FORM 8-A EXHIBIT 1
WHEATON RIVER MINERALS LTD.
- and -
CIBC MELLON TRUST COMPANY
COMMON SHARE PURCHASE WARRANT INDENTURE
Providing for the Issue of
57,200,000 Common Share Purchase Warrants
May 30, 2002
TABLE OF CONTENTS
ARTICLE 1 INTERPRETATION.......................................................2
1.1 Definitions........................................................2
1.2 Words Importing the Singular.......................................6
1.3 Interpretation not Affected by Headings............................6
1.4 Day not a Business Day.............................................6
1.5 Time of the Essence................................................6
1.6 Governing Law......................................................7
1.7 Meaning of "outstanding" for Certain Purposes......................7
1.8 Currency...........................................................7
1.9 Termination........................................................7
ARTICLE 2 ISSUE OF WARRANTS....................................................7
2.1 Issue of Warrants..................................................7
2.2 Form and Terms of Warrants.........................................7
2.3 Signing of Warrant Certificates....................................8
2.4 Certification by the Warrant Agent.................................8
2.5 Warrantholder not a Shareholder, etc...............................9
2.6 Issue in Substitution for Lost Warrant Certificates................9
2.7 Warrants to Rank Pari Passu........................................9
2.8 Registration and Transfer of Warrants.............................10
2.9 Registers Open for Inspection.....................................11
2.10 Exchange of Warrants..............................................11
2.11 Ownership of Warrants.............................................12
2.12 Adjustment of Exchange Basis......................................12
2.13 Rules Regarding Calculation of Adjustment of Exchange Basis.......16
2.14 Postponement of Subscription......................................18
2.15 Notice of Adjustment..............................................18
2.16 No Action after Notice............................................19
2.17 Purchase of Warrants for Cancellation.............................19
2.18 Optional Purchases by the Company.................................19
2.19 Protection of Warrant Agent.......................................19
2.20 Legended Warrant Certificates.....................................20
ARTICLE 3 EXERCISE OF WARRANTS................................................22
3.1 Method of Exercise of Warrants....................................22
3.2 No Fractional Shares..............................................23
3.3 Effect of Exercise of Warrants....................................23
3.4 Cancellation of Warrant Certificates..............................24
3.5 Subscription for less than Entitlement............................24
3.6 Expiration of Warrant.............................................25
3.7 Prohibition on Exercise by U.S. Persons; Exception................25
ARTICLE 4 COVENANTS FOR WARRANTHOLDERS' BENEFIT...............................25
4.1 General Covenants of the Company..................................25
4.2 Securities Qualification Requirements.............................26
4.3 Warrant Agent's Remuneration and Expenses.........................27
4.4 Performance of Covenants by Warrant Agent.........................27
ARTICLE 5 ENFORCEMENT.........................................................27
5.1 Suits by Warrantholders...........................................27
- ii -
5.2 Limitation of Liability...........................................28
ARTICLE 6 MEETINGS OF WARRANTHOLDERS..........................................28
6.1 Right to Convene Meetings.........................................28
6.2 Notice............................................................28
6.3 Chairman..........................................................29
6.4 Quorum............................................................29
6.5 Power to Adjourn..................................................29
6.6 Show of Hands.....................................................29
6.7 Poll and Voting...................................................30
6.8 Regulations.......................................................30
6.9 Company, Warrant Agent and Counsel may be Represented.............31
6.10 Powers Exercisable by Extraordinary Resolution....................31
6.11 Meaning of "Extraordinary Resolution".............................32
6.12 Powers Cumulative.................................................32
6.13 Minutes...........................................................33
6.14 Instruments in Writing............................................33
6.15 Binding Effect of Resolutions.....................................33
6.16 Holdings by the Company or Subsidiaries of the Company
Disregarded.......................................................33
ARTICLE 7 SUPPLEMENTAL INDENTURES AND SUCCESSOR COMPANIES.....................34
7.1 Provision for Supplemental Indentures for Certain Purposes........34
7.2 Successor Companies...............................................35
ARTICLE 8 CONCERNING THE WARRANT AGENT........................................35
8.1 Trust Indenture Legislation.......................................35
8.2 Rights and Duties of Warrant Agent................................36
8.3 Evidence, Experts and Advisers....................................37
8.4 Securities, Documents and Monies Held by Warrant Agent............38
8.5 Actions by Warrant Agent to Protect Interests.....................38
8.6 Warrant Agent not Required to Give Security.......................38
8.7 Protection of Warrant Agent.......................................39
8.8 Replacement of Warrant Agent......................................39
8.9 Conflict of Interest..............................................40
8.10 Acceptance of Trusts..............................................41
8.11 Warrant Agent not to be Appointed Receiver........................41
8.12 Authorization to Carry on Business................................41
ARTICLE 9 GENERAL.............................................................41
9.1 Notice to the Company and the Warrant Agent.......................41
9.2 Notice to the Warrantholders......................................43
9.3 Discretion of Directors...........................................43
9.4 Satisfaction and Discharge of Indenture...........................43
9.5 Provisions of Indenture and Warrants for the Sole Benefit of
Parties and Warrantholders........................................44
9.6 Counterparts and Formal Date......................................44
SCHEDULE "A" - FORM OF WARRANT CERTIFICATE ..................................A-1
SCHEDULE "B" - REPRESENTATION LETTER ........................................B-1
SCHEDULE "C" - FORM OF DECLARATION FOR REMOVAL OF LEGEND.....................C-1
THIS WARRANT INDENTURE dated as of May 30, 2002
B E T W E E N:
WHEATON RIVER MINERALS LTD.,
a corporation incorporated under the laws of
the Province of Ontario
(hereinafter called the "Company")
A N D
CIBC MELLON TRUST COMPANY,
a trust company incorporated under the laws
of Canada
(hereinafter called the "Warrant Agent")
RECITALS
WHEREAS:
A. The Company proposes to issue 57,200,000 common share purchase warrants of
the Company (the "Share Purchase Warrants" or the "Warrants"), upon the exercise
of 110,000,000 Special Warrants of the Company;
B. Each whole Warrant entitles the holder thereof to purchase, subject to
adjustment in certain events, one Common Share at a price of $1.65 per share at
any time prior to 5:00 p.m. (Toronto time) on the date which is five (5) years
following the Closing Date, all upon the terms and conditions herein set forth;
C. For such purpose the Company deems it necessary to create and issue Warrants
to be constituted and issued in the manner hereinafter set forth;
D. The Company is duly authorized to create and issue the Warrants to be issued
as herein provided;
E. All things necessary have been done and performed to make the Warrants, when
certified by the Warrant Agent and issued as provided in this indenture, legal,
valid and binding upon the Company with the benefits of and subject to the terms
of this indenture;
F. The foregoing recitals are made as statements of fact by the Company and not
by the Warrant Agent;
G. The Warrant Agent has agreed to enter into this indenture and to hold all
rights, interests and benefits contained herein for and on behalf of those
persons who become holders of Warrants issued pursuant to this indenture from
time to time;
- 2 -
NOW THEREFORE THIS INDENTURE WITNESSES that for good and valuable
consideration mutually given and received, the receipt and sufficiency of which
are hereby acknowledged, it is hereby agreed and declared as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this indenture, unless there is something in the subject matter
or context inconsistent therewith:
"Agent" means Xxxxxxxxx XxXxxxxx & Partners on behalf of itself, BMO
Xxxxxxx Xxxxx Inc., Canaccord Capital Company and Xxxxxxx Securities Inc.;
"Applicable Legislation" means the provisions of the statutes of Canada
and its provinces and the regulations under those statutes relating to
trust indentures and/or the rights, duties or obligations of issuers and
trustees under trust indentures as are from time to time in force and
applicable to this indenture;
"business day" means a day that is not a Saturday, Sunday, a day on which
banks are closed in the City of Toronto, Ontario or civic or statutory
holiday in the City of Toronto, Ontario;
"Capital Reorganization" has the meaning ascribed thereto in subsection
2.12(4);
"Closing Date" means May 30, 2002 or such other date(s) as may be agreed
to by the Company and the Agent;
"Common Shares" means fully paid and non-assessable common shares without
nominal or par value in the capital of the Company;
"Common Share Reorganization" has the meaning ascribed thereto in
subsection 2.12(1);
"Company" means Wheaton River Minerals Ltd., a corporation existing under
the laws of the Province of Ontario, and its lawful successors from time
to time;
"Company's Auditors" means the chartered accountant or firm of chartered
accountants duly appointed as auditor or auditors of the Company from time
to time;
"counsel" means a barrister or solicitor (who may be an employee of the
Company) or a firm of barristers or solicitors (who may be counsel for the
Company), in both cases acceptable to the Warrant Agent;
- 3 -
"Current Market Price" at any date, means the weighted average price per
Common Share at which the Common Shares have traded:
(i) on the Toronto Stock Exchange;
(ii) if the Common Shares are not listed on the Toronto Stock Exchange,
on any stock exchange upon which the Common Shares are listed as may
be selected for this purpose by the directors, acting reasonably; or
(iii) if the Common Shares are not listed on any stock exchange, on any
over-the-counter market;
during the 20 consecutive trading days (on each of which at least 500
Common Shares are traded in board lots) ending the 2nd trading day before
such date and the weighted average price shall be determined by dividing
the aggregate sale price of all Common Shares sold in board lots on the
exchange or market, as the case may be, during the 20 consecutive trading
days by the number of Common Shares sold or, if not traded on any
recognized market or exchange, as determined by the directors of the
Company acting reasonably;
"director" means a member of the board of directors of the Company for the
time being, and unless otherwise specified herein, reference to "action by
the board of directors" means action by the board of directors of the
Company as a board or, whenever duly empowered, action by a committee of
the board;
"Dividends Paid in Ordinary Course" means cash dividends declared payable
on the Common Shares in any fiscal year of the Company to the extent that
such cash dividends do not exceed, 5% of the Exercise Price and for such
purpose the amount of any dividend paid in shares shall be the aggregate
stated capital of such shares and the amount of any dividend paid in other
than cash or shares shall be the fair market value of such dividend as
determined by resolution passed by the board of directors of the Company,
subject, if applicable, to the prior consent of any stock exchange or any
other over-the-counter market on which the Common Shares are traded and
for such purpose the amount of any dividends paid in other than cash or
shares shall be the fair market value of such dividend as determined by
the directors;
"Exchange Basis" means, as at any time, the number of Common Shares or
other classes of shares or securities which a Warrantholder is entitled to
receive upon the exercise of the rights attached to the Warrants pursuant
to the provisions of this indenture and which, as at the date hereof, is
equal to one Common Share per Warrant;
"Exercise Date" with respect to any Warrant means the date on which such
Warrant is surrendered for exercise in accordance with the provisions of
Article 3;
"Exercise Price" means $1.65 for each Common Share, subject to adjustment
in accordance with the provisions of this indenture;
- 4 -
"extraordinary resolution" has the meaning ascribed thereto in sections
6.11 and 6.14;
"Final Prospectus" means the final prospectus to be filed with the
Securities Commissions relating to, inter alia, the distribution of the
Common Shares and Share Purchase Warrants issuable upon exercise of the
Special Warrants and includes any amendments or supplements thereto;
"MRRS Decision Document" means the decision document issued pursuant to
the Mutual Reliance Review System for Prospectuses and Annual Information
Forms evidencing that receipts have been obtained for the Final Prospectus
in each of the Qualification Provinces;
"person" means an individual, a corporation, a partnership, a syndicate, a
trustee or any unincorporated organization and words importing persons are
intended to have a similarly extended meaning;
"Purchaser" means a purchaser of Special Warrants;
"Qualification Date" means the date that the MRRS Decision Document is
issued for the Final Prospectus;
"Qualification Provinces" means the provinces of British Columbia,
Alberta, Ontario, Quebec and Nova Scotia;
"Regulation S" means Regulation S under the U.S. Securities Act;
"Securities Commissions" means the securities commissions or similar
regulatory authorities in the Qualification Provinces;
"Share Purchase Warrants" means the common share purchase warrants issued
hereunder entitling the holders thereof to purchase Common Shares on the
basis of one Common Share for each whole Share Purchase Warrant upon
payment of the Exercise Price; provided that in each case the number
and/or class of shares or securities receivable on the exercise of the
Share Purchase Warrants may be subject to increase or decrease or change
in accordance with the terms and provisions hereof;
"shareholder" means an owner of record of one or more Common Shares or
shares of any other class or series of the Company;
"Special Warrants" means 110,000,000 special warrants of the Company
issued pursuant to the Special Warrant Indenture, each Special Warrant
entitling the holder to receive one Common Share and one-half of one
Warrant, subject to adjustment in certain circumstances;
- 5 -
"Special Warrant Indenture" means an indenture between the Company and the
Warrant Agent dated the date hereof providing for, among other things, the
issuance of the Special Warrants;
"Subject Securities" means the Common Shares issuable upon exercise of the
Warrants and the Common Shares or other securities or property issuable
upon the exercise of the Warrants as a result of any adjustment to the
subscription rights pursuant to Article 2 hereof;
"subsidiary of the Company" or "Subsidiary" means a corporation, a
majority of the outstanding voting shares of which is owned, directly or
indirectly, by the Company or by one or more subsidiaries of the Company
and, as used in this definition, "voting shares" means shares of a class
or classes ordinarily entitled to vote for the election of the majority of
the directors of a corporation irrespective of whether or not shares of
any other class or classes shall have or might have the right to vote for
directors by reason of the happening of any contingency;
"this Warrant Indenture", "this indenture", "herein", "hereby", and
similar expressions mean and refer to this Warrant Indenture and any
indenture, deed or instrument supplemental or ancillary hereto; and the
expressions "Article", "section" or "subsection" followed by a number or
letter mean and refer to the specified Article, section or subsection of
this indenture;
"Time of Expiry" means, in respect of a Warrantholder, 5:00 p.m. (Toronto
time) on the first business day following the date which is five (5) years
from the Closing Date;
"trading day" means a day on which the Toronto Stock Exchange (or such
other exchange on which the Common Shares are listed and which forms the
primary trading market for such shares) is open for trading, and if the
Common Shares are not listed on a stock exchange, a day on which an
over-the-counter market where such shares are traded is open for business;
"Transfer Agent" means the transfer agent or agents for the time being of
the Common Shares;
"U.S. Person" means a U.S. person as that term is defined in Regulation S;
"U.S. Securities Act" means the United States Securities Act of 1933, as
amended, of the United States;
"United States" means the United States as that term is defined in
Regulation S;
"Warrant Agent" means CIBC Mellon Trust Company, a trust company
incorporated under the laws of Canada, or any lawful successor thereto
including through operation of section 8.8;
- 6 -
"Warrant Certificates" means the certificates representing the Warrants
substantially in the form attached as Schedule "A" hereto or such other
form as may be approved under section 2.6, evidencing Warrants;
"Warrantholders" or "holders" means the persons whose names are entered
for the time being in the register maintained pursuant to section 2.8;
"Warrantholders' Request" means an instrument, signed in one or more
counterparts by Warrantholders entitled to acquire, in the aggregate, at
least 25% of the aggregate number of all Warrants then outstanding, which
requests the Warrant Agent to take some action or proceeding specified
therein;
"Warrants" means the Share Purchase Warrants; and
"written order of the Company", "written request of the Company", "written
consent of the Company", "certificate of the Company" and any other
document required to be signed by the Company, means, respectively, a
written order, request, consent, certificate or other document signed in
the name of the Company by any officer and director of the Company, and
may consist of one or more instruments so executed.
1.2 Words Importing the Singular
Unless elsewhere otherwise expressly provided or unless the context
otherwise requires, words importing the singular include the plural and vice
versa and words importing the masculine gender include the feminine and neuter
genders.
1.3 Interpretation not Affected by Headings
The division of this indenture into Articles, sections, subsections
and paragraphs, the provision of a table of contents and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation of this indenture.
1.4 Day not a Business Day
In the event that any day on or before which any action is required
or permitted to be taken hereunder is not a business day, then such action shall
be required or permitted to be taken on or before the requisite time on the next
succeeding day that is a business day.
1.5 Time of the Essence
Time shall be of the essence in all respects in this indenture, the
Warrants and the Warrant Certificates.
- 7 -
1.6 Governing Law
This indenture, the Warrants and the Warrant Certificates shall be
construed and enforced in accordance with the laws of the Province of Ontario
and the federal laws of Canada applicable therein and shall be treated in all
respects as Ontario contracts.
1.7 Meaning of "outstanding" for Certain Purposes
Every Warrant represented by a Warrant Certificate certified and
delivered by the Warrant Agent hereunder shall be deemed to be outstanding until
it shall be cancelled or delivered to the Warrant Agent for cancellation or
until the Time of Expiry; provided that where a new Warrant Certificate has been
issued pursuant to section 2.6 hereof to replace one which is lost, mutilated,
stolen or destroyed, the Warrants represented by only one of such Warrant
Certificates shall be counted for the purpose of determining the aggregate
number of Warrants outstanding.
1.8 Currency
Unless otherwise stated, all dollar amounts referred to in this
indenture are in Canadian dollars.
1.9 Termination
This indenture shall continue in full force and effect until the
earlier of: (a) the Time of Expiry; and (b) the date that no Warrants are
outstanding hereunder; provided that this indenture shall continue in effect
thereafter, if applicable, until the Company and the Warrant Agent have
fulfilled all of their respective obligations under this indenture.
ARTICLE 2
ISSUE OF WARRANTS
2.1 Issue of Warrants
A total of 57,200,000 Share Purchase Warrants entitling the
registered holders thereof to acquire an aggregate of 57,200,000 Common Shares
are hereby created and authorized to be issued hereunder at the Exercise Price
upon the terms and conditions herein set forth and shall be executed by the
Company and certified by or on behalf of the Warrant Agent upon the written
order of the Company and delivered by the Company in accordance with sections
2.3 and 2.4.
2.2 Form and Terms of Warrants
(1) The Warrant Certificates for the Warrants shall be substantially in
the form attached as Schedule "A" hereto, subject to the provisions of this
indenture, with such additions, variations and changes as may be required or
permitted by the terms of this
- 8 -
Indenture, and which may from time to time be agreed upon by the Warrant Agent
and the Company, and shall have such legends, distinguishing letters and numbers
as the Company may, with the approval of the Warrant Agent, prescribe. Except as
hereinafter provided in this Article 2, all Share Purchase Warrants shall, save
as to denominations, be of like tenor and effect. The Warrant Certificates may
be engraved, printed, lithographed, photocopied or be partially in one form or
another, as the Company may determine. No change in the form of the Warrant
Certificate shall be required by reason of any adjustment made pursuant to this
Article 2 in the number and/or class of securities or type of securities which
may be acquired pursuant to the Warrants.
(2) Each Warrant authorized to be issued hereunder shall entitle the
registered holder thereof to acquire (subject to sections 2.12 and 2.13) upon
due exercise and upon the due execution of the subscription form endorsed on the
reverse side of the Warrant Certificate or other instrument of subscription in
such form as the Warrant Agent and/or the Company may from time to time
prescribe and upon payment of the Exercise Price, one Common Share or such other
kind and amount of shares or securities or property, calculated pursuant to the
provisions of sections 2.12 and 2.13, as the case may be, at any time after the
date of issuance of such Warrants and prior to the Time of Expiry, in accordance
with the provisions of this indenture.
(3) Fractional Warrants shall not be issued or otherwise provided for.
2.3 Signing of Warrant Certificates
The Warrant Certificates shall be signed by any one of the directors
or officers of the Company and may, but need not be under the corporate seal of
the Company or a reproduction thereof. The signature of any such director or
officer may be mechanically reproduced in facsimile and Warrant Certificates
bearing such facsimile signatures shall be binding upon the Company as if they
had been manually signed by such director or officer. Notwithstanding that the
person whose manual or facsimile signature appears on any Warrant Certificate as
a director or officer may no longer hold office at the date of issue of the
Warrant Certificate or at the date of certification or delivery thereof, any
Warrant Certificate signed as aforesaid shall, subject to section 2.4 be valid
and binding upon the Company and the registered holder thereof will be entitled
to the benefits of this indenture.
2.4 Certification by the Warrant Agent
(1) No Warrant Certificate shall be issued or, if issued, shall be valid
for any purpose or entitle the registered holder to the benefit hereof or
thereof until it has been certified by manual signature by or on behalf of the
Warrant Agent and such certification by the Warrant Agent upon any Warrant
Certificate shall be conclusive evidence as against the Company that the Warrant
Certificate so certified has been duly issued hereunder and the holder is
entitled to the benefits hereof.
- 9 -
(2) The certification of the Warrant Agent on the Warrant Certificates
issued hereunder shall not be construed as a representation or warranty by the
Warrant Agent as to the validity of this indenture or the Warrants (except the
due certification thereof) and the Warrant Agent shall in no respect be liable
or answerable for the use made of the Warrants or any of them or of the
consideration therefor except as otherwise specified herein.
2.5 Warrantholder not a Shareholder, etc.
Nothing in this indenture or the holding of a Warrant evidenced by a
Warrant Certificate shall be construed as conferring upon a Warrantholder any
right or interest whatsoever as a Shareholder, including but not limited to the
right to vote at, to receive notice of, or to attend meetings of shareholders or
any other proceedings of the Company, nor entitle the holder to any right or
interest in respect thereof except as herein and in the Warrants expressly
provided.
2.6 Issue in Substitution for Lost Warrant Certificates
(1) In the event that any Warrant Certificates issued and certified under
this indenture shall become mutilated or be lost, destroyed or stolen, the
Company, subject to applicable law, and subsection 2.6(2), shall issue and
thereupon the Warrant Agent shall certify and deliver a new Warrant Certificate
of like denomination, date and tenor as the one mutilated, lost, destroyed or
stolen in exchange for, in place of and upon cancellation of such mutilated
Warrant Certificate, or in lieu of and in substitution for such lost, destroyed
or stolen Warrant Certificate, and the substituted Warrant Certificate shall be
in a form approved by the Warrant Agent and Warrants evidenced by it will
entitle the holder thereof to the benefits hereof and shall rank equally in
accordance with its terms with all other Warrant Certificates issued or to be
issued hereunder.
(2) The applicant for the issue of a new Warrant Certificate pursuant to
this section 2.6 shall bear the cost of the issue thereof and in the case of
mutilation shall as a condition precedent to the issue thereof, deliver to the
Warrant Agent the mutilated Warrant Certificate, and in the case of loss,
destruction or theft shall, as a condition precedent to the issue thereof,
furnish to the Company and to the Warrant Agent such evidence of ownership and
of the loss, destruction or theft of the Warrant Certificate so lost, destroyed
or stolen as shall be satisfactory to the Company and to the Warrant Agent in
their sole discretion, and such applicant shall be required to furnish an
indemnity or security in amount and form satisfactory to the Company and the
Warrant Agent in their sole discretion and shall pay the reasonable charges of
the Company and the Warrant Agent in connection therewith.
2.7 Warrants to Rank Pari Passu
Except as specifically provided in subsections 2.2(3) and 2.12(5)
hereof, all Warrants shall rank pari passu, whatever may be the actual date of
issue or the class of same.
- 10 -
2.8 Registration and Transfer of Warrants
(1) The Company will cause to be kept by the Warrant Agent at the
principal stock transfer offices of the Warrant Agent in the cities of Toronto,
Ontario, Vancouver and British Columbia:
(a) a register of holders in which shall be entered in
alphabetical order the names and addresses of the holders of
Warrants and particulars of the Warrants held by them and the
Warrant Agent shall be entitled to rely on such register in
connection with the exchange, transfer, exercise or deemed
exercise of any Share Purchase Warrant or Share Purchase
Warrants pursuant to the terms of this indenture or the terms
thereof; and
(b) a register of transfers in which all transfers of Warrants and
the date and other particulars of each such transfer shall be
entered.
(2) No transfer of any Warrant will be valid unless entered on the
register of transfers referred to in subsection 2.8(1) hereof, upon surrender to
the Warrant Agent of the Warrant Certificate evidencing such Warrant, and a duly
completed and executed Transfer of Warrants form attached to the Warrant
Certificate executed by the registered holder or his executors, administrators
or other legal representatives or his or their attorney duly appointed by an
instrument in writing in form and execution satisfactory to the Warrant Agent,
and, upon compliance with such requirements and such other reasonable
requirements as the Warrant Agent may prescribe, such transfer will be recorded
on the register of transfers by the Warrant Agent.
(3) The transferee of any Warrant will, after surrender to the Warrant
Agent of the Warrant Certificate evidencing such Warrant as required by
subsection 2.8(2) hereof and upon compliance with all other conditions in
respect thereof required by this indenture or by law, be entitled to be entered
on the register of holders referred to in subsection 2.8(1) hereof, as the owner
of such Warrant free from all equities or rights of set-off or counterclaim
between the Company and the transferor or any previous holder of such Warrant,
except in respect of equities of which the Company is required to take notice by
statute or by order of a court of competent jurisdiction.
(4) The Company will be entitled, and may direct the Warrant Agent, to
refuse to recognize any transfer, or enter the name of any transferee, of any
Warrant on the registers referred to in subsection 2.8(1) hereof, if such
transfer would constitute a violation of the securities laws of any jurisdiction
or the rules, regulations or policies of any regulatory authority having
jurisdiction. The Warrant Agent is entitled to assume compliance with all
applicable securities legislation unless otherwise notified in writing by the
Company. No duty shall rest with the Warrant Agent to determine compliance of
the transferee or transferor of any Warrant with applicable securities
legislation.
- 11 -
(5) Any Warrant Certificate issued to a transferee in transfers
contemplated by this section 2.8 shall bear the appropriate legends as set forth
in subsections 2.20 (1) and (2).
(6) If a Warrant Certificate tendered for transfer bears the legend set
forth in section 2.20, the Warrant Agent shall not register such transfer unless
the transferor has provided the Warrant Agent with the Warrant Certificate and:
(A) an effective registration statement under the U.S. Securities Act and
applicable United States state securities laws covering any such transaction has
been filed, or (B) the Company has received an acceptable legal opinion stating
that such transaction is exempt from registration, or (C) the Company otherwise
satisfies itself that such transaction is exempt from registration.
(7) If a Warrant Certificate tendered for transfer does not bear the
legend set forth in section 2.20 and such transfer is not otherwise exempt, the
Warrant Agent shall not register such transfer unless the transferor has
provided the Warrant Agent with the Warrant Certificate and a duly executed and
completed Transfer of Warrants form attached to the Warrant Certificate, and the
offer of the securities being transferred was made to a person not in the United
States and that is not a U.S. Person.
2.9 Registers Open for Inspection
The registers referred to in subsection 2.8(1) shall be open at all
reasonable times during business hours on a business day for inspection by the
Company, the Warrant Agent or any Warrantholder. The Warrant Agent shall, from
time to time when requested to do so in writing by the Company, furnish the
Company with a list of the names and addresses of holders of Warrants entered in
the register of holders kept by the Warrant Agent and showing the number of
Subject Securities which might then be acquired upon the exercise of the
Warrants held by each such holder.
2.10 Exchange of Warrants
(1) Warrant Certificates may, upon compliance with the reasonable
requirements of the Warrant Agent, be exchanged for Warrant Certificates in any
other authorized denomination representing in the aggregate an equal number of
Warrants as the number of Warrants represented by the Warrant Certificates being
exchanged. The Company shall sign and the Warrant Agent shall certify, in
accordance with sections 2.3 and 2.4, all Warrant Certificates necessary to
carry out the exchanges contemplated herein.
(2) Warrant Certificates may be exchanged only at the principal stock
transfer offices of the Warrant Agent in the cities of Toronto, Ontario,
Vancouver and British Columbia or at any other place that is designated by the
Company with the approval of the Warrant Agent. Any Warrant Certificates
tendered for exchange shall be surrendered to the Warrant Agent and cancelled.
(3) Except as otherwise herein provided, the Warrant Agent may charge
Warrantholders requesting an exchange a reasonable sum for each Warrant
Certificate
- 12 -
issued; and payment of such charges and reimbursement of the Warrant Agent or
the Company for any and all taxes or governmental or other charges required to
be paid shall be made by the party requesting such exchange as a condition
precedent to such exchange.
2.11 Ownership of Warrants
The Company and the Warrant Agent and their respective agents may
deem and treat the holder of any Warrant Certificate as the absolute
owner of that Warrant represented thereby for all purposes and the
Company and the Warrant Agent and their respective agents shall not
be affected by any notice or knowledge to the contrary. The holder
of any Warrant shall be entitled to the rights evidenced by that
Warrant free from all equities or rights of set-off or counterclaim
between the Company and the original or any intermediate holder
thereof and all persons may act accordingly and the receipt from any
holder for the Common Shares or monies obtainable pursuant thereto
shall be a good discharge to the Company and the Warrant Agent for
the same and neither the Company nor the Warrant Agent shall be
bound to inquire into the title of any holder.
2.12 Adjustment of Exchange Basis
The Exchange Basis shall be subject to adjustment from time to time
in the events and in the manner provided as follows:
(1) If and whenever at any time after the date hereof and prior to the
Time of Expiry the Company shall:
(a) issue Common Shares or securities exchangeable for or
convertible into Common Shares to all or substantially all the
holders of the Common Shares as a stock dividend or other
distribution (other than as a Dividend Paid in the Ordinary
Course or a distribution of Common Shares upon exercise of the
Warrants or pursuant to the exercise of directors, officers or
employee stock options granted under stock option plans of the
Company), or
(b) subdivide, redivide or change its then outstanding Common
Shares into a greater number of shares, or
(c) reduce, combine or consolidate its then outstanding Common
Shares into a lesser number of shares,
(any of such events in these clauses (a), (b) or (c) being called a
"Common Share Reorganization"), then the Exchange Basis in effect on
the effective date of such subdivision or consolidation, or on the
record date of such stock dividend or other distribution, as the
case may be, shall be adjusted by multiplying the Exchange Basis in
effect immediately prior to such effective or record date by a
fraction: (i) the numerator of which shall be the total number of
Common Shares outstanding on such date
- 13 -
immediately after giving effect to such Common Share Reorganization
(including, in the case where securities exchangeable for or
convertible into Common Shares are distributed, the number of Common
Shares that would have been outstanding had such securities been
exchanged for or converted into Common Shares on such record date,
assuming in any case where such securities are not then convertible
or exchangeable but subsequently become so, that they were
convertible or exchangeable on the record date on the basis upon
which they first become convertible or exchangeable), and (ii) the
denominator of which shall be the total number of Common Shares
outstanding on such date before giving effect to such Common Share
Reorganization. The resulting product, adjusted to the nearest
1/100th, shall thereafter be the Exchange Basis until further
adjusted as provided in this Article 2.
(2) If and whenever at any time after the date hereof and prior to the
Time of Expiry, the Company fixes a record date for the distribution to all or
substantially all of the holders of Common Shares of rights, options or warrants
entitling them for a period expiring not more than 45 days after such record
date (the "Rights Period"), to subscribe for or purchase Common Shares, or
securities exchangeable for or convertible into Common Shares, at a price per
share to the holder (or at an exchange or conversion price per share) of less
than 95% of the Current Market Price for the Common Shares on such record date
(any of such events being called a "Rights Offering"), then the Exchange Basis
shall be adjusted effective immediately after such record date for the Rights
Offering by multiplying the Exchange Basis in effect immediately prior to such
record date by a fraction:
(a) the numerator of which shall be the number of Common Shares
which would be outstanding after giving effect to the Rights
Offering (assuming the exercise of all of the rights, warrants
or options under the Rights Offering and assuming the exchange
or conversion into Common Shares of all exchangeable or
convertible securities issued upon exercise of such rights,
warrants or options, if any), and
(b) the denominator of which shall be the aggregate of:
(i) the total number of Common Shares outstanding as of the
record date for the Rights Offering, and
(ii) a number of Common Shares arrived at by dividing
(A) the amount equal to the aggregate consideration
payable on the exercise of all of the rights,
warrants and options under the Rights Offering
plus the aggregate consideration, if any, payable
on the exchange or conversion of the exchangeable
or convertible securities issued upon exercise of
such
- 14 -
rights, warrants or options (assuming the exercise
of all rights, warrants and options under the
Rights Offering and assuming the exchange or
conversion of all exchangeable or convertible
securities issued upon exercise of such rights,
warrants and options);
by
(B) the Current Market Price of the Common Shares as
of the record date for the Rights Offering.
The resulting product, adjusted to the nearest 1/100th, shall thereafter be the
Exchange Basis until further adjusted in accordance with this Article 2. Any
Common Shares owned by or held for the account of the Company or any of its
subsidiaries or a partnership in which the Company is directly or indirectly a
party to will be deemed not to be outstanding for the purpose of any
computation. If, at the date of expiry of the rights, options or warrants
subject to the Rights Offering, less than all the rights, options or warrants
have been exercised, then the Exchange Basis shall be readjusted effective
immediately after the date of expiry to the Exchange Basis which would have been
in effect on the date of expiry if only the rights, options or warrants issued
had been those exercised. If at the date of expiry of the rights of exchange or
conversion of any securities issued pursuant to the Rights Offering less than
all of such securities have been exchanged or converted into Common Shares, then
the Exchange Basis shall be readjusted effective immediately after the date of
expiry to the Exchange Basis which would have been in effect on the date of
expiry if only the exchangeable or convertible securities issued had been those
securities actually exchanged for or converted into Common Shares.
(3) If and whenever at any time after the date hereof and prior to the
Time of Expiry the Company shall fix a record date for the issue or distribution
to all or substantially all the holders of its outstanding Common Shares of:
(a) shares of the Company of any class other than Common Shares;
or
(b) rights, options or warrants to acquire Common Shares or
securities exchangeable for or convertible into Common Shares;
or
(c) evidences of indebtedness; or
(d) cash, securities or any property or other assets,
and if such issuance or distribution does not constitute a Dividend Paid in the
Ordinary Course, a Common Share Reorganization or a Rights Offering (any of such
non-excluded events being herein called a "Special Distribution"), the Exchange
Basis shall be adjusted effective immediately after the record date for the
Special Distribution by multiplying the Exchange Basis in effect on such record
date by a fraction:
- 15 -
(i) the numerator of which shall be the number of Common
Shares outstanding on such record date multiplied by the
Current Market Price of the Common Shares on such record
date, and
(ii) the denominator of which shall be:
(A) the product of the number of Common Shares
outstanding on such record date and the Current
Market Price of the Common Shares on such record
date, less
(B) the fair market value, as determined by action by
the directors acting reasonably and in good faith
(whose determination shall be conclusive), to the
holders of the Common Shares of the shares,
rights, options, warrants, evidences or
indebtedness or property or other assets issued or
distributed in the Special Distribution,
provided that no such adjustment shall be made if the result of such adjustment
would be to decrease the Exchange Basis in effect immediately before such record
date. The resulting product, adjusted to the nearest 1/100th, shall thereafter
be the Exchange Basis until further adjusted as provided in this Article 2. Any
shares owned by or held for the account of the Company or its subsidiaries or a
partnership of which the Company is directly or indirectly a party to shall be
deemed not to be outstanding for the purpose of any such computation.
(4) If and whenever at any time after the date hereof and prior to the
Time of Expiry there shall be a reclassification of Common Shares at any time
outstanding or change of the Common Shares into other shares or into other
securities (other than a Common Share Reorganization), or a consolidation,
amalgamation or merger of the Company with or into any other corporation or
other entity (other than a consolidation, amalgamation or merger which does not
result in any reclassification of the outstanding Common Shares or a change of
the Common Shares into other shares), or a transfer (other than to a Subsidiary)
of the undertaking or assets of the Company as an entirety or substantially as
an entirety to another corporation or other entity (any of such events being
herein called a "Capital Reorganization"), any Warrantholder who thereafter
shall exercise his right to receive Common Shares pursuant to Warrant(s) shall
be entitled to receive, and shall accept in lieu of the number of Subject
Securities to which such holder was theretofore entitled upon such exercise, the
aggregate number of shares, other securities or other property which such holder
would have been entitled to receive as a result of such Capital Reorganization
if, on the effective date or record date thereof, as the case may be, the
Warrantholder had been the registered holder of the number of Subject Securities
to which such holder was theretofore entitled upon exercise. If appropriate,
adjustments shall be made as a result of any such Capital Reorganization in the
application of the provisions set forth in this Article 2 with respect
- 16 -
to the rights and interests thereafter of Warrantholders to the end that the
provisions set forth in this Article 2 shall thereafter correspondingly be made
applicable as nearly as may reasonably be in relation to any shares, other
securities or other property thereafter deliverable upon the exercise of any
Warrant. Any such adjustment shall be made by and set forth in an indenture
supplemental hereto approved by the directors and by the Warrant Agent and
entered into pursuant to the provisions of this indenture and shall for all
purposes be conclusively deemed to be an appropriate adjustment.
(5) Forthwith upon the occurrence of any of the events referred to in the
preceding subsections above, the Company shall:
(a) file with the Warrant Agent a certificate of the Company
specifying the required adjustment; and
(b) give notice to the Warrantholders of the required adjustment.
(6) Any adjustment to the Exchange Basis as set forth herein shall also
include a corresponding adjustment to the Exercise Price which shall be
calculated by multiplying the Exercise Price by a fraction: (i) the numerator of
which shall be the Exchange Basis prior to the adjustment, and (ii) the
denominator of which shall be the Exchange Basis after the adjustment.
2.13 Rules Regarding Calculation of Adjustment of Exchange Basis
For the purposes of section 2.12:
(1) The adjustments provided for in section 2.12 shall be cumulative and
such adjustments shall be made successively whenever an event referred to
therein shall occur, subject to the following subsections of this section 2.13.
(2) If the purchase price provided for in any Rights Offering (the "Rights
Offering Price") is decreased, the Exchange Basis shall forthwith be changed so
as to increase the Exchange Basis to such Exchange Basis as would have been
obtained had the adjustment to the Exchange Basis made pursuant to subsection
2.12(2) upon the issuance of such Rights Offering been made upon the basis of
the Rights Offering Price as so decreased, provided that the provisions of this
subsection shall not apply to any decrease in the Rights Offering Price
resulting from provisions in any such Rights Offering designed to prevent
dilution if the event giving rise to such decrease in the Rights Offering Price
itself requires an adjustment to the Exchange Basis pursuant to the provisions
of section 2.12.
(3) No adjustment in the Exchange Basis shall be required unless such
adjustment would result in a change of at least one-one hundredth of a Common
Share based on the prevailing Exchange Basis provided, however, that any
adjustments which, except for the provisions of this subsection would otherwise
have been required to be made, shall be carried forward and taken into account
in any subsequent adjustment.
- 17 -
(4) No adjustment in the Exchange Basis shall be made in respect of any
event described in section 2.12, other than the events referred to in paragraphs
(b) and (c) of subsection (1) thereof, if Warrantholders are entitled to
participate in such event on the same terms, mutatis mutandis, as if
Warrantholders had exercised their Warrants prior to or on the effective date or
record date of such event.
(5) No adjustment in the Exchange Basis shall be made pursuant to section
2.12 in respect of the issue from time to time of Common Shares purchasable on
exercise of the Warrants or in respect of the issue from time to time of a
Dividend Paid in the Ordinary Course of Common Shares to holders of Common
Shares who exercise an option or election to receive substantially equivalent
dividends in Common Shares in lieu of receiving a cash dividend, and any such
issue shall be deemed not to be a Common Share Reorganization.
(6) If a dispute shall at any time arise with respect to adjustments
provided for in section 2.12, such dispute shall, absent manifest error, be
conclusively determined by the Company's Auditors, or if they are unable or
unwilling to act, by such other firm of independent chartered accountants as may
be selected by the directors and any further determination, absent manifest
error, shall be binding upon the Company, the Warrant Agent and the
Warrantholders.
(7) If the Company shall set a record date to determine the holders of the
Common Shares for the purpose of entitling them to receive any dividend or
distribution or any subscription or purchase rights and shall, thereafter and
before the distribution to such shareholders of any such dividend, distribution,
or subscription or purchase rights, legally abandon its plan to pay or deliver
such dividend, distribution, or subscription or purchase rights, then no
adjustment in the Exchange Basis shall be required by reason of the setting of
such record date.
(8) In the absence of a resolution of the directors fixing a record date
for a Rights Offering or Special Distribution, the Company shall be deemed to
have fixed as the record date therefor the date on which the Rights Offering or
Special Distribution is effected.
(9) As a condition precedent to the taking of any action which would
require any adjustment in any of the subscription rights pursuant to any of the
Warrants, including the Exchange Basis, the Company shall take any corporate
action which may, in the opinion of counsel, be necessary in order that the
Company have unissued and reserved in its authorized capital and may validly and
legally issue as fully paid and non-assessable all the shares or other
securities which all the holders of such Warrants are entitled to receive on the
exercise of all the subscription rights attaching thereto in accordance with the
provisions thereof.
(10) In case the Company, after the date hereof, shall take any action
affecting any Common Shares, other than action described in section 2.12, which
in the opinion of the directors acting reasonably and in good faith would
materially affect the rights of Warrantholders, the Exchange Basis shall be
adjusted in such manner, if any, and at
- 18 -
such time, as the directors, in their sole discretion acting reasonably and in
good faith, may reasonably determine to be equitable in the circumstances.
Failure of the taking of action by the directors so as to provide for an
adjustment in the Exchange Basis prior to the effective date of any action by
the Company affecting the Common Shares shall be conclusive evidence that the
directors have determined that it is equitable to make no adjustment in the
circumstances.
(11) The Warrant Agent shall be entitled to act and rely on any adjustment
calculations by the Company or the Company's Auditors.
2.14 Postponement of Subscription
In any case where the application of section 2.12 results in an
increase in the number of Subject Securities which are issuable upon exercise of
the Warrants taking effect immediately after the record date for a specific
event, if any Warrant is exercised after that record date and prior to
completion of the event, the Company may postpone the issuance to the holder of
the Warrant of the Subject Securities to which he is entitled by reason of such
adjustment but such Subject Securities shall be so issued and delivered to that
holder upon completion of that event, with the number of such Subject Securities
calculated on the basis of the number of Subject Securities on the date that the
Warrant was exercised adjusted for completion of that event and the Company
shall deliver to the person or persons in whose name or names the Subject
Securities are to be issued an appropriate instrument evidencing the right of
such person or persons to receive such Subject Securities and the right to
receive any dividends or other distributions which, but for the provisions of
this section, such person or persons would have been entitled to receive in
respect of such Subject Securities from and after the date that the Warrant was
exercised in respect thereof.
2.15 Notice of Adjustment
(1) At least 14 days prior to the effective date or record date, as the
case may be, of any event which requires or might require adjustment pursuant to
section 2.12, the Company shall:
(a) file with the Warrant Agent a certificate of the Company
specifying the particulars of such event (including the record
date or the effective date for such event) and, if
determinable, the required adjustment and the computation of
such adjustment; and
(b) give notice to the Warrantholders of the particulars of such
event (including the record date or the effective date for
such event) and, if determinable, the required adjustment.
(2) In case any adjustment for which a notice in subsection 2.15(1) has
been given is not then determinable, the Company shall promptly after such
adjustment is determinable:
(a) file with the Warrant Agent a computation of such adjustment;
and
- 19 -
(b) give notice to the Warrantholders of the adjustment.
(3) The Warrant Agent may, absent manifest error, act and rely upon
certificates and other documents filed by the Company pursuant to this section
for all purposes of the adjustment.
2.16 No Action after Notice
The Company covenants with the Warrant Agent that it will not take
any other corporate action which might deprive the holder of a Warrant of the
opportunity of exercising the rights of acquisition pursuant thereto during the
period of 14 days after the giving of the notice set forth in subparagraph
(1)(b) of section 2.15 hereof;
2.17 Purchase of Warrants for Cancellation
The Company may, at any time and from time to time, purchase
Warrants by invitation for tender, by private contract or otherwise (which shall
include a purchase through an investment dealer or firm holding membership on a
Canadian stock exchange) on such terms as the Company may determine. All
Warrants purchased pursuant to the provisions of this section 2.17 shall be
forthwith delivered to, cancelled and destroyed by the Warrant Agent and shall
not be reissued. If required by the Company, the Warrant Agent shall furnish the
Company with a certificate as to such destruction.
2.18 Optional Purchases by the Company
Subject to applicable law, the Company may from time to time
purchase on any stock exchange, in the open market, by private agreement or
otherwise any of the Warrants. Any such purchase shall be made at the lowest
price or prices at which, in the opinion of the board of directors, such
Warrants are then obtainable, plus reasonable costs of purchase, and may be made
in such manner, from such persons, and on such other terms as the Company in its
sole discretion may determine. The Warrant Certificates representing the
Warrants purchased pursuant to this section 2.18 shall forthwith be delivered to
and cancelled by the Warrant Agent.
2.19 Protection of Warrant Agent
The Warrant Agent shall not:
(a) at any time be under any duty or responsibility to any
registered holder of Warrants to determine whether any facts
exist which may require any adjustment contemplated by this
Article 2, nor to verify the nature and extent of any such
adjustment when made or the method employed in making the
same;
(b) be accountable with respect to the validity or value or the
kind or amount of any Subject Securities which may at any time
be issued or delivered upon the exercise of the Warrants;
- 20 -
(c) be responsible for any failure of the Company to make any cash
payment or to issue, transfer or deliver the Subject
Securities or certificates evidencing the same upon the
surrender of any Warrants for the purpose of the exercise of
such rights or to comply with any of the covenants contained
in this Article 2; or
(d) incur any liability or responsibility whatsoever or be in any
way responsible for the consequence of any breach on the part
of the Company of any of the representations, warranties or
covenants of the Company or any acts or deeds of the agents or
servants of the Company.
2.20 Legended Warrant Certificates
(1) (a) The Warrant Agent understands and acknowledges that the
Special Warrants, and the Common Shares and Warrants issuable
upon the exercise of the Special Warrants have not been, and
will not be, registered under the U.S. Securities Act.
(b) Each Warrant Certificate originally issued to a U.S. Person or
a person in the United States, all Common Shares issued upon
exercise of such Warrants, and all certificates issued in
exchange therefor or in substitution thereof, shall bear the
following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "U.S. SECURITIES ACT") OR ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE
BENEFIT OF THE CORPORATION THAT SUCH SECURITIES MAY BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH
RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, (C)
WITHIN THE UNITED STATES IN ACCORDANCE WITH THE EXEMPTION FROM
REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULES
144 OR 144A THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE WITH
ANY APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION
THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES
ACT OR APPLICABLE STATE SECURITIES LAWS, AND THE SELLER HAS
FURNISHED TO THE CORPORATION AN OPINION TO SUCH EFFECT FROM
COUNSEL OF RECOGNIZED STANDING REASONABLY
- 21 -
SATISFACTORY TO THE CORPORATION PRIOR TO SUCH OFFER, SALE OR
TRANSFER.";
provided, that if Warrants or such Common Shares are being
sold in compliance with the requirements of Rule 904 of
Regulation S of the U.S. Securities Act and in compliance with
Canadian local laws and regulations, any such legend may be
removed by providing a declaration to the Corporation's
registrar and transfer agent to the effect set forth in
Schedule "C" hereto; and provided, further, that, if any such
Warrants or Common Shares are being sold pursuant to Rule 144
of the U.S. Securities Act, the legend may be removed by
delivery to the registrar and transfer agent and the
Corporation of an opinion of counsel, of recognized standing
reasonably satisfactory to the Corporation, that such legend
is no longer required under applicable requirements of the
U.S. Securities Act or state securities laws. The Warrant
Agent shall, upon receipt of the executed form of "Declaration
for Removal of Legend" as set forth in Schedule "C" hereto,
issue a new certificate within three business days thereof;
(c) If a Warrant Certificate or Common Share certificate issued
with respect to an exercise of Warrants is tendered for
transfer and bears the legend set forth in paragraph 2.9(2)(b)
hereof and the holder thereof has not obtained the prior
written consent of the Corporation, the Warrant Agent or the
registrar and transfer agent of the Common Shares, as the case
may be, shall not register such transfer unless the holder
complies with the requirements of the said paragraph 2.9(2)(b)
hereof;
(d) If a Warrant Certificate or Common Share certificate issued
with respect to an exercise of Warrants is tendered for
transfer and does not bear the legend set forth in paragraph
2.9(2)(b) hereof, the Warrant Agent or the registrar and
transfer agent of the Common Shares, as the case may be, shall
not register such transfer if it has reason to believe that
the transferee is a U.S. Person, is in the United States or is
acquiring the Warrants evidenced thereby for the account or
benefit of a U.S. Person or a person in the United States.
(2) Each Warrant Certificate originally issued to every Purchaser, as well
as all certificates issued in exchange for or in substitution of the Warrant
Certificates, unless such exchange or substitution shall occur subsequent to the
Qualification Date, shall bear the following legend:
"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF
THE SECURITIES
- 22 -
SHALL NOT TRADE THE SECURITIES BEFORE OCTOBER 1, 2002."
provided that, if at any time, in the opinion of counsel to the Corporation,
such legends are no longer necessary or advisable under any such securities
laws, or the holder of any such legended certificate, at the holder's expense,
provides the Corporation with evidence satisfactory in form and substance to the
Corporation (which may include an opinion of counsel satisfactory to the
Corporation) to the effect that such legends are not required such legended
certificate may thereafter be surrendered to the Corporation in exchange for a
certificate which does not bear such legend.
ARTICLE 3
EXERCISE OF WARRANTS
3.1 Method of Exercise of Warrants
(1) The registered holder of any Warrant may exercise the rights thereby
conferred on him to acquire all or any part of the Subject Securities to which
such Warrant entitles the holder, by surrendering the Warrant Certificate
representing such Warrants to the Warrant Agent at any time on or before the
Time of Expiry at its principal stock transfer offices in the cities of Toronto,
Ontario, Vancouver and British Columbia (or at such additional place or places
as may be decided by the Company from time to time with the approval of the
Warrant Agent), with a duly completed and executed subscription of the
registered holder or his executors, or administrators or other legal
representative or his attorney duly appointed by an instrument in writing in the
form and manner satisfactory to the Warrant Agent, substantially in the form set
out in Schedule "A" attached hereto specifying the number of Common Shares
subscribed for together with a certified cheque, bank draft or money order in
lawful money of Canada, payable to or to the order of the Company in an amount
equal to the Exercise Price multiplied by the number of Subject Securities
subscribed for. A Warrant Certificate with the duly completed and executed
subscription and payment of the Exercise Price shall be deemed to be surrendered
only upon personal delivery thereof to or, if sent by mail or other means of
transmission, upon actual receipt thereof by the Warrant Agent.
(2) Any subscription referred to in subsection 3.1(1) shall be signed by
the Warrantholder, shall specify the person(s) in whose name such Subject
Securities are to be issued, the address(es) of such person(s) and the number of
Subject Securities to be issued to each person, if more than one is so
specified. If any of the Subject Securities subscribed for are to be issued to a
person(s) other than the Warrantholder, the signatures set out in the
subscription referred to in subsection 3.1(1) shall be guaranteed by a Canadian
chartered bank, a Canadian trust company or by a medallion signature guaranteed
from a member of a recognized Signature Medallion Guarantee Program and the
Warrantholder shall pay to the Company or the Warrant Agent all applicable
transfer or similar taxes and the Company shall not be required to issue or
deliver certificates evidencing Subject Securities unless or until such
Warrantholder
- 23 -
shall have paid to the Company or the Warrant Agent on behalf of the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid or that no tax is due.
(3) If, at the time of exercise of the Warrants, in accordance with the
provisions of subsection 3.1(1), there are any trading restrictions on the
Subject Securities pursuant to applicable securities legislation or stock
exchange requirements, the Company shall, on the advice of counsel, endorse any
certificates representing the Subject Securities to such effect. The Warrant
Agent is entitled to assume compliance with all applicable securities
legislation unless otherwise notified in writing by the Company.
3.2 No Fractional Shares
Under no circumstances shall the Company be obliged to issue any
fractional Common Shares or any cash or other consideration in lieu thereof upon
the exercise of one or more Warrants. To the extent that the holder of one or
more Warrants would otherwise have been entitled to receive on the exercise or
partial exercise thereof a fraction of a Common Share, that holder may exercise
that right in respect of the fraction only in combination with another Warrant
or Warrants that in the aggregate entitle the holder to purchase a whole number
of Common Shares.
3.3 Effect of Exercise of Warrants
(1) Upon compliance by the Warrantholder with the provisions of section
3.1, the Subject Securities subscribed for shall be deemed to have been issued
and the person to whom such Subject Securities are to be issued shall be deemed
to have become the holder of record of such Subject Securities on the Exercise
Date unless the transfer registers of the Company for the Common Shares shall be
closed on such date, in which case the Subject Securities subscribed for shall
be deemed to have been issued and such person shall be deemed to have become the
holder of record of such Subject Securities on the date on which such transfer
registers are reopened.
(2) Within three business days following the due exercise of a Warrant
pursuant to section 3.1 and forthwith after the Time of Expiry, the Warrant
Agent shall deliver to the Company a notice setting forth the particulars of all
Warrants exercised, if any, and the persons in whose names the Subject
Securities are to be issued (as applicable) and the addresses of such holders of
the Subject Securities.
(3) Within five business days of the due exercise of a Warrant pursuant to
section 3.1, the Company shall mail to the person in whose name the Subject
Securities so subscribed for are to be issued, as specified in the subscription
completed on the Warrant Certificate, at the address specified in such
subscription, or, if so specified in such subscription, a certificate or
certificates for the Subject Securities to which the Warrantholder is entitled
and, if applicable, shall cause the Warrant Agent to mail a Warrant Certificate
representing any Warrants not then exercised.
- 24 -
(4) In the event that the Warrants are exercised by any Warrantholder
prior to the Qualification Date, the certificates evidencing the Common Shares
shall bear the following legend:
"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF
THE SECURITIES SHALL NOT TRADE THE SECURITIES BEFORE OCTOBER
1, 2002"
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON
THE TORONTO STOCK EXCHANGE; HOWEVER, THE SAID SECURITIES CAN
NOT BE TRADED THROUGH THE FACILITIES OF SUCH EXCHANGE SINCE
THEY ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY ANY
CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT 'GOOD
DELIVERY' IN SETTLEMENT OF TRANSACTIONS ON THE TORONTO STOCK
EXCHANGE."
provided that, if at any time, in the opinion of counsel to the Corporation,
such legends are no longer necessary or advisable under any such securities
laws, or the holder of any such legended certificate, at the holder's expense,
provides the Corporation with evidence satisfactory in form and substance to the
Corporation (which may include an opinion of counsel satisfactory to the
Corporation) to the effect that such legends are not required such legended
certificate may thereafter be surrendered to the Corporation in exchange for a
certificate which does not bear such legend.
3.4 Cancellation of Warrant Certificates
All Warrant Certificates surrendered to the Warrant Agent pursuant
to sections 2.6, 2.8(2), 2.10 or 3.1 shall be cancelled by the Warrant Agent and
the Warrant Agent shall record the cancellation of such Warrant Certificates on
the register of holders maintained by the Warrant Agent pursuant to subsection
2.8(1). The Warrant Agent shall, if required by the Company, furnish the Company
with a certificate identifying the Warrant Certificates so cancelled. All
Warrants represented by Warrant Certificates which have been duly cancelled
shall be without further force or effect whatsoever.
3.5 Subscription for less than Entitlement
The holder of any Warrant may subscribe for and purchase a whole
number of Subject Securities which is less than the number which the holder is
entitled to purchase pursuant to a surrendered Warrant Certificate. In such
event, the holder thereof shall be entitled to receive a new Warrant Certificate
in respect of the balance of Subject Securities which such holder was entitled
to purchase pursuant to the surrendered Warrant Certificate and which were not
then purchased, such new
- 25 -
Warrant Certificate to contain the same legend as provided for in section 2.20,
if applicable.
3.6 Expiration of Warrant
After the Time of Expiry, all rights under any Warrant in respect of
which the right of subscription and purchase herein and therein provided for
shall not theretofore have been exercised shall wholly cease and terminate and
such Warrant shall be void and of no effect.
3.7 Prohibition on Exercise by U.S. Persons; Exception
(1) Subject to subsection 3.7(2), (i) Warrants may not be exercised within
the United States or by or on behalf of any U.S. Person; and (ii) no Common
Shares issued upon exercise of Warrants may be delivered to any address in the
United States. The Warrant Agent shall be entitled to rely upon the registered
address of the Warrantholder as set forth in such Warrantholder's subscription
agreement for the purchase of Special Warrants in determining whether the
address is in the United States or is a U.S. Person.
(2) Notwithstanding subsection 3.7(1), (i) Warrants which bear the legend
set forth in subsection 2.20(1) may be exercised in the United States or by or
on behalf of a U.S. Person; and (ii) Common Shares issued upon exercise of any
such Warrants may be delivered to an address in the United States, provided that
the person exercising the Warrants signs and delivers to the Warrant Agent a
letter substantially in the form attached as Schedule "B" hereto and such Common
Shares or new Warrants, if less than the entire amount of the Warrants held is
exercised, are appropriately legended in accordance with the legend set forth in
subsection 2.20(1).
ARTICLE 4
COVENANTS FOR WARRANTHOLDERS' BENEFIT
4.1 General Covenants of the Company
The Company covenants with the Warrant Agent for the benefit of the
Warrant Agent and the Warrantholders that so long as any Warrants remain
outstanding:
(1) The Company will at all times maintain its existence and will carry on
and conduct its business in a prudent manner in accordance with industry
standards and good business practice, will keep or cause to be kept proper books
of account in accordance with applicable law and will, if and whenever required
in writing by the Warrant Agent, file with the Warrant Agent copies of all
annual statements of the Company furnished to its shareholders during the term
of this indenture.
(2) The Company will use its commercially reasonable best efforts to
maintain the listing of the Common Shares on the Toronto Stock Exchange and to
have the
- 26 -
Common Shares issued pursuant to the exercise of the Purchase Warrants listed
and posted for trading on the Toronto Stock Exchange as expeditiously as
possible.
(3) The Company will reserve and keep available a sufficient number of
Subject Securities for issuance upon the exercise of Warrants issued by the
Company.
(4) The Company will cause the Subject Securities from time to time
subscribed for pursuant to the Warrants issued by the Company hereunder, in the
manner herein provided, to be duly issued in accordance with the Warrants and
the terms hereof.
(5) The Company will cause the certificates representing the Subject
Securities from time to time to be acquired pursuant to the Warrants in the
manner herein provided, to be duly issued and delivered in accordance with the
Warrants and the terms hereof.
(6) All Subject Securities that shall be issued by the Company upon
exercise of the rights provided for herein shall be issued as fully paid and
non-assessable common shares.
(7) The Company will use its best efforts to maintain its status as a
"reporting issuer" not in default of the requirements of the Qualification
Provinces until the Time of Expiry.
(8) Generally, the Company will well and truly perform and carry out all
the acts and things to be done by it as provided in this indenture.
(9) The Company will provide to each Warrantholder copies of all financial
statements sent to holders of Common Shares from the date hereof and while any
Warrants remain outstanding.
(10) The Company will promptly advise the Warrant Agent and the
Warrantholders in writing of any default under the terms of this indenture.
4.2 Securities Qualification Requirements
(1) If, in the opinion of counsel, any instrument is required to be filed
with, or any permission, order or ruling is required to be obtained from, any
securities administrator or any other step is required under any federal or
provincial law of Canada before the Subject Securities may be issued or
delivered to a Warrantholder or resold by such Warrantholder, the Company
covenants that it will use its best efforts to file such instrument, obtain such
permission, order or ruling or take all such other actions, at its expense, as
is required or appropriate in the circumstances.
(2) The Company will give written notice of the issue of Subject
Securities pursuant to the exercise of Warrants, in such detail as may be
required, to each securities administrator in each jurisdiction in which there
is legislation requiring the giving of any such notice.
- 27 -
4.3 Warrant Agent's Remuneration and Expenses
The Company covenants that it will pay to the Warrant Agent from
time to time reasonable remuneration for its services hereunder and will pay or
reimburse the Warrant Agent upon its request for all reasonable expenses and
disbursements of the Warrant Agent in the administration or execution of the
trusts hereby created (including the reasonable compensation and the
disbursements of its counsel and all other advisers, experts, accountants and
assistants not regularly in its employ) both before any default hereunder and
thereafter until all duties of the Warrant Agent hereunder shall be finally and
fully performed, except any such expense or disbursement in connection with or
related to or required to be made as a result of the gross negligence, wilful
misconduct or bad faith of the Warrant Agent.
4.4 Performance of Covenants by Warrant Agent
Subject to section 8.7, if the Company shall fail to perform any of
its covenants contained in this indenture and the Company has not rectified such
failure within 25 business days after receiving written notice from the Warrant
Agent of such failure, the Warrant Agent may notify the Warrantholders of such
failure on the part of the Company or may itself perform any of the said
covenants capable of being performed by it, but shall be under no obligation to
perform said covenants or to notify the Warrantholders. All reasonable sums
expended or disbursed by the Warrant Agent in so doing shall be repayable as
provided in section 4.3. No such performance, expenditure or advance by the
Warrant Agent shall be deemed to relieve the Company of any default hereunder or
of its continuing obligations under the covenants herein contained.
ARTICLE 5
ENFORCEMENT
5.1 Suits by Warrantholders
Subject to section 6.10, all or any of the rights conferred upon a
Warrantholder by the terms of the Warrants held by him and/or this indenture may
be enforced by such Warrantholder by appropriate legal proceedings but without
prejudice to the right that is hereby conferred upon the Warrant Agent to
proceed in its own name to enforce each and all of the provisions herein
contained for the benefit of the holders of the Warrants from time to time
outstanding. The Warrant Agent shall also have the power at any time and from
time to time to institute and to maintain such suits and proceedings as it may
reasonably be advised shall be necessary or advisable to preserve and protect
its interests and the interests of the Warrantholders.
Subject to applicable law, the Warrant Agent and, by acceptance of
the Warrant Certificate and as part of the consideration for the issue of the
Warrants, the Warrantholders hereby waive and release any right, cause of action
or remedy now or hereafter existing in any jurisdiction against any person in
its capacity as an incorporator
- 28 -
or any past, present or future shareholder, director, officer, employee or agent
of the Company for the creation and issue of the shares pursuant to any warrant
or any covenant, agreement, representation or warranty by the Company herein or
in the Warrant Certificates contained.
5.2 Limitation of Liability
The obligations hereunder (including without limitation under
subsection 8.7(5)) are not personally binding upon, nor shall resort hereunder
be had to, the private property of any of the past, present or future directors
or shareholders of the Company or any of the past, present or future officers,
employees or agents of the Company, but only the property of the Company (or any
successor person) shall be bound in respect hereof.
ARTICLE 6
MEETINGS OF WARRANTHOLDERS
6.1 Right to Convene Meetings
The Warrant Agent may at any time and from time to time, and shall
on receipt of a written request of the Company or of a Warrantholders' Request,
convene a meeting of the Warrantholders provided that the Warrant Agent has been
provided with sufficient funds and is indemnified to its reasonable satisfaction
by the Company or by the Warrantholders signing such Warrantholders' Request
against the costs, charges, expenses and liabilities which may be incurred in
connection with the calling and holding of such meeting. If within 15 business
days after the receipt of a written request of the Company or a Warrantholders'
Request, funding and indemnity given as aforesaid the Warrant Agent fails to
give the requisite notice specified in section 6.2 to convene a meeting , the
Company or such Warrantholders, as the case may be, may convene such meeting.
Every such meeting shall be held in the City of Toronto, Ontario or at such
other place as may be approved or determined by the Warrant Agent.
6.2 Notice
At least 14 days prior notice of any meeting of Warrantholders shall
be given to the Warrantholders at the expense of the Company in the manner
provided for in section 9.2 and a copy of such notice shall be delivered to the
Warrant Agent unless the meeting has been called by it, and to the Company
unless the meeting has been called by it. Such notice shall state the time and
place of the meeting, the general nature of the business to be transacted and
shall contain such information as is reasonably necessary to enable the
Warrantholders to make a reasoned decision on the matter, but it shall not be
necessary for any such notice to set out the terms of any resolution to be
proposed or any of the provisions of this Article 6. The notice convening any
such meeting may be signed by an appropriate officer of the Warrant Agent or of
the Company or the person designated by such Warrantholders, as the case may be.
- 29 -
6.3 Chairman
The Warrant Agent may nominate in writing an individual (who need
not be a Warrantholder) to be chairman of the meeting and if no individual is so
nominated, or if the individual so nominated is not present within 15 minutes
after the time fixed for the holding of the meeting, the Warrantholders present
in person or by proxy shall appoint an individual present to be chairman of the
meeting. The chairman of the meeting need not be a Warrantholder.
6.4 Quorum
Subject to the provisions of section 6.11, at any meeting of the
Warrantholders a quorum shall consist of two Warrantholders present in person or
represented by proxy and representing at least 20% of the aggregate number of
Warrants then outstanding. If a quorum of the Warrantholders shall not be
present within one-half hour from the time fixed for holding any meeting, the
meeting, if summoned by the Warrantholders or on a Warrantholders' Request,
shall be dissolved; but in any other case the meeting shall be adjourned to the
same day in the next week (unless such day is not a business day in which case
it shall be adjourned to the next following business day) at the same time and
place to the extent possible and, subject to the provisions of section 6.11, no
notice of the adjournment need be given. Any business may be brought before or
dealt with at an adjourned meeting which might have been dealt with at the
original meeting in accordance with the notice calling the same. At the
adjourned meeting the Warrantholders present in person or represented by proxy
shall form a quorum and may transact the business for which the meeting was
originally convened, notwithstanding that they may not represent at least 20% of
the aggregate number of Warrants then unexercised and outstanding. No business
shall be transacted at any meeting unless a quorum is present at the
commencement of business.
6.5 Power to Adjourn
The chairman of any meeting at which a quorum of the Warrantholders
is present may, with the consent of the meeting, adjourn any such meeting, and
no notice of such adjournment need be given except such notice, if any, as the
meeting may prescribe.
6.6 Show of Hands
Every question submitted to a meeting shall be decided in the first
place by a majority of the votes given on a show of hands except that votes on
an extraordinary resolution shall be given in the manner hereinafter provided.
At any such meeting, unless a poll is duly demanded as herein provided, a
declaration by the chairman that a resolution has been carried or carried
unanimously or by a particular majority or lost or not carried by a particular
majority shall be conclusive evidence of the fact.
- 30 -
6.7 Poll and Voting
On every extraordinary resolution, and when demanded by the chairman
or by one or more of the Warrantholders acting in person or by proxy on any
other question submitted to a meeting and after a vote by show of hands, a poll
shall be taken in such manner as the chairman shall direct. Questions other than
those required to be determined by extraordinary resolution shall be decided by
a majority of the votes cast on the poll. On a show of hands, every person who
is present and entitled to vote, whether as a Warrantholder or as proxy for one
or more absent Warrantholders, or both, shall have one vote. On a poll, each
Warrantholder present in person or represented by a proxy duly appointed by
instrument in writing shall be entitled to one vote in respect of each whole
Warrant then held by him. A proxy need not be a Warrantholder. The chairman of
any meeting shall be entitled, both on a show of hands and on a poll, to vote in
respect of the Warrants, if any, held or represented by him.
6.8 Regulations
Subject to the provisions of this indenture, the Warrant Agent or
the Company with the approval of the Warrant Agent may from time to time make
and from time to time vary such regulations as it shall consider necessary or
appropriate:
(a) for the deposit of instruments appointing proxies at such
place and time as the Warrant Agent, the Company or the
Warrantholders convening the meeting, as the case may be, may
in the notice convening the meeting direct;
(b) for the deposit of instruments appointing proxies at some
approved place other than the place at which the meeting is to
be held and enabling particulars of such instruments
appointing proxies to be mailed, cabled or telegraphed before
the meeting to the Company or to the Warrant Agent at the
place where the same is to be held and for the voting of
proxies so deposited as though the instruments themselves were
produced at the meeting;
(c) for the form of instrument appointing a proxy and the manner
in which the form of proxy may be executed; and
(d) generally for the calling of meetings of Warrantholders and
the conduct of business thereat including setting a record
date for Warrantholders entitled to receive notice of or to
vote at such meeting.
Any regulations so made shall be binding and effective and the votes
given in accordance therewith shall be valid and shall be counted. Save as such
regulations may provide, the only persons who shall be recognized at any meeting
as a Warrantholder, or be entitled to vote or be present at the meeting in
respect thereof (subject to section 6.9), shall be Warrantholders or persons
holding proxies of Warrantholders.
- 31 -
6.9 Company, Warrant Agent and Counsel may be Represented
The Company and the Warrant Agent, by their respective directors,
officers and employees and the counsel for each of the Company, the
Warrantholders and the Warrant Agent may attend any meeting of the
Warrantholders and speak thereat but shall not be entitled to vote as such
unless in their capacities as Warrantholders.
6.10 Powers Exercisable by Extraordinary Resolution
In addition to all other powers conferred upon them by any other
provisions of this indenture or by law, the Warrantholders at a meeting shall
have the power, exercisable from time to time by extraordinary resolution:
(a) to agree with the Company to any modification, alteration,
compromise or arrangement of the rights of Warrantholders
and/or the Warrant Agent in its capacity as Warrant Agent
hereunder (subject to the Warrant Agent's approval) or on
behalf of the Warrantholders against the Company, whether such
rights arise under this indenture or the Warrants or
otherwise;
(b) to amend or repeal any extraordinary resolution previously
passed or sanctioned by the Warrantholders;
(c) to direct or authorize the Warrant Agent (subject to the
Warrant Agent receiving funding and indemnity) to enforce any
of the covenants on the part of the Company contained in this
indenture or the Warrants or to enforce any of the rights of
the Warrantholders in any manner specified in such
extraordinary resolution or to refrain from enforcing any such
covenant or right;
(d) to waive, authorize and direct the Warrant Agent to waive any
default on the part of the Company in complying with any
provisions of this indenture or the Warrants either
unconditionally or upon any conditions specified in such
extraordinary resolution;
(e) to restrain any Warrantholder from taking or instituting any
suit, action or proceeding against the Company for the
enforcement of any of the covenants on the part of the Company
contained in this indenture or the Warrants or to enforce any
of the rights of the Warrantholders; and
(f) to direct any Warrantholder who, as such, has brought any
suit, action or proceeding to stay or discontinue or otherwise
deal with any such suit, action or proceeding, upon payment of
the costs, charges and expenses reasonably and properly
incurred by such Warrantholder in connection therewith.
- 32 -
6.11 Meaning of "Extraordinary Resolution"
(1) The expression "extraordinary resolution" when used in this indenture
means, subject as hereinafter in this section 6.11 and in section 6.14 provided,
a resolution proposed at a meeting of Warrantholders duly convened for that
purpose and held in accordance with the provisions of this Article 6 at which
there are present in person or by proxy Warrantholders representing at least 25%
of the aggregate number of all the then outstanding Warrants and passed by the
affirmative votes of Warrantholders representing not less than 66 2/3% of the
aggregate number of all the then outstanding Warrants represented at the meeting
and voted on the poll upon such resolution.
(2) If, at any meeting called for the purpose of passing an extraordinary
resolution, Warrantholders representing at least 25% of the aggregate number of
all the then outstanding Warrants are not present in person or by proxy within
one-half hour after the time appointed for the meeting, then the meeting, if
convened by Warrantholders or on a Warrantholders' Request, shall be dissolved;
but in any other case it shall stand adjourned to such day, being not less than
10 business days later, and to such place and time as may be appointed by the
chairman. Not less than three business days prior notice shall be given of the
time and place of such adjourned meeting in the manner provided in sections 9.1,
9.2 and 9.3. Such notice shall state that at the adjourned meeting the
Warrantholders present in person or represented by proxy shall form a quorum but
it shall not be necessary to set forth the purposes for which the meeting was
originally called or any other particulars. At the adjourned meeting the
Warrantholders present in person or represented by proxy shall form a quorum and
may transact the business for which the meeting was originally convened and a
resolution proposed at such adjourned meeting and passed by the requisite vote
as provided in subsection 6.11(1) shall be an extraordinary resolution within
the meaning of this indenture notwithstanding that Warrantholders representing
at least 25% of all the then outstanding Warrants are not present in person or
represented by proxy at such adjourned meeting.
(3) Votes on an extraordinary resolution shall always be given on a poll
and no demand for a poll on an extraordinary resolution shall be necessary.
6.12 Powers Cumulative
It is hereby declared and agreed that any one or more of the powers
or any combination of the powers in this indenture stated to be exercisable by
the Warrantholders by extraordinary resolution or otherwise may be exercised
from time to time and the exercise of any one or more of such powers or any
combination of powers from time to time shall not be deemed to exhaust the right
of the Warrantholders to exercise such powers or combination of powers then or
thereafter from time to time.
- 33 -
6.13 Minutes
Minutes of all resolutions and proceedings at every meeting of
Warrantholders as aforesaid shall be made and duly entered in books to be
provided for that purpose by the Warrant Agent at the expense of the Company and
any minutes as aforesaid, if signed by the chairman of the meeting at which
resolutions were passed or proceedings had, or by the chairman of the next
succeeding meeting of the Warrantholders, shall be prima facie evidence of the
matters therein stated and, until the contrary is proved, every meeting, in
respect of the proceedings of which minutes shall have been made, shall be
deemed to have been duly convened and held, and all resolutions passed thereat
or proceedings taken, to have been duly passed and taken.
6.14 Instruments in Writing
All actions which may be taken and all powers that may be exercised
by the Warrantholders at a meeting held as provided in this Article 6 also may
be taken and exercised by Warrantholders representing at least 66 2/3% of the
aggregate number of all the then outstanding Warrants by an instrument in
writing signed in one or more counterparts by such Warrantholders in person or
by attorney duly appointed in writing, and the expression "extraordinary
resolution" when used in this indenture shall include an instrument so signed.
6.15 Binding Effect of Resolutions
Every resolution and every extraordinary resolution passed in
accordance with the provisions of this Article 6 at a meeting of Warrantholders
shall be binding upon all the Warrantholders, whether present at or absent from
such meeting, and every instrument in writing signed by Warrantholders in
accordance with section 6.14 shall be binding upon all the Warrantholders,
whether signatories thereto or not, and each and every Warrantholder and the
Warrant Agent (subject to the provisions for indemnity herein contained) shall
be bound to give effect accordingly to every such resolution and instrument in
writing. In the case of an instrument in writing, the Warrant Agent shall give
notice in the manner contemplated in sections 9.1 and 9.2 of the effect of the
instrument in writing to all Warrantholders and the Company as soon as is
reasonably practicable.
6.16 Holdings by the Company or Subsidiaries of the Company Disregarded
(1) In determining whether Warrantholders are present at a meeting of
Warrantholders for the purpose of determining a quorum or have concurred in any
consent, waiver, extraordinary resolution, Warrantholders' Request or other
action under this indenture, Warrants owned legally or beneficially by the
Company or its subsidiaries or in partnership of which the Company is directly
or indirectly a party to shall be disregarded.
(2) For the purposes of disregarding any Warrants owned legally or
beneficially by the Company or any Subsidiary or any partnership of which the
Company is directly or indirectly a party to or any other affiliate of the
Company in
- 34 -
subsection 6.16(1), the Company shall provide to the Warrant Agent, from time to
time and upon request, a certificate of the Company setting forth as at the date
of such certificate:
(a) the names (other than the name of the Company) of the
registered holders of Warrants of which, to the knowledge of
the Company, are owned by or held for the account of the
Company or any Subsidiary or a partnership of which the
Company is directly or indirectly a party to or any other
affiliate of the Company; and
(b) the number of Warrants owned legally and beneficially by the
Company or any Subsidiary or a partnership of which the
Company is directly or indirectly a party to or any other
affiliate of the Company;
and the Warrant Agent in making the determination in subsection 6.16(1) shall be
entitled to rely on such certificate.
ARTICLE 7
SUPPLEMENTAL INDENTURES AND SUCCESSOR COMPANIES
7.1 Provision for Supplemental Indentures for Certain Purposes
From time to time the Company (if properly authorized by its
directors) and the Warrant Agent may, subject to the provisions hereof, and they
shall, when so directed hereby, execute and deliver by their proper officers,
indentures or instruments supplemental hereto, which thereafter shall form part
hereof, for any one or more or all of the following purposes:
(a) setting forth adjustments in the application of Article 2;
(b) adding to the provisions hereof such additional covenants and
enforcement provisions as, in the opinion of counsel are
necessary or advisable, provided that the same are not in the
opinion of the Warrant Agent, relying on the advice of
counsel, prejudicial to the interests of the Warrantholders as
a group;
(c) giving effect to any extraordinary resolution passed as
provided in Article 6;
(d) making such provisions not inconsistent with this indenture as
may be necessary or desirable with respect to matters or
questions arising hereunder provided that such provisions are
not, in the opinion of the Warrant Agent, relying on the
advice of counsel, prejudicial to the interests of the
Warrantholders as a group;
- 35 -
(e) adding to or amending the provisions hereof in respect of the
transfer of Warrants, making provision for the exchange of
Warrants and making any modification in the form of the
Warrant Certificate which does not affect the substance
thereof;
(f) amending any of the provisions of this indenture or relieving
the Company from any of the obligations, conditions or
restrictions herein contained, provided that no such amendment
or relief shall be or become operative or effective if, in the
opinion of the Warrant Agent, relying on the advice of
counsel, such amendment or relief impairs any of the rights of
the Warrantholders as a group or of the Warrant Agent, and
provided further that the Warrant Agent may in its sole
discretion decline to enter into any supplemental indenture
which in its opinion may not afford adequate protection to the
Warrant Agent when the same shall become operative; and
(g) for any other purpose not inconsistent with the terms of this
indenture, including the correction or rectification of any
ambiguities, defective or inconsistent provisions, errors or
omissions herein, provided that, in the opinion of the Warrant
Agent, relying on the advice of counsel, the rights of the
Warrant Agent and the Warrantholders as a group are in no way
prejudiced thereby.
7.2 Successor Companies
In the case of the amalgamation, consolidation, merger or transfer
of the undertaking or assets of the Company as an entirety or substantially as
an entirety to another person (a "successor company"), the successor company
resulting from the amalgamation, consolidation, merger or transfer (if not the
Company) shall be bound by the provisions hereof and all obligations for the due
and punctual performance and observance of each and every covenant and
obligation contained in this indenture to be performed by the Company and the
successor company shall by supplemental indenture satisfactory in form to the
Warrant Agent and executed and delivered to the Warrant Agent, expressly assume
those obligations.
ARTICLE 8
CONCERNING THE WARRANT AGENT
8.1 Trust Indenture Legislation
(1) If and to the extent that any provision of this indenture limits,
qualifies or conflicts with a mandatory requirement of Applicable Legislation,
such mandatory requirement shall prevail.
- 36 -
(2) The Company and the Warrant Agent agree that each will at all times in
relation to this indenture and any action to be taken hereunder observe and
comply with and be entitled to the benefit of Applicable Legislation.
8.2 Rights and Duties of Warrant Agent
(1) In the exercise of the rights and duties prescribed or conferred by
the terms of this indenture, the Warrant Agent shall act honestly and in good
faith with a view to the best interests of the Warrantholders and shall exercise
the degree of care, diligence and skill that a reasonably prudent trustee would
exercise in comparable circumstances. No provision of this indenture shall be
construed to relieve the Warrant Agent from, or require any other person to
indemnify the Warrant Agent against liability for its own negligence, wilful
misconduct or bad faith.
(2) The Warrant Agent shall not be bound to do or take any act, action or
proceeding for the enforcement of any of the obligations of the Company under
this indenture unless and until it shall have received a Warrantholders' Request
specifying the act, action or proceeding which the Warrant Agent is requested to
take. The obligation of the Warrant Agent to commence or continue any act,
action or proceeding for the purpose of enforcing any rights of the Warrant
Agent or the Warrantholders hereunder shall be conditional upon the
Warrantholders furnishing, when required by notice in writing by the Warrant
Agent, sufficient funds to commence or continue such act, action or proceeding
and an indemnity reasonably satisfactory to the Warrant Agent and its counsel to
protect and hold harmless the Warrant Agent, its officers, directors, employees
and agents against the costs, charges and expenses and liabilities to be
incurred thereby and any loss and damage it may suffer by reason thereof. None
of the provisions contained in this indenture shall require the Warrant Agent to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers unless indemnified and funded as aforesaid.
(3) The Warrant Agent may, before commencing any act, action or
proceeding, or at any time during the continuance thereof require the
Warrantholders at whose instance it is acting to deposit with the Warrant Agent
the Warrant Certificates held by them, for which Warrant Certificates the
Warrant Agent shall issue receipts.
(4) Every provision of this indenture that, by its terms, relieves the
Warrant Agent of liability or entitles it to rely upon any evidence submitted by
it is subject to the provisions of Applicable Legislation, of this section 8.2
and of section 8.3.
(5) The Warrant Agent shall not be bound to give any notice or do or take
any act, action or proceeding by virtue of the powers conferred on it hereunder
unless and until it shall have been required to do so under the terms hereof;
nor shall the Warrant Agent be required to take notice of any default hereunder,
unless and until notified in writing of such default, which notice shall
specifically set out the default desired to be brought to the attention of the
Warrant Agent and in the absence of such notice the Warrant Agent may for all
purposes of this indenture conclusively assume that no
- 37 -
default has occurred or been made in the performance or observance of the
representations, warranties and covenants, agreements or conditions herein
contained. Any such notice shall in no way limit any discretion herein given to
the Warrant Agent to determine whether or not the Warrant Agent shall take
action with respect to any default.
(6) In this indenture, whenever confirmations or instructions are required
to be given to the Warrant Agent, in order to be valid, such confirmations and
instructions shall be in writing.
8.3 Evidence, Experts and Advisers
(1) In addition to the reports, certificates, opinions and other evidence
required by this indenture, the Company shall furnish to the Warrant Agent such
additional evidence of compliance with any provision hereof and in such form as
may be prescribed by Applicable Legislation or as the Warrant Agent may
reasonably require by written notice to the Company.
(2) In the exercise of its rights and duties hereunder, the Warrant Agent
may, if it is acting in good faith, act and rely absolutely as to the truth of
the statements and the accuracy of the opinions expressed therein, upon
statutory declarations, opinions, reports, written requests, consents, or orders
of the Company, certificates of the Company or other evidence furnished to the
Warrant Agent pursuant to any provision hereof or of Applicable Legislation or
pursuant to a request of the Warrant Agent. The Warrant Agent shall be under no
responsibility in respect of the validity of this indenture or the execution and
delivery hereof by or on behalf of the Company or in respect of the validity or
the execution of any Warrant Certificate by the Company and issued hereunder,
nor shall it be responsible for any breach by the Company of any covenant or
condition contained in this indenture or in any such Warrant Certificate; nor
shall it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any securities to be issued upon the
right to acquire provided for in this indenture and/or in any Warrant
Certificate or as to whether any securities will when issued be duly authorized
or be validly issued and fully paid and non-assessable.
(3) Whenever Applicable Legislation requires that evidence referred to in
subsection 8.3(1) be in the form of a statutory declaration, the Warrant Agent
may accept the statutory declaration in lieu of a certificate of the Company
required by any provision hereof. Any such statutory declaration may be made by
one or more of the directors or officers of the Company and may be relied upon
by the Warrant Agent in good faith without further inquiry.
(4) Proof of the execution of an instrument in writing, including a
Warrantholders' Request, by any Warrantholder may be made by a certificate of a
notary public or other person with similar powers that the person signing such
instrument acknowledged to him the execution thereof, or by an affidavit of a
witness to such execution or in any other manner which the Warrant Agent may
consider adequate
- 38 -
and in respect of a corporate Warrantholder, shall include a certificate of
incumbency of such Warrantholder together with a certified resolution
authorizing the person who signs such instrument to sign such instrument.
(5) The Warrant Agent may act and rely and shall be protected in acting
and relying upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, letter, telegram, cablegram or other
paper document believed by it to be genuine and to have been signed, sent or
presented by or on behalf of the proper party or parties.
(6) The Warrant Agent may employ or retain such counsel, accountants,
engineers, appraisers or other experts or advisers as it may reasonably require
for the purpose of determining and discharging its duties hereunder and may pay
reasonable remuneration for all services so performed by any of them, without
taxation of costs of any counsel and shall not be responsible for any misconduct
on the part of any of them who has been selected with due care by the Warrant
Agent. Any reasonable remuneration paid by the Warrant Agent shall be paid by
the Company in accordance with section 4.3.
(7) The Warrant Agent may, as a condition precedent to any action to be
taken by it under this indenture, require such opinions, statutory declarations,
reports, certificates or other evidence as it, acting reasonably, considers
necessary or advisable in the circumstances.
8.4 Securities, Documents and Monies Held by Warrant Agent
Any securities, documents of title, monies or other instruments that
may at any time be held by the Warrant Agent subject to the trusts hereof may be
placed in the deposit vaults of the Warrant Agent or of any Schedule 1 Canadian
chartered bank for safekeeping with any such bank or the Warrant Agent. All
interest or other income received by the Warrant Agent in respect of such
deposits and investments shall, subject to section 4.4, belong to the Company
and shall be paid to the Company upon discharge of this indenture.
8.5 Actions by Warrant Agent to Protect Interests
Subject to the provisions of this indenture and Applicable
Legislation, the Warrant Agent shall have the power to institute and to maintain
such actions and proceedings as it may consider necessary or expedient to
preserve, protect or enforce its interests and the interests of the
Warrantholders.
8.6 Warrant Agent not Required to Give Security
The Warrant Agent shall not be required to give any bond or security
in respect of the execution of the trusts and powers of this indenture or
otherwise, subject to section 8.8.
- 39 -
8.7 Protection of Warrant Agent
By way of supplement to the provisions of any law for the time being
relating to trustees, it is expressly declared and agreed as follows:
(1) The Warrant Agent shall not be liable for or by reason of any
representations, statements of fact or recitals in this indenture or in the
Warrants (except the representation contained in section 8.9 or in the
certificate of the Warrant Agent on the Warrants) or be required to verify the
same and all such statements of fact or recitals are and shall be deemed to be
made by the Company (except the representation contained in section 8.9 or in
the certificate of the Warrant Agent on the Warrants).
(2) Nothing herein contained shall impose any obligation on the Warrant
Agent to see to or to require evidence of the registration or filing (or renewal
thereof) of this indenture or any instrument ancillary or supplemental hereto.
(3) The Warrant Agent shall not be bound to give notice to any person or
persons of the execution hereof.
(4) The Warrant Agent shall not incur any liability or responsibility
whatsoever or be in any way responsible for the consequence of any breach on the
part of the Company of any of the covenants or warranties herein contained or of
any acts of any directors, officers, employees, agents or servants of the
Company.
(5) Without limiting any protection or indemnity of the Warrant Agent
under any other provision hereof, or otherwise at law, the Company hereby agrees
to indemnify and hold harmless the Warrant Agent and its directors, officers,
agents and employees from and against any and all liabilities, losses, damages,
penalties, claims, actions, suits, costs, expenses and disbursements, including
reasonable legal or advisor fees and disbursements, of whatever kind and nature
which may at any time be imposed on, incurred by or asserted against the Warrant
Agent in connection with the performance of its duties and obligations
hereunder, other than such liabilities, losses, damages, penalties, claims,
actions, suits, costs, expenses and disbursements arising by reason of the gross
negligence, fraud or wilful misconduct of the Warrant Agent. This provision
shall survive the resignation or removal of the Warrant Agent, or the
termination of this indenture. The Warrant Agent shall not be under any
obligation to prosecute or defend any action or suit in respect of this
indenture which, in the opinion of its counsel, may involve it in expense or
liability, unless the Company shall, so often as required, furnish the Warrant
Agent with satisfactory indemnity and funding against such expense or liability.
8.8 Replacement of Warrant Agent
(1) The Warrant Agent may resign its trust and be discharged from all
further duties and liabilities hereunder by giving to the Company not less than
60 days prior notice in writing or such shorter prior notice as the Company may
accept as sufficient. The Warrantholders by extraordinary resolution shall have
the power at any time to
- 40 -
remove the existing Warrant Agent and to appoint a new Warrant Agent. In the
event of the Warrant Agent resigning or being removed as aforesaid or being
dissolved, becoming bankrupt, going into liquidation or otherwise becoming
incapable of acting hereunder, the Company shall forthwith appoint a new Warrant
Agent unless a new Warrant Agent has already been appointed by the
Warrantholders; failing such appointment by the Company, the retiring Warrant
Agent or any Warrantholder may apply to a justice of the Ontario Superior Court
of Justice at the Company's expense, on such notice as such justice may direct,
for the appointment of a new Warrant Agent; but any new Warrant Agent so
appointed by the Company or by the Court shall be subject to removal as
aforesaid by the Warrantholders. Any new Warrant Agent appointed under any
provision of this section 8.8 shall be a corporation authorized to carry on the
business of a trust company in the Province of Ontario and, if required by
Applicable Legislation of any other province, in such other province. On any
such appointment the new Warrant Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named herein as
Warrant Agent without any further assurance, conveyance, act or deed; but there
shall be immediately executed, at the expense of the Company, all such
conveyances or other instruments as may, in the opinion of counsel, be necessary
or advisable for the purpose of assuring the same to the new Warrant Agent,
provided that any resignation or removal of the Warrant Agent and appointment of
a successor Warrant Agent shall not become effective until the successor Warrant
Agent shall have executed an appropriate instrument accepting such appointment
and, at the request of the Company, the predecessor Warrant Agent, upon payment
of its outstanding remuneration and expenses, shall execute and deliver to the
successor Warrant Agent an appropriate instrument transferring to such successor
Warrant Agent all rights and powers of the Warrant Agent hereunder and all
securities, documents of title and other instruments and all monies and
properties held by the Warrant Agent hereunder.
(2) Upon the appointment of a successor warrant agent, the Company shall
promptly notify the Warrantholders thereof in the manner provided for in section
9.2.
(3) Any corporation into or with which the Warrant Agent may be merged or
consolidated or amalgamated, or any corporation succeeding to the stock transfer
business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without any further act on its part or of any of the parties hereto,
provided that such corporation would be eligible for appointment as a new
warrant agent under subsection 8.8(1).
(4) Any Warrants certified but not delivered by a predecessor Warrant
Agent may be certified by the new or successor warrant agent in the name of the
predecessor or the new or successor warrant agent.
8.9 Conflict of Interest
(1) The Warrant Agent represents to the Company that at the time of
execution and delivery hereof no material conflict of interest exists which is
it aware of in the Warrant Agent's role as a fiduciary hereunder and agrees that
in the event of a
- 41 -
material conflict of interest arising which it becomes aware of hereafter it
will, within 90 days after ascertaining that it has such a material conflict of
interest, either eliminate the same or resign its trust hereunder. If any such
material conflict of interest exists or hereafter shall exist, the validity and
enforceability of this indenture and the Warrants shall not be affected in any
manner whatsoever by reason thereof.
(2) Subject to subsection 8.9(1), the Warrant Agent, in its personal or
any other capacity, may buy, lend upon and deal in securities of the Company and
generally may contract and enter into financial transactions with the Company or
any Subsidiary without being liable to account for any profit made thereby.
8.10 Acceptance of Trusts
The Warrant Agent xxxxxx accepts the trusts in this indenture
declared and provided for and agrees to perform the same upon the terms and
conditions herein set forth.
8.11 Warrant Agent not to be Appointed Receiver
The Warrant Agent and any person related to the Warrant Agent shall
not be appointed a receiver or receiver and manager or liquidator of all or any
part of the assets or undertaking of the Company or any Subsidiary or any
partnership of which the Company is directly or indirectly involved.
8.12 Authorization to Carry on Business
The Warrant Agent represents to the Company that it is registered to
carry on the business of a trust company in each of the provinces of Canada.
ARTICLE 9
GENERAL
9.1 Notice to the Company and the Warrant Agent
(1) Unless herein otherwise expressly provided, any notice to be given
hereunder to the Company or the Warrant Agent shall be deemed to be validly
given if delivered, if sent by registered letter, postage prepaid or if
transmitted by telecopier:
(a) If to the Company, to:
Wheaton River Minerals Ltd.
0 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxx X. XxXxxxxx
Telefax No.: (000) 000-0000
- 42 -
with a copy to:
Xxxxxxx Xxxxx & Xxxxxxxxx LLP
00 Xxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxxx
Telefax No.: (000) 000-0000
(b) If to the Warrant Agent, to:
CIBC Mellon Trust Company
000 Xxx Xxxxxx, Ground Floor
P.O. Box 1
Toronto, Ontario M5H 4A6
Attention: Assistant Vice President, Client Services
Telefax No.: (000) 000-0000
and any notice given in accordance with the foregoing shall be deemed to have
been received on the date of delivery if that date is a business day or, if
mailed, on the fifth business day following the date of the postmark on such
notice or, if transmitted by telecopier, on the day following the transmission.
(2) The Company or the Warrant Agent, as the case may be, may from time to
time notify the other in the manner provided in subsection 9.1(1) of a change of
address which, from the effective date of such notice and until changed by like
notice, shall be the address of the Company or the Warrant Agent, as the case
may be, for all purposes of this indenture. A copy of any notice of change of
address given pursuant to this subsection 9.1(2) shall be available for
inspection at the principal stock transfer offices of the Warrant Agent in the
cities of Toronto, Ontario and Vancouver, British Columbia by Warrantholders
during normal business hours.
(3) If, by reason of a strike, lockout or other work stoppage, actual or
threatened, involving postal employees, any notice to be given to the Warrant
Agent or to the Company hereunder could reasonably be considered unlikely to
reach its destination, the notice shall be valid and effective only if it is
delivered to an officer of the party to which it is addressed or if it is
delivered to that party at the appropriate address provided in subsection 9.1(1)
by cable, telegram, telex, telecopier or other means of prepaid, transmitted or
recorded communication and any notice delivered in accordance with the foregoing
shall be deemed to have been received on the date of delivery to the officer or
if delivered by cable, telegram, telex, telecopier or other means of prepaid,
transmitted, recorded communication on the third business day following the date
of the sending of the notice by the person giving the notice.
- 43 -
9.2 Notice to the Warrantholders
(1) Any notice to the Warrantholders under the provisions of this
indenture shall be deemed to be validly given if the notice is sent by prepaid
mail or, if delivered by hand, to the holders at their addresses appearing in
the register of holders. Any notice so delivered shall be deemed to have been
received on the date of delivery if that date is a business day or the business
day following the date of delivery if such date is not a business day. All
notices may be given to whichever one of the Warrantholders (if more than one)
is named first in the appropriate register hereinbefore mentioned, and any
notice so given shall be sufficient notice to all Warrantholders and any other
persons (if any) interested in such Warrants.
(2) If, by reason of strike, lockout or other work stoppage, actual or
threatened, involving postal employees, any notice to be given to the
Warrantholders could reasonably be considered unlikely to reach its destination,
the notice may be published or distributed once in the Report on Business
section of the national edition of The Globe and Mail newspaper or, in the event
of a disruption in the circular of that newspaper, once in a daily newspaper in
the English language of general circulation in the City of Toronto, Ontario;
provided that in the case of a notice convening a meeting of the holders of
Warrants, the Warrant Agent may require such additional publications of that
notice, in the same or in other cities or both, as it may deem necessary for the
reasonable protection of the holders of Warrants or to comply with any
applicable requirement of law or any stock exchange. Any notice so given shall
be deemed to have been given on the day on which it has been published in all of
the cities in which publication was required (or first published in a city if
more than one publication in that city is required). In determining under any
provision hereof, the date when notice of any meeting or other event must be
given, the date of giving notice shall be included and the date of the meeting
or other event shall be excluded.
9.3 Discretion of Directors
Any matter provided herein to be determined by the directors of the
Company in their sole discretion and determination so made will be conclusive.
9.4 Satisfaction and Discharge of Indenture
Upon the date by which there shall have been delivered to the
Warrant Agent for exercise or destruction in accordance with the provisions
hereof of all Warrants theretofore certified hereunder, this indenture, except
to the extent that Common Shares and certificates therefor have not been issued
and delivered hereunder or the Company has not performed any of its obligations
hereunder, shall cease to be of further effect in respect of the Company, and
the Warrant Agent, on written demand of and at the cost and expense of the
Company, and upon delivery to the Warrant Agent of a certificate of the Company
stating that all conditions precedent to the satisfaction and discharge of this
indenture have been complied with and upon payment to the Warrant Agent of the
expenses, fees and other remuneration payable to the Warrant Agent, shall
execute proper instruments acknowledging satisfaction of and
- 44 -
discharging this indenture; provided that if the Warrant Agent has not then
performed any of its obligations hereunder any such satisfaction and discharge
of the Company's obligations hereunder shall not affect or diminish the rights
of any Warrantholder or the Company against the Warrant Agent.
9.5 Provisions of Indenture and Warrants for the Sole Benefit of Parties
and Warrantholders
Nothing in this indenture or the Warrants, expressed or implied,
shall give or be construed to give to any person other than the parties hereto
and the holders from time to time of the Warrants any legal or equitable right,
remedy or claim under this indenture, or under any covenant or provision therein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and the Warrantholders.
9.6 Counterparts and Formal Date
This indenture may be simultaneously executed in several
counterparts, each of which when so executed shall be deemed to be an original
and such counterparts together shall constitute one and the same instrument and
notwithstanding their date of execution shall be deemed to bear the date set out
at the top of the first page of this indenture.
IN WITNESS WHEREOF the parties hereto have executed this indenture
under the hands of their proper officers in that behalf.
WHEATON RIVER MINERALS LTD.
c/s
Per: "Xxx Xxxxxx"
--------------------------
Authorized Signing Officer
CIBC MELLON TRUST COMPANY
c/s
Per: "Xxxxxx Xxxxxx"
--------------------------
Authorized Signing Officer
c/s
Per: "Xxxx Xxxxxxxx"
--------------------------
Authorized Signing Officer
SCHEDULE "A"
FORM OF WARRANT CERTIFICATE
[For U.S. Persons, persons in the United States or persons for the account or
benefit of a U.S. Person or a person in the United
States, the following legend is applied]
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES ACT") OR ANY
STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES
FOR THE BENEFIT OF THE CORPORATION THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES
IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, (C)
WITHIN THE UNITED STATES IN ACCORDANCE WITH THE EXEMPTION FROM REGISTRATION
UNDER THE U.S. SECURITIES ACT PROVIDED BY RULES 144 OR 144A THEREUNDER, IF
AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (D)
IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES
ACT OR APPLICABLE STATE SECURITIES LAWS, AND THE SELLER HAS FURNISHED TO THE
CORPORATION AN OPINION TO SUCH EFFECT FROM COUNSEL OF RECOGNIZED STANDING
REASONABLY SATISFACTORY TO THE CORPORATION PRIOR TO SUCH OFFER, SALE OR
TRANSFER.
[If Warrant Certificates are issued prior to the Qualification Date, the
following legend is applied]
UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES
SHALL NOT TRADE THE SECURITIES BEFORE OCTOBER 1, 2002.
THE WARRANTS EVIDENCED HEREBY ARE EXERCISABLE ON OR BEFORE 5:00 P.M. (TORONTO
TIME) ON MAY 30, 2007, AFTER WHICH TIME THE WARRANTS EVIDENCED HEREBY SHALL BE
DEEMED TO BE VOID AND OF NO FURTHER FORCE OR EFFECT.
Warrant Certificate No. W______ Representing ___________
Warrants to acquire
Common Shares
SHARE PURCHASE WARRANTS
OF
WHEATON RIVER MINERALS LTD.
- A-2 -
THIS CERTIFIES that, for value received, the registered holder
hereof, (the "holder") is entitled at any time prior to 5:00 p.m. (Toronto time)
on May 30, 2007, to subscribe for the number of Common Shares specified above of
Wheaton River Minerals Ltd. (the "Company"), by surrendering to CIBC Mellon
Trust Company (the "Warrant Agent") at its principal stock transfer offices in
the cities of Toronto, Ontario and Vancouver, British Columbia, this Warrant
Certificate with a subscription in the form of the attached Subscription Form
duly completed and executed and accompanied by payment of $1.65 per Common
Share, subject to adjustment in certain events, (the "Exercise Price") or by
certified cheque, bank draft or money order in lawful money of Canada payable to
or to the order of the Company at par in the City of Toronto, Ontario. The
holder of this Warrant Certificate may purchase less than the number of Common
Shares which he is entitled to purchase on the exercise of the Share Purchase
Warrants represented by this certificate, in which event a new Warrant
Certificate representing the Share Purchase Warrants not then exercised will be
issued to the holder.
Upon acceptance hereof the holder hereby expressly waives the right
to receive any fractional Common Shares upon the exercise hereof in full or in
part and further waives the right to receive any cash or other consideration in
lieu thereof. The Share Purchase Warrants represented by this certificate shall
be deemed to have been surrendered, and payment or by certified cheque, bank
draft or money order shall be deemed to have been made only upon personal
delivery thereof or, if sent by post or other means of transmission, upon actual
receipt thereof by the Warrant Agent at its principal stock transfer offices in
the cities of Toronto, Ontario and Vancouver, British Columbia.
Upon due exercise of the Share Purchase Warrants represented by this
Warrant Certificate and payment of the Exercise Price, the Company shall cause
to be issued to the person(s) in whose name(s) the Common Shares so subscribed
for are to be issued (provided that if the Common Shares are to be issued to a
person other than the registered holder of this Share Purchase Warrant
certificate, the holder's signature on the Subscription Form herein shall be
guaranteed by a Canadian chartered bank, by a Canadian trust company by a
medallion signature guarantee from a member of a recognized Signature Medallion
Guarantee Program and the holder shall pay to the Company or the Warrant Agent
all applicable transfer or similar taxes and the Company shall not be required
to issue or deliver certificates evidencing the Common Shares unless or until
the holder shall have paid the Company or the Warrant Agent the amount of such
tax or shall have satisfied to the satisfaction of the Company that such tax has
been paid or that no tax is due) the number of Common Shares to be issued to
such person(s) and such person(s) shall become a holder in respect of such
Common Shares with effect from the date of such exercise and upon due surrender
of this Warrant Certificate the Warrant Agent shall issue a certificate(s)
representing such Common Shares to be issued within five business days after the
exercise of the Share Purchase Warrants represented by this certificate.
- A-3 -
This Warrant Certificate represents Share Purchase Warrants of the
Company issued or issuable under the provisions of the Warrant Indenture (which
indenture together with all other instruments supplemental or ancillary thereto
is herein referred to as the "Warrant Indenture") dated as of May 30, 2002
between the Company and the Warrant Agent, as Warrant Agent which contains
particulars of the rights of the holders of the Share Purchase Warrants and the
Company and of the Warrant Agent in respect thereof and the terms and conditions
upon which the Share Purchase Warrants are issued and held, all to the same
effect as if the provisions of the Warrant Indenture were herein set forth, to
all of which the holder of this Warrant Certificate by acceptance hereof
assents. A copy of the Warrant Indenture will be available for inspection at the
principal office of the Warrant Agent in the City of Toronto, Ontario.
Capitalized terms used in this Warrant Certificate and not otherwise defined
shall have the meanings ascribed thereto in the Warrant Indenture.
No transfer of any Warrant will be valid unless entered on the
register of transfers, upon surrender to the Warrant Agent of the Warrant
Certificate evidencing such Warrant, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Warrant Agent
executed by the registered holder or his executors, administrators or other
legal representatives or his or their attorney duly appointed by an instrument
in writing in form and execution satisfactory to the Warrant Agent. Subject to
the provisions of the Share Purchase Warrant Indenture and upon compliance with
the reasonable requirements of the Warrant Agent, Share Purchase Warrant
certificates may be exchanged for Warrant Certificates entitling the holder
thereof to acquire an equal aggregate number of Common Shares subject to
adjustment as provided for in the Warrant Indenture. The Company and the Warrant
Agent may treat the registered holder of this Warrant Certificate for all
purposes as the absolute owner hereof. The holding of the Share Purchase
Warrants represented by this certificate shall not constitute the holder hereof
a holder of Common Shares nor entitle him to any right or interest in respect
thereof except as herein and in the Warrant Indenture expressly provided.
The Warrant Indenture provides for adjustment in the number of
Common Shares to be delivered upon exercise of the right of purchase hereby
granted and to the exercise price in certain events therein set forth.
The Warrant Indenture contains provisions making binding upon all
holders of Share Purchase Warrants outstanding thereunder resolutions passed at
meetings of such holders held in accordance with such provisions and instruments
in writing signed by Warrantholders holding a specified percentage of Warrants
outstanding.
The Share Purchase Warrants and the Warrant Indenture shall be
governed by and performed, construed and enforced in accordance with the laws of
the Province of Ontario and the federal laws applicable therein and shall be
treated in all respects as Ontario contracts. Time shall be of the essence
hereof and of the Warrant Indenture.
- A-4 -
The Company may from time to time and at any time prior to 5:00 p.m.
(Toronto time) on May 30, 2007, purchase any of the Share Purchase Warrants by
private agreement or otherwise on such terms and conditions and at such price as
the Company may in its sole discretion determine.
This Warrant Certificate shall not be valid for any purpose until it
has been certified by or on behalf of the Warrant Agent for the time being under
the Warrant Indenture.
IN WITNESS WHEREOF the Company has caused this Share Purchase
Warrant certificate to be signed by its duly authorized officer as of the
________ day of _______________, __________.
WHEATON RIVER MINERALS LTD.
By:_________________________________
Authorized Signing Officer
This Share Purchase Warrant certificate represents Share Purchase Warrants
referred to in the Warrant Indenture within mentioned.
Countersigned by:
CIBC MELLON TRUST COMPANY
By: ___________________________
Authorized Signing Officer
Date of Certification: ______________
- A-5 -
TRANSFER OF WARRANTS
THE WARRANTS REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A U.S.
PERSON OR TO ANY PERSON IN THE UNITED STATES (AS DEFINED IN RULE 902(K) OF
REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED) OR TO
ANY PERSON FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON OR A PERSON IN THE UNITED
STATES, EXCEPT IN LIMITED CIRCUMSTANCES SPECIFIED IN THE WARRANT INDENTURE.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
(name)
(address)
_______________________ of the Warrants registered in the name of the
undersigned represented by the within certificate.
The undersigned hereby certifies that the transfer of these securities is not
being made to, and the offer of these securities was not made to, and the person
named above is not, a person in the United States or a U.S. Person (as such
terms are defined in Regulation S under the United States Securities Act of
1933, as amended), unless such transfer is exempt under the United States
Securities Act of 1933, as amended.
DATED the ________ day of _____________,_______.
Signature of Warrantholder _____________________________
guaranteed by: (Signature of Warrantholder)
_____________________________
* Authorized Signature Number
NOTE: (1) The signature to this transfer must correspond with the name as
recorded on the Warrants in every particular without alteration or enlargement
or any change whatever. The signature of the person executing this transfer must
be guaranteed by an authorized officer of a Canadian chartered bank or of a
major Canadian trust company or by a medallion signature guarantee from a member
recognized under the Signature Medallion Guarantee Program or from a similar
entity in the United States, if this transfer is executed in the United States,
or in accordance with industry standards.
- A-6 -
(2) If the transfer is to a U.S. Person as defined in Rule 902(k) of
Regulation S under the United States Securities Act of 1933, as amended, special
restrictions apply as set out in the Warrant Indenture governing these Warrants.
If by hand or courier: If by mail:
Toronto c/o CIBC Mellon Trust Company
Attention: Special Projects
c/o CIBC Mellon Trust Company P.O. Box 1036
Attention: Special Projects Adelaide Street Postal Station
Commerce Court West Toronto, Ontario M5C 2K4
000 Xxx Xxxxxx
Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Vancouver
c/o CIBC Mellon Trust Company
0000 Xxxx Xxxxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxx XxxxxxxxX0X 0X0
- A-7 -
SUBSCRIPTION FORM
TO: WHEATON RIVER MINERALS LTD.
--------------------------------------------------------------------------------
If by hand or courier: If by mail:
c/o CIBC Mellon Trust Company c/o CIBC Mellon Trust Company
Attention: Special Projects Attention: Special Projects
Commerce Court West P.O. Box 0000
000 Xxx Xxxxxx Xxxxxxxx Xxxxxx Postal Station
Securities Xxxxx Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxxx, Xxxxxxx X0X 0X0
--------------------------------------------------------------------------------
Vancouver
c/o CIBC Mellon Trust Company
0000 Xxxx Xxxxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxx XxxxxxxxX0X 0X0
--------------------------------------------------------------------------------
The undersigned holder of the within Share Purchase Warrants hereby
irrevocably subscribes for ____________ Common Shares of Wheaton River Minerals
Ltd. at the Exercise Price referred to in the attached Warrant Certificate on
the terms and conditions set forth in such certificate and the Warrant Indenture
and encloses herewith a certified cheque, bank draft or money order payable at
par in the City of Toronto, Ontario to the order of Wheaton River Minerals Ltd.
in payment in full of the subscription price of the Common Shares hereby
subscribed for.
The undersigned hereby directs that the said Common Shares be issued
as follows:
================================================================================
NAMES(S) IN FULL ADDRESS(ES) NUMBER OF COMMON SHARES
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
(Please print. If securities are issued to a person other than the registered
Warrantholder, the holder must pay to the Warrant Agent all exigible taxes and
the signature of the holder must be guaranteed by a Canadian chartered bank, a
Canadian trust company or by a medallion signature guarantee from a member of a
recognized Signature Medallion Guarantee Program or in accordance with industry
standards.)
- A-8 -
The undersigned hereby certifies that the undersigned is not a U.S.
Person or a person in the United States, and is not acquiring any of the Common
Shares issuable upon the exercise of the Warrants for the account or benefit of
a U.S. Person or a person in the United States, other than the Original U.S.
Purchaser, and none of the persons listed above is a U.S. Person or a person in
the United States, unless such person is the Original U.S. Purchaser. In
addition to this exercise form, an Original U.S. Purchaser must also provide an
executed letter, substantially in the form attached as Schedule "A" to the
Warrant Indenture, a copy of which is available upon request from the Warrant
Agent or the Company. For purposes hereof "United States" and "U.S. Person"
shall have the meanings given to such terms in Regulation S under the United
States Securities Act of 1933, as amended (the "U.S. Securities Act") and
"Original U.S. Purchaser" means the accredited investor who first purchased the
Special Warrants pursuant to the terms of the Private Placement Subscription
Agreement (U.S. Purchaser).
DATED this ________ day of ______________, _________.
__________________________ _________________________
Signature of Warrantholder Signature of Guarantor
_________________________________________________________
Print Name
_________________________________________________________
Address
|_| Please check this box if the securities are to be delivered at the office
where these Share Purchase Warrants are surrendered, failing which the
securities will be mailed.
SCHEDULE "B"
REPRESENTATION LETTER
TO: Wheaton River Minerals Ltd.
Ladies and Gentlemen:
In connection with the acquisition by the purchaser (the
"Subscriber") of common shares (the "Common Shares") of Wheaton River Minerals
Ltd. (the "Corporation"), the Subscriber or the undersigned on behalf of the
Subscriber, as the case may be, hereby represents and agrees for the benefit of
each of you that:
1. The Subscriber is an "accredited investor" as defined in Rule 501(a) of
Regulation D under the United States Securities Act of 1933, as amended (the
"Securities Act"), because it is:
[Please initial all that apply]
|_| A bank (as defined in Section 3(a)(2) of the Securities Act) or a
savings and loan association or other institution (as defined in
Section 3(a)(5)(A) of the Securities Act), acting either in its
individual capacity or in a fiduciary capacity.
|_| A broker or dealer registered under Section 15 of the Securities
Exchange Act of 1934, as amended. An insurance company (as defined
in Section 2(13) of the Securities Act).
|_| An investment company registered under the Investment Company Act of
1940.
|_| A business development company (as defined in Section 2(a)(48) of
the Investment Company Act of 1940).
|_| A Small Business Investment Company (licensed by the United States
Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958).
|_| A private business development company (as defined in Section
202(a)(22) of the Investment Advisers Act of 1940).
|_| A tax-exempt organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended, not formed for the
specific purpose of acquiring the Common Shares, with total assets
of more than U.S. $5 million.
- B-2 -
|_| A corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
Common Shares, with total assets of more than U.S. $5 million.
|_| An employee benefit plan, not subject to the Employee Retirement
Income Security Act of 1974, with total assets of more than U.S. $5
million, established and maintained by a state, a political
subdivision of a state, or any agency or instrumentality a state or
its political subdivisions.
|_| A director or executive officer of the Corporation.
|_| A natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of his purchase exceeds U.S.
$1,000,000.
|_| A natural person who had an individual income in excess of U.S.
$200,000 in each of the two most recent years or joint income with
that person's spouse in excess of U.S. $300,000 in each of those
years and has a reasonable expectation of reaching the same level in
the current year.
|_| A trust, with total assets in excess of U.S. $5 million, not formed
for the specific purpose of acquiring the Common Shares whose
purchase is directed by a sophisticated person as described in Rule
506(b)(2)(ii) of Regulation D under the Securities Act.
|_| An entity in which all of the equity owners are accredited
investors.
2. The Subscriber is acquiring the Common Shares for its own account and
not with a view to the resale, distribution or other disposition thereof or with
any present intention of offering or selling the Common Shares or any interest
therein.
3. The Subscriber understands and acknowledges that neither the Common
Shares nor any interest therein has been or will be registered under the
Securities Act or the securities laws of any State or other political
subdivision of the United States. The Subscriber understands and acknowledges
that the Corporation is under no obligation to register any of the Common Shares
on Subscriber's behalf or to assist Subscriber in complying with an exemption
from registration.
4. The Subscriber further acknowledges and agrees that, because the Common
Shares have not been registered under the Securities Act and the Common Shares
will be issued in connection with a private offering exempt from registration
under the Securities Act, the Securities are "restricted securities" within the
meaning of Rule 144 (a)(3) under the Securities Act and cannot be reoffered or
resold unless they are subsequently registered under the Securities Act or an
exemption from registration thereunder is available, and that the Subscriber
will continue to bear the economic risk of its investment in the Common Shares
for an indefinite period of time.
5. The Subscriber agrees that it will not re-offer, resell, pledge,
hypothecate or otherwise transfer any of the Common Shares (or securities that
may be received in
- B-3 -
replacement thereof or in exchange therefor) except: (a) to the Corporation; or
(b) in a transaction exempt from registration under the Securities Act and any
applicable state securities ("blue sky") laws. The Subscriber agrees that in
connection with any transaction pursuant to the foregoing clause (b), it will
furnish to the Corporation a written opinion of counsel acceptable to the
Corporation to the effect that such offer, sale, pledge, hypothecation or other
transfer is exempt from the registration requirements of all applicable United
States federal and state securities laws. The Subscriber also agrees that each
certificate for the Common Shares (and any certificate issued in replacement
thereof or in exchange therefor) shall bear a restrictive legend in
substantially the following form and that an appropriate stop transfer order
implementing the same shall be lodged with the transfer agent for the Common
Shares:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S.
SECURITIES ACT") OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY
PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE
CORPORATION THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED
STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S.
SECURITIES ACT, (C) WITHIN THE UNITED STATES IN ACCORDANCE WITH THE
EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED
BY RULES 144 OR 144A THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE
WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION
THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR
APPLICABLE STATE SECURITIES LAWS, AND THE SELLER HAS FURNISHED TO
THE CORPORATION AN OPINION TO SUCH EFFECT FROM COUNSEL OF RECOGNIZED
STANDING REASONABLY SATISFACTORY TO THE CORPORATION PRIOR TO SUCH
OFFER, SALE OR TRANSFER."
6. The Subscriber represents that it has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of an investment in the Common Shares. The Subscriber acknowledges that it
has had access to such information concerning the Corporation as it has deemed
necessary to make an informed decision to purchase the Common Shares, and has
been afforded the opportunity to ask questions and receive answers from
representatives of the Corporation regarding the Corporation and the terms and
conditions relating to investment in the Corporation, and all such questions
have been answered to its full satisfaction.
- B-4 -
7. The Subscriber is not purchasing the Common Shares: (a) as a result of
or subsequent to becoming aware of any advertisement, article, notice or other
communication published in any newspaper, magazine or similar medium or
broadcast over television or radio; or (b) as a result of or subsequent to
attendance at a seminar or meeting called by any of the means set forth in (a);
or (c) as a result of or subsequent to any solicitation by a person not
previously known to it in connection with investments in securities generally.
8. The Subscriber acknowledges that a purchase of the Common Shares
involves a high degree of risk and Subscriber can afford the complete loss of
its purchase price for the Common Shares.
Dated ________________, 2001. __________________________________
(Print name of Subscriber)
By: ___________________________
Name: ___________________________
Title: ___________________________
SCHEDULE "C"
FORM OF DECLARATION FOR REMOVAL OF LEGEND
TO: CIBC Mellon Trust Company
as registrar and transfer agent
for Warrants of Wheaton River Minerals Ltd.
The undersigned (a) acknowledges that the sale of the securities of Wheaton
River Minerals Ltd. Corp. (the "Corporation") to which this declaration relates
is being made in reliance on Rule 904 of Regulation S under the United States
Securities Act of 1933, as amended (the " U.S. Securities Act") and (b)
certifies that (1) the undersigned is not an affiliate of the Corporation as
that term is defined in Rule 405 of the U.S. Securities Act, (2) the offer of
such securities was not made to a person in the United States and either (A) at
the time the buy order was originated, the buyer was outside the United States,
or the seller and any person acting on its behalf reasonably believed that the
buyer was outside the United States, or (B) the transaction was executed in, on
or through the facilities of The Toronto Stock Exchange, the Montreal Exchange,
the Canadian Venture Exchange or any other designated offshore securities market
as defined in Regulation S under the U.S. Securities Act and neither the seller
nor any person acting on its behalf knows that the transaction has been
prearranged with a buyer in the United States, (3) neither the seller nor any
affiliate of the seller nor any person acting on any of their behalf has engaged
or will engage in any directed selling efforts in the United States in
connection with the offer and sale of such securities, (4) the sale is bona fide
and not for the purpose of "washing off" the resale restrictions imposed because
the securities are "restricted securities" (as such term is defined in Rule
144(a)(3) under the U.S. Securities Act), (5) the seller does not intend to
replace the securities sold in reliance on Rule 904 of the U.S. Securities Act
with fungible unrestricted securities and (6) the contemplated sale is not a
transaction, or part of a series of transactions which, although in technical
compliance with Regulation S, is part of a plan or scheme to evade the
registration provisions of the U.S. Securities Act. Terms used herein have the
meanings given to them by Regulation S.
Dated: ________________________________
Name of Seller
By:_____________________________
Name:
Title:
