IAMGOLD CORPORATION (“IAMGOLD”) and OREZONE RESOURCES INC. (“Orezone”) and OREZONE GOLD CORPORATION (“New Orezone”)
Exhibit
99.1
IAMGOLD
CORPORATION
(“IAMGOLD”)
and
OREZONE
RESOURCES INC.
(“Orezone”)
and
OREZONE
GOLD CORPORATION
(“New
Orezone”)
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AMENDMENT
NO. 1 TO
PLAN
OF ARRANGEMENT
AND ARRANGEMENT
AGREEMENT
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January
12, 2009
AMENDMENT
NO. 1 TO
PLAN
OF ARRANGEMENT
AND
ARRANGEMENT AGREEMENT
THIS AMENDING AGREEMENT is
dated as of January 12, 2009,
AMONG: IAMGOLD CORPORATION, a
corporation existing under the laws of Canada;
(“IAMGOLD”)
AND: OREZONE RESOURCES INC., a
corporation existing under the laws of Canada;
(“Orezone”)
AND: OREZONE GOLD CORPORATION, a
corporation existing under the laws of Canada;
(“New Orezone”)
(each a “Party” and collectively the
“Parties”)
WHEREAS IAMGOLD, Orezone and
New Orezone have entered into an arrangement agreement dated December 10, 2008
(the “Arrangement
Agreement”) pursuant to which they agreed to effect a business
combination transaction;
AND WHEREAS the Parties hereto
intend to carry out the proposed business combination transaction by way of a
plan of arrangement under the provisions of the Canada Business Corporations
Act in the form attached to the Arrangement Agreement as schedule A (the
“Plan of
Arrangement”);
AND WHEREAS each of the
Parties hereto desires to amend certain terms of the Arrangement Agreement and
certain terms of the Plan of Arrangement;
WITNESSETH THAT in
consideration of the mutual covenants and agreements herein contained and other
good and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the Parties hereto hereby covenant and agree as
follows:
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1.
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The
Arrangement Agreement is hereby amended in accordance with section 7.4
thereof by deleting “7086130 Canada Inc.” from the definition of “New
Orezone” in paragraph 1.1(nnn) of the Arrangement Agreement and replacing
it with “Orezone Gold Corporation”.
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2.
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The
Arrangement Agreement is hereby amended in accordance with section 7.4
thereof by deleting the last sentence in paragraph 3.2(d)(i) of the
Arrangement Agreement in its entirety and replacing it
with:
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“Except
as set out above, the terms of each IAMGOLD Replacement Option shall be the same
as the terms of the options of IAMGOLD issuable under the share incentive plan
of IAMGOLD as amended and restated on April 11, 2007.”
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3.
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The
Arrangement Agreement is hereby amended in accordance with section 7.4
thereof by deleting schedule A to the Arrangement Agreement in its
entirety and replacing it with schedule A attached
hereto.
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4.
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Each
of the Parties hereto agrees to take all actions necessary to give effect
to the amendments to the Plan of Arrangement and the Arrangement Agreement
contained in, respectively, sections 1 and 2 of this amending agreement
(this “Amending
Agreement”), including filing this
Amending Agreement and such other materials as may be required with the
Court.
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5.
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Capitalized
words and terms used herein and not otherwise defined herein shall have
the meaning given them in the Arrangement
Agreement.
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6.
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7.
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This
Amending Agreement may, at any time and from time to time be amended by
written agreement of the Parties
hereto.
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8.
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This
Amending Agreement may not be assigned by any Party hereto without the
prior written consent of the other Parties
hereto.
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9.
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Time
shall be of the essence in this Amending
Agreement.
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10.
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This
Amending Agreement shall be binding upon and shall enure to the benefit of
the Parties hereto and their respective successors and permitted
assigns.
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11.
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This
Amending Agreement may be executed in counterparts, each of which when
delivered (whether in originally executed form or by facsimile
transmission) shall conclusively be deemed to be an original and all of
which together shall constitute one and the same
document.
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Remainder
of page intentionally left blank
3.
IN WITNESS WHEREOF the Parties
hereto have executed this Amending Agreement as of the date first above
written.
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IAMGOLD
CORPORATION
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Per:
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/s/
Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
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President
and Chief Executive Officer
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Per:
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/s/
Xxxxx Xxxxxxxx
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Xxxx
Xxxxxxxx
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Senior
Vice President, Corporate Affairs
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OREZONE
RESOURCES INC.
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Per:
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/s/
Xxxxxx X. Little
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Xxxxxx
X. Little
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Chief
Executive Officer
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OREZONE
GOLD CORPORATION
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Per:
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/s/
Xxxxxx X. Little
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Xxxxxx
X. Little
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Chief
Executive Officer
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4.
SCHEDULE
A
PLAN
OF ARRANGEMENT UNDER SECTION 192
OF
THE CANADA BUSINESS
CORPORATIONS ACT
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1.
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INTERPRETATION
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(a)
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Definitions: In
this Plan of Arrangement, unless the context otherwise requires, the
following words and terms shall have the meaning hereinafter set
out:
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(i)
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“Amalgamation” means the
amalgamation of IAMGOLD Subco and Orezone under the CBCA on the terms
prescribed under this Plan of
Arrangement;
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(ii)
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“Arrangement” means the
arrangement under the provisions of section 192 of the CBCA, on the terms
and conditions set forth in this Plan of Arrangement, subject to any
amendment or supplement hereto made in accordance with the Arrangement
Agreement and the provisions hereof or made at the direction of the Court
in the Final Order;
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(iii)
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“Arrangement Agreement”
means the Arrangement Agreement dated December 10, 2008 to which this Plan
of Arrangement is attached as schedule
A;
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(iv)
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“Arrangement Resolution”
means the Special Resolution of Orezone Shareholders approving the
Arrangement;
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(v)
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“Business Day” means a
day which is not a Saturday, Sunday or a civic or statutory holiday in
Toronto, Ontario;
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(vi)
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“CBCA” means the Canada Business Corporations
Act, as amended;
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(vii)
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“Class A Shares” means
the class A common shares of Orezone which are to be created in accordance
with this Plan of Arrangement and which shall have attached thereto the
right to vote at all meetings of Orezone Shareholders, the right to
dividends as and when declared by the directors of Orezone, subject to the
preferential right of the holders of Class B Shares to dividends and the
right to participate in the remaining assets of Orezone upon a winding up
of Orezone;
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(viii)
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“Class B Shares” means
the Orezone Shares following their re-designation as Class B Shares in
accordance with this Plan of Arrangement, such Class B Shares to bear the
same rights and privileges as the Orezone Shares provided that such Class
B Shares shall be entitled to dividends as and when declared by the
directors of Orezone in preference to dividends to be paid on the Class A
Shares;
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(ix)
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“Closing Date” means the
Business Day that is three Business Days after the granting of the Final
Order or such other date as the parties to the Arrangement Agreement may
agree;
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(x)
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“Convertible Debenture Waiver
Agreement” means the agreement among IAMGOLD, Orezone and the
Debentureholder dated December 10, 2008 relating to the Orezone
Convertible Debenture;
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5.
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(xi)
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“Court” means the Ontario
Superior Court of Justice (Commercial
List);
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(xii)
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“Debentureholder” means
MinQuest Fund I, L.P.;
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(xiii)
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“Depositary” means any
trust company, bank or financial institution agreed to in writing between
IAMGOLD and Orezone for the purpose of, among other things, exchanging
certificates representing IAMGOLD Shares and New Orezone Shares in
connection with the Arrangement;
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(xiv)
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“Director” means the
Director appointed pursuant to section 260 of the
CBCA;
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(xv)
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“Dissent Procedures”
means the procedures set forth in section 190 of the CBCA and the Interim
Order required to be taken by an Orezone Shareholder to exercise the right
of dissent in respect of Orezone Shares in connection with the
Arrangement;
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(xvi)
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“Dissent Rights” means
the rights of dissent of Orezone Shareholders in respect of the
Arrangement Resolution as defined in section 4
hereof;
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(xvii)
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“Dissenting Orezone
Shareholder” means an Orezone Shareholder who has duly exercised a
Dissent Right in strict compliance with the Dissent
Procedures;
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(xviii)
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“Effective Date” means
the date shown in the certificate of arrangement issued in accordance with
section 262 of the CBCA in respect of the Arrangement, being the Closing
Date, or such other date as may be agreed to by the parties to the
Arrangement Agreement;
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(xix)
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“Effective Time” means
the time when the Arrangement will be deemed to have been completed, which
shall be 12:01 a.m., Toronto time, on the Effective
Date;
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(xx)
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“Encumbrance” means any
mortgage, hypothec, pledge, assignment, charge, lien, claim, security
interest, adverse interest, other third Person interest or encumbrance of
any kind, whether contingent or absolute, and any agreement, option, right
or privilege (whether by law, contract or otherwise) capable of becoming
any of the foregoing;
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(xxi)
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“Exchange Ratio” means
0.08;
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(xxii)
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“Final Order” means the
final order of the Court approving the Arrangement, as such order may be
amended by the Court (with the consent of IAMGOLD and Orezone) at any time
prior to the Effective Date or, if appealed, then unless such appeal is
withdrawn or denied, as affirmed or as amended on
appeal;
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(xxiii)
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“IAMGOLD” means IAMGOLD
Corporation, a corporation existing under the laws of
Canada;
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(xxiv)
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“IAMGOLD Amalco” means
the corporation formed as a result of the amalgamation of Orezone and
IAMGOLD Subco;
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6.
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(xxv)
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“IAMGOLD Replacement
Options” has the meaning given to such term in paragraph 3(a)(xi)
hereof;
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(xxvi)
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“IAMGOLD Shares” means
the common shares which IAMGOLD is authorized to issue as presently
constituted;
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(xxvii)
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“IAMGOLD Subco” means
l, a
wholly-owned subsidiary of IAMGOLD existing under the laws of
Canada;
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(xxviii)
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“Interim Order” means the
interim order of the Court providing for, among other things, the calling
and holding of the Orezone Meeting, as such order may be amended,
supplemented or varied by the
Court;
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(xxix)
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“Letter of Transmittal”
means the letter of transmittal to be delivered by Orezone to the Orezone
Shareholders providing for the delivery of the Orezone Shares to the
Depositary;
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(xxx)
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“New Orezone” means
Orezone Gold Corporation, a corporation existing under the laws of
Canada;
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(xxxi)
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“New Orezone Shares”
means the common shares which New Orezone is authorized to issue as
presently constituted;
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(xxxii)
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“Orezone” means Orezone
Resources Inc., a corporation existing under the laws of
Canada;
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(xxxiii)
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“Orezone Convertible
Debenture” means the 6% convertible debenture dated July 1, 2008
and maturing July 1, 2011 in the principal amount of $10,000,000 issued by
Orezone to the Debentureholder, as changed by the Convertible Debenture
Waiver Agreement;
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(xxxiv)
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“Orezone Meeting” means
the special meeting of Orezone Shareholders, including any adjournment or
adjournments or postponement or postponements thereof, to be held for the
purpose of obtaining approval by Orezone Shareholders of the Arrangement
Resolution;
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(xxxv)
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“Orezone 1997 Options”
means the outstanding options to acquire Orezone Shares and which have
been issued pursuant to the stock option plan of Orezone as approved by
the directors of Orezone and by the Orezone Shareholders in
1997;
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(xxxvi)
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“Orezone 2008 Options”
means the outstanding options to acquire Orezone Shares and which have
been issued pursuant to the stock option plan of Orezone as approved by
the directors of Orezone on April 24, 2008 and by the Orezone Shareholders
on May 29, 2008;
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(xxxvii)
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“Orezone Shareholder”
means a Person who is a registered holder of Orezone Shares as shown on
the share register of Orezone and for the purposes of the Orezone Meeting,
is a registered holder of Orezone Shares as of the record date therefor,
and for the purposes of the Arrangement, is a registered holder of Orezone
Shares immediately prior to the Effective
Time;
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(xxxviii)
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“Orezone Shares” means
the common shares which Orezone is authorized to issue as presently
constituted and following the re-designation of such common shares to
Class B Shares in accordance with this Plan of Arrangement, means the
Class B Shares which Orezone will be authorized to issue and,
following the exchange of the Class B Shares for Class A Shares and New
Orezone Shares in accordance with this Plan of Arrangement, means the
Class A Shares which Orezone is authorized to
issue;
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7.
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(xxxix)
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“Orezone Warrants” means
the warrants to purchase up to 2,000,000 Orezone Shares issued by Orezone
to Standard Bank plc under the warrant agreement dated August 29,
2008;
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(xl)
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“Person” means any
individual, corporation, firm, partnership (including, without limitation,
a limited partnership), sole proprietorship, syndicate, joint venture,
trustee, trust, any unincorporated organization or association, any
government or instrumentality thereof and any
tribunal;
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(xli)
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“Special Resolution” has
the meaning ascribed to such term in the CBCA;
and
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(xlii)
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“Tax Act” means the Income Tax Act (Canada)
and the regulations thereunder as amended from time to
time.
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(b)
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Interpretation Not
Affected by Headings. The headings contained in this
Plan of Arrangement are for convenience reference only and shall not
affect in any way the meaning or interpretation of this Plan of
Arrangement. The terms “this Plan of Arrangement”,
“hereof’, “herein”, “hereto”, “hereunder” and similar
expressions refer to this Plan of Arrangement and not to any particular
article, section, subsection, paragraph, subparagraph, clause or
sub-clause hereof and include any agreement or instrument supplementary or
ancillary hereto.
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(c)
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Date for any
Action. If the date on which any action is required to
be taken hereunder is not a Business Day, such action shall be required to
be taken on the next succeeding day which is a Business
Day.
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(d)
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Number and
Gender. In this Plan of Arrangement, unless the context
otherwise requires, words importing the singular include the plural and
vice versa and words importing gender include all genders and
neuter.
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(e)
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References to
Persons. A reference to a Person includes any successor
to that Person. A reference to any statute includes all regulations made
pursuant to such statute and the provisions of any statute or regulation
which amends, supplements or supersedes any such statute or
regulation.
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(f)
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Currency. Unless
otherwise stated in this Plan of Arrangement, all references herein to
amounts of money are expressed in lawful money of
Canada.
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2.
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ARRANGEMENT
AGREEMENT
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This Plan
of Arrangement is made pursuant to and subject to the provisions of the
Arrangement Agreement. At the Effective Time, the Arrangement shall be binding
upon IAMGOLD, IAMGOLD Subco, IAMGOLD Amalco, Orezone, New Orezone and the
Orezone Shareholders.
8.
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3.
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THE
ARRANGEMENT
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(a)
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The
Arrangement. At the Effective Time, the following shall
occur and shall be deemed to occur in the following order without any
further act or formality:
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(i)
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The
holders of the Orezone 2008 Options, the Orezone Convertible Debenture and
the Orezone Warrants shall not be entitled to receive Orezone Shares upon
the exercise thereof.
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(ii)
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Each
Orezone 2008 Option outstanding immediately prior to the Effective Time,
whether vested or not, shall remain outstanding in accordance with its
terms which provide that such Orezone 2008 Option may be exercised by the
holder thereof at any time up to and including (but not after) the date
that is 30 days after the Effective
Time.
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(iii)
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The
Orezone Warrants, if outstanding immediately prior to the Effective Time,
will remain outstanding in accordance with their
terms.
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(iv)
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The
Orezone Convertible Debenture, if outstanding immediately prior to the
Effective Time, will be terminated and the Debentureholder will receive
from IAMGOLD as to 50 per cent of the principal and interest owing
thereunder cash and, as to the remaining 50 per cent of the principal and
interest owing thereunder, IAMGOLD Shares on the terms and conditions set
out in the Convertible Debenture Waiver
Agreement.
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(v)
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Orezone
shall undertake a reorganization of capital within the meaning of section
86 of the Tax Act as follows, and in the following
order:
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A.
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The
authorized capital of Orezone will be amended
by:
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I.
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re-designating
the Orezone Shares as Class B Shares and each certificate representing
such an outstanding Orezone Share shall, as and from the time such
re-designation is effective, represent a Class B Share;
and
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II.
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the
creation of an unlimited number of Class A
Shares;
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and the
articles of Orezone shall be deemed to be amended accordingly
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B.
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Each
issued Class B Share, other than those held by Dissenting Orezone
Shareholders, will be exchanged with Orezone for one Class A Share and
0.125 New Orezone Shares.
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C.
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The
stated capital of Orezone for the outstanding Class A Shares will be an
amount equal to the paid up capital (within the meaning of the Tax Act) of
Orezone for the Class B Shares, less the paid up capital (within the
meaning of the Tax Act) of Orezone that is attributable to each issued
Class B Share held by Dissenting Orezone Shareholders and described in
paragraph 3(a)(vi) hereof, and less the fair market value of the New
Orezone Shares distributed to Orezone
Shareholders.
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9.
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(vi)
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Each
issued Class B Share held by a Dissenting Orezone Shareholder (for greater
certainty, being an Orezone Shareholder who has complied with the Dissent
Rights and is ultimately entitled to be paid for its Class B Shares) will
be acquired by IAMGOLD in consideration for a debt claim against IAMGOLD
to be paid fair value of such Class B Shares pursuant to the Dissent
Procedures.
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(vii)
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The
Class B Shares (including the Class B Shares held by Dissenting Orezone
Shareholders and acquired by IAMGOLD pursuant to paragraph 3(a)(vi)
hereof) will be cancelled.
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(viii)
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Each
outstanding Class A Share will be transferred to IAMGOLD in consideration
for IAMGOLD Shares on the basis of the Exchange
Ratio.
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(ix)
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The
holders of the Orezone 1997 Options shall not be entitled to receive
Orezone Shares upon the exercise thereof and each Orezone 1997 Option
outstanding immediately prior to the Effective Time, whether vested or
not, shall be exchanged for a fully-vested option granted by IAMGOLD (each
an “IAMGOLD Replacement
Option” and collectively the “IAMGOLD Replacement
Options”) to acquire that number of IAMGOLD Shares equal to the
product of (A) the number of Orezone Shares subject to the Orezone 1997
Option immediately before the Effective Time and (B) the Exchange Ratio,
and the exercise price per IAMGOLD Share subject to any IAMGOLD
Replacement Option shall be equal to the quotient of (A) the exercise
price per Orezone Share subject to such Orezone 1997 Option immediately
before the Effective Time divided by (B) the Exchange
Ratio. Except as set out above, the terms of each IAMGOLD
Replacement Option shall be the same as the terms of the options of
IAMGOLD issuable under the share incentive plan of IAMGOLD as amended and
restated on April 11, 2007.
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(x)
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With
respect to each Class A Share:
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A.
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each
such Orezone Shareholder, other than IAMGOLD, shall cease to be the holder
of such Class A Share on the Effective Date and such holder’s name shall
be removed from the share register of Orezone as at the Effective Time;
and
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B.
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IAMGOLD
shall be deemed to be the transferee of such Class A Share (free and clear
of any Encumbrance) on the Effective Date and shall be entered in the
share register of Orezone as the holder thereof as at the Effective
Time.
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(xi)
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Orezone
and IAMGOLD Subco shall be amalgamated to form IAMGOLD Amalco and continue
as one corporation under the CBCA on the terms prescribed in this Plan of
Arrangement and, as a result, the property and liabilities of Orezone and
IAMGOLD Subco will become the property and liabilities of IAMGOLD
Amalco. Orezone and IAMGOLD Subco will merge with the same
effect as if they were amalgamated under section 184(2) of the
CBCA.
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(xii)
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Orezone
and IAMGOLD Subco will continue as one
company;
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10.
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(xiii)
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Following
the amalgamation of Orezone and IAMGOLD Subco described in paragraph
3(a)(xi) hereof and from and after such
time:
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A.
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IAMGOLD
Amalco will own and hold all property of Orezone and IAMGOLD Subco, and,
shall continue to be liable for the obligations of Orezone and IAMGOLD
Subco and will be liable for the obligations of Orezone and IAMGOLD Subco,
including civil, criminal and quasi-criminal liabilities and all
contracts, disabilities, options, warrants and debts of each of Orezone
and IAMGOLD Subco;
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B.
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all
rights, contracts, permits and interests of Orezone and IAMGOLD Subco will
continue as rights, contracts, permits and interests of IAMGOLD Amalco as
if Orezone and IAMGOLD Subco continued and, for greater certainly, the
merger will not constitute a transfer or assignment of the rights or
obligations of either of Orezone or IAMGOLD Subco under any such rights,
contracts, permits and interests;
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C.
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any
existing cause of action, claim or liability to prosecution is
unaffected;
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D.
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a
civil, criminal or administrative action or proceeding pending by or
against Orezone or IAMGOLD Subco may continue to be prosecuted by or
against IAMGOLD Amalco;
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E.
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a
conviction against, or ruling, order or judgment in favour of or against,
Orezone or IAMGOLD Subco may be enforced by or against IAMGOLD
Amalco;
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F.
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the
name of IAMGOLD Amalco shall be l;
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G.
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all
outstanding Class A Shares shall be cancelled without any repayment of
capital in respect thereof;
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H.
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all
outstanding common shares of IAMGOLD Subco shall be cancelled and IAMGOLD
shall receive on the Amalgamation one common share of IAMGOLD Amalco for
the one common share of IAMGOLD Subco previously held by
IAMGOLD;
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I.
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the
registered and records office of IAMGOLD Amalco shall be located at l;
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J.
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the
head office of IAMGOLD Amalco will be located at l;
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K.
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IAMGOLD
Amalco shall be authorized to issue an unlimited number of common
shares;
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L.
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the
articles of amalgamation of IAMGOLD Amalco shall be substantially in the
form attached as appendix l to this Plan of
Arrangement;
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11.
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M.
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the
by-laws of IAMGOLD Amalco shall be substantially in the form of the
by-laws of IAMGOLD Subco;
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N.
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the
first annual general meeting of IAMGOLD Amalco will be held within 18
months after the Effective Date;
and
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O.
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the
first directors of IAMGOLD Amalco following the Amalgamation shall be
l;
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provided
that none of the foregoing will occur or be deemed to occur unless all of the
forgoing occurs.
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(b)
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No Fractional
Shares. Following the Effective Time, if the aggregate
number of IAMGOLD Shares or New Orezone Shares to which an Orezone
Shareholder would otherwise be entitled, or to which a holder of IAMGOLD
Replacement Options, Orezone 2008 Options or the Orezone Warrants is
entitled on exercise or conversion (as the case may be) of IAMGOLD
Replacement Options, the Orezone 2008 Options or the Orezone Warrants is
not a whole number, then the number of IAMGOLD Shares or New Orezone
Shares, as the case may be, shall be rounded down to the next whole number
and no compensation will be paid to the Orezone Shareholder in respect of
such fractional IAMGOLD Share or New Orezone Share, as the case may
be.
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4.
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RIGHTS
OF DISSENT
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Orezone
Shareholders shall be entitled to exercise dissent rights (“Dissent Rights”) with respect
to the Orezone Shares pursuant to and in the manner set forth in section 190 of
the CBCA as modified by the Interim Order and this section 4, but provided that
notwithstanding subsection 190(5) of the CBCA, such Dissenting Orezone
Shareholder delivers to Orezone written objection to the Arrangement by 5:00
p.m. (Toronto time) on the Business Day immediately prior to the date of the
Orezone Meeting and otherwise complies with section 190 of the CBCA (the “Dissent
Procedures”).
If the
Arrangement is concluded, an Orezone Shareholder who exercises Dissent Rights in
strict compliance with the Dissent Procedures shall be entitled to be paid by
Orezone the fair value of the Orezone Shares held by such Dissenting Orezone
Shareholder in respect of which such Dissenting Orezone Shareholder dissents,
determined as provided for in the CBCA, as modified by the Interim Order and
this section 4, provided that any such Dissenting Orezone Shareholder who
exercises such right to dissent and who:
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(a)
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is
ultimately entitled to be paid fair value for its Orezone Shares shall be
deemed to have transferred its Orezone Shares to IAMGOLD in consideration
for a debt claim against IAMGOLD to be paid fair value of such shares
pursuant to the Dissent Procedures, and shall not be entitled to any other
payment or consideration, including any payment under the Arrangement had
such holders not exercised their Dissent Rights;
or
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(b)
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is
for any reason ultimately not entitled to be paid fair value for its
Orezone Shares, shall be deemed to have participated in the Arrangement as
of the Effective Time on the same terms and at the same time as a
non-Dissenting Orezone Shareholder and shall be issued only the same
consideration which an Orezone Shareholder is entitled to receive under
the Arrangement as if such Dissenting Orezone Shareholder would not have
exercised Dissent Rights.
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12.
In no
case shall IAMGOLD, Orezone or New Orezone be required to recognize a Dissenting
Orezone Shareholder as an Orezone Shareholder at and after the Effective Time,
and the names of such Dissenting Orezone Shareholders shall be removed from the
share register of Orezone at the Effective Time.
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5.
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DELIVERY
OF IAMGOLD SHARES AND NEW OREZONE
SHARES
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(a)
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Letter of
Transmittal. The Depositary will forward to each Orezone
Shareholder, at the address of such Orezone Shareholder as it appears on
the register for Orezone Shares, a Letter of Transmittal and instructions
for obtaining delivery of the certificates representing the New Orezone
Shares and the IAMGOLD Shares allotted and issued to such Orezone
Shareholder pursuant to the
Arrangement.
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(b)
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Entitlement to New
Orezone Certificates and IAMGOLD
Certificates.
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(i)
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Upon
surrender to the Depositary for cancellation of a certificate which
immediately prior to the Effective Time represented one or more Orezone
Shares which were exchanged for IAMGOLD Shares and New Orezone Shares in
accordance with section 3 hereof, together with a completed Letter of
Transmittal and such other documents and instruments as would have been
required to effect the transfer of the Orezone Shares formerly represented
by such certificate under the CBCA and the by-laws of Orezone and such
additional documents and instruments as the Depositary may reasonably
require, the holder of such surrendered certificate shall be entitled to
receive in exchange therefor, and the Depositary shall deliver to such
Orezone Shareholder following the Effective Time, certificates
representing the IAMGOLD Shares and the New Orezone Shares to which such
Orezone Shareholder is entitled to receive in accordance with section 3
hereof.
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(ii)
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After
the Effective Time and until surrendered for cancellation as contemplated
by paragraph 5(b)(i) hereof, each certificate which immediately prior to
the Effective Time represented one or more Orezone Shares shall be deemed
at all times to represent only the right to receive in exchange therefor a
certificate representing the IAMGOLD Shares and the New Orezone Shares to
which the holder of such certificate is entitled to receive in accordance
with paragraph 5(b)(i) hereof.
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(c)
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Lost
Certificates. In the event that any certificate which
immediately prior to the Effective Time represented one or more Orezone
Shares which were exchanged for IAMGOLD Shares and New Orezone Shares in
accordance with section 3 hereof shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the holder
claiming such certificate to be lost, stolen or destroyed, the Depositary
shall deliver in exchange for such lost, stolen or destroyed certificate,
certificates representing the IAMGOLD Shares and the New Orezone Shares
which such Orezone Shareholder is entitled to receive in accordance with
section 3 hereof. When authorizing such delivery of
certificates representing the IAMGOLD Shares and the New Orezone Shares
which such Orezone Shareholder is entitled to receive in exchange for such
lost, stolen or destroyed certificate, the Orezone Shareholder to whom
certificates representing such IAMGOLD Shares and New Orezone Shares are
to be delivered shall, as a condition precedent to the delivery of such
IAMGOLD Shares and New Orezone Shares, give a bond satisfactory to
IAMGOLD, New Orezone and the Depositary in such amount as IAMGOLD, New
Orezone and the Depositary may direct, or otherwise indemnify IAMGOLD, New
Orezone and the Depositary in a manner satisfactory to IAMGOLD, New
Orezone and the Depositary, against any claim that may be made against
IAMGOLD, New Orezone or the Depositary with respect to the certificate
alleged to have been lost, stolen or destroyed and shall otherwise take
such actions as may be required by the by-laws of
Orezone.
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13.
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(d)
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Termination of
Rights. Any certificate formerly representing Orezone
Shares that is not deposited, with all other documents as provided in this
section 5 on or before the sixth anniversary of the Effective Date, shall
cease to represent any claim or interest of any kind or nature against
IAMGOLD, Orezone, New Orezone or the
Depositary.
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(e)
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Dividends or other
Distributions. No dividends or distributions declared or
made after the Effective Date with respect to IAMGOLD Shares with a record
date after the Effective Date will be payable or paid to the holder of any
unsurrendered certificate or certificates which, immediately prior to the
Effective Date, represented outstanding Orezone Shares unless and until
the holder of such certificate shall have complied with the provisions of
this section 5. Subject to Applicable Law and to this section
5, at the time of such compliance, there shall, in addition to the
delivery of a certificate representing the IAMGOLD Shares and the New
Orezone Shares to which such holder is thereby entitled, be delivered to
such holder, without interest, the amount of the dividend or other
distribution with a record date after the Effective Time theretofore paid
with respect to such IAMGOLD Shares and New Orezone
Shares.
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(f)
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Withholding
Rights. IAMGOLD, Orezone, New Orezone and the Depositary
shall be entitled to deduct and withhold from all dividends or other
distributions otherwise payable to any Orezone Shareholder such amounts as
IAMGOLD, Orezone, New Orezone or the Depositary is required or permitted
to deduct and withhold with respect to such payment under the Tax Act, the
United States Internal Revenue Code of 1986 or any provision of any
applicable federal, provincial, state, local or foreign tax law, in each
case, as amended. To the extent that amounts are so withheld,
such withheld amounts shall be treated for all purposes hereof as having
been paid to the Orezone Shareholder in respect of which such deduction
and withholding was made, provided that such withheld amounts are actually
remitted to the appropriate taxing
authority.
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6.
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AMENDMENT
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(a)
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Amendment.
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(i)
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IAMGOLD,
IAMGOLD Subco, Orezone and New Orezone reserve the right to amend, modify
and/or supplement this Plan of Arrangement at any time and from time to
time prior to the Effective Date, provided that any amendment,
modification or supplement must be contained in a written document which
is filed with the Court and, if made following the Orezone Meeting, then:
(i) approved by the Court, and (ii) if the Court directs, approved by the
Orezone Shareholders and in any event communicated to them, and in either
case in the manner required by the
Court.
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(ii)
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Any
amendment, modification or supplement to this Plan of Arrangement, if
agreed to by Orezone and IAMGOLD, may be made at any time prior to or at
the Orezone Meeting, with or without any other prior notice or
communication and, if so proposed and accepted by Persons voting at the
Orezone Meeting (other than as may be required under the Interim Order)
shall become part of this Plan of Arrangement for all
purposes.
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14.
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(iii)
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Any
amendment, modification or supplement to this Plan of Arrangement that is
approved or directed by the Court following the Orezone Meeting will be
effective only if it is consented to by Orezone and IAMGOLD and, if
required by the Court, by the Orezone
Shareholders.
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(iv)
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Notwithstanding
the foregoing provisions of this section 6, no amendment, modification or
supplement of this Plan of Arrangement may be made prior to the Effective
Time except in accordance with the terms of the Arrangement
Agreement.
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15.
