EXHIBIT 3.3
SHAREHOLDER RIGHTS AGREEMENT
THIS SHAREHOLDER RIGHTS AGREEMENT dated as of April 23, 1997.
B E T W E E N:
DURA PRODUCTS INTERNATIONAL INC., a corporation
incorporated under the laws of Ontario (the "Corporation"),
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THE R-M TRUST COMPANY, a trust company incorporated under
the laws of Canada, as Rights Agent (the "Rights Agent").
WHEREAS:
A. The Board of Directors has determined that it is advisable and in the best
interests of the Corporation to adopt a shareholder rights plan (the "Rights
Plan") to ensure, to the extent possible, that shareholder value is maximized
and that all shareholders of the Corporation are treated fairly and equally in
connection with any take-over offer for the Corporation.
B. In order to implement the Rights Plan, the Board of Directors has:
(a) authorized and declared a distribution of one right (a
"Right") effective at the Record Time in respect of each
Common Share outstanding at that time; and
(b) authorized the issuance of one Right in respect of each Common
Share issued after the Record Time and prior to the earlier of
the Separation Time and the Expiration Time.
C. Each Right entitles the holder thereof, after the Separation Time, to
purchase securities of the Corporation pursuant to the terms and subject to the
conditions set forth in this Agreement.
D. The Corporation desires to appoint the Rights Agent to act on behalf of the
Corporation, and the Rights Agent is willing to so act, in connection with the
issuance, transfer, exchange and replacement of Rights Certificates, the
exercise of Rights and other matters referred to in this Agreement.
NOW THEREFORE in consideration of the premises and their
respective agreements set forth in this Agreement, the parties agree as follows:
ARTICLE 1 - INTERPRETATION
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1.1 CERTAIN DEFINITIONS. For purposes of this Agreement, the following terms
have the meanings indicated:
(a) "ACQUIRING PERSON" means any Person who is the Beneficial
Owner of 10% or more of the outstanding Voting Shares, but
does not include:
(i) the Corporation, any Subsidiary of the Corporation or
any employee benefit plan, deferred profit sharing
plan, stock participation plan or trust for the
benefit of employees of the Corporation or any
Subsidiary of the Corporation;
(ii) any Person who becomes the Beneficial Owner of 10% or
more of the outstanding Voting Shares as a result of:
(A) a Voting Share Reduction;
(B) a Permitted Bid Acquisition;
(C) an Exempt Acquisition; or
(D) a Pro Rata Acquisition;
provided, however, that if a Person becomes the
Beneficial Owner of 10% or more of the outstanding
Voting Shares by reason of a Voting Share Reduction,
a Permitted Bid Acquisition, an Exempt Acquisition or
a Pro Rata Acquisition, and thereafter becomes the
Beneficial Owner of any additional Voting Shares
(other than pursuant to a Voting Share Reduction, a
Permitted Bid Acquisition, an Exempt Acquisition or a
Pro Rata Acquisition), then, as of the date that such
Person becomes the Beneficial Owner of such
additional Voting Shares, such Person shall become an
"Acquiring Person";
(iii) for the period of 10 days after the Disqualification
Date (as defined below), any Person who becomes the
Beneficial Owner of 10% or more of the outstanding
Voting Shares as a result of such Person becoming
disqualified from relying on Clause 1.1(d)(vii)
solely because such Person or the Beneficial Owner of
such Voting Shares has participated in, has made,
proposes or intends to make or is participating in a
Take-over Bid or any plan or proposal relating
thereto or resulting therein, either alone or by
acting jointly or in concert with any other Person.
For the purposes of this definition,
"Disqualification Date" means the first date of
public announcement of facts indicating that any
Person has
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participated in, has made, proposes or intends to
make or is participating in a Take-over Bid or any
plans or proposals relating thereto or resulting
therein including, without limitation, a report filed
pursuant to Section 101 of the Securities Act or
Section 13(d) of the 1934 Exchange Act; or
(iv) an underwriter or member of a banking or selling
group that becomes the Beneficial Owner of 10% or
more of the Voting Shares in connection with a bona
fide distribution to the public of securities.
(b) "AFFILIATE", when used to indicate a relationship with a
specified Person, means a Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled
by, or is under common control with, such specified Person and
a Person shall be deemed to be controlled by another Person if
controlled in any manner whatsoever that results in control in
fact by that other Person, whether directly or indirectly, and
whether through share ownership, a trust, a contract or
otherwise.
(c) "ASSOCIATE", when used to indicate a relationship with a
specified Person, means:
(i) any body corporate, partnership or other organization
of which such specified Person is a director, officer
or partner;
(ii) any trust or estate in which specified Person has a
beneficial interest and with whom such specified
Person is acting jointly or in concert, or in which
such specified Person has a 50% or greater beneficial
interest or in respect of which such specified Person
serves as a trustee or in a similar capacity
provided, however, that a Person shall not be an
Associate of a trust by reason only of the fact that
such Person serves as trustee or in a similar
capacity in relation to such trust if such Person is
duly licensed to carry on the business of a trust
company under applicable laws or if the ordinary
business of such Person includes the management of
investment funds for unaffiliated investors and such
Person acts as trustee or in a similar capacity in
relation to such trust in the ordinary course of such
business;
(iii) any relative of such specified Person who has the
same home as such specified Person, or any person to
whom such specified Person is married, or any person
with whom such specified Person is living in a
conjugal relationship outside marriage, or any
relative of such spouse or other person who has the
same home as such specified Person;
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(iv) any Person who is a director, officer, partner or
trustee of such specified Person or of any body
corporate, partnership or other organization (other
than the Corporation or any wholly-owned Subsidiary
of the Corporation) that is an Affiliate or Associate
of such specified Person; and
(v) any body corporate of which such specified Person
owns at law or in equity shares or securities
currently convertible into or exchangeable for shares
carrying more than 10% of the voting rights
exercisable with respect to the election of directors
under all circumstances or by reason of the
occurrence of an event that has occurred and is
continuing, or a currently exercisable option or
right to purchase such shares or such convertible or
exchangeable securities, and with whom such specified
Person is acting jointly or in concert.
(d) A Person is deemed the "BENEFICIAL OWNER" and to have
"BENEFICIAL OWNERSHIP" of, and to "BENEFICIALLY OWN":
(i) any securities as to which such Person or any of such
Person's Affiliates or Associates is, or may be
deemed to be, the direct or indirect beneficial owner
and, for this purpose, a Person shall be deemed to be
a beneficial owner of all securities:
(A) owned by a partnership of which such Person
is a partner;
(B) owned by a trust in which the Person has a
beneficial interest and which is acting
jointly or in concert with that Person or of
which the Person has a 50% or greater
beneficial interest;
(C) over which such Person or any of such
Person's Affiliates or Associates exercises
control or is deemed to exercise control
pursuant to the Securities Act;
(D) owned jointly or in common with others; and
(E) of which such Person or any of such Person's
Affiliates or Associates is deemed to be the
beneficial owner pursuant to the Company Act
or the Securities Act for the purposes of
xxxxxxx xxxxxxx or take-over bids or
pursuant to Rule 13d-3 or 13d-5 under the
1934 Exchange Act, whether or not such laws
or regulations apply to such Person or such
Person's Affiliates or
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Associates and whether or not such
beneficial owner or deemed beneficial owner
is the holder of record of such securities;
(ii) any securities as to which such Person or any of such
Person's Affiliates or Associates has, directly or
indirectly:
(A) the right to become Beneficial Owner within
the meaning of Clause (i) of this Subsection
1.1(d), (whether such right is exercisable
immediately or after the passage of time or
upon the occurrence of a contingency or
payment of instalments or otherwise)
pursuant to any agreement, arrangement,
pledge or understanding or otherwise,
whether or not in writing (other than (x)
customary agreements with and between
under-writers and/or banking group and/or
selling group members with respect to a bona
fide distribution to the public of
securities and (y) pledges of securities in
the ordinary course of business that meet
all of the conditions specified in Rule
13d-3(d)(3) under the 1934 Exchange Act
(except for the condition in Rule 13d-
3(d)(3)(ii) and except for a pledge
agreement with a registered securities
dealer relating to the extension of credit
for purchases of securities on margin in the
ordinary course of the dealer's business)),
or upon the exercise of conversion rights,
exchange rights, rights (other than the
Rights), warrants or options, or otherwise;
or
(B) the right to vote such securities (whether
such right is exercisable immediately or
after the passage of time or upon the
occurrence of a contingency or payment of
instalments or other- wise) pursuant to any
agreement, arrangement or understanding
(whether or not in writing), or otherwise
(other than pledges of securities in the
ordinary course of business that meet all of
the circumstances specified in Rule
13-3(d)(3) under the 1934 Exchange Act other
than the condition in Rule 13d-3(d)(3)(ii)
and other than a pledge agreement with a
registered securities dealer relating to the
extension of credit for purchases of
securities on margin in the ordinary course
of the dealer's business); and
(iii) any securities which are Beneficially Owned within
the meaning of Clauses (i) or (ii) of this Subsection
1.1(d) by any other Person with which such Person or
any of such Person's Affiliates or Associates is
acting jointly or in concert or has any agreement,
arrangement or understanding, whether or not in
writing (other than (x) customary agreements with and
between underwriters and/or banking group and/or
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selling group members with respect to a bona fide
distribution to the public of securities and (y)
pledges of securities in the ordinary course
of business that meet all of the conditions specified
in Rule 13d-3(d)(3) under the 1934 Exchange Act) with
respect to, or for the purpose of, acquiring,
holding, voting or disposing of any Voting Shares or
acquiring, holding or disposing of a significant
portion of the property or assets of the Corporation
or any Subsidiary of the Corporation, and any
securities which are Beneficially Owned (within the
meaning of Clauses (i) or (ii) of this Subsection
1.1(d)) by any Affiliate or Associate of such other
Person or any Person that is acting jointly or in
concert with, or has any agreement, arrangement or
understanding of the type referred to above with,
such other Person;
provided, however, that a Person shall not be deemed the
"Beneficial Owner" or to have "Beneficial Ownership" of, or to
"Beneficially Own", any security:
(iv) solely because such security has been deposited or
tendered pursuant to a tender or exchange offer or
take-over bid made by such Person or any of such
Person's Affiliates or Associates or any other Person
referred to in paragraph (iii) of this definition
until the earlier of such deposited or tendered
security being accepted unconditionally for payment
or exchange or being taken up and paid for;
(v) solely because such Person or any of such Person's
Affiliates or Associates or any other Person referred
to in paragraph (iii) of this definition has or
shares the power to vote or direct the voting of such
security pursuant to a revocable proxy given in
response to a public proxy solicitation made pursuant
to, and in accordance with, the applicable rules and
regulations under the Company Act, the Securities Act
and the 1934 Exchange Act, except if such power (or
the arrangements relating thereto) is then reportable
under Section 101 of the Securities Act or under Item
6 of Schedule 13D under the 1934 Exchange Act;
(vi) solely because such Person or any of such Person's
Affiliates or Associates or any other Person referred
to in paragraph (iii) of this definition has or
shares the power to vote or direct the voting of such
security in connection with, or in order to
participate in, a public proxy solicitation made or
to be made pursuant to, and in accordance with, the
applicable rules and regulations referred to in
clause (v) above, except if such power (or the
arrangements relating thereto) is then reportable
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under Section 101 of the Securities Act or under Item
6 of Schedule 13D under the 1934 Exchange Act;
(vii) solely because any such Person, any of such Person's
Affiliates or Associates or any other Person referred
to in paragraph (iii) of this definition has an
agreement, arrangement or understanding (whether or
not in writing) with respect to a shareholder
proposal or a matter or matters to come before a
meeting of shareholders, including the election of
directors;
(viii) solely because such Person (hereinafter in this
Clause 1.1(d) referred to as the "Manager"), being
principally engaged in the business of managing
investment funds for other Persons who are not
Affiliates or Associates of the Manager and who do
not act jointly or in concert with the Manager as
part of the Manager's duties as agent for fully
managed accounts, holds or exercises voting or
dispositive power over such security; provided,
however, that:
(A) such security shall be deemed, in such case,
to be Beneficially Owned by such other
Persons;
(B) the Manager does not, individually,
Beneficially Own in excess of five percent
of the outstanding Voting Shares; and
(C) the Manager does not make or propose to make
a Take-over Bid by means of a Take-over Bid
circular or any other means, other than an
Offer to Acquire Voting Shares or other
securities by means of a distribution by the
Corporation or by means of ordinary market
transactions (including prearranged trades)
executed through the facilities of a stock
exchange or organized over-the-counter
market, alone or acting jointly or in
concert with any other Person;
and provided further that, notwithstanding the foregoing, the
Board of Directors shall have the right to and may determine,
acting in good faith, that conditions exist which should
disentitle the Manager from relying on this Subclause (viii)
and, in such event, the Manager's Beneficial Ownership of
securities shall be determined without reference to this
Subclause (viii);
(ix) solely because such Person (hereinafter in this
Clause 1.1(d)(ix) referred to as the "Trust Company")
holds or exercises voting or dispositive power over
such securities, provided that:
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(A) the Trust Company is licensed to carry on
the business of a trust company under
applicable law and, as such, acts as trustee
or administrator or in similar capacity in
relation to the estates of deceased or
incompetent Persons (each an "Estate
Account") or in relation to other accounts
(each an "Other Account") and holds such
voting or dispositive power over such
security in the ordinary course of such
duties for the estate of any such deceased
or incompetent Person or for such other
accounts; and
(B) the Trust Company does not make or propose
to make a Take- over Bid by means of a
Take-over Bid circular or any other means,
other than an Offer to Acquire Voting Shares
or other securities by means of a
distribution by the Corporation or by means
of ordinary market transactions (including
prearranged trades) executed through the
facilities of a stock exchange or organized
over-the-counter market, alone or acting
jointly or in concert with any other Person;
and provided further that, notwithstanding the foregoing, the
Board of Directors shall have the right to and may determine,
acting in good faith, that conditions exist which should
disentitle the Trust Company from relying on this Subclause
(ix) and, in such event, the Trust Company's Beneficial
Ownership of securities shall be determined without reference
to this Subclause (ix);
(x) held for or pursuant to the terms of any employee
benefit plan, deferred profit sharing plan, stock
participation plan or trust for the benefit of
employees of the Corporation or any Subsidiary of the
Corporation; or
(xi) solely because such Person is a Client of the same
Manager as another Person on whose account the
Manager holds or exercises voting or dispositive
power over such security, or solely because such
Person is an Estate Account or an Other Account of
the same Trust Company as another Person on whose
account the Trust Company holds or exercises voting
or dispositive power over such security.
For purposes of this Agreement, in determining the percentage
of the outstanding Voting Shares with respect to which a
Person is or is deemed to be the Beneficial Owner, all Voting
Shares as to which such Person is deemed the Beneficial Owner
shall be deemed outstanding.
(e) "BOARD OF DIRECTORS" means the board of directors of the
Corporation.
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(f) "BUSINESS DAY" means any day other than a Saturday, Sunday or
a day on which chartered banks in the City of Toronto are
authorized or obliged by law to close.
(g) "CANADIAN DOLLAR EQUIVALENT" of any amount which is expressed
in United States dollars means, on any date, the Canadian
dollar equivalent of such amount determined by multiplying
such amount by the U.S.-Canadian Exchange Rate in effect on
such date.
(h) "CANADIAN-U.S. EXCHANGE RATE" means, on any date, the inverse
of the U.S.-Canadian Exchange Rate in effect on such date.
(i) "CLOSE OF BUSINESS" on any given date means the time on such
date (or, if such date is not a Business Day, the time on the
next succeeding Business Day) at which the office of the
transfer agent for the Common Shares in the City of Toronto
(or, after the Separation Time, the office of the Rights Agent
in the City of Toronto), is closed to the public.
(j) "COMMON SHARES" means the common shares in the capital of the
Corporation (including common shares evidenced by instalment
receipts) and "common shares", when used with reference to any
Person other than the Corporation, means the class or classes
of shares (or similar equity interest) with the greatest per
share voting power entitled to vote generally in the election
of all directors of such other Person or the equity securities
or other equity interest having power (whether or not
exercised) to control or direct the management of such other
Person or, if such other Person is a Subsidiary of another
Person, the Person or Persons which ultimately control such
first-mentioned other Person.
(k) "COMPANY ACT" means the Business Corporations Act (Ontario)
R.S.O. 1990, c.B.16, as amended, and the regulations made
thereunder, as now in effect or as the same may from time to
time be amended, re-enacted or replaced.
(l) "ELECTION TO EXERCISE" has the meaning attributed thereto in
Clause 2.2(d)(i).
(m) "EXEMPT ACQUISITION" means a share acquisition in respect of
which the Board of Directors has waived the application of
Section 3.1 pursuant to the provisions of Subsections 5.1(d)
or 5.1(e).
(n) "EXERCISE PRICE" means, as of any date, the price at which a
holder of a Right may purchase the securities issuable upon
exercise of one whole Right. Until adjustment thereof in
accordance with the terms hereof, the Exercise Price shall be
$2.
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(o) "EXPIRATION TIME" means the earlier of (i) the Termination
Time and (ii) the Close of Business on December 31, 2002.
(p) "EXPIRY DATE OF THE PERMITTED BID" means the date, which shall
not be less than 60 days following the date on which the
proper Take-over Bid documentation relating to such Permitted
Bid is sent to the shareholders of the Corporation, which is
indicated in such documentation as the date until which such
Permitted Bid is open for acceptance.
(q) "FLIP-IN EVENT" means a transaction or event in or pursuant to
which any Person becomes an Acquiring Person.
(r) "INDEPENDENT SHAREHOLDERS" means holders of Voting Shares,
other than (i) any Acquiring Person, (ii) any Offeror, (iii)
any Affiliate or Associate of any Acquiring Person or Offeror,
(iv) any Person acting jointly or in concert with any
Acquiring Person or Offeror, or with any Affiliate or
Associate of any Acquiring Person or Offeror and (v) any
Person holding Voting Shares which are Beneficially Owned by
any of such Persons.
(s) "MARKET PRICE" per security of any securities on any date of
determination means the average of the daily closing prices
per security of such securities (determined as described
below) on each of the 20 consecutive Trading Days through and
including the Trading Day immediately preceding such date;
provided, however, that if an event of a type analogous to any
of the events described in Section 2.3 hereof shall have
caused the closing prices used to determine the Market Price
on any Trading Day not to be fully comparable with the closing
price on the Trading Day immediately preceding such date of
determination, each such closing price so used shall be
appropriately adjusted in a manner analogous to the applicable
adjustment provided for in Section 2.3 in order to make it
fully comparable with the closing price on the Trading Day
immediately preceding such date of determination. The closing
price per security of any securities on any date shall be:
(i) the closing board lot sale price or, in case no such
sale takes place on such date, the average of the
closing bid and asked prices for each of such
securities as reported by the principal Canadian
stock exchange (as determined by the Board of
Directors) on which such securities are listed or
admitted to trading;
(ii) if for any reason none of such prices is available on
such day or the securities are neither listed or
posted for trading on a Canadian stock exchange nor
quoted on the Canadian Dealing Network Inc., the last
sale
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price or, in case no such sale takes place on such
date, the average of the closing bid and asked prices
for each of such securities as reported by the
principal national United States securities exchange
(as determined by the Board of Directors) on which
such securities are listed or admitted to trading;
(iii) if for any reason none of such prices is available on
such day or the securities are not listed or admitted
to trading on a Canadian stock exchange or a national
United States securities exchange, the last sale
price, or in case no sale takes place on such date,
the average of the high bid and low asked prices for
each of such securities in the over-the-counter
market, as quoted by any reporting system then in use
(as determined by the Board of Directors); or
(iv) if for any reason none of such prices is available on
such day or the securities are not listed or admitted
to trading on a Canadian stock exchange or a national
United States securities exchange or quoted by any
such reporting system, the average of the closing bid
and asked prices as furnished by a professional
market maker making a market in the securities
selected by the Board of Directors;
provided, however, that if for any reason none of such prices
is available on such day, the closing price per security of
such securities on such date means the fair value per security
of such securities on such date as determined by the Board of
Directors, after consultation with a nationally recognized
investment dealer or investment banker with respect to the
fair value per security of such securities. The Market Price
shall be expressed in Canadian dollars and, if initially
determined in respect of any day forming part of the 20
consecutive Trading Day period in question in United States
dollars, such amount shall be translated into Canadian dollars
on such date at the Canadian Dollar Equivalent thereof.
(t) "1934 Exchange Act" means the Securities Exchange Act of 1934
of the United States, as amended, and the rules and
regulations thereunder as now in effect or as the same may
from time to time be amended, re-enacted or replaced.
(u) "OFFER TO ACQUIRE" includes:
(i) an offer to purchase or a solicitation of an offer to
sell Voting Shares, or a public announcement of an
intention to make such an offer or solicitation; and
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(ii) an acceptance of an offer to sell Voting Shares,
whether or not such offer to sell has been solicited;
or any combination thereof, and the Person accepting an offer
to sell shall be deemed to be making an Offer to Acquire to
the Person that made the offer to sell.
(v) "OFFEROR" means a Person who has announced an intention to
make, or who has made, a Take-over Bid.
(w) "OFFEROR'S SECURITIES" means the aggregate of the Voting
Shares Beneficially Owned on the date of a Take-over Bid by an
Offeror.
(x) "PERMITTED BID" means a Take-over Bid made in compliance with,
and not on a basis which is exempt from or otherwise not
subject to the provisions of Sections 95 through 100,
inclusive, of the Securities Act, and, if applicable, Sections
10, 13(d) and 14 of the 1934 Exchange Act, subject to any
exemptions ordered or granted for purposes of uniformity, and
which also complies with the following additional
requirements:
(i) the same Take-over Bid is made for all outstanding
Voting Shares to all holders of record of Voting
Shares wherever resident as registered in the books
of the Corporation;
(ii) the Offeror's Securities do not, in the aggregate,
exceed 10% of the outstanding Voting Shares and the
Offeror does not become the Beneficial Owner of any
additional Voting Shares prior to the Close of
Business on the Expiry Date of the Permitted Bid
(provided that this clause (ii) shall not apply if
the Offeror is the Beneficial Owner of more than 10%
of the outstanding Voting Shares as at the Record
Time and, as at the Record Time, has filed a report
pursuant to Section 101 of the Securities Act or
Section 13(d) under the 1934 Exchange Act; provided,
however, that this exception shall not be, and shall
cease to be applicable, to an Offeror if such
Offeror, after the Record Time, becomes the
Beneficial Owner of additional Common Shares or
Voting Shares other than pursuant to a Permitted Bid
Acquisition, an Exempt Acquisition, a Pro Rata
Acquisition or a Voting Share Reduction);
(iii) the Take-over Bid contains, and the take-up and
payment for securities tendered or deposited
thereunder is subject to, irrevocable and unqualified
provisions that:
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(A) no Voting Shares will be taken up or paid
for pursuant to the Take-over Bid (x) prior
to the Close of Business on the Expiry Date
of the Permitted Bid and (y) unless, at the
Close of Business on the Expiry Date of the
Permitted Bid, more than 50% of the then
outstanding Voting Shares, other than the
Offeror's Securities, have been deposited or
tendered pursuant to the Take-over Bid and
not withdrawn;
(B) Voting Shares may be deposited pursuant to
such Take-over Bid at any time prior to the
Close of Business on the Expiry Date of the
Permitted Bid;
(C) any Voting Shares deposited pursuant to the
Take-over Bid may be withdrawn until taken
up and paid for;
(D) in the event that the requirement set forth
in Subclause (A)(y) of this Clause
1.1(y)(iii) is satisfied, the Offeror will
make a public announcement of that fact and
the Take-over Bid will remain open for
deposits and tenders of Voting Shares for
not less than 10 days from the date of such
public announcement; and
(iv) if the consideration offered pursuant to the
Take-over Bid is not payable entirely in cash, the
circular accompanying or forming part of the
Take-over Bid shall be accompanied by a favourable
opinion of a nationally recognized investment dealer
or investment banker dated the date of the Take-over
Bid and addressed to the offeree holders of Voting
Shares (x) that the value of the consideration to be
paid to the holders of Voting Shares of the
Corporation is fair to such holders and (y) as to the
market trading cash value of the non-cash
consideration in the hands of the offeree holders of
Voting Shares on a fully distributed basis.
For purposes of this Agreement, (i) should a Permitted Bid
cease to be a Permitted Bid because it ceases to meet any or
all of the requirements mentioned above at any time, any
acquisition of Voting Shares made pursuant to such Permitted
Bid, including any acquisition of Voting Shares theretofore
made, shall cease to be a Permitted Bid Acquisition, and (ii)
should the initial terms of a Permitted Bid be varied by
reason only of an increase in the cash consideration offered
to the shareholders of the Corporation, the initial period of
time during which shareholders may deposit their Voting Shares
pursuant to the Permitted Bid shall continue to run,
unaffected by such variation. In all other circumstances, any
change or variation to the initial terms or conditions of a
Permitted Bid shall trigger a new period of at least 60 days
during which Voting
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Shares may be deposited pursuant to the Take-over Bid and the
initial Expiry Date of the Permitted Bid shall be modified
accordingly.
(y) "PERMITTED BID ACQUISITION" means an acquisition of Voting
Shares made pursuant to a Permitted Bid.
(z) "PERSON" includes any individual, firm, partnership,
association,trust, trustee, executor, administrator, legal
personal representative, government, governmental body or
authority, group (as such term is used in Rule 13d-5 under the
1934 Exchange Act, as in effect on the date of this
Agreement), corporation or other incorporated or
unincorporated organization.
(aa) "PRO RATA ACQUISITION" means an acquisition by a Person of
Voting Shares pursuant to (w) any dividend reinvestment plan
or share purchase plan of the Corporation, (x) a stock
dividend, a stock split or other event pursuant to which such
Person becomes the Beneficial Owner of Voting Shares on the
same pro rata basis as all other holders of Voting Shares of
the same class or series, (y) the exercise of rights to
purchase Voting Shares distributed to all holders of Voting
Shares pursuant to a bona fide rights offering which complies
with the requirements of Policy 6.2 of the Ontario Securities
Commission or is made pursuant to a prospectus, or (z) a
distribution to the public of Voting Shares, or securities
convertible into or exchangeable for Voting Shares, made
pursuant to a prospectus or by way of a private placement
completed in accordance with applicable securities
legislation; provided, however, in the case of an acquisition
referred to in Subclause (z), such acquisition is made for
such number of Voting Shares or of such securities as is
necessary for such Person to maintain the percentage of Voting
Shares it held immediately prior to the announcement of such
distribution to the public or private placement.
(bb) "RECORD TIME" means the Close of Business on April 23, 1997.
(cc) "REDEMPTION PRICE" has the meaning attributed thereto in
Clause 5.1(a).
(dd) "REGULAR PERIODIC CASH DIVIDEND" means cash dividends paid on
the Common Shares at regular intervals in any fiscal year of
the Corporation to the extent that such cash dividends do not
exceed in the aggregate in any fiscal year, on a per share
basis, the greatest of:
(i) 200% of the aggregate amount of cash dividends
declared payable by the Corporation on the Common
Shares in its immediately preceding fiscal year
divided by the number of Common Shares outstanding as
at the end of such fiscal year;
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(ii) 300% of the arithmetic mean of the aggregate amounts
of cash dividends declared payable by the Corporation
on the Common Shares in its three immediately
preceding fiscal years divided by the arithmetic mean
of the numbers of Common Shares outstanding as at the
end of each of such fiscal years; and
(iii) 100% of the aggregate consolidated net income of the
Corporation, before extraordinary items, for its
immediately preceding fiscal year divided by the
number of Common Shares outstanding as at the end of
such fiscal year.
(ee) "RIGHT" has the meaning given to it in Recital B above.
(ff) "RIGHTS CERTIFICATE" means the certificates representing the
Rights after the Separation Time which shall be substantially
in the form attached hereto as Exhibit A.
(gg) "RIGHTS PLAN" has the meaning given to it in Recital A above.
(hh) "SECURITIES ACT" means the Securities Act, R.S.O. 1990, c.
S-5, as amended, and the regulations made thereunder, as now
in effect or as the same may from time to time be amended,
re-enacted or replaced.
(ii) "SEPARATION TIME" means the Close of Business on the tenth day
after the earlier of:
(i) the Stock Acquisition Date; and
(ii) the date of the commencement of, or first public
announcement of the intent of any Person (other than
the Corporation or any Subsidiary of the Corporation)
to commence, a Take-over Bid (other than a Permitted
Bid, so long as such Take-over Bid continues to
satisfy the requirements of a Permitted Bid);
or such earlier or later date as may from time to time be
determined by the Board of Directors, provided that if any
such Take-over Bid expires, is cancelled, is terminated or is
otherwise withdrawn prior to the Separation Time, such offer
shall be deemed, for the purposes of this Subsection 1.1(aj),
never to have been made.
(jj) "STOCK ACQUISITION DATE" means the first date of public
announcement (which for purposes of this definition includes,
without limitation, a report filed
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pursuant to Section 101 of the Securities Act or Section 13(d)
of the 1934 Exchange Act) of facts indicating that a Person
has become an Acquiring Person.
(kk) "SUBSIDIARY" of any specified Person means any corporation or
other entity of which a majority of the voting power of the
equity securities or a majority of the equity interest is
Beneficially Owned, directly or indirectly, by such Person.
(ll) "TAKE-OVER BID" means an Offer to Acquire Voting Shares or
securities convertible into Voting Shares, where the Voting
Shares subject to the Offer to Acquire, together with the
Voting Shares into which the securities subject to the Offer
to Acquire are convertible, and the Offeror's Securities
constitute in the aggregate 20% or more of the outstanding
Voting Shares at the date of the Offer to Acquire.
(mm) "TERMINATION TIME" means the time at which the right to
exercise Rights shall terminate pursuant to Subsections 3.2(b)
or 5.1(c).
(nn) "TRADING DAY", when used with respect to any securities, means
any day on which the principal Canadian or United States
securities exchange (as determined by the Board of Directors)
on which such securities are listed or admitted to trading is
open for the transaction of business or, if the securities are
not listed or admitted to trading on any Canadian or United
States securities exchange, a Business Day.
(oo) "U.S.-CANADIAN EXCHANGE RATE" means, on any date:
(i) if on such date the Bank of Canada sets an average
noon spot rate of exchange for the conversion of one
United States dollar into Canadian dollars, such
rate; and
(ii) in any other case, the rate for such date for the
conversion of one United States dollar into Canadian
dollars calculated in such manner as may be
determined by the Board of Directors from time to
time acting in good faith.
(pp) "U.S. DOLLAR EQUIVALENT" of any amount which is expressed in
Canadian dollars means, on any date, the United States dollar
equivalent of such amount determined by multiplying such
amount by the Canadian-U.S. Exchange Rate in effect on such
date.
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(qq) "VOTING SHARES" means the Common Shares of the Corporation and
any other shares of capital stock or voting interests of the
Corporation entitled to vote generally in the election of
directors and "voting shares", when used with reference to any
Person other than the Corporation, means common shares of such
other Person and any other shares of capital stock or voting
interests of such other Person entitled to vote generally in
the election of the directors of such other Person. For
purposes of this Agreement, the percentage of Voting Shares
Beneficially Owned by any Person shall be, and be deemed to
be,the product determined by the formula:
100 x A
---
B
where
A = the aggregate number of votes for the election of all
directors generally attaching to the Voting Shares
Beneficially Owned by such Person; and
B = the aggregate number of votes for the election of all
directors generally attaching to all outstanding Voting
Shares.
Where any Person is deemed to Beneficially Own unissued Voting
Shares, such Voting Shares shall be deemed to be outstanding
for the purpose of both A and B above.
(rr) "Voting Share Reduction" means an acquisition or redemption by
the Corporation of Voting Shares which, by reducing the number
of Voting Shares outstanding, increases the percentage of
Voting Shares Beneficially Owned by any Person to 20% or more
of the Voting Shares then outstanding.
1.2 CURRENCY. All sums of money which are referred to in this Agreement are
expressed in lawful money of Canada, unless otherwise specified.
1.3 NUMBER AND GENDER. Wherever the context so requires, terms used herein
importing the singular number only shall include the plural and vice versa and
words importing any one gender shall include all others.
1.4 SECTIONS AND HEADINGS. The division of this Agreement into Articles,
Sections, Subsections, Clauses and Subclauses and the insertion of headings are
for convenience of reference only and shall not affect the construction or
interpretation of this Agreement. The terms "this Agreement", "hereof",
"hereunder" and similar expressions refer to this Agreement
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and not to any particular Article, Section or other portion hereof and include
any agreement or instrument supplemental or ancillary hereto. Unless something
in the subject matter or context is inconsistent therewith, references herein to
Articles, Sections, Subsections, Clauses and Subclauses are to Articles,
Sections, Subsections, Clauses and Subclauses of this Agreement.
1.5 STATUTORY REFERENCES. Unless the context otherwise requires, any reference
herein to a specific Section, Subsection, Clause or Rule of any act or
regulation shall be deemed to refer to the same as it may be amended, re-enacted
or replaced or, if repealed and there shall be no replacement therefor, to the
same as it is in effect on the date of this Agreement.
1.6 ACTING JOINTLY OR IN CONCERT. For the purposes of this Agreement, a Person
shall be deemed to be acting jointly or in concert with another Person if such
Person would be deemed to be acting jointly or in concert with such Person for
the purpose of Section 91 of the Securities Act.
ARTICLE 2 - THE RIGHTS
2.1 LEGEND ON COMMON SHARE CERTIFICATES.
(a) Certificates for Common Shares issued after the later of (i)
the Record Time and (ii) the date on which all regulatory
approvals for this Agreement have been received but prior to
the earlier of (iii) the Separation Time and (iv) the
Expiration Time shall, subject to Subsection 2.3(j), also
evidence one Right for each Common Share represented thereby
and shall have impressed on, printed on, written on or
otherwise affixed to them the following legend:
"Until the Separation Time (as defined in the Rights Agreement
referred to below), this certificate also evidences and
entitles the holder hereof to certain Rights as set forth in a
Shareholder Rights Agreement dated as of April 23, 1997 (the
"Rights Agreement"), between the Corporation and The R-M Trust
Company, as Rights Agent, the terms of which are incorporated
herein by reference and a copy of which is on file at the
principal office of the Corporation. Under certain
circumstances, as set forth in the Rights Agreement, such
Rights may be amended or redeemed, may expire, may become void
(if, in certain cases, they are "Beneficially Owned" by an
"Acquiring Person", as such terms are defined in the Rights
Agreement, or a transferee thereof), or may be evidenced by
separate certificates and may no longer be evidenced by this
certificate. The Corporation will mail, or arrange for the
mailing of, a copy of the Rights
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Agreement to the holder of this certificate without charge
promptly after the receipt of a written request therefor."
(b) Certificates representing Common Shares that are issued and
outstanding at the later of (i) the Record Time and (ii) the
date on which all regulatory approvals for this Agreement have
been received shall evidence one Right for each Common Share
evidenced thereby, notwithstanding the absence of the
foregoing legend, until the earlier of (iii) the Separation
Time and (iv) the Expiration Time.
2.2 INITIAL EXERCISE PRICE; EXERCISE OF RIGHTS; DETACHMENT OF
RIGHTS.
(a) Subject to adjustment as herein set forth, each Right will
entitle the holder thereof, after the Separation Time and
prior to the Expiration Time, to purchase one Common Share for
the Exercise Price, or the U.S. Dollar Equivalent of the
Exercise Price as at the Business Day immediately preceding
the Separation Time (which Exercise Price and number of Common
Shares are subject to adjustment as set forth below).
Notwithstanding any other provision of this Agreement, any
Rights held by the Corporation or any of its Subsidiaries
shall be void.
(b) Until the Separation Time (i) the Rights shall not be
exercisable and no Right may be exercised and (ii) for
administrative purposes, each Right will be evidenced by the
certificate for the associated Common Share registered in the
name of the holder thereof (which certificate shall be deemed
to represent a Rights Certificate) and will be transferable
only together with, and will be transferred by a transfer of,
such associated Common Share.
(c) After the Separation Time and prior to the Expiration Time,
the Rights may be exercised and the registration and transfer
of the Rights shall be separate from and independent of Common
Shares. Promptly following the Separation Time, the Rights
Agent will mail to each holder of record of Common Shares as
of the Separation Time (other than an Acquiring Person and, in
respect of any Rights Beneficially Owned by such Acquiring
Person which are not held of record by such Acquiring Person,
the holder of record of such Rights) at such holder's address
as shown on the records of the Corporation (the Corporation
hereby agreeing to furnish copies of such records to the
Rights Agent for this purpose):
(i) a Rights Certificate appropriately completed,
representing the number of Rights held by such holder
at the Separation Time, and having such marks of
identification or designation and such legends,
summaries or endorsements printed thereon as the
Corporation may deem appropriate
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and as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with
any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock
exchange or quotation system on which the Rights may
from time to time be listed or traded, or to conform
to usage; and
(ii) a disclosure statement prepared by the Corporation
describing the Rights.
(d) Rights may be exercised in whole or in part on any Business
Day after the Separation Time and prior to the Expiration Time
by submitting to the Rights Agent at its principal office in
the City of Toronto:
(i) the Rights Certificate evidencing such Rights, with
an Election to Exercise (an "Election to Exercise")
substantially in the form attached to the Rights
Certificate appropriately completed and duly executed
by the holder or his executors or administrators or
other legal personal representatives or his or their
attorney duly appointed by an instrument in writing
in form and executed in a manner satisfactory to the
Rights Agent; and
(ii) payment by certified cheque, bankers draft or money
order payable to the order of the Corporation, of a
sum equal to the Exercise Price multiplied by the
number of Rights being exercised and a sum sufficient
to cover any transfer tax or charge which may be
payable in respect of any transfer involved in the
transfer or delivery of Rights Certificates or the
issuance or delivery of certificates for Common
Shares in a name other than that of the holder of the
Rights being exercised.
(e) Upon receipt of a Rights Certificate, with an Election to
Exercise appropriately completed and duly executed, which does
not indicate that such Right is void as provided by Subsection
3.1(b), accompanied by payment as set forth in Clause
2.2(d)(ii), the Rights Agent (unless otherwise instructed by
the Corporation) will thereupon promptly:
(i) requisition from the transfer agent of the Common
Shares certificates for the number of Common Shares
to be purchased (the Corporation hereby irrevocably
agreeing to authorize such transfer agent to comply
with all such requisitions);
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(ii) after receipt of such Common Share certificates,
deliver such certificates to, or to the order of, the
registered holder of such Rights Certificate,
registered in such name or names as may be designated
by such holder;
(iii) when appropriate, requisition from the Corporation
the amount of cash, if any, to be paid in lieu of
issuing fractional Common Shares;
(iv) after receipt of such cash, deliver such cash to, or
to the order of, the registered holder of the Rights
Certificate; and
(v) tender to the Corporation all payments received on
exercise of the Rights.
(f) If the holder of any Rights exercises less than all the Rights
evidenced by such holder's Rights Certificate, a new Rights
Certificate evidencing the Rights remaining unexercised will
be issued by the Rights Agent to such holder or to such
holder's duly authorized assigns.
(g) The Corporation covenants and agrees that it will:
(i) take all such action as may be necessary and within
its power to ensure that all Common Shares delivered
upon exercise of Rights shall, at the time of
delivery of the certificates for such Common Shares
(subject to payment of the Exercise Price), be duly
and validly authorized, executed, issued and
delivered as fully paid and non-assessable;
(ii) take all such action as may reasonably be considered
to be necessary and within its power to comply with
any applicable requirements of the Company Act, the
Securities Act and the securities legislation of each
of the other provinces and territories of Canada in
connection with the issuance and delivery of the
Rights Certificates and the issuance of any Common
Shares upon exercise of Rights;
(iii) use reasonable efforts to cause all Common Shares
issued upon exercise of Rights to be listed upon
issuance on the stock exchange(s) where the Common
Shares may be listed at that time; and
(iv) pay when due and payable, any and all Canadian and
United States federal, provincial and state taxes
(not in the nature of income or withholding taxes)
and charges which may be payable in respect of the
original issuance or delivery of the Rights
Certificates or certificates for Common Shares issued
upon exercise of Rights, provided that the
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Corporation shall not be required to pay any transfer
tax or charge which may be payable in respect of any
transfer of Rights or the issuance or delivery of
certificates for Common Shares issued upon exercise
of Rights in a name other than that of the holder of
the Rights being exercised.
2.3 ADJUSTMENTS TO EXERCISE PRICE; NUMBER OF RIGHTS.
(a) The Exercise Price, the number and kind of securities subject
to purchase upon exercise of each Right and the number of
Rights outstanding are subject to adjustment from time to time
as provided in this Section 2.3.
(b) If the Corporation at any time after the Record Time and prior
to the Expiration Time:
(i) declares or pays a dividend on the Common Shares
payable in Common Shares (or other securities
exchangeable for or convertible into or giving a
right to acquire Common Shares) other than pursuant
to any dividend reinvestment plan;
(ii) subdivides or changes the then outstanding Common
Shares into a greater number of Common Shares;
(iii) consolidates or changes the then outstanding Common
Shares into a smaller number of Common Shares; or
(iv) issues any Common Shares (or other securities
exchangeable for or convertible into or giving a
right to acquire Common Shares) in respect of, in
lieu of, or in exchange for existing Common Shares,
the Exercise Price and the number of Rights
outstanding shall be adjusted as follows:
(A) the Exercise Price in effect after such
adjustment will be equal to the Exercise
Price in effect immediately prior to such
adjustment divided by the number of Common
Shares (the "Adjustment Factor") that a
holder of one Common Share immediately prior
to such dividend, subdivision, change,
consolidation or issuance would hold
thereafter as a result thereof (assuming the
exercise of all such exchange or conversion
rights, if any); and
(B) each Right held prior to such adjustment
will become that number of Rights equal to
the Adjustment Factor, and the adjusted
number of Rights will be deemed to be
distributed among the
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Common Shares with respect to which the
original Rights were associated (if they
remain outstanding) and the shares issued in
respect of such dividend, subdivision,
change, consolidation or issuance, so that
each such Common Share will have exactly one
Right associated with it.
(c) If the Corporation, at any time after the Record Time and
prior to the Expiration Time, fixes a record date for the
making of a distribution to substantially all holders of
Common Shares of rights or warrants entitling them (for a
period expiring within 45 calendar days after such record
date) to subscribe for or purchase Common Shares (or
securities convertible into or exchangeable for or carrying a
right to purchase or subscribe for Common Shares) at a price
per Common Share (or, in the case of a security convertible
into or exchangeable for or carrying a right to purchase or
subscribe for Common Shares, having a conversion, exchange or
exercise price per share (including the price required to be
paid to purchase such convertible or exchangeable security or
right)) less than 90 percent of the Market Price per Common
Share on such record date, the Exercise Price shall be
adjusted. The Exercise Price in effect after such record date
will equal the Exercise Price in effect immediately prior to
such record date multiplied by a fraction, of which the
numerator shall be the number of Common Shares outstanding on
such record date plus the number of Common Shares which the
aggregate offering price of the total number of Common Shares
so to be offered (and/or the aggregate initial conversion,
exchange or exercise price of the convertible or exchangeable
securities or rights so to be offered (including the price
required to be paid to purchase such convertible or
exchangeable securities or rights) would purchase at such
Market Price per Common Share and of which the denominator
shall be the number of Common Shares outstanding on such
record date plus the number of additional Common Shares to be
offered for subscription or purchase (or into which the
convertible or exchangeable securities or rights to be so
offered are initially convertible, exchangeable or
exercisable). In case such subscription price may be paid in a
consideration part or all of which will be in a form other
than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors. To the
extent that such rights or warrants are not exercised prior to
the expiration thereof, the Exercise Price shall be readjusted
to the Exercise Price which would then be in effect based on
the number of Common Shares (or securities convertible into or
exchangeable for Common Shares) actually issued upon the
exercise of such rights. For purposes of this Agreement, the
granting of the right to purchase Common Shares (whether from
treasury shares or otherwise) pursuant to any dividend
reinvestment plan and/or any share purchase plan (so long as
such right to purchase is in no case evidenced by the delivery
of rights or warrants by the Corporation) shall not be deemed
to
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constitute an issue of rights or warrants by the Corporation;
provided, however, that, in the case of any dividend
reinvestment plan or share purchase plan, the right to
purchase Common Shares is at a price per share of not less
than 90 percent of the current market price per share
(determined in accordance with such plans) of the Common
Shares.
(d) If the Corporation, at any time after the Record Time and
prior to the Expiration Time, fixes a record date for the
making of a distribution to substantially all holders of
Common Shares of evidences of indebtedness or assets (other
than a Regular Periodic Cash Dividend or a dividend paid in
Common Shares but including any dividend payable in securities
other than Common Shares) or rights or warrants entitling them
to subscribe for or purchase Common Shares (or securities
convertible into or exchangeable for or carrying a right to
purchase or subscribe for Common Shares) at a price per Common
Share (or, in the case of a security convertible into or
exchangeable for or carrying a right to purchase or subscribe
for Common Shares, having a conversion, exchange or exercise
price per share (including the price required to be paid to
purchase such convertible or exchangeable security or right))
less than 90 percent of the Market Price per Common Share on
such record date (excluding rights or warrants referred to in
Subsection 2.3(c)), the Exercise Price in effect after such
record date shall be equal to the Exercise Price in effect
immediately prior to such record date less the fair market
value (as determined by the Board of Directors) of the portion
of the assets, evidences of indebtedness, rights or warrants
so to be distributed applicable to a Common Share.
(e) Each adjustment made pursuant to this Section 2.3 shall be
made as of:
(i) the payment or effective date for the applicable
dividend, subdivision, change, consolidation or
issuance, in the case of an adjustment made pursuant
to Subsection 2.3(b); and
(ii) the record date for the applicable dividend or
distribution, in the case of an adjustment made
pursuant to Subsections 2.3(c) or (d).
(f) If the Corporation, shall at any time after the Record Time
and prior to the Expiration Time, issue any shares of capital
stock (other than Common Shares), or rights or warrants to
subscribe for or purchase any such capital stock, or
securities convertible into or exchangeable for any such
capital stock, in a transaction referred to in Clauses
2.3(b)(i) or (iv), if the Board of Directors acting in good
faith determines that the adjustments contemplated by
Subsections 2.3(b), (c) and (d) in connection with such
transaction will not appropriately protect the interests of
the holders of Rights, the Corporation may determine
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what other adjustments to the Exercise Price, number of Rights
and/or securities purchasable upon exercise of Rights would be
appropriate and, notwithstanding Subsections 2.3(b), (c) and
(d), such adjustments, rather than the adjustments
contemplated by Subsections 2.3(b), (c) and (d), shall be
made. The Corporation and the Rights Agent shall amend this
Agreement as appropriate to provide for such adjustments.
(g) Notwithstanding anything herein to the contrary, no adjustment
of the Exercise Price shall be required unless such adjustment
would require an increase or decrease of at least one per cent
in such Exercise Price; provided, however, that any
adjustments which by reason of this Subsection 2.3(g) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All adjustments made
pursuant to this Section 2.3 shall be made to the nearest cent
or to the nearest one ten-thousandth of a Common Share or a
Right, as the case may be.
(h) All Rights originally issued by the Corporation subsequent to
any adjustment made to an Exercise Price hereunder shall
evidence the right to purchase, at the adjusted Exercise
Price, the number of Common Shares purchasable from time to
time hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(i) Unless the Corporation shall have exercised its election, as
provided in Subsection 2.3(j), upon each adjustment of an
Exercise Price as a result of the calculations made in
Subsections 2.3(c) and (d), each Right outstanding immediately
prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Exercise
Price, that number of Common Shares obtained by:
(i) multiplying (A) the number of Common Shares covered
by a Right immediately prior to this adjustment, by
(B) the relevant Exercise Price in effect immediately
prior to such adjustment of the relevant Exercise
Price; and
(ii) dividing the product so obtained by the relevant
Exercise Price in effect immediately after such
adjustment of the relevant Exercise Price.
(j) The Corporation may elect on or after the date of any
adjustment of an Exercise Price to adjust the number of
Rights, in lieu of any adjustment in the number of Common
Shares purchasable upon the exercise of a Right. Each of the
Rights outstanding after the adjustment in the number of
Rights shall be exercisable for the number of Common Shares
for which a Right was exercisable immediately
-26-
prior to such adjustment. Each Right held of record prior to
such adjustment of the number of Rights shall become the
number of Rights obtained by dividing the relevant Exercise
Price in effect immediately prior to adjustment of the
relevant Exercise Price by the relevant Exercise Price in
effect immediately after adjustment of the relevant Exercise
Price. The Corporation shall make a public announcement of its
election to adjust the number of Rights, indicating the record
date for the adjustment, and, if known at the time, the amount
of the adjustment to be made. This record date may be the date
on which the relevant Exercise Price is adjusted or any day
thereafter, but, if the Rights Certificates have been issued,
shall be at least 10 calendar days later than the date of the
public announcement. If Rights Certificates have been issued,
upon each adjustment of the number of Rights pursuant to this
Subsection 2.3(j), the Corporation shall, as promptly as
practicable, cause to be distributed to holders of record of
Rights Certificates on such record date, Rights Certificates
evidencing, subject to Section 5.5, the additional Rights to
which such holders shall be entitled as a result of such
adjustment, or, at the option of the Corporation, shall cause
to be distributed to such holders of record in substitution
and replacement for the Rights Certificates held by such
holders prior to the date of adjustment, and upon surrender
thereof, if required by the Corporation, new Rights
Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates
so to be distributed shall be issued, executed and
countersigned in the manner provided for herein and may bear,
at the option of the Corporation, the relevant adjusted
Exercise Price and shall be registered in the names of holders
of record of Rights Certificates on the record date specified
in the public announcement.
(k) Irrespective of any adjustment or change in the securities
purchasable upon exercise of the Rights, the Rights
Certificates theretofore and thereafter issued may continue to
express the securities so purchasable which were expressed in
the initial Rights Certificates issued hereunder.
(l) In any case in which this Section 2.3 shall require that an
adjustment in an Exercise Price be made effective as of a
record date for a specified event, the Corporation may elect
to defer until the occurrence of such event the issuance to
the holder of any Right exercised after such record date of
the number of Common Shares and other securities of the
Corporation, if any, issuable upon such exercise over and
above the number of Common Shares and other securities of the
Corporation, if any, issuable upon such exercise on the basis
of the relevant Exercise Price in effect prior to such
adjustment; provided, however, that the Corporation shall
deliver to such holder a due xxxx or other appropriate
instrument evidencing such holder's right to receive such
additional
-27-
Common Shares (fractional or otherwise) or other securities
upon the occurrence of the event requiring such adjustment.
(m) Notwithstanding anything in this Section 2.3 to the contrary,
the Corporation shall be entitled to make such reductions in
the Exercise Price, in addition to those adjustments expressly
required by this Section 2.3, as and to the extent that in its
good faith judgment the Board of Directors shall determine to
be advisable in order that any (i) subdivision or
consolidation of the Common Shares, (ii) issuance wholly for
cash of any Common Shares at less than the applicable Market
Price, (iii) issuance wholly for cash of any Common Shares or
securities that by their terms are exchangeable for or
convertible into or give a right to acquire Common Shares,
(iv) stock dividends or (v) issuance of rights, options or
warrants referred to in this Section 2.3, hereafter made by
the Corporation to holders of its Common Shares, subject to
applicable taxation laws, shall not be taxable to such
shareholders.
(n) The Corporation covenants and agrees that, after the
Separation Time, it will not, except as permitted by Section
5.1 or 5.4, take (or permit any Subsidiary of the Corporation
to take) any action if at the time such action is taken it is
reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to
be afforded by the Rights.
(o) Whenever an adjustment to the Exercise Price or a change in
the securities purchasable upon exercise of the Rights is made
pursuant to this Section 2.3, the Corporation shall promptly:
(i) file with the Rights Agent and with the transfer
agent for the Common Shares a certificate specifying
the particulars of such adjustment or change; and
(ii) cause notice of the particulars of such adjustment or
change to be given to the holders of the Rights.
Failure to file such certificate or to cause such notice to be
given as aforesaid, or any defect therein, shall not affect
the validity of any such adjustment or change.
2.4 DATE ON WHICH EXERCISE IS EFFECTIVE. Each Person in whose name any
certificate for Common Shares is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of the Common Shares
represented thereby on, and such certificate shall be dated, the date upon which
the Rights Certificate evidencing such Rights was duly surrendered (together
with an appropriately completed and duly executed Election to Exercise) and
payment of the Exercise Price for such Rights (and any applicable
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transfer taxes or charges payable by such Person hereunder) was made in
accordance with Subsection 2.2(d); provided, however, that if the date of such
surrender and payment is a date upon which the Common Share transfer books of
the Corporation are closed, such Person shall be deemed to have become the
holder of record of such shares on, and such certificate shall be dated, the
next succeeding Business Day on which the Common Share transfer books of the
Corporation are open.
2.5 EXECUTION, AUTHENTICATION, DELIVERY AND DATING OF RIGHTS
CERTIFICATES.
(a) The Rights Certificates shall be executed on behalf of the
Corporation by its President, its Chief Financial Officer or
its Secretary. The signature of any of these officers on the
Rights Certificates may be manual or facsimile. Rights
Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Corporation shall bind the Corporation, notwithstanding that
such individuals or any of them have ceased to hold such
offices prior to the countersignature and delivery of such
Rights Certificates.
(b) Promptly following the Separation Time, the Corporation will
notify the Rights Agent of such Separation Time and will
deliver Rights Certificates executed by the Corporation to the
Rights Agent for countersignature, and the Rights Agent will
countersign (manually or by facsimile signature in a manner
satisfactory to the Corporation) and deliver such Rights
Certificates to the holders of the Rights pursuant to
Subsection 2.2(c). No Rights Certificate shall be valid for
any purpose until countersigned by the Rights Agent as
aforesaid.
(c) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.6 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) After the Separation Time, the Corporation will cause to be
kept a register (the "Rights Register") in which, subject to
such reasonable regulations as it may prescribe, the
Corporation will provide for the registration and transfer of
Rights. The Rights Agent is hereby appointed "Rights
Registrar" for the purpose of maintaining the Rights Register
for the Corporation and registering Rights and transfers and
exchanges of Rights as herein provided. If the Rights Agent
shall cease to be the Rights Registrar, the Rights Agent will
have the right to examine the Rights Register at all
reasonable times.
(b) After the Separation Time and prior to the Expiration Time,
upon surrender for registration of transfer or exchange of any
Rights Certificate, and subject to the provisions of
Subsection 2.6(d) and 3.1(b), the Corporation will execute,
and the Rights Agent will countersign, deliver and register,
in the name of the
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holder or the designated transferee or transferees, as
required pursuant to the holder's instructions, one or more
new Rights Certificates evidencing the same aggregate number
of Rights as did the Rights Certificates so surrendered.
(c) All Rights issued upon any registration of transfer or
exchange of Rights Certificates shall be the valid obligations
of the Corporation, and such Rights shall be entitled to the
same benefits under this Agreement as the Rights surrendered
upon such registration of transfer or exchange.
(d) Every Rights Certificate surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to
the Corporation or the Rights Agent, as the case may be, duly
executed by the holder thereof or such holder's attorney duly
authorized in writing. As a condition to the issuance of any
new Rights Certificate under this Section 2.6, the Corporation
may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and
expenses of the Rights Agent) connected therewith.
2.7 MUTILATED, DESTROYED, LOST AND STOLEN RIGHTS CERTIFICATES
(a) If any mutilated Rights Certificate is surrendered to the
Rights Agent prior to the Expiration Time, the Corporation
shall execute and the Rights Agent shall countersign and
deliver in exchange therefor a new Rights Certificate
evidencing the same number of Rights as did the Rights
Certificate so surrendered.
(b) If there shall be delivered to the Corporation and the Rights
Agent prior to the Expiration Time (i) evidence to their
satisfaction of the destruction, loss or theft of any Rights
Certificate and (ii) such security or indemnity as may be
required by them to save each of them and any of their agents
harmless, then, in the absence of notice to the Corporation or
the Rights Agent that such Rights Certificate has been
acquired by a bona fide purchaser, the Corporation shall
execute and upon its request the Rights Agent shall
countersign and deliver, in lieu of any such destroyed, lost
or stolen Rights Certificate, a new Rights Certificate
evidencing the same number of Rights as did the Rights
Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate
under this Section 2.7, the Corporation may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the
Rights Agent) connected therewith.
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(d) Every new Rights Certificate issued pursuant to this Section
2.7 in lieu of any destroyed, lost or stolen Rights
Certificate shall evidence a contractual obligation of the
Corporation, whether or not the destroyed, lost or stolen
Rights Certificate shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Agreement
equally and proportionately with any and all other Rights duly
issued hereunder.
2.8 PERSONS DEEMED OWNERS. Prior to due presentment of a Rights Certificate (or,
prior to the Separation Time, the associated Common Share certificate) for
registration of transfer, the Corporation, the Rights Agent and any agent of the
Corporation or the Rights Agent may deem and treat the person in whose name such
Rights Certificate (or, prior to the Separation Time, such Common Share
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever. As used in this Agreement, unless
the context otherwise requires, the term "holder" of any Rights means the
registered holder of such Rights (or, prior to the Separation Time, the
associated Common Shares).
2.9 DELIVERY AND CANCELLATION OF CERTIFICATES. All Rights Certificates
surrendered upon exercise or for redemption, or for registration of transfer or
exchange shall, if surrendered to any person other than the Rights Agent, be
delivered to the Rights Agent and, in any case, shall be promptly cancelled by
the Rights Agent. The Corporation may at any time deliver to the Rights Agent
for cancellation any Rights Certificates previously countersigned and delivered
hereunder which the Corporation may have acquired in any manner whatsoever, and
all Rights Certificates so delivered shall be promptly cancelled by the Rights
Agent. No Rights Certificate shall be countersigned in lieu of or in exchange
for any Rights Certificates cancelled as provided in this Section 2.9, except as
expressly permitted by this Agreement. The Rights Agent shall destroy all
cancelled Rights Certificates and deliver a certificate of destruction to the
Corporation.
2.10 AGREEMENT OF RIGHTS HOLDERS. Every holder of Rights, by accepting such
Rights, consents and agrees with the Corporation and the Rights Agent and with
every other holder of Rights that:
(a) such holder shall be bound by and subject to the provisions of
this Agreement, as amended from time to time in accordance
with the terms hereof, in respect of all Rights held;
(b) prior to the Separation Time, each Right will be transferable
only together with, and will be transferred by a transfer of,
the associated Common Share;
(c) after the Separation Time, the Rights will be transferable
only on the Rights Register as provided herein;
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(d) prior to due presentment of a Rights Certificate (or, prior to
the Separation Time, the associated Common Share certificate)
for registration of transfer, the Corporation, the Rights
Agent and any agent of the Corporation or the Rights Agent may
deem and treat the person in whose name the Rights Certificate
(or, prior to the Separation Time, the associated Common Share
certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby (notwithstanding any notations
of ownership or writing on such Rights Certificate or the
associated Common Share certificate made by anyone other than
the Corporation or the Rights Agent) for all purposes
whatsoever, and neither the Corporation nor the Rights Agent
shall be affected by any notice to the contrary;
(e) such holder is not entitled to receive any fractional Rights
or fractional Common Shares upon the exercise of Rights; and
(f) without the approval of any holder of Rights and upon the sole
authority of the Board of Directors this Agreement may be
supplemented or amended from time to time as provided herein.
ARTICLE 3 - ADJUSTMENTS TO THE RIGHTS
3.1 FLIP-IN EVENT.
(a) Subject to Section 3.2 and Subsections 5.1(d) and 5.1(e), in
the event that prior to the Expiration Time a Flip-in Event
shall occur, each Right shall constitute, effective from and
after the later of its date of issue and the Close of Business
on the tenth day following the Stock Acquisition Date until
the Expiration Time, the right to purchase from the
Corporation, upon exercise thereof in accordance with the
terms hereof, that number of Common Shares having an aggregate
Market Price on the date of consummation or occurrence of such
Flip-in Event equal to twice the Exercise Price for an amount
in cash equal to the Exercise Price (such right to be
appropriately adjusted in a manner analogous to the applicable
adjustment provided for in Section 2.3 in the event that,
after such date of consummation or occurrence, an event of a
type analogous to any of the events described in Section 2.3
shall have occurred with respect to such Common Shares).
(b) Notwithstanding anything in this Agreement to the contrary,
upon the occurrence of any Flip-in Event, any Rights that are
or were Beneficially Owned on or after the earlier of the
Separation Time and the Stock Acquisition Date by an Acquiring
Person shall become null and void without any further action
and any holder of such Rights (including any transferee of, or
other successor in title
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to, such Rights, whether directly or indirectly) shall
thereafter have no right to exercise such Rights under any
provision of this Agreement and shall have no other rights
whatsoever with respect to such Rights, whether under any
provision of this Agreement or otherwise. The holder of any
Rights represented by a Rights Certificate which is submitted
to the Rights Agent upon exercise or for registration of
transfer or exchange which does not contain the necessary
certifications set forth in the Rights Certificate
establishing that such Rights are not void under this
Subsection 3.1(b) shall be deemed to be an Acquiring Person
for the purposes of this Subsection 3.1(b) and such Rights
shall become null and void.
(c) After the Separation Time, the Corporation shall do all such
acts and things as are necessary and within its power to
ensure compliance with the provisions of this Section 3.1
including, without limitation, all such acts and things as may
be required to satisfy the requirements of the Company Act in
respect of the issue of Common Shares upon the exercise of
Rights in accordance with this Agreement.
3.2 EXCHANGE OPTION
(a) If the Board of Directors determines that conditions exist
which would eliminate or otherwise materially diminish in any
respect the benefits intended to be afforded to the holders of
Rights pursuant to this Agreement, the Board of Directors may,
at its option and without seeking the approval of the holders
of Common Shares or Rights, at any time after a Flip-in Event
has occurred, authorize the Corporation to issue or deliver in
respect of each Right which is not void pursuant to Subsection
3.1(b), either:
(i) in return for the Exercise Price and the Right, cash,
debt or equity securities or other assets (or a
combination thereof) having a cash value equal to
twice the Exercise Price; or
(ii) in return for the Right and without further charge,
subject to any amounts that may be required to be
paid under applicable law, cash, debt or equity
securities or other assets (or a combination thereof)
having a cash value equal to the Exercise Price,
in full and final settlement of all rights attaching to the
Rights, where in either case the value of such debt or equity
securities or other assets shall be determined by the Board of
Directors who may rely upon the advice of a nationally
recognized investment dealer or investment banker selected by
the Board of Directors. To the extent that the Board of
Directors determines that
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some action need be taken pursuant to this Section 3.2, the
Board of Directors may suspend the exercisability of the
Rights for a period of up to 60 days following the date of the
occurrence of the relevant Flip-in Event in order to decide
the appropriate form of distribution to be made and to
determine the value thereof. In the event of any such
suspension, the Corporation shall notify the Rights Agent and
issue as promptly as practicable a public announcement stating
that the exercisability of the Rights has been temporarily
suspended.
(b) If the Board of Directors authorizes the exchange of debt or
equity securities or other assets (or a combination thereof)
for Rights pursuant to Subsection 3.2(a), then, without any
further action or notice, the right to exercise the Rights
will terminate and the only right thereafter of a holder of
Rights shall be to receive such debt or equity securities or
other assets (or a combination thereof) in accordance with the
exchange formula authorized by the Board of Directors. Within
10 Business Days after the Board of Directors has authorized
the exchange of debt or equity securities or other assets (or
a combination thereof) for Rights pursuant to Subsection
3.2(a), the Corporation shall give notice of such exchange to
the holders of such Rights. Each such notice of exchange will
state the method by which the exchange of debt or equity
securities or other assets (or a combination thereof) for
Rights will be effected.
ARTICLE 4 - THE RIGHTS AGENT
4.1 General.
(a) The Corporation hereby appoints the Rights Agent to act as
agent for the Corporation and the holders of Rights in
accordance with the terms and conditions of this Agreement,
and the Rights Agent hereby accepts such appointment. The
Corporation may from time to time appoint such Co-Rights
Agents as it may deem necessary or desirable. In the event the
Corporation appoints one or more Co-Rights Agents, the
respective duties of the Rights Agents and Co-Rights Agents
shall be as the Corporation, with the approval of Rights Agent
and Co-Rights Agent, may determine. The Corporation agrees to
pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and
counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the
exercise and performance of its duties hereunder, with the
approval of the Corporation, such approval not to be
unreasonably withheld (including the reasonable fees and other
disbursements of any expert retained by the Rights Agent). The
Corporation also agrees to indemnify the Rights Agent for, and
to hold it harmless against, any loss, liability, or expense,
incurred without negligence,
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bad faith or wilful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance, execution and administration
of this Agreement and the exercise and performance of its
duties hereunder, including without limitation the costs and
expenses of defending against any claim of liability, which
right to indemnification will survive the termination of this
Agreement.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this
Agreement in reliance upon any certificate for Common Shares,
Rights Certificate, certificate for other securities of the
Corporation, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or document
believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper
Person or Persons.
4.2 MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or amalgamated or with which it may
be consolidated, or any corporation resulting from any merger,
amalgamation or consolidation to which the Rights Agent or any
successor Rights Agent is a party, or any corporation
succeeding to the shareholder or stockholder services business
of the Rights Agent or any successor Rights Agent, will be the
successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the
part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor
Rights Agent under the provisions of Section 4.4 hereof. In
case at the time such successor Rights Agent succeeds to the
agency created by this Agreement any of the Rights
Certificates have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of
the predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of
the Rights Certificates have not been countersigned, any
successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all
such cases such Rights Certificates will have the full force
provided in the Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is changed
and at such time any of the Rights Certificates shall have
been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at that time
any of the
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Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either
in its prior name or in its changed name; and in all such
cases such Rights Certificates shall have the full force
provided in the Rights Certificates and in this Agreement.
4.3 DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Corporation and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
(a) the Rights Agent may consult with legal counsel (who may be
legal counsel for the Corporation), and the opinion of such
counsel will be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in
good faith and in accordance with such opinion; the Rights
Agent may also, with the approval of the Corporation (such
approval not to be unreasonably withheld), consult with such
other experts as the Rights Agent shall consider necessary or
appropriate to properly carry out the duties and obligations
imposed under this Agreement and the Rights Agent shall be
entitled to rely in good faith on the advice of any such
expert;
(b) whenever in the performance of its duties under this Agreement
the Rights Agent deems it necessary or desirable that any fact
or matter be proved or established by the Corporation prior to
taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by a person
believed by the Rights Agent to be the President and Chief
Executive Officer or the Chief Financial Officer or the Vice
President and General Counsel of the Corporation and delivered
to the Rights Agent; and such certificate will be full
authorization to the Rights Agent for any action taken or
suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate;
(c) the Rights Agent will be liable hereunder only for its own
negligence, bad faith or wilful misconduct;
(d) the Rights Agent will not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement
or in the certificates for Common Shares or the Rights
Certificates (except its countersignature thereof) or be
required to verify the same, but all such statements and
recitals are and will be deemed to have been made by the
Corporation only;
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(e) the Rights Agent will not be under any responsibility in
respect of the validity of this Agreement or the execution and
delivery hereof (except the due authorization, execution and
delivery hereof by the Rights Agent) or in respect of the
validity or execution of any Common Share certificate or
Rights Certificate (except its countersignature thereof); nor
will it be responsible for any breach by the Corporation of
any covenant or condition contained in this Agreement or in
any Rights Certificate; nor will it be responsible for any
change in the exercisability of the Rights (including the
Rights becoming void pursuant to Subsection 3.1(b)) or any
adjustment required under the provisions of Section 2.3 or
responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that
would require any such adjustment (except with respect to the
exercise of Rights after receipt of the certificate
contemplated by Subsection 2.3(o) hereof describing any such
adjustment); nor will it by any act hereunder be deemed to
make any representation or warranty as to the authorization of
any Common Shares to be issued pursuant to this Agreement or
any Rights or as to whether any Common Shares will, when
issued, be duly and validly authorized, executed, issued and
delivered and fully paid and non-assessable;
(f) the Corporation agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by
the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement;
(g) the Rights Agent is hereby authorized and directed to accept
written instructions with respect to the performance of its
duties hereunder from any Person believed by the Rights Agent
to be the Chief Executive Officer, the Chief Financial
Officer, the Secretary or a Vice-President of the Corporation,
and to apply to such persons for advice or instructions in
connection with its duties and it shall not be liable for any
action taken or suffered by it in good faith in accordance
with instructions of any such person;
(h) the Rights Agent and any shareholder or stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal
in Common Shares, Rights or other securities of the
Corporation or become pecuniarily interested in any
transaction in which the Corporation may be interested, or
contract with or lend money to the Corporation or otherwise
act as fully and freely as though it were not Rights Agent
under this Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Corporation or
for any other legal entity; and
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(i) the Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and
the Rights Agent will not be answerable or accountable for any
act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Corporation resulting from any
such act, default, neglect or misconduct, provided reasonable
care was exercised in the selection and continued employment
thereof.
4.4 CHANGE OF RIGHTS AGENT. The Rights Agent may resign and be discharged from
its duties under this Agreement upon 30 days' notice (or such lesser notice as
is acceptable to the Corporation) in writing mailed to the Corporation and to
the transfer agent of Common Shares by registered or certified mail, and to the
holders of the Rights in accordance with Section 5.9. The Corporation may remove
the Rights Agent upon 30 days' notice in writing, mailed to the Rights Agent and
to the transfer agent of the Common Shares by registered or certified mail, and
to the holders of the Rights in accordance with Section 5.9. If the Rights Agent
should resign or be removed or otherwise become incapable of acting, the
Corporation will appoint a successor to the Rights Agent. If the Corporation
fails to make such appointment within a period of 30 days after such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of any Rights (which
holder shall, with such notice, submit such holder's Rights Certificate for
inspection by the Corporation), then the resigning Rights Agent or the holder of
any Rights may apply to any court of competent jurisdiction, at the
Corporation's expense, for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Corporation or by such a court, shall be
a corporation incorporated under the laws of Canada or a province thereof. After
appointment, the successor Rights Agent will be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the time held
by it hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of any such
appointment, the Corporation will file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Shares, and mail
a notice thereof in writing to the holders of the Rights. Failure to give any
notice provided for in this Section 4.4, however, or any defect therein, shall
not affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
ARTICLE 5 - MISCELLANEOUS
5.1 REDEMPTION AND WAIVER.
(a) The Board of Directors may, at its option, at any time prior
to the occurrence of a Flip-in Event, elect to redeem all but
not less than all of the then outstanding
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Rights at a redemption price of $0.001 per Right appropriately
adjusted in a manner analogous to the applicable adjustment
provided for in Section 2.3 in the event that an event of the
type analogous to any of the events described in Section 2.3
shall have occurred (such redemption price being herein
referred to as the "Redemption Price"). The redemption of the
Rights by the Board of Directors may be made effective at such
time, on such basis and with such conditions as the Board of
Directors in its sole discretion may establish.
(b) If an Offeror successfully completes a Permitted Bid, the
Board of Directors shall, without further formality, be deemed
to have elected to redeem the Rights at the Redemption Price
on the Expiry Date of the Permitted Bid.
(c) If the Board of Directors elects to or is deemed to have
elected to redeem the Rights: (i) the right to exercise the
Rights will thereupon without further action and without
notice terminate and the only right thereafter of the holder
of a Right shall be to receive the Redemption Price. Within 10
days of the Board of Directors electing or being deemed to
have elected to redeem the Rights, the Corporation shall give
notice of such redemption to the holders of the then
outstanding Rights. Each such notice of redemption shall state
the method by which the payment of the Redemption Price shall
be made; and (ii) no further Rights shall thereafter be
issued.
(d) The Board of Directors may until the occurrence of a Flip-in
Event determine, upon prior written notice delivered to the
Rights Agent, to waive the application of Section 3.1 to any
particular Flip-in Event.
(e) The Board of Directors may prior to the Close of Business on
the tenth day following the Stock Acquisition Date determine,
upon prior written notice delivered to the Rights Agent, to
waive or to agree to waive the application of Section 3.1 to
that Flip-in Event, provided that the Acquiring Person has
reduced its Beneficial Ownership of Voting Shares (or has
entered into a contractual arrangement with the Corporation,
acceptable to the Board of Directors, to do so within 30 days
of the date on which such contractual arrangement is entered
into) such that at the time the waiver becomes effective
pursuant to this Subsection 5.1(e) it is no longer an
Acquiring Person. In the event of such a waiver, for the
purposes of this Agreement, such Flip-in Event shall be deemed
not to have occurred.
5.2 EXPIRATION. No Person shall have any rights pursuant to this Agreement or in
respect of any Right after the Expiration Time, except the Rights Agent as
specified in Subsection 4.1(a) hereof.
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5.3 ISSUANCE OF NEW RIGHTS CERTIFICATES. Notwithstanding any of the provisions
of this Agreement or of the Rights to the contrary, the Corporation may, at its
option, issue new Rights Certificates evidencing Rights in such form as may be
approved by the Board of Directors to reflect any adjustment or change in the
number or kind or class of shares purchasable upon exercise of Rights made in
accordance with the provisions of this Agreement.
5.4 SUPPLEMENTS AND AMENDMENTS.
(a) Subject to Subsections 5.4(b) and (c), the Corporation may
from time to time, without the approval of any holders of
Rights or Common Shares amend, vary or delete any of the
provisions of this Agreement and the Rights in order to:
(i) make such changes as the Board of Directors, acting
in good faith, may determine are necessary or
desirable, provided that no such amendment, variation
or deletion made on or after the Stock Acquisition
Date shall materially adversely affect the interests
of the holders of Rights generally and provided
further that no such amendment, variation or deletion
shall be made to the provisions of Article 4 except
with the written agreement of the Rights Agent
thereto;
(ii) cure any ambiguity or to correct or supplement any
provision contained herein which may be inconsistent
with any of the other provisions herein or otherwise
defective; or
(iii) increase or decrease the Exercise Price.
(b) Any amendment, variation or deletion made by the Board of
Directors pursuant to Clause 5.4(a)(i) in connection with the
definitions of "Acquiring Person", "Expiration Time", "Flip-in
Event" or "Permitted Bid" shall:
(i) if made prior to the Separation Time, be submitted to
the shareholders of the Corporation at the next
meeting of shareholders and the shareholders may, by
resolution passed by a majority of the votes cast by
Independent Shareholders who vote in respect of such
amendment, variation or deletion, confirm or reject
such amendment or supplement; or
(ii) if made after the Separation Time, be submitted to
the holders of Rights at a meeting to be called for
on a date not later than immediately following the
next meeting of shareholders of the Corporation and
the holders of Rights may, by resolution passed by a
majority of the votes
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cast by the holders of Rights who vote in respect of
such amendment, variation or deletion, confirm or
reject such amendment or supplement.
An amendment, variation or deletion shall be effective from
the date of the resolution of the Board of Directors adopting
such amendment, variation or deletion until it is confirmed or
rejected or until it ceases to be effective (as described in
the next sentence) and, where such amendment, variation or
deletion is confirmed, it continues in effect in the form so
confirmed. If such amendment, variation or deletion is
rejected by the shareholders or the holders of Rights or is
not submitted to the shareholders or holders of Rights as
required, then such amendment, variation or deletion shall
cease to be effective from and after the termination of the
meeting at which it was rejected or to which it should have
been but was not submitted or from and after the date of the
meeting of holders of Rights that should have been but was not
held, and no subsequent resolution of the Board of Directors
to amend, vary or delete any provision of this Agreement to
substantially the same effect shall be effective until
confirmed by the shareholders or holders of Rights, as the
case may be.
(c) The Corporation may, with the consent of the holders of
Rights, at any time on or after the Stock Acquisition Date,
amend, vary or delete any of the provisions of this Agreement
and the Rights (whether or not such action would materially
adversely affect the interests of the holders of Rights
generally), provided that no such amendment, variation or
deletion shall be made to the provisions of Article 4 except
with the written agreement of the Rights Agent thereto. Such
consent shall be deemed to have been given if such amendment,
variation or deletion is authorized by the affirmative votes
of the holders of Rights present or represented at and
entitled to be voted at a meeting of the holders and
representing 50 per cent plus one of the votes cast in respect
thereof For the purposes hereof, each outstanding Right (other
than a Right which is void pursuant to the provisions hereof)
shall be entitled to one vote, and the procedures for the
calling, holding and conduct of the meeting shall be those, as
nearly as may be, which are provided in the Corporation's
by-laws and the Company Act with respect to meetings of
shareholders of the Corporation.
(d) Any approval of the holders of Rights shall be deemed to have
been given if the action requiring such approval is authorized
by the affirmative votes of the holders of Rights present or
represented at and entitled to be voted at a meeting of the
holders of Rights and representing a majority of the votes
cast in respect thereof. For the purposes hereof, each
outstanding Right (other than Rights which are void pursuant
to the provisions hereof) shall be entitled to one vote, and
the procedures for the calling, holding and conduct of the
meeting shall be
-41-
those, as nearly as may be, which are provided in the
Corporation's by-laws and the Company Act with respect to
meetings of shareholders of the Corporation.
5.5 FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Corporation shall not be required to issue fractions of
Rights or to distribute Rights Certificates which evidence
fractional Rights. After the Separation Time, there shall be
paid to the registered holders of the Rights Certificates with
regard to which fractional Rights would otherwise be issuable,
an amount in cash equal to the same fraction of the Market
Value of a whole Right in lieu of such fractional Rights,
(b) The Corporation shall not be required to issue fractional
Common Shares upon exercise of the Rights or to distribute
certificates which evidence fractional Common Shares. In lieu
of issuing fractional Common Shares, the Corporation shall pay
to the registered holder of Rights Certificates at the time
such Rights are exercised as herein provided, an amount in
cash equal to the same fraction of the Market Value of one
Common Share.
5.6 RIGHTS OF ACTION. Subject to the terms of this Agreement, rights of action
in respect of this Agreement, other than rights of action vested solely in the
Rights Agent, are vested in the respective holders of the Rights; and any holder
of any Rights, without the consent of the Rights Agent or of the holder of any
other Rights, may, on such holder's own behalf and for such holder's own benefit
and the benefit of other holders of Rights, enforce, and may institute and
maintain any suit, action or proceeding against the Corporation to enforce, or
otherwise act in respect of, such holder's right to exercise such holder's
Rights in the manner provided in such holders Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and
will be entitled to specific performance of the obligations under, and
injunctive relief against actual or threatened violations of, the obligations of
any Person subject to this Agreement.
5.7 HOLDER OF RIGHTS NOT DEEMED A SHAREHOLDER. No holder, as such, of any Rights
shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of Common Shares or any other securities which may at any time be
issuable on the exercise of such Rights, nor shall anything contained herein or
in any Rights Certificate be construed to confer upon the holder of any Rights,
as such, any of the rights of a shareholder of the Corporation or any right to
vote for the election of directors or upon any matter submitted to shareholders
at any meeting thereof, or to give or withhold consent to any corporate action,
or to receive notice of meetings or other actions affecting shareholders (except
as provided in
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Section 5.8 hereof), or to receive dividends or subscription rights or
otherwise, until such Rights shall have been exercised in accordance with the
provisions hereof.
5.8 NOTICE OF PROPOSED ACTIONS. In case the Corporation shall propose after the
Separation Time and prior to the Expiration Time, to effect the liquidation,
dissolution or winding up of the Corporation or the sale of all or substantially
all of the Corporation's assets, then, in each such case, the Corporation shall
give to each holder of a Right, a notice of such proposed action, which shall
specify the date on which such liquidation, dissolution, or winding up is to
take place, and such notice shall be so given at least 20 Business Days prior to
the date of taking of such proposed action by the Corporation.
5.9 NOTICES. Notices or demands authorized or required by this Agreement to be
given or made by the Rights Agent or by the holder of any Rights to or on the
Corporation shall be sufficiently given or made if delivered or sent by first
class mail, postage prepaid, or by facsimile transmission addressed (until
another address is filed in writing with the Rights Agent) as follows:
Dura Products International Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx
X0X 0X0
Facsimile No.: (000) 000-0000
Attention: President
Any notice or demand authorized or required by this Agreement to be given or
made by the Corporation or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, facsimile transmission, or delivered, addressed (until another address
is filed in writing with the Corporation) as follows:
The R-M Trust Company
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Vice President Client Services
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Notices or demands authorized or required by this Agreement to be given or made
by the Corporation or the Rights Agent to or on the holder of any Rights shall
be sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as it appears on
the Rights Register or, prior to the Separation Time, on the registry books of
the Corporation for the Common Shares. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the
notice.
5.10 COSTS OF ENFORCEMENT. The Corporation agrees that if the Corporation or any
other Person the securities of which are purchasable upon exercise of Rights
fails to fulfil any of its obligations pursuant to this Agreement, then the
Corporation or such Person will reimburse the holder of any Rights for the costs
and expenses (including legal fees) incurred by such holder in actions to
enforce his rights pursuant to any Rights or this Agreement.
5.11 REGULATORY APPROVALS. Any obligation of the Corporation or action or event
contemplated by this Agreement, or any amendment to this Agreement, shall be
subject to the receipt of any requisite approval or consent from any
governmental or regulatory authority.
5.12 DECLARATION AS TO NON-CANADIAN AND NON-U.S. HOLDERS. If in the opinion of
the Board of Directors (who may rely upon the advice of counsel), any action or
event contemplated by this Agreement would require compliance with the
securities laws or comparable legislation of a jurisdiction outside Canada and
the United States of America, the Board of Directors acting in good faith may
take such actions as it may deem appropriate to ensure that such compliance is
not required, including without limitation establishing procedures for the
issuance to a Canadian resident fiduciary of Rights or securities issuable on
exercise of Rights, the holding thereof in trust for the Persons entitled
thereto (but reserving to the fiduciary or to the fiduciary and the Corporation,
as the Corporation may determine, absolute discretion with respect thereto) and
the sale thereof and remittance of the proceeds of such sale, if any, to the
Persons entitled thereto. In no event shall the Corporation or the Rights Agent
be required to issue or deliver Rights or securities issuable on exercise of
Rights to Persons who are citizens, residents or nationals of any jurisdiction
other than Canada and any province or territory thereof and the United States of
America in which such issue or delivery would be unlawful without registration
of the relevant Persons or securities for such purposes.
5.13 SUCCESSORS. All the covenants and provisions of this Agreement by or for
the benefit of the Corporation or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
5.14 BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be construed to
give to any Person, other than the Corporation, the Rights Agent and the holders
of the Rights, any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall
-44-
be for the sole and exclusive benefit of the Corporation, the Rights Agent and
the holders of the Rights.
5.15 GOVERNING LAW. This Agreement and each Right issued hereunder shall be
deemed to be a contract made under the laws of the Province of Ontario and for
all purposes shall be governed by and construed in accordance with the laws of
such province applicable to contracts to be made and performed entirely within
such province.
5.16 COUNTERPARTS. This Agreement may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
5.17 SEVERABILITY. If any term or provision hereof or the application thereof to
any circumstance shall, in any jurisdiction and to any extent, be invalid or
unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining terms and provisions
hereof or the application of such term or provision to circumstances other than
those as to which it is held invalid or unenforceable.
5.18 EFFECTIVE DATE. This Agreement is effective from the date hereof, subject
to the receipt of all required regulatory approvals. If the Rights Plan is not
confirmed by resolution passed by a majority of the votes cast by Independent
Shareholders who vote in respect of such Rights Plan at a meeting to be held not
later than June 30, 1997, then this Agreement and any
-45-
then outstanding Rights shall be of no further force and effect from that date
which is the earlier of (a) the date of such meeting, and (b) June 30, 1997.
5.19 TIME OF THE ESSENCE. Time shall be of the essence hereof.
5.20 DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS. The Board of
Directors shall have the exclusive power and authority to administer and amend
this Agreement in accordance with the terms hereof and to exercise all rights
and powers specifically granted hereunder to the Board of Directors or the
Corporation, or as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to (i) interpret
the provisions of this Agreement and (ii) make all determinations deemed
necessary or advisable for the administration of this Agreement (including a
determination to redeem or not to redeem the Rights or to amend the Agreement,
in accordance with the terms hereof). All such actions, calculations and
determinations (including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board of Directors in
good faith, shall (x) be final, conclusive and binding on the Corporation, the
Rights Agent, the holders of the Rights and all other parties and (y) not
subject the Board of Directors to any liability to the holders of the Rights or
any other parties.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
DURA PRODUCTS INTERNATIONAL INC.
Per:________________________________
Authorized Signatory
Per:________________________________
Authorized Signatory
THE R-M TRUST COMPANY
Per:________________________________
Authorized Signatory
Per:________________________________
Authorized Signatory
EXHIBIT A
[Form of Rights Certificate]
Certificate No._____________ _______________Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE CORPORATION,
ON THE TERMS SET FORTH IN THE SHAREHOLDER RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES (SPECIFIED IN SUBSECTION 3.1(b) OF SUCH
AGREEMENT), RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSONS CERTAIN
RELATED PARTIES OF AN ACQUIRING PERSON OR A TRANSFEREE OF AN ACQUIRING
PERSON OR ANY SUCH RELATED PARTIES WILL BECOME VOID WITHOUT FURTHER
ACTION.
RIGHTS CERTIFICATE
This certifies that ______________________________ is the
registered holder of the number of Rights set forth above, each of which
entitles the registered holder thereof, subject to the terms, provisions and
conditions of the Shareholder Rights Agreement dated as of April 23, 1997 (the
"Rights Agreement") between Dura Products International Inc., a corporation
incorporated under the laws of Ontario (the "Corporation") and The R-M Trust
Company, a trust company incorporated under the laws of Canada, as Rights Agent
(the "Rights Agent", which term shall include any successor Rights Agent under
the Rights Agreement), to purchase from the Corporation, at any time after the
Separation Time and prior to the Expiration Time (as such terms are defined in
the Rights Agreement), one fully paid common share of the Corporation (a "Common
Share") at the Exercise Price referred to below, upon presentation and surrender
of this Rights Certificate, together with the Form of Election to Exercise
appropriately completed and duly executed, to the Rights Agent at its principal
office in the City of Toronto. Until adjustment thereof in certain events as
provided in the Rights Agreement, the Exercise Price shall be $2.00 per Right
(payable in cash, certified cheque or money order payable to the order of the
Corporation).
In certain circumstances described in the Rights Agreement,
each Right evidenced hereby may entitle the registered holder thereof to
purchase or receive assets, debt securities or shares in the capital of the
Corporation other than Common Shares, or more or less than one Common Share (or
a combination thereof), all as provided in the Rights Agreement.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Rights Agent, the Corporation and the holders of the Rights Certificates.
-2-
Copies of the Rights Agreement are on file at the head office of the Corporation
and are available upon written request.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the principal office of the Rights Agent in the
City of Toronto, may be exchanged for another Rights Certificate or Rights
Certificates of like tenor evidencing an aggregate number of Rights equal to the
aggregate number of Rights evidenced by the Rights Certificate or Rights
Certificates surrendered. If this Rights Certificate shall be exercised in part,
the registered holder shall be entitled to receive, upon surrender hereof,
another Rights Certificate or Rights Certificates for the number of whole Rights
not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Corporation at a
redemption price of $0.001 per Right, subject to adjustment in certain events,
or (ii) may be exchanged, at the option of the Corporation, for cash, debt or
equity securities or other assets (or a combination thereof).
No fractional Common Shares will be issued upon the exercise
of any Right or Rights evidenced hereby, but in lieu thereof a cash payment will
be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the holder of
Common Shares or any other securities which may at any time be issuable upon the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
shareholder of the Corporation or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of
any meeting or other actions affecting shareholders (except as provided in the
Rights Agreement), or to receive dividends or subscription rights or otherwise,
until the Rights evidenced by this Rights Certificate shall have been exercised
as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Corporation.
Date:_______________________________
DURA PRODUCTS INTERNATIONAL INC.
Per:________________________________
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Authorized Signatory
Per:________________________________
Authorized Signatory
Countersigned:
THE R-M TRUST COMPANY
Per:________________________________
Authorized Signatory
FORM OF ELECTION TO EXERCISE
TO: DURA PRODUCTS INTERNATIONAL INC.
The undersigned hereby irrevocably elects to exercise
__________________ whole Rights represented by this Rights Certificate to
purchase the Common Shares issuable upon the exercise of such Rights and
requests that certificates for such Common Shares be issued in the name of and
delivered to:
------------------------------------
Name
------------------------------------
Address
------------------------------------
City and Province
------------------------------------
Social Insurance No. or other taxpayer
identification number
If such number of Rights shall not be all the Rights evidenced
by this Rights Certificate, a new Rights Certificate for the balance of such
Rights shall be registered in the name of and delivered to:
------------------------------------
Name
------------------------------------
Address
------------------------------------
City and Province
------------------------------------
Social Insurance No. or other taxpayer
-2-
identification number
Date:____________________________ Signature: ___________________________
(Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular, without
alteration or enlargement or any change
whatsoever)
--------------------------
Signature Guaranteed
Signature must be guaranteed by a member firm of a recognized
stock exchange in Canada, a registered national securities exchange in the
United States, a member of the Investment Dealers Association of Canada or
National Association of Securities Dealers, Inc., or a commercial bank or trust
company having an office or correspondent in Canada or the United States.
(To be completed if true)
The undersigned hereby represents, for the benefit of the
Corporation and all holders of Rights and Common Shares, that the Rights
evidenced by this Rights Certificate are not and, to the knowledge of the
undersigned, have never been, Beneficially Owned by an Acquiring Person or by
any Affiliate or Associate of an Acquiring Person, any other Person acting
jointly or in concert with an Acquiring Person or any Affiliate or Associate of
any such other Person (as such terms are defined in the Rights Agreement).
---------------------------------------
Signature
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
------------------------------------------------------------------------------
(Please print name and address of transferee)
the Rights represented by this Rights Certificate, together with all right,
title and interest therein.
Date:_____________________ Signature: ______________________________
(Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular, without
alteration or enlargement or any change
whatsoever)
--------------------------
Signature Guaranteed
Signature must be guaranteed by a member firm of a recognized stock exchange in
Canada, a registered national securities exchange in the United States, a member
of the Investment Dealers Association of Canada or National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an office
or correspondent in Canada or the United States.
(To be completed if true)
The undersigned hereby represents, for the benefit of the Corporation and all
holders of Rights and Common Shares, that the Rights evidenced by this Rights
Certificate are not and, to the knowledge of the undersigned, have never been,
Beneficially Owned by an Acquiring Person or by any Affiliate or Associate of an
Acquiring Person, any other Person acting jointly or in concert with an
Acquiring Person or any Affiliate or Associate of any such other Person (as such
terms are defined in the Rights Agreement).
-----------------------------------
Signature
NOTICE
If the certifications set forth above in the Forms of Election to Exercise and
Assignment are not completed, the Corporation shall deem the Beneficial Owner of
the Rights represented by this Rights Certificate to be an Acquiring Person (as
defined in the Rights Agreement) and, accordingly, such Rights shall be null and
void.
