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ATTACHMENT - ITEM 19(b)3(c) - SPECIAL WARRANT INDENTURE
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25/03/97-3
INTERNATIONAL URANIUM CORPORATION
AND
MONTREAL TRUST COMPANY OF CANADA
SPECIAL WARRANT INDENTURE
(PRIVATE PLACEMENT)
PROVIDING FOR THE ISSUE OF
SPECIAL WARRANTS
2
TABLE OF CONTENTS
INTERPRETATION.......................................................................................2
Definitions..........................................................................................2
Interpretation not Affected by Headings, etc.........................................................6
Applicable Law.......................................................................................6
ISSUE OF SPECIAL WARRANTS............................................................................6
Issue of Special Warrants............................................................................6
Issue Price..........................................................................................6
Entitlement of Warrantholder.........................................................................6
Adjustments..........................................................................................6
Issue of Common Shares...............................................................................6
Warrantholder not a Shareholder......................................................................6
Special Warrants to Rank Pari Passu..................................................................7
Signing of Warrant Certificates......................................................................7
Certification by the Warrant Agent...................................................................7
Issue in Substitution for Lost Warrant Certificates..................................................7
Replacement of Warrant Certificates..................................................................8
Replacement Adjustment...............................................................................8
Charges for Replacement..............................................................................8
Ownership of Special Warrants........................................................................8
Transfer of Special Warrants.........................................................................9
U.S. Legends.........................................................................................9
Certain Transfers....................................................................................10
Residency Determination..............................................................................11
Entry of Agent in Register...........................................................................11
NOTICE TO WARRANTHOLDERS.............................................................................11
Notice...............................................................................................11
EXERCISE OF SPECIAL WARRANTS.........................................................................12
Method of Exercise of Special Warrants...............................................................12
Completion of Notice of Exercise Form................................................................12
Effect of Exercise of Special Warrants...............................................................13
Subscription for less than Entitlement...............................................................13
Warrant Certificates for Fractions of Common Shares..................................................14
Expiration of Special Warrants.......................................................................14
Cancellation of Surrendered Warrant Certificates.....................................................14
Adjustments in Certain Circumstances.................................................................15
Postponement.........................................................................................17
Notice of Adjustment.................................................................................17
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PURCHASES BY THE COMPANY.............................................................................18
Optional Purchases by the Company....................................................................18
Surrender of Warrant Certificates....................................................................18
COVENANTS OF THE COMPANY.............................................................................18
General Covenants of the Company.....................................................................18
Warrant Agent's Remuneration and Expenses............................................................19
Performance of Covenants by Warrant Agent............................................................20
ENFORCEMENT..........................................................................................20
Suits by Warrantholders, etc.........................................................................20
Immunity of Shareholders, etc........................................................................20
Limitation of Liability..............................................................................20
MEETINGS OF WARRANTHOLDERS...........................................................................20
Right to Convene Meetings............................................................................20
Notice...............................................................................................21
Chairman.............................................................................................21
Quorum...............................................................................................21
Power to Adjourn.....................................................................................21
Show of Hands........................................................................................21
Poll.................................................................................................22
Voting...............................................................................................22
Regulations..........................................................................................22
Company and Warrant Agent may be Represented.........................................................22
Powers Exercisable by Extraordinary Resolution.......................................................23
Extraordinary Resolution.............................................................................23
Powers Cumulative....................................................................................24
Minutes..............................................................................................24
Instruments in Writing...............................................................................25
Binding Effect of Resolutions........................................................................25
Holdings by Company and Warrant Agent Disregarded....................................................25
SUPPLEMENTAL INDENTURES..............................................................................25
Provision for Supplemental Indentures for Certain Purposes...........................................25
Successor Company....................................................................................26
CONCERNING THE WARRANT AGENT.........................................................................26
Trust Indenture Legislation..........................................................................26
Rights and Duties of Warrant Agent...................................................................27
Evidence.............................................................................................27
Experts and Advisers.................................................................................28
Warrant Agent not Required to Give Security..........................................................28
Protection of Warrant Agent..........................................................................28
Replacement of Warrant Agent.........................................................................30
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Conflict of Interest.................................................................................31
Acceptance of Trust..................................................................................31
Actions by Warrant Agent to Protect Interest.........................................................31
Documents, Moneys, etc. Held by Warrant Agent........................................................31
Warrant Agent Not to be Appointed Receiver...........................................................32
Warrant Agent to Exercise Special Warrants...........................................................32
FORM OF WARRANT CERTIFICATES.........................................................................32
Form of Warrant Certificates.........................................................................32
Transfer of Warrants.................................................................................36
ESCROW ARRANGEMENTS..................................................................................40
Net Proceeds and Investment Thereof..................................................................40
Disbursement of Escrowed Funds.......................................................................40
Additional Payments by Company.......................................................................40
Delivery to Third Party Escrow Agent.................................................................41
REGISTER OF WARRANTHOLDERS...........................................................................41
Register of Special Warrants.........................................................................41
Location of Warrant Register.........................................................................41
Validity of Registration.............................................................................41
GENERAL..............................................................................................41
Notice to the Company and the Warrant Agent..........................................................41
Time of the Essence..................................................................................42
Counterparts.........................................................................................42
Satisfaction and Discharge of Indenture..............................................................43
Provisions of Indenture and Warrant Certificates for the Sole Benefit of
Parties and Warrantholders...........................................................................43
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THIS SPECIAL WARRANT INDENTURE dated as of the 26th day of
March, 1997.
B E T W E E N:
INTERNATIONAL URANIUM CORPORATION
a corporation incorporated pursuant to the laws of Ontario,
(hereinafter called the "Company"),
OF THE FIRST PART
-and-
MONTREAL TRUST COMPANY OF CANADA,
a trust company incorporated pursuant to the laws of Canada
(hereinafter called the "Warrant Agent"),
OF THE SECOND PART
WHEREAS the authorized share capital of the Company consists
of an unlimited number of common shares of which 26,500,000 common shares are
issued and outstanding;
AND WHEREAS the Company proposes to issue 40,000,000 special
warrants (the "Special Warrants"), each Special Warrant entitling the holder
thereof to receive one Common Share without further payment upon the terms and
conditions herein set forth;
AND WHEREAS the Company deems it necessary to create and issue
Special Warrants to be constituted and issued in the manner hereinafter
appearing;
AND WHEREAS the Company under the laws relating thereto is
duly authorized to create and issue the Special Warrants to be constituted and
issued as herein provided;
AND WHEREAS the Special Warrants will be evidenced by Special
Warrant certificates;
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AND WHEREAS all things necessary have been or will be done and
performed to make the Special Warrants and the Special Warrant certificates
(when certified by the Warrant Agent and issued as provided in this Indenture)
legal, valid and binding upon the Company with the benefit and subject to the
terms of this Indenture;
AND WHEREAS the Warrant Agent is to hold the net proceeds of
the issuance of the Special Warrants in escrow upon the terms and conditions of
this Agreement;
AND WHEREAS the foregoing recitals are made as representations
and statements of fact by the Company and not by the Warrant Agent;
NOW THEREFORE THIS INDENTURE WITNESSETH that for good and
valuable consideration mutually given and received, the receipt and sufficiency
of which is hereby acknowledged, it is hereby agreed and declared as follows:
ARTICLE ONE
INTERPRETATION
1.01 DEFINITIONS. - In this Indenture, unless there is something
in the subject-matter or context inconsistent therewith, the terms defined in
this Section 1.01 or elsewhere herein shall, for the purpose of this Indenture
and all supplemental indentures hereto, have the respective meanings specified
in this Section 1.01 or elsewhere herein:
"Acquisition" means the acquisition by the Company of
substantially all of the uranium producing assets and business
of Energy Fuels pursuant to the Acquisition Agreement;
"Acquisition Agreement" means that certain asset purchase
agreement made as of December 19, 1996 between the Company's
subsidiary International Uranium Holdings Corporation and
Energy Fuels;
"Agents" means Salman Partners Inc., CIBC Wood Gundy
Securities Inc., Xxxxxxxxx XxXxxxxx & Partners, Newcrest
Capital Inc. and First Marathon Securities Limited;
"Agents' Commission" means the sum of $2,692,500, comprised of
6.0% of the gross proceeds of the issuance of the Special
Warrants save and except for the gross proceeds attributable
to purchases of 4,100,000 Special Warrants by purchasers
introduced to the Agents by Xx. Xxxxx X. Xxxxxx or members of
his family;
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"Amalgamated IUC" means the corporation to be formed upon the
amalgamation of the Company and Thornbury pursuant to the
Amalgamation Agreement;
"Amalgamation" means the proposed amalgamation of the Company
and Thornbury under the Business Corporations Act (Ontario)
pursuant to the Amalgamation Agreement;
"Amalgamation Agreement" means the amalgamation agreement to
be entered into between the Company and Thornbury in
connection with the Amalgamation;
"Applicable Legislation" means the provisions of any statute
or regulation of Canada or a Province of Canada applicable to
warrant indentures or to the rights, duties and obligations of
trustees and of corporations under warrant indentures, to the
extent that such provisions are at the time in force and
applicable to this Indenture;
"Automatic Retraction Time" means 5:00 p.m. (Toronto time) on
June 24, 1997;
"business day" means a day which is not a Saturday or Sunday
or a civic or statutory holiday in any of the cities where
Warrant Certificates may be surrendered to the Warrant Agent
pursuant to the provisions hereof;
"Certified Resolution of the Company" means a copy of a
resolution certified by a senior officer or Director of the
Company, which may but need not be under its corporate seal,
to have been duly passed by the Directors and to be in full
force and effect on the date of such certification;
"Common Shares" means the common shares in the capital of the
Company;
"Company" means International Uranium Corporation and its
lawful successors from time to time;
"Company's auditors" means the firm of chartered accountants
duly appointed as auditors of the Company for the time being;
"counsel" means a barrister or solicitor or firm of barristers
or solicitors retained by the Warrant Agent or retained by the
Company, who may be counsel to the Company, acceptable to the
Warrant Agent;
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"Deemed Exercise Time" means the time at which the Escrow
Release Conditions are satisfied;
"Director" means a director of the Company from time to time,
and, unless otherwise specified herein, reference to "action
by the Directors" means action by the directors of the Company
as a board or, whenever duly empowered, action by any
committee of the board;
"dollars" and "$" mean monies which are legal tender in Canada
unless otherwise noted;
"Energy Fuels" means collectively, Energy Fuels, Ltd., Energy
Fuels Exploration Company and Energy Fuels Nuclear, Inc.;
"Escrow Certificate" means the certificate issued by the
Company and the Agents to the Warrant Agent confirming that
all of the Escrow Release Conditions have been satisfied,
instructing the Warrant Agent to release, to the extent not
previously delivered pursuant to the direction referred to in
Section 12.04, the Escrowed Funds to or to the direction of
the Company, and having attached thereto (i) a copy of the
letter from the Company and Thornbury delivering the articles
of amalgamation, together with a covering letter, to counsel
for the Agents and instructing counsel for the Agents to
deliver such documents to the Director under the Business
Corporations Act (Ontario) immediately upon receiving written
confirmation from the Company that all conditions precedent to
the Acquisition Closing have occurred and (ii) a copy of the
receipt issued by counsel for the Agents for the documents
referred to in item (i) above together with its
acknowledgement and undertaking that it will deliver such
documents in accordance with the instructions contained
therein;
"Escrow Release Conditions" means, collectively (i) the
completion of the Amalgamation, subject only to the filing of
pre-approved articles of amalgamation in respect of the
Amalgamation with the Director under the Business Corporations
Act (Ontario); (ii) the closing of the Acquisition in escrow,
subject only to payment; and (iii) the obtaining by the
Company of a conditional listing of the common shares of
Amalgamated IUC on The Toronto Stock Exchange;
"Escrowed Funds" means the net proceeds of the offering of the
Special Warrants (after deducting the Agents' Commission);
"Exercise Date" with respect to any Special Warrant means the
date on which such Special Warrant is duly surrendered for
exercise or is deemed to be exercised in accordance with the
provisions of Article Four;
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"Expiry Time" means the earlier of: (i) the Deemed Exercise
Time; and (ii) the Automatic Retraction Time;
"extraordinary resolution" has the meaning ascribed thereto in
Subsection 8.12(1);
"person" means an individual, corporation, partnership, trust
or any unincorporated organization;
"Shareholder" means a holder of record of one or more Common
Shares;
"Special Warrants" means the special warrants of the Company
described herein and issued as described under Article Two
hereof;
"Subscription Funds" means the gross proceeds of the offering
of the Special Warrants;
"this Warrant Indenture", "this Indenture", "herein", "hereby"
and similar expressions mean or refer to this indenture and
any indenture, deed or instrument supplemental hereto; and the
expressions "Article", "Section" and "Subsection" followed by
a number mean and refer to the specified article, section or
subsection of this Indenture;
"Thornbury" means Thornbury Capital Corporation, a company
created pursuant to the laws of Ontario;
"Transfer Agent" means the transfer agent for the time being
of the Common Shares, which is the Company at the date hereof;
"United States" means the United States of America, its
territories and possessions, any State of the United States,
and the District of Columbia;
"U.S. Person" means U.S. Person as that term is defined in
Regulation S under the U.S. Securities Act;
"U.S. Securities Act" means the United States Securities Act
of 1933, as amended;
"Warrant Agent" means Montreal Trust Company of Canada and its
successors in the trusts hereby created;
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"Warrant Certificates" means the certificates evidencing the
Special Warrants issued and certified hereunder and for the
time being outstanding;
"Warrantholders" or "holders" without reference to Common
Shares means the persons for the time being who are registered
holders of the Special Warrants;
"Warrantholders' Request" means an instrument signed in one or
more counterparts by Warrantholders holding not less than
twenty-five per cent (25%) of all Special Warrants then
unexercised and outstanding, requesting the Warrant Agent to
take some action or proceeding specified therein;
"Warrant Register" means the register of Warrantholders
described in Article Thirteen hereof; and
"written order of the Company", "written request of the
Company", "written consent of the Company" and "certificate of
the Company" mean respectively a written order, request,
consent and certificate signed in the name of the Company by
any one officer or director of the Company.
Unless herein otherwise expressly provided or unless the
context otherwise requires, words importing the singular include the plural and
vice versa and words importing the masculine include the feminine and neutral
genders.
1.02 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC. - The division
of this Indenture into Articles, Sections and Subsections, the provision of the
table of contents and the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation of this Indenture.
1.03 APPLICABLE LAW. - This Indenture, the Warrant Certificates and
the Special Warrants represented by such Warrant Certificates shall be construed
in accordance with the laws of the Province of Ontario and the laws of Canada
applicable thereto and shall be treated in all respects as Ontario contracts.
The parties irrevocably attorn to the Courts of such province.
ARTICLE TWO
ISSUE OF SPECIAL WARRANTS
2.01 ISSUE OF SPECIAL WARRANTS. - The Special Warrants may be
issued only upon and subject to the conditions and limitations hereinafter set
forth. The Company is authorized to issue in the aggregate 40,000,000 Special
Warrants, entitling the holders
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thereof to subscribe for and be issued an aggregate of 40,000,000 Common Shares
(plus such additional indeterminate number of Common Shares as may be issued
pursuant to the adjustments referred to in Article Four). Warrant Certificates
shall be issued only in registered form in the form or substantially in the form
provided in Article Eleven. Fractional Special Warrants will not be issued.
2.02 ISSUE PRICE. - The Special Warrants shall be issued for $1.25
per Special Warrant or such other price as may be established by action by the
Directors from time to time (with notice of such action being given to the
Warrant Agent).
2.03 ENTITLEMENT OF WARRANTHOLDER. - Subject to Sections 4.01,
4.02 and 4.04, each Special Warrant authorized to be issued hereunder shall
entitle the holder thereof to subscribe for and be issued one Common Share
without further consideration to the Company. Special Warrants may be
exercisable by the holder, in whole only, at any time prior to the Expiry Time.
2.04 ADJUSTMENTS. - The number of Common Shares which may be issued
pursuant to the exercise or deemed exercise of the Special Warrants shall be
adjusted in the events and in the manner specified in Article Four.
2.05 ISSUE OF COMMON SHARES. - Upon the exercise of the rights
conferred upon Warrantholders to exercise their Special Warrants for Common
Shares and provided that the provisions of Sections 4.01, 4.02 and 4.04 are
complied with, the Company shall issue that number of Common Shares from its
unissued share capital as are issuable pursuant to such exercise of Special
Warrants. At all times prior to such exercise, the Company shall have reserved
and allotted for issuance that number of Common Shares issuable upon exercise of
the Special Warrants.
2.06 WARRANTHOLDER NOT A SHAREHOLDER. - Except as otherwise
provided herein, nothing in this Indenture nor in the holding of a Special
Warrant, Warrant Certificate, or otherwise, shall be construed as conferring
upon a Warrantholder any right or interest whatsoever as a Shareholder or as a
holder of any other shares of the Company.
2.07 SPECIAL WARRANTS TO RANK PARI PASSU. - All Special Warrants
shall rank pari passu, regardless of the actual date of issue of the same.
2.08 SIGNING OF WARRANT CERTIFICATES. - The Warrant Certificates
shall be signed by any one Director or officer of the Company and may but need
not be under the Company's seal or a facsimile thereof (which shall be deemed to
be the Company's seal). The signature of such Director or officer may be
mechanically reproduced in facsimile and Warrant Certificates bearing such
facsimile signature shall be binding upon the Company as if they had been
manually signed by such officer or Director. Notwithstanding that any such
person whose manual or facsimile signature appears on
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any Warrant Certificate as such officer may no longer hold office at the date of
such Warrant Certificate or at the date of certification or delivery thereof,
any Warrant Certificate signed as aforesaid shall, subject to Section 2.09
hereof, be valid and binding upon the Company and the holder thereof shall be
entitled to the benefit of this Indenture. Warrant Certificates shall be dated
as of the date of the original issue of the Special Warrants evidenced thereby.
2.09 CERTIFICATION BY THE WARRANT AGENT. -
(1) No Warrant Certificate shall be issued or, if issued, shall be valid
for any purpose or entitle the holder to the benefit hereof until it
has been countersigned and certified by manual signature by or on
behalf of the Warrant Agent and such countersignature and certification
by the Warrant Agent upon any Warrant Certificate shall be conclusive
evidence as against the Company that the Warrant Certificate so
countersigned and certified has been duly issued hereunder and that the
holder is entitled to the benefit hereof.
(2) The countersignature and certification of the Warrant Agent on Warrant
Certificates issued hereunder shall not be construed as a
representation or warranty by the Warrant Agent as to the validity of
this Indenture or of a Warrant Certificate (except the due
certification thereof) and the Warrant Agent shall in no respect be
liable or answerable for the use made of the Warrant Certificates or
any of them or of the consideration therefor, except as otherwise
specified herein.
2.10 ISSUE IN SUBSTITUTION FOR LOST WARRANT CERTIFICATES. -
(1) In case any Warrant Certificates issued and certified hereunder shall
become mutilated, lost, destroyed or stolen, the Company, subject to
applicable law, shall issue and thereupon the Warrant Agent shall
certify and deliver a new certificate of like date and tenor as the one
mutilated, lost, destroyed or stolen (i) in exchange for and in place
of and upon cancellation of such mutilated certificate or (ii) in lieu
of and in substitution for such lost, destroyed or stolen certificate
and the substituted certificate shall be in a form approved by the
Warrant Agent and shall be entitled to the benefit hereof and shall
rank equally in accordance with its terms with all other Warrant
Certificates issued or to be issued hereunder.
(2) The applicant for the issue of a new certificate pursuant to Subsection
2.10(1) shall bear the cost of the issue thereof and in case of loss,
destruction or theft shall, as a condition precedent to the issue
thereof, furnish to the Company and to the Warrant Agent such evidence
of ownership and of the loss, destruction or theft, as the case may be,
of the certificate so lost, destroyed or stolen as shall be
satisfactory to the Company and to the Warrant Agent, acting
reasonably, in their discretion and such applicant may also be required
to furnish indemnity or
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security in amount and form satisfactory to the Company and the Warrant
Agent in their discretion to save each of them harmless, and shall pay
the expenses, charges and any taxes applicable thereto of the Company
and the Warrant Agent in connection therewith.
2.11 REPLACEMENT OF WARRANT CERTIFICATES. -
(1) Warrant Certificates issued and certified hereunder, representing
Special Warrants to subscribe for and purchase any specified number of
Common Shares may, upon compliance with the reasonable requirements of
the Warrant Agent, be replaced by Warrant Certificate(s) representing
in the aggregate a like number of Special Warrants.
(2) Warrant Certificates may be replaced at the stock transfer office of
the Warrant Agent in the City of Toronto or any other place that is
designated by the Company with the approval of the Warrant Agent. Any
Warrant Certificate tendered for replacement shall be surrendered to
the Warrant Agent and cancelled by the Warrant Agent, who will forward
to the Company, a certificate evidencing such cancellation. The Company
shall sign and the Warrant Agent shall countersign and certify all
Warrant Certificates necessary to carry out replacements as aforesaid.
2.12 REPLACEMENT ADJUSTMENT. - Irrespective of any adjustments
pursuant to Article Four hereof, all replacement Warrant Certificates shall
continue to express the number of Special Warrant(s) evidenced thereby as if
such Warrant Certificates were initially issued as of the date of original issue
of the Special Warrants.
2.13 CHARGES FOR REPLACEMENT. - For each Warrant Certificate
replaced, the Warrant Agent, except as otherwise herein provided, shall, if
required by the Company, charge to the Warrantholder a reasonable sum for each
new Warrant Certificate issued. Payment for any and all taxes or governmental or
other charges required to be paid shall be made by the Warrantholder requesting
such replacement, as a condition precedent to the issuance thereof.
2.14 OWNERSHIP OF SPECIAL WARRANTS. - The Company and the Warrant
Agent shall deem and treat the registered holder of any Special Warrant as shown
on the Warrant Register or his legal representative or his attorney duly
appointed by an instrument in writing as the absolute holder and owner of such
Special Warrant for all purposes, and the Company and the Warrant Agent shall
not be affected by any notice or knowledge to the contrary. Except as otherwise
provided herein, the registered holder of a Warrant Certificate shall be
entitled to the rights evidenced by such Warrant Certificate free from all
rights of set-off or counterclaim between the Company and the original or any
intermediate holder thereof. All actions relating to any Warrantholder
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shall be valid and effectual to satisfy and discharge any liability hereunder
and under any Warrant Certificates.
2.15 TRANSFER OF SPECIAL WARRANTS. - The Special Warrants may only
be transferred upon compliance with the conditions herein on the Warrant
Register by a holder, his legal representative or his attorney duly appointed by
an instrument in writing in form and execution satisfactory to the Warrant Agent
and upon compliance with such reasonable requirements as the Warrant Agent may
prescribe and such transfer shall be duly noted on such Warrant Register by the
Warrant Agent. Notwithstanding anything to the contrary herein contained,
Special Warrants may only be transferred in accordance with applicable law. A
transferee shall not be entitled to the rights and privileges attached to the
Special Warrants unless the transfer is reflected in the Warrant Register.
Neither the Company nor the Warrant Agent shall be bound to inquire into the
title of any such registered holder.
2.16 U.S. LEGENDS. - The Warrant Agent understands and acknowledges
that the Special Warrants and the Common Shares issuable upon exercise of the
Special Warrants have not been and will not be registered under the U.S.
Securities Act. Each Warrant Certificate originally issued to a U.S. Person, and
each Warrant Certificate issued in exchange therefor or in substitution thereof,
shall bear the following legend unless such legend is to be removed pursuant to
the terms of this Indenture:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION, (B) OUTSIDE
THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, OR (C) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, IF APPLICABLE, AND IN COMPLIANCE
WITH ANY STATE SECURITIES LAWS OR (D) WITH THE PRIOR WRITTEN CONSENT OF THE
CORPORATION, PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS."
Furthermore, all certificates representing Common Shares issued upon exercise of
the Special Warrants and all certificates issued in exchange therefor or in
substitution thereof or issued upon their exercise in accordance with Article
Four hereof, which are legended as above shall also bear the following
additional legend:
"DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE "GOOD DELIVERY" IN SETTLEMENT
OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA. A NEW CERTIFICATE, BEARING NO
LEGEND, DELIVERY OF WHICH WILL CONSTITUTE "GOOD DELIVERY" MAY BE OBTAINED FROM
MONTREAL TRUST COMPANY OF CANADA UPON DELIVERY OF THIS CERTIFICATE AND A DULY
EXECUTED
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DECLARATION, IN A FORM SATISFACTORY TO MONTREAL TRUST COMPANY OF CANADA
AND THE CORPORATION, TO THE EFFECT THAT THE SALE OF THE SECURITIES REPRESENTED
HEREBY IS BEING MADE IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT."
provided that, if the Special Warrants or the Common Shares issued upon exercise
of the Special Warrants are being sold pursuant to Rule 904 of Regulation S
under the U.S. Securities Act, the legend may be removed if the holder provides
a declaration to the Warrant Agent or the Transfer Agent, as the case may be, to
the following effect (or as the Company may prescribe from time to time):
"The undersigned (a) acknowledges that the sale of the securities of
International Uranium Corporation (the "Company") to which this declaration
relates is being made in reliance on Rule 904 of Regulation S under the United
States Securities Act of 1933, as amended (the "1933 Act") and (b) certifies
that (1) the seller is not an affiliate of the Company (as defined in Rule 405
under the 1933 Act), (2) the offer of such securities was not made to a person
in the United States and either (A) at the time the buy order was originated,
the buyer was outside the United States, or the seller and any person acting on
its behalf reasonably believe that the buyer was outside the United States, or
(B) the transaction was executed on or through the facilities of The Toronto
Stock Exchange or any other designated offshore securities market, as defined in
Regulation S, and neither the seller nor any person acting on its behalf knows
that the transaction has been prearranged with a buyer in the United States, (3)
neither the seller nor any affiliate of the seller nor any person acting on its
or their behalf has engaged or will engage in any directed selling efforts in
the United States in connection with the offer and sale of such securities, (4)
the sale is bona fide and not for the purpose of "washing off" the resale
restrictions imposed because the securities are "restricted securities" (as such
term in defined in Rule 144(a)(3) under the 1933 Act), (5) the seller does not
intend to replace the securities sold in reliance on Rule 904 of the 1933 Act
with fungible unrestricted securities and (6) the contemplated sale is not a
transaction, or part of a series of transactions which, although in technical
compliance with Regulation S, is part of a plan or scheme to evade the
registration provisions of the 1933 Act. Terms used herein have the meanings
given to them by Regulation S."
and provided further, that, if any such securities are being sold pursuant to
Rule 144 under the U.S. Securities Act, the legend may be removed by delivery to
the Warrant Agent or the Transfer Agent, as the case may be, of an opinion of
counsel, of recognized standing reasonably satisfactory to the Company, that
such legend is no longer required under applicable requirements of the U.S.
Securities Act or state securities laws.
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2.17 CERTAIN TRANSFERS. -
(i) If the Warrant Certificate tendered for transfer bears the legend set
forth in Section 2.16 hereof, and such legend is not to be removed in
accordance with Section 2.16 hereof: (a) the Warrant Agent shall not
issue or register a Warrant Certificate pursuant to such transfer in
the name of or for the benefit of any resident of Canada; or (b) in the
event that the transferee is a U.S. Person or is in the United States,
the Warrant Certificate issued to such transferee shall bear the legend
set forth in Section 2.16, and the requirement of such Section relating
to legending the Common Shares issuable upon exercise of the Special
Warrants shall also apply.
(ii) If the Warrant Certificate tendered for transfer does not bear the
legend set forth in Section 2.16, the Warrant Agent shall not register
such transfer unless the transferor has certified on the Warrant
Certificate that the transfer is being made, and the offer of the
securities being transferred was made, to a person not in the United
States. Notwithstanding the foregoing, the Warrant Agent shall not
register the transfer if the Warrant Agent has reason to believe that
the transferee is a person within the United States or is acquiring the
Special Warrants evidenced thereby for the account or benefit of a
person in the United States. Any Warrant Certificate issued to a
transferee in a transfer contemplated by this Subsection 2.17(ii) shall
not bear the legend set forth in Section 2.16.
2.18 RESIDENCY DETERMINATION - In determining who is a U.S. Person,
a person in the United States, or a resident of Canada, the Warrant Agent may
rely and shall be protected in relying upon the registered address of the holder
or the address of the transferee as indicated on the form of transfer for the
Special Warrants in question, as applicable, for all purposes.
2.19 ENTRY OF AGENT IN REGISTER - Notwithstanding the provisions of
this Article Two and Article Xxxxxxxx, any of the Agents shall be entitled to be
entered on the register as the holder of Special Warrants evidenced by a
particular Warrant Certificate upon delivery by such Agent to the Warrant Agent
of:
(i) the particular Warrant Certificate; and
(ii) a certificate of that Agent to the effect that the purchaser
of the Special Warrants evidenced by the particular Warrant
Certificate has declined or refused to accept delivery of, and
make payment for, the Special Warrants evidenced by the
particular Warrant Certificate in accordance with the
subscription or purchase agreement between such purchaser and
the Company.
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ARTICLE THREE
NOTICE TO WARRANTHOLDERS
3.01 NOTICE. - Unless herein otherwise expressly provided, any
notice to be given hereunder to the Warrantholders shall be deemed to be validly
given if delivered personally or sent by registered letter postage prepaid
addressed to such Warrantholders at their post office addresses appearing in the
Warrant Register and shall be deemed to have been effectively given, received
and made on the date of personal delivery or on the fourth business day after
the time of mailing or upon actual receipt, whichever is sooner. Accidental
error or omission in giving notice or accidental failure to mail notice to any
Warrantholder or the inability of the Company to give or mail any notice due to
any matter beyond the reasonable control of the Company shall not invalidate any
action or proceeding taken in respect of matters pertaining to such notice
provided that in the case of disruption in postal services any notices, if
mailed, shall not be deemed to have been effectively given until it is
personally delivered. Any notice with respect to any Special Warrants, if
registered in the names of more than one holder, may be given to the holder
first named in the Warrant Register and any notice so given shall be sufficient
notice to all such registered holders having an interest in such Special
Warrants.
ARTICLE FOUR
EXERCISE OF SPECIAL WARRANTS
4.01 METHOD OF EXERCISE OF SPECIAL WARRANTS. - Holders of Special
Warrants who wish to exercise their Special Warrants for Common Shares may do so
prior to the Expiry Time by delivering to the Warrant Agent at its principal
stock transfer office in Toronto, Ontario and at any other place or places that
may be designated by the Company with the approval of the Warrant Agent, the
Warrant Certificate with a duly completed and executed notice of exercise.
4.02 COMPLETION OF NOTICE OF EXERCISE FORM. -
(1) Certificates representing the Common Shares for which Special Warrants
are exercised, shall be delivered or mailed as described in Section
4.03(2) to the Warrantholder, or as the Warrantholder may direct on the
notice of exercise form, upon surrender of the corresponding Warrant
Certificate(s) to the Warrant Agent. Certificates representing Common
Shares issued pursuant to such exercise of Special Warrants shall be
prepared in the name of the Warrantholder reflected in the Warrant
Register. A Warrant Certificate with the duly completed and executed
notice of exercise form shall be deemed to be surrendered only upon
delivery thereof or, if sent by mail or other means of transmission,
upon actual receipt thereof, in each case at the office of the Warrant
Agent where
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surrendered or such other place(s) provided for by the Company and
agreed to by the Warrant Agent.
(2) A notice of exercise form shall be signed by the Warrantholder and
shall specify (i) that all of the Common Shares which such holder is
entitled to acquire are subscribed for, (ii) the name of the holder,
and (iii) the address of such person.
(3) In connection with the replacement of Warrant Certificates and the
exercise of Special Warrants and in compliance with such other terms
and conditions hereof as may be required, the Company shall provide for
one or more agencies in the City of Toronto, Ontario and any other
place or places which may be designated by the Company (with the
approval of the Warrant Agent, acting reasonably) at which Warrant
Certificates may be surrendered for exercise for Common Shares.
(4) The Warrant Agent shall record the particulars of the Special Warrants
exercised for Common Shares which shall include the names and addresses
of the persons who become holders of Common Shares upon such exercise
and the Exercise Date. Within five business days of each Exercise Date,
the Warrant Agent shall provide such particulars in writing to the
Company and the Transfer Agent.
4.03 EFFECT OF EXERCISE OF SPECIAL WARRANTS. -
(1) Upon compliance by the holder of any Warrant Certificate with the
provisions of Section 4.01 and Section 4.02, and subject to the
provisions of Subsection 4.04(2), the number of Common Shares
subscribed for and thereby issuable shall be deemed to have been issued
and the person or persons to whom such Common Shares are to be issued
shall be deemed to have become the holder or holders of record of such
Common Shares on the Exercise Date unless the transfer books of the
Company shall be closed on such date, in which case the Common Shares
subscribed for and thereby issuable shall be deemed to have been
issued, and such person or persons shall be deemed to have become the
holder or holders of record of such Common Shares, on the date on which
such transfer books were reopened. Upon the exercise of Special
Warrants, that portion of the Escrowed Funds relating to such Special
Warrants shall be released to the Company in accordance with Article
Twelve hereof.
(2) The Company shall forthwith and in no event later than the third
business day after the surrender of the Warrant Certificate (i) cause
the Warrant Agent to mail to the person or persons in whose name or
names the Common Shares so subscribed for and thereby issuable are to
be issued, as specified in the notice of exercise completed on the
Warrant Certificate, at the address specified in such notice of
exercise or (ii) if so specified in such notice of exercise form, cause
the Warrant Agent to deliver to such person or persons at the office of
the Warrant
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Agent where such Warrant Certificate was surrendered, a share
certificate or certificates for the appropriate number of Common Shares
to which the Warrantholder is entitled to be issued pursuant to the
Warrant Certificate surrendered, provided that the Warrant Agent shall
not be required to deliver certificates representing Common Shares
issuable upon the exercise hereof when the Common Share transfer books
of the Company are properly closed prior to any meeting of shareholders
or for the payment of dividends or for any other purpose. In the event
of the exercise of any Special Warrants in accordance with the
provisions hereof during any such period delivery of certificates may
be postponed for not exceeding five (5) business days after the date of
the re-opening of said Common Shares transfer books.
4.04 SUBSCRIPTION FOR LESS THAN ENTITLEMENT. -
(1) No holder may subscribe for and be issued less than the full number of
Common Shares which are issuable pursuant to the Warrant Certificate.
(2) Notwithstanding any adjustment provided for in Section 4.08 hereof or
otherwise, the Company shall not be required, upon the exercise of a
Special Warrant, to issue fractions of Common Shares or to distribute
certificates which evidence fractional Common Shares. If the number of
Common Shares to which a Warrantholder would otherwise be entitled upon
the exercise of a Special Warrant is not a whole number then the number
of Common Shares to be issued will be rounded down to the next whole
number and the holder shall receive no consideration for any fraction
of a Common Share.
4.05 WARRANT CERTIFICATES FOR FRACTIONS OF COMMON SHARES. - To the
extent that the holder of a Warrant Certificate is entitled to receive on the
exercise a fraction of a Common Share, such right may only be exercised in
respect of such fraction in combination with another Warrant Certificate which
in the aggregate entitles the Warrantholder to receive a whole number of Common
Shares.
4.06 EXPIRATION OF SPECIAL WARRANTS. -
(1) In the event a holder does not exercise the Special Warrants by the
Expiry Time and all of the Escrow Release Conditions are satisfied as
evidenced by the delivery of the Escrow Certificate from the Company
and the Agents to the Warrant Agent (which delivery shall be on a
forthwith basis and in any event not later than the first business day
thereafter), the Special Warrants held by such holder shall be
exercised by the Warrant Agent on behalf of such holder at the Deemed
Exercise Time without any further action on the part of the holder or
the Company.
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(2) In the event that the Escrow Release Conditions are not satisfied by
the Automatic Retraction Time, the Special Warrants held by a holder
shall be retracted by the Warrant Agent on behalf of such holder
without any further action on the part of the holder. At the time of
such retraction, the Company shall purchase all of the Special Warrants
registered in the holders' names at a price of $1.25 per Special
Warrant plus such holder's pro rata share of the interest accrued on
the Escrowed Funds, and the Warrant Agent shall pay to such holders
from the Escrowed Funds an amount equal to $1.25 per Special Warrant so
purchased together with the pro rata share of the interest accrued on
the Escrowed Funds, calculated from the date hereof to and including
the day immediately preceding the date of payment to such holders. Such
payment shall be made by way of cheque payable in the City of Toronto,
and upon delivery of such cheque the Special Warrants shall be void and
of no value. The foregoing is subject to the obligations of the Company
to pay to the Warrant Agent any additional amounts as may be necessary
in accordance with Section 12.03 hereof.
(3) The Warrant Agent shall have no obligation to review and approve the
documents attached to the Escrow Certificate, and shall be entitled to
release the Escrowed Funds upon the receipt of the Escrow Certificate
as provided for in this Indenture. Following the delivery of the Escrow
Certificate to the Warrant Agent, the Warrant Agent shall send a notice
to holders of Special Warrants in accordance with Section 3.01 advising
of the exercise of Special Warrants and providing instructions on how
such holders may obtain certificates representing Common Shares.
4.07 CANCELLATION OF SURRENDERED WARRANT CERTIFICATES. - All
Warrant Certificates surrendered to the Warrant Agent shall be cancelled by the
Warrant Agent who shall furnish the Company with a certificate identifying the
Warrant Certificates so cancelled and the number of Common Shares subscribed for
pursuant to each Warrant Certificate.
4.08 ADJUSTMENTS IN CERTAIN CIRCUMSTANCES. - Subject to Section
4.09:
(a) if at any time prior to the Expiry Time, the Company shall (i)
consolidate the outstanding Common Shares into a lesser number
of Common Shares or (ii) subdivide the outstanding Common
Shares into a greater number of Common Shares, as the case may
be, the holder, if the Special Warrants have not been
exercised prior to the effective date of such consolidation or
subdivision, as the case may be, upon the exercise of such
Special Warrant thereafter, shall be entitled to receive and
shall accept, the number of Common Shares of the Company that
the holder would have been entitled to receive on such
consolidation or subdivision if, on the record date or the
effective date thereof, as the case may be, it had been
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the registered holder of the number of Common Shares to which
it is by its Warrant Certificate, prima facie, entitled. Such
adjustment shall be made successively whenever any event
referred to in this subsection (a) shall occur;
(b) if at any time prior to the Expiry Time, there is a
reclassification or redesignation of the Common Shares into
other shares or a reorganization of the Company (other than as
described in (a) hereof), or an amalgamation, merger or
arrangement of the Company with or into any other body
corporate or other entity (other than an amalgamation, merger
or arrangement, which does not result in a reclassification of
the outstanding Common Shares or a change of the Common Shares
into other shares) or a sale or conveyance of the property and
assets of the Company as an entirety or substantially as an
entirety to any other body corporate or other entity, the
holder, if the Special Warrants have not been exercised prior
to the effective date of such reclassification, redesignation,
change, reorganization, amalgamation, merger, arrangement,
sale or conveyance, upon the exercise of such Special Warrant
thereafter, shall be entitled to receive and shall accept the
number of Common Shares or other securities or property of the
Company or of the body corporate, or other entity, resulting
from such amalgamation, merger or arrangement or to which such
sale or conveyance may be made, as the case may be, that the
holder would have been entitled to receive on such
reclassification, redesignation, change, reorganization,
amalgamation, merger, arrangement, sale or conveyance if, on
the record date or the effective date thereof, as the case may
be, it had been the registered holder of the number of Common
Shares to which it is by its Warrant Certificate, prima facie,
entitled;
In the case of the amalgamation, merger or arrangement with or
sale or conveyance of the property and assets of the Company
as an entirety or substantially as an entirety to another body
corporate or other entity (the "Successor"), the Successor
shall expressly assume, by written agreement executed and
delivered to the holder, the due and punctual performance and
observance of each and every covenant and condition of this
Indenture and the Warrant Certificate to be performed and
observed by the Company;
(c) if at any time prior to the Expiry Time, the Company shall pay
any stock dividend or stock dividends upon the Common Shares,
the holder, if the Special Warrants have not been exercised
prior to the record date for payment of such stock dividend or
dividends, upon the exercise of such Special Warrants
thereafter, shall be entitled to receive in addition to the
number of Common Shares such additional number of securities
of the
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appropriate class that the holder would have been entitled to
receive if on the record date for payment of such stock
dividend or dividends it had been the registered holder of the
number of Common Shares to which it is by its Warrant
Certificate, prima facie, entitled;
(d) the adjustments provided for herein are cumulative. After any
adjustment pursuant hereto, the term "Common Shares" where
used in this Indenture shall be interpreted to mean Common
Shares of any class or classes which, as a result of all prior
adjustments pursuant hereto, the holder is entitled to receive
upon the exercise of its Special Warrants;
(e) in the event of any question arising with respect to
adjustments provided for herein, such question shall be
conclusively determined by the Company's auditors or, if they
are unable or unwilling to act, by such other firm of
independent chartered accountants as may be selected by the
board of directors of the Company, who shall have access to
all necessary records of the Company, the holder and all other
persons in interest, and such determination shall be binding
upon the Company, the Warrant Agent and the holder;
(f) notwithstanding anything in this Indenture to the contrary, no
adjustment shall be made in the number of Common Shares to be
acquired upon the exercise of the Special Warrants unless it
would result in a change of at least one one-hundredth of a
Common Share (but in each such case any adjustment that would
otherwise have been required then to be made shall be carried
forward and taken into account in any subsequent adjustment).
In case the Common Shares shall be subdivided into a greater
number or consolidated into a lesser number, the minimum
adjustment aforesaid shall thereupon be itself adjusted to
such amount which bears the same relation to the minimum
adjustment established immediately prior to such event as the
total number of Common Shares outstanding immediately prior
thereto bears to the total number of Common Shares outstanding
immediately thereafter. Any such minimum adjustment so
established shall continue in effect until the same shall
again be changed as herein provided;
(g) as a condition precedent to the taking of any action which
would require any adjustment pursuant hereto, the Company
shall take any corporate action which may, in the opinion of
counsel of the Company, be necessary in order that the Company
has unissued and allotted in its authorized capital and may
validly and legally issue as fully paid and non-assessable all
the securities which the holder is entitled to receive on the
full exercise of its Special Warrants in accordance with the
provisions hereof; and
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(h) the Company shall from time to time immediately after the
occurrence of any event which requires an adjustment or
readjustment as provided herein, deliver a certificate of the
Company to the Company's auditors or, if they are unable or
unwilling to act, to such other firm of independent chartered
accountants as may be selected by the board of directors of
the Company, specifying the nature of the event requiring the
same and the amount of the adjustment necessitated thereby and
setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based, which
certificate and the amount of the adjustment specified therein
shall be verified by an opinion of the Company's auditors, or
the chartered accountants selected by the board, as the case
may be, and, when so verified, shall be conclusive and binding
on all parties in interest. When so verified, the Company
shall forthwith give notice to the holders in the manner
provided herein specifying the events requiring such
adjustment or readjustment and the result thereof.
4.09 POSTPONEMENT. - Any additional shares, rights, options or
warrants issuable or cash amounts payable to a Warrantholder pursuant to Section
4.08 shall be held in trust by the Warrant Agent pending the exercise of the
Special Warrants for Common Shares and shall not be released to the
Warrantholder until such exercise occurs.
4.10 NOTICE OF ADJUSTMENT. -
(1) At least ten (10) days prior to the effective date or record date, as
the case may be, of any event which requires or might require an
adjustment in any of the subscription rights to any of the Warrant
Certificates and the number of Common Shares which are issuable upon
the exchange thereof, the Company shall:
(a) file with the Warrant Agent a certificate of the Company
specifying the particulars of such event and, if determinable,
the required adjustment and the computation of such
adjustment; and
(b) give notice to the Warrantholders in the manner provided for
in Article Three of the particulars of such event and, if
determinable, the required adjustment.
(2) In case any adjustment for which a notice pursuant to Subsection
4.10(1) has been given is not then determinable, the Company shall
promptly after such adjustment is determinable;
(a) file with the Warrant Agent a computation of such adjustment;
and
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(b) give notice to the Warrantholders in the manner provided for
in Article Three of the adjustment.
(3) Where a notice in Subsection 4.10(1) has been given, the Warrant Agent
shall be entitled to rely absolutely on any adjustment calculations of
the Company or the Company's auditors.
ARTICLE FIVE
PURCHASES BY THE COMPANY
5.01 OPTIONAL PURCHASES BY THE COMPANY. - The Company may from time
to time purchase Special Warrants on any stock exchange, in the open market, by
private agreement or otherwise. Any such purchase may be made in such manner,
from such persons, at such prices and on such terms as the Company in its sole
discretion may negotiate.
5.02 SURRENDER OF WARRANT CERTIFICATES. - Warrant Certificates
representing Special Warrants purchased pursuant to Section 5.01 shall be
surrendered to the Warrant Agent for cancellation.
ARTICLE SIX
COVENANTS OF THE COMPANY
6.01 GENERAL COVENANTS OF THE COMPANY. - The Company covenants
and/or represents and warrants with the Warrant Agent that so long as any
Warrant Certificates remain outstanding, until the Expiry Time:
(1) It will allot and keep available a sufficient number of Common Shares
for the purpose of enabling it to satisfy its obligations to issue
Common Shares in exchange for the Special Warrants.
(2) All Common Shares which shall be issued upon exercise of the Special
Warrants shall be issued as fully paid and non-assessable shares of the
Company.
(3) It will allot and cause the certificates representing the Common Shares
from time to time issued on exercise of the Special Warrants to be duly
issued and delivered in accordance with the Warrant Certificates and
the terms hereof.
(4) It will give to the Warrantholders, in the manner provided in Article
Three, and to the Warrant Agent, notice of its intention to fix a
record date, or effective date, as the case may be, for any event
referred to in Article Four which may give rise to an adjustment of the
number of Common Shares issuable upon exercise of
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Special Warrants and, in each case, such notice shall specify the
particulars of such event and the record date, or the effective date,
for such event; provided that the Company shall only be required to
specify in such notice such particulars of such event as shall have
been fixed and determined on the date on which such notice is given.
Such notice shall be given in each case not less than twenty-one (21)
days prior to the applicable record date or effective date, as the case
may be.
(5) It will not close its transfer books nor take any other action which
might deprive a Warrantholder of the opportunity of exercising the
Warrantholder's right to subscribe for and be issued Common Shares upon
exercise of the Special Warrants held by such person during the period
of ten days after the giving of a notice required by this Section 6.01
or unduly restrict such opportunity.
(6) Generally, it will well and truly perform and carry out all of the acts
or things to be done by it as provided in this Indenture.
(7) It will carry on business in the ordinary course until the Expiry Time.
(8) It will use all reasonable efforts to diligently complete the
Acquisition and the Amalgamation and satisfy all of the Escrow Release
Conditions by June 24, 1997.
(9) It is duly authorized to create and issue the Special Warrants to be
issued hereunder and the Special Warrants, when issued as herein
provided, will be valid and enforceable against the Company in
accordance with their terms and subject to the provisions of this
Indenture.
(10) It shall not, prior to the earlier of the date on which all Special
Warrants have been exercised and the Expiry Time, amend or approve an
amendment of the articles of the Company in any manner which would
adversely affect the rights of the Warrantholders or any other
instrument relating to the issue of the Special Warrants without the
consent of the holders of a simple majority of the Special Warrants
outstanding.
(11) It will do, execute, acknowledge and deliver or cause to be done,
executed, acknowledged and delivered, all other acts, deeds and
assurances in law as may be reasonably required to give full effect to
this Indenture.
(12) It shall, prior to the setting of a record date for any Shareholders'
meeting, give at least ten business days' notice to the Warrantholders
pursuant to Article Three and permit Warrantholders to attend any such
meeting as observers.
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6.02 WARRANT AGENT'S REMUNERATION AND EXPENSES. - The Company
covenants that it will pay to the Warrant Agent from time to time reasonable
remuneration for its services hereunder; and the Company will pay or reimburse
the Warrant Agent upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Warrant Agent in the administration or
execution of its duties hereunder (including the reasonable compensation and the
disbursements of its counsel and all other advisors and assistants not regularly
in its employ) both before any default hereunder and thereafter until all duties
of the Warrant Agent hereunder shall be finally and fully performed, except any
such expense, disbursement or advance as may arise out of or result from the
Warrant Agent's own negligent action, negligent failure to act, willful
misconduct or bad faith. Any amount due under this section and unpaid 30 days
after request for such payment shall bear interest at the current rate per annum
charged by the Warrant Agent from the expiration of such 30 days.
6.03 PERFORMANCE OF COVENANTS BY WARRANT AGENT. - If the Company
shall fail to perform any of its covenants contained in this Indenture, the
Warrant Agent may notify the Warrantholders of such failure on the part of the
Company or may itself perform any of the said covenants capable of being
performed by it, but shall be under no obligation to do so or to notify the
Warrantholders. All sums so expended or advanced by the Warrant Agent shall be
repayable upon request of the Warrant Agent by the Company as provided in
Section 6.02. No such performance or advance by the Warrant Agent shall be
deemed to relieve the Company of any default hereunder.
ARTICLE SEVEN
ENFORCEMENT
7.01 SUITS BY WARRANTHOLDERS, ETC. - All or any of the rights
conferred upon the holder of any Warrant Certificate by the terms of such
Warrant Certificate or of this Indenture may be enforced by the holder of such
Warrant Certificate by appropriate legal proceedings but without prejudice to
the right which is hereby conferred upon the Warrant Agent to proceed in its own
name to enforce each and all of the provisions herein contained for the benefit
of the Warrantholder.
7.02 IMMUNITY OF SHAREHOLDERS, ETC. - By the acceptance of the
Warrant Certificate and as part of the consideration for the issue of the
Special Warrants, the Warrantholders and the Warrant Agent hereby waive and
release any right, cause of action or remedy now or hereafter existing in any
jurisdiction against any past, present or future incorporator, Shareholder,
Director, officer, employee or agent of the Company for the issue of Common
Shares pursuant to any Special Warrant.
7.03 LIMITATION OF LIABILITY. - The obligations hereunder are not
personally binding upon, nor shall resort hereunder be had to, the private
property of any of the past, present or future Directors or Shareholders of the
Company or any successor
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corporation or any of the past, present or future officers, employees or agents
of the Company or any successor corporation, but only the property of the
Company or any successor corporation shall be bound in respect hereof.
ARTICLE EIGHT
MEETINGS OF WARRANTHOLDERS
8.01 RIGHT TO CONVENE MEETINGS. - The Warrant Agent may at any time
and from time to time and shall on receipt of a written request of the Company
or of a Warrantholders' Request and upon being indemnified to its reasonable
satisfaction by the Company or, as the case may be, by the Warrantholders
signing such Warrantholders' Request against the costs, charges, expenses and
liabilities which may be incurred by the Warrant Agent in connection with the
calling and holding of such meeting, convene a meeting of the Warrantholders. In
the event of the Warrant Agent failing within ten (10) days after receipt of
such written request by the Company or Warrantholders' Request and indemnity
given as aforesaid to give notice to convene a meeting, the Company or such
Warrantholders, as the case may be, may convene such meeting. Every such meeting
shall be held at such place as may reasonably be approved or determined by the
Warrant Agent.
8.02 NOTICE. - At least fifteen (15) days' notice of any meeting of
Warrantholders shall be given to the Warrantholders in the manner provided in
Article Three and a copy thereof shall be sent by post to the Warrant Agent
unless the meeting has been called by it and to the Company unless the meeting
has been called by it. Such notice shall state the time when and the place where
the meeting is to be held and shall state briefly the general nature of the
business to be transacted thereat. It shall not be necessary for any such notice
to set out the terms of any resolution to be proposed or any of the provisions
of this Article Eight. The notice convening any such meeting may be signed by an
appropriate officer of the Warrant Agent or of the Company or the person or
persons designated by such Warrantholders, as the case may be.
8.03 CHAIRMAN. - An individual (who need not be a Warrantholder)
nominated in writing by the Warrant Agent shall be chairman of the meeting and
if no individual is so nominated, or if the individual so nominated is not
present within fifteen (15) minutes from the time fixed for the holding of the
meeting, or if such person is unable or unwilling to act as chairman, the
Warrantholders present in person or by proxy shall choose some individual to be
chairman.
8.04 QUORUM. - Subject to the provisions of Section 8.12, at any
meeting of the Warrantholders a quorum shall consist of Warrantholders present
in person or by proxy and holding at least ten per cent (10%) of all the Special
Warrants outstanding as of the date of the meeting, provided that at least two
persons entitled to vote thereat are
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personally present. If a quorum of the Warrantholders shall not be present
within thirty (30) minutes from the time fixed for holding any meeting, the
meeting, if summoned by the Warrantholders or on a Warrantholders' Request,
shall be dissolved; but in any other case the meeting shall be adjourned to the
same day in the next following week (unless such day is a non-business day in
which case it shall be adjourned to the next following business day thereafter)
at the same time and place. At the reconvened meeting the Warrantholders present
in person or by proxy shall form a quorum and may transact the business for
which the meeting was originally called notwithstanding that they may not hold
at least ten per cent (10%) of all the then outstanding Special Warrants.
8.05 POWER TO ADJOURN. - Subject to the provisions of Section 8.04,
the chairman of any meeting at which a quorum of the Warrantholders is present
may, with the consent of the meeting, adjourn any such meeting and no notice of
such adjournment need be given except such notice, if any, as the meeting may
prescribe.
8.06 SHOW OF HANDS. - Every question submitted to a meeting shall
be decided in the first place by a majority of the votes given on a show of
hands except that votes on extraordinary resolutions shall be given in the
manner hereinafter provided. At any such meeting, unless a poll is duly demanded
as herein provided, a declaration by the chairman that a resolution has been
carried or carried unanimously or by a particular majority or lost or not
carried by a particular majority shall be conclusive evidence of the fact. Any
Warrantholder present in person or by proxy can demand a poll at any meeting in
accordance with the provisions of Section 8.07.
8.07 POLL. - On every extraordinary resolution, or on any other
question submitted to a meeting and after a vote by show of hands in respect of
such question, if requested by the chairman or by one of or more of the
Warrantholders acting in person or by proxy and holding at least five per cent
(5%) of all the Special Warrants then outstanding, a poll shall be taken in such
manner as the chairman shall direct. Questions other than extraordinary
resolutions shall be decided by a majority of the votes cast on the poll.
8.08 VOTING. - On a show of hands every person who is present and
entitled to vote, whether as a Warrantholder or as a proxy for one or more
absent Warrantholders or both, shall have one vote. On a poll, each
Warrantholder present in person or represented by a proxy duly appointed by
instrument in writing shall be entitled to one vote in respect of each Special
Warrant then held by him. A proxy need not be a Warrantholder. The chairman of
any meeting shall be entitled both on a show of hands and on a poll, to vote in
respect of the Special Warrants, if any, held or represented by him.
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8.09 REGULATIONS. - The Warrant Agent or the Company with the
approval of the Warrant Agent may from time to time make regulations and from
time to time vary such regulations as it shall from time to time think fit:
(a) for the deposit of instruments appointing proxies at such
place and time as the Warrant Agent, the Company or the
Warrantholder calling the meeting, as the case may be, may
direct in the notice calling the meeting;
(b) for the deposit of instruments appointing proxies at some
approved place or places other than the place at which the
meeting is to be held and enabling particulars of such
instruments appointing proxies to be mailed, cabled,
telecopied or telegraphed before the meeting to the Company or
to the Warrant Agent at the place where the same is to be held
and for the voting of proxies so deposited as though the
instruments themselves were produced at the meeting;
(c) for the form of the instrument of proxy; and
(d) generally, for the calling of meetings of Warrantholders and
for the conduct of business thereat.
Any regulations so made shall be binding and effective and the votes given in
accordance therewith shall be valid and shall be counted. Save as such
regulations may provide, the only persons who shall be recognized at any meeting
as the holders of any Warrant Certificates, or as entitled to vote or, subject
to Section 8.10, be present at the meeting in respect thereof, shall be the
registered holders of the Special Warrants, and their legal advisers may attend
such meeting, but shall have no vote as such.
8.10 COMPANY AND WARRANT AGENT MAY BE REPRESENTED. - The Company
and the Warrant Agent, by their respective officers or directors, and the legal
advisers of the Company and the Warrant Agent may attend any meeting of the
Warrantholders, but shall have no vote as such.
8.11 POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION. - In addition
to all other powers conferred upon them by any other provisions of this
Indenture or by law, the Warrantholders at a meeting shall have the following
powers exercisable from time to time by extraordinary resolution:
(a) power to consent and agree to any modification, abrogation,
alteration, compromise or arrangement of the rights of
Warrantholders or the Warrant Agent (in its capacity as
trustee hereunder or on behalf of the Warrantholders) with the
Company, whether such rights arise under this Indenture or the
Warrant Certificates or otherwise;
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(b) power to direct or authorize the Warrant Agent (i) to enforce
any of the covenants of the Company contained in this
Indenture or the Warrant Certificates, (ii) to enforce any of
the rights of the Warrantholders in any manner specified in
such extraordinary resolution or (iii) to refrain from
enforcing any such covenant or right;
(c) power to waive and direct the Warrant Agent to waive any
default on the part of the Company in complying with any
provision of this Indenture or the Warrant Certificates,
either unconditionally or upon any conditions specified in
such extraordinary resolution;
(d) power to restrain any Warrantholder from taking or instituting
any suit, action or proceeding against the Company (i) for the
enforcement of any of the covenants of the Company contained
in this Indenture or the Warrant Certificates or (ii) to
enforce any of the rights of the Warrantholders;
(e) power to direct any Warrantholder who, as such, has brought
any suit, action or proceeding to stay or discontinue or
otherwise deal with the same upon payment of the costs,
charges and expenses reasonably and properly incurred by such
Warrantholder in connection therewith;
(f) power to appoint any persons (whether Warrantholders or not)
as a committee to represent the interests of Warrantholders
and to confer upon such committee any powers or discretions
which the Warrantholders could themselves exercise by
extraordinary resolution or otherwise; and
(g) power to remove the Warrant Agent and to appoint a new trustee
in accordance with Section 10.07.
8.12 EXTRAORDINARY RESOLUTION. -
(1) The expression "extraordinary resolution" when used in this Indenture
means, subject as hereinafter in this Section 8.12 and in Sections 8.15
and 8.16 provided, a resolution proposed at a meeting of Warrantholders
duly called for that purpose and held in accordance with the provisions
of this Article Eight at which there are present in person or by proxy
Warrantholders holding at least fifty-one per cent (51%) of all the
Special Warrants outstanding as of the date of the meeting and passed
by the affirmative votes of Warrantholders holding not less than
sixty-six and two-thirds per cent (66-2/3%) of all the Special Warrants
outstanding as of the date of the meeting represented at the meeting
and voted in the poll upon such resolution.
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(2) If, at any such meeting called for the purpose of passing an
extraordinary resolution, Warrantholders holding fifty-one per cent
(51%) of all the then outstanding Special Warrants are not present in
person or by proxy within thirty (30) minutes from the time fixed for
holding the meeting, then the meeting, if called by Warrantholders or
on a Warrantholders' Request, shall be dissolved; but in any other case
it shall stand adjourned to such day, being not less than fifteen (15)
or more than sixty (60) days later, and to such place and time as may
be determined by the chairman. Not less than ten days' notice shall be
given of the time and place of such adjourned meeting in the manner
provided in Article Three. Such notice shall state that at the
adjourned meeting the Warrantholders present in person or by proxy
shall form a quorum but it shall not be necessary to set forth the
purposes for which the meeting was originally called or any other
particulars. At the adjourned meeting the Warrantholders present in
person or by proxy shall form a quorum notwithstanding the provisions
of Subsection 8.12(1) and may transact the business for which the
meeting was originally called and a resolution proposed at such
adjourned meeting and passed by the requisite vote as provided in
Subsection 8.12(1) shall be an extraordinary resolution within the
meaning of this Indenture, notwithstanding that Warrantholders holding
fifty-one per cent (51%) of all the then outstanding Special Warrants
are not present in person or by proxy at such adjourned meeting.
(3) Votes on an extraordinary resolution shall always be given on a poll
and no demand for a poll on an extraordinary resolution shall be
necessary.
8.13 POWERS CUMULATIVE. - It is hereby declared and agreed that any
one or more of the powers in this Indenture, stated to be exercisable by the
Warrantholders by extraordinary resolution or otherwise, may be exercised from
time to time and the exercise of any one or more of such powers from time to
time shall not be deemed to exhaust the right of the Warrantholders to exercise
such power or powers then or thereafter from time to time.
8.14 MINUTES. - Minutes of all resolutions and proceedings at every
meeting of Warrantholders shall be made and duly entered in books to be from
time to time provided for that purpose by the Warrant Agent at the expense of
the Company, and any such minutes, if signed by the chairman of the meeting at
which such resolutions were passed or proceedings had, or by the chairman of the
next succeeding meeting of the Warrantholders, shall be prima facie evidence of
the matters therein stated and, until the contrary is proved, every such
meeting, in respect of the proceedings of which minutes shall have been made,
shall be deemed to have been duly called and held, and all resolutions passed
thereat or proceedings taken, to have been passed and taken.
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8.15 INSTRUMENTS IN WRITING. - All actions which may be taken and
all powers that may be exercised by the Warrantholders at a meeting held as
provided in this Article Eight may also be taken and exercised by Warrantholders
holding sixty-six and two thirds per cent (66-2/3%) of all the then outstanding
Special Warrants, by an instrument in writing signed in one or more counterparts
by such Warrantholders in person or by attorney duly appointed in writing and
the expression "extraordinary resolution" when used in this Indenture shall
include an instrument so signed.
8.16 BINDING EFFECT OF RESOLUTIONS. - Every resolution and every
extraordinary resolution passed in accordance with the provisions of this
Article Eight at a meeting of Warrantholders shall be binding upon all the
Warrantholders, whether present or absent at such meeting, and every instrument
in writing signed by Warrantholders in accordance with the provisions of Section
8.15 shall be binding upon all the Warrantholders, whether signatories thereto
or not, and each and every Warrantholder and the Warrant Agent (subject to the
provisions for indemnity herein contained) shall be bound to give effect
accordingly to every such resolution, extraordinary resolution and instrument in
writing.
8.17 HOLDINGS BY COMPANY AND WARRANT AGENT DISREGARDED. - In
determining whether Warrantholders are present at a meeting of Warrantholders
for the purpose of determining a quorum or have concurred in any consent,
resolution, extraordinary resolution, Warrantholders' Request, waiver, or other
action under this Indenture, Warrant Certificates owned by the Company and any
subsidiary of the Company shall be deemed not to be outstanding and shall be
disregarded. The Company shall from time to time and forthwith upon the Warrant
Agent's written request file with the Warrant Agent a certificate of the Company
setting forth as at the date of such certificate the number of Special Warrants
owned by the Company and any subsidiary of the Company.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
9.01 PROVISION FOR SUPPLEMENTAL INDENTURES FOR CERTAIN PURPOSES. -
From time to time the Company (when authorized by action by the Directors) and
the Warrant Agent may, subject to the provisions of this Indenture and they
shall, when so directed by the provisions of this Indenture, execute and deliver
by their proper officers, indentures or instruments supplemental hereto, which
thereafter shall form part hereof, for any one or more or all of the following
purposes:
(a) setting forth adjustments pursuant to the provisions of
Section 4.08 and in the pro rata apportionments subject
however to the rights of Warrantholders not being impaired or
prejudiced thereby otherwise than as provided herein;
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(b) adding to the provisions hereof such additional covenants and
enforcement provisions as, in the opinion of counsel, are
necessary or advisable in the premises, provided that the same
are not, in the opinion of the Warrant Agent, prejudicial to
the interests of the Warrantholders;
(c) giving effect to any extraordinary resolution passed as
provided in Article Eight;
(d) making such provisions not inconsistent with this Indenture as
may be necessary or desirable with respect to matters or
questions arising hereunder or for the purpose of obtaining a
listing or quotation of the Special Warrants on any stock
exchange, provided that such provisions are not, in the
opinion of the Warrant Agent, prejudicial to the interests of
the Warrantholders;
(e) adding to or altering the provisions hereof in respect of the
registration and transfer of Special Warrants, making
provision for the exchange of Warrant Certificates, or making
any modification in the form of the Warrant Certificates which
does not affect the substance thereof;
(f) modifying any of the provisions of this Indenture or relieving
the Company from any of the obligations, conditions or
restrictions herein contained, provided that no such
modification or relief shall be or become operative or
effective in such manner as to impair any of the rights of the
Warrantholders or of the Warrant Agent and provided further
that the Warrant Agent may in its sole discretion decline to
enter into any such supplemental indenture which in its
opinion may not afford adequate protection to the Warrant
Agent when the same shall become operative; and
(g) for any other purpose not inconsistent with the terms of this
Indenture, including the correction or rectification of any
ambiguities, defective provisions, errors or omissions herein,
provided that, in the opinion of the Warrant Agent, the rights
of the Warrant Agent and of the Warrantholders are in no way
prejudiced thereby.
9.02 SUCCESSOR COMPANY. - In the case of a consolidation,
amalgamation, merger or transfer of the undertaking or assets of the Company as
an entirety or substantially as an entirety to another corporation (the
"Successor Company"), the Successor Company resulting from such consolidation,
amalgamation, merger or transfer (if not the Company) shall expressly assume, by
supplemental indenture satisfactory in form to the Warrant Agent and executed
and delivered to the Warrant Agent, the due and punctual performance and
observance of each and every covenant
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and obligation contained in this Indenture to be performed by the Company, as
the case may be.
ARTICLE TEN
CONCERNING THE WARRANT AGENT
10.01 TRUST INDENTURE LEGISLATION. -
(1) If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with a mandatory requirement of Applicable
Legislation, such mandatory requirement shall prevail.
(2) The Company and the Warrant Agent agree that each will at all times in
relation to this Indenture and any action to be taken hereunder observe
and comply with and be entitled to the benefits of Applicable
Legislation.
10.02 RIGHTS AND DUTIES OF WARRANT AGENT. -
(1) In the exercise of the rights and duties prescribed or conferred by the
terms of this Indenture, the Warrant Agent shall exercise that degree
of care, diligence and skill that a reasonably prudent trustee would
exercise in comparable circumstances. No provision of this Indenture
shall be construed to relieve the Warrant Agent from liability for its
own negligent action, its own negligent failure to act, or its own
willful misconduct or bad faith.
(2) Subject to Subsection 10.02(1), the Warrant Agent shall not be bound to
do or take any act or action for the enforcement of any of the
obligations of the Company under this Indenture unless and until it
will have received a Warrantholder's Request defining the action which
the Warrant Agent is required to take and then the obligation of the
Warrant Agent to commence or continue any act, action or proceeding for
the purpose of enforcing any rights of the Warrant Agent or the
Warrantholders hereunder shall be conditional upon the Warrantholders
furnishing, when required by notice by the Warrant Agent, sufficient
funds to commence or continue such act, action or proceeding and
indemnity reasonably satisfactory to the Warrant Agent to protect and
hold harmless the Warrant Agent against the costs, charges, expenses
and liabilities to be incurred thereby and any loss or damage it may
suffer by reason thereof. None of the provisions contained in this
Indenture shall require the Warrant Agent to expend or risk its own
funds or otherwise incur financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers unless
indemnified as aforesaid.
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(3) The Warrant Agent may, before commencing or at any time during the
continuance of any such act, action or proceeding, require the
Warrantholders, at whose instance it is acting, to deposit with the
Warrant Agent the Warrant Certificates held by them, for which Warrant
Certificates the Warrant Agent shall issue receipts.
(4) Every provision of this Indenture that by its terms relieves the
Warrant Agent of liability or entitles it to rely upon any evidence
submitted to it is subject to the provisions of Applicable Legislation
and of this Section 10.02.
10.03 EVIDENCE. -
(1) Whenever it is provided in this Indenture that the Company shall
deposit with the Warrant Agent resolutions, certificates, reports,
opinions, requests, orders or other documents, it is intended that the
truth, accuracy and good faith on the effective date thereof of the
facts and opinions stated in all documents so deposited shall, in each
and every such case, be conditions precedent to the right of the
Company to have the Warrant Agent take the action to be based thereon.
The Warrant Agent may rely and shall be protected in acting upon any
such documents deposited with it in purported compliance with any such
provision or for any other purpose hereof, but may, in its discretion,
require further evidence before acting or relying thereon.
(2) The Warrant Agent may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, letter, telecopy, telegram, cablegram
or other paper or document believed by it to be genuine and to have
been signed, sent or presented by or on behalf of the proper party or
parties.
(3) In addition to the reports, certificates, opinions and other evidence
required by this Indenture, the Company shall furnish to the Warrant
Agent such additional evidence of compliance with any provision hereof,
and in such form, as may be prescribed by Applicable Legislation or as
the Warrant Agent may reasonably require by written notice to the
Company.
(4) Whenever Applicable Legislation requires that evidence referred to in
Subsection 10.03(3) be in the form of a statutory declaration, the
Warrant Agent may accept such statutory declaration in lieu of a
certificate of the Company required by any provisions hereof. Any such
statutory declaration may be made by one or more of the President, the
Vice-President, the Secretary, the Treasurer, any Assistant Secretary
or any Assistant Treasurer of the Company.
(5) Proof of execution of an instrument in writing by any Warrantholder may
be made by the certificate of a notary public, or other officer with
similar powers,
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that the person signing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to such execution or
in any other manner which the Warrant Agent may consider adequate.
10.04 EXPERTS AND ADVISERS. -
(1) The Warrant Agent may employ or retain, at the expense of the Company,
such counsel, accountants, or other experts or advisers as it may
reasonably require, such discretion being exercised reasonably, for the
purpose of discharging its duties hereunder and shall not be
responsible for any misconduct on the part of any of them.
(2) The Warrant Agent may act and shall be protected in acting in good
faith on the opinion or advice of or information obtained from any
counsel, accountant or other expert or adviser, whether retained or
employed by the Company, or by the Warrant Agent, in relation to any
matter arising in relation to this Indenture.
10.05 WARRANT AGENT NOT REQUIRED TO GIVE SECURITY. - The Warrant Agent shall
not be required to give any bond or security in respect of the execution of the
trusts and powers of this Indenture or otherwise in respect of the premises.
10.06 PROTECTION OF WARRANT AGENT. - By way of supplement to the provisions
of any law for the time being relating to trustees, it is expressly declared and
agreed as follows:
(a) the Warrant Agent shall not be liable for or by reason of any
statement of fact or recital in this Indenture or in the
Warrant Certificates (except the representation contained in
Section 10.08 and in the certificate of the Warrant Agent on
the Warrant Certificates) or required to verify the same, but
all such statements or recitals are and shall be deemed to be
made by the Company;
(b) the Warrant Agent shall not be bound to give notice to any
person or persons of the execution hereof;
(c) the Warrant Agent shall not incur any liability or
responsibility whatever or be in any way responsible for the
consequence of any breach on the part of the Company of any of
the representations, warranties or covenants herein contained
or of any acts of Directors, officers, employees, agents or
servants of the Company;
(d) nothing herein contained shall impose any obligation on the
Warrant Agent to see to or to require evidence of the
registration or filing (or
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renewal thereof) of this Indenture or any instrument ancillary
or supplemental hereto;
(e) the Warrant Agent will at all times be indemnified and saved
harmless by the Company from and against all claims, demands,
losses, actions, causes of action, costs, charges, expenses,
damages and liabilities whatsoever arising in connection with
this Warrant Indenture, including, without limitation, those
arising out of or related to actions taken or omitted to be
taken by the Warrant Agent contemplated hereby, legal fees and
disbursements on a solicitor and client basis and costs and
expenses incurred in connection with the enforcement of this
indemnity, which the Warrant Agent may suffer or incur,
whether at law or in equity, in any way caused by or arising,
directly or indirectly, in respect of any act, deed, matter or
thing whatsoever made, done, acquiesced in or omitted in or
about or in relation to the execution of its duties as Warrant
Agent. The foregoing provisions of this Section 10.06 do not
apply to the extent that in any circumstances there has been a
failure by the Warrant Agent or its employees or agents to act
honestly and in good faith or to discharge the Warrant Agent's
obligations under Section 10.01. This indemnity and any
limitations thereto as set forth herein, will survive the
termination or discharge of this Warrant Indenture and the
resignation of the Warrant Agent;
(f) the Warrant Agent shall not be bound to give any notice or do
or take any act, action or proceeding by virtue of the powers
conferred on it hereby unless and until it shall have been
required so to do under the terms hereof; nor shall the
Warrant Agent be required to take notice of any default
hereunder, unless and until notified in writing of such
default, which notice shall distinctly specify the default
desired to be brought to the attention of the Warrant Agent,
and in the absence of any such notice the Warrant Agent may
for all purposes of this Indenture conclusively assume that no
default has been made in the observance or performance of any
of the representations, warranties, covenants, agreements or
conditions contained herein. Any such notice shall in no way
limit any discretion herein given to the Warrant Agent to
determine whether or not the Warrant Agent shall take action
with respect to any default;
(g) the Warrant Agent shall incur no liability with respect to the
delivery or non-delivery of any certificates whether delivered
by hand, mail or any other means; and
(h) the Warrant Agent shall have no obligation to ensure
compliance with any laws applicable to the issue, transfer or
exercise of any Special Warrants or Common Shares.
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10.07 REPLACEMENT OF WARRANT AGENT; SUCCESSOR BY AMALGAMATION. -
(1) The Warrant Agent may resign its trust and be discharged from all
further duties and liabilities hereunder, subject to this Subsection
10.07(1), by giving to the Company not less than sixty (60) days' prior
notice in writing or such shorter prior notice as the Company may
accept as sufficient. The Warrantholders, by extraordinary resolution,
shall have power at any time to remove the Warrant Agent and to appoint
a new trustee. In the event of the Warrant Agent resigning or being
removed as aforesaid or being dissolved, becoming bankrupt, going into
liquidation or otherwise becoming incapable of acting hereunder, the
Company shall forthwith appoint a new trustee unless such extraordinary
resolution has appointed a new trustee; failing such appointment by the
Company, the retiring Warrant Agent or any Warrantholder may apply to a
justice of the Ontario Court of Justice (General Division), on such
notice as such justice may direct for the appointment of a new trustee;
but any new trustee so appointed by the Company or by the Court shall
be subject to removal as aforesaid by the Warrantholders. Any new
trustee appointed under any provision of this Subsection 10.07(1) shall
be a corporation authorized to carry on the business of a trust company
in the Province of Ontario and British Columbia and, if required by the
Applicable Legislation of any other province in Canada, in such other
provinces. On any such appointment the new trustee shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named herein as trustee without any further assurance,
conveyance, act or deed; but there shall be immediately executed, at
the expense of the Company, all such conveyances or other instruments
as may, in the opinion of counsel, be necessary or advisable for the
purpose of assuring the same to the new trustee, provided that,
following any resignation or removal of the Warrant Agent and
appointment of a successor trustee, the successor trustee shall have
executed an appropriate instrument accepting such appointment and, at
the request of the Company, the predecessor Warrant Agent shall execute
and deliver to the successor trustee an appropriate instrument
transferring to such successor trustee all rights and powers of the
Warrant Agent hereunder so ceasing to act.
(2) Upon the appointment of a successor trustee, the Company shall promptly
notify the Warrantholders thereof in the manner provided for in Article
Three hereof.
(3) Any corporation into or with which the Warrant Agent may be merged or
consolidated or amalgamated, or any corporation resulting therefrom to
which the Warrant Agent shall be a party, or any corporation succeeding
to the trust business of the Warrant Agent shall be the successor to
the Warrant Agent hereunder without any further act on its part or any
of the parties hereto, provided that, such corporation would be
eligible for appointment as a successor trustee under Subsection
10.07(1) above.
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10.08 CONFLICT OF INTEREST. -
(1) The Warrant Agent represents to the Company that at the time of
execution and delivery hereof no material conflict of interest exists
in the Warrant Agent's role as a fiduciary hereunder and agrees that in
the event of a material conflict of interest arising hereafter it will,
within ninety (90) days after ascertaining that it has such material
conflict of interest, either eliminate the same or assign its trust
hereunder to a successor trustee approved by the Company and meeting
the requirements set forth in Subsection 10.07(1).
(2) Subject to Subsection 10.08(1), the Warrant Agent or a successor
trustee, in its personal or any other capacity, may buy, lend upon and
deal in securities of the Company and generally may contract and enter
into financial transactions with the Company or any subsidiary of the
Company without being liable to account for any profit made thereby.
10.09 ACCEPTANCE OF TRUST. - The Warrant Agent xxxxxx accepts the trusts in
this Indenture declared and provided for and agrees to perform the same upon the
terms and conditions hereinbefore set forth unless and until discharged
therefrom.
10.10 ACTIONS BY WARRANT AGENT TO PROTECT INTEREST. - The Warrant Agent shall
have power to institute and to maintain such actions and proceedings as it may
consider necessary or expedient to preserve, protect or enforce its interest and
the interests of the Warrantholders.
10.11 DOCUMENTS, MONEYS, ETC. HELD BY WARRANT AGENT. - Any securities,
documents of title or other instruments that may at any time be held by the
Warrant Agent subject to the trusts hereof may be placed in the deposit vaults
of the Warrant Agent or of any bank being listed in Schedule I of the Bank Act
(S.C. 1991, c. 46, as amended) or deposited for safekeeping with any such bank.
Unless herein otherwise expressly provided, any moneys so held pending the
application or withdrawal thereof under any provisions of this Indenture, may be
deposited in the name of the Warrant Agent in any such bank at the rate of
interest (if any) then current on similar deposits or, with the consent of the
Company, may be deposited in the deposit department of the Warrant Agent or any
other loan or trust company or chartered bank authorized to accept deposits
under the laws of Canada or a province thereof. All interest or other income
received by the Warrant Agent in respect of such deposits and investments shall,
subject to the provisions of Article Twelve hereof, belong to the Company.
10.12 WARRANT AGENT NOT TO BE APPOINTED RECEIVER. - The Warrant Agent and any
person related to the Warrant Agent shall not be appointed a receiver or
receiver and manager or liquidator of all or any part of the assets or
undertaking of the Company.
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10.13 WARRANT AGENT TO EXERCISE SPECIAL WARRANTS. - The Warrant Agent shall
automatically exercise the Special Warrants on behalf of the holders thereof at
the Deemed Exercise Time upon the terms and conditions specified in Subsection
4.06(1).
ARTICLE ELEVEN
FORM OF WARRANT CERTIFICATES
11.01 FORM OF WARRANT CERTIFICATES. - The following is the form of the
Warrant Certificate referred to in Article Two:
[FOR SPECIAL WARRANTS ISSUED IN THE UNITED STATES OR TO U.S. PERSONS ONLY,
INCLUDE THE FOLLOWING:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION, (B) OUTSIDE
THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, OR (C) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, IF APPLICABLE, AND IN COMPLIANCE
WITH ANY STATE SECURITIES LAWS OR (D) WITH THE PRIOR WRITTEN CONSENT OF THE
CORPORATION, PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS."]
[FOR SPECIAL WARRANTS ISSUED TO NON-U.S. PERSONS, INCLUDE THE FOLLOWING
THESE SECURITIES AND SECURITIES WHICH MAY BE ACQUIRED HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, (THE
"U.S. SECURITIES ACT") AND MAY NOT BE EXERCISED BY OR ON BEHALF OF ANY U.S.
PERSON UNLESS REGISTERED UNDER THE U.S. SECURITIES ACT OR PURSUANT TO AN
APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT.]
THE SPECIAL WARRANTS REPRESENTED BY THIS CERTIFICATE WILL BE VOID AND OF NO
VALUE UNLESS EXERCISED (IF PERMITTED TO BE EXERCISED IN ACCORDANCE WITH THE
TERMS HEREOF) ON THE EARLIER OF (THE "EXPIRY TIME") (I) THE TIME AT WHICH (THE
"DEEMED EXERCISE TIME") THE COMPANY COMPLETES THE AMALGAMATION WITH THORNBURY
CAPITAL CORPORATION, SUBJECT ONLY TO THE FILING OF PRE-APPROVED ARTICLES OF
AMALGAMATION WITH THE DIRECTOR UNDER THE BUSINESS CORPORATIONS ACT (ONTARIO),
THE COMPANY CLOSES THE ACQUISITION IN ESCROW, SUBJECT ONLY TO PAYMENT, OF
SUBSTANTIALLY ALL OF THE URANIUM PRODUCING ASSETS AND BUSINESS OF ENERGY FUELS,
LTD., ENERGY FUELS EXPLORATION COMPANY AND ENERGY FUELS NUCLEAR, INC. AND THE
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COMPANY OBTAINS A CONDITIONAL LISTING OF THE COMMON SHARES OF THE AMALGAMATED
COMPANY ON THE TORONTO STOCK EXCHANGE (COLLECTIVELY, THE "ESCROW RELEASE
CONDITIONS") AND (II) JUNE 24, 1997 (THE "AUTOMATIC RETRACTION TIME"). IN THE
EVENT THAT A HOLDER HAS NOT EXERCISED THE SPECIAL WARRANTS BY THE EXPIRY TIME
AND ALL OF THE ESCROW RELEASE CONDITIONS HAVE BEEN SATISFIED, THE SPECIAL
WARRANTS HELD BY SUCH HOLDER SHALL BE EXERCISED BY MONTREAL TRUST COMPANY OF
CANADA ON BEHALF OF SUCH HOLDER AT THE DEEMED EXERCISE TIME WITHOUT ANY FURTHER
ACTION ON THE PART OF THE HOLDER OR THE COMPANY. ANY SPECIAL WARRANTS NOT
EXERCISED PRIOR TO THE DEEMED EXERCISE TIME SHALL BE DEEMED TO HAVE BEEN
AUTOMATICALLY EXERCISED BY MONTREAL TRUST COMPANY OF CANADA ON BEHALF OF HOLDERS
OF SPECIAL WARRANTS, PROVIDED THAT ALL OF THE ESCROW RELEASE CONDITIONS HAVE
BEEN SATISFIED.
INTERNATIONAL URANIUM CORPORATION
(INCORPORATED UNDER THE LAWS OF ONTARIO)
SPECIAL WARRANTS
CERTIFICATE NUMBER OF
NUMBER___________ SPECIAL WARRANTS________
Special Warrants to Acquire Common Shares
THIS CERTIFIES THAT, for value received,______________________________
(the "Holder") is the registered holder of_______________________ Special
Warrants and is entitled, upon the terms and conditions set out herein, to
acquire for no additional consideration, one (1) common share (a "Common Share")
in the capital of International Uranium Corporation (the "Company") for each
such Special Warrant held, subject to adjustment.
Special Warrants shall be exercisable for Common Shares by the Holder at any
time prior to the Expiry Time by surrendering this certificate to Montreal Trust
Company of Canada (the "Warrant Agent") at 000 Xxxxx Xxxxxx Xxxx, Stock and Bond
Transfer Department, 8th Floor, Toronto, Ontario, M5J 2N1, Attention:
Reorganization Department, together with a duly completed and executed notice of
exercise in the form attached hereto (the "Notice of Exercise"). At any time
prior to the Expiry Time the Special Warrants represented by this certificate
shall be exercisable by the Holder, in whole only, and the Company shall cause
the Warrant Agent, upon receipt by the Warrant Agent of an executed Notice of
Exercise to issue certificates representing the Common Shares issuable upon the
exercise of the Special Warrants represented hereby to be mailed to the Holder
as recorded on the register maintained by the
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Warrant Agent and the Special Warrants represented by this certificate shall,
upon such delivery, be void and of no value or effect. The Holder shall be
deemed to have become the holder of record of such Common Shares immediately
prior to the close of business on the date of receipt by the Warrant Agent of
the Notice of Exercise.
All Special Warrants and Common Shares acquired upon the exercise of the Special
Warrants are subject to restrictions on resale until:
(a) the appropriate "hold period" has expired;
(b) a further statutory exemption may be relied upon by the
Holder;
(c) the securities sought to be resold are qualified for
distribution under a prospectus; or
(d) an appropriate discretionary order is obtained pursuant to
applicable securities legislation.
If the Escrow Release Conditions have not been satisfied by the Automatic
Retraction Time, the Warrant Agent shall automatically repurchase the
unexercised Special Warrants at such time on behalf of the Company, and the
holder of such unexercised Special Warrants shall be entitled to receive for
each Special Warrant an amount equal to $1.25 per Special Warrant so purchased
together with the Holder's pro rata share of the interest on the Escrowed Funds
(as defined in the Special Warrant Indenture dated the date hereof (the "Warrant
Indenture")). Such payment shall be made by way of cheque payable in the City of
Toronto, and upon delivery of such cheque the Special Warrants shall be void and
of no value.
Notwithstanding any adjustments provided for herein or otherwise, the Company
shall not be required upon the exercise of any Special Warrants, to issue
fractional Common Shares in satisfaction of its obligations hereunder. To the
extent that the Holder would otherwise be entitled to acquire a fraction of a
Common Share, such right may be exercised in respect of such fraction only in
combination with other rights which in the aggregate entitle the Holder to
acquire a whole number of Common Shares.
Nothing in this certificate or in the holding of a Special Warrant evidenced
hereby shall be construed as conferring upon the Holder any right or interest
whatsoever as a shareholder of the Company or entitle the Holder to any right or
interest in respect of any Common Shares, except as herein expressly provided.
All Special Warrants shall rank pari passu, notwithstanding the actual date of
the issue thereof.
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The Warrant Agent on behalf of the Company shall cause a register to be kept in
which shall be entered the names and addresses of all holders of the Special
Warrants and the number of Special Warrants held by them. No transfer of Special
Warrants shall be valid unless made by the Holder or its executors,
administrators or other legal representatives or its attorney duly appointed by
an instrument in writing in form and execution satisfactory to the Company and
the Warrant Agent on the register to be kept at the offices of the Warrant Agent
in the City of Toronto upon compliance with such reasonable requirements as the
Company and Warrant Agent may prescribe, including compliance with all
applicable securities legislation and the conditions prescribed in the Warrant
Indenture between the Warrant Agent and the Company, and recorded on the
register of holders of Special Warrants maintained by the Warrant Agent, nor
until stamp or governmental or other charges arising by reason of such transfer
have been paid. The transferee of a Special Warrant shall, after a form of
transfer acceptable to the Company and Warrant Agent is duly completed and the
Special Warrant is lodged with the Warrant Agent and upon compliance with all
other reasonable requirements of the Company and the Warrant Agent or law, be
entitled to have its name entered on the register as the owner of such Special
Warrant, free from all equities or rights of set-off or counterclaim between the
Company and the transferor or any previous holder of such Special Warrant, save
in respect of equities of which the Company is required to take notice by
statute or by order of a court of competent jurisdiction. The Company and the
Warrant Agent may treat the registered holder of any Special Warrant certificate
as the absolute owner of the Special Warrants represented thereby for all
purposes, and the Company and the Warrant Agent shall not be affected by any
notice or knowledge to the contrary except where the Company and Warrant Agent
is required to take notice by statute or by order of a court of competent
jurisdiction.
The number of Common Shares to be issued upon exercise of the right of exercise
evidenced hereby shall be subject to adjustment from time to time in the events
and in the manner specified in the Warrant Indenture. The Holder is advised to
carefully review such indenture for the particulars thereof.
The Warrant Agent shall not be required to deliver certificates representing
Common Shares issuable upon the exercise hereof when the Common Share transfer
books of the Company are properly closed, prior to any meeting of shareholders
or for the payment of dividends or for any other purpose and in the event of the
exercise of any Special Warrant in accordance with the provisions hereof during
any such period delivery of certificates may be postponed for not exceeding five
(5) business days after the date of the re-opening of said Common Shares
transfer books, provided however that any such postponement of delivery of
certificates shall be without prejudice to the right of the Holder to receive
such certificates after the Common Share transfer books shall have been
reopened.
Subject as herein provided, all or any of the rights conferred upon the Holder
may be enforced by the Holder by appropriate legal proceedings. No recourse
under or upon
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any obligation, covenant or agreement herein contained shall be had against any
shareholder, officer or director of the Company, either directly or through the
Company, it being expressly agreed and declared that the obligations under the
Special Warrants represented by this certificate are solely corporate
obligations of the Company and that no personal liability whatever shall attach
to or be incurred by the shareholders, officers, or directors of the Company or
any of them in respect thereof, any and all rights and claims against every such
shareholder, officer or director being hereby expressly waived as a condition of
and as a consideration for the issue of the Special Warrants represented by this
certificate.
If this Special Warrant certificate is stolen, lost, mutilated or destroyed the
Company may, on such terms as it may in its discretion impose, respectively
issue and countersign a new Special Warrant certificate of like denomination,
tenor and date as the certificate so stolen, lost, mutilated or destroyed.
This certificate and the Special Warrants represented hereby shall be governed
by, performed, construed and enforced in accordance with the Warrant Indenture
and the laws of the Province of Ontario and the laws of Canada applicable
therein.
Time shall be of the essence hereof.
IN WITNESS WHEREOF the Company has caused this Special Warrant
certificate to be signed by the signature of its duly authorized officer as of
this _________ day of __________________, 1997.
INTERNATIONAL URANIUM CORPORATION
Per:
-----------------------------------------
[Authorized Signing Officer]
Countersigned and Registered
Montreal Trust Company of Canada, as Warrant Agent
By:
-------------------------------------------
[Authorized Signing Officer]
Date:
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11.02 TRANSFER OF WARRANTS
The following is the form of transfer for the Warrants:
TRANSFER OF SPECIAL WARRANTS
ANY TRANSFER OF SPECIAL WARRANTS WILL REQUIRE COMPLIANCE WITH APPLICABLE
SECURITIES LEGISLATION. THE WARRANTHOLDER AND ANY TRANSFEREE ARE URGED TO
CONTACT LEGAL COUNSEL BEFORE EFFECTING ANY SUCH TRANSFER.
Neither the Special Warrants represented by this certificate nor the
securities issuable upon exercise hereof have been or will be registered under
the United States Securities Act of 1933, as amended (the "U.S. Securities
Act"). Subject to certain limited exceptions, the Special Warrants represented
by this certificate may not be transferred to, or for the account or benefit of,
a person in the United States (as such term is defined in Regulation S under the
U.S. Securities Act).
FOR VALUE RECEIVED the undersigned, hereby sells, assigns and transfers
unto
(name and address)
FURTHERMORE, the undersigned certifies (one (only) of the following
must be checked):
[ ] at the time of transfer it is within the United States, and
such sale, assignment and transfer is being made to a person
in the United States pursuant to an exemption from
registration under the U.S. Securities Act and an opinion of
counsel has been delivered to the Company.
[ ] such sale assignment and transfer is being made, and the
offer of the securities being sold, assigned and transferred
was made, to a person not in the United States.
Special Warrants of International Uranium Corporation registered in the name of
the undersigned on the records of Montreal Trust Company of Canada represented
by the Special Warrant Certificate attached and irrevocably appoints
____________________ attorney of the undersigned to transfer the said securities
on the books or register with full power of substitution.
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DATED THE _______ DAY OF _____________________, 1997
------------------------------- ------------------------------------
SIGNATURE GUARANTEED SIGNATURE OF SPECIAL WARRANT
HOLDER
------------------------------------
PRINT FULL NAME
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INSTRUCTIONS:
1. Signature of the Warrantholder must be the signature of the person
appearing on the face of this Warrant Certificate.
2. If the Transfer Form is signed by a trustee, executor, administrator,
curator, guardian, attorney, officer of a corporation or any person
acting in a fiduciary or representative capacity, the Warrant
Certificate must be accompanied by evidence of authority to sign
satisfactory to the Warrant Agent and the Company.
3. The signature on the Transfer Form must be guaranteed by a Canadian
bank or trust company or by a member of a stock exchange whose
signature is known to the Warrant Agent.
4. WARRANTS SHALL ONLY BE TRANSFERABLE IN ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS, THE RULES AND POLICIES OF ANY APPLICABLE STOCK
EXCHANGE AND ANY UNDERTAKING WHICH MAY HAVE BEEN GIVEN BY THE
WARRANTHOLDER. THE WARRANTHOLDER AND ANY TRANSFEREE ARE URGED TO
CONTACT LEGAL COUNSEL BEFORE EFFECTING ANY SUCH TRANSFER.
The undersigned transferee of ______________________ Special Warrants
of International Uranium Corporation hereby (i) acknowledges that such Special
Warrants are subject to the terms and conditions and provisions of an Indenture
dated March 26, 1997, and (ii) confirms and certifies that the transfer is made
in compliance with all applicable securities laws and regulations, the rules and
policies of any applicable stock exchange and any undertaking given to any
applicable stock exchange.
NAME OF TRANSFEREE (WARRANTHOLDER)
BY:
----------------------------------------
OFFICE OR TITLE
-------------------------------------------
ADDRESS OF TRANSFEREE (WARRANTHOLDER)
-------------------------------------------
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EXERCISE FORM
TO: MONTREAL TRUST COMPANY OF CANADA
000 XXXXX XXXXXX XXXX
XXXXX 000
XXXXXXX, XXXXXXX
X0X 0X0
ATTENTION: REORGANIZATION DEPARTMENT
AND TO: INTERNATIONAL URANIUM CORPORATION (THE "COMPANY")
The undersigned hereby exercises the right to acquire
_______________ Common Shares as defined in and according to the terms and
conditions of the Special Warrant certificate dated _________________, 1997 of
the Company registered in the name of the undersigned.
Such Common Shares are to be issued in the name of the
undersigned noted on the register of holders of Special Warrants maintained by
Montreal Trust Company of Canada.
Number of Special Warrants exchanged
DATED THIS ______ DAY OF _________________, 1997
------------------------------- ------------------------------------
WITNESS SIGNATURE OF SPECIAL WARRANT
HOLDER
------------------------------------
PRINT FULL NAME AND ADDRESS
------------------------------------
------------------------------------
------------------------------------
Please check box if Common Shares are to be held at the office of Montreal Trust
Company of Canada where the accompanying Special Warrant Certificate is
surrendered, failing which, Common Shares will be mailed to address set forth
above.
[ ]
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ARTICLE TWELVE
ESCROW ARRANGEMENTS
12.01 NET PROCEEDS AND INVESTMENT THEREOF. - The Warrant Agent acknowledges
receipt of the net proceeds of the offering of Special Warrants (after deducting
the Agents' Commission) and agrees to hold the same in trust on behalf of the
persons who have an interest therein pursuant hereto, and to disburse and deal
with the same as part of the Escrowed Funds all on the terms hereof. Pending
disbursement of the Escrowed Funds, the Warrant Agent agrees to hold, invest and
reinvest the same in Government of Canada Treasury Bills or as otherwise
directed by the Company from time to time. All such investments shall be
retained by the Warrant Agent in safekeeping at its principal office in Toronto
and shall be held in trust by the Warrant Agent on behalf of the persons who
have an interest therein pursuant hereto.
12.02 DISBURSEMENT OF ESCROWED FUNDS. - Subject to Section 12.04, the Warrant
Agent shall realize on the investments referred to in Section 12.01 and disburse
all or part of the Escrowed Funds in the following circumstances:
(a) if a holder exercises Special Warrants prior to the Expiry
Time, the Warrant Agent shall disburse to the Company from the
Escrowed Funds an amount equal to the subscription price of
the Special Warrants so exercised, net of any applicable
Agents' Commission, together with the interest accrued
thereon;
(b) if the Deemed Exercise Time has occurred and the Warrant Agent
has received the Escrow Certificate issued by the Company and
the Agents, the Warrant Agent shall as soon as practicable
thereafter disburse the Escrowed Funds (including, for greater
certainty, the interest accrued thereon) to the Company or as
the Company may direct; and
(c) if the Automatic Retraction Time has occurred and the Warrant
Agent has not received the Escrow Certificate, the Warrant
Agent shall disburse the Subscription Funds, together with the
pro rata share of the interest accrued on the Escrowed Funds,
all in accordance with Subsection 4.06(2).
12.03 ADDITIONAL PAYMENTS BY COMPANY. - In the event that the Warrant Agent
determines that the Escrowed Funds will not be sufficient to allow the Warrant
Agent to pay any amount or amounts pursuant to Section 4.06 or this Article
Twelve, the Warrant Agent shall give written notice of such determination to the
Company and the Company shall within one business day of the date upon which
such notice is given, pay to the Warrant Agent such amount as will be sufficient
to allow the Warrant Agent to pay any amount or amounts payable in accordance
with Section 4.06 or this Article Twelve. For greater certainty and without
limiting the generality of the foregoing, the Company shall
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contribute to the Escrowed Funds any amounts required to cover any currency
exchange risks and all transaction costs, in the event that the Escrow Release
Conditions (including without limitation the closing of the Acquisition on the
terms contemplated herein) is not completed as contemplated and the Escrowed
Funds are returned to the Warrant Agent for disbursement to the holders in
accordance with their respective retraction rights provided for in Subsection
4.06(2).
12.04 DELIVERY TO THIRD PARTY ESCROW AGENT. - Notwithstanding any other
provision hereof, the Warrant Agent shall, upon receipt of a joint direction
from the Company and the Agents, realize on all or part of the investments
referred to in Section 12.01 and deliver all or part of the Escrowed Funds to a
third party escrow agent pursuant to and in accordance with the instructions set
forth in such direction for the purpose of facilitating the completion of the
closing of the Acquisition.
ARTICLE THIRTEEN
REGISTER OF WARRANTHOLDERS
13.01 REGISTER OF SPECIAL WARRANTS. - The Warrant Agent shall prepare and
maintain at its principal stock transfer office in Toronto, Ontario or at any
other place designated by the Warrant Agent and agreed to by the Company, a
Warrant Register in which the Warrant Agent shall record the number of Special
Warrants issued hereunder and including:
(a) an alphabetical listing of the names of all Warrantholders;
(b) the date and particulars of the issue of Special Warrants
hereunder; and
(c) the date and other particulars of each transfer of Special
Warrants.
13.02 LOCATION OF WARRANT REGISTER. - The Warrant Register shall be kept at
the main principal stock transfer office of the Warrant Agent or at such other
place or places as the Warrant Agent and the Company may agree upon.
13.03 VALIDITY OF REGISTRATION. - A registration of a transfer of a Special
Warrant in the Warrant Register shall be a complete and valid registration for
all purposes.
ARTICLE FOURTEEN
GENERAL
14.01 NOTICE TO THE COMPANY AND THE WARRANT AGENT. -
(1) Unless herein otherwise expressly provided, any notice to be given
hereunder to the Company or to the Warrant Agent shall be deemed to be
validly given if delivered or if sent by registered letter, postage
prepaid:
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(a) If to the Company:
International Uranium Corporation
Suite 0000
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: President
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxxxxxx
Barristers and Solicitors
00 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx X. Xxxxx
Fax: (000) 000-0000
(b) If to the Warrant Agent:
Montreal Trust Company of Canada
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Manager, Corporate Trust Department
Fax: (000) 000-0000
and any such notice delivered in accordance with the foregoing shall be
deemed to have been received on the date of delivery or, if mailed, on
the fourth business day following the date of the postmark on such
notice.
(2) The Company or the Warrant Agent, as the case may be, may from time to
time notify the others in the manner provided in Subsection 14.01(1) of
a change of address which, from the effective date of such notice and
until changed by like notice, shall be the address of the Company or
the Warrant Agent, as the case may be, for all purposes of this
Indenture.
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(3) If, by reason of a strike, lockout or other work stoppage, actual or
threatened, involving postal employees, any notice to be given to the
Warrant Agent or to the Company hereunder could reasonably be
considered unlikely to reach its destination, such notice shall be
valid and effective only if it is delivered to an officer of the party
to which it is addressed or if it is delivered to such party at the
appropriate address provided in Subsection 14.01(1) by cable, telegram,
telex or other means of prepaid, transmitted, recorded communication.
14.02 TIME OF THE ESSENCE. - Time shall be of the essence in this Indenture.
14.03 COUNTERPARTS. - The Indenture may be executed in several counterparts,
each of which when so executed shall be deemed to be an original and such
counterparts together shall constitute one and the same instrument and
notwithstanding their date of execution shall be deemed to be dated as of the
day and date first above written.
14.04 SATISFACTION AND DISCHARGE OF INDENTURE. - Upon the earlier of (i) the
date by which there shall have been delivered to the Warrant Agent for exercise
or cancellation all Warrant Certificates theretofore certified hereunder or (ii)
the date the Warrant Agent has disbursed all of the Escrowed Funds in accordance
with Subsection 4.06(2) and Section 12.02, this Indenture shall cease to be of
further effect and the Warrant Agent, on demand of and at the cost and expense
of the Company and upon delivery to the Warrant Agent of a certificate of the
Chairman, President or any Vice-President of the Company stating that all
conditions precedent to the satisfaction and discharge of this Indenture have
been complied with and upon payment to the Warrant Agent of the expenses, fees
and other remuneration payable to the Warrant Agent, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture, except
those provisions dealing with the indemnification of the Warrant Agent.
14.05 PROVISIONS OF INDENTURE AND WARRANT CERTIFICATES FOR THE SOLE BENEFIT
OF PARTIES AND WARRANTHOLDERS. Nothing in this Indenture or the Warrant
Certificates, expressed or implied, shall give or be construed to give to any
person other than the parties hereto and the holders of the Warrant
Certificates, as the case may be, any legal or equitable right, remedy or claim
under this Indenture, or under any covenant or provision therein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and the Warrantholders.
IN WITNESS WHEREOF the parties have executed this Indenture as
of the date noted above.
INTERNATIONAL URANIUM CORPORATION
Per:
------------------------------------
[Authorized Signing Officer]
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MONTREAL TRUST COMPANY OF CANADA
Per:
------------------------------------
[Authorized Signing Officer]
Per:
------------------------------------
[Authorized Signing Officer]