THIRD AMENDED AND RESTATED ARRANGEMENT AGREEMENT
THIRD
AMENDED AND RESTATED ARRANGEMENT AGREEMENT
THIS
ARRANGEMENT AGREEMENT,
amended
and restated as of the 22 day of November, 2006 and effective as of the
6th
day of
July, 2006.
AMONG:
RUBICON
MINERALS CORPORATION,
a
company incorporated under the laws of the Province of British Columbia and
having a head office at 1540, 000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxx, XX X0X 0X0
(hereinafter
referred to as “Rubicon”)
AND:
PARAGON
MINERALS CORPORATION,
a
company incorporated under the federal laws of Canada and having its registered
office at 0000 Xxxx Xxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX X0X 0X0
(hereinafter
referred to as “Paragon”)
AND:
COPPERCO
RESOURCE CORP.,
a
company incorporated under the federal laws of Canada and having its registered
office at 0000 Xxxx Xxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX
X0X 0X0
(hereinafter
referred to as “CopperCo”)
AND:
AFRICO
RESOURCES LTD.,
a
company incorporated under the laws of the Province of British Columbia and
having its registered and records offices at 0000 Xxxx Xxxxx, 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
(hereinafter
referred to as “Africo”)
WHEREAS:
A. Rubicon,
Paragon, CopperCo and Africo have agreed to proceed with a proposed transaction
by way of a plan of arrangement whereby Rubicon will reorganize its share
capital, certain assets of Rubicon will be transferred to Paragon and CopperCo,
and a series of exchanges of securities will take place with the result that
the
current shareholders of Rubicon will retain their current shareholdings in
Rubicon and will acquire shares in Paragon and CopperCo, and
the
B. current
shareholders of Africo will acquire shares in CopperCo, all pursuant to certain
specified share exchange ratios, and all as more particularly set out
herein;
C. Rubicon
proposes to convene a meeting of its shareholders to consider the Arrangement
under Division 5 of Part 9 of the Business
Corporations Act
(British
Columbia), on the terms and conditions set forth in the Plan of Arrangement
attached as Appendix I hereto;
D. Africo
proposes to convene a meeting of its shareholders to consider the Arrangement
under Division 5 of Part 9 of the Business
Corporations Act
(British
Columbia), on the terms and conditions set forth in the Plan of Arrangement
attached as Appendix I hereto;
E. Each
of
the parties to this Agreement has agreed to participate in and support the
Arrangement; and
F. The
parties previously determined that it was advisable to amend and restate the
Arrangement Agreement as of August 8 and September 29, 2006, respectively,
and
have now determined that it is advisable to further amend and restate the
Arrangement Agreement as of November 22, 2006.
NOW
THEREFORE THIS AGREEMENT WITNESSES
that, in
consideration of the premises and the respective covenants and agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto,
the
parties hereto covenant and agree as follows:
ARTICLE 1
- INTERPRETATION
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1.1
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Definitions
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In
this
Agreement, including the recitals hereto, unless there is something in the
subject matter or context inconsistent therewith, the following capitalized
words and terms shall have the following meanings:
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(a)
|
“1933
Act”
means the United States Securities Act of 1933, as
amended;
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(b)
|
“Affiliate”
in respect of any person means any other person that, directly or
through
one or more intermediaries, controls or is controlled by or is under
common control with such person and, for the purpose of this definition,
“control” means the direct or indirect possession of the power to direct
or cause the direction of the management and policies of another,
whether
through the ownership of voting securities, by contract or otherwise.
When
used in relation to a business, “Affiliate” means, for periods both before
and after the Effective Date, Affiliates as determined after giving
effect
to the Arrangement;
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|
(c)
|
“Arrangement
Agreement”
or “this
Agreement”
means this arrangement agreement, including all appendices, schedules
and
exhibits hereto, as the same may be supplemented or amended from
time to
time;
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-2-
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(d)
|
“Associate”
has the meaning set out in subsection 1(1) of the Securities
Act
(British Columbia);
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(e)
|
“Final
Order”
means the final order of the Court contemplated by section 4.6
hereof;
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(f)
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“the
Hearing”
means the Court hearing at which the Final Order will be
sought;
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(g)
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“Indemnified
Person”
means each person entitled to indemnification under
Article 6;
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(h)
|
“Indemnity
Payment”
means any amount required to be paid by an Indemnifier pursuant to
Article 6;
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(i)
|
“Indemnifier”
means any party who is obligated to provide indemnification under
Article 6;
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(j)
|
“Interim
Order”
means the interim order of the Court made pursuant to the application
contemplated by section 4.6
hereof;
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(k)
|
“Loss”
means any loss, liability, damage, cost, expense, charge, fine, penalty
or
assessment of whatever nature or kind, including Taxes, the reasonable
out-of-pocket costs and expenses of any action, suit, proceeding,
demand,
assessment, judgment, settlement or compromise relating thereto,
fines and
penalties and reasonable legal fees (on a solicitor and its own client
basis) and expenses incurred in connection therewith, excluding loss
of
profits and consequential damages;
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(l)
|
“Person”
means and includes an individual, sole proprietorship, partnership,
unincorporated association, unincorporated syndicate, unincorporated
organization, trust, body corporate, a trustee, executor, administrator
or
other legal representative and the Crown or any agency or instrumentality
thereof;
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(m)
|
“Plan
of Arrangement”
means the plan of arrangement which is attached as Appendix I hereto
and
any amendment or variation thereto made in accordance with
section 7.1 hereof;
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(n)
|
“Representatives”
means, collectively, the directors, officers, employees and agents
of a
party at any time and their respective heirs, executors, administrators
and other legal representatives;
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(o)
|
“Rubicon
Property Share Requirements”
means the maximum number of Rubicon Common Shares, if any, that would
be
required to be issued by Rubicon to exercise its rights to acquire
any of
the current mineral properties of Rubicon, where there has been no
agreement by the vendor prior to the Effective Date to accept, following
completion of the Arrangement, alternative or
additional
|
-3-
|
(p)
|
consideration
in lieu of the Rubicon Common Shares which such vendor would have
been
entitled to receive if such agreement were not entered
into;
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(q)
|
“Securityholder”
means a holder of securities of one of the parties to this Agreement,
as
the context requires;
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(r)
|
“Special
Resolution”
means a resolution passed by a majority of not less than two thirds
of the
votes cast by the Rubicon Shareholders and by the Africo Shareholders,
respectively, who vote in respect of such resolution at the respective
Meetings;
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(s)
|
“Subsidiary”
means, with respect to a specified body corporate, a body corporate
of
which more than 50% of the outstanding shares ordinarily entitled
to elect
a majority of directors thereof, whether or not shares of any other
class
or classes shall or might be entitled to vote upon the happening
of any
event or contingency, are at the time owned, directly or indirectly,
by
such specified body corporate, and includes a body corporate in like
relation to a subsidiary;
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(t)
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“Tax
Gross-Up”
means, with respect to any particular Indemnity Payment, such additional
amount as is necessary to place the Indemnified Person in the same
after
tax position as it would have been in had such Indemnity Payment
been
received tax free. The Tax Gross-Up amount will be calculated by
using the
applicable combined federal and provincial income tax rate and/or
the
foreign tax rate applicable to the Indemnified Person and, except
as
provided in Section 6.5 “Tax Effect”, without regard to any losses,
credits, refunds or deductions that the Indemnified Person may have
that
could affect the amount of tax payable on any such Indemnity
Payment;
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(u)
|
“Tax
Proposals”
means all specific proposals to amend the ITA and the regulations
thereunder that have been publicly announced by or on behalf of the
Minister of Finance (Canada) prior to the date of this Agreement;
and
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(v)
|
“Tax
Ruling”
means the advance income tax ruling from the Canada Revenue Agency
confirming the Canadian federal income tax consequences of certain
aspects
of the Arrangement; and
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(w)
|
“Taxes”
includes all applicable present and future income taxes, capital
taxes,
stamp taxes, charges to tax, withholdings, sales and use taxes, value
added taxes and goods and services taxes and all penalties, interest
and
other payments on or in respect
thereof.
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All
capitalized words used in this Agreement and not otherwise defined herein shall
have the meanings set forth in the Plan of Arrangement.
-4-
Headings
The
division of this Agreement into articles, sections and other portions 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’ and “hereunder” and similar expressions refer to this
Agreement (including the appendices hereto) as a whole and not to any particular
article, section or other portion hereof and includes any agreement, document
or
instrument supplementary or ancillary hereto.
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1.2
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Construction
|
In
this
Agreement, unless something in the context is inconsistent
therewith:
| (a) |
(a)the
words “include” or “including” when following any general term or
statement are not to be construed as limiting the general term or
statement to the specific items or matters set forth or to similar
items
or matters, but rather as permitting it to refer to all other items
or
matters that could reasonably fall within its broadest possible
scope;
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| (b) |
(b)a
reference to a statute shall be deemed to include every regulation
made
pursuant thereto, all amendments to the statute or to any such regulation
enforced from time to time, and any statute or regulation that supplements
or supersedes such statute or any such
regulation;
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| (c) |
(c)a
reference to time or date is to the local time or date in Vancouver,
British Columbia, unless specifically indicated
otherwise;
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| (d) |
(d)reference
to a particular corporation includes the corporation derived from the
amalgamation of the particular corporation, or of a corporation to
which
such reference is extended by this paragraph (d), with one or more
other
corporations;
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| (e) |
(e)a
word importing the masculine gender includes the feminine or neuter
and a
word importing the singular includes the plural and vice versa;
and
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| (f) |
(f)a
reference to “approval”, “authorization”, “consent”, “designation” or
“notice” means written approval, authorization, consent, designation or
notice unless specifically indicated
otherwise.
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1.3
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Date
for Any Action
|
In
the
event that any date on which any action is required to be taken hereunder by
any
of the parties hereto is not a Business Day in the place where the action is
required to be taken, such action shall be required to be taken on the next
succeeding day which is a Business Day at such place, unless otherwise agreed
to.
-5-
Currency
All
sums
of money which are referred to in this Agreement are expressed in lawful money
of Canada unless otherwise specified.
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1.4
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Accounting
Principles
|
Whenever
in this Agreement reference is made to generally accepted accounting principles,
such reference shall be deemed to be to the Canadian generally accepted
accounting principles from time to time approved by the Canadian Institute
of
Chartered Accountants, or any successor thereto, applicable as at the date
on
which a calculation is made or required to be made in accordance with generally
accepted accounting principles.
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1.5
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Appendix
|
The
attached Appendix I, entitled “Plan of Arrangement”, shall be deemed to be
incorporated into and form part of this Agreement.
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1.6
|
Entire
Agreement
|
This
Agreement, together with the appendices, agreements and other documents herein
or therein referred to, constitutes the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, among
the
parties with respect to the subject matter hereof.
ARTICLE 2
- EFFECTIVE DATE OF ARRANGEMENT
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2.1
|
Arrangement
|
Rubicon,
Paragon, CopperCo and Africo agree to effect the Arrangement pursuant to the
provisions of sections 288 to 299 of the BCBCA and section 192 of the CBCA
on
the terms and subject to the conditions contained in this Agreement and the
Plan
of Arrangement.
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2.2
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Effective
Time of Arrangement
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The
Arrangement shall become effective at 12:01 a.m. on the Effective
Date.
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2.3
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Commitment
to Effect Arrangement
|
Subject
to satisfaction of the terms and conditions of this Agreement and termination
pursuant to Article 7, the parties shall each use all reasonable efforts
and do all things reasonably required to cause the Arrangement to become
effective on the Effective Date and, in conjunction therewith, to cause the
transactions contemplated by the Plan of Arrangement to be completed on or
prior
to the Effective Date. Without limiting the generality of the foregoing, the
Applicants (as defined in Section 4.6) shall proceed forthwith to apply for
the Interim Order and, upon obtainment thereof, Rubicon shall call the Rubicon
Meeting and mail the Circular to the Rubicon Shareholders and Africo shall
call
the Africo Meeting.
-6-
Filing
of
Final Order
Subject
to the rights of termination contained in Article 7 hereof, upon the
Rubicon Shareholders and the Africo Shareholders each approving the Arrangement
by Special Resolution in accordance with the provisions of the Interim Order
and
the BCBCA, the Applicants obtaining the Final Order and the other conditions
contained in Article 5 hereof being satisfied or waived, Rubicon, Paragon,
CopperCo and Africo shall file a copy of the Final Order together with such
other documents as may be required to be filed pursuant to sections 288 to
299
of the BCBCA and section 192 of the CBCA in order to make the Arrangement
effective on the Effective Date. Upon the Arrangement becoming effective,
Rubicon, Paragon, CopperCo and Africo shall exchange such other documents as
may
be necessary or desirable in connection with the completion of the transactions
contemplated by this Agreement and the Plan of Arrangement.
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2.4
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United
States Section 3(a)(10)
Exemption
|
The
parties agree that the Arrangement will be carried out with the intention that
all securities issued on completion of the Arrangement to Securityholders of
Rubicon, Africo, CopperCo or Paragon who are residents of the United States
will
be issued by Rubicon, Paragon and CopperCo in reliance on the exemption from
the
registration requirements of the 1933 Act provided by Section 3(a)(10) of the
1933 Act (the “Section
3(a)(10) Exemption”).
In
order to ensure the availability of the Section 3(a)(10) Exemption, the parties
agree that the Arrangement will be carried out on the following
basis;
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(a)
|
the
Arrangement will be subject to the approval of the
Court;
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(b)
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the
Court will be advised as to the intention of the parties to rely
on the
Section 3(a)(10) Exemption prior to the
Hearing;
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(c)
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the
Court will be required to satisfy itself as to the fairness of the
Arrangement;
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(d)
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the
Final Order will expressly state that the Arrangement is approved
by the
Court as being fair to the Rubicon Securityholders and the Africo
Securityholders to whom securities will be
issued;
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(e)
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Rubicon
and Africo will ensure that each Securityholder entitled to receive
securities on completion of the Arrangement will be given adequate
notice
advising them of their right to attend the Hearing and providing
them with
sufficient information necessary for them to exercise that
right;
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(f)
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the
Rubicon Shareholders and the Africo Shareholders will
be advised that the securities issued in the Plan of Arrangement
have not
been registered under the 1933 Act and will be issued by Rubicon,
Paragon
and CopperCo in reliance on the exemption from the registration
requirements of the 1933 Act provided by Section 3(a)(10) of the 1933
Act and may be subject to restrictions on resale under the securities
laws
of the United States, including, as applicable, Rules 144 and 145
under
the 1933 Act with respect to
affiliates;
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(g)
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the
Interim Order approving the Meetings to approve the Arrangement will
specify that each Securityholder will have the right to appear before
the
Court at the Hearing so long as such Securityholder enters an appearance
within a reasonable time; and
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(h)
|
the
Final Order shall include a statement to the following
effect:
|
“This
Order will serve as a basis of a claim to an exemption, pursuant to section
3(a)(10) of the United
States Securities Act of 1933
from the
registration requirements otherwise imposed by that Act, regarding the
distribution of securities of Rubicon, Paragon and CopperCo, pursuant to the
Plan of Arrangement.”
ARTICLE 3
- REPRESENTATIONS AND WARRANTIES
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3.1
|
Representations
and Warranties of Rubicon, Paragon, CopperCo
and Africo
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Each
of
the parties represents and warrants to each other as follows:
| (g) |
(a)in
the case of Rubicon and Africo, it is a corporation duly incorporated
or
continued and validly subsisting under the laws of the Province of
British
Columbia and has full capacity and authority to enter into this Agreement
and, subject to obtaining the requisite approvals contemplated hereby,
to
perform its obligations hereunder;
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| (h) |
(b)in
the case of Paragon and CopperCo, it is a corporation duly incorporated
and validly subsisting under the federal laws of Canada and has full
capacity and authority to enter into this Agreement and, subject to
obtaining the requisite approvals contemplated hereby, to perform its
obligations hereunder;
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| (i) |
(c)it
has taken all corporate actions necessary to authorize the execution
and
delivery of this Agreement, and this Agreement has been duly authorized
by
it;
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| (j) |
(d)neither
the execution and delivery of this Agreement nor the performance of
any of
its covenants and obligations hereunder will constitute a material
default
under, or be in any material contravention or breach
of:
|
(i) (i)any
provision of its constating documents or governing documents;
(ii) (ii)any
judgment, decree, order, law, statute, rule or regulation applicable to it;
or
(iii) (iii)any
agreement or instrument to which it is a party or by which it is bound;
| (k) |
(e)no
dissolution, winding-up, bankruptcy, liquidation or similar proceedings
have been commenced or are pending or proposed in respect of
it;
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| (l) |
(f)it
has the requisite organizational power and authority and all necessary
governmental approvals to own, lease and operate the properties and
assets
it currently owns, operates or holds under lease and to carry on its
business as it is now being conducted;
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| (m) |
(g)its
current and fully diluted share capital are as described in the
Circular;
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| (n) |
(h)it
does not have any liabilities or obligations other than such liabilities
or obligations disclosed in the Circular, including the financial
statements included therein;
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| (o) |
(i)other
than as disclosed in the Circular, there is no claim, action, proceeding
or investigation pending or, to its knowledge, threatened against it,
any
of its Subsidiaries, or any of its properties or assets before any
court,
arbitrator or governmental authority, which, if adversely determined,
could result in, individually or in the aggregate, a material adverse
change or prevent or materially delay the consummation of the Arrangement;
and
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| (p) |
(j)none
of the information supplied by it for inclusion in the Circular contains
any untrue statement of a material fact, or omits to state any material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
are
made, not misleading.
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ARTICLE 4
- COVENANTS
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4.1
|
Covenants
of Rubicon
|
Rubicon
hereby covenants and agrees with Paragon, CopperCo and Africo as
follows:
| (q) |
(a)until
the Effective Date, Rubicon and each of its Subsidiaries shall carry
on
their business in the ordinary course and shall not enter into any
transaction or incur any obligation or liability out of the ordinary
course of its business, except for transactions which have already
been
publicly disclosed and except as contemplated in this
Agreement;
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| (r) |
(b)except
for transactions which have already been publicly disclosed and except
as
contemplated in this Agreement, until the Effective Date, Rubicon shall
not, and shall not suffer or permit any of its Subsidiaries to, merge
into
or with, or amalgamate, consolidate or enter into any other corporate
reorganization with, any other corporation or Person or perform any
act or
enter into any transaction or negotiation which reasonably could be
expected to, directly or indirectly, interfere or be inconsistent with
the
completion of the Arrangement or other transactions contemplated by
this
Agreement;
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| (s) |
(c)Rubicon
shall, in a timely and expeditious manner, file the Circular in all
jurisdictions where the Circular is required to be filed by Rubicon
and
mail or
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| (t) |
(d)cause
to be mailed the Circular to the Shareholders, the directors of Rubicon
and the auditors of Rubicon and any other person who is entitled to
receive the Circular, all in accordance with the terms of the Interim
Order and applicable law;
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| (u) |
(e)Rubicon
shall perform the obligations required to be performed by it, and shall
enter into all agreements required to be entered into by it under this
Agreement and the Plan of Arrangement and shall do all such other acts
and
things as may be necessary or desirable in order to carry out and give
effect to the Arrangement and related transactions as described in
the
Circular and, without limiting the generality of the foregoing, Rubicon
shall seek:
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(i)
|
the
approval of the Rubicon Shareholders required for the implementation
of
the Arrangement;
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(ii)
|
the
Interim Order and the Final Order as provided for in section 4.6;
and
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(iii)
|
such
other consents, orders, rulings, approvals and assurances as counsel
may
advise are necessary or desirable for the implementation of the
Arrangement, including those referred to in
section 5.1;
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| (v) |
(f)Rubicon
will convene the Rubicon Meeting as soon as practicable and will solicit
proxies to be voted at the Rubicon Meeting in favour of the Arrangement
and all other resolutions referred to in the
Circular;
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| (w) |
(g)Rubicon
will use all reasonable efforts to cause each of the conditions precedent
set out in sections 5.1 and 5.2 to be complied with on or before the
Effective Date; and
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| (x) |
(h)Rubicon
will use all reasonable efforts to ensure that immediately prior to
the
Effective Date, Rubicon will not have any Rubicon Property Share
Requirements.
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4.2
|
Covenants
of Africo
|
Africo
hereby covenants and agrees with Rubicon, Paragon and CopperCo as
follows:
| (y) |
(a)until
the Effective Date, Africo and each of its Subsidiaries shall carry
on
their business in the ordinary course and shall not enter into any
transaction or incur any obligation or liability out of the ordinary
course of its business, (i) except for transactions which have
already been publicly disclosed; (ii) except as contemplated in this
Agreement; and (iii) except for:
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(A)
|
the
exercise by Africo of its right to acquire the remaining shares of
H & J Swanepoel Famille Trust s.p.r.l.;
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(B)
|
the
issuance by Africo of Africo Convertible Notes up to an aggregate
principal amount of $5 million in order to carry out the Bridge
Loan;
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-8-
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(C)
|
such
other additional equity financing that the Africo Board of Directors
may
approve; and
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(D)
|
such
other transactions as may unanimously be agreed upon by the Africo
Board
of Directors (including Rubicon’s representative on such
Board);
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| (z) |
(b)except
for transactions which have already been publicly disclosed and except
as
contemplated in this Agreement, until the Effective Date, Africo shall
not, and shall not suffer or permit any of its Subsidiaries to, merge
into
or with, or amalgamate, consolidate or enter into any other corporate
reorganization with, any other corporation or Person or perform any
act or
enter into any transaction or negotiation which reasonably could be
expected to, directly or indirectly, interfere or be inconsistent with
the
completion of the Arrangement or other transactions contemplated by
this
Agreement;
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| (aa) |
(c)Africo
shall, in a timely and expeditious manner, mail, deliver or cause to
be
mailed or delivered the Circular and all proxy and meeting materials
required by the BCBCA to the Africo Shareholders (and any other person
to
whom Africo may be required to deliver the Circular) all in accordance
with the terms of the Interim Order and applicable
law;
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| (bb) |
(d)Africo
shall perform the obligations required to be performed by it, and shall
enter into all agreements required to be entered into by it under this
Agreement and the Plan of Arrangement and shall do all such other acts
and
things as may be necessary or desirable in order to carry out and give
effect to the Arrangement and related transactions as described in
the
Circular and, without limiting the generality of the foregoing, Africo
shall seek:
|
(i) (i)the
approval of the Africo Shareholders required for the implementation of the
Arrangement; and
(ii) (ii)such
other consents, orders, rulings, approvals and assurances as counsel may advise
are necessary or desirable for the implementation of the Arrangement, including
those referred to in section 5.1;
| (cc) |
(e)Africo
will convene the Africo Meeting as soon as practicable; and
|
| (dd) |
(f)Africo
will use all reasonable efforts to cause each of the conditions precedent
set out in sections 5.1 and 5.2 to be complied with on or before the
Effective Date.
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|
4.3
|
Covenants
of Paragon
|
Paragon
hereby covenants and agrees with Rubicon, CopperCo and Africo as
follows:
| (ee) |
(a)except
as otherwise contemplated in this Agreement, until the Effective Date,
Paragon shall not merge, and shall not suffer or permit any of its
Subsidiaries to,
|
| (ff) |
(b)merge
into or with, or amalgamate or consolidate, or enter into any other
corporate reorganization with, any other corporation or Person, perform
any act or enter into any transaction or negotiation which reasonably
could be expected to, directly or indirectly, interfere or be inconsistent
with the completion of the Arrangement or other transactions contemplated
by this Agreement;
|
| (gg) |
(c)Paragon
shall perform the obligations required to be performed by it, and shall
enter into all agreements required to be entered into by it under this
Agreement and the Plan of Arrangement and shall do all such other acts
and
things as may be necessary or desirable in order to carry out and give
effect to the Arrangement and related transactions as described in
the
Circular and, without limiting the generality of the foregoing, Paragon
shall seek and cooperate with Rubicon, CopperCo and Africo in
seeking:
|
(i) (i)the
Interim Order and the Final Order as provided for in section 4.6,
and
(ii) (ii)such
other consents, orders, rulings, approvals and assurances as counsel may advise
are necessary or desirable for the implementation of the Arrangement, including
those referred to in section 5.1; and
| (hh) |
(d)Paragon
will use all reasonable efforts to cause each of the conditions precedent
set out in sections 5.1 and 5.2 to be complied with on or before the
Effective Date.
|
|
4.4
|
Covenants
of CopperCo
|
CopperCo
hereby covenants and agrees with Rubicon, Paragon and Africo as
follows:
| (ii) |
(a)except
as otherwise contemplated in this Agreement or as may be reasonably
required to carry out the spirit and intent of the Agreement, until
the
Effective Date, CopperCo shall not merge, and shall not suffer or permit
any of its Subsidiaries to, merge into or with, or amalgamate or
consolidate, or enter into any other corporate reorganization with,
any
other corporation or Person, perform any act or enter into any transaction
or negotiation which reasonably could be expected to, directly or
indirectly, interfere or be inconsistent with the completion of the
Arrangement or other transactions contemplated by this
Agreement;
|
| (jj) |
(b)CopperCo
shall perform the obligations required to be performed by it, and shall
enter into all agreements required to be entered into by it under this
Agreement and the Plan of Arrangement and shall do all such other acts
and
things as may be necessary or desirable in order to carry out and give
effect to the Arrangement and related transactions as described in
the
Circular and, without limiting the generality of the foregoing, CopperCo
shall seek and cooperate with Rubicon, Paragon and Africo in
seeking:
|
(i) (i)the
Interim Order and the Final Order as provided for in section 4.6,
and
(ii) (ii)such
other consents, orders, rulings, approvals and assurances as counsel may advise
are necessary or desirable for the implementation of the Arrangement, including
those referred to in section 5.1;
| (kk) |
(c)CopperCo
will use all reasonable efforts to cause each of the conditions precedent
set out in sections 5.1 and 5.2 to be complied with on or before the
Effective Date; and
|
| (ll) |
(d)the
Board of Directors of CopperCo existing immediately upon completion
of the
Arrangement shall consist of the directors of Africo who are elected
at
Africo’s 2006 Annual General Meeting, plus such other directors of Africo
as may be appointed following such annual general meeting and prior
to the
Effective Date.
|
|
4.5
|
Mutual
Tax-Related Covenants
|
Each
party covenants and agrees with each other party as follows:
| (mm) |
(a)in
the event that the condition precedent in Section 5.1(l) is
satisfied, that such party will not take any action, omit to take any
action or enter into any transaction that could cause the Plan of
Arrangement or any related transaction to be taxed in a manner
inconsistent with that provided for in the Tax Ruling without
(i) obtaining a supplementary tax ruling or an opinion of a
nationally recognized accounting firm or law firm that such actions,
omissions or transactions will not have such effect in respect of the
Tax
Ruling or the obtaining thereof and (ii) for a period of three years
after the Effective Date, obtaining the consent of each of Rubicon,
CopperCo, Paragon and Africo, such consent not to be unreasonably withheld
or delayed;
|
| (nn) |
(b)in
the event that the condition precedent in Section 5.1(l) is waived,
but it is agreed by the parties that as a condition of such waiver
Rubicon
shall obtain an opinion of a nationally recognized accounting firm
or law
firm, that such party will not take any action, omit to take any action
or
enter into any transaction that could cause the Plan of Arrangement
or any
related transaction to be taxed in a manner inconsistent with that
provided for in the opinion without (i) obtaining a supplementary
opinion of a nationally recognized accounting firm or law firm that
such
actions, omissions or transactions will not have such effect in respect
of
the opinion and (ii) for a period of three years after the Effective
Date, obtaining the consent of each of Rubicon, CopperCo, Paragon and
Africo, such consent not to be unreasonably withheld or
delayed;
|
| (oo) |
(c)to
file its tax returns and section 85 elections pursuant to the ITA and
to make adjustments to its capital account in accordance with the terms
of
the Plan of Arrangement following the Effective Date;
and
|
| (pp) |
(d)to
cooperate in the preparation and filing, in the form and within the
time
limits prescribed in the ITA, of all elections under the ITA as
contemplated in the Plan
|
| (qq) |
(e)of
Arrangement and this Agreement (and any similar elections that may
be
required under applicable provincial or foreign legislation). Where
an
agreed amount is to be included in any such election, such amount will
be
within the range contemplated by the ITA (or applicable provincial
or
foreign legislation) and will be the amount contemplated by the Plan
of
Arrangement and this Agreement, such that the particular transfer will
take place on an income tax-deferred
basis.
|
|
4.6
|
Interim
Order and Final Order
|
Rubicon,
Paragon and CopperCo (collectively the “Applicants”) covenant and agree that
they will, as soon as reasonably practicable, apply to the Court pursuant to
section 291 of the BCBCA for the Interim Order. Africo covenants and agrees
that it shall support the Applicants at the application for the Interim Order
and the Hearing as a respondent. The Interim Order shall provide for, among
other things, the calling and holding of the Meetings for the purpose of, among
other matters, considering and, if deemed advisable, approving the Arrangement.
The Applicants covenant and agree that, if the approval of the Arrangement
by
the Rubicon and Africo Shareholders as set forth in the Interim Order is
obtained by Rubicon and Africo, as soon as practicable thereafter the Applicants
will take the necessary steps to submit the Arrangement to the Court and apply
for the Final Order in such fashion as the Court may direct.
ARTICLE 5
-
CONDITIONS
|
5.1
|
Mutual
Conditions Precedent
|
The
respective obligations of each party hereto to complete the transactions
contemplated by this Agreement, and the obligation of the parties to file a
copy
of the Final Order and such other documents as may be required to be filed
pursuant to sections 288 to 299 of the BCBCA and section 192 of the CBCA in
order to give effect to the Arrangement, shall be subject to the satisfaction,
on or before the Effective Date, of the following conditions:
| (rr) |
(a)the
Interim Order shall have been granted in form and substance satisfactory
to Rubicon and Africo, acting reasonably;
|
| (ss) |
(b)the
Arrangement, with or without amendment, shall have been approved at
the
Meetings by the Rubicon and Africo Shareholders in accordance with
the
Interim Order;
|
| (tt) |
(c)the
Final Order shall have been granted in form and substance satisfactory
to
Rubicon and Africo, acting reasonably;
|
| (uu) |
(d)the
TSX and AMEX will have conditionally accepted the Arrangement and
confirmed that the New Rubicon Common Shares have been conditionally
listed on the TSX and AMEX, and the TSX will have confirmed that the
CopperCo Common Shares and the Rubicon Series 2 Special Shares have
been
conditionally listed on the TSX;
|
| (vv) |
(e)the
TSX-V will have confirmed that the Paragon Common Shares and the Rubicon
Series 1 Special Shares have been conditionally listed on Tier 1 or
Tier 2
of the TSX-V;
|
| (ww) |
(f)all
other consents, orders, rulings, approvals and assurances, including
regulatory and judicial approvals and orders required, necessary or
desirable for the Arrangement to become effective shall have been obtained
or received from the Persons, authorities or bodies having jurisdiction
in
the circumstances, in a form acceptable to Rubicon and Africo, acting
reasonably;
|
| (xx) |
(g)notices
of dissent shall not have been delivered by Rubicon Shareholders holding
such number of Rubicon Common Shares that, in Rubicon’s opinion,
completion of the Arrangement would not be in the best interests of
Rubicon;
|
| (yy) |
(h)notices
of dissent shall not have been delivered by Africo Shareholders holding
such number of Africo Shares that, in Africo’s opinion, completion of the
Arrangement would not be in the best interests of
Africo;
|
| (zz) |
(i)Paragon
shall have completed the Paragon Financing, subject only to any
requirement under the terms of the Financing to complete the
Arrangement;
|
| (aaa) |
(j)CopperCo
or Africo shall have completed the CopperCo/Africo Financing for gross
proceeds of at least $75 million, or such lesser amount as may be
determined by the Board of CopperCo or Africo, as the case may be,
subject
only to any requirement under the terms of the CopperCo/Africo Financing
to complete the Arrangement;
|
| (bbb) |
(k)any
Person who will hold, together with any Associates of such Person,
immediately before or immediately after completion of the Arrangement,
10%
or more of the outstanding New Rubicon Common Shares, Paragon Common
Shares or CopperCo Common Shares shall have executed a certificate
or
other document representing that such Person and its Associates will
not
sell any such shares as part of the same series of transactions comprising
the Arrangement;
|
| (ccc) |
(l)the
Tax Ruling shall have been obtained, in form and substance satisfactory
to
Rubicon,
Africo and their counsel and the auditors of Africo and CopperCo, acting
reasonably;
|
| (ddd) |
(m)there
shall not be in force any order or decree restraining or enjoining
the
consummation of the transaction contemplated by this Agreement;
and
|
| (eee) |
(n)this
Agreement shall not have been terminated under Article 7.
|
Except
for the conditions set forth in subsections 5.1(a), (b), (c) and (k), any
of the foregoing conditions may be waived.
-9-
Conditions
and Obligations of Each Party
The
obligation of each of Rubicon, Paragon, CopperCo and Africo to complete the
transactions contemplated by this Agreement is further subject to the condition,
which may be waived by any such party without prejudice to its right to rely
on
any other condition in favour of such party, that each and every one of the
covenants of the other party hereto to be performed on or before the Effective
Date pursuant to the terms of this Agreement shall have been duly performed
by
such party and that, except as affected by the transactions contemplated by
this
Agreement, the representations and warranties of the other party hereto shall
be
true and correct in all material respects as at the Effective Date, with the
same effect as if such representations and warranties had been made at and
as of
such time.
ARTICLE 6
-
INDEMNITIES
|
6.1
|
Indemnity
by Rubicon
|
Rubicon
will indemnify and hold harmless each other party and its Representatives
against any Loss suffered or incurred by any such Indemnified Person resulting
from:
| (fff) |
(a)a
breach of a representation or warranty herein or pursuant hereto by
Rubicon as if made without any qualification as to the knowledge of
Rubicon; and
|
| (ggg) |
(b)a
breach of a covenant herein or pursuant hereto by
Rubicon.
|
|
6.2
|
Indemnity
by Paragon
|
Paragon
will indemnify and hold harmless each other party and its Representatives
against any Loss suffered or incurred by any such Indemnified Person resulting
from:
| (hhh) |
(a)a
breach of a representation or warranty herein or pursuant hereto by
Paragon as if made without any qualification as to the knowledge of
Paragon; and
|
| (iii) |
(b)a
breach of a covenant herein or pursuant hereto by
Paragon.
|
|
6.3
|
Indemnity
by CopperCo
|
CopperCo
will indemnify and hold harmless each other party and its Representatives
against any Loss suffered or incurred by any such Indemnified Person resulting
from:
| (jjj) |
(a)a
breach of a representation or warranty herein or pursuant hereto by
CopperCo as if made without any qualification as to the knowledge of
CopperCo; and
|
| (kkk) |
(b)a
breach of a covenant herein or pursuant hereto by
CopperCo.
|
| (lll) |
(c)Indemnity
by Africo
|
Africo
will indemnify and hold harmless each other party and its Representatives
against any Loss suffered or incurred by any such Indemnified Person resulting
from:
| (mmm) |
(d)a
breach of a representation or warranty herein or pursuant hereto by
Africo
as if made without any qualification as to the knowledge of Africo;
and
|
| (nnn) |
(e)a
breach of a covenant herein or pursuant hereto by
Africo.
|
|
6.4
|
Tax
Effect
|
If
any
Indemnity Payment received by an Indemnified Person would constitute income
for
tax purposes to such Indemnified Person, the Indemnifier will pay a Tax Gross-Up
to the Indemnified Person at the same time and on the same terms, as to interest
and otherwise, as the Indemnity Payment. The amount of any Loss for which
indemnification is provided will be adjusted to take into account any tax
benefit realizable by the Indemnified Person or any of its Affiliates by reason
of the Loss for which indemnification is so provided or the circumstances giving
rise to such Loss. For purposes of this Section, any tax benefit will be taken
into account at such time as it is received by the Indemnified Person or its
Affiliate. Notwithstanding the foregoing provisions of this Section, if an
Indemnity Payment would otherwise be included in the Indemnified Person’s
income, the Indemnified Person covenants and agrees to make all such elections
and take such actions as are available, acting reasonably, to minimize or
eliminate Taxes with respect to the Indemnity Payment.
ARTICLE 7
- AMENDMENT AND TERMINATION
|
7.1
|
Amendment
|
Subject
to any mandatory applicable restrictions under the BCBCA, the CBCA or the Final
Order, this Agreement may, at any time and from time to time before or after
the
holding of the Meeting, but not later than the Effective Date, be amended by
written agreement of the parties hereto without, subject to applicable law,
further notice to or authorization on the part of the Rubicon Shareholders
or
the Africo Shareholders. Without limiting the generality of the foregoing,
any
such amendment may:
| (ooo) |
(a)change
the time for performance of any of the obligations or acts of the
parties;
|
| (ppp) |
(b)waive
any inaccuracies or modify any representation contained herein or in
any
document to be delivered pursuant hereto;
|
| (qqq) |
(c)waive
compliance with or modify any of the covenants herein contained or
waive
or modify performance of any of the obligations of the parties;
or
|
| (rrr) |
(d)make
such alterations in this Agreement as the parties may consider necessary
or desirable in connection with the Interim Order or in order to ensure
the tax efficacy of the Arrangement.
|
(sss) 7.2Termination
by Rubicon
Notwithstanding
any other provision to the contrary herein, this Agreement may, at any time
before or after the holding of the Meetings but prior to the Effective Date,
be
unilaterally terminated by the Board of Directors of Rubicon without further
notice to, or action on the part of, the Rubicon Shareholders or the Africo
Shareholders for whatever reasons the Board of Directors of Rubicon may consider
appropriate, and nothing expressed or implied herein or in the Plan of
Arrangement shall be construed as fettering the absolute discretion of the
Board
of Directors of Rubicon to elect to terminate this Agreement and discontinue
efforts to effect the Arrangement for whatever reasons it may consider
appropriate.
|
7.3
|
Termination
by Africo
|
Notwithstanding
any other provision to the contrary herein, this Agreement may, at any time
before or after the holding of the Meetings but prior to the Effective Date,
be
unilaterally terminated by the Board of Directors of Africo without further
notice to, or action on the part of, the Africo Shareholders or the Rubicon
Shareholders for whatever reasons the Board of Directors of Africo may consider
appropriate, and nothing expressed or implied herein or in the Plan of
Arrangement shall be construed as fettering the absolute discretion of the
Board
of Directors of Africo to elect to terminate this Agreement and discontinue
efforts to effect the Arrangement for whatever reasons it may consider
appropriate.
|
7.4
|
Termination
on Non-Occurrence of Effective
Date
|
This
Agreement shall terminate without any further action by the parties if the
Effective Date shall not have occurred on or before December 15, 2006, unless
otherwise agreed by the parties.
|
7.5
|
Effect
of Termination
|
Upon
the
termination of this Agreement pursuant to sections 7.2, 7.3 or 7.4 hereof,
except for the obligations set out at section 11.6, no party shall have any
liability or further obligation to any other party hereunder.
ARTICLE 8
-
PARAGON FINANCING
The
parties hereby acknowledge and agree that Paragon proposes to carry out a
non-brokered private placement financing (the “Paragon Financing”) in connection
with the Arrangement, and that certain securities to be issued by Paragon under
the Paragon Financing will be exchanged for Paragon Common Shares under the
Arrangement, all as more particularly described in the Plan of Arrangement.
The
parties further acknowledge and agree that the final terms and conditions of
the
Paragon Financing may be negotiated by Paragon, subject to acceptance by the
TSX
or the TSX - V as applicable.
-10-
-
COPPERCO/AFRICO FINANCING
The
parties hereby acknowledge and agree that CopperCo, or alternatively Africo,
proposes to carry out a brokered private placement financing (the
“CopperCo/Africo Financing”) in connection with the Arrangement, and that
certain securities to be issued by Africo or CopperCo under the CopperCo/Africo
Financing will be exchanged for CopperCo Common Shares under the Arrangement,
all as more particularly described in the Plan of Arrangement. The parties
further acknowledge and agree that the final terms and conditions of the
CopperCo/Africo Financing may be negotiated by Africo or CopperCo, subject
to
acceptance by the TSX.
ARTICLE 9
- MERGER
|
9.1
|
Merger
of Conditions
|
The
conditions set out in sections 5.1 and 5.2 shall be conclusively deemed to
have been satisfied, waived or released on the Effective Date.
|
9.2
|
Merger
of Representations, Warranties and
Covenants
|
The
provisions of sections 3.1, 4.1, 4.2, 4.3, 4.4, 4.5 and 4.6 shall be
conclusively deemed to have been satisfied in all respects on the Effective
Date
and shall accordingly merge in and not survive the effectuation of the
Arrangement.
ARTICLE 10
- GENERAL
|
10.1
|
Notices
|
All
notices which may be or are required to be given pursuant to any provision
of
this Agreement shall be given or made in writing and shall be deemed to be
validly given if served personally or by facsimile, in each case to the
attention of the senior officer at the following addresses or at such other
addresses as shall be specified by the parties by like notice:
If
to Rubicon:
Rubicon
Minerals Corporation
Xxxxx
0000, 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx,
XX X0X 0X0
Attention:
Xxxxx X. Xxxxxxx, President
Facsimile:
(000) 000-0000
-11-
with
a copy to:
Xxxxx
& Company LLP
0000
Xxxx
Xxxxx
000
Xxxxxxx Xxxxxx
Xxxxxxxxx,
XX X0X 0X0
Attention:
Xxxxx X. Xxxx
Facsimile:
(000) 000-0000
If
to Paragon:
Paragon
Minerals Corporation
Xxxxx
0000, 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx,
XX X0X 0X0
Attention:
President
Facsimile:
(000) 000-0000
with
a copy to:
Xxxxx
& Company LLP
0000
Xxxx
Xxxxx
000
Xxxxxxx Xxxxxx
Xxxxxxxxx,
XX X0X 0X0
Attention:
Xxxxx X. Xxxx
Facsimile:
(000) 000-0000
If
to Africo or CopperCo:
Africo
Resources Ltd./CopperCo Resource Corp. (as applicable)
c/o
Getz
Prince Xxxxx
1810
-
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
XX X0X 0X0
Attention:
Xxxxx Xxxxxxxxxxxxxx, Chairman
Facsimile:
(000) 000-0000
With
a copy to:
Xxxx
Prince Xxxxx
1810
-
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
XX X0X 0X0
Attention:
Xxxx Xxxxx
Facsimile:
(000) 000-0000
Any
notice that is delivered shall be deemed to be delivered on the date of delivery
to such address if delivered on a Business Day prior to 5:00 p.m. (local time
at
the place of receipt) or on
-12-
the
next
Business Day if delivered after 5:00 p.m. or on a non-Business Day. Any notice
delivered by facsimile transmission shall be deemed to be delivered on the
date
of transmission if delivered on a Business Day prior to 5:00 p.m. (local time
at
the place of receipt) or the next Business Day if delivered after 5:00 p.m.
or
on a non-Business Day.
|
10.2
|
Assignment
|
No
party
may assign its rights or obligations under this Agreement or the Arrangement
without the prior written consent of the other parties hereto.
|
10.3
|
Binding
Effect
|
This
Agreement and the Plan of Arrangement shall be binding upon and shall enure
to
the benefit of the parties hereto and their respective successors and permitted
assigns.
|
10.4
|
Waiver
|
Any
waiver or release of any of the provisions of this Agreement, to be effective,
must be in writing executed by the party or parties granting the
same.
|
10.5
|
Governing
Law
|
This
Agreement shall be governed by and construed in accordance with the laws of
the
Province of British Columbia and the laws of Canada applicable therein and
shall
be treated in all respects as a British Columbia contract.
|
10.6
|
Expenses
|
Except
as
may be agreed to separately among the parties or between certain parties, all
expenses incurred in connection with the transactions described and contemplated
by this Agreement shall be borne and allocated as follows:
|
(a)
|
except
as otherwise set out below, each party shall be responsible for the
fees
and disbursements (including taxes) of its professional and other
service
providers;
|
|
(b)
|
Africo
(and, after the Effective Date, CopperCo) shall be responsible for
paying,
or reimbursing Rubicon for, the TSX listing application fee and listing
fee for CopperCo (and in this regard, it is acknowledged that Rubicon
has
paid the listing application fee of $10,700 (including GST) and that
Africo (or, after the Effective Date, CopperCo) will pay the listing
fee);
and
|
|
(c)
|
Africo
(and, after the Effective Date, CopperCo) shall reimburse Rubicon
for all
audit, accounting and legal fees and disbursements (including taxes)
incurred by Rubicon’s legal counsel and auditors in connection
with:
|
-13-
|
(d)
|
the
incorporation and organization of CopperCo and all other legal services
provided to CopperCo, including preparing and pursuing the TSX listing
application of CopperCo, up to a maximum of $40,000;
and
|
|
(i)
|
preparing
financial statements and providing accounting and auditing services
for
CopperCo, up to a maximum of
$10,000,
|
it
being
acknowledged that nothing in this clause (c) shall be interpreted as
requiring Africo (or, after the Effective Date, CopperCo) to reimburse Rubicon
for any costs incurred by Rubicon for tax advice rendered to
Rubicon.
|
10.7
|
Counterparts
|
This
Agreement may be executed by facsimile and in one or more counterparts, each
of
which shall be deemed an original but all of which together shall constitute
one
and the same instrument.
IN
WITNESS WHEREOF
the
parties hereto have executed this Agreement as of the date first written
above.
RUBICON
MINERALS CORPORATION
|
Per:
|
__________________________________________
|
Authorized
Signatory
PARAGON
MINERALS CORPORATION
|
Per:
|
__________________________________________
|
Authorized
Signatory
COPPERCO
RESOURCE CORP.
|
Per:
|
__________________________________________
|
Authorized
Signatory
AFRICO
RESOURCES LTD.
|
Per:
|
__________________________________________
|
Authorized
Signatory
-14-
Appendix
I to the Arrangement Agreement made as of the 6th
day of July, 2006,
amended
and restated as of the 8th
day of August, 2006, and further amended
and
restated as of the 29th
day of September among
Rubicon
Minerals Corporation, Paragon Minerals Corporation,
CopperCo
Resource Corp. and Africo Resources Ltd.
PLAN
OF ARRANGEMENT UNDER SECTIONS 288 - 299
OF
THE BUSINESS
CORPORATIONS ACT
(BRITISH COLUMBIA)
AND
UNDER SECTION 192 OF THE CANADA
BUSINESS CORPORATIONS ACT
ARTICLE 1
- INTERPRETATION
|
1.1
|
Definitions
|
In
this
Plan of Arrangement, unless there is something in the subject matter or context
inconsistent therewith, the following capitalized words and terms shall have
the
following meanings:
|
(a)“Africo”
means Africo Resources Ltd., a corporation incorporated under the
BCBCA;
|
|
(b)“Africo
Compensation Option”
means a compensation option or options to be granted by Africo and
CopperCo to the agent or agents under the CopperCo/Africo Financing,
which
compensation option shall automatically convert, under this Plan of
Arrangement, into the CopperCo Broker
Warrants;
|
|
(c)“Africo
Convertible Notes”
means, collectively, the Africo Convertible Share Notes and the Africo
Convertible Unit Notes;
|
|
(d)“Africo
Convertible Share Notes”
means convertible promissory notes issued by Africo pursuant to the
Bridge
Loan, with such notes being payable on or before December 31, 2006,
and
the amounts outstanding under the notes being convertible at the lender’s
option, and in accordance with their terms, into common shares of Africo
or CopperCo at a price equal to 85% of the price at which such common
shares are offered in a Qualifying
Financing;
|
|
(e)“Africo
Convertible Unit Notes”
means convertible promissory notes issued by Africo, with such notes
being
payable on or before December 31, 2006, and the amounts outstanding
under
the notes being convertible at the lender’s option, and in accordance with
their terms, into units of CopperCo as are offered pursuant to the
Qualifying Financing at a price of $4.00 per unit, each unit consisting
of
one CopperCo Common Share and one-half of one CopperCo
Warrant;
|
|
(f)“Africo
Meeting”
means the special meeting of the Africo Shareholders to be held to
consider, among other matters, the Arrangement, and any postponement
or
adjournment thereof;
|
|
(g)“Africo
Options”
means the outstanding stock options of Africo entitling the holders
to
purchase Africo Shares in accordance with the terms and conditions
thereof;
|
|
(h)“Africo
Shareholder”
means a holder of Africo Shares;
|
|
(i)“Africo
Shares”
means the common shares without par value in the capital of Africo
as
currently constituted;
|
|
(j)“Africo
Subscription Receipts”
means subscription receipts which may be sold by Africo and CopperCo
pursuant to the CopperCo/Africo Financing, with each Africo Subscription
Receipt entitling the holder to receive, upon deemed exercise and for
no
additional consideration, one CopperCo Common Share and one-half of
one
CopperCo Warrant;
|
|
(k)“Aggregate
Exchange Trading Price”
means the amount equal to the aggregate of the results obtained when
the
Trading Price of a New Rubicon Common Share and a Common Share of Paragon
or CopperCo is multiplied by the respective Exchange Number for the
company issuing the share;
|
|
(l)“AMEX”
means the American Stock Exchange;
|
|
(m)“Arrangement”
means the statutory arrangement involving Rubicon, the Rubicon
Shareholders, Paragon, CopperCo, Africo and the Africo Shareholders
proposed under the provisions of sections 288 to 299 of the BCBCA and
section 192 of the CBCA, on the terms and conditions set out in this
Plan
of Arrangement or any amendment or variation thereto made in accordance
with the terms of the Arrangement
Agreement;
|
|
(n)“Arrangement
Agreement”
means the arrangement agreement made as of the 6th
day of July 2006 between Rubicon, Paragon, CopperCo and Africo to which
this Plan of Arrangement is attached as Appendix I, as the same may
be
supplemented or amended from time to
time;
|
|
(o)“Assignment
and Assumption Agreement”
means the assignment and assumption agreement among Rubicon and Paragon
which more particularly describes the Paragon Transferred Assets which
are
to be transferred from Rubicon to
Paragon;
|
|
(p)“BCBCA”
means the Business
Corporations Act
(British Columbia);
|
|
(q)“Business
Day”
means any day, which is not a Saturday or a Sunday, or a statutory
holiday
in British Columbia;
|
|
(r)“Bridge
Loan”
means the bridge loan made by certain current Africo Shareholders and
other investors to Africo in the principal amount of up to $5 million
by
way of issuance of Africo Convertible
Notes;
|
|
(s)“CBCA”
means the Canada Business Corporations
Act;
|
|
(t)“Circular”
means the definitive form, together with any amendments thereto, of
the
management proxy circular of Rubicon to be prepared and sent to the
Rubicon Shareholders in connection with the Rubicon
Meeting;
|
|
(u)“Compensation
Options”
means the compensation options issued by Rubicon on August 16, 2005,
with
each option entitling the holder to purchase a unit consisting of one
Rubicon Common Share and one-half of a warrant to purchase an additional
Rubicon Common Share;
|
|
(v)“CopperCo”
means CopperCo Resource Corp., a corporation incorporated under the
CBCA
in order to facilitate the Arrangement;
|
|
(w)“CopperCo
Broker Units”
means units issuable on exercise of the CopperCo Broker Warrants, with
each unit consisting of one CopperCo Common Share and one-half of one
CopperCo Broker Unit Warrant;
|
|
(x)“CopperCo
Broker Unit Warrants”
means warrants of CopperCo which shall be exercisable to purchase one
CopperCo Common Share at an exercise price of $5.00 for a period of
18
months after the date of closing of the CopperCo/Africo Financing,
provided that if the closing price of the CopperCo Common Shares on
the
TSX is equal to or greater than $6.15 per common share for a period
of 20
consecutive trading days (irrespective of whether the CopperCo Common
Shares have traded on a given day within such 20 day period) any time
after the date which is 6 months after the date of closing of the
CopperCo/Africo Financing, CopperCo may accelerate the expiry date
of the
CopperCo Broker Unit Warrants by giving notice to the holders thereof
and
in such case, the CopperCo Broker Unit Warrants will expire on the
30th
day after the date on which such notice is given by
CopperCo;
|
|
(y)“CopperCo
Broker Warrants”
means the non-transferable broker warrants of CopperCo which shall
be
issued on the automatic conversion of the Africo Compensation Option
and
which shall be exercisable to purchase that number of CopperCo Broker
Units which is equal to 6% of the number of Africo Subscription Receipts
sold under the CopperCo/Africo Financing at an exercise price of $4.00
per
unit for a period of 18 months after the date of closing of the
CopperCo/Africo Financing, provided that if the closing price of the
CopperCo
|
|
(z)Common
Shares on the TSX is equal to or greater than $6.15 per common share
for a
period of 20 consecutive trading days (irrespective of whether the
CopperCo Common Shares have traded on a given day within such 20 day
period) any time after the date which is 6 months after the date of
closing of the CopperCo/Africo Financing, CopperCo may accelerate the
expiry date of the CopperCo Broker Warrants by giving notice to the
holders thereof and in such case, the CopperCo Broker Warrants will
expire
on the 30th
day after the date on which such notice is given by
CopperCo;
|
|
(aa)“CopperCo
Commitment”
means the covenant of CopperCo described in section 3.2 to issue
CopperCo Common Shares to the holders of Rubicon Warrants who exercise
their rights thereunder after the Effective Date to receive Rubicon
Common
Shares, CopperCo Common Shares and Paragon Common
Shares;
|
|
(bb)“CopperCo
Common Shares”
means the common shares in the capital of CopperCo which CopperCo is
authorized to issue as the same are constituted on the date hereof
and
which are to be issued under the Arrangement (i) to holders of
Rubicon Series 2 Special Shares in exchange for such Rubicon
Series 2 Special Shares, (ii) to holders of Africo Subscription
Receipts on the deemed exercise of the Africo Subscription Receipts,
and
(iii) to the Africo Shareholders other than Rubicon in exchange for
the Remaining Africo Shares;
|
|
(cc)“CopperCo
Convertible Notes”
means, collectively, the CopperCo Convertible Share Notes and the CopperCo
Convertible Unit Notes;
|
|
(dd)“CopperCo
Convertible Share Notes”
means convertible promissory notes of CopperCo which will be issued
to the
holders of the Africo Convertible Share Notes in exchange for the Africo
Convertible Share Notes pursuant to the Plan of Arrangement, with such
CopperCo Convertible Share Notes being payable on or before December
31,
2006, and the amounts outstanding under the notes being convertible
at the
lender’s option, and in accordance with their terms, into CopperCo Common
Shares at a price of $3.40 per share;
|
|
(ee)CopperCo
Convertible Unit Notes”
means convertible promissory notes of CopperCo which will be issued
to the
holders of the Africo Convertible Unit Notes in exchange for the Africo
Convertible Unit Notes pursuant to the Plan of Arrangement, with such
CopperCo Convertible Unit Notes being payable on or before December
31,
2006, and the amounts outstanding under the notes being convertible
at the
lender’s option, and in accordance with their terms, into units at a price
of $4.00 per unit, with each unit consisting of one CopperCo Common
Share
and one-half of one CopperCo Warrant;
|
|
(ff)“CopperCo
Net Fair Market Value”
means an amount determined by the Board of Directors of Rubicon as
of the
Effective Date, as being an amount equal to the fair market value of
the
CopperCo Transferred Assets;
|
|
(gg)“CopperCo
Note”
means the demand, non-interest bearing promissory note to be issued
by
CopperCo to Rubicon having a principal amount and aggregate fair market
value equal to the CopperCo Net Fair Market
Value;
|
|
(hh)“CopperCo
Options”
means the rights (whether or not vested) to purchase CopperCo Common
Shares which will be issued pursuant to the Plan of
Arrangement;
|
|
(ii)“CopperCo
Preferred Shares”
means the special preferred shares of CopperCo which are to be issued
under the Arrangement to Rubicon in exchange for the CopperCo Transferred
Assets, which will have a value equal to the CopperCo Net Fair Market
Value and having the terms and conditions set out in Schedule B to
this Plan of Arrangement;
|
|
(jj)“CopperCo
Transferred Assets”
means the Rubicon Africo Shares, which are to be transferred by Rubicon
to
CopperCo pursuant to the Plan of
Arrangement;
|
|
(kk)“CopperCo
Warrants”
means common share purchase warrants of CopperCo, each entitling the
holder to purchase one CopperCo Common Share at a price of $5.00 per
share
for a term of 18 months from the date of closing of the CopperCo/Africo
Financing, provided that if the closing price of the CopperCo Common
Shares on the TSX is equal to or greater than $6.15 per common share
for a
period of 20 consecutive trading days (irrespective of whether the
CopperCo Common Shares have traded on a given day within such 20 day
period) any time after the date which is 6 months after the date of
the
closing of the CopperCo/Africo Financing, CopperCo may accelerate the
expiry date of the CopperCo Warrants by giving notice to the holders
thereof, and in such case the CopperCo Warrants will expire on the
30th
day after the date on which such notice is given by
CopperCo;
|
|
(ll)“Court”
means the Supreme Court of the Province of British
Columbia;
|
|
(mm)“Dissenting
Africo Shares”
means Africo Shares held by an Africo Dissenting Shareholder, as described
in Article 6;
|
|
(nn)“Dissenting
Rubicon Shares”
means Rubicon Common Shares held by a Rubicon Dissenting Shareholder,
as
described in Article 5;
|
|
(oo)“Dissenting
Shares”
means, collectively, Dissenting Rubicon Shares and Dissenting Africo
Shares;
|
|
(pp)“Effective
Date”
means the date on which the Arrangement becomes effective in accordance
with the provisions of the Arrangement Agreement and the provisions
of the
BCBCA and the CBCA;
|
|
(qq)“Effective
Time”
means 12:01 am, Vancouver time, on the Effective
Date;
|
|
(rr)“Exchange
Number”
means the number or fraction, as the case may be, of a New Rubicon,
Paragon or CopperCo Common Share to be received by a Rubicon Shareholder
in exchange for every Rubicon Common Share pursuant to the General
Exchange Ratio;
|
|
(ss)“Exercise
Price”
means the varying exercise prices of the outstanding Rubicon
Options;
|
|
(tt)“Final
Order”
means the final order of the Court approving the Arrangement pursuant
to
the BCBCA and the CBCA;
|
|
(uu)“General
Exchange Ratio”
means, for each Rubicon Common Share,
|
|
·
|
one
whole New Rubicon Common Share,
|
|
·
|
one-sixth
of a Paragon Common Share; and
|
|
·
|
a
fraction of a CopperCo Common Share equal to the Rubicon-CopperCo
Exchange
Ratio;
|
|
(vv)“holder”
means, when not qualified by the adjective “registered”, the person
entitled to a share hereunder whether or not registered or entitled
to be
registered in respect thereof in the central securities register of
Rubicon, Paragon, CopperCo or Africo, as the case may
be;
|
|
(ww)“ITA”
means the Income
Tax Act
(Canada), as amended;
|
|
(xx)“Meetings”
means, collectively, the Africo Meeting and the Rubicon
Meeting;
|
|
(yy)“Net
Fair Market Value”
means an amount determined by the Board of Directors of Rubicon as
of the
Effective Date, as being an amount equal to the fair market value of
certain assets;
|
|
(zz)“New
Rubicon Common Shares”
means common shares of Rubicon which Rubicon will be authorized to
issue
upon the Arrangement becoming effective and which are to be issued
under
the Arrangement to holders of Rubicon Common Shares in exchange for
such
Rubicon Common Shares;
|
|
(aaa)“New
Rubicon Options”
means the rights (whether or not vested) to purchase New Rubicon Common
Shares which will be issued pursuant to the Plan of
Arrangement;
|
|
(bbb)“Original
Exercise Price”
means the original exercise price per share of a Rubicon
Option;
|
|
(ccc)“Paragon”
means Paragon Minerals Corporation, a corporation incorporated under
the
CBCA in order to facilitate the
Arrangement;
|
|
(ddd)“Paragon
Commitment”
means the covenant of Paragon described in section 3.2 to issue
Paragon Common Shares to the holders of Rubicon Warrants who exercise
their rights thereunder after the Effective Date to receive Rubicon
Common
Shares, CopperCo Common Shares and Paragon Common
Shares;
|
|
(eee)“Paragon
Common Shares”
means the common shares in the capital of Paragon which Paragon is
authorized to issue as the same are constituted on the date hereof
and
which are to be issued under the Arrangement (i) to holders of
Rubicon Series 1 Special Shares in exchange for such Rubicon
Series 1 Special Shares, and (ii) to holders of Paragon Special
Warrants and to holders of Paragon Flow-Through Special Warrants on
the
deemed exercise of such special warrants;
|
|
(fff)“Paragon
Contracts”
means all agreements to which Rubicon currently is a party, which pertain
to the mineral properties in the Provinces of Newfoundland and Labrador
and the Territory of Nunavut and which will be assigned from Rubicon
to
Paragon pursuant to the Plan of Arrangement, such agreements being
more
particularly described in the Assignment and Assumption
Agreement;
|
|
(ggg)“Paragon
Flow-Through Special Warrants”
means flow-through special warrants which may be sold by Paragon pursuant
to the Paragon Financing, with each Paragon Flow-Through Special Warrant
entitling the holder to receive, upon exercise and for no additional
consideration, one flow-through Paragon Common
Share;
|
|
(hhh)“Paragon
Net Fair Market Value”
means an amount determined by the Board of Directors of Rubicon as
of the
Effective Date, as being an amount equal to the fair market value of
the
Paragon Transferred Assets;
|
|
(iii)“Paragon
Note”
means the demand, non-interest bearing promissory note to be issued
by
Paragon to Rubicon having a principal amount and aggregate fair market
value equal to the Paragon Net Fair Market
Value;
|
|
(jjj)“Paragon
Options”
means the rights (whether or not vested) to purchase Paragon Common
Shares
which will be issued pursuant to the Plan of
Arrangement;
|
|
(kkk)“Paragon
Preferred Shares”
means the preferred shares of Paragon which are to be issued under
the
Arrangement to Rubicon in exchange for the Paragon Transferred Assets,
which will have a value equal to the Paragon Net Fair Market Value
and
having the terms and conditions set out in Schedule B to this Plan of
Arrangement;
|
|
(lll)“Paragon
Special Warrants”
means special warrants which may be sold by Paragon pursuant to the
Paragon Financing, with each Paragon Special Warrant entitling the
holder
to receive, upon exercise and for no additional consideration, one
Paragon
Common Share and one Paragon Warrant;
|
|
(mmm)“Paragon
Transferred Assets”
means the Paragon Contracts and certain other related assets more
particularly described in the Assignment and Assumption Agreement,
all of
which will be transferred by Rubicon to Paragon pursuant to the Plan
of
Arrangement;
|
|
(nnn)“Paragon
Warrants”
means common share purchase warrants of Paragon, each entitling the
holder
to purchase one Paragon Common Share at a price of $1.00 per share
for a
term of two years from the date of
issuance;
|
|
(ooo)“Plan
of Arrangement”
means this plan of arrangement, as it may be amended from time to time
in
accordance with section 7.1 of the Arrangement
Agreement;
|
|
(ppp)“PUC”
means paid-up capital as defined in subsection 89 (1) of the
ITA;
|
|
(qqq)“Qualifying
Financing”
means the first issuance or issuances of common shares or other securities
in Africo or CopperCo after the date of issuance of the Africo Convertible
Notes under the Bridge Loan, on a single day or multiple days in any
90
day period, resulting in gross proceeds of not less than
$10,000,000;
|
|
(rrr)“Registrar”
means the Registrar of Companies appointed under the
BCBCA;
|
|
(sss)“Remaining
Africo Shares”
means the Africo shares held by Africo Shareholders other than Rubicon
immediately prior to the Effective Date;
|
|
(ttt)“Rubicon”
means Rubicon Minerals Corporation, a company incorporated under the
BCBCA;
|
|
(uuu)“Rubicon
Africo Shares”
means the Africo Shares held by Rubicon immediately prior to the Effective
Date;
|
|
(vvv)“Rubicon
Commitment”
means the covenant of Rubicon described in section 3.2 to issue
Rubicon Common Shares to the holders of Rubicon Warrants who exercise
their rights thereunder after the Effective Date to receive Rubicon
Common
Shares, CopperCo Common Shares and Paragon Common
Shares;
|
|
(www)“Rubicon
Common Shares”
means the common shares without par value in the capital of Rubicon
as
currently constituted;
|
|
(xxx)“Rubicon-CopperCo
Exchange Ratio”
means the fraction which is obtained by dividing the number of Africo
Shares held by Rubicon on the Share Distribution Record Date by the
fully
diluted number of Rubicon Common Shares outstanding on the Share
Distribution Record Date;
|
|
(yyy)“Rubicon
CopperCo Note”
means the demand, non-interest bearing promissory note to be issued
by
Rubicon to CopperCo having a principal amount and fair market value
equal
to the aggregate fair market value of the Rubicon Series 2 Special
Shares;
|
|
(zzz)“Rubicon
Meeting”
means the annual and special meeting of the Rubicon Shareholders to
be
held to consider, among other matters, the Arrangement, and any
postponement or adjournment thereof;
|
|
(aaaa)“Rubicon
Options”
means the outstanding stock options of Rubicon entitling the holders
to
purchase Rubicon Common Shares in accordance with the terms and conditions
thereof;
|
|
(bbbb)“Rubicon
Paragon Note”
means the demand, non-interest bearing promissory note to be issued
by
Rubicon to Paragon having a principal amount and fair market value
equal
to the aggregate fair market value of the Rubicon Series 1 Special
Shares;
|
|
(cccc)“Rubicon
Series 1 Special Shares”
means the Series 1 special shares of Rubicon which Rubicon will be
authorized to issue upon the Arrangement becoming effective and which
are
to be issued under the Arrangement to holders of Rubicon Common Shares
in
exchange for such Rubicon Common Shares, and having the terms and
conditions set out in Schedule A to this Plan of
Arrangement;
|
|
(dddd)“Rubicon
Series 2 Special Shares”
means the Series 2 special shares of Rubicon which Rubicon will be
authorized to issue upon the Arrangement becoming effective and which
are
to be issued under the Arrangement to holders of Rubicon Common Shares
in
exchange for such Rubicon Common Shares, and having the terms and
conditions set out in Schedule A to this Plan of
Arrangement;
|
|
(eeee)“Rubicon
Shareholder”
means a holder of Rubicon Common Shares;
|
|
(ffff)“Rubicon
Stock Option Plan”
means the existing stock option plan of
Rubicon;
|
|
(gggg)“Rubicon
Warrants”
means the outstanding common share purchase warrants of Rubicon entitling
the holders to purchase Rubicon Common Shares in accordance with the
terms
and conditions thereof, and includes the Compensation Options and the
warrants which are issuable on exercise of the Compensation
Options;
|
|
(hhhh)“Share
Distribution Record Date”
means the close of business on a day to be fixed by the TSX for the
purpose of determining the Rubicon Shareholders entitled to receive
New
Rubicon Common Shares, CopperCo Common Shares and Paragon Common Shares
under the Arrangement;
|
|
(iiii)“Trading
Price”
means the weighted average price of the New Rubicon Common Shares,
Paragon
Common Shares or CopperCo Common Shares, as the case may be, on the
TSX or
the TSX-V, as the case may be, for the First 5 trading days on which
such
shares trade on such stock exchange after the Effective
Date;
|
|
(jjjj)“Transfer
Agent”
means Computershare Investor Services
Inc;
|
|
(kkkk)“TSX”
means the Toronto Stock Exchange; and
|
|
(llll)“TSX-V”
means the TSX Venture Exchange.
|
|
1.2
|
Interpretation
Not Affected By Headings
|
The
division of this Plan of Arrangement into articles, sections, and other
portions, and the insertion of headings are for the convenience of reference
only and shall not affect the construction or interpretation of this Plan of
Arrangement. The terms “this Plan of Arrangement”, “hereof”, “herein”,
“hereunder” and similar expressions refer to this Plan of Arrangement as a whole
and not to any particular article, section, subsection, paragraph or part
hereof. Unless something in the subject matter or context is inconsistent
therewith, all references herein to articles, sections and other portions are
to
articles, sections and other portions to this Plan of Arrangement.
|
1.3
|
Number
and Gender
|
In
this
Plan of Arrangement, words importing the singular number only shall include
the
plural and vice versa, and words importing the masculine gender shall include
the feminine and neuter genders, and words importing persons shall include
individuals, partnerships, associations, trusts, unincorporated organizations
and corporations.
|
1.4
|
Statutes
|
A
reference to a statute shall be deemed to include every regulation made pursuant
thereto, all amendments to the statute or to any such regulation enforced from
time to time, and any statute or regulation that supplements or supersedes
such
statute or any such regulation.
|
1.5
|
Currency
|
All
references to currency herein are to lawful money of Canada unless otherwise
specified herein.
-15-
Undefined
Terms
Any
undefined capitalized terms in this Plan of Arrangement shall have the meanings
ascribed to them in the Arrangement Agreement.
ARTICLE 2
- ARRANGEMENT AGREEMENT
|
2.1
|
Arrangement
Agreement
|
This
Plan
of Arrangement is made pursuant and subject to the provisions of the Arrangement
Agreement.
ARTICLE 3
- THE ARRANGEMENT
|
3.1
|
The
Arrangement
|
On
the
Effective Date, save and except for Dissenting Shares, the following shall
occur
and be deemed to occur in the following chronological order, unless otherwise
noted, without further act or formality and with each transaction or event
being
deemed to occur immediately after the occurrence of the transaction or event
immediately preceding it:
|
(a)Rubicon’s
authorized share structure shall be amended
by:
|
(i) (i)altering
the name of the unlimited number of common shares without par value to be an
unlimited number of Class A Common shares without par value;
(ii) (ii)creating
the following three new classes of shares:
|
A.
|
an
unlimited number of common shares without par
value;
|
|
B.
|
an
unlimited number of series 1 special shares with a par value equal
to the
net book value of the Paragon Transferred Assets;
and
|
|
C.
|
an
unlimited number of series 2 special shares with a par value equal
to the
net book value of the Rubicon Africo
Shares.
|
The
shares of Rubicon described above shall have the rights and restrictions set
out
in Rubicon’s Articles. Rubicon’s Articles shall be amended by adding, as
Article 26 of the Articles, the rights and restrictions set out in Schedule
A hereto;
|
(b)Rubicon’s
central securities register for the Rubicon Common Shares shall be
redesignated as the central securities register for the Class A Common
shares;
|
|
(c)Paragon’s
authorized share structure shall be amended by creating a new class
of
shares consisting of an unlimited number of special preferred shares
and
having
|
|
(d)the
rights and restrictions set out in Paragon’s Articles. Paragon’s Articles
shall be amended by adding the rights and restrictions set out in
Schedule B hereto;
|
|
(e)CopperCo’s
authorized share structure shall be amended by creating a new class
of
shares consisting of an unlimited number of special preferred shares
and
having the rights and restrictions set out in CopperCo’s Articles.
CopperCo’s Articles shall be amended by adding the rights and restrictions
set out in Schedule B hereto;
|
|
(f)Each
Rubicon Common Share (renamed as Class A Common Shares) issued and
outstanding on the Effective Date (other than Dissenting Shares) will
be
exchanged for one New Rubicon Common Share, one Rubicon Series 1
Special Share and one Rubicon Series 2 Special Share. The PUC of the
New Rubicon Common Shares, the Rubicon Series 1 Special Shares and
the Series 2 Special Shares will be determined as
follows:
|
(i) (i)the
amount of the PUC of the Rubicon Series 1 Special Shares will be equal to
their par value;
(ii) (ii)the
amount of the PUC of the Rubicon Series 2 Special Shares will be equal to
their par value; and
(iii) (iii)the
amount of the PUC of the New Rubicon Common Shares will be equal to the PUC
of
the Rubicon Common Shares (renamed as Class A Common Shares) minus the
aggregate of the PUC of the Rubicon Series 1 and 2 Special
Shares;
Each
Rubicon Shareholder shall cease to be the holder of the Rubicon Common Shares
(renamed as Class A Common Shares) so exchanged and shall become the holder
of the number of New Rubicon Common Shares, Rubicon Series 1 Special Shares
and Series 2 Special Shares issued to such Rubicon Shareholder. The name of
such Rubicon Shareholder shall be removed from the central securities register
for Rubicon Common Shares in respect of the Rubicon Common Shares so exchanged
and shall be added to the central securities register of New Rubicon Common
Shares, Rubicon Series 1 Special Shares and Series 2 Special Shares
respectively, so issued to such Rubicon Shareholder;
|
(g)Each
outstanding whole Rubicon Option will be exchanged for one whole New
Rubicon Option, one sixth of a Paragon Option and a fraction of a CopperCo
Option equal to the Rubicon-CopperCo Exchange Ratio. The exercise price
of
each of the new options received as a result of such exchange will
be
determined as set out in section 3.3
below;
|
|
(h)The
Rubicon Common Shares (renamed as Class A Common Shares) exchanged
for New Rubicon Common Shares, the Rubicon Series 1 Special Shares
and the
|
|
(i)Rubicon
Series 2 Special Shares shall be cancelled and the appropriate entry
shall be made in Rubicon’s central securities
register;
|
|
(j)Each
holder of Rubicon Series 1 Special Shares will transfer, with good
and marketable title free and clear of all encumbrances, such shares
to
Paragon;
|
|
(k)Each
holder of Rubicon Series 2 Special Shares will transfer, with good
and marketable title free and clear of all encumbrances, such shares
to
CopperCo;
|
|
(l)As
consideration for the Rubicon Series 1 Special Shares transferred to
it, Paragon will issue to the holders of such Rubicon Series 1 Special
Shares, Paragon Common Shares on the basis of one Paragon Common Share
for
every six whole Rubicon Series 1 Special Shares held by a respective
holder. The stated capital account maintained in respect of Paragon
Common
Shares shall be increased by an amount equal to the PUC of the transferred
Rubicon Series 1 Special Shares. In connection with such sale and
transfer, each holder of Rubicon Series 1 Special Shares so sold and
transferred shall cease to be the holder of the Rubicon Series 1
Special Shares so sold and transferred and shall become the holder
of the
number of Paragon Common Shares issued to such holder. The name of
such
holder shall be removed from the central securities register of Rubicon
Series 1 Special Shares in respect of the Rubicon Series 1
Special Shares so sold and transferred and shall be added to the central
securities register of Paragon as the holder of the number of Paragon
Common Shares so issued to such holder, and Paragon shall be and shall
be
deemed to be the transferee of the Rubicon Series 1 Special Shares so
transferred and the name of Paragon shall be entered in the central
securities register of Rubicon Series 1 Special Shares so sold and
transferred to Paragon;
|
|
(m)As
consideration for the Rubicon Series 2 Special Shares transferred to
it, CopperCo will issue to the holders of such Rubicon Series 2 Special
Shares, that number of CopperCo Common Shares obtained by multiplying
the
number of Rubicon Series 2 Special Shares held by a respective holder
by the Rubicon-CopperCo Exchange Ratio. The stated capital account
maintained in respect of CopperCo Common Shares shall be increased
by an
amount equal to the PUC of the transferred Rubicon Series 2 Special
Shares. In connection with such sale and transfer, each holder of Rubicon
Series 2 Special Shares so sold and transferred shall cease to be the
holder of the Rubicon Series 2 Special Shares so sold and transferred
and become the holder of the number of CopperCo Common Shares issued
to
such holder. The name of such holder shall be removed from the central
securities register of Rubicon Series 2 Special Shares in respect of
the Rubicon Series 2 Special Shares so sold and transferred and shall
be added to the central securities register of CopperCo as the holder
of
the number of CopperCo Common Shares so issued to such holder and CopperCo
shall be and shall be deemed to be the transferee of the Rubicon
Series 2 Special Shares so transferred and the name of CopperCo shall
be entered in the central securities register of Rubicon Series 2
Special Shares so sold and transferred to
CopperCo;
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(n)Rubicon
will sell and transfer the Paragon Transferred Assets to Paragon in
consideration for the issuance by Paragon of 100,000,000 Paragon Preferred
Shares. Rubicon shall take all such actions and deliver all such documents
as may be required to convey title to the Paragon Transferred Assets
to
Paragon;
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|
(o)Rubicon
will sell and transfer the CopperCo Transferred Assets to CopperCo
in
consideration for the issuance by CopperCo of 100,000,000 CopperCo
Preferred Shares. Rubicon shall take all such actions and deliver all
such
documents as may be required to convey title to the CopperCo Transferred
Assets to CopperCo;
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(p)Rubicon
will purchase for cancellation the Rubicon Series 1 Special Shares
held by Paragon in consideration of the issuance by Rubicon of the
Rubicon
Paragon Note. The repurchased Rubicon Series 1 Special Shares shall
be cancelled and the appropriate entry made on the central securities
register for the Series 1 Special
Shares;
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(q)Rubicon
will purchase for cancellation the Rubicon Series 2 Special Shares
held by CopperCo in consideration of the issuance by Rubicon of the
Rubicon CopperCo Note. The repurchased Rubicon Series 2 Special
Shares shall be cancelled and the appropriate entry made on the central
securities register for the Series 2 Special
Shares;
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(r)The
authorized share structure of Rubicon shall be amended by eliminating
the
unlimited number of Class A Common Shares without par value, the unlimited
number of Series 1 Special Shares and the unlimited number of
Series 2 Special Shares, none of which are issued. Rubicon’s Articles
shall be amended by deleting Article 26 of the Articles (for greater
certainty, notwithstanding such deletion of Article 26, the New
Rubicon Common Shares shall continue to exist immediately upon completion
of the Arrangement, as evidenced by Rubicon’s Notice of Articles in effect
at such time);
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(s)Paragon
will purchase for cancellation the 100,000,000 Paragon Preferred Shares
held by Rubicon in consideration for the issuance by Paragon to Rubicon
of
the Paragon Note having a principal amount and fair market value equal
to
the aggregate fair market value of the 100,000,000 Paragon Preferred
Shares purchased for cancellation. The repurchased Paragon Preferred
Shares shall be cancelled and the appropriate entry made on the central
securities register for the Paragon Preferred
Shares;
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(t)The
authorized share structure of Paragon shall be amended by eliminating
the
Paragon Preferred Shares, none of which are issued. Paragon’s Articles
shall be amended by deleting sections 1.1 to 1.5 of the Articles
which contain the rights and restrictions attached to the Paragon
Preferred Shares;
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(u)CopperCo
will purchase for cancellation the 100,000,000 CopperCo Preferred Shares
held by Rubicon in consideration for the issuance by CopperCo to Rubicon
of the CopperCo Note having a principal amount and fair market value
equal
to the aggregate fair market value of the 100,000,000 CopperCo Preferred
Shares purchased for cancellation. The repurchased CopperCo Preferred
Shares shall be cancelled and the appropriate entry made on the central
securities register for the CopperCo Preferred
Shares;
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(v)The
authorized share structure of CopperCo shall be amended by eliminating
the
CopperCo Preferred Shares; none of which are issued. CopperCo’s Articles
shall be amended by deleting sections 1.1 to 1.5 of the Articles
which contain the rights and restrictions attached to the CopperCo
Preferred Shares;
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(w)Rubicon
will pay the principal amount of the Rubicon Paragon Note by transferring
to Paragon the Paragon Note which will be accepted by Paragon as full
payment, satisfaction and discharge of Rubicon’s obligation under the
Rubicon Paragon Note and simultaneously Paragon will pay the principal
amount of the Paragon Note by transferring to Rubicon the Rubicon Paragon
Note which will be accepted by Rubicon as full payment, satisfaction
and
discharge of Paragon’s obligation under the Paragon Note. The Rubicon
Paragon Note and the Paragon Note will both thereupon be
cancelled;
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(x)Rubicon
will pay the principal amount of the Rubicon CopperCo Note by transferring
to CopperCo the CopperCo Note which will be accepted by CopperCo as
full
payment, satisfaction and discharge of Rubicon’s obligation under the
Rubicon CopperCo Note and simultaneously CopperCo will pay the principal
amount of the CopperCo Note by transferring to Rubicon the Rubicon
CopperCo Note which will be accepted by Rubicon as full payment,
satisfaction and discharge of CopperCo’s obligation under the CopperCo
Note. The Rubicon CopperCo Note and the CopperCo Note will both thereupon
be cancelled;
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(y)the
Paragon Flow-Through Special Warrants issued pursuant to the Paragon
Financing shall be automatically exercised, through no further action
on
the part of the holder and for no additional consideration, into
flow-through Paragon Common Shares on the basis of one flow-though
Paragon
Common Share for each Paragon Flow-Through Special Warrant exercised,
and
the names of the holders of the Paragon Flow-Through Special Warrants
shall be added to the central securities register of Paragon as the
holders of the number of Paragon Common Shares issued to such
holders;
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(z)the
Paragon Special Warrants issued pursuant to the Paragon Financing shall
be
automatically exercised, through no further action on the part of the
holder and for no additional consideration, into Paragon Common Shares
and
Paragon Warrants, on the basis of one Paragon Common Share and one
Paragon
Warrant for each Paragon Special Warrant exercised, and the names of
the
holders of the Paragon
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(aa)Special
Warrants shall be added to the central securities register of Paragon
as
the holders of the number of Paragon Common Shares issued to such
holders;
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(bb)The
Africo Subscription Receipts issued pursuant to the CopperCo/Africo
Financing shall be automatically exercised, through no further action
on
the part of the holder and for no additional consideration, into CopperCo
Common Shares and CopperCo Warrants, on the basis of one CopperCo Common
Share and one-half of one CopperCo Warrant for each Africo Subscription
Receipt exercised, and the names of the holders of the Africo Subscription
Receipts shall be added to the central securities register of CopperCo
as
the holders of the number of CopperCo Common Shares issued to such
holders;
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(cc)The
Africo Compensation Option issued pursuant to the CopperCo/Africo
Financing shall be automatically converted, through no further action
on
the part of the holder and for no additional consideration, into the
CopperCo Broker Warrants;
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(dd)Each
holder of the Remaining Africo Shares will transfer, with good and
marketable title free and clear of all encumbrances, such shares to
CopperCo;
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(ee)As
consideration for the Remaining Africo Shares transferred to it, CopperCo
will issue to the holders of such Remaining Africo Shares, CopperCo
Common
Shares on the basis of one CopperCo Common Share for every whole Remaining
Africo Shares held by a respective holder. The stated capital account
maintained in respect of CopperCo Common Shares shall be increased
to the
maximum amount permitted under the ITA. In connection with such sale
and
transfer, each holder of Remaining Africo Shares so sold and transferred
shall cease to be the holder of the Remaining Africo Shares so sold
and
transferred and become the holder of the number of CopperCo Common
Shares
issued to such holder. The name of such holder shall be removed from
the
central securities register of Africo Shares in respect of the Remaining
Africo Shares so sold and transferred and shall be added to the central
securities register of CopperCo as the holder of the number of CopperCo
Common Shares so issued to such holder and CopperCo shall be and shall
be
deemed to be the transferee of the Remaining Africo Shares so transferred
and the name of CopperCo shall be entered in the central securities
register of Africo Shares so sold and transferred to
CopperCo;
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(ff)Each
outstanding whole Africo Option will be exchanged for one whole CopperCo
Option. The exercise price of each of the new CopperCo Options received
on
such exchange will be identical to the exercise price for the Africo
Option which was exchanged for such CopperCo
Option;
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|
(gg)Each
outstanding Africo Convertible Note will be exchanged for a CopperCo
Convertible Note representing a principal amount which is equal to
the
principal
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(hh)amount
set out in the Africo Convertible Note which is exchanged for such
CopperCo Convertible Note;
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(ii)The
name of Africo will be changed to Africo Resources (B.C.) Ltd.;
and
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|
(jj)The
name of CopperCo will be changed to Africo Resources
Ltd.
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3.2
|
Treatment
of Rubicon Warrants
|
After
the
Effective Date, each whole Rubicon Warrant outstanding on the Effective Date
(as
well as each whole Rubicon Warrant which is issuable on exercise of the
Compensation Options) will entitle the holder thereof to receive, upon exercise
on or after the Effective Date, from Rubicon pursuant to the Rubicon Commitment
one New Rubicon Common Share, from Paragon pursuant to the Paragon Commitment
one-sixth (1/6) of a Paragon Common Share and from CopperCo pursuant to the
CopperCo Commitment a fraction of a CopperCo Common Share equal to the
Rubicon-CopperCo Exchange Ratio at an aggregate exercise price equal to the
exercise price provided for in the certificate representing such Rubicon
Warrant, subject to the terms and conditions contained in such certificate.
Holders of Rubicon Warrants will not be permitted to exercise Rubicon Warrants
to purchase New Rubicon Common Shares, Paragon Common Shares or CopperCo Common
Shares separately from each other.
Rubicon,
acting as agent for Paragon and CopperCo, will distribute the net proceeds
from
the exercise of any Rubicon Warrants after the Effective Date such that Rubicon
will receive 51.2% of the net proceeds per New Rubicon Common Share issued,
Paragon will receive 5.8% of the net proceeds per Paragon Common Share issued
and CopperCo will receive, on behalf of Rubicon, 43% of the net proceeds per
CopperCo Common Share issued (following which CopperCo will remit any such
amount received to Rubicon). For the purposes of this section 3.2, Rubicon
will not acquire any beneficial ownership in the Paragon Common Shares or the
CopperCo Common Shares issued upon the exercise of the Rubicon
Warrants.
From
the
Effective Time, certificates representing Rubicon Warrants which were
outstanding on the Effective Date will represent rights to purchase the same
number of New Rubicon Common Shares as represented by the certificate, a number
of Paragon Common Shares which is one -sixth of the number represented by the
certificate and a number of CopperCo Common Shares which is equal to the number
represented by the certificate multiplied by the Rubicon-CopperCo Exchange
Ratio. Rubicon, Paragon and CopperCo will not issue new warrant certificates
representing such rights.
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3.3
|
Treatment
of Rubicon Options
|
The
exercise price (the “Adjusted
Exercise Price”)
of
each of the New Rubicon Options, the Paragon Options and the CopperCo Options
issued under the exchange at step 3.1(f) above will be determined in accordance
with the following formula and rounded up to the nearest whole
cent:
-16-
|
Adjusted
Exercise Price
|
=
|
Trading
Price
|
X
|
Original
Exercise Price
|
|
Aggregate
Exchange Trading Price
|
With
respect to any such CopperCo Options, the funds representing the exercise price
shall be delivered to CopperCo, which in turn shall remit such funds to Rubicon.
It shall be a condition of issuance of any such Paragon Options and CopperCo
Options that, to the extent that the holder is not an employee, consultant,
director or senior officer of Paragon or CopperCo, as the case may be, such
options shall expire on termination of the holder’s position as an employee,
consultant, director or senior officer of Rubicon, according to the terms of
the
grant of such holder’s Rubicon Options which existed prior to the Effective
Date.
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3.4
|
Unexercised
Warrants and Options
|
Any
Rubicon Warrants referred to in section 3.2 and any New Rubicon Options,
Paragon Options or CopperCo Options referred to in section 3.3 which expire
according to their terms without being exercised by the holders shall be
exercisable by Rubicon, at Rubicon’s election, for a period of 30 days following
the relevant expiry date. If Rubicon exercises any such Rubicon Warrants, New
Rubicon Options, Paragon Options or CopperCo Options during such 30-day period,
the consideration paid by Rubicon on exercise shall be delivered, received
and
remitted, as the case may be, as set out in sections 3.2 and 3.3,
mutatis
mutandis.
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3.5
|
Fees
, Etc.
|
Rubicon
agrees to pay any reasonable fee (including the fees of CopperCo’s Registrar and
Transfer Agent) in connection with the issuance of CopperCo Common Shares
pursuant to the exercise of the Rubicon Warrants or Rubicon Options, as the
case
may be, pursuant to sections 3.2 and 3.3 above.
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3.6
|
Deemed
Fully Paid and Non-Assessable
Shares
|
All
New
Rubicon Common Shares, Rubicon Class A Shares, Rubicon Series 1 Special
Shares, Rubicon Series 2 Special Shares, Paragon Common Shares and CopperCo
Common Shares issued pursuant hereto shall be deemed to be validly issued and
outstanding as fully paid and non-assessable shares for all purposes of the
BCBCA or the CBCA, as the case may be.
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3.7
|
Arrangement
Effectiveness
|
On
the
Effective Date, the Arrangement shall become finally and conclusively binding
on
the Shareholders and each of Rubicon, Paragon and CopperCo.
3.8 Supplementary
Actions
Notwithstanding
that the transaction and events set out in section 3.1 shall occur and
shall be deemed to occur in the order therein set out without any act or
formality, each of Rubicon, Paragon and CopperCo shall be required to make,
do
and execute or cause and procure to be
-17-
made,
done and executed all such further acts, deeds, agreements, transfers,
assurances, instruments or documents as may be required to further document
or
evidence any of the transactions or events set out in section 3.1,
including without limitation, any resolutions of
directors
authorizing the issue, transfer or purchase for cancellation of shares, any
share transfer powers evidencing the transfer of shares and any receipt
therefore, any promissory notes and receipts therefore and any necessary
additions to or deletions from share registers.
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3.9
|
Share
Distribution Record Date
|
In
subsections 3.1(e), (j) and (k) above, the references to Rubicon Shareholders
(including references to holders of Rubicon Series 1 and Series 2 Special
Shares) shall mean the Rubicon Shareholders on the Share Distribution Record
Date, subject to the provisions of Article 5.
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3.10
|
Deemed
Time for Redemption
|
In
addition to the chronological order in which the transactions and events set
out
in section 3.1 shall occur and shall be deemed to occur, the time on the
Effective Date for the redemption of the Rubicon Series 1 and 2 Special
Shares set out in subsections 3.1(a), (n) and (o) shall occur and shall be
deemed to occur immediately after the listing of the Rubicon Series 1 and 2
Special Shares on the TSX or the TSX-V, as the case may be, on the Effective
Date.
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3.11
|
Section
85 Elections
|
The
parties shall make, and do all such further acts and things to assist in making,
elections under section 85 of the ITA in connection with the transfers of
the Paragon Transferred Assets and the CopperCo Transferred Assets described
in
subsections 3.1(l) and (m) respectively. In addition, CopperCo will offer to
holders of the Remaining Africo Shares the option of making elections under
section 85 of the ITA in connection with the transfer of the Remaining Africo
Shares to CopperCo in return for CopperCo Common Shares as described in sections
3.1(aa) and (bb). On acceptance of CopperCo’s offer by a particular Remaining
Africo Shareholder, CopperCo will do all such further acts and things to make,
and assist in making, the election under section 85 of the ITA.
ARTICLE 4
- CERTIFICATES AND DOCUMENTATION
|
4.1
|
Rubicon
Common Share Certificates
|
From
and
after the Effective Time, share certificates representing Rubicon Common Shares
shall for all purposes be deemed to be share certificates representing New
Rubicon Common Shares, and no new share certificates shall be issued with
respect to the New Rubicon Common Shares issued in connection with the
Arrangement.
-18-
4.2 Rubicon
Special Share Certificates
Recognizing
that all of the Rubicon Series 1 Special Shares and Rubicon Series 2
Special Shares issued to the Shareholders will immediately be transferred to
Paragon and CopperCo in exchange for Paragon and CopperCo Common Shares, Rubicon
will not issue certificates representing the Rubicon Series 1 Special
Shares and Rubicon Series 2 Special Shares.
Paragon
and CopperCo Preferred Share Certificates
Recognizing
that all of the Paragon and CopperCo Preferred Shares issued to Rubicon will
immediately be repurchased for cancellation, each of Paragon and CopperCo will
not issue certificates representing their respective Paragon and CopperCo
Preferred Shares.
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4.3
|
Paragon
and CopperCo Common Share
Certificates
|
As
soon
as practicable after the Effective Time, Paragon and CopperCo shall cause to
be
issued to the registered holders of Paragon and CopperCo Common Shares at the
close of business on the Share Distribution Record Date, share certificates
representing in the aggregate number of the Paragon and CopperCo Common Shares
to which such holders are entitled as at the Share Distribution Record Date
and
shall cause such certificates to be delivered or mailed to such holder in
accordance with the terms hereof.
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4.4
|
Fractional
Shares, Warrants and
Options
|
No
fractional Rubicon Series 1 Special Shares and Rubicon Series 2
Special Shares will be issued and the number of Rubicon Series 1 Special
Shares and Rubicon Series 2 Special Shares to which each Shareholder will
be entitled shall be rounded down to the next whole number. No fractional shares
warrants or options, including shares issuable or transferable upon the exercise
of any Rubicon Warrants or Options after the Effective Date, will be issued,
and
no cash will be paid in lieu thereof, by Rubicon, Paragon or CopperCo. Any
fractions resulting (including, but not limited to, fractions resulting after
the application of the Rubicon-CopperCo Exchange Ratio) will be rounded down
to
the nearest whole number. No subscription for a fraction of a Paragon or
CopperCo Common Share will be accepted with respect to the exercise of Rubicon
Warrants and Rubicon Options as set out in paragraph 3.2 and 3.3, respectively
above.
|
4.5
|
Interim
Period
|
From
the
Share Distribution Record Date to the Effective Date, share certificates
representing Rubicon Common Shares issued and outstanding on the Share
Distribution Record Date and not subject to Article 5 hereof, shall also be
deemed for all purposes to represent New Rubicon Shares, Paragon Common Shares
and CopperCo Common Shares issued in connection with the
Arrangement.
-19-
Article 5
- RIGHTS OF DISSENT AND APPRAISAL FOR RUBICON SHAREHOLDERS
|
5.1
|
Rubicon
Dissent Right
|
Notwithstanding
section 3.1 hereof, Rubicon Shareholders may exercise rights of dissent
(the “Rubicon Dissent Right”) in connection with the Arrangement pursuant to the
Interim Order and this Article 5.
Rubicon
Notice of Dissent
A
Shareholder who wishes to exercise a Rubicon Dissent Right must give written
notice of dissent (“Notice of Dissent”) to Rubicon by depositing such Notice of
Dissent with Rubicon, or mailing it to Rubicon by registered mail, at its head
office at Suite 1540, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
X0X 0X0, marked to the attention of the President, not later than 2:00 p.m.
(local time) on August 3, 2006. A Rubicon Shareholder who has given a Notice
of
Dissent in accordance with this section 5.2 is herein referred to as a
“Rubicon Dissenting Shareholder”. A Rubicon Shareholder who wishes to dissent
must prepare a separate notice of dissent for (i) the Rubicon Shareholder,
if the Rubicon Shareholder is dissenting on its own behalf and (ii) each
person who beneficially owns shares in the Rubicon Shareholder’s name and on
whose behalf the Rubicon Shareholder is dissenting. To be valid, a Notice of
Dissent must:
|
(a)identify
in each Notice of Dissent the person on whose behalf dissent is being
exercised;
|
|
(b)set
out the number of Rubicon Common Shares in respect of which the Rubicon
Shareholder is exercising the Rubicon Dissent Right (the “Notice Shares”),
which number cannot be less than all of the Rubicon Common Shares held
by
the beneficial holder on whose behalf the Rubicon Dissent Right is
being
exercised;
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|
(c)if
the Notice Shares constitute all of the shares of which the Rubicon
Dissenting Shareholder is both the registered owner and beneficial
owner
and the Rubicon Dissenting Shareholder owns no other shares of Rubicon
as
beneficial owner, a statement to that
effect;
|
|
(d)if
the Notice Shares constitute all of the shares of which the Rubicon
Dissenting Shareholder is both the registered and beneficial owner
but the
Rubicon Dissenting Shareholder owns other shares of Rubicon as beneficial
owner, a statement to that effect, and
|
(i) (i)the
names
of the registered owners of those other shares,
(ii) (ii)the
number of those other shares that are held by each of those registered owners,
and
(iii) (iii)a
statement that Notices of Dissent are being or have been sent in respect of
all
those other shares; and
(iv)
| (tttttttt) |
(e)if
dissent is being exercised by the Rubicon Dissenting Shareholder on
behalf
of a beneficial owner who is not the Rubicon Dissenting Shareholder,
a
statement to that effect, and
|
(i) (i)the
name
and address of the beneficial owner, and
(ii) (ii)a
statement that the Rubicon Dissenting Shareholder is dissenting in relation
to
all of the shares beneficially owned by the beneficial owner that are registered
in the Rubicon Dissenting Shareholder’s name.
|
5.2
|
Right
of Dissenting Shareholder
|
The
giving of a Notice of Dissent does not deprive a Rubicon Shareholder of his
or
her right to vote at the Rubicon Meeting on the Special Resolution approving
the
Arrangement. A vote against the Special Resolution or the execution or exercise
of a proxy with instructions to vote against the Special Resolution does not
constitute a Notice of Dissent.
|
5.3
|
When
Rubicon Dissent Right Not
Available
|
A
Rubicon
Shareholder is not entitled to exercise a Rubicon Dissent Right with respect
to
any Rubicon Common Shares if a Rubicon Shareholder votes (or instructs or is
deemed, by submission of any incomplete proxy, to have instructed his or her
proxyholder to vote) in favour of the Special Resolution approving the
Arrangement. However, a Rubicon Shareholder may vote as a proxy for a
Shareholder whose proxy required an affirmative vote, without affecting his
or
her right to exercise the Rubicon Dissent Right in respect of the Rubicon Common
Shares of which he or she is the registered holder.
|
5.4
|
Notice
to Proceed
|
If
Rubicon intends to act on the authority of the Special Resolution approving
the
Arrangement, it must send a notice (the “Notice to Proceed”) to the Rubicon
Dissenting Shareholder promptly after the later of:
|
(a)the
date on which Rubicon forms the intention to proceed,
and
|
|
(b)the
date on which the Notice of Dissent was
received.
|
If
Rubicon has acted on the authority of that Special Resolution it must promptly
send a Notice to Proceed to the Rubicon Dissenting Shareholder. The Notice
to
Proceed must be dated not earlier than the date on which it is sent and state
that Rubicon intends to act or has acted on the authority of the Special
Resolution and advise the Rubicon Dissenting Shareholder of the manner in which
dissent is to be completed under section 5.7 hereof.
-20-
5.5 Entitlement
to Payment of Fair Value
On
receiving a Notice to Proceed in accordance with section 5.5 hereof, the
Rubicon Dissenting Shareholder is entitled to require Rubicon to purchase all
of
the Rubicon Common Shares in respect of which the Notice of Dissent was given.
Demand
for Payment of Fair Value
A
Rubicon
Dissenting Shareholder who receives a Notice to Proceed is bound to sell its
Rubicon Common Shares to Rubicon and must send to Rubicon within one month
after
the date of the Notice to Proceed:
|
(a)a
written statement that the Rubicon Dissenting Shareholder requires
Rubicon
to purchase all of the Notice Shares;
|
|
(b)the
certificates representing the Notice Shares,
and
|
|
(c)if
dissent is being exercised by the Rubicon Shareholder on behalf of
a
beneficial owner who is not the Rubicon Dissenting Shareholder, a written
statement signed by the beneficial owner setting out whether the
beneficial owner is the beneficial owner of other shares of Rubicon
and if
so, setting out:
|
(i) (i)the
names
of the registered owners of those other shares,
(ii) (ii)the
number of those other shares that are held by each of those registered owners,
and
(iii) (iii)that
dissent is being exercised in respect of all of those other shares, whereupon
Rubicon is bound to purchase them in accordance with the Notice of
Dissent.
|
5.6
|
Payment
for Notice Shares
|
Rubicon
and the Rubicon Dissenting Shareholder may agree on the amount of the payout
value of the Notice Shares and in that event, Rubicon must either promptly
pay
that amount to the Rubicon Dissenting Shareholder or send a notice to the
Rubicon Dissenting Shareholder that Rubicon is unable lawfully to pay Rubicon
Dissenting Shareholders for their share as Rubicon is insolvent or if the
payment would render Rubicon insolvent.
|
5.7
|
Application
to Court to Fix Payout
Value
|
If
Rubicon and the Rubicon Dissenting Shareholder do not agree on the amount of
the
payout value of the Notice Shares the Rubicon Dissenting Shareholder or Rubicon
may apply to the court and the court may:
-21-
|
(a)determine
the payout value of the Notice Shares or order that the payout value
of
the Notice Shares be established by arbitration or by reference to
the
registrar or a referee of the court;
|
|
(b)join
in the application each Rubicon Dissenting Shareholder who has not
agreed
with Rubicon on the amount of the payout value of the Notice Shares;
and
|
|
(c)make
consequential orders and give directions it considers
appropriate.
|
|
(d)Promptly
after a determination of the payout value of the Notice Shares has
been
made, Rubicon must either pay that amount to the Rubicon Dissenting
Shareholder or send a notice to the Rubicon Dissenting Shareholder
that
Rubicon is unable lawfully to pay Rubicon Dissenting Shareholders for
their shares as Rubicon is insolvent or if the payment would render
Rubicon insolvent. If the Rubicon Dissenting Shareholder receives a
notice
that Rubicon is unable to lawfully pay Rubicon Dissenting Shareholders
for
their shares the Rubicon Dissenting Shareholder may within 30 days
after
receipt of the notice, withdraw his or her Notice of Dissent. If the
Notice of Dissent is not withdrawn the Rubicon Dissenting Shareholder
remains a claimant against Rubicon to be paid as soon as Rubicon is
lawfully able to do so or, in a liquidation, to be ranked subordinate
to
the rights of creditors of Rubicon but in priority to its
shareholders.
|
|
5.8
|
Deemed
Notice
|
Any
notice required to be given by Rubicon or a Rubicon Dissenting Shareholder
to
the other in connection with the exercise of the Dissent Right, will be deemed
to have been given and received, if delivered, on the day of delivery, if
mailed, on the earlier of the date of receipt or the second business day after
the day of mailing, or, if sent by telecopier or other similar form of
transmission, the first business day after the date of transmittal.
|
5.9
|
Consequences
of Exercising Rubicon Dissent
Rights
|
A
Rubicon
Shareholder who:
|
(a)properly
exercises the Rubicon Dissent Right by complying with all of the
procedures (the “Dissent Procedures”) required to be complied with by a
Rubicon Dissenting Shareholder, will:
|
(i) (i)be
bound
by the provisions of this Article 5;
(ii) (ii)be
deemed
not to have participated in the Arrangement; and
(iii) (iii)cease
to
have any rights as a Shareholder other than the right to be paid the payout
value of the Notice Shares by Rubicon in accordance with the Dissent Procedures
and is deemed to have disposed of his shares immediately prior to the Effective
Date; or
|
(b)seeks
to exercise the Rubicon Dissent Right,
but:
|
(i) (i)who
for
any reason does not properly comply with each of the Dissent Procedures required
to be complied with by a Rubicon Dissenting Shareholder, or
(ii) (ii)subsequent
to giving his or her Notice of Dissent, acts inconsistently with such dissent;
(iii) (iii)will
be
deemed to have participated in the Arrangement on the same basis as each
non-dissenting Shareholder and will receive his or her pro rata portion of
the
New Rubicon, Paragon and CopperCo Common Shares based upon the number of Rubicon
Common Shares of which such Dissenting Shareholder is the registered holder.
Rubicon may in its sole discretion waive any non-compliance by a shareholder
with any of the provisions of this Article 5 in order to give effect to a
shareholder’s Rubicon Dissent Rights.
|
5.10
|
Abandonment
of Dissent
|
A
Rubicon
Dissenting Shareholder may not withdraw a Notice of Dissent without the consent
of Rubicon. A Rubicon Dissenting Shareholder may, with the written consent
of
Rubicon, at any time prior to the payment to the Rubicon Dissenting Shareholder
of the full amount of money to which the Rubicon Dissenting shareholder is
entitled under this Article 5, abandon such Rubicon Dissenting
Shareholder’s dissent to the Arrangement by giving written notice to Rubicon
withdrawing the Notice of Dissent by depositing such notice with Rubicon or
mailing it to Rubicon by registered mail, at its head office at Xxxxx 0000,
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0, marked to the
attention of the President, and will then be deemed to have participated in
the
Arrangement on the same basis as each non-dissenting Shareholder and will
receive such number of New Rubicon, Paragon and CopperCo Common Shares to which
he or she is entitled.
|
5.11
|
Reservation
of New Rubicon, Paragon and CopperCo Common
Shares
|
If
a
Rubicon Shareholder exercises the Rubicon Dissent Right, Rubicon shall on the
Effective Date set aside and not distribute that portion of the New Rubicon,
Paragon and CopperCo Common Shares which is attributable to the Rubicon Common
Shares for which Dissent Rights have been exercised. If a Rubicon Shareholder
exercises the Rubicon Dissent Right, but, as set out in subsection 5.11(b),
does not properly comply with the Dissent Procedures or, subsequent to giving
his or her Notice of Dissent, acts inconsistently with such dissent, then
Rubicon shall distribute to such Shareholder his or her pro rata portion of
the
New Rubicon, Paragon and CopperCo Common Shares. If a Rubicon Shareholder duly
complies with the Dissent Procedures as set out in subsection 5.11(a), then
Rubicon shall retain the portion of the New Rubicon, Paragon and CopperCo Common
Shares attributable to such Rubicon Shareholder (the “Non-Distributed New
Rubicon, Paragon and CopperCo Shares”), and the Non-Distributed New Rubicon,
Paragon and CopperCo Shares will be dealt with as determined by the Board of
Directors of Rubicon in its discretion.
-22-
-
RIGHTS
OF DISSENT AND APPRAISAL for africo shareholders
|
5.12
|
Africo
Dissent Right
|
Notwithstanding
section 3.1 hereof, Africo Shareholders may exercise rights of dissent (the
“Africo Dissent Right”) in connection with the Arrangement pursuant to the
Interim Order and this Article 6.
|
5.13
|
Africo
Notice of Dissent
|
A
Shareholder who wishes to exercise an Africo Dissent Right must give written
notice of dissent (“Notice of Dissent”) to Africo by depositing such Notice of
Dissent with Africo, or mailing it to Africo by registered mail, at its
registered office at 2800 - 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
X0X
0X0, marked to the attention of the President, not later than 5:00 p.m.
(local time), August 8, 2006. An Africo Shareholder who has given a Notice
of
Dissent in accordance with this section 6.2 is herein referred to as an
“Africo Dissenting Shareholder”. An Africo Shareholder who wishes to dissent
must prepare a separate notice of dissent for (i) the Africo Shareholder,
if the Shareholder is dissenting on its own behalf and (ii) each person who
beneficially owns shares in the Africo Shareholder’s name and on whose behalf
the Shareholder is dissenting. To be valid, a Notice of Dissent must:
|
(a)identify
in each Notice of Dissent the person on whose behalf dissent is being
exercised;
|
|
(b)set
out the number of Africo Common Shares in respect of which the Africo
Shareholder is exercising the Africo Dissent Right (the “Notice Shares”),
which number cannot be less than all of the Africo Common Shares held
by
the beneficial holder on whose behalf the Africo Dissent Right is being
exercised;
|
|
(c)if
the Notice Shares constitute all of the shares of which the Africo
Dissenting Shareholder is both the registered owner and beneficial
owner
and the Africo Dissenting Shareholder owns no other shares of Rubicon
as
beneficial owner, a statement to that
effect;
|
|
(d)if
the Notice Shares constitute all of the shares of which the Africo
Dissenting Shareholder is both the registered and beneficial owner
but the
Africo Dissenting Shareholder owns other shares of Rubicon as beneficial
owner, a statement to that effect, and
|
(i) (i)the
names
of the registered owners of those other shares,
(ii) (ii)the
number of those other shares that are held by each of those registered owners,
and
(iii) (iii)a
statement that Notices of Dissent are being or have been sent in respect of
all
those other shares; and
(iv) (iv)if
dissent is being exercised by the Africo Dissenting Shareholder on behalf of
a
beneficial owner who is not the Africo Dissenting Shareholder, a statement
to
that effect, and
(v) (v)the
name
and address of the beneficial owner, and
(vi) (vi)a
statement that the Dissenting Africo Shareholder is dissenting in relation
to
all of the shares beneficially owned by the beneficial owner that are registered
in the Dissenting Africo Shareholder’s name.
|
5.14
|
Right
of Dissenting Shareholder
|
The
giving of a Notice of Dissent does not deprive an Africo Shareholder of his
or
her right to vote at the Africo Meeting on the Special Resolution approving
the
Arrangement. A vote against the Special Resolution or the execution or exercise
of a proxy with instructions to vote against the Special Resolution does not
constitute a Notice of Dissent.
|
5.15
|
When
Africo Dissent Right Not
Available
|
An
Africo
Shareholder is not entitled to exercise an Africo Dissent Right with respect
to
any Africo Common Shares if an Africo Shareholder votes (or instructs or is
deemed, by submission of any incomplete proxy, to have instructed his or her
proxyholder to vote) in favour of the Special Resolution approving the
Arrangement. However, an Africo Shareholder may vote as a proxy for an Africo
Shareholder whose proxy required an affirmative vote, without affecting his
or
her right to exercise the Africo Dissent Right in respect of the Africo Common
Shares of which he or she is the registered holder.
|
5.16
|
Notice
to Proceed
|
If
Africo
intends to act on the authority of the Special Resolution approving the
Arrangement, it must send a notice (the “Notice to Proceed”) to the Africo
Dissenting Shareholder promptly after the later of:
|
(a)the
date on which Africo forms the intention to proceed,
and
|
|
(b)the
date on which the Notice of Dissent was
received.
|
If
Africo
has acted on the authority of that Special Resolution it must promptly send
a
Notice to Proceed to the Africo Dissenting Shareholder. The Notice to Proceed
must be dated not earlier than the date on which it is sent and state that
Africo intends to act or has acted on the authority of the Special Resolution
and advise the Dissenting Shareholder of the manner in which dissent is to
be
completed under section 6.7 hereof.
-23-
Entitlement
to Payment of Fair Value
On
receiving a Notice to Proceed in accordance with section 6.5 hereof, the
Africo Dissenting Shareholder is entitled to require Africo to purchase all
of
the Africo Common Shares in respect of which the Notice of Dissent was given.
|
5.17
|
Demand
for Payment of Fair Value
|
An
Africo
Dissenting Shareholder who receives a Notice to Proceed is bound to sell its
Africo Common Shares to Africo and must send to Africo within one month after
the date of the Notice to Proceed:
|
(a)a
written statement that the Africo Dissenting Shareholder requires Africo
to purchase all of the Notice Shares;
|
|
(b)the
certificates representing the Notice Shares,
and
|
|
(c)if
dissent is being exercised by the Africo Shareholder on behalf of a
beneficial owner who is not the Africo Dissenting Shareholder, a written
statement signed by the beneficial owner setting out whether the
beneficial owner is the beneficial owner of other shares of Africo
and if
so, setting out:
|
(i) (i)the
names
of the registered owners of those other shares,
(ii) (ii)the
number of those other shares that are held by each of those registered owners,
and
(iii) (iii)that
dissent is being exercised in respect of all of those other shares, whereupon
Africo is bound to purchase them in accordance with the Notice of
Dissent.
|
5.18
|
Payment
for Notice Shares
|
Africo
and the Africo Dissenting Shareholder may agree on the amount of the payout
value of the Notice Shares and in that event, Africo must either promptly pay
that amount to the Africo Dissenting Shareholder or send a notice to the Africo
Dissenting Shareholder that Africo is unable lawfully to pay Africo Dissenting
Shareholders for their share as Africo is insolvent or if the payment would
render Africo insolvent.
|
5.19
|
Application
to Court to Fix Payout
Value
|
If
Africo
and the Africo Dissenting Shareholder do not agree on the amount of the payout
value of the Notice Shares the Africo Dissenting Shareholder or Africo may
apply
to the court and the court may:
-24-
determine
the payout value of the Notice Shares or order that the payout value of the
Notice Shares be established by arbitration or by reference to the registrar
or
a referee of the court;
|
(a)join
in the application each Africo Dissenting Shareholder who has not agreed
with Rubicon on the amount of the payout value of the Notice Shares;
and
|
|
(b)make
consequential orders and give directions it considers
appropriate.
|
Promptly
after a determination of the payout value of the Notice Shares has been made,
Rubicon must either pay that amount to the Africo Dissenting Shareholder or
send
a notice to the Africo Dissenting Shareholder that Rubicon is unable lawfully
to
pay Africo Dissenting Shareholders for their shares as Rubicon is insolvent
or
if the payment would render Rubicon insolvent. If the Africo Dissenting
Shareholder receives a notice that Rubicon is unable to lawfully pay Africo
Dissenting Shareholders for their shares the Africo Dissenting Shareholder
may
within 30 days after receipt of the notice, withdraw his or her Notice of
Dissent. If the Notice of Dissent is not withdrawn the Dissenting Shareholder
remains a claimant against Rubicon to be paid as soon as Rubicon is lawfully
able to do so or, in a liquidation, to be ranked subordinate to the rights
of
creditors of Rubicon but in priority to its shareholders.
|
5.20
|
Deemed
Notice
|
Any
notice required to be given by Rubicon or an Africo Dissenting Shareholder
to
the other in connection with the exercise of the Dissent Right, will be deemed
to have been given and received, if delivered, on the day of delivery, if
mailed, on the earlier of the date of receipt or the second business day after
the day of mailing, or, if sent by telecopier or other similar form of
transmission, the first business day after the date of transmittal.
|
5.21
|
Consequences
of Exercising Africo Dissent
Rights
|
An
Africo
Shareholder who:
|
(a)properly
exercises the Africo Dissent Right by complying with all of the procedures
(the “Dissent Procedures”) required to be complied with by an Africo
Dissenting Shareholder, will:
|
(i) (i)be
bound
by the provisions of this Article 6;
(ii) (ii)be
deemed
not to have participated in the Arrangement; and
(iii) (iii)cease
to
have any rights as a Shareholder other than the right to be paid the payout
value of the Notice Shares by Africo in accordance with the Dissent Procedures
and is deemed to have disposed of his shares immediately prior to the Effective
Date; or
|
(b)seeks
to exercise the Africo Dissent Right,
but:
|
|
(c)who
for any reason does not properly comply with each of the Dissent
Procedures required to be complied with by an Africo Dissenting
Shareholder, or
|
(i) (i)subsequent
to giving his or her Notice of Dissent, acts inconsistently with such dissent;
will
be
deemed to have participated in the Arrangement on the same basis as each
non-dissenting Shareholder and will receive his or her pro rata portion of
the
CopperCo Common Shares based upon the number of Africo Common Shares of which
such Dissenting Shareholder is the registered holder. Africo may in its sole
discretion waive any non-compliance by a shareholder with any of the provisions
of this Article 6 in order to give effect to a shareholder’s Africo Dissent
Rights.
|
5.22
|
Abandonment
of Dissent
|
An
Africo
Dissenting Shareholder may not withdraw a Notice of Dissent without the consent
of Africo. An Africo Dissenting Shareholder may, with the written consent of
Africo, at any time prior to the payment to the Africo Dissenting Shareholder
of
the full amount of money to which the Dissenting shareholder is entitled under
this Article 6, abandon such Africo Dissenting Shareholder’s dissent to the
Arrangement by giving written notice to Africo withdrawing the Notice of Dissent
by depositing such notice with Africo or mailing it to Africo by registered
mail, at its registered office at 2800 - 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0, marked to the attention of the President, and will then
be deemed to have participated in the Arrangement on the same basis as each
non-dissenting shareholder and will receive such number of CopperCo Common
Shares to which he or she is entitled.
|
5.23
|
Reservation
of CopperCo Common Shares
|
If
an
Africo Shareholder exercises the Dissent Right, Africo shall on the Effective
Date set aside and not distribute that portion of the CopperCo Common Shares
which is attributable to the Africo Common Shares for which Dissent Rights
have
been exercised. If an Africo Shareholder exercises the Dissent Right, but,
as
set out in subsection 6.11(b), does not properly comply with the Dissent
Procedures or, subsequent to giving his or her Notice of Dissent, acts
inconsistently with such dissent, then Africo shall distribute to such Africo
Shareholder his or her pro rata portion of the CopperCo Common Shares. If an
Africo Shareholder duly complies with the Dissent Procedures as set out in
subsection 6.11(a), then Africo shall retain the portion of the CopperCo
Common Shares attributable to such Africo Shareholder (the “Non-Distributed
CopperCo Shares”), and the Non-Distributed CopperCo Shares will be dealt with as
determined by the Board of Directors of Africo in its discretion.
-25-
SCHEDULE
A
TO
PLAN OF ARRANGEMENT BEING APPENDIX I
TO
THE ARRANGEMENT AGREEMENT
MADE
AS OF THE 6th
DAY OF JULY, 2006, AMENDED AND RESTATED AS OF THE 8TH
DAY OF AUGUST, 2006 AND FURTHER AMENDED AND RESTATED AS OF THE
29TH
DAY OF SEPTEMBER, 2006,
AMONG
RUBICON
MINERALS CORPORATION,
PARAGON
MINERALS CORPORATION,
COPPERCO
RESOURCE CORP.
AND
AFRICO RESOURCES LTD.
(Paragraph
3.1 (a) Plan of Arrangement)
ARTICLE 26
- SPECIAL RIGHTS AND RESTRICTIONS ATTACHING TO THE NEW RUBICON COMMON SHARES,
RUBICON CLASS A COMMON SHARES, SERIES 1 SPECIAL SHARES AND SERIES 2
SPECIAL SHARES
1
SPECIAL RIGHTS AND RESTRICTIONS ATTACHING TO THE COMMON SHARES
The
common shares (the “Common Shares”) shall have attached thereto the following
special rights and restrictions:
|
26.1.1
|
Voting
|
The
holders of the Common Shares shall be entitled to receive notice of and to
attend all meetings of the shareholders of the Company and shall have one vote
for each Common Share held at all meetings of the shareholders of the Company,
except meetings at which only holders of another specified class or series
of
shares of the Company are entitled to vote separately as a class or
series.
|
26.1.2
|
Dividends
|
Subject
to the prior rights of the holders of any other shares ranking senior to the
Common Shares with respect to priority in the payment of dividends, the holders
of Common Shares shall be entitled to receive dividends and the Company shall
pay dividends thereon, as and when declared by the Board of Directors of the
Company out of moneys property applicable to the payment of dividends, in such
amount and in such form as the Board of Directors of the Company may from time
to time determine and all dividends which the Board of Directors of the Company
may declare on the Common Shares shall be declared and paid in equal amounts
per
share on all Common Shares at the time outstanding.
-26-
Liquidation,
Dissolution or Winding-Up
In
the
event of the dissolution, liquidation or winding-up of the Company, whether
voluntary or involuntary, or any other distribution of assets of the Company
among its shareholders for the purpose of winding-up its affairs, subject to
the
prior rights of any other shares ranking senior to the Common Shares with
respect to priority in the distribution of assets upon dissolution, liquidation,
winding-up or distribution for the purpose of winding-up, the holders of the
Common Shares shall be entitled to receive the remaining property and assets
of
the Company.
2SPECIAL
RIGHTS AND RESTRICTIONS ATTACHING TO THE CLASS A COMMON SHARES
The
class
A common shares (the “Class A Shares”) shall have attached thereto the following
special rights and restrictions:
|
26.2.1
|
Voting
|
The
holders of the Class A Shares shall be entitled to receive notice of and to
attend all meetings of the shareholders of the Company and shall have one vote
for each Class A Share held at all meetings of the shareholders of the Company,
except meetings at which only holders of another specified class or series
of
shares of the Company are entitled to vote separately as a class or
series.
|
26.2.2
|
Dividends
|
Subject
to the prior rights of any other shares ranking senior to the Class A Shares
with respect to priority in the payment of dividends, the holders of Class
A
Shares shall before dividends are paid on the Common Shares be entitled to
receive dividends in the aggregate amount of one hundred dollars ($100.00)
and
the Company shall pay dividends thereon, as and when declared by the Board
of
Directors of the Company out of monies property applicable to the payment of
dividends, and after such dividends have been paid, the holders of the
Class A Shares shall be entitled to receive dividends in such amount and in
such form as the Board of Directors of the Company may from time to time
determine and all dividends which the Board of Directors of the Company may
declare on the Class A Shares shall be declared and paid in equal amounts per
share on all Class A Shares at the time outstanding.
|
26.2.3
|
Liquidation,
Dissolution or Winding-Up
|
In
the
event of the dissolution, liquidation or winding-up of the Company, whether
voluntary or involuntary, or any other distribution of assets of the Company
among its shareholders for the purpose of winding-up its affairs, subject to
the
prior rights of any other shares ranking senior to the Class A Shares with
respect to priority in the distribution of assets upon dissolution, liquidation,
winding-up or distribution for the purpose of winding-up, the holders of the
Class A Shares shall be entitled to receive the remaining property and assets
of
the Company.
-27-
SPECIAL
RIGHTS AND RESTRICTIONS ATTACHING TO THE SERIES 1 SPECIAL
SHARES
The
series 1 special shares (the “Series 1 Special Shares”) with a par value
equal to the net book value of certain assets transferred by the Company to
Paragon Minerals Corporation shall have attached thereto the following special
rights and restrictions:
|
26.2.4
|
Voting
|
The
holders of Series 1 Special Shares shall be entitled to receive notice of
and to attend all meetings of the shareholders of the Company and shall have
one
vote for each Series 1 Special Share held at all meetings of the shareholders
of
the Company, except meetings at which only holders of another specified class
or
series of shares of the Company are entitled to vote separately as a class
or
series.
|
26.2.5
|
Dividends
|
Subject
to the rights, privileges, restrictions and conditions attaching to shares
of
any class of the Company ranking prior to the Series 1 Special Shares, the
holders thereof are entitled to receive such dividends payable in money,
property, or by the issue of fully paid shares of the Company, as may be
declared by the Board of Directors, and to receive on an equal basis share
for
share with the holders of the Common Shares and the Series 2 Special Shares
the remaining property of the Company upon the liquidation or winding up
thereof.
The
Directors of the Company may determine at any time and from time to time, with
respect to all or portion of any dividend on the Series 1 Special Shares of
the Company that such dividend shall be payable in money or, in the case of
electing holders whose addresses on the books of the Company are in Canada,
and
in jurisdictions specified by the Directors outside Canada, by the issue of
fully paid Series 1 Special Shares of the Company having a value, as
determined by the Directors, that is substantially equivalent, as of the date
or
period of days determined by the Directors, to the cash amount of such dividend,
provided that the Directors may (but need not) value the Series 1 Special
Shares to be issued in payment of the dividend at a discount from or premium
to
the relevant market value thereof of up to 5%, in either case.
With
respect to fractional shares that may result from any such stock dividend the
Company shall issue to an agent for shareholders appointed by the Company a
number of whole shares representing in the aggregate the fractional shares
of
all electing shareholders, unless the Directors of the Company otherwise
determine, for instance by the payment of cash in lieu of fractional share
interests that may result from any such stock dividend. In any event, no
certificates representing fractional share interests will be issued by the
Company.
|
26.2.6
|
Redemption
|
|
(a)
|
The
Company may, subject to the requirements of the Business
Corporations Act
(British Columbia), upon giving notice in the manner as hereinafter
provided, redeem at any time the whole, or from time to time any
part, of
the then
|
-28-
|
(b)
|
outstanding
Series 1 Special Shares by payment in cash, promissory note or
property of $?
for each share of any amount (the “Redemption Amount”) calculated
as:
|
|
(i)
|
the
fair market value of the assets to be transferred by the Company
to
Paragon Minerals Corporation under the Plan of Arrangement divided
by the
number of Series 1 Special Shares issued by the Company under the
Plan of
Arrangement (Note:
the dollar amount to be inserted in this Clause 26.3.3 will be determined
and inserted in these share provisions immediately prior to making
the
required filing with the British Columbia Registrar of Companies
to effect
the Plan of Arrangement);
plus
|
|
(ii)
|
all
declared and unpaid non-cumulative cash dividends
thereon.
|
|
(c)
|
In
the case of redemption of Series 1 Special Shares under the
provisions of sub-clause 26.3.3(a) hereof, the Company shall, unless
waived in writing by the holders of all of the Series 1 Special
Shares, at least 14 days before the date specified for redemption
deliver
or mail to each person who at the date of mailing is a registered
holder
of Series 1 Special Shares to be redeemed a notice in writing of the
intention of the Company to redeem such Series 1 Special Shares. Such
notice shall be delivered or mailed by letter, postage prepaid, addressed
to each such shareholder at his address as it appears on the records
of
the Company or in the event of the address of any such shareholder
not so
appearing then to the last known address of such shareholder or if
delivered, delivered to each such shareholder at such address; provided,
however, that accidental failure to give any such notice to one or
more of
such shareholders shall not affect the validity of such redemption.
Such
notice shall set out the Redemption Amount and the date on which
redemption is to take place and if part only of the shares held by
the
person to whom it is addressed is to be redeemed the number thereof
to be
so redeemed; provided, however, that if a part only of the Series 1
Special Shares for the time being outstanding is to be redeemed,
the
shares so to be redeemed shall be selected by lot in such manner
as the
directors in their discretion shall decide or if the directors so
determine may be redeemed pro rata (disregarding fractions) unless
otherwise agreed in writing by the holders of all of the Series 1
Special Shares. On or after the date so specified for redemption,
the
Company shall pay or cause to be paid to or to the order of the registered
holders of the Series 1 Special Shares to be redeemed the Redemption
Amount thereof on presentation and surrender at the registered office
of
the Company or any other place designated in such notice of the
certificates representing the Series 1 Special Shares called for
redemption. Such payment shall be made by cheque payable at par at
any
branch of the Company’s bankers in Canada or by promissory note. If less
than all of the Series 1 Special Shares represented by any
certificate are redeemed the holder shall be entitled to receive
a new
certificate for that number of Series 1 Special Shares represented by
the original certificate which are not redeemed. From
and
|
-29-
|
(d)
|
after
the date specified for redemption in any such notice the holders
of the
Series 1 Special Shares called for redemption shall cease to be
entitled to dividends and shall not be entitled to exercise any of
the
rights of shareholders in respect thereof unless payment of the Redemption
Amount shall not be made upon presentation of certificates in accordance
with the foregoing provisions, in which case the rights of shareholders
shall remain unaffected. The Company shall have the right at any
time
after the mailing of notice of its intention to redeem any Series 1
Special Shares to deposit the Redemption Amount of the shares, either
in
cash or promissory note, so called for redemption or of such of the
said
shares represented by certificates as have not at the date of such
deposit
been surrendered by the holders thereof in connection with such redemption
to a special account in any chartered bank or in any trust company
in
Canada, named in such notice, to be paid without interest to or to
the
order of the respective holders of such Series 1 Special Shares
called for redemption upon presentation and surrender to such bank
or
trust company of the certificates representing the same. Upon such
deposit
being made or upon the date specified for redemption in such notice,
whichever is the later, the Series 1 Special Shares in respect
whereof such deposit shall have been made shall be redeemed and the
rights
of the holders thereof after such deposit or such redemption date,
as the
case may be, shall be limited to receiving without interest their
proportionate part of the total Redemption Amount so deposited against
presentation and surrender of the said certificates held by them
respectively and any interest on the amount so deposited shall be
for the
account of the Company. If any part of the total Redemption Amount
so
deposited has not been paid to or to the order of the respective
holders
of the Series 1 Special Shares which were called for redemption
within two years after the date upon which such deposit was made
or the
date specified for redemption in the said notice, whichever is the
later
such balance remaining in the said special account shall be returned
to
the Company without prejudice to the rights of the holders of the
shares
being redeemed to claim the Redemption Amount without interest from
the
Company.
|
|
26.2.7
|
Retraction
|
Any
holder of Series 1 Special Shares shall be entitled to require the Company
to redeem, subject to the requirements of the Business
Corporations Act
(British
Columbia), at any time or times all or any of the Series 1 Special Shares
registered in the name of such holder on the books of the Company by tendering
to the Company at the registered office of the Company a share certificate
or
certificates representing the Series 1 Special Shares which the registered
holder desires to have the Company redeem together with a notice in writing
specifying (i) that the registered holder desires to have the Series 1
Special Shares represented by such certificate or certificates redeemed by
the
Company and (ii) the business day (“Retraction Date”) on which the holder
desires to have the Company redeem such Series 1 Special Shares. The
Retraction Date shall not be less than 30 days after the day on which the notice
in writing is given to the Company without the consent of the Company. Upon
receipt of a share certificate or certificates representing the Series 1
Special Shares which the registered holder desires to have the Company redeem
together
-30-
with
such
notice, the Company shall on the Retraction Date redeem such Series 1
Special Shares, by paying to such registered holder the Redemption Amount for
each such Special Preferred Share being redeemed. Such payment shall be made
by
a promissory note or a cheque payable at par at any branch of the Company’s
bankers for the time being in Canada. If less than all of the Series 1
Special Shares represented by any certificate are redeemed, the holder shall
be
entitled to receive a new certificate for that number of Series 1 Special
Shares represented by the original certificate or certificates which are not
redeemed. The said Series 1 Special Shares shall be redeemed on the
Retraction Date and from and after the Retraction Date the holder of such shares
shall cease to be entitled to dividends and shall not be entitled to exercise
any of the rights of holders of Series 1 Special Shares in respect thereof
unless payment of the Redemption Amount is not made on the Retraction Date,
in
which event the rights of the holder of the Series 1 Special Shares shall
remain unaffected.
|
26.2.8
|
Liquidation,
Dissolution or Winding-Up
|
In
respect of the declaration and payment of dividends and upon the liquidation,
dissolution or winding up of the Company the Series 1 Special Shares shall
rank pari
passu
with the
Series 2 Special Shares and Common Shares of the Company.
|
26.2.9
|
Amount
Specified
|
For
the
purposes of subsection 191(4) of the Income
Tax Act (Canada),
the
amount specified in respect of each Series 1 Special Share is $?.
(Note:
this amount will be the same as the amount in Clause 26.3.3
above.)
3SPECIAL
RIGHTS AND RESTRICTIONS ATTACHING TO THE SERIES 2 SPECIAL
SHARES
The
series 2 special shares (the “Series 2 Special Shares”) with a par
value equal to the net book value of certain assets transferred by the Company
to CopperCo Resource Corp. shall have attached thereto the following special
rights and restrictions:
|
26.3.1
|
Voting
|
The
holders of Series 2 Special Shares shall be entitled to receive notice of
and to attend all meetings of the shareholders of the Company and shall have
one
vote for each Series 2 Special Share held at all meetings of the
shareholders of the Company, except meetings at which only holders of another
specified class or series of shares of the Company are entitled to vote
separately as a class or series.
|
26.3.2
|
Dividends
|
Subject
to the rights, privileges, restrictions and conditions attaching to shares
of
any class of the Company ranking prior to the Series 2 Special Shares, the
holders thereof are entitled to receive such dividends payable in money,
property, or by the issue of fully paid shares of the Company, as may be
declared by the Board of Directors, and to receive on an equal basis share
for
share
-31-
with
the
holders of the Common Shares and the Series 1 Special Shares the remaining
property of the Company upon the liquidation or winding up thereof.
The
Directors of the Company may determine at any time and from time to time, with
respect to all or portion of any dividend on the Series 2 Special Shares of
the Company that such dividend shall be payable in money or, in the case of
electing holders whose addresses on the books of the Company are in Canada,
and
in jurisdictions specified by the Directors outside Canada, by the issue of
fully paid Series 2 Special Shares of the Company having a value, as
determined by the Directors, that is substantially equivalent, as of the date
or
period of days determined by the Directors, to the cash amount of such dividend,
provided that the Directors may (but need not) value the Series 2 Special
Shares to be issued in payment of the dividend at a discount from or premium
to
the relevant market value thereof of up to 5%, in either case.
With
respect to fractional shares that may result from any such stock dividend the
Company shall issue to an agent for shareholders appointed by the Company a
number of whole shares representing in the aggregate the fractional shares
of
all electing shareholders, unless the Directors of the Company otherwise
determine, for instance by the payment of cash in lieu of fractional share
interests that may result from any such stock dividend. In any event, no
certificates representing fractional share interests will be issued by the
Company.
|
26.3.3
|
Redemption
|
|
(a)
|
The
Company may, subject to the requirements of the Business
Corporations Act
(British Columbia), upon giving notice in the manner as hereinafter
provided, redeem at any time the whole, or from time to time any
part, of
the then outstanding Series 2 Special Shares by payment in cash,
promissory note or property of $?
for each share of any amount (the “Redemption Amount”) calculated
as:
|
|
(i)
|
the
fair market value of the assets to be transferred by the Company
to
CopperCo Resource Corp. under the Plan of Arrangement divided by
the
number of Series 2 Special Shares issued by the Company under the
Plan of
Arrangement (Note:
the dollar amount to be inserted in this Clause 26.4.3 will be determined
and inserted in these share provisions immediately prior to making
the
required filing with the British Columbia Registrar of Companies
to effect
the Plan of Arrangement);
plus
|
|
(ii)
|
all
declared and unpaid non-cumulative cash dividends
thereon.
|
|
(b)
|
In
the case of redemption of Series 2 Special Shares under the
provisions of sub-clause 26.4.3(a) hereof, the Company shall, unless
waived in writing by the holders of all of the Series 2 Special
Shares, at least 14 days before the date specified for redemption
deliver
or mail to each person who at the date of mailing is a registered
holder
of Series 2 Special Shares to be redeemed a notice in
writing
|
-32-
|
(c)
|
of
the intention of the Company to redeem such Series 2 Special Shares.
Such notice shall be delivered or mailed by letter, postage prepaid,
addressed to each such shareholder at his address as it appears on
the
records of the Company or in the event of the address of any such
shareholder not so appearing then to the last known address of such
shareholder or if delivered, delivered to each such shareholder at
such
address; provided, however, that accidental failure to give any such
notice to one or more of such shareholders shall not affect the validity
of such redemption. Such notice shall set out the Redemption Amount
and
the date on which redemption is to take place and if part only of
the
shares held by the person to whom it is addressed is to be redeemed
the
number thereof to be so redeemed; provided, however, that if a part
only
of the Series 2 Special Shares for the time being outstanding is to
be redeemed, the shares so to be redeemed shall be selected by lot
in such
manner as the directors in their discretion shall decide or if the
directors so determine may be redeemed pro rata (disregarding fractions)
unless otherwise agreed in writing by the holders of all of the
Series 2 Special Shares. On or after the date so specified for
redemption, the Company shall pay or cause to be paid to or to the
order
of the registered holders of the Series 2 Special Shares to be
redeemed the Redemption Amount thereof on presentation and surrender
at
the registered office of the Company or any other place designated
in such
notice of the certificates representing the Series 2 Special Shares
called for redemption. Such payment shall be made by cheque payable
at par
at any branch of the Company’s bankers in Canada or by promissory note. If
less than all of the Series 2 Special Shares represented by any
certificate are redeemed the holder shall be entitled to receive
a new
certificate for that number of Series 2 Special Shares represented by
the original certificate which are not redeemed. From and after the
date
specified for redemption in any such notice the holders of the
Series 2 Special Shares called for redemption shall cease to be
entitled to dividends and shall not be entitled to exercise any of
the
rights of shareholders in respect thereof unless payment of the Redemption
Amount shall not be made upon presentation of certificates in accordance
with the foregoing provisions, in which case the rights of shareholders
shall remain unaffected. The Company shall have the right at any
time
after the mailing of notice of its intention to redeem any Series 2
Special Shares to deposit the Redemption Amount of the shares, either
in
cash or promissory note, so called for redemption or of such of the
said
shares represented by certificates as have not at the date of such
deposit
been surrendered by the holders thereof in connection with such redemption
to a special account in any chartered bank or in any trust company
in
Canada, named in such notice, to be paid without interest to or to
the
order of the respective holders of such Series 2 Special Shares
called for redemption upon presentation and surrender to such bank
or
trust company of the certificates representing the same. Upon such
deposit
being made or upon the date specified for redemption in such notice,
whichever is the later, the Series 2 Special Shares in respect
whereof such deposit shall have been made shall be redeemed and the
rights
of the holders thereof after such deposit or such redemption date,
as the
case may be, shall be limited to
receiving
|
-33-
|
(d)
|
without
interest their proportionate part of the total Redemption Amount
so
deposited against presentation and surrender of the said certificates
held
by them respectively and any interest on the amount so deposited
shall be
for the account of the Company. If any part of the total Redemption
Amount
so deposited has not been paid to or to the order of the respective
holders of the Series 2 Special Shares which were called for
redemption within two years after the date upon which such deposit
was
made or the date specified for redemption in the said notice, whichever
is
the later such balance remaining in the said special account shall
be
returned to the Company without prejudice to the rights of the holders
of
the shares being redeemed to claim the Redemption Amount without
interest
from the Company.
|
|
26.3.4
|
Retraction
|
Any
holder of Series 2 Special Shares shall be entitled to require the Company
to redeem, subject to the requirements of the Business
Corporations Act
(British
Columbia), at any time or times all or any of the Series 2 Special Shares
registered in the name of such holder on the books of the Company by tendering
to the Company at the registered office of the Company a share certificate
or
certificates representing the Series 2 Special Shares which the registered
holder desires to have the Company redeem together with a notice in writing
specifying (i) that the registered holder desires to have the Series 2
Special Shares represented by such certificate or certificates redeemed by
the
Company and (ii) the business day (“Retraction Date”) on which the holder
desires to have the Company redeem such Series 2 Special Shares. The
Retraction Date shall not be less than 30 days after the day on which the notice
in writing is given to the Company without the consent of the Company. Upon
receipt of a share certificate or certificates representing the Series 2
Special Shares which the registered holder desires to have the Company redeem
together with such notice, the Company shall on the Retraction Date redeem
such
Series 2 Special Shares, by paying to such registered holder the Redemption
Amount for each such Special Preferred Share being redeemed. Such payment shall
be made by a promissory note or a cheque payable at par at any branch of the
Company’s bankers for the time being in Canada. If less than all of the
Series 2 Special Shares represented by any certificate are redeemed, the
holder shall be entitled to receive a new certificate for that number of
Series 2 Special Shares represented by the original certificate or
certificates which are not redeemed. The said Series 2 Special Shares shall
be redeemed on the Retraction Date and from and after the Retraction Date the
holder of such shares shall cease to be entitled to dividends and shall not
be
entitled to exercise any of the rights of holders of Series 2 Special
Shares in respect thereof unless payment of the Redemption Amount is not made
on
the Retraction Date, in which event the rights of the holder of the
Series 2 Special Shares shall remain unaffected.
|
26.3.5
|
Liquidation,
Dissolution or Winding-Up
|
In
respect of the declaration and payment of dividends and upon the liquidation,
dissolution or winding up of the Company the Series 2 Special Shares shall
rank pari
passu
with the
Series 1 Special Shares and the Common Shares of the Company.
-34-
Amount
Specified
For
the
purposes of subsection 191(4) of the Income
Tax Act (Canada),
the
amount specified in respect of each Series 2 Special Share is $?.
(Note:
this amount will be the same as the amount in Clause 26.4.3
above.)
-35-
SCHEDULE
B TO PLAN OF ARRANGEMENT BEING APPENDIX I
TO
THE ARRANGEMENT AGREEMENT MADE AS OF THE 6TH
DAY OF JULY, 2006, AMENDED AND RESTATED AS OF THE 8TH
DAY OF AUGUST, 2006 AND FURTHER AMENDED AND RESTATED AS OF THE
29TH
DAY OF SEPTEMBER, 2006, AMONG RUBICON MINERALS CORPORATION, PARAGON MINERALS
CORPORATION,
COPPERCO
RESOURCE CORP. AND AFRICO RESOURCES LTD.
(Paragraphs
3.1 (c)
and (d)
of Plan of Arrangement)
PROVISIONS
ATTACHING TO THE SPECIAL PREFERRED SHARES
The
rights, privileges, restrictions and conditions attaching to the Special
Preferred Shares are as follows:
|
1.1
|
Voting
|
The
holders of the Special Preferred Shares shall be entitled to receive notice
of
and to attend all meetings of the shareholders of the Company and shall have
one
vote for each Special Preferred Share held at all meetings of the shareholders
of the Company, except meetings at which only holders of another specified
class
or series of shares of the Company are entitled to vote separately as a class
or
series.
|
1.2
|
Dividends
|
Subject
to the rights, privileges, restrictions and conditions attaching to shares
of
any class of the Company ranking prior to the Special Preferred Shares, the
holders thereof are entitled to receive such dividends payable in money,
property, or by the issue of fully paid shares of the Company, as may be
declared by the Board of Directors and to receive on an equal basis share for
share with the holders of the Common Shares the remaining property of the
Company upon the liquidation or winding up thereof.
The
Directors of the Company may determine at any time and from time to time, with
respect to all or portion of any dividend on the Special Preferred Shares of
the
Company that such dividend shall be payable in money or, in the case of electing
holders whose addresses on the books of the Company are in Canada, and in
jurisdictions specified by the Directors outside Canada, by the issue of fully
paid Special Preferred Shares of the Company having a value, as determined
by
the Directors, that is substantially equivalent, as of the date or period of
days determined by the Directors, to the cash amount of such dividend, provided
that the Directors may (but need not) value the Special Preferred Shares to
be
issued in payment of the dividend at a discount from or premium to the relevant
market value thereof of up to 5%,
in
either
case.
-36-
With
respect to fractional shares that may result from any such stock dividend the
Company shall issue to an agent for shareholders appointed by the Company a
number of whole shares representing in the aggregate the fractional shares
of
all electing shareholders, unless the Directors of the Company otherwise
determine, for instance by the payment of cash in lieu of fractional share
interests that may result from any such stock dividend. In any event, no
certificates representing fractional share interests will be issued by the
Company.
|
1.3
|
Redemption
|
|
(a)
|
The
Company may, subject to the requirements of the Canada
Business Corporations Act,
upon giving notice in the manner as hereinafter provided, redeem
at any
time the whole, or from time to time any part, of the then outstanding
Special Preferred Shares by payment in cash, promissory note or property
of $·
for each share of any amount (the “Redemption Amount”) calculated
as:
|
|
(i)
|
the
fair market value of the property first received by the Company in
consideration for issuing the Special Preferred Shares;
plus
|
|
(ii)
|
all
declared and unpaid non-cumulative cash dividends thereon, divided
by the
number of Special Preferred Shares first issued for such
property.
|
|
(b)
|
In
the case of redemption of Special Preferred Shares under the provisions
of
sub-clause 3(a) hereof, the Company shall, unless waived in writing
by the
holders of all of the Special Preferred Shares, at least 14 days
before
the date specified for redemption deliver or mail to each person
who at
the date of mailing is a registered holder of Special Preferred Shares
to
be redeemed a notice in writing of the intention of the Company to
redeem
such Special Preferred Shares. Such notice shall be delivered or
mailed by
letter, postage prepaid, addressed to each such shareholder at his
address
as it appears on the records of the Company or in the event of the
address
of any such shareholder not so appearing then to the last known address
of
such shareholder or if delivered, delivered to each such shareholder
at
such address; provided, however, that accidental failure to give
any such
notice to one or more of such shareholders shall not affect the validity
of such redemption. Such notice shall set out the Redemption Amount
and
the date on which redemption is to take place and if part only of
the
shares held by the person to whom it is addressed is to be redeemed
the
number thereof to be so redeemed; provided, however, that if a part
only
of the Special Preferred Shares for the time being outstanding is
to be
redeemed, the shares so to be redeemed shall be selected by lot in
such
manner as the directors in their discretion shall decide or if the
directors so determine may be redeemed pro rata (disregarding fractions)
unless otherwise agreed in writing by the holders of all of the Special
Preferred Shares. On or after the date so specified for redemption,
the
Company shall pay or cause to be paid to or to the order of the registered
holders of the Special Preferred Shares to be redeemed the Redemption
Amount thereof on
|
-37-
presentation
and surrender at the registered office of the Company or any other place
designated in such notice of the certificates representing the Special Preferred
Shares called for redemption. Such payment shall be made by cheque payable
at
par at any branch of the Company’s bankers in Canada. If less than all of the
Special Preferred Shares represented by any certificate are redeemed the holder
shall be entitled to receive a new certificate for that number of Special
Preferred Shares represented by the original certificate which are not redeemed.
From and after the date specified for redemption in any such notice the holders
of the Special Preferred Shares called for redemption shall cease to be entitled
to dividends and shall not be entitled to exercise any of the rights of
shareholders in respect thereof unless payment of the Redemption Amount shall
not be made upon presentation of certificates in accordance with the foregoing
provisions, in which case the rights of shareholders shall remain unaffected,
the Company shall have the right at any time after the mailing of notice of
its
intention to redeem any Special Preferred Shares to deposit the Redemption
Amount of the shares so called for redemption or of such of the said shares
represented by certificates as have not at the date of such deposit been
surrendered by the holders thereof in connection with such redemption to a
special account in any chartered bank or in any trust company in Canada, named
in such notice, to be paid without interest to or to the order of the respective
holders of such Special Preferred Shares called for redemption upon presentation
and surrender to such bank or trust company of the certificates representing
the
same. Upon such deposit being made or upon the date specified for redemption
in
such notice, whichever is the later, the Special Preferred Shares in respect
whereof such deposit shall have been made shall be redeemed and the rights
of
the holders thereof after such deposit or such redemption date, as the case
may
be, shall be limited to receiving without interest their proportionate part
of
the total Redemption Amount so deposited against presentation and surrender
of
the said certificates held by them respectively and any interest on the amount
so deposited shall be for the account of the Company. If any part of the total
Redemption Amount so deposited has not been paid to or to the order of the
respective holders of the Special Preferred Shares which were called for
redemption within two years after the date upon which such deposit was made
or
the date specified for redemption in the said notice, whichever is the later
such balance remaining in the said special account shall be returned to the
Company without prejudice to the rights of the holders of the shares being
redeemed to claim the Redemption Amount without interest from the
Company.
|
1.4
|
Retraction
|
Any
holder of Special Preferred Shares shall be entitled to require the Company
to
redeem, subject to the requirements of the Canada
Business Corporations Act,
at any
time or times all or any of the Special Preferred Shares registered in the
name
of such holder on the books of the Company by tendering to the Company at the
registered office of the Company a share certificate or certificates
representing the Special Preferred Shares which the registered holder desires
to
have the Company redeem together with a notice in writing specifying
(i) that the registered
-38-
holder
desires to have the Special Preferred Shares represented by such certificate
or
certificates redeemed by the Company and (ii) the business day (“Retraction
Date”) on which the holder desires to have the Company redeem such Special
Preferred Shares. The Retraction Date shall not be less than 30 days after
the
day on which the notice in writing is given to the Company without the consent
of the Company. Upon receipt of a share certificate or certificates representing
the special Preferred Shares which the registered holder desires to have the
Company redeem together with such notice, the Company shall on the Retraction
Date redeem such Special Preferred Shares, by paying to such registered holder
the Redemption Amount for each such Special Preferred Share being redeemed.
Such
payment shall be made by a cheque payable at par at any branch of the Company’s
bankers for the time being in Canada. If less than all of the Special Preferred
Shares represented by any certificate are redeemed, the holder shall be entitled
to receive a new certificate for that number of Special Preferred Shares
represented by the original certificate or certificates which are not redeemed.
The said Special Preferred Shares shall be redeemed on the Retraction Date
and
from and after the Retraction Date the holder of such shares shall cease to
be
entitled to dividends and shall not be entitled to exercise any of the rights
of
holders of Special Preferred Shares in respect thereof unless payment of the
Redemption Amount is not made on the Retraction Date, in which event the rights
of the holder of the Special Preferred Shares shall remain
unaffected.
|
1.5
|
Liquidation,
Dissolution or Winding-Up
|
In
respect of the declaration and payment of dividends and upon the liquidation,
dissolution or winding up of the Company the Special Preferred Shares shall
rank
ahead of and in priority to the Common Shares of the Company.
|
1.6
|
Amount
Specified
|
For
the
purpose of subsection 191(4) of the Income
Tax Act (Canada),
the
amount specified in respect of each Special Preferred Share is $·.
(Note:
this amount will be the same as the amount in Clause 1.3(a)
above.)
