adversely affect the interests of
the holders of Rights generally), provided that no such
amendment, variation or deletion shall be made to the
provisions of Article 4 except with the written concurrence of
the Rights Agent thereto. Such consent shall be deemed to have
been given if such amendment, variation or deletion is
authorized by the affirmative votes of the holders of Rights
present or represented at and entitled to be voted at a
meeting of the holders held in accordance with subsection
5.4(d) and representing 50% plus one of the votes cast in
respect thereof.
(d) Any approval of the holders of Rights shall be deemed to have
been given if the action requiring such approval is authorized
by the affirmative votes of the holders of Rights present or
represented at and entitled to be voted at a meeting of the
holders of Rights and representing a majority of the votes
cast in respect thereof. For the purposes hereof, each
outstanding Right (other than Rights which are void pursuant
to the provisions hereof) shall be entitled to one vote, and
the procedures for the calling, holding and conduct of the
meeting shall be those, as nearly as may be, which are
provided in the Corporation's by-laws and the BUSINESS
CORPORATIONS ACT with respect to meetings of shareholders of
the Corporation.
(e) Any amendments made by the Corporation to this Agreement
pursuant to subsection 5.4(a) which are required to maintain
the validity of this Agreement as a result of any change in
any applicable legislation, rules or regulation thereunder
shall:
(i) if made before the Separation Time, be submitted to
the shareholders of the Corporation at the next
meeting of shareholders and the shareholders may, by
the majority referred to in subsection 5.4(b),
confirm or reject such amendment;
(ii) if made after the Separation Time, be submitted to
the holders of Rights at a meeting to be called for
on a date not later than immediately following the
next meeting of shareholders of the Corporation and
the holders of Rights may, by resolution passed by
the majority referred to in subsection 5.4(d),
confirm or reject such amendment.
Any such amendment shall be effective from the date of the
resolution of the Board of Directors adopting such amendment,
until it is confirmed or rejected or until it ceases to be
effective (as described in the next sentence) and, where such
amendment is confirmed, it continues in effect in the form so
confirmed. If such amendment is rejected by the shareholders
or the holders of Rights or is not submitted to the
shareholders or holders of Rights as required, then such
amendment shall cease to be effective from and after the
termination of the meeting at which it was rejected or to
which it should have been but was not submitted or from and
after the date of the meeting of holders of Rights that should
have been but was not held, and no subsequent resolution of
the Board of Directors to amend this Agreement to
substantially the same effect shall be effective until
confirmed by the shareholders or holders of Rights as the case
may be.
(f) The Corporation shall be required to provide the Rights Agent
with notice in writing of any such amendment, recission or
variation to this Agreement as referred to in this Section 5.4
within five days of effecting such amendment, recission or
variation.
-28-
(g) Any supplement or amendment to this Agreement pursuant to
subsection 5.4(b) through 5.4(e) shall be subject to the
receipt of any requisite approval or consent from any
governmental or regulatory authority having jurisdiction over
the Corporation, including without limitation any requisite
approval of stock exchanges on which the Common Shares are
listed.
5.5 FRACTIONAL RIGHTS AND FRACTIONAL SHARES
(a) The Corporation shall not be required to issue fractions of
Rights or to distribute Rights Certificates which evidence
fractional Rights. After the Separation Time there shall be
paid to the registered holders of the Rights Certificates with
regard to which fractional Rights would otherwise be issuable,
an amount in cash equal to the same fraction of the Market
Price of a whole Right in lieu of such fractional Rights as of
the date such fractional Rights would otherwise be issuable.
The Rights Agent shall have no obligation to make any payments
in lieu of fractional Rights unless the Corporation shall have
provided the Rights Agent with the necessary funds to pay in
full all amounts payable in accordance with subsection 2.2(e).
(b) The Corporation shall not be required to issue fractional
Common Shares upon exercise of the Rights or to distribute
certificates which evidence fractional Common Shares. In lieu
of issuing fractional Common Shares, the Corporation shall pay
to the registered holder of Rights Certificates at the time
such Rights are exercised as herein provided, an amount in
cash equal to the same fraction of the Market Price of one
Common Share at the date of such exercise. The Rights Agent
shall have no obligation to make any payments in lieu of
fractional Common Shares unless the Corporation shall have
provided the Rights Agent with the necessary funds to pay in
full all amounts payable in accordance with subsection 2.2(e).
5.6 RIGHTS OF ACTION
Subject to the terms of this Agreement, rights of action in respect of
this Agreement, other than rights of action vested solely in the Rights Agent,
are vested in the respective holders of the Rights; and any holder of any
Rights, without the consent of the Rights Agent or of the holder of any other
Rights, may, on such holder's own behalf and for such holder's own benefit and
the benefit of other holders of Rights, enforce, and may institute and maintain
any suit, action or proceeding against the Corporation to enforce, or otherwise
act in respect of, such holder's right to exercise such holder's Rights, or
Rights to which he is entitled, in the manner provided in this Agreement and in
such holder's Rights Certificate. Without limiting the foregoing or any remedies
available to the holders of Rights it is specifically acknowledged that the
holders of Rights would not have an adequate remedy at law for any breach of
this Agreement and will be entitled to specific performance of the obligations
under, and injunctive relief against actual or threatened violations of, the
obligations of any Person subject to this Agreement.
5.7 HOLDER OF RIGHTS NOT DEEMED A SHAREHOLDER
No holder, as such, of any Rights shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of Common Shares or any other
securities which may at any time be issuable on the exercise of Rights, nor
shall anything contained herein or in any Rights Certificate be construed to
confer upon the holder of any Rights, as such, any of the rights of a
shareholder of the Corporation or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as provided in Section
5.8 hereof), or to receive dividends or subscription rights or otherwise, until
such Rights, or Rights to which such holder is entitled, shall have been
exercised in accordance with the provisions hereof.
5.8 NOTICE OF PROPOSED ACTIONS
In case the Corporation shall propose after the Separation Time and
prior to the Expiration Time:
(a) to effect or permit (in cases where the Corporation's
permission is required) any Flip-in Event; or
-29-
(b) to effect the liquidation, dissolution or winding up of the
Corporation or the sale of all or substantially all of the
Corporation's assets,
then, in each such case, the Corporation shall give to each holder of a Right,
in accordance with Section 5.9 hereof, a notice of such proposed action, which
shall specify the date on which such Flip-in Event, liquidation, dissolution, or
winding up is to take place, and such notice shall be so given at least 10
Business Days prior to the date of taking of such proposed action by the
Corporation.
5.9 NOTICES
Notices or demands to be given or made in connection with this
Agreement by the Rights Agent or by the holder of any Rights to or on the
Corporation shall be sufficiently given or made if delivered or sent by mail,
postage prepaid or by fax (with, in the case of fax, an original copy of the
notice or demand sent by first class mail, postage prepaid, to the Corporation
following the giving of the notice or demand by fax), addressed (until another
address is filed in writing with the Rights Agent) as follows:
Nexen Inc.
βββ - βββ ββββββ β.β.
βββββββ, βββββββ
βββ βββ
Attention: Senior Vice-President,
General Counsel and Secretary
Fax: (βββ) βββ-ββββ
Notices or demands to be given or made in connection with this Agreement by the
Corporation or by the holder of any Rights to or on the Rights Agent shall be
sufficiently given or made if delivered or sent by mail, postage prepaid, or by
fax (with, in the case of fax, an original copy of the notice or demand sent by
first class mail, postage prepaid, to the Rights Agent following the giving of
the notice or demand by fax), addressed (until another address is filed in
writing with the Corporation) as follows:
CIBC Mellon Trust Company
βββ, βββ - βββ ββββββ β.β.
βββββββ, βββββββ
βββ βββ
Attention: Manager, Client Services
Fax: (βββ) βββ-ββββ
Notices or demands to be given or made in connection with this Agreement by the
Corporation or the Rights Agent to or on the holder of any Rights shall be
sufficiently given or made if delivered or sent by first class mail, postage
prepaid, or by fax (with, in the case of fax, an original copy of the notice or
demand sent by first class mail, postage prepaid, to such holder following the
giving of the notice or demand by fax), addressed to such holder at the address
of such holder as it appears upon the register of the Rights Agent or, prior to
the Separation Time, on the register of the Corporation for the Common Shares.
Any notice given or made in accordance with this Section 5.9 shall be deemed to
have been given and to have been received on the day of delivery, if so
delivered, on the third Business Day (excluding each day during which there
exists any general interruption of postal service due to strike, lockout or
other cause) following the mailing thereof, if so mailed, and on the day of
faxing (provided such sending is during the normal business hours of the
addressee on a Business Day and if not, on the first Business Day thereafter).
Each of the Corporation and the Rights Agent may from time to time change its
address for notice by notice to the other given in the manner aforesaid.
If mail service is or is threatened to be interrupted at a time when the
Corporation or the Rights Agent wishes to give a notice or demand hereunder to
or on the holders of the Rights, the Corporation or the Rights Agent may,
notwithstanding the foregoing provisions of this Section 5.9, give such notice
by means, of publication once in each of two successive weeks in the business
section of the Financial Post and, so long as the Corporation has a transfer
agent in the United States, in a daily publication in the United States
-30-
designated by the Corporation, or in such other publication or publications as
may be designated by the Corporation and notice so published shall be deemed to
have been given on the date on which the first publication of such notice in any
such publication has taken place.
5.10 COSTS OF ENFORCEMENT
The Corporation agrees that if the Corporation fails to fulfil any of
its obligations pursuant to this Agreement, then the Corporation will reimburse
the holder of any Rights for the costs and expenses (including legal fees)
incurred by such holder in actions to enforce his rights pursuant to any Rights
or this Agreement.
5.11 SUCCESSORS
All the covenants and provisions of this Agreement by or for the
benefit of the Corporation or the Rights Agent shall bind and enure to the
benefit of their respective successors and assigns hereunder.
5.12 BENEFITS OF THIS AGREEMENT
Nothing in this Agreement shall be construed to give to any Person
other than the Corporation, the Rights Agent and the holders of the Rights any
legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Corporation, the
Rights Agent and the holders of the Rights.
5.13 DESCRIPTIVE HEADINGS
Descriptive headings appear herein for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
5.14 GOVERNING LAW
This Agreement and each Right issued hereunder shall be deemed to be a
contract made under the laws of the Province of Alberta and for all purposes
shall be governed by and construed in accordance with the laws of such Province
applicable to contracts to be made and performed entirely within such Province.
5.15 LANGUAGE
Les parties aux presentes ont exige que la presente convention ainsi
que tous les documents et avis qui s'y rattachent et/ou qui en decouleront
soient rediges en langue anglaise. The parties hereto have required that this
Agreement and all documents and notices related thereto and/or resulting
therefrom be drawn up in the English language.
5.16 COUNTERPARTS
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
5.17 SEVERABILITY
If any term or provision hereof or the application thereof to any
circumstance is, in any jurisdiction and to any extent, invalid or
unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining terms and provisions
hereof or the application of such term or provision to circumstances other than
those as to which it is held invalid or unenforceable.
-31-
5.18 EFFECTIVE DATE
Notwithstanding its amendment and restatement as of the date hereof,
this Agreement (subject to receipt of the approval of the Independent
Shareholders as set forth below) is effective from the Effective Date and
replaces and supersedes the Original Plan. If this Agreement is not approved by
resolution passed by a majority of the votes cast by Independent Shareholders
who vote in respect of reconfirmation of the Original Plan as amended and
restated herein at a meeting of shareholders to be held not later than the date
on which the 2005 annual meeting of shareholders of the Corporation terminates,
then the Original Plan and this Agreement and all outstanding Rights shall
terminate and be void and of no further force and effect on and from that date
which is the earlier of (a) the date of termination of the meeting called to
consider the confirmation of the Original Plan as amended and restated herein
under this Section 5.18, and (b) the date of termination of the 2005 annual
meeting of shareholders of the Corporation.
5.19 SHAREHOLDER REVIEW
At or prior to the annual meeting of the shareholders of the
Corporation in 2008, provided that a Flip-in Event has not occurred prior to
such time, the Board of Directors shall submit a resolution ratifying the
continued existence of this Agreement to the Independent Shareholders for their
consideration and, if thought advisable, approval. Unless the majority of the
votes cast by Independent Shareholders who vote in respect of such resolution
are voted in favour of the continued existence of this Agreement, the Board of
Directors shall, immediately upon the confirmation by the Chairman of such
shareholders' meeting of the results of the votes on such resolution and without
further formality, be deemed to elect to redeem the Rights at the Redemption
Price.
5.20 REGULATORY APPROVALS
Any obligation of the Corporation or action or event contemplated by
this Agreement shall be subject to the receipt of any requisite approval or
consent from any governmental or regulatory authority. Without limiting the
generality of the foregoing, any issuance or delivery of debt or equity
securities (other than non-convertible debt securities) of the Corporation upon
the exercise of Rights and any amendment or supplement to this Agreement shall
be subject to the prior consent of the Toronto Stock Exchange or any other
exchange upon which the Common Shares of the Corporation may be listed.
5.21 DECLARATION AS TO NON-CANADIAN AND NON-U.S. HOLDERS
If in the opinion of the Board of Directors (who may rely upon the
advice of counsel), any action or event contemplated by this Agreement would
require compliance with the securities laws or comparable legislation of a
jurisdiction outside Canada and the United States of America, its territories
and possessions, the Board of Directors acting in good faith may take such
actions as it may deem appropriate to ensure that such compliance is not
required, including without limitation establishing procedures for the issuance
to a Canadian resident Fiduciary of Rights or securities issuable on exercise of
Rights, the holding thereof in trust for the Persons entitled thereto (but
reserving to the Fiduciary or to the Fiduciary and the Corporation, as the
Corporation may determine, absolute discretion with respect thereto) and the
sale thereof and remittance of the proceeds of such sale, if any, to the Persons
entitled thereto. In no event shall the Corporation or the Rights Agent be
required to issue or deliver Rights or securities issuable on exercise of Rights
to Persons who are citizens, residents or nationals of any jurisdiction other
than Canada and a province or territory thereof and the United States of America
and any state thereof in which such issue or delivery would be unlawful without
registration of the relevant Persons or securities for such purposes.
5.22 DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS
All actions and determinations (including all omissions with respect to
the foregoing) which are done or made by the Board of Directors pursuant to this
Agreement, in good faith, shall not subject any member of the Board of Directors
to any liability whatsoever to the holders of the Rights.
-32-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
NEXEN INC.
PER: /s/ ββββ β. ββββββββββ
------------------------------------
Name: ββββ β. ββββββββββ, Q.C.
Title: Senior Vice President
General Counsel and Secretary
PER:
------------------------------------
Name:
Title:
CIBC MELLON TRUST COMPANY
PER: /s/ βββββ ββββββββ
------------------------------------
Name: βββββ ββββββββ
Title: Manager, Client Relations
PER: /s/ βββββββ Van Der βββββ
------------------------------------
Name: βββββββ Van Der βββββ
Title: Manager, Client Relations
EXHIBIT A
FORM OF RIGHTS CERTIFICATE
Certificate No. _________ __________ Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE CORPORATION, ON THE
TERMS SET FORTH IN THE RIGHTS AGREEMENT. IN CERTAIN CIRCUMSTANCES (SPECIFIED IN
SUBSECTION 3.1(b) OF THE RIGHTS AGREEMENT), RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON OR TRANSFEREE OF AN ACQUIRING PERSON OR ITS AFFILIATES OR
ASSOCIATES (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR ANY PERSON
ACTING JOINTLY OR IN CONCERT WITH ANY OF THEM MAY BECOME VOID .
RIGHTS CERTIFICATE
This certifies that _________________________________________________
is the registered holder of the number of Rights set forth above, each of which
entitles the registered holder thereof, subject to the terms, provisions and
conditions of the Amended and Restated Shareholder Rights Plan Agreement dated
as of April 27, 2005 (amending and restating the Amended and Restated
Shareholder Rights Plan Agreement dated May 2, 2002), as such may from time to
time be amended, restated, varied or replaced, (the "RIGHTS AGREEMENT") between
Nexen Inc., a corporation organized under the laws of Canada (the
"CORPORATION"), and CIBC Mellon Trust Company, a trust company incorporated
under the laws of Canada, as Rights Agent (the "RIGHTS AGENT"), which term shall
include any successor Rights Agent under the Rights Agreement, to purchase from
the Corporation at any time after the Separation Time (as such term is defined
in the Rights Agreement) and prior to the Expiration Time (as such term is
defined in the Rights Agreement), one fully paid common share of the Corporation
(a "COMMON SHARE") at the Exercise Price referred to below, upon presentation
and surrender of this Rights Certificate together with the Form of Election to
Exercise duly executed to the Rights Agent at its principal office in the City
of Calgary or in such other cities as may be designated by the Corporation from
time to time. Until adjustment thereof in certain events as provided in the
Rights Agreement, the Exercise Price shall be: (i) until the Separation Time, an
amount equal to three times the Market Price (as such term is defined in the
Rights Agreement), from time to time, per Common Share; and (ii) from and after
the Separation Time, an amount equal to three times the Market Price, as at the
Separation Time, per Common Share.
In certain circumstances described in the Rights Agreement, the number
of Common Shares which each Right entitles the registered holder thereof to
purchase shall be adjusted as provided in the Rights Agreement.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Rights Agent, the Corporation and the holders of the Rights Certificates. Copies
of the Rights Agreement are on file at the registered office of the Corporation
and are available upon written request.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at any of the offices of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate or Rights Certificates
of like tenor and date evidencing an aggregate number of Rights equal to the
aggregate number of Rights evidenced by the Rights Certificate or Rights
Certificates surrendered. If this Rights Certificate shall be exercised in part,
the registered holder shall be entitled to receive, upon surrender hereof,
another Rights Certificate or Rights Certificates for the number of whole Rights
not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate may be redeemed by the Corporation at a redemption price of
$0.000001 per Right, subject to adjustment in certain events, under certain
circumstances at its option.
No fractional Common Shares will be issued upon the exercise of any
Rights evidenced hereby, but in lieu thereof a cash payment will be made, as
provided in the Rights Agreement.
-2-
No holder of this Rights Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of Common
Shares or of any other securities which may at any time be issuable upon the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the Rights of a
shareholder of the Corporation or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as provided in the
Rights Agreement), or to receive dividends or subscription rights, or otherwise,
until the Rights evidenced by this Rights Certificate shall have been exercised
as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Corporation and its corporate seal.
Date:
______________________________
NEXEN INC.
By:
______________________________
Authorized Officer
Countersigned:
CIBC MELLON TRUST COMPANY
By:
______________________________
Authorized Signature
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
Rights represented by this Rights Certificate.)
FOR VALUE RECEIVED ____________________________________________________
hereby sells, assigns
and transfers to _______________________________________________________________
(Please print name and address of transferee)
the Rights represented by this Rights Certificate, together with all right,
title and interest therein, and hereby irrevocably constitutes and appoints
____________________________________as attorney, to transfer the within Rights
on the books of the Corporation, with full power of substitution.
Dated:
Signature Guaranteed: ________________________________________
Signature
(Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular, without
alteration or enlargement or any change
whatsoever.)
Signature must be guaranteed by a Canadian Schedule 1 chartered bank, a major
Canadian trust company, a member of a recognized stock exchange or a member of a
recognized Medallion Program (STAMP, MSP or SEMP).
________________________________________________________________________________
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
Common Shares, that the Rights evidenced by this Rights Certificate are not,
and, to the knowledge of the undersigned, have never been, Beneficially Owned by
an Acquiring Person or an Affiliate or Associate thereof or by any Person acting
jointly or in concert with any of the foregoing (all capitalized terms are used
as defined in the Rights Agreement).
Dated: ________________________ ________________________________________
Signature
(Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular, without
alteration or enlargement or any change
whatsoever.)
NOTICE
In the event the certification set forth above in the Form of Election
to Exercise is not completed upon exercise of the Right(s) evidenced hereby or
in the event that the certification set forth above in the Form of Assignment is
not completed upon the assignment of the Right(s) evidenced hereby, the
Corporation will deem the Beneficial Owner of the Right(s) evidenced by this
Rights Certificate to be an Acquiring Person or an Affiliate or Associate
thereof or a Person acting jointly or in concert with any of them (each as
defined in the Rights Agreement) and, in the case of an assignment, will affix a
legend to that effect on any Rights Certificates issued in exchange for this
Rights Certificate.
(To be attached to each Rights Certificate)
FORM OF ELECTION TO EXERCISE
TO: NEXEN INC.
The undersigned hereby irrevocably elects to exercise ______________________
whole Rights represented by the attached Rights Certificate to purchase the
Common Shares (or other securities or property) issuable upon the exercise of
such Rights and requests that certificates for such shares (or other, securities
or title to such property) be issued in the name of:
___________________________________________
(Name)
___________________________________________
(Street)
___________________________________________
(City and State or Province)
___________________________________________
(Country, Postal Code or Zip Code)
___________________________________________
SOCIAL INSURANCE, SOCIAL SECURITY OR
OTHER TAXPAYER IDENTIFICATION NUMBER
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
______________________________________
(Name)
______________________________________
(Street)
______________________________________
(City and State or Province)
______________________________________
(Country, Postal Code or Zip Code)
______________________________________
SOCIAL INSURANCE, SOCIAL SECURITY OR
OTHER TAXPAYER IDENTIFICATION NUMBER
Dated:
Signature Guaranteed: ________________________________________
Signature
(Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular, without
alteration or enlargement or any change
whatsoever.)
Signature must be guaranteed by a Canadian Schedule 1 chartered bank, a major
Canadian trust company, a member of a recognized stock exchange or a member of a
recognized Medallion Program (STAMP, MSP or SEMP).
________________________________________________________________________________
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
Common Shares, that the Rights evidenced by this Rights Certificate are not,
and, to the knowledge of the undersigned, have never been, Beneficially Owned by
an Acquiring Person or an Affiliate or Associate thereof or by any Person acting
jointly or in concert with any of the foregoing (all capitalized terms are used
as defined in the Rights Agreement).
Dated: ________________________ ________________________________________
Signature
NOTICE
In the event the certification set forth above in the Form of Election to
Exercise is not completed upon exercise of the Right(s) evidenced hereby or in
the event that the certification set forth above in the Form of Assignment is
not completed upon the assignment of the Right(s) evidenced hereby, the
Corporation will deem the Beneficial Owner of the Right(s) evidenced by this
Rights Certificate to be an Acquiring Person, an Affiliate or Associate thereof
or a Person acting jointly or in concert with any of them (each as defined in
the Rights Agreement) and, in the case of an assignment, will affix a legend to
that effect on any Rights Certificates issued in exchange for this Rights
Certificate.
