EXHIBIT 4.1
SHAREHOLDER RIGHTS PLAN AGREEMENT
DATED AS OF FEBRUARY 10, 1999
AND AS AMENDED MARCH 5, 2002
BETWEEN
ANGIOTECH PHARMACEUTICALS, INC.
AND
COMPUTERSHARE TRUST COMPANY OF CANADA
AS RIGHTS AGENT
TABLE OF CONTENTS
ARTICLE I - INTERPRETATION........................................... 2
1.1 CERTAIN DEFINITIONS....................................... 2
1.2 CURRENCY.................................................. 13
1.3 DESCRIPTIVE HEADINGS...................................... 13
1.4 REFERENCES TO AGREEMENT................................... 13
1.5 CALCULATION OF NUMBER AND PERCENTAGE OF BENEFICIAL
OWNERSHIP OF OUTSTANDING VOTING SHARES.................... 13
1.6 ACTING JOINTLY OR IN CONCERT.............................. 14
ARTICLE 2 - THE RIGHTS............................................... 14
2.1 LEGEND ON CERTIFICATES.................................... 14
2.2 EXECUTION, AUTHENTICATION, DELIVERY AND DATING OF
RIGHTS CERTIFICATES....................................... 15
2.3 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE....... 15
2.4 MUTILATED, DESTROYED, LOST AND STOLEN RIGHTS
CERTIFICATES.............................................. 16
2.5 PERSONS DEEMED OWNERS OF RIGHTS........................... 16
2.6 DELIVERY AND CANCELLATION OF CERTIFICATES................. 16
2.7 AGREEMENT OF RIGHTS HOLDERS............................... 17
2.8 RIGHTS CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER........ 17
ARTICLE 3 - EXERCISE OF THE RIGHTS................................... 18
3.1 INITIAL EXERCISE PRICE; EXERCISE OF RIGHTS;
DETACHMENT OF RIGHTS...................................... 18
3.2 ADJUSTMENTS TO EXERCISE PRICE; NUMBER OF RIGHTS........... 21
3.3 DATE ON WHICH EXERCISE IS EFFECTIVE....................... 25
ARTICLE 4 - ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF CERTAIN
TRANSACTIONS........................................................ 25
4.1 FLIP-IN EVENT............................................. 25
ARTICLE 5 - THE RIGHTS AGENT......................................... 26
5.1 GENERAL................................................... 26
5.2 MERGER OR AMALGAMATION OR CHANGE OF NAME OF RIGHTS
AGENT..................................................... 27
5.3 DUTIES OF RIGHTS AGENT.................................... 28
5.4 CHANGE OF RIGHTS AGENT.................................... 29
ARTICLE 6 - MISCELLANEOUS............................................ 30
6.1 REDEMPTION AND WAIVER..................................... 30
6.2 EXPIRATION................................................ 32
6.3 ISSUANCE OF NEW RIGHTS CERTIFICATE........................ 32
6.4 FRACTIONAL RIGHTS AND FRACTIONAL SHARES................... 32
6.5 SUPPLEMENTS AND AMENDMENTS................................ 33
6.6 RIGHTS OF ACTION.......................................... 34
6.7 NOTICE OF PROPOSED ACTIONS................................ 35
6.8 NOTICES................................................... 35
6.9 COSTS OF ENFORCEMENT...................................... 35
6.10 SUCCESSORS................................................ 36
6.11 BENEFITS OF THIS AGREEMENT................................ 36
6.12 GOVERNING LAW............................................. 36
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6.13 COUNTERPARTS.............................................. 36
6.14 SEVERABILITY.............................................. 36
6.15 EFFECTIVE DATE............................................ 36
6.16 RIGHTS OF BOARD, CORPORATION AND OFFEROR.................. 37
6.17 DETERMINATIONS AND ACTIONS BY THE BOARD OF
DIRECTORS..................................................... 37
6.18 TIME OF THE ESSENCE....................................... 37
6.19 REGULATORY APPROVALS...................................... 37
MEMORANDUM OF AGREEMENT made as of the 10th day of February, 1999 and as amended
the 5th day of March, 2002
BETWEEN:
ANGIOTECH PHARMACEUTICALS, INC.
a corporation existing under the laws of British Columbia
(hereinafter called the "Corporation"),
OF THE FIRST PART
AND:
COMPUTERSHARE TRUST COMPANY OF CANADA,
being a trust company existing under the laws of Canada, as rights agent,
(hereinafter called the "Rights Agent"),
OF THE SECOND PART
WHEREAS in order to maximize shareholder value the Board of Directors of the
Corporation has determined that it is advisable for the Corporation to adopt a
shareholder rights plan (the "Rights Plan");
AND WHEREAS in order to implement the Rights Plan the Board of Directors of the
Corporation has:
I. authorized the issuance, effective 4:00 p.m. (Vancouver time) on
February 10, 1999 of one right (a "Right") in respect of each Common Share
(as hereinafter defined) of the Corporation outstanding at 4:00 p.m.
(Vancouver time) on February 10, 1999 (the "Record Time"); and
II. authorized the issuance of one Right in respect of each Common Share
issued after the Record Time and prior to the earlier of the Separation
Time (as hereinafter defined) and the Expiration Time (as hereinafter
defined);
AND WHEREAS each Right entitles the holder thereof, after the Separation Time,
to purchase securities of the Corporation (or, in certain cases, of certain
other entities) 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 holders of Rights, and the Rights Agent is willing so to
act, in connection with the issuance, transfer, exchange and replacement of
Rights Certificates (as hereinafter defined), the exercise of Rights and other
matters referred to herein;
NOW THEREFORE in consideration of the premises and the respective covenants and
agreements set forth herein, the parties hereby agree as follows:
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ARTICLE I
INTERPRETATION
1.1 CERTAIN DEFINITIONS
For the purposes of this Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean any Person who is the Beneficial Owner of
20% or more of the outstanding Voting Shares; provided, however, that the
term "Acquiring Person" shall not include:
(i) the Corporation or any Subsidiary of the Corporation;
(ii) any Person who becomes the Beneficial Owner of 20% or more of the
outstanding Voting Shares as a result of any one or any combination
of:
(A) an acquisition or redemption by the Corporation or a
Subsidiary of the Corporation of Voting Shares, by reducing
the number of Voting Shares increases the percentage of
outstanding Voting Shares Beneficially Owned by such Person to
20% or more of the Voting Shares then outstanding (a "Voting
Share Reduction");
(B) an acquisition of Voting Shares made pursuant to a Permitted
Bid or a Competing Permitted Bid (a "Permitted Bid
Acquisition");
(C) an acquisition of Voting Shares in respect of which the Board
of Directors has waived the application of section 4.1
pursuant to the provisions of subsection 6.1 (b), (c) or (d)
(an "Exempt Acquisition"); or
(D) a Pro Rata Acquisition;
provided, however, that if a Person shall become the Beneficial
Owner of 20% or more of the Voting Shares then outstanding by reason
of one or any combination of a Voting Share Reduction, a Permitted
Bid Acquisition, an Exempt Acquisition or a Pro Rata Acquisition and
thereafter such Person, while such Person is the Beneficial Owner of
20% or more of the Voting Shares then outstanding, becomes the
Beneficial Owner of any additional Voting Shares that increases its
Beneficial Ownership of Voting Shares by more than 1% of the number
of Voting Shares then outstanding (other than pursuant to one or any
combination of a Voting Share Reduction, a Permitted Bid
Acquisition, an Exempt Acquisition or a Pro Rata Acquisition) then,
as of the date such Person becomes the Beneficial Owner of such
additional outstanding Voting Shares, such Person shall be an
"Acquiring Person";
(iii) for the period of 10 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
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clause 1.1(d)(viii) hereof because such Person makes or announces an
intention to make a Take-over Bid alone or by acting jointly or in
concert with any other Person and, for this purpose,
"Disqualification Date" means the first date of public announcement
that such Person is making or intends to make a Take-over Bid;
(iv) an underwriter or member of a banking or selling group acting in
such capacity that becomes the Beneficial Owner of 20% or more of
the Voting Shares of the Corporation in connection with a
distribution of securities of the Corporation; or
(v) a Person (a "Grandfathered Person") who is the Beneficial Owner of
more than 20% of the outstanding Voting Shares determined as of the
Record Time; 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 additional Voting Shares that
increases its Beneficial Ownership of Voting Shares by more than 1%
of the number of Voting Shares then outstanding (other than through
one or any combination of a Voting Share Reduction, a Permitted Bid
Acquisition, an Exempt Acquisition or a Pro Rata Acquisition);
(b) "Affiliate", when used to indicate a relationship with a specified Person,
means a Person who directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, such specified Person;
(c) "Associate" means, when used to indicate a relationship with a specified
Person, a spouse of that Person, any Person of the same or opposite sex
with whom that Person is living in a conjugal relationship outside
marriage, a child of that Person or a relative of that Person if the
relative has the same residence as that Person;
(d) a Person shall be deemed the "Beneficial Owner" of, and to have
"Beneficial Ownership" of, and to "Beneficially Own":
(i) any securities as to which such Person or any of such Person's
Affiliates or Associates is the owner at law or in equity;
(ii) any securities as to which such Person or any of such Person's
Affiliates or Associates has the right to acquire (whether such
right is exercisable immediately or within a period of 60 days
thereafter or upon the occurrence of a contingency) pursuant to any
agreement, arrangement, pledge or understanding, whether or not in
writing, (other than customary agreements with and between
underwriters or banking group or selling group members with respect
to an offering of securities and other than pledges of securities)
or upon the exercise of any conversion right, exchange right, share
purchase right (other than a Right), warrant or option;
(iii) any securities which are Beneficially Owned within the meaning of
the foregoing provisions of this subsection 1.1(d) by any other
Person with whom such Person is acting jointly or in concert;
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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 where:
(iv) such security has been deposited or tendered pursuant to a Permitted
Lock-Up Agreement, or is otherwise deposited or tendered, to any
Take-over Bid made by such Person, made by any of such Person's
Affiliates or Associates or made by any Person acting jointly or in
concert with such Person until such deposited security has been
taken up or paid for, whichever shall occur first;
(v) such Person holds such security, provided that:
(A) the ordinary business of such Person (an "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 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 or
Persons (a "Client");
(B) such Person (a "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 ("Estate Accounts") or in relation to other accounts
("Other Accounts") 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; or
(C) such Person (an "Administrator") is the administrator or the
trustee of one or more pension funds or plans (each a "Plan")
or is a Plan registered under applicable laws and holds such
security in the ordinary course of such duties for such Plans;
provided that the Investment Manager, Trust Company, Administrator,
or Plan, as the case may be, is not then making and has not
announced a current intention to make a Take-over Bid (other than an
Offer to Acquire Voting Shares or other securities of the
Corporation by means of a distribution by the Corporation or
ordinary market transactions (including prearranged trades) executed
through the facilities of a stock exchange or organized
over-the-counter market) alone or acting jointly or in concert with
any other Person;
(vi) such Person, any of such Person's Affiliates or Associates or any
Person acting jointly or in concert with such Person is:
(A) a Client of the same Investment Manager as another Person on
whose account the Investment Manager holds such security;
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(B) 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
(C) a Plan which has the same Administrator as another such
pension plan or fund on whose account the Administrator holds
such security;
(vii) such Person holds such security, provided that the Person is a Plan
or Person 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, in any such
case, such Person holds such securities for the purposes of its
activities as such a Person, and further provided that such Person:
(A) does not Beneficially Own more than 30% of the Voting Shares;
and
(B) is not then making a Take-over Bid or has not then announced a
current intention to make a Take-over Bid, alone or acting
jointly or in concert with another Person, other than an Offer
to Acquire Voting Shares or other securities by such Person by
means of a distribution by the Corporation or by means of
ordinary market transactions (including prearranged trades)
executed through the facilities of a stock exchange or
organized over-the-counter market;
(viii) such Person is:
(A) a Client of an Investment Manager and such security is owned
at law or in equity by the Investment Manager;
(B) an account of a Trust Company and such security is owned at
law or in equity by the Trust Company; or
(C) a pension fund or plan and such security is owned at law or in
equity by the Administrator thereof; or
(ix) where such Person is the registered holder of securities as a result
of carrying on the business of or acting as a nominee of a
securities depository;
(e) "Board of Directors" shall mean the board of directors of the Corporation
or, if duly constituted and whenever duly empowered, the executive
committee of the board of directors of the Corporation;
(f) "Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions in Vancouver are authorized or obligated by
law to close;
(g) "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 offices of the transfer agent for the Common
Shares (or, after the Separation Time, the offices of the
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Rights Agent) are closed to the public in the city in which such transfer
agent or Rights Agent has an office for the purposes of this Agreement;
(h) "Common Share" shall mean a common share of the Corporation and any other
share of the Corporation into which such share is subdivided,
consolidated, reclassified or changed;
(i) "common shares", when used with reference to any Person other than the
Corporation, shall mean the class or classes of shares (or similar equity
interest) with the greatest per share (or similar interest) voting power
entitled to vote generally in the election of all directors of such other
Person;
(j) "Company Act" shall mean the Company Act, R.S.B.C. 1996, C. 62, as
amended, and the regulations made thereunder, and any comparable or
successor laws or regulations thereto;
(k) "Competing Permitted Bid" means a Take-over Bid that:
(i) is made after a Permitted Bid has been made and prior to the expiry
of the Permitted Bid;
(ii) satisfies all components of the definition of a Permitted Bid other
than the requirements set out in clause (ii) of the definition of a
Permitted Bid; and
(iii) contains, and the take-up and payment for securities tendered or
deposited is subject to, an irrevocable and unqualified condition
that no Voting Shares will be taken up or paid for pursuant to the
Take-over Bid prior to the close of business on a date that is no
earlier than the later of: (i) the 60th day after the date on which
the earliest Permitted Bid which preceded the Competing Permitted
Bid was made; and (ii) 21 days after the date of the Take-over Bid
constituting the Competing Permitted Bid; and only if at the date
that the Voting Shares are to be taken up more than 50% of the
Voting Shares held by Independent Shareholders shall have been
deposited or tendered pursuant to the Competing Permitted Bid and
not withdrawn;
(l) "controlled": a corporation is "controlled" by another Person if:
(i) securities entitled to vote in the election of directors carrying
more than 50% of the votes for the election of the directors are
held, directly or indirectly, by or for the benefit of the other
Person; and
(ii) the votes carried by such securities are entitled, if exercised, to
elect a majority of the board of directors of such corporation;
and "controls", "controlling" and "under common control with" shall be
interpreted accordingly;
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(m) "dividends paid in the ordinary course" shall mean cash dividends paid at
regular intervals in any financial 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
financial year;
(ii) 300% of the arithmetic average of the aggregate amounts of cash
dividends declared payable by the Corporation on its Common Shares
in its three immediately preceding financial years; and
(iii) 100% of the aggregate consolidated net income of the Corporation,
before extraordinary items, for its immediately preceding financial
year;
(n) "Election to Exercise" shall have the meaning ascribed thereto in clause
3.1(d)(ii);
(o) "Exempt Acquisition" shall have the meaning ascribed thereto in subclause
1.1(a)(ii)(C);
(p) "Exercise Price" shall mean, as of any date, the price at which a holder
of a Right may purchase the securities issuable upon exercise of such
Right. Until adjustment thereof in accordance with the terms hereof, the
Exercise Price for each Right shall be $100.00;
(q) "Expiration Time" shall mean the earlier of:
(i) the Termination Time; and
(ii) the close of the annual general meeting of shareholders of the
Corporation occurring after the third anniversary of the date of
this Agreement or the date of any amendment to this Agreement,
whichever is later;
(r) "Flip-in Event" shall mean a transaction in or pursuant to which any
Person shall become an Acquiring Person;
(s) "Grandfathered Person" shall have the meaning ascribed thereto in clause
1.1(a)(v);
(t) "Independent Shareholders" shall mean holders of Voting Shares other than:
(i) an Acquiring Person; (ii) any Offeror (other than a Person who at the
relevant time is deemed not to Beneficially Own such Voting Shares by
reason of subclauses 1.1(d)(v) or (vii)); (iii) any Associate or Affiliate
of such Acquiring Person or Offeror; (iv) any Person acting jointly or in
concert with such Acquiring Person or Offeror; and (v) 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
Take-over Bid;
(u) "Market Price" per share of any securities on any date of determination
shall mean the average of the daily closing prices per share of such
securities (determined as described
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below) on each of the 20 consecutive Trading Days through and including
the Trading Day immediately preceding such date; provided, however, that
if an event of a type analogous to any of the events described in section
3.2 shall have caused the closing price in respect of any Trading Day
("Adjustment Trading Day") used to determine the Market Price not to be
fully comparable with the closing price on such date of determination then
"Market Price" shall mean the average of the daily closing prices per
share of such securities (determined as described below) for that number
of consecutive Trading Days through and including the Trading Day which is
the third Trading Day immediately prior to that Adjustment Trading Day or,
if the date of determination is not a Trading Day, on the immediately
preceding Trading Day. The closing price per share of any securities on
any date shall be:
(i) 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 share of such securities as reported by the principal stock
exchange in Canada on which such securities are listed and posted
for trading;
(ii) if for any reason neither of such prices is available on such day or
the securities are not listed and posted for trading on any stock
exchange in Canada, the last closing board lot sale price or, if
such price is not available, the average of the closing bid and
asked prices, each such security as reported in the principal
consolidated transaction reporting system with respect to securities
listed or admitted to trading on the principal national securities
exchange in the United States on which such securities are listed or
admitted to trading;
(iii) if for any reason none of such prices is available on such day or
the securities are not listed and posted for trading on a stock
exchange in Canada or a national securities exchange in the United
States, the last quoted price, or if not so quoted, the average of
the high bid and low asked prices for each share of such securities
in the over-the-counter market, as reported by The Canadian Dealing
Network Inc. or such other compatible system then in use; or
(iv) if on any such date the securities are not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
securities;
provided, however, that if on any such date the securities are not traded
on any exchange or in the over-the-counter-market and the price referred
to in clause (iv) above is not available, the closing price per share of
such securities on such date shall mean the fair value per share of such
securities on such date as determined by a nationally or internationally
recognized investment dealer or investment banker with respect to the fair
value per share of such securities;
(v) "Offer to Acquire" shall include:
(i) an offer to purchase, or a solicitation of an offer to sell Voting
Shares; and
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(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 who made
the offer to sell;
(w) "Offeror" shall mean a Person who has announced a current intention to
make or who is making a Take-over Bid;
(x) "Offeror's Securities" shall mean Voting Shares of the Corporation
Beneficially Owned by an Offeror;
(y) "Permitted Bid" means a Take-over Bid which 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;
(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 Voting Shares 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 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 of
Voting Shares for not less than 10 Business Days from the date of
such public announcement;
(z) "Permitted Bid Acquisition" shall have the meaning ascribed thereto in
subclause 1.1(a)(ii)(B);
(aa) "Permitted Lock-Up Agreement" means an agreement between a Person and one
or more holders of Voting Shares (each, a "Locked-up Person")(the terms of
which are publicly disclosed and reduced to writing and a copy of which is
made available to the public including the Corporation, not later than the
date the Lock-up Bid (as defined below) or,
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if the Lock-up Bid has been made prior to the date on which such agreement
is entered into, not later than the date of such agreement) pursuant to
which each such Locked-up Person agrees to deposit or tender Voting Shares
to a Take-over Bid (the "Lock-up Bid") made or to be made by the Person,
any of such Person's Affiliates or Associates or any Person acting jointly
or in concert with such Person provided that:
(i) the agreement:
(A) permits any Locked-up Person to terminate its obligation to
deposit or tender to or not to withdraw Voting Shares from the
Lock-up Bid in order to tender or deposit the Voting Shares to
another Take-over Bid or support another transaction where the
price or value per Voting Share offered under such other
Take-over Bid or transaction is higher than the price or value
per Voting Share offered under the Lock-up Bid; or
(B) permits any Locked-up Person to terminate its obligation to
deposit or tender to or not to withdraw Voting Shares from the
Lock-up Bid in order to tender or deposit the Voting Shares to
another Take-over Bid or support another transaction if:
(i) the price or value per Voting Share offered under the
other Take-over Bid or transaction exceeds by as much or
more than a specified amount (the "Specified Amount")
the price or value per Voting Share offered under the
Lock-up Bid, provided that such Specified Amount is not
greater than 7% of the price or value per Voting Share
offered under the Lock-up Bid; or
(ii) the number of Voting Shares to be purchased under the
other Take-over Bid or transaction exceeds by as much as
or more than a specified number (the "Specified Number")
the number of Voting Shares that the Offeror has offered
to purchase under the Lock-up Bid at a price or value
per Voting Share that is not less than the price or
value per Voting Share offered under the Lock-up Bid,
provided that the Specified Number is not greater than
7% of the number of Voting Shares offered under the
Lock-up Bid;
and, for greater clarity, the agreement may contain a right of first
refusal or require a period of delay to give such Person an
opportunity to match a higher price in another Take-over Bid or
other similar limitation on a Locked-up Person's right to withdraw
Voting Shares from the agreement, so long as the limitation does not
preclude the exercise by the Locked-up Person of the right to
withdraw Voting Shares during the period of the other Take-over Bid
or transaction; and
(ii) no "break-up" fees, "top-up" fees, penalties, expenses or other
amounts that exceed in the aggregate the greater of:
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(A) the cash equivalent of 2 1/2% of the price or value payable
under the Lock-up Bid to a Locked-up Person; and
(B) 50% of the amount by which the price or value payable under
another Take-over Bid or transaction to a Locked-up Person
exceeds the price or value of the consideration that such
Locked-up Person would have received under the Lock-up Bid,
shall be payable by a Locked-up Person pursuant to the agreement in the
event a Locked-up Person fails to deposit or tender Voting Shares to the
Lock-up Bid, withdraws Voting Shares previously tendered thereto or
supports another transaction.
(ab) "Person" shall include any individual, body corporate, firm, partnership,
association, trust, trustee, executor, administrator, legal personal
representative, group, unincorporated organization, syndicate, government
or governmental agency or instrumentality or other entity;
(ac) "Pro Rata Acquisition" shall mean:
(i) the acquisition of Voting Shares as a result of a stock dividend, a
stock split or other event pursuant to which a Person receives or
acquires Voting Shares on the same pro rata basis as all other
holders of the same class of Voting Shares;
(ii) the acquisition of Voting Shares pursuant to any regular dividend
reinvestment plan or other plan made available by the Corporation to
holders of all of its Voting Shares;
(iii) the receipt and/or exercise of rights issued by the Corporation to
all the holders of a class of Voting Shares to subscribe for or
purchase Voting Shares, provided that such rights are acquired
directly from the Corporation and not from any other Person; or
(iv) the acquisition of Voting Shares pursuant to a distribution by the
Corporation of Voting Shares, or securities convertible into or
exchangeable for Voting Shares (and the conversion or exchange of
such convertible securities) made pursuant to a prospectus or by way
of private placement by the Corporation, provided such Person does
not thereby acquire a greater percentage of Voting Shares or
securities convertible into or exchangeable for Voting Shares so
offered than the Person's percentage of Voting Shares Beneficially
Owned immediately prior to such acquisition;
(ad) "Record Time" shall mean 4:00 p.m. (Vancouver time) on February 10, 1999;
(ae) "Right" shall have the meaning ascribed thereto in the recitals hereto;
(af) "Rights Agent" shall mean such trust company as designated by directors
from time to time;
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(ag) "Rights Certificates" shall mean the certificates representing the Rights
after the Separation Time, which shall be in the form attached hereto as
Exhibit A;
(ah) "Rights Register" and "Rights Registrar "shall have the respective
meanings ascribed thereto in subsection 2.3(a);
(ai) "Securities Act (British Columbia)" shall mean the Securities Act,
R.S.B.C. 1996, c. 418, as amended, and the rules and regulations
thereunder, and any comparable or successor laws or regulations thereto;
(aj) "Separation Time" shall mean the close of business on the eighth Trading
Day after the earlier of:
(i) the Stock Acquisition Date; and
(ii) the date of the commencement of, or first public announcement
(provided such announcement is made after the Record Time) 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);
or such later time as may be determined by the Board of Directors;
provided that if the foregoing results in the Separation Time being prior
to the Record Time, the Separation Time shall be the Record Time and
provided further that, if any Take-over Bid referred to in clause (ii) of
this subsection 1.1(ai) expires, or is cancelled, terminated or otherwise
withdrawn prior to the Separation Time, such Take-over Bid shall be
deemed, for the purposes of this subsection 1.1(ai), never to have been
made;
(ak) "Stock Acquisition Date" shall mean the date of the first public
announcement (which, for purposes of this definition, shall include,
without limitation, the filing of a report pursuant to the Securities Act
(British Columbia)) by the Corporation or an Acquiring Person of facts
indicating that a Person has become an Acquiring Person;
(al) "Subsidiary" of a Person shall have the meaning ascribed thereto in the
Securities Act (British Columbia);
(am) "Take-over Bid" shall mean an Offer to Acquire Voting Shares or other
securities of the Corporation if, assuming that the Voting Shares or other
securities of the Corporation subject to 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
Voting Shares then outstanding;
(an) "Termination Time" shall mean the time at which the right to exercise
Rights shall terminate pursuant to subsections 6.1(f), 6.1(g) or section
6.15;
(ao) "Trading Day", when used with respect to any securities, shall mean a day
on which the principal Canadian securities exchange on which such
securities are listed or admitted to
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trading is open for the transaction of business or, if the securities are
not listed or admitted to trading on any Canadian securities exchange, a
Business Day; and
(ap) "Voting Share" shall mean any share in the capital of the Corporation to
which is attached a right to vote for the election of all directors
generally.
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 DESCRIPTIVE HEADINGS
Descriptive headings appear herein for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
1.4 REFERENCES TO AGREEMENT
References to "this Agreement", "hereto", "herein", "hereby", "hereunder",
"hereof" and similar expressions refer to this Agreement and not to any
particular Article, section, subsection, clause, subclause, subdivision or other
portion hereof and include any and every instrument supplemental or ancillary
hereto.
1.5 CALCULATION OF NUMBER AND PERCENTAGE OF BENEFICIAL OWNERSHIP OF
OUTSTANDING VOTING SHARES
(a) For the purposes of this Agreement, in determining the percentage of the
outstanding Voting Shares of the Corporation with respect to which a
Person is or is deemed to be the Beneficial Owner, all unissued Voting
Shares of the Corporation of which such Person is deemed to be the
Beneficial Owner shall be deemed to be outstanding.
(b) The percentage of outstanding Voting Shares of the Corporation
Beneficially Owned by any Person shall, for the purposes of this
Agreement, be and be deemed to be the product determined by the formula:
100 x A
-
where B
A = the number of votes for the election of all directors generally
attaching to the outstanding Voting Shares of the Corporation Beneficially
Owned by such Person; and
B = the number of votes for the election of all directors generally
attaching to all outstanding Voting Shares of the Corporation.
The percentage of outstanding Voting Shares represented by any particular group
of Voting Shares acquired or held by any Person shall be determined in like
manner mutatis mutandis.
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1.6 ACTING JOINTLY OR IN CONCERT
For the purposes of this Agreement, a Person is acting jointly or in concert
with another Person if such Person has any agreement, arrangement or
understanding (whether formal or informal and whether or not in writing) with
such other Person for the purpose of acquiring or Offering to Acquire any Voting
Shares (other than customary agreements with and between underwriters and
banking group or selling group members with respect to an offering of securities
and other than pledges or hypothecs of securities in the ordinary course of
business).
ARTICLE 2
THE RIGHTS
2.1 LEGEND ON CERTIFICATES
Certificates for Common Shares issued after the Record Time but prior to the
earlier of the Separation Time and the Expiration Time shall evidence, in
addition to the Common Shares, one Right for each Common Share evidenced thereby
and shall have impressed on, printed on, written on or otherwise affixed to them
the following legend:
UNTIL THE SEPARATION TIME (AS DEFINED IN THE RIGHTS AGREEMENT REFERRED TO
BELOW), THIS CERTIFICATE ALSO EVIDENCES AND ENTITLES THE HOLDER HEREOF TO
CERTAIN RIGHTS AS SET FORTH IN A SHAREHOLDER RIGHTS PLAN AGREEMENT, DATED
AS OF THE 10TH DAY OF FEBRUARY, 1999, AS AMENDED (THE "RIGHTS AGREEMENT"),
BETWEEN ANGIOTECH PHARMACEUTICALS, INC. (THE "CORPORATION") AND
COMPUTERSHARE TRUST COMPANY OF CANADA, AS RIGHTS AGENT, THE TERMS OF WHICH
ARE HEREBY INCORPORATED HEREIN BY REFERENCE AND A COPY OF WHICH 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 TERMINATED, MAY EXPIRE, MAY BECOME
VOID (IF, IN CERTAIN CASES, THEY ARE "BENEFICIALLY OWNED" BY AN "ACQUIRING
PERSON", AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT, WHETHER
CURRENTLY HELD BY OR ON BEHALF OF SUCH PERSON OR ANY SUBSEQUENT HOLDER) 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 PRACTICABLE AFTER THE RECEIPT OF A WRITTEN
REQUEST THEREFOR.
Certificates representing Common Shares that are issued and outstanding at the
Record Time 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.
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2.2 EXECUTION, AUTHENTICATION, DELIVERY AND DATING OF RIGHTS CERTIFICATES
(a) The Rights Certificates shall be executed on behalf of the Corporation by
any of the Chairman of the Board, the President or any Vice-President
(including any Senior Vice-President), together with any other of such
persons or together with any one of the Secretary, the Treasurer, any
Assistant Secretary or any Assistant Treasurer. The signature of any of
the officers of the Corporation 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.
(b) Promptly after the Corporation learns of the Separation Time the
Corporation will notify the Rights Agent of such Separation Time and will
deliver Rights Certificates executed by the Corporation to the Rights
Agent for countersignature, and the Rights Agent shall manually
countersign and deliver such Rights Certificates to the holders of the
Rights pursuant to subsection 3.1(c). No Rights Certificate shall be valid
for any purpose until countersigned by the Rights Agent as aforesaid.
(c) Each Rights Certificate shall be dated the date of the countersignature
thereof.
2.3 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
(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
the "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 Registrar 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 (c) of this section 2.3, the Corporation will execute, and the
Rights Agent will manually 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.
(b) All Rights issued upon any registration of transfer or exchange of Rights
Certificates shall be valid obligations of 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.
(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
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issuance of any new Rights Certificate under this section 2.3, 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)
in connection therewith.
2.4 MUTILATED, DESTROYED, LOST AND STOLEN RIGHTS CERTIFICATES
(a) If any mutilated Rights Certificate is surrendered to the Rights Agent
prior to the Expiration Time, the Corporation shall execute and the Rights
Agent shall manually countersign and deliver in exchange therefor a new
Rights Certificate evidencing the same number of Rights as the Rights
Certificate so surrendered.
(b) If there shall be delivered to the Corporation and the Rights Agent prior
to the Expiration Time: (i) evidence to their satisfaction of the
destruction, loss or theft of any Rights Certificate; and (ii) such
security or indemnity as may be required by them to save each of them and
any of their agents harmless, then, in the absence of notice to the
Corporation or the Rights Agent that such Rights Certificate has been
acquired by a bona fide purchaser, the Corporation shall execute and upon
its request the Rights Agent shall countersign and deliver, in lieu of any
such destroyed, lost or stolen Rights Certificate, a new Rights
Certificate evidencing the same number of Rights as did the Rights
Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate under this
section 2.4, 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) in connection therewith.
(d) Every new Rights Certificate issued pursuant to this section 2.4 in lieu
of any destroyed, lost or stolen Rights Certificate shall evidence the
contractual obligation of the Corporation, whether or not the destroyed,
lost or stolen Rights Certificate shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Agreement
equally and proportionately with any and all other Rights duly issued by
the Corporation.
2.5 PERSONS DEEMED OWNERS OF RIGHTS
The Corporation, the Rights Agent and any agent of the Corporation or the Rights
Agent may deem and treat the Person in whose name such 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. As used in this Agreement, unless the context otherwise
requires, the term "holder" of any Rights shall mean the registered holder of
such Rights (or, prior to the Separation Time, the associated Common Shares).
2.6 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
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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 for in this section 2.6, 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.
2.7 AGREEMENT OF RIGHTS HOLDERS
Every holder of Rights by accepting the same consents and agrees with the
Corporation and the Rights Agent and with every other holder of Rights:
(a) to be bound by and subject to the provisions of this Agreement, as amended
from time to time in accordance with the terms hereof, in respect of the
Rights held;
(b) that prior to the Separation Time, each Right will be transferable only
together with, and will be transferred by a transfer of, the associated
Common Share certificate representing such Right;
(c) that after the Separation Time, the Rights Certificates will be
transferable only upon registration of the transfer on the Rights Register
as provided herein;
(d) that prior to due presentment of a Rights Certificate (or, prior to the
Separation Time, the associated Common Share certificate) for registration
of transfer, the Corporation, the Rights Agent and any agent of the
Corporation or the Rights Agent may deem and treat the Person in whose
name the Rights Certificate (or, prior to the Separation Time, the
associated Common Share certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations
of ownership or writing on such Rights Certificate or the associated
Common Share certificate made by anyone other than the Corporation or the
Rights Agent) for all purposes whatsoever, and neither the Corporation nor
the Rights Agent shall be affected by any notice to the contrary;
(e) that such holder of Rights has waived his right to receive any fractional
Rights or any fractional Common Shares upon exercise of a Right (except as
provided herein); and
(f) that 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.
2.8 RIGHTS CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER
No holder, as such, of any Right or Rights Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose whatsoever the holder of
any Common Share which may at any time be issuable on the exercise of such
Right, 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, titles, benefits or privileges of a
shareholder 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 any Common
- 18 -
Shares 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 shareholder of the Corporation except as expressly provided herein, or to
receive dividends, distributions or subscription rights, or otherwise, until the
Right or Rights evidenced by any Rights Certificate shall have been duly
exercised in accordance with the terms and provisions hereof.
ARTICLE 3
EXERCISE OF THE RIGHTS
3.1 INITIAL EXERCISE PRICE; EXERCISE OF RIGHTS; DETACHMENT OF RIGHTS
(a) Subject to adjustment as herein set forth, from and after the Separation
Time and prior to the Expiration Time, each Right will entitle the holder
thereof to purchase one Common Share for the Exercise Price (which
Exercise Price and number of Common Shares are subject to adjustment as
set forth below).
(b) Until the Separation Time:
(i) the Rights shall not be exercisable and no Right may be exercised;
and
(ii) each Right will be evidenced by the certificate 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:
(i) the Rights shall be exercisable; and
(ii) the registration and transfer of the Rights shall be separate from
and independent of Common Shares.
Promptly following the Separation Time, the Rights Agent will mail to each
holder of record of Common Shares as of the Separation Time, the Rights
Agent will mail to the holders so converting (other than an Acquiring
Person and other than, 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 by the records of the Corporation (and the Corporation
hereby agrees to furnish copies of such records to the Rights Agent for
this purpose):
(iii) a Rights Certificate representing the number of Rights held by such
holder at the Separation Time in substantially the form of Exhibit A
hereto, appropriately completed 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
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thereto or with any rule or regulation of any stock exchange or
quotation system on which the Rights may from time to time be listed
or traded, or to conform to usage; and
(iv) a disclosure statement describing the Rights;
provided that a Nominee shall be sent the materials provided for in
clauses (iii) and (iv) only 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:
(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 duly
completed and 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 in cash, or by certified cheque, banker's draft or money
order payable to the order of the Corporation, of a sum equal to the
applicable 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 the relevant Common Shares in a name
other than that of the holder of the Rights being exercised.
(e) Upon receipt of the Rights Certificate which is accompanied by a completed
Election to Exercise that does not indicate that such Right is null and
void as provided by subsection 4.1(b) and payment as set forth in
subsection 3.1(d), the Rights Agent (unless otherwise instructed by the
Corporation in the event that the Corporation is of the opinion that the
Rights cannot be exercised in accordance with this Agreement) will
thereupon promptly:
(i) requisition from a transfer agent for the relevant Common Shares,
certificates representing the number of such Common Shares to be
purchased (the Corporation hereby irrevocably authorizing its
transfer agents to comply with all such requisitions);
(ii) when appropriate, requisition from the Corporation the amount of
cash to be paid in lieu of issuing fractional Common Shares;
- 20 -
(iii) after receipt of such Common Share certificate, deliver the same to
or to the order of the registered holder of such Rights Certificate,
registered in such name or names as may be designated by such
holder;
(iv) when appropriate, after receipt, deliver such cash referred to in
clause (ii) above to or to the order of the registered holder of the
Rights Certificate; and
(v) tender to the Corporation all payments received on exercise of the
Rights.
(f) In case the holder of any Rights shall exercise less than all the Rights
evidenced by such holder's Rights Certificate, a new Rights Certificate
evidencing the Rights remaining unexercised will be issued by the Rights
Agent to such holder or to such holder's duly authorized assigns.
(g) The Corporation covenants and agrees that it will:
(i) take all such action as may be necessary and within its power to
ensure that all Common Shares delivered upon exercise of Rights
shall, at the time of delivery of the certificates representing such
Common Shares (subject to payment of the Exercise Price), be duly
and validly authorized, issued and delivered as fully paid and
non-assessable;
(ii) take all such action as may be necessary and within its power to
comply with any applicable requirements of the Company Act, the
Securities Act (British Columbia) and the Securities Acts or
comparable legislation of each of the other provinces of Canada and
any other applicable law, rule or regulation, in connection with the
issuance and delivery of the Rights Certificate's and the issuance
of any Common Shares upon exercise of Rights;
(iii) use reasonable efforts to cause all Common Shares issued upon
exercise of Rights to be listed on the principal exchanges on which
the Common Shares were traded immediately prior to the Stock
Acquisition Date;
(iv) cause to be reserved and kept available out of its authorized and
unissued Common Shares the number of Common Shares that, as provided
in this Agreement, will from time to time be sufficient to permit
the exercise in full of all outstanding Rights; and
(v) pay when due and payable any and all federal and provincial transfer
taxes (for greater certainty, not including any income taxes of the
holder or exercising holder or any liability of the Corporation to
withhold tax) which may be payable in respect of the original
issuance or delivery of the Rights Certificates, provided that the
Corporation shall not be required to pay any transfer tax or charge
which may be payable in respect of any transfer involved in the
transfer or delivery of Rights Certificates or the issuance or
delivery of certificates for Common Shares in a name other than that
of the holder of the Rights being transferred or exercised.
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3.2 ADJUSTMENTS TO EXERCISE PRICE; NUMBER OF RIGHTS
The Exercise Price, the number of Common Shares or other securities subject to
purchase upon the exercise of each Right and the number of Rights outstanding
are subject to adjustment from time to time as provided in this section 3.2.
(a) In the event the Corporation shall at any time after the Record Time and
prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares payable in Common
Shares (or other securities exchangeable for or convertible into or
giving a right to acquire Common Shares) other than pursuant to any
dividend reinvestment program;
(ii) subdivide or change the outstanding Common Shares into a greater
number of Common Shares;
(iii) combine or change the outstanding Common Shares into a smaller
number of Common Shares; or
(iv) issue any Common Shares (or other securities exchangeable for or
convertible into or giving a right to acquire Common Shares) in
respect of, in lieu of or in exchange for existing Common Shares,
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 exercised after such time 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. If an event occurs
which would require an adjustment under both this section 3.2 and section
4.1, the adjustment provided for in this section 3.2 shall be in addition
to, and shall be made prior to, any adjustment required pursuant to
section 4.1.
(b) In case 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 to
subscribe for or purchase (for a period expiring within 45 calendar days
after such record date) Common Shares (or shares having the same rights,
privileges and preferences as Common Shares ("equivalent common shares"))
or securities convertible into Common Shares or equivalent common shares
at a price per Common Share or per equivalent common share (or having a
conversion price per share, if a security convertible into Common Shares
or equivalent common shares) less than 90% of the Market Price per Common
Share on 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: (i) the numerator of which shall be
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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 price of the convertible
securities so to be offered) would purchase at such Market Price per
Common Share; and (ii) 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 securities so to
be offered are initially convertible). 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 the Rights. Such adjustment
shall be made successively whenever such a record date is fixed and, in
the event that such rights or warrants are not so issued, the Exercise
Price in respect of the Rights shall be re-adjusted to be the Exercise
Price which would then be in effect if such record date had not been
fixed.
(c) For 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.
(d) In case the Corporation shall at any time after the Record Time and prior
to the Expiration Time fix a record date for 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) of
evidences of indebtedness or assets, including cash (other than a dividend
paid in the ordinary course or a dividend paid in Common Shares, but
including any dividend payable in securities other than Common Shares), or
subscription rights or warrants entitling them to subscribe for or
purchase Common Shares (excluding those referred to in subsection 3.2(b))
at a price per Common Share that is less than 90% of the Market Price per
Common Share on 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: (i) 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 the Rights) of the portion of the cash, assets or evidences of
indebtedness so to be distributed or of such subscription rights or
warrants applicable to a Common Share; and (ii) the denominator of which
shall be such Market Price per Common Share. Such adjustments shall be
made successively whenever such a record date is fixed and, in the event
that such distribution is not so made, the Exercise Price in respect of
the Rights shall be adjusted to be the Exercise Price in respect of the
Rights which would have been in effect if such record date had not been
fixed.
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(e) Notwithstanding anything herein to the contrary, no adjustment in an
Exercise Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in such Exercise Price; provided,
however, that any adjustments which by reason of this subsection 3.2(e)
are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this section
3.2 shall be made to the nearest cent or to the nearest ten-thousandth of
a Common Share or other share, as the case may be. Notwithstanding the
first sentence of this subsection 3.2(e), any adjustment required by this
section 3.2 shall be made no later than the earlier of: (i) three years
from the date of the transaction which mandates such adjustment; and (ii)
the Expiration Time.
(f) If as a result of an adjustment made pursuant to section 4.1 or 4.2, 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
3.2, and the provisions of this Agreement with respect to the Common
Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Corporation subsequent to any
adjustment made to an Exercise Price hereunder shall evidence the right to
purchase, at the adjusted Exercise Price, the respective number of Common
Shares, as the case may be, purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as provided
herein.
(h) Unless the Corporation shall have exercised its election as provided in
subsection 3.2(i), upon each adjustment of an Exercise Price as a result
of the calculations made in subsections 3.2(b) and (d), 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:
(i) multiplying:
(A) the number of such Common Shares which would have been
issuable upon the exercise of a Right immediately prior to
this adjustment; by
(B) the relevant Exercise Price in effect immediately prior to
such adjustment of the relevant Exercise Price; and
(ii) dividing the product so obtained by the relevant Exercise Price in
effect immediately after such adjustment of the relevant Exercise
Price.
(i) 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
- 24 -
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 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 3.2(i), 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 6.4, 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.
(j) Irrespective of any adjustment or change in an Exercise Price or the
number of Common Shares issuable upon the exercise of the Rights, the
Rights Certificates theretofore and thereafter issued may continue to
express the relevant Exercise Price per Common Share and the number of
Common Shares which were expressed in the initial Rights Certificates
issued hereunder.
(k) In any case in which this section 3.2 shall require that an adjustment in
an 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 relevant 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.
(l) Notwithstanding anything in this section 3.2 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
3.2, as and to the extent that in its good faith judgment the Board of
Directors shall determine to be advisable in order that any: (i)
consolidation or subdivision of Common Shares; (ii) issuance wholly for
cash of any Common Share or
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securities that by their terms are convertible into or exchangeable for
Common Shares; (iii) stock dividends; or (iv) issuance of rights, options
or warrants referred to in this section 3.2, hereafter made by the
Corporation to holders of its Common Shares, shall not be taxable to such
shareholders.
(m) The Corporation covenants and agrees that, after the Separation Time, it
will not, except as permitted by section 6.1 or 6.5, 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.
3.3 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 Share 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 relevant 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 relevant Common Share transfer books of the
Corporation are closed, such Person shall be deemed to have become the holder of
record of such Common Shares on, and such certificate shall be dated, the next
succeeding Business Day on which the relevant Common Share transfer books of the
Corporation are open.
ARTICLE 4
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
4.1 FLIP-IN EVENT
(a) Subject to subsection 4.1(b) and subsections 6.1(b), (c) and (d), in the
event that prior to the Expiration Time a Flip-in Event shall occur, each
Right shall constitute, effective on and after the later of its date of
issue and the close of business on the eighth Trading Day following the
Stock Acquisition Date, the right to purchase from the Corporation, upon
payment of the relevant Exercise Price and otherwise exercising such Right
in accordance with the terms hereof, that number of Common Shares being
the lesser of
(i) 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 relevant Exercise Price for an amount in cash equal to the
relevant Exercise Price (such right to be appropriately adjusted in
a manner analogous to the applicable adjustments provided for in
section 3.2 upon each occurrence after the Stock Acquisition Date of
any event analogous to any of the events described in section 3.2);
and
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(ii) that proportionate number of Common Shares issuable upon exercise of
all the Rights which, when added to the total number of allotted
Common Shares, equal the number of authorized Common Shares at that
time.
(b) Notwithstanding anything in this Agreement to the contrary, upon the
occurrence of any Flip-in Event, any Rights that are or were Beneficially
Owned on or after the earlier of the Separation Time and the Stock
Acquisition Date by: (i) an Acquiring Person (or any Affiliate or
Associate of an Acquiring Person or any Person acting jointly or in
concert with an Acquiring Person or any Affiliate or Associate of an
Acquiring Person); or (ii) a transferee or other successor in title,
directly or indirectly, (a "Transferee") 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 any Affiliate or
Associate of an Acquiring Person) who becomes a Transferee concurrently
with or Subsequent to the Acquiring Person becoming an Acquiring Person in
a transfer that the Board of Directors has determined is part of a plan,
arrangement 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 any Affiliate or Associate of an
Acquiring Person), that has the purpose or effect of avoiding clause
4.1(b)(i) shall become null and void without any further action, and any
holder of such Rights (including any Transferee) shall not have any right
whatsoever to exercise such Rights under any provision of this Agreement
and shall not have thereafter any other rights whatsoever with respect to
such Rights, whether under any provision of this Agreement or otherwise.
(c) In the event that there shall not be sufficient Common Shares authorized
for issuance to permit the exercise in full of the Rights in accordance
with clause 4.1(a)(i), the Corporation shall take all such reasonable
action it considers prudent to authorize additional Common Shares for
issuance upon the exercise of the Rights, subject to the ability of the
Corporation to give notice of a shareholders meeting within the time
periods specified by legislation and by regulatory authorities.
(d) 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 4.1, including without limitation, all
such acts and things as may be required to satisfy the requirements of the
Company Act and the Securities Act (British Columbia) or comparable
legislation of any other applicable jurisdiction in respect of the issue
of Common Shares upon the exercise of Rights in accordance with this
Agreement.
ARTICLE 5
THE RIGHTS AGENT
5.1 GENERAL
(a) The Corporation hereby appoints the Rights Agent to act as agent for the
Corporation and the holders of Rights in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment.
The Corporation may from time to time appoint one or more Co-Rights Agents
as it may deem necessary or desirable. In the event
- 27 -
the Corporation appoints one or more Co-Rights Agents, the respective
duties of the Rights Agents and Co-Rights Agents shall be as the
Corporation may determine. The Corporation also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss, liability or
expense, incurred without negligence, bad faith or wilful misconduct on
the part of the Rights Agent, for anything done or omitted by the Rights
Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against any claim
of liability, which right to indemnification will survive the termination
of this Agreement.
(b) The Rights Agent shall be protected and shall incur no liability for or in
respect of any action taken, suffered or omitted by it in connection with
its administration of this Agreement in reliance upon any certificate for
Common Shares, Rights Certificate, certificate for other securities of the
Corporation, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement or other paper or document believed by it to be genuine and to
be signed, executed and, where necessary, verified or acknowledged, by the
proper Person or Persons.
5.2 MERGER OR AMALGAMATION OR CHANGE OF NAME OF RIGHTS AGENT
(a) Any corporation into which the Rights Agent or any successor Rights Agent
may be merged or amalgamated or with which it may be consolidated, or any
corporation resulting from any merger, amalgamation or consolidation to
which the Rights Agent or any successor Rights Agent is a party, or any
corporation succeeding to the shareholder or stockholder services business
of the Rights Agent or any successor Rights Agent, will be the successor
to the Rights Agent under this Agreement without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment as a
successor Rights Agent under the provisions of section 5.4 hereof. In case
at the time such successor Rights Agent succeeds to the agency created by
this Agreement any of the Rights Certificates have been countersigned but
not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates have not been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor
Rights Agent or in the name of the successor Rights Agent; and in all such
cases such Rights Certificates will have the full force provided in the
Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is changed and at such
time any of the Rights Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Rights Certificates so countersigned; and in case at that
time any of the Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in its prior
name or in its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates
and in this Agreement.
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5.3 DUTIES OF RIGHTS AGENT
The Rights Agent undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the Corporation and the
holders of Rights Certificates, by their acceptance thereof, shall be bound:
(a) the Rights Agent may consult with legal counsel (who may be legal counsel
for the Corporation) and the opinion of such counsel will be full and
complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion;
(b) whenever in the performance of its duties under this Agreement the Rights
Agent deems it necessary or desirable that any fact or matter be proved or
established by the Corporation prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof
be herein specifically prescribed) may be deemed to be conclusively proved
and established by a certificate signed by a Person believed by the Rights
Agent to be the Chairman of the Board, the President or any Vice-President
and by the Treasurer or any Assistant-Treasurer or the Secretary or any
Assistant-Secretary of the Corporation and delivered to the Rights Agent;
and such certificate will be full authorization to the Rights Agent for
any action taken or suffered in good faith by it under the provisions of
this Agreement in reliance upon such certificate;
(c) the Rights Agent will be liable hereunder only for its own negligence, bad
faith or wilful misconduct;
(d) the Rights Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the
certificates for Common Shares or the Rights Certificates (except its
countersignature thereof) or be required to verify the same, but all such
statements and recitals are and will be deemed to have been made by the
Corporation only;
(e) the Rights Agent will not be under any responsibility in respect of the
validity of this Agreement or the execution and delivery hereof (except
the due authorization, execution and delivery hereof by the Rights Agent)
or in respect of the validity or execution of any Common Share certificate
or Rights Certificate (except its countersignature thereof); nor will it
be responsible for any breach by the Corporation of any covenant or
condition contained in this Agreement or in any Rights Certificate; nor
will it be responsible for any change in the exercisability of the Rights
(including the Rights becoming void pursuant to subsection 4.1(b)) or any
adjustment required under the provisions of section 3.2 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 3.2 describing any such adjustment); nor will it
by any act hereunder be deemed to make any representation or warranty as
to the authorization of any Common Shares to be issued pursuant to this
Agreement or any Rights or as to whether any Shares will, when issued, be
duly and validly authorized, executed, issued and delivered as fully paid
and non-assessable;
- 29 -
(f) the Corporation agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement;
(g) the Rights Agent is hereby authorized and directed to accept instructions
with respect to the performance of its duties hereunder from any Person
believed by the Rights Agent to be the Chairman of the Board, the
President, any Vice-President or the Secretary or any Assistant-Secretary
or the Treasurer or any Assistant-Treasurer of the Corporation, and to
apply to such Persons for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered by it
in good faith in accordance with instructions of any such Person;
(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; and
(1) 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 the selection and continued employment thereof.
5.4 CHANGE OF RIGHTS AGENT
The Rights Agent may resign and be discharged from its duties under this
Agreement upon 90 days' notice in writing (or such lesser notice as is
acceptable to the Corporation) mailed to the Corporation and to each transfer
agent of Common Shares by registered or certified mail, and to the holders of
the Rights in accordance with section 6.8. The Corporation may remove the Rights
Agent upon 30 days' notice in writing, mailed to the Rights Agent and to each
transfer agent of the Common Shares by registered or certified mail, and to the
holders of the Rights in accordance with section 6.8. 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 holder of any Rights may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Corporation or by such a court, shall be a
corporation incorporated under the laws of Canada or a province thereof
authorized to carry on the business of a trust company in the Province of
British Columbia. After appointment, the successor Rights Agent will be vested
with the same powers, rights, duties and
- 30 -
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent 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 each transfer agent of the Common Shares, and mail a notice thereof in
writing to the holders of the Rights. Failure to give any notice provided for in
this section 5.4, 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 6
MISCELLANEOUS
6.1 REDEMPTION AND WAIVER
(a) Until the close of business or the eighth Trading Day after the occurrence
of a Flip-in Event as to which the application of section 4.1 has not been
waived pursuant to this section 6.1, the Board of Directors may, with the
prior consent of the holders of the Voting Shares or the holders of Rights
given in accordance with subsection 6.1(i) or 6.1(j), as the case may be,
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 3.2,
if an event of the type analogous to any of the events described in
section 3.2 shall have occurred (such redemption price being herein
referred to as the "Redemption Price").
(b) Until the occurrence of a Flip-in Event as to which the application of
section 4.1 has not been waived pursuant to this section 6.1, upon written
notice to the Rights Agent, the Board of Directors may, with the prior
consent of the holders of Voting Shares or the holders of Rights given in
accordance with subsection 6.1(i) or 6.1(j), as the case may be, determine
to waive the application of section 4.1 to any Flip-in Event which would
occur by reason of an acquisition of Voting Shares otherwise than pursuant
to a Take-over Bid made by way of Take-over Bid circular to all holders of
Voting Shares and otherwise than in the circumstances set forth in
subsection 6.1(d); provided that, in the event that the Board of Directors
proposes such a waiver, it shall, if prior to the Separation Time, extend
the Separation Time to a date subsequent to and not more than 10 Business
Days following the meeting called to approve such waiver.
(c) Until the occurrence of a Flip-in Event as to which the application of
section 4.1 has not been waived pursuant to this section 6.1, upon written
notice delivered to the Rights Agent, the Board of Directors may determine
to waive the application of section 4.1 to any Flip-in Event which would
result from a Take-over Bid made by way of Take-over Bid circular to all
holders of Voting Shares; provided that if the Board of Directors waives
the application of section 4.1 to such Flip-in Event pursuant to this
subsection 6.1(c), the Board of Directors shall be deemed to have waived
the application of section 4.1 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
- 31 -
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 6.1(c).
(d) Notwithstanding the provisions of subsections 6.1(b) and 6.1(c) hereof,
the Board of Directors may waive the application of section 4.1 in respect
of any Flip-in Event, provided that both of the following conditions are
satisfied:
(i) the Board of Directors has determined within eight Trading Days
following the Stock Acquisition Date that the 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 Person has reduced its Beneficial Ownership of Voting Shares
such that, at the time of the granting of a waiver pursuant to this
subsection 6.1(d), such Person is no longer an Acquiring Person,
and, in the event of any such waiver, for the purposes of this Agreement,
neither such Flip-in Event nor the Separation Time shall be deemed to have
occurred.
(e) 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
Take-over Bid in respect of which the Board of Directors has waived or is
deemed to have waived pursuant to subsection 6.1(c), the application of
section 4.1, 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.
(f) Where a Take-over Bid that is not a Permitted Bid is withdrawn or
otherwise terminated after the Separation Time has occurred and prior to
the occurrence of a Flip-in Event, the Board of Directors may elect to
redeem all the outstanding Rights at the Redemption Price. Upon the Rights
being redeemed pursuant to this subsection 6.1(f) and subsection 6.1(g),
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.
(g) If the Rights are redeemed in accordance with this section 6.1, 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.
(h) Within 10 days after the election or deemed election to redeem the Rights
in accordance with this section 6.1, the Corporation shall give notice of
redemption to the holders of the then outstanding Rights by mailing such
notice to each such holder at his last address as it appears upon the
registry books of the Rights Agent 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
- 32 -
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 6.1 or
in section 6.4, and other than in connection with the purchase of Common
Shares prior to the Separation Time.
(i) If a redemption pursuant to subsection 6.1(a) or a waiver pursuant to
subsection 6.1(b) is proposed at any time prior to the Separation Time,
such redemption or waiver shall be submitted for approval to the holders
of Voting Shares. Such approval shall be deemed to have been given if
authorized by a majority of the votes cast by Independent Shareholders
present in person or represented by proxy at a meeting of such holders
duly called and held in compliance with applicable laws and with the
articles of the Corporation.
(j) If a redemption pursuant to subsection 6.1(a) or a waiver pursuant to
subsection 6.1(b) is proposed at any time on or after the Separation Time,
such redemption shall be submitted for approval to the holders of Rights.
Such approval shall be deemed to have been given if authorized by a
majority of the votes cast by the holders of Rights present in person or
represented by proxy at a meeting of such holders duly called and held.
For the purposes hereof, each outstanding Right (other than Rights which
are Beneficially Owned by any Person referred to in clauses (i) to (v)
inclusive of the definition of Independent Shareholders) shall be entitled
to one vote and the procedures for the calling, holding and conduct of a
meeting of holders of Rights shall be those as nearly as may be possible,
which are provided in the Corporation's articles and the Company Act (or
such other corporate statute that the corporation may become subject to)
with respect to meetings of shareholders of the Corporation.
6.2 EXPIRATION
No Person shall have any rights pursuant to this Agreement or in respect of any
Right after the Expiration Time, except the Rights Agent as specified in section
5.1.
6.3 ISSUANCE OF NEW RIGHTS CERTIFICATE
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.
6.4 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. In lieu
of such fractional Rights, there shall be paid to the registered holders
of the Rights Certificates with regard to which such fractional Right
would otherwise be issuable, an amount in cash equal to the fraction of
the Market Price of a whole Right that the fraction of a Right which would
otherwise be issuable is of one whole Right.
- 33 -
(b) The Corporation shall not be required to issue fractions of 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 a whole Common Share
that the fraction of a Common Share which would otherwise be issuable upon
the exercise of such right is of one whole Common Share at the date of
such exercise.
6.5 SUPPLEMENTS AND AMENDMENTS
(a) The Corporation may make amendments to this Agreement to correct any
clerical or typographical error or which are required to maintain the
validity of this Agreement as a result of any change in any applicable
legislation, rules or regulations thereunder. The Corporation may, at or
prior to the meeting of shareholders of the Corporation referred to in
Section 6.15, or any adjournment thereof, to be held for shareholders of
the Corporation to consider and, if deemed advisable, to adopt a
resolution approving, ratifying and confirming this Agreement and the
Rights issued pursuant thereto 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 acting in good faith may deem
necessary or desirable. Notwithstanding anything in this section 6.5 to
the contrary, no such supplement or amendment shall be made to the
provisions of Article 5 except with the written concurrence of the Rights
Agent to such supplement or amendment and the approval of applicable
regulatory bodies.
(b) Subject to subsection 6.5(a) and receipt of applicable regulatory
approval, the Corporation may, with the prior consent of the holders of
Voting Shares obtained as set forth below, at any time prior to the
Separation Time, amend, vary or rescind any of the provisions of this
Agreement and the Rights (whether or not such action would materially
adversely affect the interests of the holders of Rights generally). Such
consent shall be deemed to have been given if the action requiring such
approval is authorized by the affirmative vote of a majority of the votes
cast by Independent Shareholders present or represented at and entitled to
be voted at a meeting of the holders of Voting Shares duly called and held
in compliance with applicable laws and the articles and/or by-laws (as the
case may be) of the Corporation.
(c) Subject to subsection 6.5(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 5 except with the written concurrence of the Rights Agent thereto.
(d) Any approval of the holders of Rights shall be deemed to have been given
if the action requiring such approval is authorized by the affirmative
votes of the holders of Rights present or represented at and entitled to
be voted at a meeting of the holders of Rights and representing a majority
of the votes cast in respect thereof. For the purposes hereof, each
outstanding Right (other than Rights which are void pursuant to the
provisions hereof)
- 34 -
shall be entitled to one vote, and the procedures for the calling, holding
and conduct of the meeting shall be those, as nearly as may be, which are
provided in the Corporation's articles and/or by-laws, as the case may be,
and the Company Act with respect to meetings of shareholders of the
Corporation.
(e) Any amendments made by the Corporation to this Agreement pursuant to
subsection 6.5(a) which are required to maintain the validity of this
Agreement as a result of any change in any applicable legislation , rule
or regulation thereunder shall:
(i) if made before the Separation Time, be submitted to the shareholders
of the Corporation at the next meeting of shareholders and the
shareholders may, by the majority referred to in subsection 6.5(b),
confirm or, reject such amendment; and
(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 of the
Corporation and the holders of Rights may, by resolution passed by
the majority referred to in subsection 6.5(d), confirm or reject
such amendment.
Any such amendment shall be effective from the date of the resolution of
the Board of Directors adopting such amendment, until it is confirmed or
rejected or until it ceases to be effective (as described in the next
sentence) and, where such amendment is confirmed, it continues in effect
in the form so confirmed. If such amendment is rejected by the
shareholders or the holders of Rights or is not submitted to the
shareholders or holders of Rights as required, then such amendment shall
cease to be effective from and after the termination of the meeting at
which it was rejected or to which it should have been but was not
submitted or from and after the date of the meeting of holders of Rights
that should have been but was not held, and no subsequent amendment to
this Agreement to substantially the same effect shall be effective until
confirmed by the shareholders or holders of Rights, as the case may be.
6.6 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 holders of the Rights; and any holder of any Rights,
without the consent of the Rights Agent or of the holder of any other Rights,
may, on such holder's own behalf and for such holder's own benefit and the
benefit of other holders of Rights, enforce, and may institute and maintain any
suit, action or proceeding against the Corporation to enforce, or otherwise act
in respect of, such holder's right to exercise such holder's Rights 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.
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6.7 NOTICE OF PROPOSED ACTIONS
In case the Corporation shall propose after the Separation Time and prior to the
Expiration Time:
(a) to effect or permit (in cases where the Corporation's permission is
required) any Flip-in Event; or
(b) to effect the liquidation, dissolution or winding-up of the Corporation or
the sale of all or substantially all of the Corporation's assets,
then, in each such case, the Corporation shall give to each holder of a Right,
in accordance with section 6.8, a notice of such proposed action, which shall
specify the date on which such Flip-in Event, liquidation, dissolution or
winding-up is to take place, and such notice shall be so given at least 20
Business Days prior to the date of taking such proposed action.
6.8 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) as follows:
Angiotech Pharmaceuticals, Inc.
0000 X.X. Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Corporate Secretary
Any notice or demand authorized or required by this Agreement to be given or
made by the Corporation or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if delivered or sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with the
Corporation) to the address of the Rights Agent as provided to the Corporation
from time to time.
Notices or demands authorized or required by this Agreement to be given or made
by the Corporation or the Rights Agent to or on the holder of any Rights shall
be sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as it appears
upon the registry books of the Rights Agent or, prior to the Separation Time, on
the registry books of the Corporation 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.
6.9 COSTS OF ENFORCEMENT
The Corporation agrees that if it or any other Person the securities of which
are purchasable upon exercise of Rights fails to fulfill 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 legal fees)
incurred by such holder in actions to enforce his rights pursuant to any Rights
or this Agreement.
- 36 -
6.10 SUCCESSORS
All the covenants and provisions of this Agreement by or for the benefit of the
Corporation or the Rights Agent shall bind and enure to the benefit of their
respective successors and assigns hereunder.
6.11 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; but this Agreement shall
be for the sole and exclusive benefit of the Corporation, the Rights Agent and
the holders of the Rights.
6.12 GOVERNING LAW
This Agreement and each Right issued hereunder shall be deemed to be a contract
made under the laws of the Province of British Columbia 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.
6.13 COUNTERPARTS
This Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
6.14 SEVERABILITY
If any section, subsection, clause, subclause, term or provision hereof or the
application thereof to any circumstance shall, in any jurisdiction and to any
extent, be invalid or unenforceable, such section, subsection, clause,
subclause, term or provision shall be ineffective as to such jurisdiction to the
extent of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining sections, subsections, clauses, subclauses, terms
and provisions hereof or the application of such section, subsection, clause,
subclause, term or provision to circumstances other than those as to which it is
held invalid or unenforceable.
6.15 EFFECTIVE DATE
This Agreement is in full force and effect in accordance with its terms from the
date hereof. At the next annual general meeting of shareholders of the
Corporation, the Corporation shall request confirmation of this Agreement by the
holders of its Voting Shares. If this Agreement is not confirmed by a majority
of votes cast by holders of Voting Shares who vote in respect of the
confirmation of this Agreement at such meeting to be held not later than July
30, 1999, then this Agreement and all outstanding Rights shall terminate and be
void and of no further force and effect on and from the close of business from
the earlier of (a) the date of termination of such meeting; and (b) July 30,
1999.
- 37 -
6.16 RIGHTS OF BOARD, CORPORATION AND OFFEROR
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 of the Corporation 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 shareholders of the Corporation) with respect to any
Take-over Bid that the Board of Directors believes is necessary or appropriate
in the exercise of its fiduciary duties.
6.17 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, shall not subject the Board of Directors or any director of the
Corporation to any liability to the holders of the Rights.
6.18 TIME OF THE ESSENCE
Time shall be of the essence in this Agreement.
6.19 REGULATORY APPROVALS
Any obligation of the Corporation or action contemplated by this Agreement,
including any amendment hereof, shall be subject to the receipt of any requisite
approval or consent from any applicable regulatory authority including, without
limiting the generality of the foregoing, any necessary approvals of The Toronto
Stock Exchange or any other stock exchange.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
ANGIOTECH PHARMACEUTICALS, INC.
by: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------------
Chief Executive Officer and Chairman of the Board
-------------------------------------------------
COMPUTERSHARE TRUST COMPANY OF CANADA
by: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Account Manager
-----------------------------------
by: /s/ Xxxxxx Xxxxx
-----------------------------------
Account Manager
-----------------------------------
EXHIBIT A
FORM OF RIGHTS CERTIFICATE
CERTIFICATE NO.___________ ____________RIGHTS
RIGHTS CERTIFICATE
This certifies that _____________________ is the registered holder of the number
of Rights set forth above, each of which entitles the registered holder thereof,
subject to the terms, provisions and conditions of the Shareholder Rights Plan
Agreement made as of the ____ day of February, 1999, as amended (the "Rights
Agreement") between Angiotech Pharmaceuticals, Inc., a corporation incorporated
under the laws of British Columbia (the "Corporation") and Computershare Trust
Company of Canada, being a trust company incorporated under the laws of Canada,
as rights agent (the "Rights Agent", which term shall include any successor
Rights Agent under the Rights Agreement) to purchase from the Corporation at any
time after the Separation Time and prior to the Expiration Time (as such terms
are defined in the Rights Agreement), one fully paid Common Share of the
Corporation (a "Common Share") at the Exercise Price referred to below, upon
presentation and surrender of this Rights Certificate together with the Form of
Election to Exercise and Declaration of Ownership duly executed and submitted to
the Rights Agent at its principal office in the city of Vancouver. The Exercise
Price shall initially be $100.00 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, each Right evidenced
hereby may entitle the registered holder thereof to purchase or receive assets,
debt securities or shares in the capital of the Corporation other than Common
Shares, or more or less than one Common Share, all as provided in the Rights
Agreement.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Rights Agent, the Corporation and the holders of the Rights Certificates. Copies
of the Rights Agreement are on file at the registered office of the Corporation
and are available upon written request.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at any of the offices of the Rights Agent designated for such purpose,
may be exchanged for another Rights Certificate or Rights Certificates of like
tenor and date evidencing an aggregate number of Rights equal to the aggregate
number of Rights evidenced by the Rights Certificate or Rights Certificates
surrendered. If this Rights Certificate shall be exercised in part, the
registered holder shall be entitled to receive, upon surrender hereof, another
Rights Certificate or Rights Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by this
Rights Certificate (i) may be, and under certain circumstances are required to
be, redeemed by the Corporation at a redemption price of $0.00001 per Right and
(ii) may be exchanged at the option of the Corporation for cash, debt or equity
securities or other assets of the Corporation.
- 2 -
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 or
receive dividends or be deemed for any purpose the holder of Common Shares or of
any other shares 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, as such, any of the rights of a
shareholder of the Corporation or any right to vote for the election of
directors or upon any matter submitted to shareholders 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 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 manually countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Corporation.
Date:
------------------------------
ANGIOTECH PHARMACEUTICALS, INC.
By:
------------------------------
President
Countersigned:
COMPUTERSHARE TRUST COMPANY OF CANADA
By:
------------------------------
Authorized Signature
FORM OF ELECTION TO EXERCISE
TO: ANGIOTECH PHARMACEUTICALS, 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 Common Shares be issued to:
__________________________________________________________________
Name
__________________________________________________________________
Address
__________________________________________________________________
City and Province
__________________________________________________________________
Social Insurance Number or other taxpayer identification number
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
__________________________________________________________________
Name
__________________________________________________________________
Address
__________________________________________________________________
City and Province
__________________________________________________________________
Social Insurance Number or other taxpayer identification number
Dated:____________________________________
Signature Guaranteed:
_______________________________________
Signature
(Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular,
without alteration or enlargement or
any change whatsoever)
Signature must be guaranteed by a member firm of a recognized stock exchange in
Canada, a registered national securities exchange in the United States, a member
of the Investment Dealers Association of Canada or National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an office
or correspondent in Canada or the United States.
(To be completed if true)
The undersigned hereby represents, for the benefit of the Corporation and 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 (as such
terms are defined in the Rights Agreement).
_______________________________________
Signature
FORM OF ASSIGNMENT
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.
Dated:____________________________________
Signature Guaranteed:
_______________________________________
Signature
(Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular,
without alteration or enlargement or
any change whatsoever)
Signature must be guaranteed by a member firm of a recognized stock exchange in
Canada, a registered national securities exchange in the United States, a member
of the Investment Dealers Association of Canada or National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an office
or correspondent in Canada or the United States.
(To be completed if true)
The undersigned hereby represents, for the benefit of the Corporation and 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 (as defined
in the Rights Agreement).
_______________________________________
Signature
NOTICE
In the event the certification set forth above in the Forms of Assignment and
Election 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 (as defined in the Rights Agreement) and
accordingly such Rights will be null and void.
