[Form of Specimen of Eighteen-Month Warrant of Golden Star Resources Ltd.]
Certificate No. __ CUSIP No. __________
Number of Shares _____
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GOLDEN STAR RESOURCES LTD.
WARRANT TO PURCHASE COMMON STOCK
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This certifies that, for good and valuable consideration, Golden
Star Resources Ltd., a corporation subsisting under the Canada Business
Corporations Act (the "Company"), grants to _________________ or its registered
assigns (the "Warrantholder"), the right to subscribe for and purchase from the
Company __________ validly issued, fully paid and nonassessable shares (the
"Warrant Shares") of the Company's common shares (the "Common Stock"), at the
purchase price per share of U.S.$____ (the "Exercise Price"), at any time and
from time to time, prior to 5:00 PM Eastern Time on February __, 2001 (the
"Expiration Date"), all subject to the terms, conditions and adjustments herein
set forth.
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1. Duration and Exercise of Warrant; Limitation
on Exercise; Payment of Taxes.
1.1 Duration and Exercise of Warrant. Subject to the terms and
conditions set forth herein, the Warrant may be exercised, in whole or in part,
by the Warrantholder by:
(a) the surrender of this Warrant to the Company,
with a duly executed Exercise Form specifying the number of Warrant Shares to be
purchased, during normal business hours on any Business Day prior to the
Expiration Date; and
(b) the delivery of payment to the Company, for the
account of the Company, by cash or by certified or bank cashier's check, of the
Exercise Price for the number of Warrant Shares specified in the Exercise Form
in lawful money of the United States of America. The Company agrees that such
Warrant Shares shall be deemed to be issued to the Warrantholder as the record
holder of such Warrant Shares as of the close of business on the date on which
this Warrant shall have been surrendered and payment made for the Warrant Shares
as aforesaid.
1.2 Warrant Shares Certificate. A stock certificate or
certificates for the Warrant Shares specified in the Exercise Form shall be
delivered to the Warrantholder within three Business Days after receipt
(including facsimile receipt) of the Exercise Form and actual receipt of the
Warrant and payment of the Exercise Price. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of the stock
certificate or certificates, deliver to the Warrantholder a new Warrant
evidencing the rights to purchase the remaining Warrant Shares, which new
Warrant shall in all other respects be identical with this Warrant.
1.3 Payment of Taxes. The issuance of certificates for Warrant
Shares shall be made without charge to the Warrantholder for any stock transfer
or other issuance tax in respect thereto; provided, however, that the
Warrantholder shall be required to pay any and all taxes which may be payable in
respect of any transfer involved in the issuance and delivery of any certificate
in a name other than that of the then Warrantholder as reflected upon the books
of the Company.
1.4 Divisibility of Warrant; Transfer of Warrant.
(a) Subject to the provisions of this Section 1.4, this
Warrant may be divided into warrants of one thousand shares or multiples thereof
(except for any "stub amount"), upon surrender at the principal office of the
Company, without charge to any Warrantholder. Upon such division, the Warrants
may be transferred of record as the then Warrantholder may specify without
charge to
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such Warrantholder (other than any applicable transfer taxes). In addition, the
Warrantholder shall also have the right to transfer this Warrant in its entirety
to any person or entity.
(b) Upon surrender of this Warrant to the Company
with a duly executed Assignment Form and funds sufficient to pay any transfer
tax, the Company shall, without charge, execute and deliver a new Warrant or
Warrants of like tenor in the name of the assignee named in such Assignment
Form, and this Warrant shall promptly be canceled. The term "Warrant" as used in
this Agreement shall be deemed to include any Warrants issued in substitution or
exchange for this Warrant.
2. Issuance and Reservation of Shares; Approval Process.
2.1 The Company covenants and agrees as follows:
(a) all Warrant Shares which are issued upon the due
exercise of this Warrant will, upon issuance, be validly issued, fully paid, and
nonassessable, not subject to any preemptive rights, and free from all taxes,
liens, security interests, charges, and other encumbrances with respect to the
issue thereof, other than taxes with respect to any transfer occurring
contemporaneously with such issue; and
(b) during the period within which this Warrant may
be exercised, the Company will at all times have authorized and reserved, and
keep available free from preemptive rights, a sufficient number of shares of
Common Stock to provide for the exercise of the rights represented by this
Warrant.
2.2 The Company represents, warrants and covenants that the
Toronto Stock Exchange ("TSE") and the American Stock Exchange ("AMEX") have
approved the issuance of the Warrants, and the upon exercise of the Warrants,
the TSE and AMEX will have approved the listing of the Warrant Shares issuable
upon such exercise. The Company covenants and agrees to fulfill all the
requirements of the TSE and AMEX with respect to the Warrants and the Warrant
Shares.
3. Loss or Destruction of Warrant.
Subject to the terms and conditions hereof, upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant and, in the case of loss, theft or
destruction, of such bond or indemnification as the Company may reasonably
require, and, in the case of such mutilation, upon surrender and cancellation of
this Warrant, the Company promptly (but not later than in two Business Days)
will execute and deliver a new Warrant of like tenor.
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4. Ownership of Warrant.
The Company may deem and treat the person in whose name this Warrant
is registered as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer.
5. Certain Adjustments.
5.1 The number of Warrant Shares purchasable upon the exercise
of this Warrant and the Exercise Price shall be subject to adjustment from time
to time as follows:
(a) Stock Dividends. If at any time after the date of
the issuance of this Warrant (i) the Company shall fix a record date for the
issuance of any stock dividend or distribution payable in shares of Common Stock
or securities or rights convertible or exchangeable into Common Stock or (ii)
the number of shares of Common Stock shall have been increased by a subdivision
or split-up of shares of Common Stock, then, on the record date fixed for the
determination of holders of Common Stock entitled to receive such dividend or
distribution (or on the dividend distribution date if no record date is set) or
immediately after the effective date of subdivision or split-up, as the case may
be, the number of shares to be delivered upon exercise of this Warrant will be
increased so that the Warrantholder will be entitled to receive the number of
shares of Common Stock that such Warrantholder would have owned (or been
entitled to receive in the case of convertible or exchangeable securities)
immediately following such action had this Warrant been exercised immediately
prior thereto, and the Exercise Price will be adjusted as provided below in
paragraph (g).
(b) Combination of Stock. If the number of shares of
Common Stock outstanding at any time after the date of the issuance of this
Warrant shall have been decreased by a combination of the outstanding shares of
Common Stock, then, immediately after the effective date of such combination,
the number of shares of Common Stock to be delivered upon exercise of this
Warrant will be decreased so that the Warrantholder thereafter will be entitled
to receive the number of shares of Common Stock that such Warrantholder would
have owned immediately following such action had this Warrant been exercised
immediately prior thereto, and the Exercise Price will be adjusted as provided
below in paragraph (g).
(c) Reorganization, etc. If any capital reorganization
of the Company, any reclassification of the Common Stock, any consolidation of
the Company with or merger of the Company with or into any other person, or any
sale or lease or other transfer of all or substantially all of the assets of the
Company to any other person, shall be effected in such a way that the holders of
Common Stock shall be entitled to receive stock, other securities or assets
(whether such stock, other
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securities or assets are issued or distributed by the Company or another person)
with respect to or in exchange for Common Stock, then, upon exercise of this
Warrant, the Warrantholder shall have the right to receive the kind and amount
of stock, other securities or assets receivable upon such reorganization,
reclassification, consolidation, merger or sale, lease or other transfer by a
holder of the number of shares of Common Stock that such Warrantholder would
have been entitled to receive upon exercise of this Warrant had this Warrant
been exercised immediately before such reorganization, reclassification,
consolidation, merger or sale, lease or other transfer.
(d) Distributions to All Holders of Common Stock.
If the Company shall, at any time after the date of issuance of this Warrant,
fix a record date to distribute (or distribute without a record date) to all
holders of its Common Stock, any shares of capital stock of the Company (other
than Common Stock) or evidences of its indebtedness or assets or rights or
warrants to subscribe for or purchase any of its securities or securities issued
in connection with a spin-off, then the Warrantholder shall be entitled to
receive, upon exercise of the Warrant, on a pro rata basis, that portion of such
distribution to which it would have been entitled had the Warrantholder
exercised its Warrant immediately prior to the date of such distribution. At the
time it fixes the record date for such distribution (or prior to any
distribution if no record date is fixed), the Company shall allocate sufficient
reserves to ensure the timely and full performance of the provisions of this
Section 5.1(d). The Company shall promptly (but in any case no later than five
Business Days prior to the record date of such distribution) mail by first
class, postage prepaid, to the Warrantholder, notice that such distribution will
take place.
(e) Fractional Shares. No fractional shares of
Common Stock or scrip shall be issued to any Warrantholder in connection with
the exercise of this Warrant. Instead of any fractional shares of Common Stock
that would otherwise be issuable to such Warrantholder, the Company will pay to
such Warrantholder a cash adjustment in respect of such fractional interest in
an amount equal to that fractional interest of the then current Fair Market
Value per share of Common Stock.
(f) ▇▇▇▇▇▇▇▇▇. Notwithstanding any other provision
of this Section 5, no adjustment shall be made to the number of shares of Common
Stock to be delivered to the Warrantholder (or to the Exercise Price) if such
adjustment represents less than 1% of the number of shares to be so delivered
hereunder, but any lesser adjustment shall be carried forward and shall be made
at the time and together with the next subsequent adjustment which together with
any adjustments so carried forward shall amount to 1% or more of the number of
shares to be so delivered.
(g) Exercise Price Adjustment. Whenever the
number of Warrant Shares purchasable upon the exercise of this Warrant is
adjusted pursuant to Sections 5.1(a) and (b) herein, the Exercise Price payable
upon the
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exercise of this Warrant shall be adjusted by multiplying such Exercise Price
immedi ately prior to such adjustment by a fraction, of which the numerator
shall be the number of Warrant Shares purchasable upon the exercise of the
Warrant immediately prior to such adjustment, and of which the denominator shall
be the number of Warrant Shares purchasable immediately thereafter.
5.2 Rights Offering. In the event the Company shall effect an
offering of Common Stock pro rata among its stockholders, the Warrantholder
shall be entitled to elect to participate in each and every such offering as if
this Warrant had been exercised immediately prior to each such offering. The
Company shall, concurrently with the mailing to its stockholders, mail by first
class, postage prepaid, to the Warrantholder, notice that such rights offering
will take place together with all documents and information relating to the
terms of the offering. The Company shall not be required to make any adjustment
with respect to the issuance of shares of Common Stock pursuant to a rights
offering in which the holder hereof has been entitled to elect to participate
under the provisions of this Section 5.2.
5.3 Notice of Adjustments. Whenever the number of Warrant
Shares or the Exercise Price of such Warrant Shares is to be adjusted, as herein
provided, the Company shall, at least 10 Business Days prior to such adjustment,
mail by first class, postage prepaid, to the Warrantholder, notice of such
adjustment or adjustments and a certificate of the Company setting forth the
number of Warrant Shares and the Exercise Price of such Warrant Shares after
such adjustment, a detailed statement of the facts requiring such adjustment,
and the computation by which such adjustment was made.
5.4 Notice of Extraordinary Corporate Events.
In case the Company after the date hereof shall propose to (i)
distribute any dividend (whether stock or cash or otherwise) to the holders of
shares of Common Stock or to make any other distribution to the holders of
shares of Common Stock, (ii) offer to the holders of shares of Common Stock
rights to subscribe for or purchase any additional shares of any class of stock
or any other rights or options, or (iii) effect any reclassification of the
Common Stock (other than a reclassification involving merely the subdivision or
combination of outstanding shares of Common Stock), any capital reorganization,
any amalgamation, arrangement or merger, any sale, transfer or other disposition
of all or substantially all of its property, assets and business, or the
liquidation, dissolution or winding up of the Company, then, in each such case,
the Company shall mail to each Warrantholder notice of such proposed action,
which notice shall specify the date on which (a) the books of the Company shall
close, or (b) a record shall be taken for determining the holders of Common
Stock entitled to receive such stock dividends or other distribution or such
rights or options, or (c) such reclassification, reorganization, amalgamation,
arrangement, merger, sale, transfer, other disposition, liquidation, dissolution
or winding up shall take place or commence, as the case may be, and the date, if
any, as of which it is expected that holders of record of Common Stock shall
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be entitled to receive securities or other property deliverable upon such
action. Such notice shall be mailed in the case of any action covered by clause
(i) or (ii) above at least ten days prior to the record date for determining
holders of Common Stock for purposes of receiving such payment or offer, or in
the case of any action covered by clause (iii) above at least 30 days prior to
the date upon which such action takes place and at least 20 days prior to any
record date to determine holders of Common Stock entitled to receive such
securities or other property.
5.5 Effect of Failure to Notify. Failure to file any
certificate or notice or to mail any notice, or any defect in any certificate or
notice, pursuant to Sections 5.3 and 5.4 shall not affect the necessity of the
adjustment to the Exercise Price, the calculation of the number of shares
purchasable upon exercise of this Warrant, or the legality or validity of any
transaction giving rise thereto, without prejudicing the Warrantholder's rights
to seek damages for such failure.
5.6 Other Dilutive Events. In case the Company after the date
of this Warrant shall take any action affecting the Common Shares, other than
action described in Section 5.1, which in the opinion of the board of directors
of the Company would materially affect the rights of the Warrantholder, the
Exercise Price and/or the number of Warrant Shares purchasable upon exercise of
the Warrant shall be adjusted in such manner, if any, and at such time, by
action of the directors, in their sole discretion, as they may determine to be
equitable in the circumstances, provided, however, that any such determination
shall be subject to the written consent of the TSE before it is effective.
Failure to take action by the directors so as to provide for an adjustment on or
prior to the effective date of any action by the Company affecting the Common
Shares shall be conclusive evidence that the board of directors of the Company
has determined that it is equitable to make no adjustment in the circumstances.
6. Amendments. Any provision of this Warrant may be amended and the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of the
Company and the Warrantholder. Any amendment or waiver effected in accordance
with this Section 6 shall be binding upon such Warrantholder and the Company.
7. Definitions.
As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
Assignment Form: an Assignment Form in the form annexed hereto as
Exhibit B.
Business Day: any day other than a Saturday, Sunday or a day on
which national banks are authorized by law to close in the City of New York,
State of New York.
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Common Stock: the meaning specified on the cover of this Warrant.
Company: the meaning specified on the cover of this Warrant.
Exercise Form: an Exercise Form in the form annexed hereto as
Exhibit A.
Exercise Price: the meaning specified on the cover of this Warrant.
Expiration Date: the meaning specified on the cover of this
Warrant.
Fair Market Value: Fair Market Value of a share of Common Stock
(including any Warrant Share) as of a particular date (the "Determination Date")
shall mean:
(i) If the Common Stock is listed on any U.S. national securities
exchange or the TSE, then the Fair Market Value shall be the average of the last
ten "daily sales prices" of the Common Stock on the principal U.S. national
securities exchange on which the Common Stock is listed or admitted for trading
(or, if not, the TSE) on the last ten Business Days prior to the Determination
Date, or if not listed or traded on any such exchanges, then the Fair Market
Value shall be the average of the last ten "daily sales prices" of the Common
Stock on the National Market (the "National Market") of the National Association
of Securities Dealers Automated Quotations System ("Nasdaq") on the last ten
Business Days prior to the Determination Date. The "daily sales price" shall be
the closing price of the Common Stock at the end of each day; or
(ii) If the Common Stock is not so listed or admitted to unlisted
trading privileges or if no such sale is made on at least nine of such days,
then the Fair Market Value shall be the fair value as reasonably determined in
good faith by an independent, nationally-recognized (U.S. or Canadian)
investment banking firm reasonably acceptable to the Warrantholder (whose
determination shall be conclusive but subject to the written consent of the TSE
before it is effective).
Warrantholder: the meaning specified on the cover of this Warrant.
Warrant Shares: the meaning specified on the cover of this Warrant.
8. Miscellaneous.
8.1 Entire Agreement. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to the
Warrants.
8.2 Binding Effects; Benefits. This Warrant shall inure to the
benefit of and shall be binding upon the Company and the Warrantholder and their
respective heirs, legal representatives, successors and assigns. Nothing in this
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Warrant, expressed or implied, is intended to or shall confer on any person
other than the Company and the Warrantholder, or their respective heirs, legal
representatives, successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Warrant.
8.3 Section and Other Headings. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
8.4 Pronouns. All pronouns and any variations thereof refer to
the masculine, feminine or neuter, singular or plural, as the context may
require.
8.5 Notices. All notices and other communications required or
permitted to be given under this Warrant shall be in writing and shall be deemed
to have been duly given if delivered personally or sent by facsimile (with a
copy also sent by regular mail or overnight courier) or by recognized overnight
courier or by United States certified mail, postage prepaid, return receipt
requested, to the parties hereto at the following addresses or to such other
address as any party hereto shall hereafter specify by notice to the other party
hereto:
(a) if to the Company, addressed to:
Golden Star Resources Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇, ▇▇▇▇▇, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(b) if to the Warrantholder, addressed to the
Warrantholder at the addresses set forth on the
cover page of this Warrant
Except as otherwise provided herein, all such notices and communications shall
be deemed to have been received on the date of delivery thereof, if delivered
personally, or on the third Business Day after the mailing thereof.
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8.6 Separability. Any term or provision of this Warrant which
is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
8.7 Governing Law. This Warrant shall be deemed to be a
contract made under the laws of New York and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to such
agreements made and to be performed entirely within such State.
8.8 No Rights or Liabilities as Stockholder. Nothing contained
in this Warrant shall be determined as conferring upon the Warrantholder any
rights as a stockholder of the Company or as imposing any liabilities on the
Warrantholder to purchase any securities whether such liabilities are asserted
by the Company or by creditors or stockholders of the Company or otherwise.
8.9 Submission to Jurisdiction.
(a) The Company irrevocably submits to the non-
exclusive jurisdiction of any federal or New York state court located in the
City of New York in any suit or proceeding arising out of or relating to the
Warrants or the Warrant Shares.
(b) To the extent that the Company has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, it hereby irrevocably waives such immunity in respect of its
obligations under the above-referenced documents, to the extent permitted by
law.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer.
GOLDEN STAR RESOURCES LTD.
By:
Name:
Title:
Dated: , 1999
Exhibit A
EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably (provided that the Warrant Shares
are timely delivered) elects to exercise the right, represented by this Warrant,
to purchase __________ of the Warrant Shares and herewith tenders payment for
such Warrant Shares to the order of Golden Star Resources Ltd. ("GSR") in the
amount of US$__________.
The undersigned will deliver the Warrant covering the Warrant Shares
being exercised hereunder to GSR in accordance with the terms of this Warrant.
The undersigned requests that a certificate for such Warrant Shares be
registered in the name of ________________ and that such certificates be
delivered to _____________ ________________ whose address is __________________.
Dated:____________________
Signature____________________________________
____________________________________
(Print Name)
____________________________________
(Street Address)
____________________________________
(City) (State) (Zip Code)
Signed in the Presence of:
__________________________
Exhibit B
FORM OF ASSIGNMENT
(To be executed only upon transfer of this Warrant)
For value received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto ______________________ the
right represented by such Warrant to purchase ________________ common shares of
Golden Star Resources Ltd. to which such Warrant relates and all other rights of
the Warrantholder under the within Warrant (to the extent of such shares), and
appoints ______________________ Attorney to make such transfer on the books of
Golden Star Resources Ltd. maintained for such purpose, with full power of
substitution in the premises.
Dated:____________________
Signature____________________________________
____________________________________
(Print Name)
____________________________________
(Street Address)
____________________________________
(City) (State) (Zip Code)
Signed in the Presence of:
__________________________
