and
COMPUTERSHARE INVESTOR SERVICES INC.
as Rights Agent
DATED
FEBRUARY 25, 2000
LAST AMENDED MAY 3, 2006
TABLE OF CONTENTS
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ARTICLE 1 — INTERPRETATION |
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1 |
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Certain Definitions |
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1 |
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Currency |
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14 |
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Headings |
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14 |
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Number and Gender |
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14 |
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Acting Jointly or in Concert |
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14 |
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Statutory References |
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15 |
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Holder |
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15 |
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Calculation of Voting Share Percentage |
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15 |
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Interpretation |
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15 |
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ARTICLE 2 — THE RIGHTS |
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15 |
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Legend on Voting Share Certificates |
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15 |
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Initial Exercise Price |
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16 |
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Rights Not Exercisable Until Separation Time |
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16 |
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Mailing of Rights Certificates and Disclosure Statement |
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17 |
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Exercise of Rights |
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17 |
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Duties of Rights Agent Upon Receipt of Election to Exercise |
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18 |
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Partial Exercise of Rights |
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18 |
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Duties of the Corporation |
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18 |
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Adjustments to Exercise Price; Number of Rights |
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19 |
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Date on Which Exercise is Effective |
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25 |
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Execution of Rights Certificates |
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25 |
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Authentication of Rights Certificates |
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26 |
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Dating of Rights Certificates |
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26 |
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Register of Rights |
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26 |
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Transfers and Exchanges |
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26 |
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Mutilated Rights Certificates |
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27 |
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Destroyed, Lost and Stolen Rights Certificates |
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27 |
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Replacement Fee |
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27 |
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Validity of Replacement Rights Certificates |
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27 |
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Persons Deemed Owners |
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27 |
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Delivery and Cancellation of Rights Certificates |
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28 |
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Agreement of Rights Holders |
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Rights Certificate Holder not Deemed a Shareholder |
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29 |
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29 |
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Flip-in Event |
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29 |
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Cancellation of Rights Held by an Acquiring Party |
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29 |
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Legend on Rights Certificates Transferred by an Acquiring Party |
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30 |
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ARTICLE 4 — THE RIGHTS AGENT |
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30 |
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Appointment of Rights Agent |
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Protection of Rights Agent |
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31 |
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Rights Agent to be Kept Informed |
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31 |
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Merger or Amalgamation or Change of Name of Rights Agent |
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31 |
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Countersigning of Rights Certificates |
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32 |
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Duties of Rights Agent |
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32 |
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Change of Rights Agent |
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33 |
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ARTICLE 5 — MISCELLANEOUS |
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34 |
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Redemption and Waiver |
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34 |
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Expiration |
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36 |
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Issuance of New Right Certificates |
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36 |
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Supplements and Amendments |
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37 |
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Timing of Certain Approvals of the Shareholders |
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38 |
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Effective Time of Supplements and Amendments |
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38 |
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Approvals of Amendments by Rights Agent |
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38 |
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Fractional Rights and Fractional Shares |
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38 |
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Rights of Action |
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39 |
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Notice of Proposed Actions |
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39 |
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Notices |
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39 |
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Successors |
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40 |
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Benefits of this Agreement |
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40 |
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Governing Law |
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40 |
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Severability |
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40 |
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Effective Date |
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41 |
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Determinations and Actions by the Board of Directors |
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41 |
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Rights of Board, Corporation and Offeror |
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41 |
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Regulatory Approvals |
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Declaration as to Non-Canadian Holders |
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Time of the Essence |
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Execution in Counterparts |
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42 |
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Exhibits
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Exhibit A
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Form of Rights Certificate (and attached Form of Election to Exercise and Form of Assignment) |
THIS AGREEMENT dated as of the 25th day of February, 2000 between
Glamis Gold Ltd. (the
“Corporation”), a corporation incorporated under the
Company Act (
British Columbia), and
Computershare Investor Services Inc., a trust company incorporated under the laws of Canada, as
Rights Agent (the “
Rights Agent”, which term will include any successor Rights Agent hereunder).
(A) The Board of Directors of the Corporation has determined that it is advisable and in the best
interests of the Corporation and its shareholders to adopt a shareholder rights plan (the “Rights
Plan”) to ensure, to the extent possible, that all shareholders of the Corporation are treated
fairly in connection with any take-over bid for the Corporation;
(B) In order to implement the adoption of the Rights Plan the Board of Directors has, subject to
receipt of shareholder and regulatory approval:
(a) authorized the issuance of one Right (as hereinafter defined) effective the Record Time
(as hereinafter defined) in respect of each Common Share outstanding at the Record Time; and
(b) authorized the issuance of one Right in respect of each Common Share issued after the
Record Time and prior to the earlier of the Separation Time (as hereinafter defined) and the
Expiration Time (as hereinafter defined);
(C) Each Right entitles the holder thereof, after the Separation Time, to purchase securities of
the Corporation pursuant to the terms and subject to the conditions set forth herein; and
(D) The Corporation desires to appoint the Rights Agent to act on behalf of the Corporation, and
the Rights Agent is willing to so act, in connection with the issuance, transfer, exchange and
replacement of Rights Certificates, the exercise of Rights, and other matters referred to herein.
NOW THEREFORE in consideration of the premises and the respective covenants and agreements set
forth herein the parties agree as follows:
ARTICLE 1 — INTERPRETATION
1.1 For purposes of this Agreement, the following terms have the meanings indicated:
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(a) “1933 Securities Act” means the Securities Act of 1933 of the United States, as amended,
and the rules and regulations thereunder, and any comparable or successor laws or
regulations thereto.
(b) “1934 Exchange Act” means the Securities Exchange Act of 1934 of the United States, as
amended, and the rules and regulations thereunder, and any comparable or successor laws or
regulations thereto.
(c) “Acquiring Person” means, any Person who is the Beneficial Owner of 20% or more of the
outstanding Voting Shares; save and except that the term “Acquiring Person” will not
include:
(i) the Corporation or any Subsidiary of the Corporation;
(ii) any Person who becomes the Beneficial Owner of 20% or more of the outstanding
Voting Shares of the Corporation as a result of
(A) Corporate Acquisitions,
(B) Permitted Bid Acquisitions,
(C) Corporate Distributions,
(D) Exempt Acquisitions, or
(E) Convertible Security Acquisitions;
(each an “Exempt Transaction”)
provided, however, that if a Person becomes the Beneficial Owner of 20% or more of
the outstanding Voting Shares by reason of one or more or any combination of Exempt
Transactions and, after such becomes the Beneficial Owner of an additional 1% or
more of the outstanding Voting Shares, other than pursuant to an Exempt Transaction,
such Person will, as at such time, become an Acquiring Person;
(iii) a Grandfathered Person provided, however, that if such person becomes, after
the Record Time, the Beneficial Owner of more than an additional 1% of the number of
Voting Shares outstanding, other than pursuant to Corporate Acquisitions, Permitted
Bid Acquisitions, Corporate Distributions, Exempt Acquisitions or Convertible
Security Acquisitions, such Person will as of the date of such acquisition become an
Acquiring Person;
(iv) for a period of 10 days after the Disqualification Date, any Person who becomes
the Beneficial Owner of 20% or more of the outstanding Voting Shares as a result of
such Person becoming disqualified from relying on §1.1(g)(vi) or §1.1(g)(viii)
solely because such Person makes or proposes to make a Take-over
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Bid in respect of securities of the Corporation alone or by acting jointly or in
concert with any other Person; and
(v) an underwriter or member of a banking or selling group which acquires Voting
Shares from the Corporation in connection with a distribution of securities of the
Corporation.
(d) “Affiliate”, when used to indicate a relationship with a specified Person, means a
Person that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such specified Person and a body corporate
will be deemed to be an Affiliate of another body corporate if one of them is the Subsidiary
of the other or if both are Subsidiaries of the same body corporate or if each of them is
controlled by the same Person.
(e) “Agreement” means this agreement as amended, modified or supplemented from time to time.
(f) “Associate”, when used to indicate a relationship with a specified Person, means
(i) a spouse of such specified Person,
(ii) any Person of either sex with whom such specified Person is living in a
conjugal relationship outside marriage, or
(iii) any relative of such specified Person or of a Person mentioned in §(i) or
§(ii) of this definition if that relative has the same residence as the specified
Person.
(g) a Person will be deemed the “Beneficial Owner”, and to have “Beneficial Ownership” of,
and to “Beneficially Own”:
(i) any securities of which such Person or any Affiliate or Associate of such Person
is the owner in law or equity;
(ii) any securities as to which such Person or any of such Person’s Affiliates or
Associates has the right to become the owner at law or in equity (whether such right
is exercisable immediately or within a period of 60 days thereafter and whether or
not on condition or the happening of any contingency or the making of any payment)
pursuant to any agreement, arrangement, pledge or understanding, whether or not in
writing (other than customary agreements with and between underwriters and banking
group or selling group members with respect to a distribution of securities or
pursuant to a pledge of securities in the ordinary course of business), or upon the
exercise of any conversion right, exchange right, share purchase right (other than a
Right), warrant or option; and
(iii) any securities that are Beneficially Owned within the meaning of §1.1(g)(i) or
(ii) by any other Person with whom such Person is acting jointly or in concert;
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provided, however, that a Person will not be deemed to be the “Beneficial Owner”, or to have
“Beneficial Ownership” of, or to “Beneficially Own”, any security by reason of:
(iv) such security having been deposited or tendered pursuant to a Take-over Bid
made by such Person or any of such Person’s Affiliates or Associates or made by any
other Person acting jointly or in concert with such Person, unless such deposited or
tendered security has been accepted unconditionally for payment or exchange or has
been taken up or paid for, whichever occurs first; or
(v) the holder of such security having agreed to deposit or tender such security to
a Take-over Bid made by such Person or any of such Person’s Affiliates or Associates
or any other Person referred to in §(iii) of this definition pursuant to a Permitted
Lock-up Agreement; or
(vi) such Person or any Affiliate or Associate of such Person or any other Person
acting jointly or in concert with such Person, holding such security, in
circumstances where
(A) the ordinary business of the Person (the “Fund Manager”) includes the
management of investment funds for others and such security is held by the
Fund Manager in the ordinary course of such business in the performance of
such Fund Manager’s duties for the account of any other Person (a “Client”),
or
(B) such Person (the “Trust Company”) is licensed to carry on the business
of a trust company under applicable law and, as such, acts as trustee or
administrator or in a similar capacity in relation to the estates of
deceased or incompetent Persons or in relation to other accounts and holds
such security in the ordinary course of such duties for the estate of any
such deceased or incompetent Person (each an “Estate Account”) or for such
other accounts (each an “Other Account”),
(C) the ordinary business or activity of such Person includes acting as an
agent of the Crown in the management of public assets (the “Crown Agent”),
or
(D) the Person is the administrator or the trustee of one or more pension
funds, plans or related trusts (each a “Pension Fund”) registered or
qualified under the laws of Canada or any province thereof or the laws of
the United States or any state thereof (the “Independent Person”), or is a
Pension Fund, and holds such securities for the purposes of its activities
as an Independent Person or as a Pension Fund, or
(E) the Person is an independent Person established by statute for purposes
that include, and the ordinary business or activity of such Person (in this
definition, the “Statutory Body”) includes, the management of investment
funds for employee benefit plans, pension plans, insurance
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plans of various public bodies and the Statutory Body holds such security
for the purposes of its activities as such;
and provided that the Fund Manager, the Trust Company, the Crown Agent, the
Independent Person, the Pension Fund or the Statutory Body, as the case may be, does
not make or propose to make a Take-over Bid in respect of securities of the
Corporation alone or by acting jointly or in concert with any other Person (other
than by means of ordinary market transactions (including prearranged trades) entered
into in the ordinary course of business of such Person executed through the
facilities of a stock exchange or organized over-the-counter market); or
(vii) such Person being a Client of the same Fund Manager as another Person on whose
account the Fund Manager holds such security, or such Person being an Estate Account
or an Other Account of the same Trust Company as another Person on whose account the
Trust Company holds such security, or such Person being a Pension Fund with the same
Independent Person as another Pension Fund;
(viii) such Person being a Client of a Fund Manager and such security is owned at
law or in equity by the Fund Manager, or such Person being an Estate Account or an
Other Account of a Trust Company and such security is owned at law or in equity by
the Trust Company, or such Person being a Pension Fund and such security is owned at
law or in equity by the Independent Person; or
(ix) such Person being a registered holder of securities as a result of carrying on
the business of, or acting as the nominee of, a securities depository.
(h) “Board of Directors” means, at any time, the duly constituted board of directors of the
Corporation.
(i) “
Business Day” means any day other than a Saturday, Sunday or a day on which banking
institutions in the Cities of Vancouver,
British Columbia and Toronto, Ontario are
authorized or obligated by law to close.
(j) “Company Act” means the Company Act, R.S.B.C. 1996, c.62, as amended, and the
regulations made thereunder, and any comparable or successor laws or regulations thereto.
(k) “Canadian Dollar Equivalent” of any amount which is expressed in United States dollars
means on any date the Canadian dollar equivalent of such amount determined by reference to
the Canadian-U.S. Exchange Rate on such date.
(l) “Canadian-U.S. Exchange Rate” means, on any date, the inverse of the U.S.-Canadian
Exchange Rate.
(m) “
close of business” on any given day means the time on such day (or, if such day is not
a Business Day, the time on the next succeeding Business Day) at which the office of the
transfer agent for the Common Shares in Vancouver,
British Columbia (or, after
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the Separation Time, the office of the Rights Agent in Vancouver,
British Columbia) is
closed to the public.
(n) “Common Shares” means the common shares in the capital of the Corporation.
(o) “Competing Permitted Bid” means a Take-over Bid that is made while another Permitted Bid
or Competing Permitted Bid is in existence and that satisfies all of the components of the
definition of a Permitted Bid, except that the requirements set out in §(ii) of the
definition of a Permitted Bid will be satisfied if the Competing Permitted Bid contains, and
the take up and payment for securities tendered or deposited thereunder will be subject to,
an irrevocable and unqualified condition that no Voting Shares will be taken up or paid for
pursuant to the Competing Permitted Bid prior to the close of business on the day that is no
earlier than the later of 21 days after the date the Competing Permitted Bid is made and the
earliest date on which Voting Shares may be taken up or paid for under any other Permitted
Bid then in existence at the date of such Competing Permitted Bid and only if at the time
when Voting Shares are first taken up and paid for under the Competing Permitted Bid, more
than 50% of the then outstanding Voting Shares held by Independent Shareholders have been
deposited to the Competing Permitted Bid and not withdrawn.
(p) “controlled”: a corporation is “controlled” by another Person if:
(i) securities entitled to vote in the election of directors carrying more than 50%
of the votes for the election of directors are held, directly or indirectly, by or
for the benefit of the other Person or Persons acting jointly or in concert with it;
and
(ii) the votes carried by such securities are entitled, if exercised, to elect a
majority of the board of directors of such corporation;
and “controls”, “controlling” and “under common control with” will be interpreted
accordingly.
(q) “Convertible Security” means at any time:
(i) any right (regardless of whether such right constitutes a security); or
(ii) any security issued by the Corporation (other than the Rights);
which is exercisable or exercisable within a period of 60 days from that time, by the holder
thereof to acquire Voting Shares or other securities which are convertible into or
exercisable or exchangeable for Voting Shares (in each case, whether such right is then
exercisable or exercisable within a period of 60 days from that time and whether or not on
condition or the happening of any contingency).
(r) “Convertible Security Acquisition” means the acquisition of Voting Shares upon the
exercise of Convertible Securities received by a Person pursuant to a Permitted Bid
Acquisition, an Exempt Acquisition or a Corporate Distribution.
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(s) “Corporate Acquisition” means an acquisition by the Corporation or a Subsidiary of the
Corporation of Voting Shares which by reducing the number of outstanding Voting Shares,
increases the proportionate number of Voting Shares Beneficially Owned by any Person.
(t) “Corporate Distribution” means:
(i) a stock dividend or a stock split or other event pursuant to which a Person
receives or acquires Voting Shares or Convertible Securities on the same pro rata
basis as all other holders of Voting Shares of the same class; or
(ii) any other event pursuant to which all holders of Voting Shares are entitled to
receive Voting Shares or Convertible Securities on a pro rata basis, including,
without limiting the generality of the foregoing, pursuant to the receipt or
exercise of rights issued by the Corporation and distributed to all the holders of a
series or class of Voting Shares to subscribe for or purchase Voting Shares or
Convertible Securities, provided that a Person shall not thereby acquire a greater
percentage of such Voting Shares of Convertible Securities so offered, than the
Person’s percentage of Voting Shares Beneficially Owned immediately prior to the
distribution.
(u) “Disqualification Date” in respect of a Person means the first date that a public
announcement is made indicating that the Person has or is making or has announced on
intention to make, a Take-over Bid alone or by acting jointly or in concert with any other
Person.
(v) “Election to Exercise” has the meaning ascribed thereto in §2.5(a).
(w) “Exempt Acquisition” means an acquisition of Voting Shares
(i) in respect of which the Board of Directors has waived the application of §3.1
pursuant to the provisions of §5.1(b), §5.1(c) or §5.1(d), or
(ii) pursuant to a dividend reinvestment plan of the Corporation, or
(iii) pursuant to a distribution to the public by the Corporation of Voting Shares
or Convertible Securities made pursuant to a prospectus, or pursuant to a
distribution by the Corporation of Voting Shares or Convertible Securities by way of
a private placement by the Corporation or upon the exercise by an individual
employee or director of stock options granted under a stock option plan of the
Corporation or rights to purchase securities granted under a share purchase plan of
the Corporation, provided that all necessary stock exchange approvals for such
private placement, stock option plan or share purchase plan have been obtained and
such private placement, stock option plan or share purchase plan complies with the
terms and conditions of such approvals and such Person does not become the
Beneficial owner of more than 25% of the Voting Shares outstanding immediately prior
to the distribution and in making this determination the Voting Shares to be issued
to such Person in the distribution will be deemed to be held by
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such Person but will not be included in the aggregate number of outstanding Voting
Shares immediately prior to the distribution.
(x) “Exercise Price” means, as of any date, the price at which a holder may purchase the
securities issuable upon exercise of one whole Right. Until adjustment or revision thereof
in accordance with the terms hereof, the Exercise Price will be $100.00.
(y) “Expiration Time” means the earlier of:
(i) the Termination Time, and
(ii) the close of business on the date of the Corporation’s 2009 Annual Meeting of
Shareholders.
(z) “Flip-in Event” means a transaction or event that results in a Person becoming an
Acquiring Person.
(aa) “Grandfathered Person” means any person who is the Beneficial Owner of 20% or more of
the outstanding Voting Shares at the Record Time.
(aa) “Independent Shareholders” means all holders of Voting Shares except for
(i) an Acquiring Person,
(ii) an Offeror, other than a person referred to in §1.1(g)(vi),
(iii) an Affiliate or Associate of such Acquiring Person or such Offeror,
(iv) a Person acting jointly or in concert with such Acquiring Person or such
Offeror, and
(v) an employee benefit plan, stock purchase plan, deferred profit sharing plan or
any similar plan or trust for the benefit of employees of the Corporation or a
Subsidiary of the Corporation, unless the beneficiaries of any such plan or trust
direct the manner in which the Voting Shares are to be voted or withheld from voting
or direct whether the Voting Shares are to be tendered to a Take-over Bid.
(ab) “Market Price” per security of any securities on any date of determination means the
average of the daily closing prices per security of such securities (determined as described
below) on each of the 20 consecutive Trading Days through and including the Trading Day
immediately preceding such date; provided, however, that if an event of a type analogous to
any of the events described in §2.9 has caused the closing prices used to determine the
Market Price on any Trading Days not to be fully comparable with the closing price on such
date of determination or, if the date of determination is not a Trading Day, on the
immediately preceding Trading Day, each such closing price so used will be appropriately
adjusted in a manner analogous to the applicable adjustment provided for in §2.9 in order to
make it fully comparable with the closing price on such date of determination or, if the
date of determination is not a Trading Day, on the
- 9 -
immediately preceding Trading Day. The closing price per security of a security on a
specified date will be
(i) the closing board lot sale price on the date or, if such price is not available,
the average of the closing bid and asked prices on the date, for the security as
reported by The Toronto Stock Exchange, or
(ii) if for any reason none of such prices is available on such day or the
securities are not listed or admitted to trading on The Toronto Stock Exchange, the
closing board lot sale price on the date, or if such price is not available, the
average of the closing bid and asked prices on the date, for the security as
reported by the NYSE, or
(iii) if for any reason none of such prices is available on such day or the
securities are not listed or admitted to trading on The Toronto Stock Exchange or
the NYSE, the closing board lot sale price on the date, or if such price is not
available, the average of the closing bid and asked prices on the date, for the
security as reported by the principal stock exchange in Canada or the United States
on which the security is primarily traded, or
(iv) if not so listed, the last quoted price on the date, or if not so quoted, the
average of the high bid and low asked prices on the date, for the security in the
over-the-counter market, as reported by Nasdaq or, if the securities are not quoted
on Nasdaq, as reported by such other system then in use, or
(v) if on any such date the securities are not quoted by any such organization, the
average of the closing bid and asked prices on the date as furnished by a
professional market maker making a market in the security as selected by the Board
of Directors; provided, however, that if on any such date the security is not traded
in the over-the-counter market, the closing price per security on such date will
mean the fair value per security on such date as determined by a nationally or
internationally recognized investment dealer or investment banker.
The Market Price will be expressed in Canadian dollars. If the price for the security on
any day forming part of the 20 consecutive Trading Day period is in United States dollars,
such amount will be translated into Canadian dollars at the Canadian Dollar Equivalent
thereof.
(ac) “Nasdaq” means The NASDAQ SmallCap Market.
(ad) “NYSE” means the New York Stock Exchange.
(ae) “Offer to Acquire” means:
(i) an offer to purchase, a public announcement of an intention to make an offer to
purchase, or a solicitation of an offer to sell, Voting Shares; and
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(ii) an acceptance of an offer to sell Voting Shares, whether or not such offer to
sell has been solicited;
or any combination thereof, and the Person accepting an offer to sell will be deemed to be
making an Offer to Acquire to the Person that made the offer to sell.
(af) “Offeror” means a Person who has announced a current intention to make, or who makes
and has outstanding, a Take-over Bid.
(ag) “Offeror’s Securities” means the aggregate of Voting Shares and Convertible Securities
Beneficially Owned by a Person on the date upon which it becomes an Offeror.
(ah) “Outstanding Voting Shares” means that number of Common Shares, or other Voting Shares,
which are issued and outstanding at the time of a Flip-in Event on a fully-diluted basis
and, for more certainty, includes without limitation all outstanding options, warrants,
rights or other securities (excluding the Rights) convertible into Common Shares or other
Voting Shares to be issued from treasury at the time of a Flip-in Event.
(ai) “Permitted Bid” means a Take-over Bid made by an Offeror which is made by means of a
Take-over Bid circular and which:
(i) is made to all holders of Voting Shares;
(ii) contains, and the take up and payment for securities tendered or deposited
thereunder will be subject to, an irrevocable and unqualified condition that no
Voting Shares will be taken up or paid for pursuant to the Take-over Bid prior to
the close of business on the date which is not less than 45 days following the date
the Take-over Bid circular is sent to shareholders of the Corporation and that no
Voting Shares will be taken up or paid for pursuant to the Take-over Bid unless, at
such date, more than 50% of the then outstanding Voting Shares held by Independent
Shareholders have been deposited to the Take-over Bid and not withdrawn;
(iii) contains an irrevocable and unqualified provision that, unless the Take-over
Bid is withdrawn, Voting Shares of the Corporation may be deposited pursuant to the
Take-over Bid at any time during the period of time described in §1.1(ai)(ii) and
that any Voting Shares deposited pursuant to the Take-over Bid may be withdrawn at
any time until taken up and paid for; and
(iv) contains an irrevocable and unqualified provision that provides upon the
condition referred to in §1.1(ai)(ii) being satisfied, the Offeror will make a
public announcement of that fact on the date the Take-over Bid would otherwise
expire and the Take-over Bid will be extended for a period of not less than 10
Business Days from the date it would otherwise expire.
(aj) “Permitted Bid Acquisition” means the acquisition of Voting Shares made pursuant to a
Permitted Bid or a Competing Permitted Bid.
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(ak) “Permitted Lock-up Agreement” means an agreement between an Offeror, any of its
Affiliates or Associates or any other Person acting jointly or in concert with the Offeror
and a Person (the “Locked-up Person”) who is not an Affiliate or Associate of the Offeror or
a Person acting jointly or in concert with the Offeror, whereby the Locked-up Person agrees
to deposit or tender the Voting Shares or Convertible Securities held by the Locked-up
Person to the Offeror’s Take-over Bid or to any Take-over Bid made by any of the Offeror’s
Affiliates or Associates or made by any other Person acting jointly or in concert with the
Offeror (the “Lock-up Bid”), where,
(i) the agreement,
(A) permits the Locked-up Person to withdraw the Voting Shares or
Convertible Securities from the agreement in order to tender or deposit them
to another Take-over Bid or to support another transaction, that provides
for a consideration for each Voting Share or Convertible Security that is
higher than the consideration contained in or proposed to be contained in
the Lock-up Bid; or
(B) permits the Locked-up Person to withdraw its Voting Shares or
Convertible Securities from the agreement in order to tender or deposit them
to another Take-over Bid or to support another transaction, that provides
for a consideration for each Voting Shares or Convertible Security that
exceeds by as much as or more than a specified amount (the “Specified
Amount”) the consideration for each Voting Share or Convertible Security
contained in the Lock-up Bid and does not by its terms provide for a
Specified Amount that is greater than 7% over the consideration for each
Voting Share or Convertible Security contained in the Lock-up Bid;
and, for greater certainty, the agreement may contain a right of first refusal or
require a period of delay to give the Offeror an opportunity to at least match a
higher consideration payable under another Take-over Bid or transaction or other
similar limitation on a Locked-up Person’s right to withdraw Voting Shares or
Convertible Securities from the agreement and not tender such to the Lock-up Bid, so
long as the limitation does preclude the exercise by the Locked-up Person of the
right to withdraw Voting Shares or Convertible Securities in sufficient time to
tender to the other Take-over Bid or participate in the other transaction;
(ii) the agreement does not provide for any “break-up fees”, “top-up fees”,
penalties, expense reimbursement or other amounts that exceed in the aggregate the
greater of:
(A) the cash equivalent of 2.5% of the consideration payable under the
Lock-up Bid to the Locked-up Person; and
(B) 50% of the amount by which the consideration payable under another
Take-over Bid or transaction to a Locked-up Person exceeds the
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consideration that such Locked-up Person would have received under the
Lock-up Bid;
to be paid by a Locked-up Person pursuant to the Lock-up Agreement in the event that
the Locked-up Persons fails to deposit or tender Voting Shares or Convertible
Securities to the Take-over Bid or withdraws such in order to tender to another
Take-over Bid or participate in another transaction.
(al) “Person” means any individual, firm, partnership, association, trust, trustee,
executor, administrator, legal or personal representative, government, governmental body,
entity or authority, group, body corporate, corporation, unincorporated organization or
association, syndicate, joint venture or any other entity, whether or not having legal
personality, and any of the foregoing in any derivative, representative or fiduciary
capacity, and pronouns have a similar extended meaning.
(am) “Record Time” means 5:00 p.m. (Toronto time) on February 25, 2000.
(an) “Redemption Price” has the meaning ascribed thereto in §5.1(a).
(ao) “regular periodic cash dividends” means cash dividends paid at regular intervals in any
fiscal year of the Corporation to the extent that such cash dividends do not exceed, in the
aggregate, the greatest of
(i) 200% of the aggregate amount of cash dividends declared payable by the
Corporation on its Common Shares in its immediately preceding fiscal year, and
(ii) 100% of the aggregate consolidated net income of the Corporation, before
extraordinary items, for its immediately preceding fiscal year.
(ap) “Right” means a right issued pursuant to this Agreement.
(aq) “Rights Certificate” has the meaning ascribed thereto in §2.4(a).
(ar) “Rights Register” has the meaning ascribed thereto in §2.14.
(as) “
Securities Act (British Columbia)” means the
Securities Act, R.S.B.C. 1996, c.418, as
amended, and the regulations, rules, policies and notices thereunder, and any comparable or
successor laws, regulations, rules, policies or notices thereto.
(at) “Securities Act (Ontario)” means the Securities Act, R.S.O. 1990, c. S.5, as amended,
and the regulations, rules, policies, and notices thereunder, and any comparable or
successor laws, regulations, rules, policies or notices thereto.
(au) “Separation Time” means the close of business (Vancouver Time) on the 10th Trading Day
after the earlier of
(i) the Stock Acquisition Date,
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(ii) the date of the commencement of, or first public announcement of the intent of
any person (other than the Corporation or any Subsidiary of the Corporation) to
commence, a Take-over Bid (other than a Permitted Bid or Competing Permitted Bid),
and
(iii) the date upon which a Permitted Bid or Competing Permitted Bid ceases to be
such,
or such later date as may be determined by the Board of Directors provided that, if any such
Take-over Bid expires, is cancelled, terminated or otherwise withdrawn prior to the
Separation Time, such Take-over Bid will be deemed, for the purposes of this definition,
never to have been made and provided further that if the Board of Directors determines
pursuant to §5.1(b), §5.1(c) or §5.1(d) to waive the application of §3.1 to a Flip-in Event,
the Separation Time in respect of such Flip-in Event will be deemed never to have occurred.
(av) “
Stock Acquisition Date” means the first date of public announcement (which, for
purposes of this definition, will include, without limitation, a report filed pursuant to
§101 of the
Securities Act (Ontario) or §111 of the
Securities Act (
British Columbia) or
§13(d) under the 1934 Exchange Act) by the Corporation or an Offeror or Acquiring Person,
that a Person has become an Acquiring Person.
(aw) “Subsidiary”: a corporation will be deemed to be a Subsidiary of another corporation
if:
(i) it is controlled by:
(A) that other; or
(B) that other and one or more corporations each of which is controlled by
that other; or
(C) two or more corporations each of which is controlled by that other; or
(ii) it is a Subsidiary of a corporation that is that other’s Subsidiary.
(ax) “Take-over Bid” means an Offer to Acquire Voting Shares or Convertible Securities where
the Voting Shares subject to the Offer to Acquire, together with the Voting Shares into
which the Convertible Securities are convertible, exchangeable or exercisable, and the
Offeror’s Securities, constitute in the aggregate 20% or more of the outstanding Voting
Shares at the date of the Offer to Acquire.
(ay) “Termination Time” means the time at which the right to exercise Rights will terminate
pursuant to §5.1(a) and §5.1(e).
(az) “Trading Day”, when used with respect to any securities, means a day on which the
principal Canadian stock exchange or American stock exchange or market on which
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such securities are listed or admitted to trading is open for the transaction of business
or, if the securities are not listed or admitted to trading on any Canadian stock exchange
or American stock exchange or market, a Business Day.
(ba) “U.S. — Canadian Exchange Rate” means on any date:
(i) if on such date the Bank of Canada sets an average noon spot rate of exchange
for the conversion of one United States dollar into Canadian dollars, such rate; and
(ii) in any other case, the rate for such date for the conversion of one United
States dollar into Canadian dollars which is calculated in the manner which will be
determined by the Board of Directors from time to time acting in good faith.
(bb) “Voting Shares” means the Common Shares and any other shares in the capital of the
Corporation entitled to vote generally in the election of all directors of the Corporation.
1.2 All sums of money which are referred to in this Agreement are expressed in lawful money of
Canada, unless otherwise specified.
1.3 The division of this Agreement into Articles, Sections, Subsections, Clauses and Subclauses and
the insertion of headings, subheadings and a table of contents are for convenience of reference
only and will not affect the construction or interpretation of this Agreement.
Number and Gender
1.4 Wherever the context so requires, terms used herein importing the singular number only will
include the plural and vice-versa and words importing only one gender will include all others.
1.5 For the purposes of this Agreement, a Person is acting jointly or in concert with every Person
who is a party to an agreement, commitment or understanding, whether formal or informal, with the
first Person or any Associate or Affiliate of such Person to acquire or make directly or indirectly
an Offer to Acquire Voting Shares of the Corporation (other than customary agreements with and
between underwriters or banking group members or selling group members with respect to a
distribution of securities or to a pledge of securities in the ordinary course of business).
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1.6 Unless the context otherwise requires or except as expressly provided herein, any reference
herein to a specific part, section, subsection, clause or rule of any statute or regulation will be
deemed to refer to the same as it may be amended, re-enacted or replaced or, if repealed and there
will be no replacement therefor, to the same as it is in effect on the date of this Agreement.
1.7 As used in this Agreement, unless the context otherwise requires, the term “holder” when used
with reference to Rights, means the registered holder of such Rights or, prior to the Separation
Time, the associated Voting Shares.
1.8 For purposes of this Agreement, the percentage of Voting Shares Beneficially Owned by any
Person, will be and be deemed to be the product of 100 and the number of which the numerator is the
number of votes for the election of all directors generally attaching to the Voting Shares and
Convertible Securities Beneficially Owned by such Person and the denominator of which is the number
of votes for the election of all directors generally attaching to all outstanding Voting Shares and
Convertible Securities. Where any Person is deemed to Beneficially Own unissued Voting Shares,
such Voting Shares will be deemed to be issued and outstanding for the purpose of calculating the
percentage of Voting Shares Beneficially Owned by such Person.
1.9 For the purposes of this Agreement, except as otherwise expressly provided herein:
(a) the symbol § followed by a number or some combination of numbers and letters refers to
the section, paragraph, subparagraph, clause or subclause of this Agreement so designated,
(b) the word “or” is not exclusive and the word “including” is not limiting (whether or not
non-limiting language such as “without limitation” or “but not limited to” or other words of
similar import is used with reference thereto); and
(c) a reference to a corporate entity includes and is also a reference to any corporate
entity that is a successor to such entity.
ARTICLE 2 — THE RIGHTS
2.1 Certificates:
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(a) issued for Voting Shares after the Record Time but prior to the close of business on the
earlier of the Separation Time and the Expiration Time will evidence one Right for each
Common Share represented thereby and will have impressed on, printed on, written on or
otherwise affixed to them, a legend in substantially the following form:
“Until the Separation Time (as defined in the Rights Plan referred to below), this
certificate also evidences and entitles the holder hereof to certain Rights as set
forth in a
Shareholder Rights Plan Agreement, dated as of February 25, 2000 (the
“
Rights Plan”), between
Glamis Gold Ltd. (the “
Corporation”) and The Computershare
Investor Services Inc., as rights agent (the “
Rights Agent”), the terms of which are
hereby incorporated herein by reference and a copy of which is on file at the
principal executive office of the Corporation. Under certain circumstances, as set
forth in the Rights Plan, such Rights may be amended or redeemed, may expire, may
become null and void (if, in certain cases, they are issued to or “
Beneficially
Owned” by any Person who is, was or becomes an “
Acquiring Person”, as such terms are
defined in the Rights Plan, whether currently held by or on behalf of such Person or
any subsequent holder) or may be evidenced by separate certificates and may no
longer be evidenced by this certificate. The Corporation will mail or arrange for
the mailing of a copy of the Rights Plan to the holder of this certificate without
charge upon receipt of a written request therefor.”
and
(b) representing Common Shares that are issued and outstanding at the Record Time will
evidence one Right for each Common Share evidenced thereby notwithstanding the absence of
the foregoing legend until the earlier of the Separation Time and the Expiration Time.
2.2 Subject to adjustment as herein set forth and subject to §3.1, each Right, save and except
those held by the Corporation and any of its Subsidiaries which will be void, will entitle the
holder thereof, from and after the Separation Time and prior to the Expiration Time, to purchase,
for the Exercise Price as at the Business Day immediately preceding the date of exercise of the
Right, one Common Share.
Rights Not Exercisable Until Separation Time
2.3 Until the Separation Time:
(a) the Rights will not be exercisable, and
(b) for administrative purposes each Right will be evidenced by the certificates for the
associated Voting Shares registered in the names of the holders thereof (which certificates
will also be deemed to be Rights Certificates) and will be transferable only together with,
and will be transferred by a transfer of, such associated Voting Shares.
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2.4 From and after the Separation Time and prior to the Expiration Time, the Rights may be
exercised, and will be registered and transferable independently of Voting Shares. Promptly
following the Separation Time, the Corporation will prepare and the Rights Agent will mail to each
holder of record of Rights as of the Separation Time (other than an Acquiring Person, any other
Person whose Rights are or become void pursuant to the provisions of §3.2 and, in respect of any
Rights Beneficially Owned by such Acquiring Person which are not held of record by such Acquiring
Person, the holder of record of such Rights) at such holder’s address as shown by the records of
the Corporation (the Corporation hereby agreeing to furnish copies of such records to the Rights
Agent for this purpose),
(a) a certificate (a “Rights Certificate”) in substantially the form of Exhibit A hereto
appropriately completed, representing the number of Rights held by such holder at the
Separation Time and having such marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Corporation may deem appropriate and as are
not inconsistent with the provisions of this Agreement, or as may be required to comply with
any law, rule, regulation or judicial or administrative order or with any rule or regulation
made pursuant thereto or with any rule or regulation of any self-regulatory organization,
stock exchange or quotation system on which the Rights may from time to time be listed or
traded, or to conform to usage, and
(b) a disclosure statement describing the Rights,
provided that a nominee will be sent the materials provided for in this §2.4 in respect of all
Voting Shares held of record by it which are not Beneficially Owned by an Acquiring Person. In
order for the Corporation to determine whether any Person is holding Voting Shares which are
Beneficially Owned by another Person, the Corporation may require such first mentioned Person to
furnish it with such information and documentation as the Corporation considers advisable.
2.5 Rights may be exercised in whole at any time or in part from time to time on any Business Day
(or other day that is not a bank holiday at the place of exercise) after the Separation Time and
prior to the Expiration Time by submitting to the Rights Agent, at its office in the City of
Vancouver,
British Columbia, Canada or at any other office of the Rights Agent or any Co-Rights
Agent in the cities specified in the Rights Certificate or designated from time to time for that
purpose by the Corporation after consultation with the Rights Agent:
(a) the Rights Certificate evidencing such Rights with an Election to Exercise (an “Election
to Exercise”) substantially in the form attached to the Rights Certificate, appropriately
completed and duly executed by the holder or his executors or administrators or other
personal representatives or his legal attorney duly appointed by instrument in writing in
form and executed in a manner satisfactory to the Rights Agent; and
(b) payment by certified cheque or money order payable to the order of the Corporation, of a
sum equal to the Exercise Price multiplied by the number of Rights
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being exercised and a sum sufficient to cover any transfer tax or charge which may be
payable in respect of any transfer involved in the issuance, transfer or delivery of Rights
Certificates or the issuance, transfer or delivery of certificates for Common Shares in a
name other than that of the holder of the Rights being exercised.
2.6 Upon receipt of a Rights Certificate, which is accompanied by a completed Election to Exercise
that does not indicate that such Right is null and void as provided by §3.2, and payment as set
forth in §2.5(b), the Rights Agent (unless otherwise instructed by the Corporation) will thereupon
promptly:
(a) requisition from the transfer agent for the Common Shares certificates representing the
number of Common Shares to be purchased (the Corporation hereby irrevocably authorizing its
transfer agent to comply with all such requisitions);
(b) when appropriate, requisition from the Corporation the amount of cash to be paid in lieu
of issuing fractional Common Shares;
(c) after receipt of such certificates, deliver the same to or upon the order of the
registered holder of such Rights Certificate, registered in such name or names as may be
designated by such registered holder;
(d) when appropriate, after receipt, deliver such cash (less any amounts required to be
withheld) to or to the order of the registered holder of the Rights Certificate; and
(e) tender to the Corporation all payments received on exercise of the Rights.
2.7 In case the holder of any Rights exercises less than all of the Rights evidenced by such
holder’s Rights Certificate, a new Rights Certificate evidencing the Rights remaining unexercised
will be issued by the Rights Agent to such holder or to such holder’s duly authorized assigns.
Duties of the Corporation
2.8 The Corporation covenants and agrees that it will:
(a) take all reasonable action as may be necessary on its part and within its power to
ensure that all Common Shares or other securities delivered upon exercise of Rights will, at
the time of delivery of the certificates for such shares (subject to payment of the Exercise
Price), be duly and validly authorized, executed, issued and delivered and fully paid and
non-assessable;
(b) take all reasonable action as may be necessary on its part and within its power to
comply with any applicable requirements of the Company Act, the
Securities Act (
British
Columbia), the
Securities Act (Ontario), and any applicable comparable securities
- 19 -
legislation of each of the other provinces of Canada, the 1933 Securities Act, the 1934
Exchange Act and any other applicable law, rule or regulation, in connection with the
issuance and delivery of the Rights Certificates and the issuance of any Common Shares or
other securities upon exercise of Rights. The Corporation may temporarily suspend, for a
period of time not to exceed 90 days, the exercisability of the Rights in order to prepare
and file any securities disclosure documents required by securities legislation in respect
of the issuance and delivery of the Rights Certificates and the issuance of any Common
Shares or other securities upon exercise of Rights. Upon such suspension, the Corporation
will issue a public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as the suspension is no
longer in effect, in each case with prompt written notice to the Rights Agent.
Notwithstanding any such provision of this Agreement to the contrary, the Rights will not be
exercisable in any jurisdiction unless the requisite qualification in such jurisdiction has
been obtained;
(c) use its reasonable efforts to cause, from and after such time as the Rights become
exercisable, all Common Shares which may be issued upon the exercise thereof, to be listed
on the principal stock exchanges on which the Common Shares are traded;
(d) cause to be reserved and kept available out of its authorized and unissued Common
Shares, the number of Common Shares that, as provided in this Agreement, will from time to
time be sufficient to permit the exercise in full of all outstanding Rights; and
(e) pay when due and payable any and all Canadian and, if applicable, United States,
federal, provincial and state transfer taxes and charges (not including any income or
capital taxes of the holder or exercising holder or any liability of the Corporation to
withhold tax) which may be payable in respect of the original issuance or delivery of the
Rights Certificates, provided that the Corporation will not be required to pay any transfer
tax or charge which may be payable in respect of any transfer involved in the transfer or
delivery of Rights Certificates or the issuance or delivery of certificates for shares or
other securities in a name other than that of the registered holder of the Rights being
transferred or exercised.
2.9 The Exercise Price, the number and kind of Common Shares or other securities subject to
purchase upon exercise of each Right and the number of Rights outstanding are subject to adjustment
from time to time as provided in this §2.9:
(a) if the Corporation at any time after the Record Time,
(i) declares or pays a dividend on the Common Shares payable in Common Shares (or
other securities exchangeable for or convertible into or giving a right to acquire
Common Shares or other securities) other than the issue of Common Shares or such
exchangeable or convertible securities to holders of Common Shares in lieu of but
not in an amount which exceeds the value of regular periodic cash dividends;
- 20 -
(ii) subdivides or changes the Common Shares into a greater number of Common Shares;
(iii) combines or changes the Common Shares into a smaller number of Common Shares
or;
(iv) issues any Common Shares (or other securities exchangeable for or convertible
into or giving a right to acquire Common Shares or other securities) in respect of,
in lieu of or in exchange for existing Common Shares in a reclassification or
redesignation of Common Shares, an amalgamation or statutory arrangement,
the Exercise Price and the number of Rights outstanding, or, if the payment or effective
date therefor will occur after the Separation Time, the securities purchasable upon exercise
of Rights will be adjusted in the manner set forth below. If an event occurs which would
require an adjustment under both this §2.9 and §3.1, the adjustment provided for in this
§2.9 will be in addition to, and will be made prior to, any adjustment required under §3.1.
If the Exercise Price and number of Rights are to be adjusted,
(A) the Exercise Price in effect after such adjustment will be equal to the
Exercise Price in effect immediately prior to such adjustment divided by the
number of Common Shares (or other capital stock of the Corporation) (the
“Expansion Factor”) that a holder of one Common Share immediately prior to
such dividend, subdivision, change, consolidation or issuance would hold
immediately thereafter as a result thereof (assuming the exercise of all
such exchange or conversion rights, if any), and
(B) each Right held prior to such adjustment will become that number of
Rights equal to the Expansion Factor, and the adjusted number of Rights will
be deemed to be distributed among the Common Shares with respect to which
the original Rights were associated (if they remain outstanding) and the
shares issued in respect of such dividend, subdivision, change,
consolidation or issuance, so that each such Common Share (or other capital
stock) will have exactly one Right associated with it.
If the securities purchasable upon exercise of Rights are to be adjusted, the securities
purchasable upon exercise of each Right after such adjustment will be the securities that a
holder of the securities purchasable upon exercise of one Right immediately prior to such
dividend, subdivision, change, consolidation or issuance would hold immediately thereafter
as a result thereof. To the extent that any such rights of exchange, conversion or
acquisition are not exercised prior to the expiration thereof, the Exercise Price will be
readjusted to the Exercise Price which would then be in effect based upon the number of
Common Shares (or securities convertible into or exchangeable for Common Shares) actually
issued upon the exercise of such rights. If after the Record Time and prior to the
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Expiration Time the Corporation issues any shares of its authorized capital other than
Common Shares in a transaction of a type described in §2.9(a)(i) and §2.9(a)(iv), such shares will be treated herein as nearly equivalent to Common Shares as may be practicable
and appropriate under the circumstances and the Corporation and the Rights Agent agree to
amend this Agreement in order to effect such treatment.
If the Corporation, at any time after the Record Time and prior to the Separation Time,
issues any Common Shares otherwise than in a transaction referred to in this §2.9(a), each
Common Share so issued will automatically have one new Right associated with it, which Right
will be evidenced by the certificate representing such share;
(b) if at any time after the Record Time and prior to the Separation Time the Corporation
fixes a record date for the issuance of rights, options or warrants to all holders of Common
Shares entitling them (for a period expiring within 45 calendar days after such record date)
to subscribe for or purchase Common Shares (or shares having the same rights, privileges and
preferences as Common Shares (“equivalent common shares”)) or securities convertible into or
exchangeable for or carrying a right to purchase Common Shares or equivalent common shares,
at a price per Common Share or per equivalent common share (or having a conversion price or
exchange price or exercise price per share, if a security convertible into or exchangeable
for or carrying a right to purchase Common Shares or equivalent common shares) less than 90%
of the Market Price per Common Share on such record date, the Exercise Price will be
adjusted as follows:
(i) the Exercise Price to be in effect after such record date will equal the
Exercise Price in effect immediately prior to such record date multiplied by a
fraction, the numerator of which will be the number of Common Shares outstanding on
such record date, plus the number of Common Shares that the aggregate offering price
of the total number of Common Shares and/or equivalent common shares so to be
offered (and/or the aggregate initial conversion, exchange or exercise price of the
convertible or exchangeable securities or rights so to be offered, including the
price required to be paid to purchase such convertible or exchangeable securities or
rights so to be offered) would purchase at such Market Price per Common Share, and
the denominator of which will be the number of Common Shares outstanding on such
record date, plus the number of additional Common Shares and/or equivalent common shares to be offered for subscription or purchase (or into which the convertible or
exchangeable securities are initially convertible, exchangeable or exercisable);
(ii) if the Exercise Price may be paid by delivery of consideration, part or all of
which is in a form other than cash, the value of such non-cash consideration will be
as determined by the Board of Directors, whose determination will be described in a
certificate filed with the Rights Agent and will be binding on the Rights Agent and
the holders of the Rights; and
(iii) such adjustment will be made successively whenever such a record date is
fixed, and in the event that such rights or warrants are not so issued, the Exercise
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Price will be adjusted to be the Exercise Price which would then be in effect if
such record date had not been fixed.
For purposes of this Agreement, the granting of the right to purchase Common Shares (or
equivalent common shares) (whether from treasury shares or otherwise) pursuant to any
dividend or interest reinvestment plan and/or any Common Share purchase plan providing for
the reinvestment of dividends or interest payable on securities of the Corporation and/or
the investment of periodic optional payments and/or employee benefit, stock option or
similar plans (so long as such right to purchase is in no case evidenced by the delivery of
rights or warrants) will not be deemed to constitute an issue of rights, options or warrants
by the Corporation; provided, however, that, in the case of any dividend or interest
reinvestment plan, the right to purchase Common Shares (or equivalent common shares) must be
at a price per share of not less than 90% of the current market price per share (determined
as provided in such plans) of the Common Shares;
(c) if after the Record Time and prior to the Separation Time the Corporation fixes a record
date for a distribution to all holders of Common Shares (including any such distribution
made in connection with a merger, amalgamation, arrangement, plan, compromise or
reorganization in which the Corporation is the continuing or successor corporation) of
evidences of indebtedness, cash (other than a regular periodic cash dividend or a regular
periodic cash dividend paid in Common Shares, but including any dividend payable in
securities other than Common Shares), assets or subscription rights, options or warrants
(excluding those referred to in §2.9(b)), the Exercise Price will be adjusted as follows:
(i) the Exercise Price to be in effect after such record date will be determined by
multiplying the Exercise Price in effect immediately prior to such record date by a
fraction, the numerator of which will be the Market Price per Common Share on such
record date, less the fair market value (as determined by the Board of Directors,
whose determination will be described in a statement filed with the Rights Agent) of
the portion of the cash, assets or evidences of indebtedness so to be distributed or
of such subscription rights, options or warrants applicable to a Common Share and
the denominator of which will be such Market Price per Common Share; and
(ii) such adjustments will be made successively whenever such a record date is
fixed, and in the event that such distribution is not so made, the Exercise Price
will be adjusted to be the Exercise Price which would have been in effect if such
record date had not been fixed;
(d) notwithstanding anything herein to the contrary, no adjustment in the Exercise Price
will be required unless such adjustment would require an increase or decrease of at least 1%
in the Exercise Price; provided, however, that any adjustments which by reason of this
§2.9(d) are not required to be made will be carried forward and taken into account in any
subsequent adjustment. All calculations under this §2.9 will be made to the nearest cent or
to the nearest one-hundredth of a Common Share or other share, as the
- 23 -
case may be. Notwithstanding the first sentence of this §2.9(d), any adjustment required by
this §2.9 will be made no later than the earlier of (A) 3 years from the date of the
transaction which mandates such adjustment or (B) the Expiration Time;
(e) each adjustment made pursuant to this §2.9 will be made as of:
(i) the payment or effective date for the applicable dividend, subdivision, change,
consolidation or issuance in the case of an adjustment made pursuant to §2.9(a), and
(ii) the record date for the applicable dividend or distribution, in the case of an
adjustment made pursuant to §2.9(b) or §2.9(c);
(f) if the Corporation, at any time after the Record Time and prior to the Expiration Time,
issues any shares of capital stock (other than Common Shares), or rights or warrants to
subscribe for or purchase any such capital stock, or securities convertible into or
exchangeable for any such capital stock, in a transaction referred to in §2.9(a)(i) or
§2.9(a)(iv) and, if the Board of Directors determines that the adjustments contemplated by
§2.9(a), §2.9(b) and §2.9(c) in connection with such transaction will not appropriately
protect the interests of the holders of Rights, the Board of Directors may determine what
other adjustments to the Exercise Price, number of Rights and/or securities purchasable upon
exercise of Rights would be appropriate and, notwithstanding §2.9(a), §2.9(b) and §2.9(c),
such adjustments, rather than the adjustments contemplated by §2.9(a), §2.9(b) and §2.9(c),
will be made. The Corporation and the Rights Agent will amend this Agreement, subject to
prior shareholder approval, as appropriate to provide for such adjustments;
(g) each Right originally issued by the Corporation subsequent to any adjustment made to the
Exercise Price hereunder will evidence the right to purchase, at the adjusted Exercise
Price, the number of Common Shares purchasable from time to time hereunder upon exercise of
such Right, all subject to further adjustment as provided herein;
(h) unless the Corporation has exercised its election as provided in §2.9(i), upon each
adjustment of the Exercise Price as a result of the calculations made in §2.9(b) and
§2.9(c), each Right outstanding immediately prior to the making of such adjustment will
thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of
Common Shares (calculated to the nearest one ten-thousandth) obtained by (A) multiplying (x)
the number of shares purchasable upon exercise of a Right immediately prior to this
adjustment by (y) the Exercise Price in effect immediately prior to such adjustment of the
Exercise Price, and (B) dividing the product so obtained by the Exercise Price in effect
immediately after such adjustment of the Exercise Price;
(i) the Corporation may elect on or after the date of any adjustment of the Exercise Price
to adjust the number of Rights, in lieu of any adjustment in the number of Common Shares
purchasable upon the exercise of a Right. Each of the Rights outstanding after the
adjustment in the number of Rights will be exercisable for the number of Common Shares for
which a Right was exercisable immediately prior to such adjustment. Each
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Right held of record prior to such adjustment of the number of Rights will become that
number of Rights (calculated to the nearest one ten-thousandth) obtained by multiplying it
by a fraction, the numerator of which is the Exercise Price in effect immediately prior to
adjustment of the Exercise Price and the denominator of which is the Exercise Price in
effect immediately after adjustment of the Exercise Price. The Corporation will make a
public announcement of its election to adjust the number of Rights, indicating the record
date for the adjustment, and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Exercise Price is adjusted or any day
thereafter, but, if Rights Certificates have been issued, will be at least 10 days later
than the date of the public announcement. If Rights Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this §2.9(i), the Corporation will, as
promptly as practicable, cause to be distributed to holders of record of Rights Certificates
on such record date Rights Certificates evidencing, subject to §5.8, the additional Rights
to which such holders will be entitled as a result of such adjustment, or, at the option of
the Corporation, will cause to be distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, new Rights Certificates evidencing all the Rights to
which such holders will be entitled after such adjustment. Rights Certificates so to be
distributed will be issued, executed and countersigned in the manner provided for herein and
may bear, at the option of the Corporation, the adjusted Exercise Price and will be
registered in the names of the holders of record of Rights Certificates on the record date
for the adjustment specified in the public announcement;
(j) irrespective of any adjustment or change in the Exercise Price or the securities
purchasable upon the exercise of the Rights, the Rights Certificates theretofore and
thereafter issued may continue to express the Exercise Price per share and the number of
Common Shares or other securities which were expressed in the initial Rights Certificates
issued hereunder;
(k) in any case in which this §2.9 requires that an adjustment in the Exercise Price be made
effective as of a record date for a specified event, the Corporation may elect to defer
until the occurrence of such event the issuance, to the holder of any Right exercised after
such record date, of the number of Common Shares and other securities of the Corporation, if
any, issuable upon such exercise over and above the number of Common Shares and other
securities of the Corporation, if any, issuable upon such exercise on the basis of the
Exercise Price in effect prior to such adjustment; provided, however, that the Corporation
will deliver to such holder an appropriate instrument evidencing such holder’s right to
receive such additional shares (fractional or otherwise) or securities upon the occurrence
of the event requiring such adjustment.
(l) notwithstanding anything in this §2.9 to the contrary, the Corporation will be entitled
to make such reductions in the Exercise Price, in addition to those adjustments expressly
required by this §2.9, as and to the extent that the Board of Directors determines to be
advisable in order that any
(i) consolidation or subdivision of the Common Shares,
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(ii) issuance of any Common Shares at less than the Market Price,
(iii) issuance of securities convertible into or exchangeable for Common Shares,
(iv) stock dividends or
(v) issuance of rights, options or warrants,
referred to in this §2.9 hereafter made by the Corporation to holders of its Common Shares,
will not be taxable to such shareholders;
(m) whenever an adjustment to the Exercise Price or a change in the securities purchasable
upon the exercise of Rights is made pursuant to this §2.9, the Corporation will promptly:
(i) prepare a certificate setting forth such adjustment and a brief statement of the
facts accounting for such adjustment;
(ii) file with the Rights Agent and with each transfer agent for the Common Shares,
a copy of such certificate; and
(iii) cause notice of the particulars of such adjustment or change to be given to
the holders of the Rights.
Failure to file such certificate or to cause such notice to be given as aforesaid, or any
defect therein, will not affect the validity of any such adjustment or change.
Date on Which Exercise is Effective
2.10 Each Person in whose name any certificate for Common Shares is issued upon the exercise of
Rights, will for all purposes be deemed to have become the holder of record of the Common Shares
represented thereby on, and such certificate will be dated, the date upon which the Rights
Certificate evidencing such Rights was duly surrendered (together with a duly completed Election to
Exercise) and payment of the Exercise Price for such Rights (and any applicable transfer taxes and
other governmental charges payable by the exercising holder hereunder) was made; provided, however,
that if the date of such surrender and payment is a date upon which the Common Share transfer books
of the Corporation are closed, such Person will be deemed to have become the record holder of such
shares on, and such certificate will be dated, the next succeeding Business Day on which the Common
Share transfer books of the Corporation are open or on which such suspension is no longer
effective.
2.11 The Rights Certificates will be executed on behalf of the Corporation by its President or any
of its senior officers, together with its Secretary or Assistant Secretary. The signature of any
of these officers on the Rights Certificates may be manual or facsimile. Rights Certificates
bearing the manual or facsimile signatures of individuals who were at any time the
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proper officers of the Corporation will bind the Corporation, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the countersignature and delivery of such
Rights Certificates.
2.12 Promptly after the Corporation learns of the Separation Time, the Corporation will notify the
Rights Agent of such Separation Time and will deliver Rights Certificates executed by the
Corporation to the Rights Agent for countersignature, and the Rights Agent will countersign
(manually or by facsimile signature in a manner satisfactory to the Corporation) and send such
Rights Certificates to the holders of the Rights pursuant to §2.4. No Rights Certificate will be
valid for any purpose until countersigned by the Rights Agent as aforesaid.
2.13 Each Rights Certificate will be dated the date of countersignature thereof.
2.14 The Corporation will cause to be kept a register (the “Rights Register”) in which, subject to
such reasonable regulations as it may prescribe, the Corporation will provide for the registration
and transfer of Rights. The Rights Agent is hereby appointed “Rights Registrar” for the purpose of
maintaining the Rights Register for the Corporation and registering Rights and transfers of Rights
as herein provided. In the event that the Rights Agent will cease to be the Rights Registrar, the
Rights Agent will have the right to examine the Rights Register at all reasonable times.
Transfers and Exchanges
2.15 After the Separation Time and prior to the Expiration Time, upon surrender for registration of
transfer or exchange of any Rights Certificate and subject to the provisions of §2.15(c) and the
other provisions of this Agreement:
(a) the Corporation will execute and the Rights Agent will countersign and deliver, in the
name of the holder or the designated transferee or transferees as required pursuant to the
holder’s instructions, one or more new Rights Certificates evidencing the same aggregate
number of Rights as did the Rights Certificates so surrendered;
(b) all Rights issued upon any registration of transfer or exchange of Rights Certificates
will be the valid obligations of the Corporation, and such Rights will be entitled to the
same benefits under this Agreement as the Rights surrendered upon such registration of
transfer or exchange; and
(c) every Rights Certificate surrendered for registration of transfer or exchange will be
duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to
the Corporation or the Rights Agent, as the case may be, duly executed by the holder thereof
or such holder’s attorney duly authorized in writing. As a condition to the issuance of any
new Rights Certificate under this §2.15, the Corporation or the Rights
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Agent may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and the Corporation may require payment of a
sum sufficient to cover any other expenses (including the fees and expenses of the Rights
Agent) in connection therewith.
2.16 If any mutilated Rights Certificate is surrendered to the Rights Agent prior to the Expiration
Time, the Corporation will execute and the Rights Agent will manually countersign and deliver in
exchange therefor a new Rights Certificate evidencing the same number of Rights as did the Rights
Certificate so surrendered.
2.17 If the Corporation and the Rights Agent receive, prior to the Expiration Time:
(a) evidence to their reasonable satisfaction of the destruction, loss or theft of any
Rights Certificate; and
(b) such indemnity or other security as may be required by them to save each of them and any
of their agents harmless, then, in the absence of notice to the Corporation or the Rights
Agent that such Rights Certificate has been acquired by a bona fide purchaser, the
Corporation will execute and upon its request the Rights Agent will countersign and deliver,
in lieu of any such destroyed, lost or stolen Rights Certificate, a new Rights Certificate
evidencing the same number of Rights as did the Rights Certificate so destroyed, lost or
stolen.
Replacement Fee
2.18 As a condition to the issuance of any new Rights Certificate under §2.17, the Corporation or
the Rights Agent may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and the Corporation may require payment of a sum
sufficient to cover any other expenses (including the fees and expenses of the Rights Agent) in
connection therewith.
Validity of Replacement Rights Certificates
2.19 Every new Rights Certificate issued pursuant to §2.17 in lieu of any destroyed, lost or stolen
Rights Certificate will evidence an original additional contractual obligation of the Corporation,
whether or not the destroyed lost or stolen Rights Certificate will be at any time enforceable by
anyone, and the holder thereof will be entitled to all the benefits of this Agreement equally and
proportionately with any and all other holders of Rights duly issued by the Corporation.
Persons Deemed Owners
2.20 Prior to due presentment of a Rights Certificate (or, prior to the Separation Time, the
associated Common Share certificate) for registration of transfer, the Corporation, the Rights
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Agent and any agent of the Corporation or the Rights Agent will be entitled to deem and treat the
person in whose name a Rights Certificate (or, prior to the Separation Time, the associated Common
Share certificate) is registered as the absolute owner thereof and of the Rights evidenced thereby
for all purposes whatsoever. As used in this Agreement, unless the context otherwise requires, the
term “holder” of any Rights will mean the registered holder of such Rights (or, prior to the
Separation Time, the associated Voting Shares).
2.21 All Rights Certificates surrendered upon exercise or for redemption, registration of transfer
or exchange will, if surrendered to any person other than the Rights Agent, be delivered to the
Rights Agent and, in any case, will be promptly cancelled by the Rights Agent. The Corporation may
at any time deliver to the Rights Agent for cancellation any Rights Certificates previously
countersigned and delivered hereunder which the Corporation may have acquired in any manner
whatsoever, and all Rights Certificates so delivered will be promptly cancelled by the Rights
Agent. No Rights Certificate will be countersigned in lieu of or in exchange for any Rights
Certificates cancelled as provided in this §2.21 except as expressly permitted by this Agreement.
The Rights Agent will destroy all cancelled Rights Certificates and deliver a certificate of
destruction to the Corporation.
2.22 Every holder of Rights, by accepting the same, consents and agrees with the Corporation and
the Rights Agent and with every other holder of Rights:
(a) to be bound by and subject to the provisions of this Agreement, as amended or
supplemented from time to time in accordance with the terms hereof, in respect of all Rights
held;
(b) that prior to the Separation Time each Right will be transferable only together with,
and will be transferred by a transfer of, the Common Share certificate representing such
Right;
(c) that after the Separation Time, the Rights Certificates will be transferable only on the
Rights Register as provided herein;
(d) that prior to due presentment of a Rights Certificate (or, prior to the Separation Time,
the associated Common Share certificate) for registration of transfer, the Corporation, the
Rights Agent and any agent of the Corporation or the Rights Agent will be entitled to deem
and treat the person in whose name the Rights Certificate (or prior to the Separation Time,
the associated Common Share certificate) is registered as the absolute owner thereof and of
the Rights evidenced thereby (notwithstanding any notations of ownership or writing on such
Rights Certificate or the associated Common Share certificate made by anyone other than the
Corporation or the Rights Agent) for all purposes whatsoever, and neither the Corporation
nor the Rights Agent will be affected by any notice to the contrary;
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(e) that such holder of Rights has waived his or her right to receive any fractional Rights
or any fractional shares upon exercise of Right; and
(f) that this Agreement may be supplemented or amended from time to time pursuant to and as
provided herein upon the sole authority of the Board of Directors without the approval of
any holder of Rights.
Rights Certificate Holder not Deemed a Shareholder
2.23 No holder, as such, of any Rights or Rights Certificate will be entitled to vote, receive
dividends or be deemed for any purpose whatsoever the holder of any Common Share or any other share
or security of the Corporation which may at any time be issuable on the exercise of the Rights
represented thereby, nor will anything contained herein or in any Rights Certificate be construed
or deemed to confer upon the holder of any Right or Rights Certificate, as such, any of the rights,
titles, benefits or privileges of a holder of Common Shares or any other shares or securities of
the Corporation or any right to vote at any meeting of shareholders of the Corporation whether for
the election of directors or otherwise or upon any matter submitted to holders of shares of the
Corporation at any meeting thereof, or to give or withhold consent to any action of the
Corporation, or to receive notice of any meeting or other action affecting any holder of Common
Shares or any other shares or securities of the Corporation except as expressly provided herein, or
to receive dividends, distributions or subscription rights, or otherwise, until the Right or Rights
evidenced by Rights Certificates will have been duly exercised in accordance with the terms and
provisions hereof.
ARTICLE 3 — ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF CERTAIN TRANSACTIONS
Flip-in Event
3.1 Subject to adjustment pursuant to Article 2 and the redemption and waiver provisions of §5.1
and except as provided below, if prior to the Expiration Time a Flip-in Event occurs, each Right
will thereafter constitute, effective at the Close of Business on the 10th Business Day after the
relevant Stock Acquisition Date, the right to purchase from the Corporation, upon exercise thereof
in accordance with the terms hereof, that number of Common Shares of the Corporation having an
aggregate Market Price on the date of consummation or occurrence of such Flip-in Event equal to
twice the Exercise Price for an amount in cash equal to the Exercise Price (such right to be
appropriately adjusted in a manner analogous to the applicable adjustment provided for in §2.9 in
the event that, after such date of consummation or occurrence, an event of a type analogous to any
of the events described in §2.9 occurs with respect to such Common Shares).
3.2 Notwithstanding anything in this Agreement to the contrary, upon the occurrence of a Flip-In
Event, any Rights that are or were Beneficially Owned on or after the earlier of the Separation
Time and the Stock Acquisition Date by:
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(a) an Acquiring Person (or any Person acting jointly or in concert with an Acquiring Person
or with an Affiliate or Associate of an Acquiring Person); or
(b) a direct or indirect transferee of, or other successor in title to, such Rights (a
“Transferee”), who becomes a Transferee concurrently with or subsequent to the Acquiring
Person becoming an Acquiring Person, in a transfer, whether or not for consideration, that
the Board of Directors has determined is part of a plan, understanding or scheme of an
Acquiring Person (or an Affiliate or Associate of an Acquiring Person or any Person acting
jointly or in concert with an Acquiring Person or an Affiliate or Associate of an Acquiring
Person) that has the purpose or effect of avoiding the provisions of this §3.2;
will thereupon become and be void and any holder of such Rights (including any Transferee) will
thereafter have no rights whatsoever with respect to such Rights, whether under any provision of
this Agreement or otherwise. The holder of any Rights represented by a Rights Certificate which is
submitted to the Rights Agent, or any Co-Rights Agent, upon exercise or for registration of
transfer or exchange which does not contain the necessary certifications set forth in the Rights
Certificate establishing that such Rights are not void under this §3.2 will be deemed to be an
Acquiring Person for the purposes of this §3.2 and such rights will be null and void.
Legend on Rights Certificates Transferred by an Acquiring Party
3.3 Any Rights Certificate that represents Rights Beneficially Owned by a Person described in
either clauses §(a) or (b) of §3.2 or transferred to any nominee of any such Person, and any Rights
Certificate issued upon the transfer, exchange or replacement of any other Rights Certificate
referred to in this sentence will contain the following legend:
“The Rights represented by this Rights Certificate were issued to a Person who was
an Acquiring Person or an Affiliate or an Associate of an Acquiring Person (as such
terms are defined in the Rights Agreement) or was acting jointly or in concert with
any of them. This Rights Certificate and the Rights represented hereby will become
void in the circumstances specified in §3.2 of the Rights Agreement.”
provided, however, that the Rights Agent will not be under any responsibility to ascertain the
existence of facts that would require the imposition of such legend but will be required to impose
such legend only if instructed to do so by the Corporation or if a holder fails to certify upon
transfer or exchange in the space provided on the Rights Certificate that such holder is not an
Acquiring Person or an Affiliate or Associate thereof or acting jointly or in concert with any of
them.
ARTICLE 4 — THE RIGHTS AGENT
4.1 The Corporation hereby appoints the Rights Agent to act as agent for the Corporation in
accordance with the terms and conditions hereof, and the Rights Agent hereby
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accepts such appointment. The Corporation may from time to time appoint such co-Rights Agents as
it may deem necessary or desirable. If the Corporation appoints one or more co-Rights Agents, the
respective duties of the Rights Agents and co-Rights Agents will be as the Corporation may
determine. The Corporation agrees to pay the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and other disbursements incurred in the administration and execution of this Agreement and
the exercise and performance of its duties hereunder. The Corporation also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss, liability, or expense incurred that is
not the result of negligence, bad faith or wilful misconduct on the part of any one or all of the
Rights Agent, its officers, employees or other representatives, for anything done or omitted by the
Rights Agent in connection with the acceptance and administration of this Agreement, including the
costs and expenses of defending against any claim of liability, which right to indemnification will
survive the termination of this Agreement or the resignation or removal of the Rights Agent.
4.2 The Rights Agent will be protected from and will incur no liability for or in respect of any
action taken, suffered or omitted by it in connection with its administration of this Agreement in
reliance upon any certificate for Voting Shares or any Rights Certificate or certificate for other
securities of the Corporation, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate, statement, or other paper
or document believed by it to be genuine and to be signed, executed and, where necessary, verified
or acknowledged, by the proper Person or Persons.
4.3 The Corporation will inform the Rights Agent in a reasonably timely manner of events which may
materially affect the administration of this Agreement by the Rights Agent and, at any time upon
written request, will provide to the Rights Agent an incumbency certificate certifying the then
current officers of the Corporation.
Merger or Amalgamation or Change of Name of Rights Agent
4.4 Any corporation into which the Rights Agent or any successor Rights Agent may be merged or
amalgamated or with which it may be consolidated, or any corporation resulting from any merger,
amalgamation, statutory arrangement or consolidation to which the Rights Agent or any successor
Rights Agent is a party, or any corporation succeeding to the shareholder or stockholder services
business of the Rights Agent or any successor Rights Agent, will be the successor to the Rights
Agent under this Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto, provided that such corporation would be eligible for appointment
as a successor Rights Agent under the provisions of §4.7. In case at the time such successor
Rights Agent succeeds to the agency created by this Agreement any of the Rights Certificates have
been countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates have not been countersigned,
any successor Rights Agent may countersign such Rights Certificates either
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in the name of the predecessor Rights Agent or in the name of the successor Rights Agent; and in
all such cases such Rights Certificates will have the full force provided in the Rights
Certificates and in this Agreement.
4.5 In case at any time the name of the Rights Agent is changed and at such time any of the Rights
Certificates have been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so countersigned; and in case
at that time any of the Rights Certificates have not been countersigned, the Rights Agent may
countersign such Rights Certificates either in its prior name or in its changed name; and in all
such cases such Rights Certificates will have the full force provided in the Rights Certificates
and in this Agreement.
4.6 The Rights Agent undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, to all of which the Corporation and the holders of Rights
Certificates, by their acceptance thereof, will be bound:
(a) the Rights Agent may consult with legal counsel (who may be legal counsel for the
Corporation) and the opinion of such counsel will be full and complete authorization and
protection to the Rights Agent as to any action taken or omitted to be taken by it in good
faith and in accordance with such opinion;
(b) whenever in the performance of its duties under this Agreement the Rights Agent deems it
necessary or desirable that any fact or matter be proved or established by the Corporation
prior to taking or suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed to be
conclusively proven and established by a certificate signed by a person believed by the
Rights Agent to be the Chairman of the Board, the President or any Vice-President, the
Treasurer or the Secretary of the Corporation and delivered to the Rights Agent; and such
certificate will be full authorization to the Rights Agent for any action taken or suffered
in good faith by it under the provisions of this Agreement in reliance upon such
certificate;
(c) the Rights Agent will be liable hereunder only for events which are the result of its
own negligence, bad faith or wilful misconduct and that of its officers, employees and other
representatives;
(d) the Rights Agent will not be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the certificates for Voting Shares or the Rights
Certificates (except its countersignature thereof) or be required to verify the same, but
all such statements and recitals are and will be deemed to have been made by the Corporation
only;
(e) the Rights Agent will not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due authorization,
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execution and delivery hereof by the Rights Agent) or in respect of the validity or
execution of any Common Share certificate or Rights Certificate (except its countersignature
thereof); nor will it be responsible for any breach by the Corporation of any covenant or
condition contained in this Agreement or in any Rights Certificate; nor will it be
responsible for any change in the exercisability of the Rights (including the Rights
becoming void pursuant to §3.2) or any adjustment required under the provisions of §2.9 or
responsible for the manner, method or amount of any such adjustment or the ascertaining of
the existence of facts that would require any such adjustment (except with respect to the
exercise of Rights after receipt of the certificate contemplated by §2.9 describing any such
adjustment); nor will it by any act hereunder be deemed to make any representation or
warranty as to the authorization of any Common Shares to be issued pursuant to this
Agreement or any Rights or as to whether any Common Shares will, when issued, be duly and
validly authorized, executed, issued and delivered or fully paid and non-assessable;
(f) the Corporation agrees that it will perform, execute, acknowledge and deliver or cause
to be performed, executed, acknowledged, and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the Rights Agent for the
carrying out or performing by the Rights Agent of the provisions of this Agreement;
(g) the Rights Agent is hereby authorized and directed to accept instructions with respect
to the performance of its duties hereunder from any person believed by the Rights Agent to
be the Chairman of the Board, President, any Vice-President, Treasurer or any Assistant
Treasurer or the Secretary or any Assistant Secretary of the Corporation and to apply to
such persons for advice or instructions in connection with its duties, and it will not be
liable for any action taken or suffered by it in good faith in accordance with instructions
of any such person;
(h) the Rights Agent and any shareholder or stockholder, director, officer or employee of
the Rights Agent may buy, sell or deal in Common Shares, Rights or other securities of the
Corporation or become pecuniarily interested in any transaction in which the Corporation may
be interested or contract with or lend money to the Corporation or otherwise act as fully
and freely as though it were not Rights Agent under this Agreement. Nothing herein will
preclude the Rights Agent from acting in any other capacity for the Corporation or for any
other legal entity; and
(i) the Rights Agent may execute and exercise any of the rights or powers hereby vested in
it or perform any duty hereunder either itself or by or through its attorneys or agents, and
the Rights Agent will not be answerable or accountable for any act, default, neglect or
misconduct of any such attorneys or agents or for any loss to the Corporation resulting from
any such act, omission, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
4.7 The Rights Agent may resign and be discharged from its duties under this Agreement upon 90
days’ notice (or such lesser notice as is acceptable to the Corporation) in
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writing mailed to the Corporation and to each transfer agent of Voting Shares of the Corporation by
registered or certified mail, and to the holders of the Rights in accordance with §5.11. The
Corporation may remove the Rights Agent upon 30 days’ notice in writing, mailed to the Rights Agent
and to each transfer agent of the Voting Shares of the Corporation by registered or certified mail
and to the holders of the Rights in accordance with §5.11. If the Rights Agent resigns or is
removed or otherwise becomes incapable of acting, the Corporation will appoint a successor to the
Rights Agent. If the Corporation fails to make such appointment within a period of 90 days after
such removal or after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of any Rights (which holder will, with
such notice, submit such holder’s Rights Certificate for inspection by the Corporation), the holder
of any Rights may apply to any court of competent jurisdiction for the appointment of a new Rights
Agent. Any successor Rights Agent, whether appointed by the Corporation or by such a court, will
be a corporation incorporated under the laws of Canada or a province thereof authorized to carry on
the business of a trust company in Canada. After appointment, the successor Rights Agent will be
vested with the same powers, rights, duties and responsibilities as if it had been originally named
as Rights Agent without further act or deed; but the predecessor Rights Agent, upon receiving from
the Corporation payment in full of all amounts outstanding under this Agreement, will deliver and
transfer to the successor Rights Agent any property at the time held by it hereunder, and execute
and deliver any further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Corporation will file notice thereof in
writing with the predecessor Rights Agent and each transfer agent of the Voting Shares of the
Corporation, and mail a notice thereof in writing to the holders of the Rights. The cost of giving
any notice required under this §4.7 will be borne solely by the Corporation. Failure to give any
notice provided for in this §4.7 however, or any defect therein, will not affect the legality or
validity of the resignation or removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
ARTICLE 5 — MISCELLANEOUS
5.1 The:
(a) Board of Directors may, with the prior consent of holders of Voting Shares or of the
holders of Rights given in accordance with §5.1(i) or (j), as the case may be, any time
prior to the occurrence of a Flip-in Event, elect to redeem all but not less than all of the
then outstanding Rights at a redemption price of $0.00001 per Right appropriately adjusted
in a manner analogous to the applicable adjustment provided for in §2.9 if an event of the
type described in §2.9 has occurred (such redemption price being herein referred to as the
“Redemption Price”);
(b) Board of Directors may, with the prior consent of the holders of Voting Shares given in
accordance with §5.1(i), determine, at any time prior to the occurrence of a Flip-in Event
as to which the application of §3.1 has not been waived pursuant to this §5.1, if such
Flip-in Event would occur by reason of an acquisition of Voting Shares otherwise
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than pursuant to a Take-over Bid made by means of a Take-over Bid circular and otherwise
than in the circumstances set forth in §5.1(d), waive the application of §3.1 to such
Flip-in Event. In such event, the Board of Directors will extend the Separation Time to a
date at least 10 Business Days subsequent to the meeting of shareholders called to approve
such waiver.
(c) Board of Directors may, prior to the occurrence of a Flip-in Event, and upon prior
written notice delivered to the Rights Agent, determine to waive the application of §3.1 to
a Flip-in Event which may occur by reason of a Take-over Bid made by means of a Take-over
Bid circular; provided that if the Board of Directors waives the application of §3.1 to a
particular Flip-in Event pursuant to this §5.1(c), the Board of Directors will be deemed to
have waived the application of §3.1 to any other Flip-in Event occurring by reason of any
Take-over Bid made by means of a Take-over Bid circular prior to the expiry of any Take-over
Bid (as the same may be extended from time to time) in respect of which a waiver is, or is
deemed to have been, granted pursuant to this §5.1(c).
(d) Board of Directors may, prior to the close of business on the 10th day following the
Stock Acquisition Date, determine, upon prior written notice delivered to the Rights Agent,
to waive or to agree to waive the application of §3.1 to a Flip-in Event, provided that both
of the following conditions are satisfied:
(i) the Board of Directors has determined that a Person became an Acquiring Person
by inadvertence and without any intention to become, or knowledge that Person would
become, an Acquiring Person; and
(ii) such Acquiring Person has reduced its Beneficial Ownership of Voting Shares (or
has entered into a contractual arrangement with the Corporation, acceptable to the
Board of Directors, to do so within 30 days of the date on which such contractual
arrangement is entered into) such that at the time the waiver becomes effective
pursuant to this §5.1(d) it is no longer an Acquiring Person;
and in the event of such a waiver, for the purposes of this Agreement, the Flip-in Event
will be deemed never to have occurred;
(e) Board of Directors, notwithstanding the provisions of §5.1(a), will and will be deemed
to have elected without further formality to redeem the Rights at the Redemption Price, if a
Person acquires, pursuant to a Permitted Bid or a Competing Permitted Bid or pursuant to a
Take-over Bid in respect of which the Board of Directors has waived, or is deemed to have
waived, the application of §3.1 pursuant to §5.1(c), any Outstanding Voting Shares;
(f) right to exercise the Rights will, if the Corporation is obligated under §5.1(e) to
redeem the Rights, or if the Board of Directors elects under §5.1(a) or §5.1(h) to redeem
the Rights, without further action and without notice, terminate and each Right will after
redemption be null and void and the only right thereafter of the holders of Rights will be
to receive the Redemption Price and no further Rights will be issued thereafter;
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(g) Corporation will, within 10 days after the Corporation is obligated under §5.1(e) to
redeem the Rights, or if §5.1(a) is applicable within 10 Business Days after the Board of
Directors determines to redeem the Rights, as applicable, give notice of redemption to the
holders of the then outstanding Rights by mailing such notice to all such holders at their
last address as they appear upon the Rights Register or, prior to the Separation Time, on
the registry books of the Transfer Agent for the Voting Shares. Any notice which is mailed
in the manner herein provided will be deemed given, whether or not the holder receives the
notice. Each such notice of redemption will state the method by which the payment of the
Redemption Price will be made. The Corporation may not redeem, acquire or purchase for
value any Rights at any time in any manner other than that specifically set forth in this
§5.1 and other than in connection with the purchase of Voting Shares prior to the Separation
Time;
(h) Board of Directors may, where a Take-over Bid that is not a Permitted Bid Acquisition is
withdrawn or is otherwise terminated after the Separation Time has occurred and prior to the
occurrence of a Flip-in Event, elect to redeem all the outstanding Rights at the Redemption
Price and upon such redemption, all the provisions of this Agreement will continue to apply
as if the Separation Time had not occurred and Rights Certificates representing the number
of Rights held by each holder of record of Voting Shares as of the Separation Time had not
been mailed to each such holder and for all purposes of this Agreement the Separation Time
will be deemed not to have occurred;
(i) Shareholder consent required under §5.1(a) or (b) will be deemed to have been given if
the redemption or waiver is approved by the affirmative vote of a majority of the votes cast
by Independent Shareholders represented in person or by proxy at a meeting of such holders
duly held in accordance with applicable laws and the Corporation’s articles; and
(j) Consent of holders of Rights which is required pursuant to §5.1(a) will be deemed to
have been given if the redemption is approved by holders of Rights by a majority of the
votes cast by the holders of Rights represented in person or by proxy at and entitled to
vote at a meeting of such holders called in accordance with procedures for the calling,
holding and conduct of meetings of shareholders of the Corporation held in accordance with
applicable laws and the Corporation’s articles. For the purposes of this subsection, each
outstanding Right (other than Rights which are void pursuant to the provisions of this
Agreement) will be entitled to one vote.
5.2 No person will have any rights whatsoever pursuant to or arising out of this Agreement or in
respect of any Right after the Expiration Time, except the Rights Agent as specified in §4.2.
5.3 Notwithstanding any of the provisions of this Agreement or of the Rights to the contrary, the
Corporation may, at its option, issue new Rights Certificates evidencing Rights in
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such form as may be approved by its Board of Directors to reflect any adjustment or change in the
number or kind or class of shares purchasable upon exercise of Rights made in accordance with the
provisions of this Agreement.
5.4 The Corporation may:
(a) prior to the Annual Meeting of Shareholders of the Corporation to be held in the year
2000, supplement or amend this Agreement without the approval of any holder of Rights or
Voting Shares in order to make any changes which the Board of Directors may deem necessary
or desirable. Thereafter, the Corporation may, subject to §5.1, from time to time
supplement or amend this Agreement without the approval of any holders of Rights or Voting
Shares to correct any clerical or typographical error or to maintain the validity of the
Agreement as a result of a change in any applicable legislation, rules or regulations
thereunder;
(b) subject to §5.4(a), with the prior consent of the holders of the Voting Shares obtained
as set forth below, at any time prior to the Separation Time amend, vary or rescind any of
the provisions of this Agreement and the Rights (whether or not such action would materially
adversely affect the interests of the holders of Rights generally). Such consent will be
deemed to have been given if provided by the holders of Voting Shares at a meeting of the
holders of Voting Shares, which meeting will be called and held in compliance with
applicable laws and regulatory requirements and the requirements in the articles of the
Corporation. Subject to compliance with any requirements imposed by the foregoing, consent
will be deemed to have been given if the proposed amendment, variation or revision is
approved by the affirmative vote of a majority of the votes cast by Independent Shareholders
represented in person or by proxy at the meeting; and
(c) with the prior consent of the holders of Rights, at any time after the Separation Time
and before the Expiration Time, amend, vary or rescind any of the provisions of this
Agreement and the Rights (whether or not such action would materially adversely affect the
interests of the holders of Rights generally). Any approval of the holders of Rights will
be deemed to have been given if the action requiring such approval is authorized by the
affirmative votes of the holders of Rights present or represented at and entitled to be
voted at a meeting of the holders of Rights and representing a majority of the votes cast in
respect thereof. For the purposes hereof, each outstanding Right (other than Rights which
are void pursuant to the provisions hereof) will be entitled to one vote, and the procedures
for the calling, holding and conduct of the meeting will be those, as nearly as may be,
which are provided in the Corporation’s Articles and the Company Act with respect to a
meeting of shareholders of the Corporation.
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5.5 Any supplements or amendments made by the Corporation to this Agreement pursuant to §5.4(a)
which are required to maintain the validity of this Agreement as a result of any change in any
applicable legislation, rules or regulations thereunder:
(a) if made before the Separation Time, will be submitted to the shareholders of the
Corporation at the next meeting of shareholders and the shareholders may, by the majority
referred to in §5.4(b) confirm or reject such amendment; and
(b) if made after the Separation Time, will be submitted to the holders of Rights at a
meeting to be called and held as soon as reasonably possible in accordance with the
provisions of §5.4(c).
5.6 A supplement or amendment of the type referred to in §5.5 will be effective from the date of
the resolution of the Board of Directors adopting such supplement or amendment and will continue in
force until it is either rejected by the shareholders or holders of Rights, as the case may be, or,
if approved, until it ceases to be effective in accordance with the terms hereof. Any other
supplement or amendment will be effective upon approval of the shareholders or holders of Rights,
as the case may be. If a supplement or amendment is rejected by the shareholders or the holders of
Rights or is not submitted to the shareholders or holders of Rights as required, such supplement or
amendment will cease to be effective from and after the termination of the meeting at which it was
rejected or to which it should have been but was not submitted or from and after the date of the
meeting of holders of Rights that should have been but was not held, and no subsequent resolution
of the Board of Directors to amend, vary or delete any provision of this Agreement to substantially
the same effect will be effective until confirmed by the shareholders or holders of Rights, as the
case may be.
5.7 Notwithstanding anything in §5.4 to the contrary, no supplement or amendment will be made to
the provisions of Article 4 except with the written concurrence of the Rights Agent to such
supplement or amendment.
5.8 The Corporation will not be required to issue fractions of:
(a) Rights or to distribute Rights Certificates which evidence fractional Rights. Any such
fractional Right will be null and void and the Corporation will not have any obligation or
liability in respect thereof; and
(b) Common Shares or other securities upon exercise of the Rights or to distribute
certificates which evidence fractional Common Shares or other securities. In lieu of
issuing fractional Common Shares or other securities, the Corporation will pay to the
registered holders of Rights Certificates at the time such Rights are exercised as herein
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provided, an amount in cash equal to the same fraction of the Market Price of one Common
Share.
5.9 Subject to the terms of this Agreement, all rights of action in respect of this Agreement,
other than rights of action vested solely in the Rights Agent, are vested in the respective
registered holders of the Rights; and any registered holder of any Rights, without the consent of
the Rights Agent or of the registered holder of any other Rights, may, on such holder’s own behalf
and for such holder’s own benefit and the benefit of other holders of Rights enforce, and may
institute and maintain any suit, action or proceeding against the Corporation to enforce such
holder’s right to exercise such holder’s Rights in the manner provided in such holder’s Rights
Certificate and in this Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or threatened violations
of the obligations of any Person subject to this Agreement.
5.10 If the Corporation proposes after the Separation Time and prior to the Expiration Time to
effect the liquidation, dissolution or winding- up of the Corporation or the sale of all or
substantially all of the Corporation’s assets, the Corporation, in each such case, will give to
each holder of a Right, in accordance with §5.11, a notice of such proposed action, which will
specify the date on which such liquidation, dissolution, winding-up, or sale is to take place, and
such notice will be so given at least 20 Business Days prior to the date of such proposed action.
5.11 Notices or demands authorized or required by this Agreement to be given or made:
(a) by the Rights Agent or by the holder of any Rights to or on the Corporation will be
sufficiently given or made if delivered or sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Rights Agent) as follows:
Attention: Senior Vice-President Administration;
(b) by the Corporation or by the holder of any Rights to or on the Rights Agent will be
sufficiently given or made if delivered or sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Corporation) as follows:
- 40 -
Computershare Investor Services Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Assistant Vice-President, Client Services; and
(c) by the Corporation or the Rights Agent to or on the holder of any Rights will be
sufficiently given or made if delivered or sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as it appears upon the Rights
Register or, prior to the Separation Time, on the registry books of the transfer agent for
the Voting Shares. Any notice which is mailed in the manner herein provided will be deemed
given, whether or not the holder receives the notice.
5.12 All the covenants and provisions of this Agreement by or for the benefit of the Corporation or
the Rights Agent will bind and enure to the benefit of their respective successors and assigns
hereunder.
Benefits of this Agreement
5.13 Nothing in this Agreement will be construed to give to any Person other than the Corporation,
the Rights Agent and the holders of the Rights any legal or equitable right, remedy or claim under
this Agreement; but this Agreement will be for the sole and exclusive benefit of the Corporation,
the Rights Agent and the holders of the Rights.
5.14 This Agreement and each Right issued hereunder will be deemed to be a contract made under the
laws of the Province of
British Columbia and for all purposes will be governed by and construed in
accordance with the laws of such province.
5.15 If any Section, Subsection, Clause, Subclause, term or provision hereof or the application
thereof to any circumstances or any right hereunder will, in any jurisdiction and to any extent, be
invalid or unenforceable, such Section, Subsection, Clause, Subclause, term or provision or such
right will be ineffective only in such jurisdiction and to the extent of such invalidity or
unenforceability in such jurisdiction without invalidating or rendering unenforceable or
ineffective the remaining Sections, Subsections, Clauses, Subclauses, terms and provisions hereof
or rights hereunder in such jurisdiction or the application of such Section, Subsection, Clause,
Subclause, term or provision or rights hereunder in any other jurisdiction or to circumstances
other than those as to which it is specifically held invalid or unenforceable.
- 41 -
5.16 This Agreement is effective and in full force and effect in accordance with its terms as of
and from the Record Time. If this Agreement is not confirmed by a majority of the votes cast by
the holders of Common Shares of the Corporation represented in person or by proxy at the Annual
Meeting of Shareholders of the Corporation to be held in the year 2000 who vote in respect of
confirmation of this Agreement at such meeting, then this Agreement and any then outstanding Rights
will be of no further force and effect from the date of such Annual Meeting of Shareholders of the
Corporation.
Determinations and Actions by the Board of Directors
5.17 All actions, calculations and determinations (including all omissions with respect to the
foregoing) which are done or made by the Board of Directors for the purposes hereof, will not
subject the Board of Directors or any director of the Corporation to any liability to the holders
of the Rights.
Rights of Board, Corporation and Offeror
5.18 Without limiting the generality of the foregoing, nothing contained herein will be construed
to suggest or imply that the Board of Directors will not be entitled to recommend that holders of
Voting Shares reject or accept any Take-over Bid or take any other action (including, without
limitation, the commencement, prosecution, defence or settlement of any litigation and the
submission of additional or alternative Take-over Bids or other proposals to the Shareholders of
the Corporation) with respect to any Take-over Bid or otherwise that the Board of Directors
believes is necessary or appropriate in the exercise of its fiduciary duties.
Regulatory Approvals
5.19 Any obligation of the Corporation or action or event contemplated by this Agreement will be
subject to the prior receipt of any requisite approval or consent from any governmental or
regulatory authority including, without limiting the generality of the foregoing, any necessary
approval of any securities regulatory authority or stock exchange.
Declaration as to Non-Canadian Holders
5.20 If in the opinion of the Board of Directors (who may rely upon the advice of counsel) any
action or event contemplated by this Agreement would require compliance with the securities laws or
comparable legislation of a jurisdiction outside Canada, the Board of Directors may take such
actions as it may deem appropriate to ensure such compliance. In no event will the Corporation or
the Rights Agent be required to issue or deliver Rights or securities issuable on exercise of
Rights to Persons who are citizens, residents or nationals of any jurisdiction other than Canada or
the United States in which such issue or delivery would be unlawful without registration of the
relevant Persons or securities for such purposes.
Time of the Essence
5.21 Time will be of the essence in this Agreement.
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Execution in Counterparts
5.22 This Agreement may be executed in any number of counterparts and each of such counterparts
will for all purposes be deemed to be an original, and all such counterparts will together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the
date first above written.
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GLAMIS GOLD LTD. |
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Per: |
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/s/ Xxxxxxx X. Jeannes |
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Authorized Signatory |
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THE COMPUTERSHARE INVESTOR SERVICES INC. |
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Per: |
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/s/ June X. Xxxxxx |
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Authorized Signatory |
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Per: |
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/s/ Xxxxx Xxxxxxxxx |
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Authorized Signatory |
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Exhibit A |
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[FORM OF RIGHTS CERTIFICATE] |
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Certificate No.
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Rights |
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE CORPORATION,
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES (SPECIFIED IN §3.2 OF THE RIGHTS AGREEMENT), RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON, ANY PERSON ACTING JOINTLY OR
IN CONCERT WITH AN ACQUIRING PERSON OR THEIR RESPECTIVE ASSOCIATES AND
AFFILIATES (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND THEIR
RESPECTIVE TRANSFEREES WILL BECOME VOID WITHOUT ANY FURTHER ACTION.
This certifies that
or registered assigns, is the registered holder of the number
of Rights set forth above, each of which entitles the registered holder thereof, subject to the
terms, provisions and conditions of the
Shareholder Rights Plan Agreement dated as of the 25th day
of February, 2000 (the “
Rights Agreement”) between
Glamis Gold Ltd., a corporation formed under the
Company Act (
British Columbia) (the “
Corporation”), and The Computershare Investor Services Inc., a
trust company incorporated under the laws of Canada, as rights agent (the “
Rights Agent”, which
term will include any successor Rights Agent under the Rights Agreement) to purchase from the
Corporation at any time after the Separation Time (as such term is defined in the Rights Agreement)
and prior to the close of business on the date of the Corporation’s Annual Meeting of Shareholders
to be held in the year 2006 (or such earlier expiration time as is provided in the Rights
Agreement) one fully paid and non-assessable Common Share of the Corporation (a “
Common Share”)
(subject to adjustment as provided in the Rights Agreement) at the Exercise Price, upon
presentation and surrender of this Rights Certificate together with the Form of Election to
Exercise duly executed and submitted to the Rights Agent at its principal office in Vancouver. The
Exercise Price will initially be $100.00 (Canadian) per Right and will be subject to adjustment or
revision in certain events as provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement, each Right evidenced hereby may entitle
the registered holder thereof to purchase or receive assets, debt securities or other equity
securities of the Corporation (or a combination thereof) all as provided in the Rights Agreement.
This Rights Certificate is subject to all of the terms, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and
made a part hereof and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities thereunder of the Rights
Agent, the Corporation and the holders of the Rights. Copies of the Rights Agreement are on file
at the registered head office of the Corporation and are available upon written request.
- 2 -
This Rights Certificate, with or without other Rights Certificates, upon surrender at any of the
offices of the Rights Agent designated for such purpose, may be exchanged for another Rights
Certificate or Rights Certificates of like tenor and date evidencing an aggregate number of Rights
entitling the holder to purchase a like aggregate number of Common Shares as the Rights evidenced
by the Rights Certificate or Rights Certificates surrendered. If this Rights Certificate will be
exercised in part, the registered holder will be entitled to receive, upon surrender hereof,
another Rights Certificate or Rights Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by this Rights Certificate
may be, and under certain circumstances are required to be, redeemed by the Corporation at a
redemption price of $0.00001 per Right.
No fractional Common Shares will be issued upon the exercise of any Right or Rights evidenced
hereby.
No holder of this Rights Certificate, as such, will be entitled to vote, receive dividends or be
deemed for any purpose the holder of Common Shares or of any other securities of the Corporation
which may at any time be issuable upon the exercise hereof, nor will anything contained in the
Rights Agreement or herein be construed to confer upon the holder hereof, any of the rights of a
shareholder of the Corporation or any right to vote for the election of directors or upon any
matter submitted to shareholders of the Corporation at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other actions affecting
shareholders of the Corporation (except as expressly provided in the Rights Agreement), or to
receive dividends, distributions or subscription rights, or otherwise until the Rights evidenced by
this Rights Certificate will have been exercised as provided in the Rights Agreement.
This Rights Certificate will not be valid or obligatory for any purpose until it will have been
manually countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Corporation.
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GLAMIS GOLD LTD. |
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By
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Countersigned |
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THE COMPUTERSHARE INVESTOR SERVICES INC. |
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Transfer Agent and Registrar |
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By |
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Authorized Signature |
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By |
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Authorized Signature |
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(To be attached to each Rights Certificate)
The undersigned hereby irrevocably elects to exercise whole Rights represented by the
attached Rights Certificate to purchase the Common Shares issuable upon the exercise of such Rights
and requests that certificates for such Shares be issued to:
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(CITY AND STATE OR PROVINCE)
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If such number of Rights will not be all the Rights evidenced by this Rights Certificate, a new
Rights Certificate for the balance of such Rights will be registered in the name of and delivered
to:
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(CITY AND STATE OR PROVINCE)
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SOCIAL INSURANCE, SOCIAL SECURITY OR OTHER TAXPAYER NUMBER |
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Dated |
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Signature Guaranteed |
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Signature |
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(Signature must correspond to name as written upon the face of
this Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever) |
Signature must be guaranteed by a Canadian chartered bank, a Canadian trust company or a
member of a recognized stock exchange or a member of the Transfer Association Medallion (Stamp)
Program.
[The following is to be completed, if true:]
- 2 -
The undersigned hereby represents, for the benefit of all holders of Rights and Common Shares, that
the Rights evidenced by this Rights Certificate are not, and, to the knowledge of the undersigned,
have never been, Beneficially Owned by an Acquiring Person or an Affiliate or Associate thereof or
any Person acting jointly or in consent with any of the foregoing or any Affiliate or Associate of
such Person (as defined in the Rights Agreement).
In the event the certification set forth in the Form of Election to Exercise is not completed, the
Corporation will deem the Beneficial Owner of the Rights evidenced by this Rights Certificate to be
an Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights Agreement) and
accordingly such Rights will be null and void.
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate)
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hereby sells, assigns and transfers unto |
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(Please print name and address of transferee)
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the Rights represented by this Rights Certificate, together with all right, title and interest
therein and does hereby irrevocably constitute and appoint as
attorney to transfer the within Rights on the books of the Corporation, with full power of
substitution.
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Dated |
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Signature Guaranteed
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Signature |
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(Signature must correspond to name as written upon the face of
this Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever) |
Signature must be guaranteed by a Canadian chartered bank, a Canadian trust company or a
member of a recognized stock exchange or a member of the Transfer Association Medallion (Stamp)
Program.
[The following to be completed, if true:]
The undersigned hereby represents, for the benefit of all holders of Rights and Common Shares, that
the Rights evidenced by this Rights Certificate are not, and, to the knowledge of the undersigned,
have never been, Beneficially Owned by an Acquiring Person or an Affiliate or Associate thereof or
any Person acting jointly or in consent with any of the foregoing (as defined in the Rights
Agreement).
In the event the certification set forth in the Form of Assignment is not completed, the
Corporation will deem the Beneficial Owner of the Rights evidenced by this Rights Certificate to be
an Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights Agreement) and
accordingly such Rights will be null and void.