AMENDED AND RESTATED SHAREHOLDER RIGHTS PLAN AGREEMENT Dated as of June 25, 2007 Between OLYMPUS PACIFIC MINERALS INC. and COMPUTERSHARE INVESTOR SERVICES INC. as Rights Agent to be Approved by Shareholders by December 25, 2007
Exhibit
99.1
AMENDED
AND RESTATED
Dated
as of June 25, 2007
Between
and
COMPUTERSHARE
INVESTOR SERVICES INC.
as
Rights Agent
to
be Approved by Shareholders by December 25, 2007
-i-
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5.11
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Benefits
of this
Agreement
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5.12
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Governing
Law
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5.13
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Language
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5.14
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Severability
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5.15
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Effective
Date
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5.16
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Determinations
and Actions by the
Board of Directors
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5.17
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Rights
of Board of Directors and
the Corporation
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5.18
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Regulatory
Approvals
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5.19
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Declaration
as to Non-Canadian
Holders
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5.20
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Time
of the
Essence
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5.21
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Successors
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5.22
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Execution
in
Counterparts
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AMENDED
AND RESTATED SHAREHOLDER RIGHTS PLAN AGREEMENT
THIS
AMENDED AND RESTATED SHAREHOLDER RIGHTS PLAN AGREEMENT is dated as of the 25th
day of June, 2007
BETWEEN:
OLYMPUS
PACIFIC MINERALS INC., a company continued under the Canada
Business Corporations Act
(the
“Corporation”)
AND:
COMPUTERSHARE
INVESTOR SERVICES INC., a company existing under the laws of
Canada
(the
“Rights Agent”)
WHEREAS
the Board of Directors of the Corporation, in the exercise of their fiduciary
duties to the Corporation, has determined that it is advisable and in the best
interests of the Corporation to adopt a shareholder rights plan (the “Rights
Plan”) to (a) ensure, to the extent possible, that all holders of the
Common Shares (as hereinafter defined) of the Corporation and the Board of
Directors have adequate time to consider and evaluate any unsolicited bid for
the Common Shares, (b) provide the Board of Directors with adequate time to
identify, develop and negotiate value-enhancing alternatives, if considered
appropriate, to any such unsolicited bid, (c) encourage the fair treatment
of the Corporation’s securityholders in connection with any Takeover Bid (as
hereinafter defined) made for the Common Shares, and (d) generally to
assist the Board of Directors in enhancing shareholder value;
AND
WHEREAS the Board of Directors has determined that the Rights Plan should take
effect immediately, but that its ongoing effectiveness should be subject to
the
approval of the “Independent Shareholders” (as hereinafter
defined);
AND
WHEREAS in order to implement the Rights Plan, the Board of Directors has
authorized the issuance of:
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(a)
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one
right (a “Right”) effective at the Record Time (as
hereinafter defined) in respect of each Common Share outstanding
at the
Record Time; and
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(b)
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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);
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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 appoint the Rights Agent to act on behalf
of
the Corporation and the holders of Rights, and the Rights Agent has agreed
to
act on behalf of the Corporation and the holders of Rights 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;
NOW
THEREFORE, in consideration of the foregoing premises and the respective
covenants and agreements set forth herein, the parties hereby agree as
follows:
ARTICLE 1
INTERPRETATION
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1.1
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Certain
Definitions
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For
purposes of this Agreement, the following terms have the meanings
indicated:
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(a)
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“Acquiring
Person” shall mean any Person who is the Beneficial Owner of 20%
or more of the outstanding Voting Shares; provided, however, that
the term
“Acquiring Person” shall not
include:
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(i)
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the
Corporation or any Subsidiary of the
Corporation;
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(ii)
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any
Person who becomes the Beneficial Owner of 20% or more of the outstanding
Voting Shares as a result of one or any combination
of:
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(A)
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a
Corporate Acquisition which, by reducing the number of Voting Shares
outstanding, increases the percentage of Voting Shares Beneficially
Owned
by such Person to or above 20% or more of the Voting Shares then
outstanding;
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(B)
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an
Exempt Acquisition;
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(C)
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a
Permitted Bid Acquisition;
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(D)
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a
Pro Rata Acquisition; or
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(E)
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a
Convertible Security Acquisition;
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provided,
however, that if a Person becomes the Beneficial Owner of 20%
or more of
the Voting Shares then outstanding by reason of one or any combination
of
a Corporate Acquisition, an Exempt Acquisition, a Permitted Bid
Acquisition, a Pro Rata Acquisition or a Convertible Security
Acquisition,
and thereafter becomes the Beneficial Owner of any additional
Voting
Shares (other than pursuant to any one or a combination of a
Corporate
Acquisition, an Exempt Acquisition, a Permitted Bid Acquisition,
a Pro
Rata Acquisition or a Convertible Security Acquisition), then
as of the
date such Person becomes the Beneficial Owner of such additional
Voting
Shares, such Person shall become an Acquiring
Person;
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(iii)
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a
Person who is the Beneficial Owner of 20% or more of the outstanding
Voting Shares determined as at the Record Time (a “Grandfathered
Person”); provided, however, that this exemption shall not be,
and shall cease to be, applicable to a Grandfathered Person in the
event
that such Grandfathered Person shall, after the Record Time, become
the
Beneficial Owner of any Voting Shares not Beneficially Owned by such
Person as at the Record Time (other than through any one or any
combination of a Corporate Acquisition, an Exempt Acquisition, a
Permitted
Bid Acquisition, a Pro Rata Acquisition or a Convertible Security
Acquisition);
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(iv)
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a
Subsequent Grandfathered Person, provided, however, that this exemption
shall not be, and shall cease to be, applicable to a Subsequent
Grandfathered Person in the event that such Subsequent Grandfathered
Person shall, after the completion of the transaction pursuant to
which
such Person became a Subsequent Grandfathered Person, become the
Beneficial Owner of any additional Voting Shares (other than through
any
one or any combination of a Corporate Acquisition, an Exempt Acquisition,
a Permitted Bid Acquisition, a Pro Rata Acquisition or a Convertible
Security Acquisition);
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(v)
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for
a period of ten days after the Disqualification Date (as hereinafter
defined), any Person who becomes the Beneficial Owner of 20% or more
of
the outstanding Voting Shares as a result of such Person becoming
disqualified from relying on clause (iv) of the definition of
Beneficial Owner solely because such Person makes or announces an
intention to make a Take-over Bid in respect of Voting Shares and/or
Convertible Securities either alone or by acting jointly or in concert
with any other Person. For the purposes of this definition,
“Disqualification Date” means the first date of a public
announcement of facts indicating 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
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(vi)
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an
underwriter or member of a banking or selling group that acquires
Voting
Shares from the Corporation in connection with a distribution of
securities of the Corporation pursuant to a prospectus or by way
of
private placement;
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(b)
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“Affiliate”
when used to indicate a relationship with a 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;
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(c)
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“Agreement”
means this agreement as amended, modified or supplemented from time
to
time; “hereof”, “herein”,
“hereto” and similar expressions mean and refer to this
shareholder rights plan agreement as a whole and not to any particular
part of this Agreement;
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(d)
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“Associate”,
when used to indicate a relationship with a specified Person, shall
mean
(a) any corporation of which such Person beneficially owns, directly
or indirectly, voting securities carrying more than 10% of the voting
rights attached to all voting securities of such corporation for
the time
being outstanding, (b) any partner of that Person, (c) any trust
or estate in which such Person has a substantial beneficial interest
or as
to which such Person serves as trustee or in a similar capacity,
(d) a spouse of such specified Person, (e) any Person of either
sex with whom such specified Person is living in conjugal relationship
outside marriage or (f) any relative of such specified Person or of
Person mentioned in clauses (d) or (e) of this definition if that
relative
has the same residence as the specified
Person;
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(e)
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a
Person shall be deemed the “Beneficial Owner” of, and to
have “Beneficial Ownership” of, and to
“Beneficially
Own”:
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(i)
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any
securities as to which such Person or any of such Person’s Affiliates or
Associates is the owner at law or in equity including, for greater
certainty, pursuant to section 90 of the Securities Act
(Ontario);
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(ii)
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any
securities as to which such Person or any of such Person’s Affiliates or
Associates has the right to acquire or become the owner at law or
in
equity, where such right is exercisable immediately or after the
passage
of time and whether or not on condition or the happening of any
contingency or the making of any payment, upon the exercise of any
conversion right, exchange right or purchase right attaching to
Convertible Securities, or pursuant to any agreement, arrangement,
pledge
or understanding, whether or not in writing (other than (x) customary
agreements with and between underwriters and/or banking group members
and/or selling group members with respect to a distribution of securities
pursuant to a prospectus or by way of private placement and
(y) pledges of securities in the ordinary course of business of the
lender granted as security for bona fide indebtedness) or
otherwise;
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(iii)
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any
securities to which such Person or any of such Person’s Affiliates or
Associates has the right to vote, where such right is exercisable
immediately or after the passage of time and whether or not on condition
or the happening of any contingency or the making of any payment,
pursuant
to any agreement, arrangement, pledge or understanding, whether or
not in
writing (other than pursuant to pledges of securities in the ordinary
course of business of the lender granted as security for bona
fide indebtedness) or otherwise; provided, however, that this
paragraph (iii) shall not apply to a right to vote arising under any
agreement, arrangement or understanding among or between holders
of Voting
Shares where no Person, whether alone or together with any of such
Person’s Affiliates or Associates or any other Person with whom such
Person or any of such Person’s Affiliates or Associates is acting jointly
or in concert, is in a position to exercise de jure or de
facto control of the Corporation as a result of such agreement,
arrangement or understanding; and
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(iv)
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any
securities which are Beneficially Owned within the meaning of clauses
(i),
(ii) and (iii) of this definition by any other Person with whom such
Person is acting jointly or in concert with respect to the Corporation
or
any of its securities or assets;
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provided,
however, that a Person shall not be deemed the “Beneficial Owner” of, or
to have “Beneficial Ownership” of, or to “Beneficially Own”, any
security:
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(v)
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by
reason of such security having been deposited or tendered pursuant
to any
Take-over Bid made by such Person or any of such Person’s Affiliates or
Associates or any other Person referred to in clause (iv) of this
definition until the earlier of such deposited or tendered security
being
accepted unconditionally for payment or exchange or being taken up
or paid
for;
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(vi)
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where
such Person, any of such Person’s Affiliates or Associates or any other
Person referred to in clause (iv) of this definition holds such
security provided that:
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(A)
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the
ordinary business of any such Person (the “Investment
Manager”) includes the management of investment funds for others
(which others, for greater certainty, may include or be limited to
one or
more employee benefit plans or pension plans) and includes the acquisition
or holding of securities for a nondiscretionary account of a Client
(as
defined below) by a dealer or broker registered under applicable
securities laws to the extent required 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 (a
“Client”);
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(B)
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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 (each an “Estate
Account”) or in relation to other accounts (each an
“Other Account”) and holds such security in the ordinary
course of such duties for the estate of any such deceased or incompetent
Person or for such other accounts;
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(C)
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such
Person (the “Statutory Body”) is established by statute
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 or various public bodies and
the
Statutory Body holds such security in the ordinary course of and
for the
purposes of the management of such investment
funds;
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(D)
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such
person (the “Administrator”) is the administrator or
trustee of one or more pension funds or plans (a “Plan”)
registered under the laws of Canada or any Province thereof or the
corresponding laws of the jurisdiction by which such Plan is governed
and
the Administrator holds such security for the purposes of its activities
as such; or
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(E)
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such
Person is a Crown agent or agency;
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but
only if the Investment Manager, the Trust Company, the Statutory
Body, the
Administrator or the Crown agent or agency, as the case may
be,
(A) did not acquire and does not Beneficially Own or hold such
security for the purpose of or with the effect of changing
or influencing
the control of the issuer thereof, either alone or acting jointly
or in
concert with any other Person, or in connection with or as
a participant
in any transaction having that purpose or effect, (B) is not then
making a Takeover Bid in respect of securities of the Corporation
or has
not then announced an intention to make a Take-over Bid in
respect of
securities of the Corporation and (C) is not then acting jointly or
in concert with any other Person who is making a Take-over
Bid or who has
announced an intention to make a Take-over Bid, other than
an Offer to
Acquire Voting Shares or other securities of the Corporation
(1) pursuant to a distribution by the Corporation or (2) by
means of a Permitted Bid or a Competing Permitted Bid, or (3) by
means of ordinary
market transactions (including prearranged trades entered into
in the
ordinary course of the business of such Person) executed through
the
facilities of a stock exchange or organized over-the-counter
market;
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(vii)
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because
such Person is
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(A)
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a
Client of or has an account with the same Investment Manager as another
Person on whose account the Investment Manager holds such
security,
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(B)
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an
Estate Account or an Other Account of the same Trust Company as another
Person on whose account the Trust Company holds such security;
or
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(C)
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a
Plan with the same Administrator as another Plan on whose account
the
Administrator holds such security;
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(viii)
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where
such Person is
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(A)
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a
Client of an Investment Manager and such security is owned at law
or in
equity by the Investment Manager;
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(B)
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an
Estate Account or an Other Account of a Trust Company and such security
is
owned at law or in equity by the Trust Company;
or
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(C)
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a
Plan and such security is owned at law or in equity by the Administrator
of the Plan; or
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(ix)
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where
such Person is the registered holder of securities as a result of
carrying
on the business of or acting as a nominee of the securities
depository;
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(f)
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“Board
of Directors” shall mean the board of directors of the
Corporation, as constituted from time to
time;
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(g)
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“Business
Day” shall mean any day other than a Saturday, Sunday or a day
on
which banking institutions in Toronto are authorized or obligated
by law
to close;
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(h)
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“Canada
Business Corporations Act” shall mean the Canada Business
Corporations Act, R.S.C. 1985, c. C-44, as amended, and the
regulations made thereunder and any comparable or successor laws
or
regulations thereto;
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(i)
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“Canadian
Dollar Equivalent” of any amount which is expressed in United
States dollars shall mean, on any date, the Canadian dollar equivalent
of
such amount determined by multiplying such amount by the U.S.-Canadian
Exchange Rate in effect on such
date;
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(j)
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“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 Toronto (or, after the Separation Time, the office of the
Rights
Agent in Toronto) is closed to the
public;
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6
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(k)
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“Common
Shares” shall mean the common shares in the capital of the
Corporation and any other share of the Corporation into which such
shares
may be sub-divided, consolidated, re-classified or
changed;
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(l)
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“Competing
Permitted Bid” shall mean a Take-over Bid
that:
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(i)
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is
made after a Permitted Bid has been made and prior to the expiry
of that
Permitted Bid (in this definition, the “Prior
Bid”);
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(ii)
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satisfies
all the components of the definition of a Permitted Bid except the
requirements set out in clause (ii) of that definition;
and
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(iii)
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contains,
and the take-up and payment for securities tendered or deposited
is
subject to, an irrevocable and unqualified condition that no Voting
Shares
shall 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:
(i) 35 days (or such other minimum period of days as may be
prescribed by the Securities Act (Ontario)) after the
announcement of such Competing Permitted Bid; and (ii) the 60th date
after the date on which the earliest Permitted Bid which preceded
the
Competing Permitted Bid was made and then only if at that date more
than
50% of the then outstanding Voting Shares held by Independent Shareholders
have been deposited or tendered pursuant to such Take-over Bid and
not
withdrawn;
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(m)
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“controlled”: a
Person is considered to be “controlled” by another Person or two or more
Persons if:
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(i)
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in
the case of a Person other than a partnership or a limited partnership,
including, without limitation, a corporation or body
corporate:
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(A)
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securities
entitled to vote in the election of directors carrying more than
50% of
the votes for the election of directors of such Person are held,
directly
or indirectly, by or on behalf of the other Person or Persons;
and
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(B)
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the
votes carried by such securities are entitled, if exercised, to elect
a
majority of the board of directors of such
Person;
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(ii)
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in
the case of a partnership other than a limited partnership, more
than 50%
of the interests in such partnership are held by the other Person
or
Persons; and
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(iii)
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in
the case of a limited partnership, the other Person or each of the
other
Persons is a general partner of the limited
partnership,
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and
“controls”, “controlling” and
“under common control with” shall be interpreted
accordingly;
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(n)
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“Convertible
Securities” shall mean at any time any securities issued by the
Corporation (including rights, warrants and options but excluding
the
Rights) carrying any purchase, exercise, conversion or exchange rights,
pursuant to which the holder thereof may acquire Voting Shares or
other
securities convertible into or exercisable or exchangeable for Voting
Shares (in each case, whether such right is exercisable immediately
or
after a specified period and whether or not on conditions or the
happening
of any contingency);
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(o)
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“Convertible
Security Acquisition” shall mean the acquisition of Voting Shares
upon the exercise of Convertible Securities acquired by a Person
pursuant
to a Permitted Bid Acquisition, an Exempt Acquisition or a Pro Rata
Acquisition;
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(p)
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“Co-Rights
Agents” shall have the meaning ascribed thereto in
subsection 4.1(a);
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(q)
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“Corporate
Acquisition” shall mean an acquisition or a redemption of Voting
Shares by the Corporation which by reducing the number of Voting
Shares
outstanding increases the proportionate number of Voting Shares
Beneficially Owned by any Person;
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(r)
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“Election
to Exercise” shall have the meaning attributed thereto in
subsection 2.2(d)(ii);
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(s)
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“Exempt
Acquisition” shall mean an acquisition of Voting Shares or
Convertible Securities:
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(i)
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in
respect of which the Board of Directors has waived the application
of
section 3.1 pursuant to the provisions of section 5.2 or which
was made on or prior to the Record Time;
or
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(ii)
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pursuant
to a distribution of Voting Shares or Convertible Securities (and
the
conversion or exchange of such Convertible Securities) made by the
Corporation pursuant to a prospectus, private placement or other
distribution made by the Corporation exempt from the prospectus
requirements of applicable law;
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(t)
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“Exercise
Price” shall mean, as of any date, the price at which a Holder
may purchase the securities issuable upon exercise of one whole
Right. Until adjustment thereof in accordance with the terms
hereof, the Exercise Price shall be
$10.00;
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(u)
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“Expiration
Time” shall mean the earlier
of:
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(i)
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the
Termination Time;
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(ii)
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the
termination of the third annual meeting of the shareholders of the
Corporation occurring after the date of ratification of this Agreement
pursuant to section 5.15 hereof if the continuation of the Rights
Plan is not submitted to holders of Voting Shares for their approval
at
such meeting or, if so submitted, is not approved by a majority of
the
votes cast by Independent Shareholders present or represented by
proxy;
and
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(iii)
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the
close of the third annual meeting of shareholders of the Corporation
occurring after the date of approval of the continuation of the Rights
Plan pursuant to paragraph (ii) above or this paragraph (iii) if the
continuation of the Rights Plan is not submitted to holders of Voting
Shares for their approval at such meeting or, if so submitted, is
not
approved by a majority of the votes cast by Independent Shareholders
present or represented by proxy;
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(v)
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“Flip-in
Event” shall mean a transaction in or pursuant to which any
Person becomes an Acquiring Person;
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(w)
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“Holder”
of any Rights, unless the context otherwise requires, shall mean
the
registered holder of such Rights (or, prior to the Separation Time,
of the
associated Common Shares);
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(x)
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“Independent
Shareholders” shall mean the holders of Voting Shares other
than:
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(i)
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any
Acquiring Person;
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(ii)
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any
Grandfathered Person;
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(iii)
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any
Offeror;
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(iv)
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any
Associate or Affiliate of such Acquiring Person, such Grandfathered
Person
or such Offeror;
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(v)
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any
Person acting jointly or in concert with such Acquiring Person, such
Grandfathered Person or such Offeror;
and
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(vi)
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any
employee benefit plan, stock purchase plan, deferred profit sharing
plan
and any other 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 Voting Shares
are to
be voted or direct whether the Voting Shares are to be tendered to
a
Takeover Bid;
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(y)
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“Market
Price” per security of any securities on any date of
determination shall mean the average of the daily closing prices
per
security of such securities (determined as described below) on each
of the
20 consecutive Trading Days ending on 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 closing prices used to determine the Market Price
on any
such Trading Day not to be fully comparable with the closing price
on such
date of determination (or, if the date of determination is not a
Trading
Day, on the immediately preceding Trading Day), each such closing
price so
used shall be appropriately adjusted in a manner analogous to the
applicable adjustment provided for in section 2.3 hereof in order to
make it fully comparable with the closing price on such date of
determination (or, if the date of determination is not Trading Day,
on the
immediately preceding Trading Day). The closing price per
security of any securities on any date shall
be:
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(i)
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the
closing board lot sale price or, in case no such sale takes place
on such
date, the average of the closing bid and asked prices for each such
security on such date, as reported by the principal stock exchange
in
Canada on which such securities are listed or admitted to
trading;
|
|
|
(ii)
|
if
for any reason none of such prices described in (i) above is available
for
such day or the securities are not listed or admitted to trading
on a
Canadian stock exchange, the last sale price or, if such price is
not
available, the average of the closing bid and asked prices, for each
such
security on such date, as reported by such other securities exchange
on
which such securities are listed or admitted to
trading;
|
|
|
(iii)
|
if
for any reason none of such prices described in (ii) above is available
for such day or the securities are not listed or admitted to trading
on a
Canadian stock exchange or other securities exchange, the last sale
price,
or if no sale takes place, the average of the high bid and low asked
prices for each such security on such date in the over-the-counter
market,
as quoted by any reporting system then in use (as determined by the
Board
of Directors); or
|
|
|
(iv)
|
if
for any such date none of such prices described in (iii) above is
available or the securities are not listed or admitted to trading
on a
Canadian stock exchange or any other securities exchange and are
not
quoted by any such reporting system, the average of the closing bid
and
asked prices for such date as furnished by a professional market
maker
making a market in the securities selected in good faith by the Board
of
Directors,
|
|
|
|
provided,
however, that if on any such date none of such prices is available,
the
closing price per security of such securities on such date shall
mean the
fair value per security of such securities on such date as determined
in
good faith by a nationally or internationally recognized firm of
investment dealers or investment bankers selected by the Board
of
Directors. 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
on such
date at the Canadian Dollar Equivalent
thereof;
|
|
|
(z)
|
“1933
Securities Act” shall mean the United States Securities Act
of 1933, as amended, and the rules and regulations thereunder, and
any comparable or successor laws or regulations
thereto;
|
|
|
(aa)
|
“1934
Exchange Act” shall mean the United States Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder, and any comparable or successor laws or regulations
thereto;
|
|
|
(bb)
|
“Nominee”
shall have the meaning ascribed thereto in
subsection 2.2(c);
|
|
|
(cc)
|
“Offer
to Acquire” shall include:
|
|
|
(i)
|
an
offer to purchase, a public announcement of an intention to make
an offer
to purchase, or a solicitation of an offer to sell, Voting Shares,
and
|
|
|
(ii)
|
an
acceptance of an offer to sell Voting 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;
|
|
|
(dd)
|
“Offeror”
shall mean a Person who has announced an intention to make or who
has made
a Take-over Bid;
|
|
|
(ee)
|
“Offeror’s
Securities” shall mean Voting Shares Beneficially Owned by an
Offeror, on the date of an Offer to
Acquire;
|
|
|
(ff)
|
“Permitted
Bid” shall mean a Take-over Bid made by an Offeror that is made
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 Voting Shares as registered
on the
books of the Corporation, other than the Offeror, for all Voting
Shares
held by them;
|
|
|
(ii)
|
the
Take-over Bid contains, and the take-up and payment for securities
tendered or deposited thereunder is subject to, an irrevocable and
unqualified condition that no Voting Shares shall be taken up or
paid for
pursuant to the Take-over Bid prior to the close of business on the
date
which is not less than 60 days after the date of the Take-over Bid;
and
only if at such date more than 50% of the Voting Shares held by
Independent Shareholders shall have been deposited or tendered pursuant
to
the Take-over Bid and not
withdrawn;
|
|
|
(iii)
|
the
Take-over Bid contains an irrevocable and unqualified provision that,
unless the Take-over Bid is withdrawn, Voting Shares may be deposited
pursuant to such Take-over Bid at any time during the period of time
between the date of the Take-over Bid and the date on which the Voting
Shares subject to the Take-over Bid may be taken up and paid for
and that
any Voting Shares deposited pursuant to the Take-over Bid may be
withdrawn
until taken up and paid for; and
|
|
|
(iv)
|
the
Take-over Bid contains an irrevocable and unqualified provision that
if,
on the date on which Voting Shares may be taken up and paid for,
more than
50% of the Voting Shares held by Independent Shareholders shall have
been
deposited or tendered pursuant to the Take-over Bid and not withdrawn,
the
Offeror will make a public announcement of that fact and the Take-over
Bid
will remain open for deposits and tenders of Voting Shares for not
less
than 10 Business Days from the date of such public
announcement;
|
|
|
(gg)
|
“Permitted
Bid Acquisitions” shall mean acquisitions of Voting Shares made
pursuant to a Permitted Bid or a Competing Permitted
Bid;
|
|
|
(hh)
|
“Person”
shall include any individual, firm, partnership, association, trust,
trustee, executor, administrator, legal personal representative,
government, governmental entity or authority, body corporate, corporation,
incorporated or unincorporated organization, syndicate or other
entity;
|
|
|
(ii)
|
“Pro
Rata Acquisition” shall mean an acquisition by a Person of Voting
Shares or Convertible Securities:
|
|
|
(i)
|
as
a result of a stock dividend, a stock split or other event in respect
of
securities of the Corporation of one or more particular classes or
series
pursuant to which a Person becomes the Beneficial Owner of Voting
Shares
or Convertible Securities on the same pro rata basis as all other
holders
of securities of the particular class, classes or
series;
|
|
|
(ii)
|
pursuant
to any regular dividend reinvestment plan or other plan made available
by
the Corporation to holders of its securities where such plan permits
the
holder to direct that some or all of: (a) dividends paid in respect
of shares of any class of
the
Corporation, (b) proceeds of redemption of shares of the Corporation,
(c) interest paid on evidences of indebtedness of the Corporation,
or
(d) optional cash payments be applied to the purchase from the
Corporation of further securities of the
Corporation;
|
|
|
(iii)
|
pursuant
to the receipt and/or exercise by the Person of rights (other than
the
Rights) issued by the Corporation to all of the holders of a series
or
class of Voting Shares on a pro-rata basis to subscribe for or purchase
Voting Shares or Convertible Securities, provided that such rights
are
acquired directly from the Corporation and not from any other Person;
or
|
|
|
(iv)
|
pursuant
to a plan of arrangement, amalgamation or other statutory procedure
requiring shareholder approval;
|
|
|
(jj)
|
“Record
Time” shall mean 12:01 a.m. (Toronto time) on the date of
this Agreement;
|
|
|
(kk)
|
“Redemption
Price” shall have the meaning attributed thereto in
subsection 5.1(a);
|
|
|
(ll)
|
“regular
periodic cash dividend” shall mean cash dividends paid in any
fiscal year of the Corporation to the extent that such cash dividends
do
not exceed, in the aggregate, the greatest
of:
|
|
|
(i)
|
200%
of the aggregate amount of cash dividends declared payable by the
Corporation on its Common Shares in its immediately preceding fiscal
year;
|
|
|
(ii)
|
300%
of the arithmetic mean of the aggregate amounts of the annual cash
dividends declared payable by the Corporation on its Common Shares
in its
three immediately preceding fiscal years;
and
|
|
|
(iii)
|
100%
of the aggregate consolidated net income of the Corporation, before
extraordinary items, for its immediately preceding fiscal
year;
|
|
(mm)
|
“Rights”
shall mean the herein described rights to purchase securities pursuant
to
the terms and subject to the conditions set forth
herein;
|
|
|
(nn)
|
“Rights
Certificate” shall have the meaning attributed thereto in
clause 2.2(c)(i);
|
|
|
(oo)
|
“Rights
Register” shall have the meaning ascribed thereto in
subsection 2.6(a);
|
|
|
(pp)
|
“Securities
Act (Ontario)” shall mean the Securities Act, R.S.O.
1990, c. S.5, 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;
|
|
|
(qq)
|
“Separation
Time” shall mean, subject to section 5.2, the close of
business on the tenth Trading Day after the earliest
of:
|
|
|
(i)
|
the
Stock Acquisition Date;
|
|
|
(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 Permitted Bid or a Competing Permitted
Bid);
and
|
|
|
(iii)
|
the
date upon which a Permitted Bid or Competing Permitted Bid ceases
to be
such; or such later date as may be determined by the Board of Directors
acting in good faith, provided that if the foregoing results in a
Separation Time being prior to the Record Time, the Separation Time
shall
be the Record Time, and provided further that if any Take-over Bid
referred to in clause [1.1(ii)] of this definition expires, is
cancelled, terminated or otherwise withdrawn prior to the Separation
Time,
such Take-over Bid shall be deemed, for the purposes of this definition,
never to have been made;
|
|
|
(rr)
|
“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 101 of the
Securities Act (Ontario) or section 13(d) under the 1934 Exchange
Act) by
the Corporation or a Person of facts indicating that any Person has
become
an Acquiring Person;
|
|
|
(ss)
|
“Subsequent
Grandfathered Person” shall mean a Person who, after the Record
Time, acquires all of the Voting Shares Beneficially Owned by a
Grandfathered Person, provided
that:
|
|
|
(i)
|
such
Person does not Beneficially Own any other Voting Shares at the time
of
such acquisition; and
|
|
|
(ii)
|
such
transaction is completed in compliance with applicable securities
laws;
|
|
|
(tt)
|
“Subsidiary”: a
body corporate is a Subsidiary of another body corporate
if:
|
|
|
(i)
|
it
is controlled by (e) that other, or (f) that other and one or
more bodies corporate, each of which is controlled by that other,
or
(g) two or more bodies corporate, each of which is controlled by that
other, or
|
|
|
(ii)
|
it
is a Subsidiary of a body corporate that is that other’s
Subsidiary;
|
|
|
(uu)
|
“Take-over
Bid” shall mean an Offer to Acquire Voting Shares or Convertible
Securities (or both) if, assuming that the Voting Shares or Convertible
Securities that are the subject of the Offer to Acquire are acquired
at
the date of such Offer to Acquire by the Person making such Offer
to
Acquire, the Voting Shares Beneficially Owned by the Person making
the
Offer to Acquire would constitute, in the aggregate, 20% or more
of the
outstanding Voting Shares;
|
|
|
(vv)
|
“Termination
Time” shall mean the time at which the right to exercise Rights
shall terminate pursuant to subsection 5.1(d), subsection 3.2(b)
or section 5.15 hereof;
|
|
|
(ww)
|
“Trading
Day”, when used with respect to any securities, shall mean
a day
on which the principal Canadian stock exchange on which such securities
are listed or admitted to trading is open for the transaction of
business
or, if the securities are not listed or admitted to trading on
any
Canadian stock exchange, a Business
Day;
|
|
|
(xx)
|
“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 for the conversion of one United States dollar into Canadian
dollars, such rate; or
|
|
|
(ii)
|
in
any other case, the rate for such date for the conversion of one
United
States dollar into Canadian dollars calculated in such manner as
may be
determined by the Board of Directors from time to time acting in
good
faith; and
|
|
|
(yy)
|
“Voting
Shares” shall mean, collectively, the Common Shares of the
Corporation and any other shares of capital stock or voting interests
of
the Corporation entitled to vote generally in the election of all
directors.
|
|
1.2
|
Currency
|
All
sums
of money which are referred to in this Agreement are expressed in lawful money
of Canada, unless otherwise specified.
|
1.3
|
Headings
|
The
division of this Agreement into Articles, sections, subsections, clauses and
subclauses and the insertion of headings, subheadings and a table of contents
are for convenience of reference only and shall not affect the construction
or
interpretation of this Agreement.
|
1.4
|
Number
and Gender
|
Wherever
the context so requires, terms used herein importing the singular number only
shall include the plural and vice-versa and words importing only one gender
shall include all others.
|
1.5
|
Calculation
of Number and Percentage of Beneficial Ownership of Outstanding Voting
Shares
|
For
purposes of this Agreement, the percentage of Voting 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
Voting Shares Beneficially Owned by such Person; and
B=the
number of votes for the election of all directors generally attaching to
all
outstanding Voting Shares.
Where
any
Person is deemed to Beneficially Own unissued Voting Shares which may be
acquired pursuant to Convertible Securities, such Voting Shares shall be deemed
to be outstanding for the purpose of calculating the percentage of Voting Shares
Beneficially Owned by such Person in both the numerator and the denominator
above, but no other unissued Voting Shares which may be acquired pursuant to
any
other outstanding Convertible Securities shall, for the purposes of that
calculation, be deemed to be outstanding.
|
1.6
|
References
to 1933 Securities Act and 1934 Exchange
Act
|
For
the
purposes of this Agreement, the references herein to the 1933 Securities
Act or
the 1934 Exchange Act shall have no force and effect during such time as
the
Corporation is not subject to the provisions of such Acts.
|
1.7
|
Acting
Jointly or in Concert
|
For
purposes of this Agreement, it is a question of fact as to whether a Person
is
acting jointly or in concert with another Person and, without limiting the
generality of the foregoing, the following shall be deemed to be acting jointly
or in concert with a Person (the “First Person”):
|
|
(a)
|
every
Person who has any agreement, arrangement, commitment or understanding
(whether formal or informal and whether or not in writing) with the
First
Person, any Associate or Affiliate of the First Person or any other
Person
acting jointly or in concert with the First Person, for the purpose
of
acquiring or Offering to Acquire any Voting Shares of the Corporation,
including, without limitation, any one or more of, or any combination
of,
(2) a put, call, option, forward sale purchase or other right or
obligation relating to the sale or disposition of any Voting Shares
of the
Corporation to the First Person, any Associate or Affiliate of the
First
Person or any other Person acting jointly or in concert with the
First
Person (whether settled by delivery of securities, cash or a combination
thereof), (3) any security the value of which varies with the value
of Voting Shares of the Corporation, or (4) any agreement,
arrangement, commitment or understanding (whether formal or informal
and
whether or not in writing) pursuant to which all or substantially
all of
the economic or market risk underlying a Voting Share of the Corporation,
directly or indirectly, is transferred to, or assumed by, the First
Person, any Associate or Affiliate of the First Person or any other
Person
acting jointly or in concert with the First
Person;
|
|
|
(b)
|
every
Person who has any agreement, arrangement, commitment or understanding
(whether formal or informal and whether or not in writing) with the
First
Person, any Associate or Affiliate of the First Person or any other
Person
acting jointly or in concert with the First Person, for the purpose
or
with the intention of exercising jointly or in concert with the First
Person, any Associate or Affiliate of the First Person or any other
Person
acting jointly or in concert with the First Person, any voting rights
attaching to any securities of the Corporation;
and
|
|
|
(c)
|
every
Person who has any agreement, arrangement, commitment or understanding
(whether formal or informal and whether or not in writing) with the
First
Person, any Associate or Affiliate of the First Person or any other
Person
acting jointly or in concert with the First Person, for the purpose
of
selling, offering to sell, acquiring or offering to acquire any business,
asset, subsidiary or investee company of the Corporation through
any one
transaction or series of transactions where the aggregate value of
the
business, asset, subsidiary or investee company to be acquired exceeds
$1,000,000, such value to be determined in good faith by the Board
of
Directors, after consultation with a nationally or internationally
recognized investment dealer or investment banker with respect to
the
value of such business, asset, subsidiary or investee
company.
|
Notwithstanding
the foregoing and for greater certainty, the phrase “acting jointly or in
concert” shall not include conduct consisting solely of:
|
|
(1)
|
voting
or directing the vote of securities of the Corporation pursuant
to a
revocable proxy given in response to a particular proxy solicitation
(other than a proxy solicitation initiated by an Offeror or any
Associate
or Affiliate of an Offeror or any other Person acting jointly or
in
concert with an Offeror); or
|
|
|
(2)
|
voting
or directing the vote of securities of the Corporation in connection
with
or in order to participate in a particular proxy solicitation (other
than
a proxy solicitation initiated by an Offeror or any Associate or
Affiliate
of an Offeror or any other Person acting jointly or in concert with
an
Offeror).
|
|
1.8
|
Statutory
References
|
Unless
the context otherwise requires or except as expressly provided herein, any
reference herein to a specific part, section, subsection, clause or rule of
any
Act or regulation shall refer to the same as it exists on the date
hereof.
ARTICLE 2
THE
RIGHTS
|
2.1
|
Legend
on Common Share
Certificates
|
|
|
(a)
|
Certificates
issued for Common Shares, including without limitation Common Shares
issued upon the conversion of Convertible Securities, after the date
hereof but prior to the close of business on the earlier of the Separation
Time and the Expiration Time shall evidence one Right for each Common
Share represented thereby and shall have impressed on, printed on,
written
on or otherwise affixed to them a legend in substantially the following
form:
|
|
|
|
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 the Shareholder Rights Plan Agreement,
dated as of the 25th day of June 2007, as amended from time to time
(the
“Rights Agreement”), between Olympus Pacific Minerals Inc. (the
“Corporation”) and Computershare Investor Services Inc., as Rights Agent,
the terms of which are hereby incorporated herein by reference and
a copy
of which is on file and may be inspected during normal business hours
at
the principal executive offices of the Corporation. Under
certain circumstances, as set forth in the Rights Agreement, such
Rights
may be amended, redeemed, may expire, may become null and 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 is reasonably practicable
after
the receipt of a written request
therefor.
|
|
|
|
Certificates
representing Common Shares that are issued and outstanding as
at the date
hereof 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.
|
|
|
(b)
|
Registered
holders of Common Shares who have not received a share certificate
and are
entitled to do so on the earlier of the Separation Time and the Expiration
Time shall be entitled to Rights as if such certificates had been
issued
and such Rights shall for all
purposes
hereof be evidenced by the corresponding entries on the Corporation’s
securities registers for the Common
Shares.
|
|
2.2
|
Initial
Exercise Price, Exercise of Rights and Detachment of
Rights
|
|
|
(a)
|
Subject
to adjustment as provided herein, each Right will entitle the Holder
thereof, after the Separation Time and prior to the Expiration Time,
to
purchase, for the Exercise Price as at the Business Day immediately
preceding the date of exercise of the Right, one Common Share (which
Exercise Price and number of Common Shares are subject to adjustment
as
set forth herein). Notwithstanding any other provision of this
Agreement, any Rights Beneficially Owned by the Corporation or any
of its
Subsidiaries shall be void.
|
|
|
(b)
|
Until
the Separation Time, (5) the Rights shall not be exercisable and no
Right may be exercised, and (6) for administrative purposes, each
Right will be evidenced by the certificates for the associated Common
Share registered in the name of the holder thereof (which certificate
shall also be deemed to be a Rights Certificate) and will be transferable
only together with, and will be transferred by a transfer of, such
associated Common Share.
|
|
|
(c)
|
From
and after the Separation Time and prior to the Expiration Time, the
Rights
shall be exercisable and the registration and transfer of the Rights
shall
be separate from and independent of the Common Shares. Promptly
following the Separation Time, the Corporation will prepare and 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 or exchanged or exercised for Common Shares after the Separation
Time
and prior to the Expiration Time, promptly after such conversion,
exchange
or exercise to the holder so converting, exchanging or exercising
(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 (a “Nominee”)), at
such holder’s address as shown on the records of the Corporation (the
Corporation hereby agreeing to furnish copies of such records to
the
Rights Agent for this purpose),
|
|
|
(i)
|
a
certificate (a “Rights Certificate”) in substantially the form of
Exhibit A hereto 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, rule, regulation or judicial or administrative
order or with any rule or regulation made pursuant thereto or with
any
rule or regulation of any self-regulatory organization, stock exchange
or
quotation system on which the Rights may from time to time be listed
or
admitted to trading, or to conform to standard usage;
and
|
|
|
(ii)
|
a
disclosure statement prepared by or on behalf of the Corporation
describing the Rights; provided that a Nominee shall be sent the
materials
provided for in clauses (i) and (ii) in respect of all Common Shares
held
of record by it which are not Beneficially Owned by an Acquiring
Person. In order for the Corporation to determine whether any
Person is holding Common Shares which are Beneficially Owned by another
Person, the Corporation may require such first mentioned Person
to furnish it with such information and documentation as the Corporation
considers advisable.
|
|
|
(d)
|
Rights
may be exercised in whole or in part on any Business Day after the
Separation Time and prior to the Expiration Time by submitting to
the
Rights Agent, at its principal office in the city of Toronto or any
other
office of the Rights Agent or Co-Rights Agent in the cities designated
from time to time for that purpose by the Corporation with the approval
of
the Rights Agent:
|
|
|
(i)
|
the
Rights Certificate evidencing such
Rights;
|
|
|
(ii)
|
an
election to exercise such Rights (an “Election to
Exercise”) substantially in the form attached to the Rights
Certificate appropriately completed and duly executed by the Holder
or his
executors or administrators or other personal representatives or
his or
their legal attorney duly appointed by an instrument in writing in
form
and executed in a manner satisfactory to the Rights Agent;
and
|
|
|
(iii)
|
payment
by certified cheque, banker’s draft or money order payable to or 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, accompanied by an Election to Exercise
appropriately completed and duly exercised that does not indicate
that
such Right is null and void as provided by subsection 3.1(b) and by
payment as set forth in subsection 2.2(d)(iii), the Rights Agent
(unless
otherwise instructed in writing by the Corporation in the event that
the
Corporation is of the opinion that the Rights cannot by exercised
in
accordance with this Agreement) will thereupon
promptly:
|
|
|
(i)
|
requisition
from the transfer agent for the Common Shares, certificates representing
the number of Common Shares to be purchased (the Corporation hereby
irrevocably authorizing its transfer agent to comply with all such
requisitions);
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(ii)
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after
receipt of any certificates referred to in clause 2.2(e)(i), deliver
such certificates 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;
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(iii)
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when
appropriate, requisition from the Corporation the amount of cash
to be
paid in lieu of issuing fractional Common
Shares;
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(iv)
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when
appropriate, after receipt, deliver such cash (less any amounts required
to be withheld) to or to the order of the registered holder of the
Rights
Certificate; and
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(v)
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tender
to the Corporation all payments received on exercise of the
Rights.
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(f)
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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.
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(g)
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The
Corporation covenants and agrees that it
will:
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(i)
|
take
all such action as may be necessary and within its power to ensure
that
all Common 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;
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(ii)
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take
all such action as may be necessary and within its power to comply
with
any applicable requirements of the Canada Business Corporations Act,
the
Securities Act (Ontario), the 1933 Securities Act, the 1934 Exchange
Act
and the comparable securities legislation of each of the provinces
and
territories of Canada and any other applicable law, rule or regulation,
in
connection with the issuance and delivery of the Rights Certificates
and
the issuance of any Common Shares upon exercise of
Rights;
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(iii)
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on
or before the issuance thereof, use reasonable efforts to cause all
Common
Shares issued upon exercise of Rights to be listed or admitted to
trading
upon issuance on the principal exchange or exchanges on which the
Common
Shares are then listed or admitted to trading at that
time;
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(iv)
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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)
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pay
when due and payable any and all Canadian and United States federal,
provincial and state transfer taxes (not including any tax in the
nature
of income or capital gains taxes 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 Common Shares or registration of
the
Common Shares in the securities register of the Corporation, provided
that
the Corporation shall not be required to pay any transfer tax or
charge
which may be payable in respect of the transfer or delivery of Rights
Certificates or the issuance or delivery of certificates for Common
Shares
or registration of the Common Shares in the securities register of
the
Corporation in a name other than that of the Holder of the Rights
being
transferred or exercised.
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2.3
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Adjustments
to Exercise Price; Number of
Rights
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(a)
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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 and in
subsection 3.1(a).
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(b)
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In
the event the Corporation shall at any time after the Record Time
and
prior to the Expiration Time:
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(i)
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declare
or pay a dividend on Common Shares payable in Common Shares or Convertible
Securities other than pursuant to any regular dividend reinvestment
plan
of the Corporation providing for the acquisition of Common
Shares;
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(ii)
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subdivide
or change the then outstanding Common Shares into a greater number
of
Common Shares;
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(iii)
|
consolidate
or change the then outstanding Common Shares into a smaller number
of
Common Shares; or
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(iv)
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issue
any Common Shares, Convertible Securities or other capital stock
of the
Corporation in respect of, in lieu of or in exchange for existing
Common
Shares except as otherwise provided in this
section 2.3;
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the
Exercise Price in effect at the time of the record date for such dividend or
of
the effective date of such subdivision, combination or other change, and the
number of Common Shares or other securities, as the case may be, issuable on
such date, shall be proportionately adjusted so that the holder of any Right
shall be entitled to receive, upon payment of the applicable Exercise Price
then
in effect, the aggregate number of Common Shares or other securities, as the
case may be, which, if such Right had been exercised immediately prior to such
date and at a time when the share transfer books of the Corporation were open,
such holder would have been entitled to receive as a result of such dividend,
subdivision, combination or reclassification.
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(c)
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In
the event the Corporation shall at any time after the Record Time
and
prior to the Expiration Time fix a record date for the issuance of
rights,
options or warrants to all holders of Common Shares entitling them
(for a
period expiring within 45 calendar days after such record date) to
subscribe for or purchase Common Shares, shares having the same rights,
privileges, restrictions and conditions as Common Shares (“equivalent
common shares”), or securities convertible into or exchangeable for or
carrying a right to purchase Common Shares or equivalent common shares
at
a price per Common Share or per equivalent common share (or, if a
security
convertible into or exchangeable for or carrying a right to purchase
or
subscribe for Common Shares or equivalent 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 the
second
Trading Day immediately preceding such record date, the Exercise
Price to
be in effect after such record date shall be determined by multiplying
the
Exercise Price in effect immediately prior to such record date by
a
fraction:
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(i)
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the
numerator of which shall be the number of Common Shares outstanding
on
such record date, plus the number of Common Shares that the aggregate
offering price of the total number of Common Shares and/or equivalent
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 per Common Share;
and
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(ii)
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the
denominator of which shall be the number of Common Shares outstanding
on
such record date, plus the number of additional Common Shares and/or
equivalent 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).
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In
case such subscription price may be paid by delivery of consideration,
part or all of which may be 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, and in the event that such
rights,
options or warrants are not so issued, or if issued, are not
exercised
prior to the expiration thereof, the Exercise Price shall be
readjusted to
the Exercise Price which would have been in effect if such record
date had
not been fixed, or to the Exercise Price which would be in effect
based
upon the number of Common Shares, equivalent common shares or
securities
convertible into or exchangeable or exercisable for Common Shares
actually
issued upon the exercise of such rights, options or warrants,
as the case
may be.
For
the purposes of this Agreement, the granting of the right to
purchase
Common Shares (whether from treasury or otherwise) pursuant to
a dividend
reinvestment plan or any employee benefit, stock option or similar
plans
shall be deemed not to constitute an issue of rights, options
or warrants
by the Corporation; provided, however, that, in all such cases,
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.
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(d)
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In
the event the Corporation shall at any time after the Record Time
and
prior to the Expiration Time fix a record date for the making of
a
distribution to all holders of Common Shares (including any such
distribution made in connection with a merger in which the Corporation
is
the continuing corporation or amalgamation) of evidences of indebtedness
or assets, including cash (other than a regular periodic cash dividend
or
a dividend paid in Common Shares, but including any dividend payable
in
securities other than Common Shares), subscription rights, options
or
warrants (excluding those referred to in subsection 2.3(c)) hereof at
a price per Common Share that is less than 90% of the Market Price
per
Common Share on the second Trading Day immediately preceding such
record
date, the Exercise Price in respect of the Rights to be in effect
after
such record date shall be determined by multiplying the Exercise
Price in
respect of the Rights in effect immediately prior to such record
date by a
fraction:
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(i)
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the
numerator of which shall be the Market Price per Common Share on
such
record date, less the fair market value (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), on a per share basis, of the portion
of
the evidences of indebtedness, cash, assets, subscription rights,
options
or warrants so to be distributed;
and
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(ii)
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the
denominator of which shall be such Market Price per Common
Share.
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Such
adjustments shall be made successively whenever such a record date
is
fixed, and in the event that such a distribution is not so made,
the
Exercise Price shall be readjusted to be
the Exercise Price which would have been in effect if such record
date had
not been fixed.
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(e)
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Notwithstanding
anything herein to the contrary, no adjustment in the Exercise Price
shall
be required unless such adjustment would require an increase or decrease
of at least 1% in the Exercise Price; provided, however, that any
adjustments which by reason of this subsection 2.3(e) are not
required to be made shall be carried forward and taken into account
in any
subsequent adjustment. All calculations under section 2.3
shall be made to the nearest cent or to the nearest ten-thousandth
of a
Common Share or Right. Notwithstanding the first sentence of
this subsection 2.3(e), any adjustment required by this
section 2.3 shall be made no later than the Expiration
Time.
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(f)
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In
the event the Corporation shall at any time after the Record Time
and
prior to the Expiration Time issue any shares of capital stock (other
than
Common Shares), or rights, options 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 2.3(b)(i) or (iv), if the Board of Directors acting in good
faith determines that the adjustments contemplated by
subsection 2.3(b) in connection with such transaction will not
appropriately protect the interests of the Holders of Rights, the
Board of
Directors acting in good faith may determine what other adjustments
to the
Exercise Price, number of Rights and/or securities purchasable upon
exercise of Rights would be appropriate and, notwithstanding
subsection 2.3, such adjustments, rather than the adjustments
contemplated by subsection 2.3, shall be made. The
Corporation and the Rights Agent shall have authority with the prior
approval of the holders of the Common Shares or the Holders of Rights
to
amend this Agreement in accordance with section 5.4 hereof, as
appropriate to provide for such
adjustments.
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(g)
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Unless
the Corporation shall have exercised its election as provided in
subsection 2.3(h), upon each adjustment of an Exercise Price as a
result of the calculations made in subsections 2.3(c) and (f), each
Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Exercise
Price,
that number of Common Shares, as the case may be (calculated to the
nearest one ten-thousandth), obtained
by:
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(i)
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multiplying:
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(A)
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the
number of such Common Shares which would have been issuable upon
the
exercise of a Right immediately prior to this adjustment;
by
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(B)
|
the
relevant Exercise Price in effect immediately prior to such adjustment
of
the relevant Exercise Price; and
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(ii)
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dividing
the product so obtained by the relevant Exercise Price in effect
immediately after such adjustment of the relevant Exercise
Price.
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(h)
|
The
Corporation may elect on or after the date of any adjustment of an
Exercise Price to adjust the number of Rights, in lieu of any adjustment
in the number of Common Shares purchasable upon the exercise of a
Right. Each of the Rights outstanding after the adjustment in
the number of Rights shall be exercisable for the number of Common
Shares
for which such a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment
of the number of Rights shall
become
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|
that
number of Rights (calculated to the nearest one ten-thousandth) obtained
by dividing the relevant Exercise Price in effect immediately prior
to
adjustment of the relevant Exercise Price by the relevant Exercise
Price
in effect immediately after adjustment of the relevant Exercise
Price. The Corporation shall make a public announcement of its
election to adjust the number of Rights, indicating the record date
for
the adjustment, and, if known at the time, the amount of the adjustment
to
be made. This record date may be the date on which the relevant
Exercise Price is adjusted or any day thereafter, but, if the Rights
Certificates have been issued, shall be at least 10 days later than
the
date of the public announcement. If Rights Certificates have
been issued, upon each adjustment of the number of Rights pursuant
to this
subsection 2.3(h), the Corporation shall, as promptly as is
practicable, cause to be distributed to holders of record of Rights
Certificates on such record date, Rights Certificates evidencing,
subject
to section 5.6, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the
Corporation, shall cause to be distributed to such holders of record
in
substitution and replacement for the Rights Certificates held by
such
holders prior to the date of adjustment, and upon surrender thereof,
if
required by the Corporation, new Rights Certificates evidencing all
the
Rights to which such holders shall be entitled after such
adjustment. Rights Certificates to be so distributed shall be
issued, executed and countersigned in the manner provided for herein
and
may bear, at the option of the Corporation, the relevant adjusted
Exercise
Price and shall be registered in the names of holders of record of
Rights
Certificates on the record date specified in the public
announcement.
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(i)
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Each
Right originally issued by the Corporation subsequent to any adjustment
made to the Exercise Price hereunder shall evidence the right to
purchase,
at the adjusted Exercise Price, the number of Common Shares purchasable
from time to time hereunder upon exercise of a Right immediately
prior to
such issue, all subject to further adjustment as provided
herein.
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(j)
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If
as a result of an adjustment made pursuant to this section 2.3 or
section 3.2, the holder of any Right thereafter exercised shall
become entitled to receive any shares other than Common Shares, thereafter
the number of such other shares so receivable upon exercise of any
Right
and the applicable Exercise Price thereof shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as
is
practicable to the provisions with respect to the Common Shares contained
in this section 2.3, and the provisions of this Agreement with
respect to the Common Shares shall apply on like terms to any such
other
shares.
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(k)
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Irrespective
of any adjustment or change in the Exercise Price or the number of
Common
Shares issuable upon the exercise of the Rights, the Rights Certificate
theretofore and thereafter issued may continue to express the Exercise
Price per Common Share and the number of Common Shares which were
expressed in the initial Rights Certificates issued
hereunder.
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(l)
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In
any case in which this section 2.3 shall require that an adjustment
in the Exercise Price be made effective as of a record date for a
specified event, the Corporation may elect to defer until the occurrence
of such event the issuance to the Holder of any Right exercised after
such
record date of the number of Common Shares and other securities of
the
Corporation, if any, issuable upon such exercise over and above the
number
of Common Shares and other securities of the Corporation, if any,
issuable
upon such exercise on the basis of the Exercise Price in effect prior
to
such adjustment; provided, however, that the Corporation
shall deliver to such Holder a due xxxx or other appropriate instrument
evidencing such Holder’s right to receive such additional Common Shares
(fractional or otherwise) or other securities upon the occurrence
of the
event requiring such
adjustment.
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(m)
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Notwithstanding
anything in this section 2.3 to the contrary, the Corporation shall
be entitled to make such reductions in each Exercise Price, in addition
to
those adjustments expressly required by this section 2.3, as and to
the extent that in its good faith judgment the Board of Directors
shall
determine to be advisable in order that any: (7) consolidation or
subdivision of Common Shares; (8) issuance wholly for cash of any
Common Share or Convertible Securities; (9) stock dividends; or
(10) issuance of rights, options or warrants referred to in this
section 2.3, hereafter made by the Corporation to holders of its
Common Shares, shall not be taxable to such
shareholders.
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(n)
|
The
Corporation covenants and agrees that, after the Separation Time,
it will
not, except as permitted by sections 5.1, 5.2 and 5.5, take (or permit
any
Subsidiary of the Corporation to take) any action if at the time
such
action is taken it is reasonably foreseeable that such action will
diminish substantially or otherwise eliminate the benefits intended
to be
afforded by the Rights.
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(o)
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Whenever
an adjustment to the Exercise Price or a change in the securities
purchasable upon exercise of the Rights is made at any time after
the
Separation Time pursuant to this section 2.3, the Corporation shall
promptly:
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(i)
|
file
with the Rights Agent and with the transfer agent for the Common
Shares a
certificate specifying the particulars of such adjustment or change;
and
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(ii)
|
give,
or cause the Rights Agent to give, notice of the particulars of such
adjustment or change to Holders of the Rights who request a
copy;
|
provided
that failure to file such certificate or cause such notice to be given as
aforesaid, or any defect therein, shall not affect the validity of any such
adjustment or change.
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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 on, 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.
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2.5
|
Execution,
Authentication, Delivery and Dating of Right
Certificates
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(a)
|
The
Rights Certificates shall be executed on behalf of the Corporation
by any
two of its Chairman, its President, Chief Executive Officer, a
Vice-President or any director, provided that at the time of such
execution none of such officer or director, any Affiliate or Associate
of
such officer or director or any person with whom such officer or
director
or
any such Affiliate or Associate is acting jointly or in concert has
commenced or publicly announced an intention to commence a Take-over
Bid. 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.
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(b)
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Promptly
after the Corporation learns of the Separation Time, the Corporation
will
notify the Rights Agent in writing 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 send such Rights Certificates to the Holders of
the
Rights pursuant to subsection 2.2(d) hereof. No Rights
Certificate shall be valid for any purpose until countersigned by
the
Rights Agent as aforesaid.
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(c)
|
Each
Rights Certificate shall be dated the date of countersignature
thereof.
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|
2.6
|
Registration,
Registration of Transfer and
Exchange
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|
|
(a)
|
After
the Separation Time, 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.
|
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(c) and the other provisions of this
Agreement, the Corporation will execute, and the Rights Agent will 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.
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(b)
|
All
Rights issued upon any registration of transfer or exchange of Rights
Certificates shall be 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.
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(c)
|
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 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
and
any other expenses (including the fees and expenses of the Rights
Agent)
connected therewith.
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(d)
|
The
Corporation shall not be required to register the transfer or exchange
of
any Rights after the Rights have been terminated pursuant to the
provisions of this Agreement.
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|
2.7
|
Mutilated,
Destroyed, Lost and Stolen Rights
Certificates
|
|
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(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.
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(b)
|
If
there shall be delivered to the Corporation and the Rights Agent
prior to
the Expiration Time (i) evidence to their reasonable satisfaction
of the
destruction, loss or theft of any Rights Certificate and (ii) 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.
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(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.
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(d)
|
Every
new Rights Certificate issued pursuant to this section 2.7 in lieu of
any destroyed, lost or stolen Rights Certificate shall evidence a
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 entitle the Holder of the Rights to all the benefits
of
this Agreement equally and proportionately with any and all other
Rights
duly issued by the Corporation
hereunder.
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|
2.8
|
Persons
Deemed Owners
|
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 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 destroy all cancelled
Rights Certificates and deliver a certificate of destruction to the Corporation
on request by the Corporation.
|
2.10
|
Agreement
of Rights Holders
|
Every
Holder of Rights, by accepting such Rights, becomes a party to this Agreement
and for greater certainty is bound by the provisions herein and consents and
agrees with the Corporation and the Rights Agent and with every other Holder
of
Rights that:
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(a)
|
such
holder shall 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;
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(b)
|
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 certificate representing such
Right;
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(c)
|
after
the Separation Time, the Rights Certificates will be transferable
only on
the Rights Register as provided
herein;
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(d)
|
prior
to due presentment of a Rights Certificate (or, prior to the Separation
Time, the associated Common Share certificate) for registration of
transfer or exchange, 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;
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(e)
|
such
holder is not entitled and has waived his right to receive any fractional
Rights or any fractional Common Shares upon exercise of a Right (except
as
provided herein);
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(f)
|
subject
to the provisions of section 5.5, without the approval of any Holder
of Rights 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 pursuant to and as provided herein;
and
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(g)
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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 a 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.
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2.11
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|
Rights
Certificate Holder not Deemed a
Shareholder
|
No
Holder, as such, of any Rights or Rights Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose whatsoever to be the holder
of
any Common Share or any other share or security of the Corporation which may
at
any time be issuable on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Rights Certificate be construed or
deemed to confer upon the Holder of any Right or Rights Certificate, as such,
any of the rights, title, benefits or privileges of a holder of Common Shares
or
any other shares or securities of the Corporation or any right to vote at any
meeting of shareholders of the Corporation whether for the election of directors
or otherwise or upon any matter submitted to holders of shares of the
Corporation at any meeting thereof, or to give or withhold consent to any action
of the Corporation, or to receive notice of any meeting or other action
affecting any holder of Common Shares or any other shares or securities of
the
Corporation except as expressly provided herein, or to receive dividends,
distributions or subscription rights, or otherwise, until such Rights shall
have
been duly exercised in accordance with the terms and provisions
hereof.
ARTICLE 3
ADJUSTMENTS
TO THE RIGHTS ON FLIP-IN EVENT
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3.1
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Flip-in
Event
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(a)
|
Subject
to subsection 3.1(b) and section 5.2, in the event that prior to
the Expiration Time a Flip-in Event shall occur, each Right shall
constitute, effective from and after the later of its date of issue
and at
the close of business on the tenth Trading Day after the Stock Acquisition
Date, the right to purchase from the Corporation, upon exercise thereof
in
accordance with the terms hereof, that number of Common Shares 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, without duplication, 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).
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(b)
|
Notwithstanding
anything in this Agreement to the contrary, upon the occurrence of
a
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 an
Affiliate or Associate of an Acquiring Person);
or
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(ii)
|
a
transferee or other successor in title, direct or indirect, of Rights
held
by 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 an Affiliate or Associate of an Acquiring Person), whether or
not for
consideration, in a transfer that the Board of Directors acting in
good
faith has determined is part of a plan, arrangement, understanding
or
scheme 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 an Affiliate or Associate of an Acquiring Person),
that has the purpose or effect of avoiding
clause 3.1(b)(i);
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shall
become null and void without any further action, and any Holder of
such
Rights (including transferees or other successor in title) shall
thereafter have no right to exercise such Rights under any provision
of
this Agreement and further shall thereafter not have any other rights
whatsoever with respect to such Rights, whether under any provision
of
this Agreement or otherwise. The Holder of any Rights represented
by a
Rights Certificate which is submitted to the Rights Agent upon exercise
or
for registration of transfer or exchange which does not contain the
necessary certifications set forth in the Rights Certificate establishing
that such Rights are not void under this subsection 3.1(b) shall be
deemed to be an Acquiring Person for the purposes of this subsection
3.1(b) and such rights shall be null and
void.
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(c)
|
From
and after the Separation Time, the Corporation shall do all such
acts and
things as shall be necessary and within its power to ensure compliance
with the provisions of this section 3.1, including without
limitation, all such acts and things as may be required to satisfy
the
requirements of the Canada Business Corporations Act, the Securities
Act
(Ontario) and the securities laws or comparable legislation of each
of the
provinces of Canada and of the United States and each of the states
thereof in respect of the issue of Common Shares upon the exercise
of
Rights in accordance with this
Agreement.
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(d)
|
Any
Rights Certificate that represents Rights Beneficially Owned by a
Person
described in either clause 3.1(b)(i) or (ii) 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:
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|
|
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 are void
or shall
become void in the circumstances specified in subsection 3.1(b)
of the
Rights Agreement.
|
provided,
however, 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 impose such legend only if instructed to do so by the
Corporation in writing or if a Holder fails to certify upon transfer or exchange
in the space provided on the Rights Certificate that such Holder is not a Person
described in such legend. The issuance of a Rights Certificate
without the legend referred to in this subsection 3.1(d) shall be of no
effect on the provisions of subsection 3.1(b).
|
3.2
|
Exchange
Option
|
|
|
(a)
|
The
Board of Directors may, at its sole option and without seeking the
approval of holders of Voting Shares or Rights but with the prior
written
consent of The Toronto Stock Exchange if the Common Shares are then
listed
on such exchange, at any time after a Flip-in Event has occurred,
authorize the Company to issue or deliver in respect of each Right
which
is not void pursuant to subsection 3.1(b), either: (11) in
return for the applicable Exercise Price and the Right, debt, equity
or
other securities or assets (or a combination thereof) having a value
equal
to twice the applicable Exercise Price; or (12) in return for the
Right,
subject to any amounts that may be required to be paid under applicable
law, debt, equity or other securities or assets (or a combination
thereof)
having a value equal to the value of the Right, in full and final
settlement of all rights attaching to
the Rights, where in either case the value of such debt, equity or
other
securities or other assets (or a combination thereof) and, in the
case of
clause (ii), the value of the Right, shall be determined by the Board
of Directors which may rely upon the advice of a nationally or
internationally recognized firm of investment dealers or investment
bankers selected by the Board of
Directors.
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(b)
|
If
the Board of Directors authorizes the exchange of debt or equity
securities or assets (or a combination thereof) for Rights pursuant
to
subsection 3.2(a), without any further action or notice, the right to
exercise the Rights will terminate and the only right thereafter
of a
holder of Rights shall be to receive the debt or equity securities
or
assets (or a combination thereof) in accordance with the exchange
formula
authorized by the Board of Directors. Within 10 Business Days
after the Board of Directors has authorized the exchange of debt
or equity
securities or assets (or a combination thereof) for Rights pursuant
to
subsection 3.2(a), the Company shall give notice of exchange to the
holders of such Rights by mailing such notice to all such holders
at their
last addresses as they appear upon the register of Rights holders
maintained by the Rights Agent. Each such notice of exchange
will state the method by which the exchange of debt or equity securities
or assets (or a combination thereof) for Rights will be
effected.
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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 the 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 one
or more co-rights agents (“Co-Rights Agents”) as it may deem necessary or
desirable, subject to the prior written approval of the Rights
Agent. 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 written
approval
the Rights Agent and the Co-Rights Agents. 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
incurred in the administration and execution of this Agreement and
the
exercise and performance of its duties hereunder (including the reasonable
fees and disbursements of any expert or advisor retained by the Rights
Agent with the prior approval of the Corporation where such approval
may
reasonably be obtained and such approval not be unreasonably
withheld). The Corporation also agrees to indemnify the Rights
Agent and its directors, officers, employees and agents for, and
to hold
them harmless against, any loss, liability, cost, claim, action,
damage,
suit or expense, incurred without negligence, bad faith or wilful
misconduct on the part of the Rights Agent, 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 legal costs and expenses of defending
against any claim of liability, which right to indemnification will
survive the termination of this Agreement on the resignation or removal
of
the Rights Agent.
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(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 or any Rights Certificate or
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.
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(c)
|
The
Corporation will inform the Rights Agent in a reasonably timely manner
of
events which may materially affect the administration of this Agreement
by
the Rights Agent, and at any time, upon request, shall provide to
the
Rights Agent an incumbency certificate with respect to the then current
directors and officers of the
Corporation.
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|
4.2
|
Merger
or Amalgamation or Change of Name of Rights
Agent
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|
(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, statutory arrangement
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.
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(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.
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|
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.
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|
(a)
|
The
Rights Agent may retain and consult with legal counsel (who may be
legal
counsel for the Corporation) or such other expert that the Rights
Agent
considers necessary to carry out its duties under this Agreement,
and the
opinion of such counsel or other expert 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 (where
such
approval may reasonably
be obtained and such approval not be unreasonably withheld), retain
and
consult with such other experts or advisors as the Rights Agent shall
consider necessary or appropriate to properly carry out the duties
and
obligations imposed under this Agreement (at the Corporation’s expense)
and the Rights Agent shall be entitled to act and rely in good faith
on
the advice of any such expert or
advisor.
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(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, the President, Chief Executive Officer,
a
Vice-President or a director 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.
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(c)
|
The
Rights Agent will be liable hereunder only for its own negligence,
bad
faith or wilful misconduct.
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|
(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.
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(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
hereof describing any such adjustment or any written notice from
the
Corporation or any holder that a person has become an Acquiring Person);
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.
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|
(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.
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|
(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, the President, Chief Executive Officer, a Vice-President
or
a director 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 accordance with
instructions of any such person. All such instruction shall,
except where circumstances make it impracticable or the Rights Agent
otherwise agrees, be given in writing and, where not in writing,
such
instructions will be confirmed in writing as soon as is reasonably
practicable 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 the 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.
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(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, default, neglect or misconduct of any such
attorneys or agents or for any loss to the Corporation resulting
from any
such act, default, neglect or misconduct, provided reasonable care
was
exercised in good faith in the selection and continued employment
thereof.
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|
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 the transfer agent of Common Shares
by registered or certified mail, and to the Holders of the Rights in accordance
with section 5.9 at the Corporation’s expense. The Corporation
may remove the Rights Agent upon 60 days’ notice in writing, mailed to the
Rights Agent and to the transfer agent of the Common Shares by registered or
certified mail, and to the Holders of the Rights in accordance with
section 5.9. 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 or by the Holder of any Rights (which Holder shall,
with such notice, submit such Holder’s Rights Certificate for inspection by the
Corporation), then the outgoing Rights Agent or Holder of any Rights may apply
to any court of competent jurisdiction for the appointment of a new Rights
Agent
at the Corporation’s expense. 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 Provinces of British Columbia and
Ontario. 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, upon payment by the Corporation to the predecessor
Rights Agent of all outstanding fees and expenses, owed by the Corporation
to
the predecessor Rights Agent pursuant to this Agreement, shall 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 the transfer agent of the Common Shares, and mail
or cause to be mailed 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
of Rights
|
|
|
(a)
|
Redemption
of Holders of Voting Shares
|
Until
the
occurrence of a Flip-in Event as to which the application of section 3.1
has not been waived pursuant to section 5.2 and provided that the provisions
of
subsection 5.2(c) are not applicable to such Flip-in Event, the Board of
Directors may elect to redeem all but not less than all of the then outstanding
Rights at a redemption price of $0.00001 per Right, appropriately adjusted
in a
manner analogous to the applicable adjustment provided for in section 2.3
if an event of a 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”).
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|
(b)
|
Deemed
Redemption
|
The
Board
of Directors shall, without further formality, be deemed to have elected to
redeem the Rights at the Redemption Price on the date that a Person who has
made
a Permitted Bid, a Competing Permitted Bid or a Take-over Bid in respect of
which the Board of Directors has waived the application of section 3.1
takes up and pays for Voting Shares pursuant to the terms and conditions of
such
Permitted Bid, Competing Permitted Bid or Take-over Bid, as the case may
be.
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|
(c)
|
Redemption
on Withdrawal or Termination of
Bid
|
Where
a
Take-over Bid that is not a Permitted Bid or Competing Permitted Bid expires,
is
withdrawn or otherwise terminated after the Separation Time has occurred and
prior to the occurrence of a Flip-in Event, the Board of Directors may elect
to
redeem all the outstanding Rights at the Redemption Price.
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|
(d)
|
Effect
of Redemption
|
If
the
Board of Directors elects or is deemed to have elected to redeem the Rights,
(i) 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 shall be to receive the Redemption Price, and (ii) subject to
subsection 5.1(f) no further Rights shall be issued.
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|
(e)
|
Notice
of Redemption
|
Within
ten Business Days after the Board of Directors electing or having been deemed
to
have elected to redeem the Rights, the Corporation shall give notice of
redemption to the Holders of the then outstanding Rights by mailing such notice
to all such Holders at their last address as they appear upon the Rights
Register or, prior to the Separation Time, on the share register maintained
by
the Corporation’s transfer agent or transfer agents for the Common
Shares. Any notice which is mailed in the manner herein provided
shall 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, except in connection with
the purchase of Common Shares prior to the Separation Time.
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|
(f)
|
Reissuance
of Rights
|
Upon
the
Rights being redeemed pursuant to this section 5.1, Rights may be reissued
under this Agreement to holders of record of Common Shares immediately following
such redemption, and thereafter, all the provisions of this Agreement shall
continue to apply as if the Separation Time had not occurred and Rights
Certificates representing the number of Rights held by each holder of record
of
Common Shares as of the Separation Time had not been mailed to each such holder
and for all purposes of this Agreement, the Separation Time shall be deemed
not
to have occurred and such reissued Rights shall, without any further formality,
be attached to the outstanding Common Shares in the same manner as prior to
the
occurrence of such Separation Time.
|
5.2
|
Waiver
of Flip-In Event
|
|
|
(a)
|
Subject
to sections 5.2(c) and (d), the Board of Directors may, 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 5.2,
waive the application of section 3.1 to such Flip-in Event by written
notice delivered to the Rights
Agent.
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|
(b)
|
Notwithstanding
and without limiting the generality of subsection 5.2(a), the Board
of Directors may waive the application of section 3.1 to a Flip-in
Event provided that the following conditions are
satisfied:
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|
|
(i)
|
the
Board of Directors has determined that the Acquiring Person became
an
Acquiring Person by inadvertence and without any intention to become,
or
knowledge that it would become, an Acquiring Person;
and
|
|
|
(ii)
|
such
Acquiring Person has reduced its Beneficial Ownership of Voting Shares
such that at the time of the granting of the waiver pursuant to this
subsection 5.2(b), it is no longer an Acquiring
Person;
|
and,
in
the event of any such waiver, for the purposes of this Agreement, such Flip-in
Event shall be deemed not to have occurred and the Separation Time shall be
deemed not to have occurred as a result of such Person having inadvertently
become an Acquiring Person. Written notice of any such waiver shall
be given to the Rights Agent as soon as is reasonably practicable.
|
|
(c)
|
Until
the occurrence of a Flip-in Event as to which the application of
section 3.1 has not been waived pursuant to this section 5.2,
upon written notice to the Rights Agent, the Board of Directors may,
with
the prior consent of the holders of Voting Shares given in accordance
with
subsection 5.2(e), determine, if such Flip-in Event would occur by
reason
of an acquisition of Voting Shares otherwise than pursuant to a Take-over
Bid made by means of a take-over bid circular to all holders of record
of
Voting Shares and otherwise than in the circumstances set forth in
subsection 5.2(b), 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.
|
|
|
(d)
|
Until
the occurrence of a Flip-in Event as to which the application of
section 3.1 has not been waived pursuant to this section 5.2,
upon written notice delivered to the Rights Agent, the Board of Directors
may determine to waive the application of section 3.1 to any Flip-in
Event provided that the Flip-in Event would occur by reason of a
Take-over
Bid made by take-over bid circular sent to all holders of Voting
Shares
and provided further that if the Board of Directors waives the application
of section 3.1 to such 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 take-over
bid circular to all holders of Voting Shares which is made prior
to the
expiry of any Take-over Bid (as the same may be extended from time
to
time) made by take-over bid circular in respect of which a waiver
is, or
is deemed to have been, granted under this
subsection 5.2(d).
|
|
|
(e)
|
If
a waiver of a Flip-in Event pursuant to subsection 5.2(c) is proposed
at any time prior to the Separation Time, such redemption or waiver
shall
be submitted for approval to the holders of Voting 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.
|
|
5.3
|
Expiration
|
No
Person
shall have any rights whatsoever pursuant to or arising out of this Agreement
or
in respect of any Right after the Expiration Time, except the Rights Agent
as
specified in subsection 4.1(a) hereof.
|
5.4
|
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 or kind or class of shares purchasable upon
exercise of Rights made in accordance with the provisions of this
Agreement.
|
5.5
|
Supplements
and Amendments
|
|
|
(a)
|
The
Corporation may from time to time supplement or amend this Agreement
without the approval of any Holders of Rights or Voting Shares in
order to
correct any clerical or typographical error or which are required
to
maintain the validity or effectiveness of this Agreement as a result
of
any change in any applicable legislation, rules or regulations
thereunder. The Board of Directors acting in good faith may by
resolution, at or prior to the shareholders’ meeting referred to in
section 5.15, or any adjournment or postponement thereof, supplement
or amend this Agreement without the approval of any Holders of Rights
or
Voting Shares in order to make any changes which the Board of Directors
may deem necessary or desirable (whether or not such action would
materially adversely affect the interest of the holders of Rights
generally). Notwithstanding anything in this section 5.5
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 Agent to such supplement or
amendment.
|
|
|
(b)
|
Without
limiting the generality of section 5.5(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, amend, vary 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 to such amendment, variation or
deletion. Such consent shall be deemed to have been given if
such amendment, variation or deletion 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 by-law and articles of the
Corporation.
|
|
|
(c)
|
Without
limiting the generality of section 5.5(a), the Corporation may, with
the prior consent of the Holders of Rights, at any time on or after
the
Separation Time, amend, vary 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 vote of a majority of the votes cast by the Holders of
Rights
(other than Rights which are void pursuant to the provisions hereof)
present or represented at and entitled to vote at a meeting of the
Holder
of Rights. For the purposes, hereof, 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 articles and by-law and
the Canada Business Corporations Act with respect to meetings of
shareholders of the Corporation and each Right shall be entitled
to one
vote at any such meeting.
|
|
|
(d)
|
Any
amendments made by the Corporation to this Agreement pursuant to
subsection 5.5(a) which are required to maintain the validity of this
Agreement as a result of any change in any applicable legislation
or
regulation thereunder shall:
|
|
|
(i)
|
if
made before the Separation Time, be submitted to the holders of the
Common
Shares at the next meeting of such holders and the holders of the
Common
Shares may, by the majority referred to in subsection 5.5(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 a date not later than immediately following
the
next meeting of shareholders and the Holders of Rights may, by resolution
passed by the majority referred to in subsection 5.5(c), confirm
or reject
such amendment.
|
Any
such
amendment shall, unless the Board of Directors otherwise stipulates, 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 holders of the Common Shares or the Holders of
Rights or is not submitted to the holders of the Common Shares or
the
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 holders
of the Common Shares or the Holders of Rights, as the case may be.
|
|
(e)
|
The
Corporation shall give notice in writing to the Rights Agent of any
supplement, amendment, deletion, variation or rescission to this
Agreement
pursuant to this section 5.5 within five Business Days of the date of
any such supplement, amendment, deletion, variation or rescission,
provided that failure to give such notice, or any defect therein,
shall
not affect the validity of any such supplement, amendment, deletion,
variation or rescission.
|
|
|
(f)
|
Any
amendment to this Agreement shall be subject to the receipt of any
requisite approvals or consent from any applicable regulatory authority
including, without limitation, any necessary approvals of The Toronto
Stock Exchange.
|
|
5.6
|
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, in lieu of issuing
fractional Rights, the Corporation shall pay to the Holders of record
of
the Rights Certificates (provided the Rights represented by such
Rights
Certificates are not void pursuant to the provisions of
subsection 3.1(b) at the time such fractional Rights would otherwise
be issuable), an amount in cash equal to the same fraction of the
Market
Price of one whole Right in lieu of such fractional
Rights.
|
|
|
(b)
|
Share
Certificates for Common Shares shall only be issued upon written
request
to the Corporation and the Corporation shall not be required in any
circumstances 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 Holders 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.
|
|
|
(c)
|
The
Rights Agent shall have no obligation to make any payments in lieu
of
issuing fractions of Rights or Common Shares pursuant to
subsections 5.6(a) or (b), respectively, unless and until the
Corporation shall have provided to the Rights Agent the amount of
cash to
be paid in lieu of issuing such fractional Rights or Common Shares,
as the
case may be.
|
|
5.7
|
Rights
of Action
|
Subject
to the terms of this Agreement, all rights of action in respect of this
Agreement, other than rights of action vested solely in the Rights Agent, are
vested in the respective registered Holders of the Rights; and any registered
Holder of any Rights, without the consent of the Rights Agent or of the
registered 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 in the manner provided in such Holder’s Rights
Certificate and in this Agreement. 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.
|
5.8
|
Notice
of Proposed Actions
|
If
after
the Separation Time and prior to the Expiration Time:
|
|
(a)
|
the
Corporation shall propose to effect the liquidation, dissolution
or
winding up of the Corporation or the sale of all or substantially
all of
the Corporation’s assets;
|
|
|
(b)
|
there
shall occur an adjustment in the rights attaching to the Rights pursuant
to section 3.1 as a result of the occurrence of a Flip-in
Event,
|
|
|
(c)
|
the
Corporation shall propose to effect or permit (in cases where the
Corporation’s permission is required) any Flip-in
Event,
|
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 or
event, which shall specify the date on which such change to the Rights, Flip-in
Event, liquidation, dissolution, winding up or sale is to take place, and such
notice shall be so given at least 20 Business Days prior to the date of taking
of such proposed action.
|
5.9
|
Notices
|
Notices
or demands authorized or required by this Agreement to be given or made 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 first-class mail, postage
prepaid, addressed (until another address is filed in writing with the Rights
Agent), or sent by facsimile or other form of recorded electronic communication,
charges prepaid and confirmed in writing, as follows:
| Olympus Pacific Minerals Inc. | ||
| Xxxxx 000 - 00 Xxxx Xxxxxx Xxxx | ||
| Xxxxxxx, Xxxxxxx X0X 0X0 | ||
| Attention: President | ||
| Facsimile: (000) 000-0000 |
Any
notice or demand authorized or required by this Agreement to be given or made
by
the Corporation or by a Holder of Rights to or on the Rights Agent shall be
sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with the
Corporation), or sent by facsimile or other form of recorded electronic
communication, charges prepaid and confirmed in writing, as
follows:
| Computershare Investor Services Inc. | ||
| 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx | ||
| Xxxxxxx, Xxxxxxx X0X 0X0 | ||
| Attention: Manager Client Services, Stock Transfer | ||
| Facsimile: (000) 000-0000 |
Notices
or demands authorized or required by this Agreement to be given or made by
the
Corporation or the Rights Agent to or on any Holder of Rights shall be
sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed to such Holder at the address of such Holder as it appears
upon the Rights Register or, prior to the Separation Time, on the registry
books
of the transfer agent for the Common Shares. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or not
the
Holder receives the notice.
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
telegraphing, telecopying or sending of the same by other means of recorded
electronic communication (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.
|
5.10
|
Costs
of Enforcement
|
The
Corporation agrees that if the Corporation or any other Person the securities
of
which are purchasable upon exercise of Rights fails to fulfil any of its
obligations pursuant to this Agreement, then the Corporation or such Person
will
reimburse the Holder of any Rights for the costs and expenses (including
reasonable legal fees) incurred by such Holder in actions to enforce his rights
pursuant to any Rights or this Agreement.
|
5.11
|
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; and this Agreement shall
be for the sole and exclusive benefit of the Corporation, the Rights Agent
and
the Holders of the Rights.
|
5.12
|
Governing
Law
|
This
Agreement and each Right issued hereunder shall be deemed to be a contract
made
under the laws of the Province of Ontario 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.
|
5.13
|
Language
|
Les
parties aux présentes ont exigées que la présente convention ainsi que tous les
documents et avis qui s’y rattachent et/ou qui en découleront soient rédigés 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.
|
5.14
|
Severability
|
If
any
section, subsection, clause, subclause, term or provision hereof or the
application thereof to any circumstance or any right hereunder shall, in any
jurisdiction and to any extent, be invalid or unenforceable, such section,
subsection, clause, subclause, term or provision or such right shall be
ineffective only as to such jurisdiction and to the extent of such invalidity
or
unenforceability in such jurisdiction without invalidating or rendering
unenforceable or ineffective the remaining sections, subsections, clauses,
subclauses, terms and provisions hereof or rights hereunder in such jurisdiction
or the application of such section, subsection, clause, subclause, term or
provision or rights hereunder in any other jurisdiction or to circumstances
other than those as to which it is specifically held invalid or
unenforceable.
|
5.15
|
Effective
Date
|
This
Agreement is in full force and effect in accordance with its terms from and
after the Record Time; provided, however, that if this Agreement is not ratified
by a resolution passed by a majority of the votes cast by the Independent
Shareholders present or represented by proxy at a meeting of shareholders to
be
held not later than December 25, 2007, then this Agreement and all outstanding
Rights shall, without further formality, terminate and be void and of no further
force and effect on and from that date which is the earlier of (i) the date
of
termination of the meeting called to consider the confirmation of this
Agreement, and (ii) December 25, 2007.
|
5.16
|
Determinations
and Actions by the Board of
Directors
|
All
actions, calculations and determinations (including all omissions with respect
to the foregoing) which are done or made by the Board of Directors, in good
faith, for the purposes of this Agreement shall not subject the Board of
Directors or any director of the Corporation to any liability to the Holders
of
the Rights.
|
5.17
|
Rights
of Board of Directors and the
Corporation
|
Without
limiting the generality of the foregoing, nothing contained herein shall be
construed to suggest or imply that the Board of Directors shall not be entitled
to recommend that holders of Voting Shares reject or accept any Take-over Bid
or
take any other action (including, without limitation, the commencement,
prosecution, defence or settlement of any litigation and the submission of
additional or alternative Take-over Bids or other proposals to the holders
of
the Voting Shares with respect to any Take-over Bid or otherwise that the Board
of Directors believes is necessary or appropriate in the exercise of its
fiduciary duties.
|
5.18
|
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, including any necessary approvals of
any
stock exchange. Any amendment or supplement to this Agreement is
subject to the approval of any stock exchange on which the Common Shares are
listed.
|
5.19
|
Declaration
as to Non-Canadian
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
by
the Corporation with the securities laws or comparable legislation of a
jurisdiction outside Canada, the Board of Directors acting
in
good faith shall take such actions as it may deem appropriate to ensure
compliance. 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 or the United States, in which such issue or delivery would be
unlawful without registration of the relevant Persons or securities for such
purposes.
|
5.20
|
Time
of the Essence
|
Time
shall be of the essence in this Agreement.
|
5.21
|
Successors
|
All
the
covenants and provisions of this Agreement by or for the benefit of the
Corporation or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
|
5.22
|
Execution
in Counterparts
|
This
Agreement may be executed in any number of counterparts; each of such
counterparts shall for all purposes be deemed to be an original; and all such
counterparts shall together constitute one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
|
|
By:
|
“signed” | |
| Xxxxx X. Xxxxx | |||
|
Executive
Chairman
|
|||
|
By:
|
“signed” | ||
| Xxxxx Xxxxxxxxx | |||
| Chief Financial Officer & Corporate Secretary | |||
|
COMPUTERSHARE
INVESTOR SERVICES INC.
|
|||
|
|
By:
|
“signed” | |
| Xxxxxxxxx Xxxxxx, Manager, Client Services | |||
|
|
|||
|
By:
|
“signed” | ||
| Xxxxxxx Xxx, Professional, Client Services | |||
EXHIBIT A
[FORM
OF RIGHTS CERTIFICATE]
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. UNDER CERTAIN CIRCUMSTANCES
(SPECIFIED IN SUBSECTION 3.1(b) OF THE RIGHTS AGREEMENT), RIGHTS BENEFICIALLY
OWNED BY AN ACQUIRING PERSON, OR TRANSFEREES OF AN ACQUIRING PERSON OR ITS
ASSOCIATES OR AFFILIATES (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT)
OR
ANY PERSON ACTING JOINTLY OR IN CONCERT WITH ANY OF THEM, MAY BECOME VOID
WITHOUT ANY FURTHER ACTION.
This
certifies that ____________________, or registered assigns, 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 Shareholder Rights Plan Agreement dated as of the 25th day of June 2007,
(the “Rights Agreement”) between Olympus Pacific Minerals Inc., a corporation
subsisting under the Canada Business Corporations Act (the
“Corporation”) and Computershare Investor Services Inc., a 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 and non-assessable 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 and submitted to the Rights Agent
at
its principal office in the city of Toronto. The Exercise Price shall
initially be $10.00 (Canadian) per Right and shall be subject to adjustment
in
certain events as provided in the Rights Agreement.
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. 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 entitling the holder to
purchase a like aggregate number of Common Shares as the 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 Rights
Certificate may be, and under certain circumstances are required to be, redeemed
by the Corporation at a redemption price of $0.00001 per Right.
No
fractional Common Shares will be issued upon the exercise of any Right or Rights
evidenced hereby, but in lieu thereof, a cash payment will be made, as provided
in the Rights Agreement.
No
holder
of this Rights Certificate, as such, shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of Common Shares or of any
other securities of the Corporation 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, 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 of the Corporation 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 of the
Corporation (except as provided in the Rights Agreement), or to receive
dividends, distributions 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.
Date:
____________________
|
By:
______________________________________________
|
By:
____________________________________________________
|
Countersigned:
|
COMPUTERSHARE
INVESTOR SERVICES INC.
|
|
By:
____________________________________________________
|
(To
be
attached to each Rights Certificate)
FORM
OF ELECTION TO EXERCISE
|
AND
TO:
|
COMPUTERSHARE
INVESTOR SERVICES INC.
|
The
undersigned hereby irrevocably elects to exercise _______________ whole Rights
represented by the attached Rights Certificate to purchase the Common Shares
issuable upon the exercise of such Rights and requests that certificates for
such Shares be issued to:
|
(Name)
|
|
|
(Address)
|
|
|
(City
and Province or State)
|
|
|
(Social
Insurance Number or other taxpayer identification number)
|
If
such
number of Rights are not 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)
|
|
|
(Address)
|
|
|
(City
and Province or State)
|
|
|
(Social
Insurance Number or other taxpayer identification number)
|
|
Dated:
_______________________________________
|
Signature:
_______________________________________
|
|
Signature
Guaranteed:
|
(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 chartered bank, a major Canadian trust company,
a member firm of a recognized stock exchange in Canada, a member of a registered
national securities exchange in the United States, or a member of the Securities
Transfer Association Medallion (STAMP) Program.
CERTIFICATE
(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 any Person acting
jointly or in concert with any of the foregoing (all capitalized terms are
used
as defined in the Rights Agreement).
Signature:
NOTICE
In
the
event the certification set forth in the Form of Election to Exercise is not
completed, the Corporation will deem the Beneficial Owner of the Rights
evidenced by this Rights Certificate to be an Acquiring Person or an Affiliate
or Associate thereof (all capitalized terms are used as defined in the Rights
Agreement) and accordingly such Rights shall be null and void.
FORM
OF ASSIGNMENT
(To
be
executed by the registered holder if such
holder
desires to transfer the Rights Certificate)
FOR
VALUE
RECEIVED
__________________________________________________________
hereby
sells, assigns and transfers
unto __________________________________________________________
(Please
print name and address of transferee)
the
Rights represented by this Rights Certificate, together with all right, title
and interest therein, and does 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:
__________________________________________________________
|
|
Signature
Guaranteed:
|
(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 chartered bank, a major Canadian trust company,
a member firm of a recognized stock exchange in Canada, a member of a registered
national securities exchange in the United States, or a member of the Securities
Transfer Association Medallion (STAMP) Program.
CERTIFICATE
(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 any Person acting
jointly or in concert with any of the foregoing (all capitalized terms are
used
as defined in the Rights Agreement).
|
|
Signature:
__________________________________________________________
|
|
|
|
NOTICE
In
the
event the certification set forth in the Form of Assignment is not completed,
the Corporation will deem the Beneficial Owner of the Rights evidenced by this
Rights Certificate to be an Acquiring Person or an Affiliate or Associate
thereof (all capitalized terms are used as defined in the Rights Agreement)
and
accordingly such Rights shall be null and void.
