EXHIBIT 7.1
AGNICO-EAGLE MINES LIMITED
AND
COMPUTERSHARE TRUST COMPANY OF CANADA
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WARRANT INDENTURE
PROVIDING FOR THE ISSUE OF UP TO 6,900,000 COMMON
SHARE PURCHASE WARRANTS
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NOVEMBER 14, 2002
TABLE OF CONTENTS
ARTICLE 1
INTERPRETATION
1.1 Definitions...........................................................2
1.2 Construction..........................................................6
1.3 Business Day..........................................................6
1.4 Time of the Essence...................................................6
1.5 Applicable Law........................................................6
1.6 Severability..........................................................7
1.7 Schedule..............................................................7
ARTICLE 2
ISSUE OF WARRANTS
2.1 Issue of Warrants.....................................................8
2.2 Form and Terms of Warrants............................................8
2.3 Signing of Warrant Certificates.......................................8
2.4 Certification.........................................................9
2.5 Warrantholder Not a Shareholder, Etc..................................9
2.6 Issue in Substitution for Lost Warrant Certificates...................9
2.7 Warrants to Rank Pari Passu..........................................10
2.8 Register for Warrants................................................10
2.9 Transferee Entitled to Registration..................................10
2.10 Registers Open for Inspection........................................11
2.11 Exchange of Warrants.................................................11
2.12 Ownership of Warrants................................................11
2.13 Adjustment of Exercise Rights........................................12
2.14 Adjustment Rules.....................................................16
2.15 Postponement of Subscription.........................................17
2.16 Notice of Adjustment of Exercise Rights..............................18
2.17 No Action after Notice...............................................18
2.18 No Duty to Inquire...................................................18
2.19 Rights Issued in Respect of Underlying Securities Issued on Exercise.19
ARTICLE 3
EXERCISE OF WARRANTS
3.1 Method of Exercise of Warrants.......................................19
3.2 Expiration of Warrants...............................................20
3.3 Effect of Exercise of Warrants.......................................20
3.4 Redemption of Warrants Held by U.S. Persons..........................21
3.5 Cancellation of Warrant Certificates.................................22
3.6 No Fractional Shares.................................................22
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3.7 Securities Restrictions; Legends.....................................23
ARTICLE 4
COVENANTS
4.1 General Covenants....................................................23
4.2 Trustee Remuneration and Expenses....................................25
4.3 Performance of Covenants by Trustee..................................25
ARTICLE 5
ENFORCEMENT
5.1 Suits by Warrantholders..............................................25
5.2 Immunity of Shareholders, Etc........................................26
5.3 Limitation of Liability..............................................26
ARTICLE 6
MEETINGS OF WARRANTHOLDERS
6.1 Right to Convene Meetings............................................26
6.2 Notice...............................................................26
6.3 Chair................................................................27
6.4 Quorum...............................................................27
6.5 Power to Adjourn.....................................................27
6.6 Show of Hands........................................................28
6.7 Poll and Voting......................................................28
6.8 Regulations..........................................................28
6.9 Company, Trustee and Counsel May Be Represented......................29
6.10 Powers Exercisable by Extraordinary Resolution.......................29
6.11 Meaning of Extraordinary Resolution..................................30
6.12 Powers Cumulative....................................................31
6.13 Minutes..............................................................31
6.14 Instruments in Writing...............................................31
6.15 Binding Effect of Resolutions........................................32
6.16 Holdings by the Company or Subsidiaries Disregarded..................32
ARTICLE 7
SUPPLEMENTAL INDENTURES
7.1 Supplemental Indentures..............................................32
7.2 Successor Corporations...............................................33
ARTICLE 8
CONCERNING THE TRUSTEES
8.1 Trust Indenture Legislation..........................................33
8.2 Rights and Duties of Trustee.........................................34
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8.3 Evidence, Experts and Advisers.......................................35
8.4 Documents Held by Trustee............................................35
8.5 Actions by Trustee to Protect Interests..............................36
8.6 Trustee Not Required to Give Security................................36
8.7 Protection of Trustee................................................36
8.8 Replacement of Trustee...............................................37
8.9 Conflict of Interest.................................................38
8.10 Acceptance of Trusts.................................................38
8.11 Trustee Not to Be Appointed Receiver.................................38
8.12 Indemnity of Trustee.................................................38
8.13 Notice...............................................................38
ARTICLE 9
GENERAL
9.1 Notice...............................................................39
9.2 Accidental Failure to Give Notice to Warrantholders..................41
9.3 Counterparts and Formal Date.........................................41
9.4 Satisfaction and Discharge of Indenture..............................41
9.5 Provisions of Indenture and Warrants for the Sole Benefit of Parties
and Warrantholders.................................................41
9.6 Language.............................................................41
9.7 Purchase of Warrants by Company......................................42
9.8 Assignment...........................................................42
9.9 No Waiver, etc.......................................................42
9.10 Further Assurances...................................................42
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THIS WARRANT INDENTURE dated November 14, 2002.
B E T W E E N:
AGNICO-EAGLE MINES LIMITED,
a corporation existing under the laws of the Province of
Ontario,
(hereinafter referred to as the "COMPANY"),
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COMPUTERSHARE TRUST COMPANY OF CANADA,
a trust company organized and existing under the laws of
Canada and duly authorized to carry on the trust business in
each province of Canada,
(hereinafter referred to as the "TRUSTEE"),
WHEREAS the Company is duly authorized to create and issue the
common share purchase warrants to be issued as herein provided;
AND WHEREAS all things necessary have been done and performed
to make the common share purchase warrants, when certified by the Trustee and
issued as in this Indenture provided, legal, valid and binding upon the Company
with the benefits of and subject to the terms of this Indenture;
AND WHEREAS the Trustee has agreed to enter into this
Indenture and to hold all rights, interests and benefits contained herein for
and on behalf of those persons who from time to time become holders of common
share purchase warrants issued pursuant to this Indenture;
NOW THEREFORE THIS INDENTURE WITNESSES that for good and
valuable consideration mutually given, the receipt and sufficiency of which are
hereby acknowledged, the Company hereby appoints the Trustee as warrant trustee
for the holders of common share purchase warrants, to hold all rights, interests
and benefits contained herein for and on behalf of those persons who from time
to time become holders of common share purchase warrants issued pursuant to this
Indenture, and it is hereby agreed and declared as follows:
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ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Indenture, unless there is something in the subject
matter or context inconsistent therewith, the following phrases and words shall
have the meanings set out below and grammatical variations of such terms shall
have corresponding meanings:
"APPLICABLE LEGISLATION" has the meaning set out in Section 8.1(a);
"BUSINESS DAY" means a day other than a Saturday, Sunday or civic or statutory
holiday in Toronto, Ontario or the City of New York, New York;
"CAPITAL REORGANIZATION" has the meaning set out in Section 2.13(e);
"COMMON SHARES" means the fully paid and non-assessable common shares in the
capital of the Company, as currently constituted;
"COMPANY" means Agnico-Eagle Mines Limited, a corporation existing under the
laws of the Province of Ontario, and its successors from time to time;
"COMPANY'S AUDITORS" means Ernst & Young LLP or any other independent chartered
accountant or firm of chartered accountants duly appointed as auditors of the
Company from time to time;
"COUNSEL" means a barrister or solicitor or a firm of barristers or solicitors
(who may be counsel for the Company) acceptable to the Trustee, acting
reasonably;
"CURRENT MARKET PRICE PER COMMON SHARE" means, at any date, the U.S. dollar
volume-weighted-average closing price per Common Share for the 20 consecutive
Trading Days commencing on the Trading Day immediately before such date on the
NYSE or, if the Common Shares are not then listed on the NYSE then on such other
U.S. stock exchange or Nasdaq on which the Common Shares are then listed or
quoted as may be selected by the directors of the Company or, if the Common
Shares are not then listed or quoted on any U.S. stock exchange or Nasdaq then
on such other stock exchange on which the Common Shares are then listed as may
be selected by the directors of the Company or, if the Common Shares are not
then listed on a stock exchange, on the over-the-counter market (provided that,
in each case, if such average price is not in U.S. dollars, such price will be
translated into U.S. dollars using the then applicable Exchange Rate); provided
that, if there is no market for the Common Shares during all or part of such
period during which the Current Market Price per Common Share would otherwise be
determined, the Current Market Price per Common Share shall in respect of all or
such part of the period be determined by a nationally-recognized firm of
chartered accountants appointed by the Company (who may be the Company's
auditors), in each case appropriately
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adjusted to take into account the occurrence during such 20-Trading Day period
of any event that would result in an adjustment of the Exercise Price pursuant
to Section 2.13;
"DIRECTOR" means a director of the Company for the time being and, unless
otherwise specified herein, reference herein to an "ACTION OF THE DIRECTORS"
means an action by the directors of the Company as a board or, whenever duly
empowered, an action by a committee of directors;
"DIVIDENDS PAID IN ORDINARY COURSE" means such dividends paid in cash on the
Common Shares in any fiscal year of the Company to the extent that such
dividends in the aggregate do not exceed in amount or value the greatest of:
(a) 110% of the aggregate amount or value of the dividends paid by the
Company on its Common Shares in the 12 consecutive months ended
immediately prior to the first day of such fiscal year;
(b) 25% of the consolidated net earnings of the Company before
extraordinary items and after dividends paid on any and all preferred
shares of the Company for the most recently completed fiscal year (such
consolidated net earnings to be shown in the audited financial
statements of the Company prepared in accordance with United States
generally accepted accounting principles); and
(c) 10% of the Shareholders' Equity.
"ELIGIBLE INSTITUTION" means a Canadian chartered bank, a major trust company in
Canada, a firm which is a member of a recognized stock exchange in Canada, a
member of the Investment Dealers Association of Canada, a national securities
exchange in the United States or the National Association of Securities Dealers,
Inc., or a participant in the Securities Transfer Agents Medallion (STAMP)
Program;
"EXCHANGE RATE" means, on any date for determination, the rate at which United
States dollars may be exchanged into Canadian dollars calculated using the noon
buying rate in The City of New York for cable transfers in Canadian dollars as
certified for customs purposes by the Federal Reserve Bank of New York; provided
that in the event that such rate is not quoted or published by the Federal
Reserve Bank of New York, the Exchange Rate shall be determined by reference to
such other publicly available service for displaying exchange rates as may be
determined by the Company;
"EXERCISE DATE", with respect to any Warrant, means the date during the Exercise
Period on which such Warrant is surrendered for exercise in accordance with the
provisions of Article 3;
"EXERCISE PERIOD", with respect to any Warrant, means the period beginning at
the date hereof and ending at the Expiry Time;
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"EXERCISE PRICE" means, at any time, US$19.00 per Common Share, unless such
price shall have been adjusted in accordance with the provisions of Sections
2.13 and 2.14, in which case it shall mean the adjusted price in effect at such
time;
"EXPIRY DATE", with respect to any Warrant, means November 14, 2007;
"EXPIRY TIME" means 5:00 p.m. (Toronto time) on the Expiry Date;
"EXTRAORDINARY RESOLUTION" has the meaning set out in Section 6.11;
"ISSUER BID" has the meaning set out in Section 2.13(d);
"NASDAQ" means the Nasdaq National Market;
"NYSE" means the New York Stock Exchange, Inc.;
"PERSON" includes, without limitation, an individual, corporation, partnership,
joint venture, trust, firm, unincorporated organization or any other legal or
business entity;
"REDEMPTION FORM" has the meaning set out in Section 4.1(i);
"REGISTRATION STATEMENT" means the Company's shelf registration statement on
Form F-10 (File No. 333-100902), or another, shelf registration statement filed
with the United States Securities and Exchange Commission under the 1933 Act,
relating to the Common Shares issuable upon exercise of the Warrants;
"RIGHTS OFFERING" has the meaning set out in Section 2.13(b);
"RIGHTS PERIOD" has the meaning set out in Section 2.13(b);
"SHARE REORGANIZATION" has the meaning set out in Section 2.13(a);
"SHAREHOLDER" means a holder of record on the books of the Company of one or
more Common Shares;
"SHAREHOLDERS' EQUITY" means the aggregate of all classes of share capital,
other paid-in-capital, retained earnings/deficit and any and all surplus
accounts and reserves as shown on the audited financial statements of the
Company for the most recently ended fiscal year prepared in accordance with
United States generally accepted accounting principles;
"SPECIAL DISTRIBUTION" has the meaning set out in Section 2.13(c);
"SUCCESSOR" has the meaning set out in Section 7.2, unless the context otherwise
requires;
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"TRADING DAY" means any day on which trading occurs on the NYSE (or such other
exchange or market provided for in the definition of "Current Market Price"),
and at least one trade of at least one board lot of Common Shares occurs on such
day;
"TRUSTEE" means Computershare Trust Company of Canada, a trust company organized
and existing under the laws of Canada, or its successors for the time being in
the trusts hereby created;
"TSX" means The Toronto Stock Exchange;
"UNDERLYING SECURITIES" means the Common Shares issuable upon the exercise of
the Warrants, including the shares or other securities or property issuable upon
the exercise of the Warrants as a result of any adjustment of exercise rights
pursuant to Sections 2.13 and 2.14;
"U.S. PERSON" means a "U.S. person" as defined in Rule 902(k) of Regulation S
under the 1933 Act;
"U.S. AGENT" means Computershare Trust Company of New York or any replacement
agent of the Trustee designated by the Trustee, with the approval of the
Company, from time to time;
"WARRANT CERTIFICATES" has the meaning set out in Section 2.1;
"WARRANTHOLDER" or "HOLDER" means a person whose name is entered for the time
being in the register maintained pursuant to Section 2.8(b) and, for greater
certainty, in respect of any action to be taken by a holder in respect of his
Warrants, means the holder or his successors, executors, administrators or other
legal representatives or his or their attorney duly appointed by instrument in
writing in form, substance and execution satisfactory to the Trustee with
signatures guaranteed by an Eligible Institution;
"WARRANTHOLDERS' REQUEST" means an instrument signed in one or more counterparts
by Warrantholders holding in the aggregate not fewer than 25% of the then
outstanding Warrants, requesting the Trustee to take some action or proceeding
specified therein;
"WARRANTS" means the up to 6,900,000 common share purchase warrants of the
Company issuable hereunder;
"WRITTEN ORDER OF THE COMPANY", "WRITTEN REQUEST OF THE COMPANY", "WRITTEN
CONSENT OF THE COMPANY", "CERTIFICATE OF THE COMPANY" and any other document
required to be signed by the Company means, respectively, a written order,
request, consent, certificate or other document signed in the name of the
Company by any one of the chairman of the board of directors, chief executive
officer, president, secretary, or any vice-president of the Company, and may
consist of one or more instruments so executed; and
"1933 ACT" means the United States Securities Act of 1933, as amended.
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1.2 CONSTRUCTION
In this Indenture, unless otherwise expressly stated or the context
otherwise requires:
(a) the division of this Indenture into Articles and Sections, the
provision of a table of contents and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation of this Indenture;
(b) the terms, "this Indenture", "herein", "hereby", "hereof" and
"hereunder" and similar expressions refer to this warrant indenture and
not to any particular Article, Section or other portion hereof and
include any agreement or instrument supplemental or ancillary hereto;
(c) references to Articles, Sections and Schedules are to the specified
Articles or Sections of or Schedules to this Indenture;
(d) words importing the singular include the plural and VICE VERSA and
words importing any gender shall include the masculine, feminine and
neutral genders;
(e) all references herein and in the Warrant Certificates to dollar amounts
are references to United States dollars; and
(f) the words "includes" and "including", when following any general term
or statement, is 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 referring to all other items or matters
that could reasonably fall within the broadest possible scope of the
general term or statement.
1.3 BUSINESS DAY
In the event that any day on or before which any action is required or
permitted to be taken hereunder is not a Business Day, then such action shall be
required or permitted to be taken on or before the requisite time on the next
succeeding day that is a Business Day.
1.4 TIME OF THE ESSENCE
Time shall be of the essence in all respects in this Indenture and the
Warrants.
1.5 APPLICABLE LAW
This Indenture (and any amendments hereto and instruments supplemental
hereto), and the Warrants shall be governed by and construed and enforced in
accordance with the laws of Ontario and the federal laws of Canada applicable in
that province and shall be treated in all respects as Ontario contracts. The
parties irrevocably attorn and submit to the non-
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exclusive jurisdiction of the courts of Ontario with respect to any matter
arising under or related to the Indenture.
1.6 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES
By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed Xxxxx X. Xxxxxxxx (or any successor) (together with any successor,
the "Agent for Service"), as its authorized agent upon which process may be
served in any suit or proceeding arising out of or relating to this Indenture or
Warrants or the Underlying Securities, that may be instituted in any federal or
state court in the State of New York, or brought under federal or state
securities laws, and acknowledges that the Agent for Service has accepted such
designation, (ii) submits to the jurisdiction of any such court in any such suit
or proceeding, and (iii) agrees that service of process upon the Agent for
Service (or any successor) and written notice of said service to the Company
(mailed or delivered to its Chief Financial Officer at its principal office in
Xxxxxxx, Xxxxxxx, Xxxxxx), shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. The Company further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue such
designation and appointment of the Agent for Service in full force and effect so
long as any of the Warrants shall be outstanding.
To the extent that the Company has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of its obligations under the
above-referenced documents, to the extent permitted by law.
1.7 SEVERABILITY
If any provision of this Indenture shall be held by any court of
competent jurisdiction to be invalid or unenforceable, in whole or in part, such
invalidity or unenforceability shall not affect the validity or enforceability
of the remaining provisions, or part thereof, of this Indenture and such
remaining provisions, or part thereof, shall remain enforceable and binding.
1.8 SCHEDULE
The following schedule is attached to and forms part of this Indenture:
Schedule A - Form of Warrant Certificate
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ARTICLE 2
ISSUE OF WARRANTS
2.1 ISSUE OF WARRANTS
A maximum of 6,900,000 Warrants entitling the holders thereof to
purchase an aggregate maximum of 6,900,000 Common Shares (or such other kind and
amount of Underlying Securities determined pursuant to the provisions of
Sections 2.13 and 2.14, if applicable) are hereby created and authorized to be
issued hereunder upon the terms and conditions herein set forth. Certificates
evidencing the Warrants (the "WARRANT CERTIFICATES") shall be executed by the
Company and certified by or on behalf of the Trustee upon written order of the
Company and delivered by the Company in accordance with Sections 2.3 and 2.4.
2.2 FORM AND TERMS OF WARRANTS
(a) The Warrant Certificates shall be substantially in the form set out in
Schedule A hereto, shall be dated as of the date hereof (regardless of their
actual date of issue), shall be fully registered and shall have such
distinguishing letters and numbers as the Company may, with the approval of the
Trustee, prescribe and may include a translation into the French language.
Warrant Certificates may be typewritten, engraved, lithographed, printed or
mimeographed as the Company may determine. No change in the form of the Warrant
Certificate shall be required by reason of any adjustment made pursuant to this
Article 2.
(b) Each Warrant authorized to be issued hereunder shall entitle the holder
thereof to purchase (subject to Sections 2.13, 2.14 and 3.1), for the Exercise
Price, one Common Share, or such other kind and amount of Underlying Securities
calculated pursuant to the provisions of Sections 2.13 and 2.14, as the case may
be, at any time after the issuance of such Warrant and prior to the Expiry Time
in accordance with the provisions of this Indenture.
(c) Any legends to be typed on to the Warrant Certificates or the
Underlying Securities shall be typed thereon in accordance with the provisions
of this Indenture upon the written direction of the Company. The Trustee and the
Company shall have no duty to ensure that the Warrantholders comply with the
provisions of any such legend.
2.3 SIGNING OF WARRANT CERTIFICATES
The Warrant Certificates shall be signed by any officer of the Company,
and may but need not be under the corporate seal of the Company or a
reproduction thereof. The signature of such officer may be mechanically
reproduced in facsimile, and Warrant Certificates bearing such facsimile
signatures shall be binding upon the Company as if they had been manually signed
by such officer. Notwithstanding that the person whose manual or facsimile
signature appears on any Warrant Certificate as such officer may no longer hold
office at the date of issue of such Warrant Certificate or at the date of
certification or delivery thereof, any Warrant Certificate signed as aforesaid
shall, subject to Section 2.4, be valid and binding upon the Company and the
registered holder thereof shall be entitled to the benefits of this Indenture.
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2.4 CERTIFICATION BY THE TRUSTEE
(a) No Warrant Certificate shall be issued or, if issued, shall be valid for
any purpose or entitle the registered holder to the benefit hereof or thereof
until it has been certified by manual signature by or on behalf of the Trustee
in the form of the certificate set out in Schedule A and such certification by
the Trustee upon any Warrant Certificate shall be conclusive evidence as against
the Company that the Warrant Certificate so certified has been duly issued
hereunder and the holder is entitled to the benefits hereof.
(b) The certification of the Trustee on Warrant Certificates issued hereunder
shall not be construed as a representation or warranty by the Trustee as to the
validity of this Indenture or the Warrants (except the due certification
thereof), and the Trustee shall in no respect be liable or answerable for the
use made of the Warrants or any of them or of the consideration therefor except
as otherwise specified herein.
2.5 WARRANTHOLDER NOT A SHAREHOLDER, ETC.
The holding of a Warrant shall not be construed as conferring upon a
Warrantholder any right or interest whatsoever as a Shareholder nor entitle the
holder to any right or interest in respect thereof (including the right to vote
at, to receive notice of or to attend meetings of Shareholders or any other
proceedings of the Company, or any right to receive dividends and other
distributions) except as expressly provided herein or in the Warrants.
2.6 ISSUE IN SUBSTITUTION FOR LOST WARRANT CERTIFICATES
(a) In the case where any Warrant Certificate shall become mutilated or be
lost, destroyed or stolen, the Company, subject to applicable law and Section
2.6(b), shall issue and thereupon the Trustee shall certify and deliver a new
Warrant Certificate of like tenor as the one mutilated, lost, destroyed or
stolen in exchange for and in place of and upon cancellation of such mutilated
certificate, or in lieu of and in substitution for such lost, destroyed or
stolen certificate, and the substituted certificate shall be in a form approved
by the Trustee and shall be entitled to the benefits hereof and such substituted
certificate shall rank equally in accordance with its terms with all other
Warrant certificates issued or to be issued hereunder.
(b) The applicant for the issue of a new Warrant Certificate pursuant to this
Section 2.6 shall bear the cost of the issue thereof and in case of loss,
destruction or theft shall, as a condition precedent to the issue thereof,
furnish to the Company and to the Trustee such evidence of ownership and of the
loss, destruction or theft of the certificate so lost, destroyed or stolen as
shall be satisfactory to the Company and to the Trustee in their sole
discretion, and such applicant also may be required to furnish an indemnity or
security in amount and form satisfactory to the Company and the Trustee in their
sole discretion and shall pay the reasonable charges of the Company and the
Trustee in connection therewith.
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2.7 WARRANTS TO RANK PARI PASSU
All Warrants shall rank PARI PASSU, whatever may be the actual date of
issue of the Warrant Certificates evidencing same.
2.8 REGISTER FOR WARRANTS
(a) The Company hereby appoints the Trustee as registrar of the Warrants. The
Company may hereafter, with the consent of the Trustee, appoint one or more
additional registrars of the Warrants.
(b) The Company shall cause to be kept by the Trustee at its principal office
in the City of Xxxxxxx, Xxxxxxx:
(i) a register of holders of Warrants in which shall be entered the
names and addresses of the holders of the Warrants and of the
number of Warrants held by them; and
(ii) a register of transfers of Warrants in which shall be entered the
date and other particulars of each transfer of Warrants.
(c) No transfer of a Warrant shall be valid unless made by:
(i) the holder or his successors, executors, administrators or other
legal representatives or his or their attorney duly appointed by
an instrument in writing in form and execution satisfactory to the
Trustee with signatures guaranteed by an Eligible Institution; or
(ii) the liquidator of, or a trustee in bankruptcy for, a
Warrantholder,
and in compliance with such reasonable requirements as the Trustee and the
Company may prescribe (including the requirement to provide evidence of
satisfactory compliance with applicable securities laws) and recorded on the
register of transfers maintained by the Trustee pursuant to Section 2.8(b), nor
until all stamp taxes or governmental or other charges arising by reason of such
transfer have been paid by the Warrantholder. Subject to the Trustee complying
with the provisions of this Indenture, the Trustee may assume compliance with
applicable securities laws unless otherwise notified in writing by the Company.
2.9 TRANSFEREE ENTITLED TO REGISTRATION
The transferee of a Warrant shall, after the transfer form printed on
the Warrant Certificate and any other form of transfer acceptable to the Trustee
is duly completed and the Warrant is lodged with the Trustee at its principal
office in the City of Xxxxxxx, Xxxxxxx, or at the principal office of the U.S.
Agent in the Borough of Manhattan, City of New York, New York (or at such
additional place or places as may be designated by the Company from time to time
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with the approval of the Trustee) and upon compliance with all other conditions
in that regard required by this Indenture or by law, be entitled to have his
name entered on the register of holders as the owner of such Warrant free from
all equities or rights of set-off or counterclaim between the Company and the
transferor or any previous holder of such Warrant, save in respect of equities
of which the Company or the transferee is required to take notice by statute or
by order of a court of competent jurisdiction.
2.10 REGISTERS OPEN FOR INSPECTION
The registers referred to in Section 2.8 shall be open at all
reasonable times during business hours on a Business Day for inspection by the
Company, the Trustee or any Warrantholder. The Trustee shall, from time to time
when requested to do so by the Company, furnish the Company with a list of the
names and addresses of holders of Warrants entered in the register of holders
kept by the Trustee and showing the number of Underlying Securities that might
then be acquired upon the exercise of the Warrants held by each such holder.
2.11 EXCHANGE OF WARRANTS
(a) Warrant Certificates may, upon compliance with the reasonable
requirements of a Trustee, be exchanged for Warrant Certificates in any other
authorized denomination representing in the aggregate the same number of
Warrants. The Company shall sign and the Trustee shall certify, in accordance
with Sections 2.3 and 2.4, all Warrant Certificates necessary to carry out the
exchanges contemplated herein.
(b) Warrant Certificates may be exchanged at the principal stock and bond
transfer office of the Trustee in the City of Toronto, Ontario and may be
tendered for exchange at the principal office of the U.S. Agent in the Borough
of Manhattan, City of New York, New York or at any other place that is
designated by the Company with the approval of the Trustee. Any Warrant
Certificates tendered for exchange shall be surrendered to the Trustee and
cancelled.
(c) No charge will be levied by the Company or the Trustee upon a presenter
of a Warrant Certificate pursuant to this Indenture for the transfer of any
Warrant or for the exchange of any Warrant Certificate but reimbursement to the
Trustee or the Company for any and all taxes or governmental or other charges
required to be paid shall be made by the person requesting such exchange as a
condition precedent to such exchange.
2.12 OWNERSHIP OF WARRANTS
The Company and the Trustee shall deem and treat the registered holder
of any Warrant Certificate as the absolute owner of the Warrant represented
thereby for all purposes, and the Company and the Trustee shall not be affected
by any notice or knowledge to the contrary except where such person is required
to take notice by statute or by order of a court of competent jurisdiction.
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2.13 ADJUSTMENT OF EXERCISE RIGHTS
The Exercise Price per Common Share and the number of Common Shares
which may be subscribed for upon exercise of a Warrant shall be subject to
adjustment from time to time upon the occurrence of any of the events and in the
manner provided as follows:
(a) If and whenever at any time prior to the Expiry Time the Company shall:
(i) declare a dividend or make a distribution on its Common Shares in
each case payable in Common Shares (or securities exchangeable
for or convertible into Common Shares), or
(ii) subdivide or change its outstanding Common Shares into a greater
number of Common Shares, or
(iii) reduce, combine or consolidate its outstanding Common Shares into
a lesser number,
(any of such events in these clauses 2.13(a)(i), (ii) and (iii) being
called a "SHARE REORGANIZATION"), then effective immediately after the
record date or effective date, as the case may be, at which the holders
of Common Shares are determined for the purposes of the Share
Reorganization, the Exercise Price shall be adjusted to a price
determined by multiplying the applicable Exercise Price in effect on
such effective date or record date by a fraction, the numerator of
which shall be the number of Common Shares outstanding on such
effective date or record date before giving effect to such Share
Reorganization and the denominator of which shall be the number of
Common Shares outstanding immediately after giving effect to such Share
Reorganization (including, in the case where securities exchangeable
for or convertible into Common Shares are distributed, the number of
additional Common Shares that would have been outstanding had such
securities been exchanged for or converted into Common Shares
immediately after giving effect to such Share Reorganization).
(b) If and whenever at any time prior to the Expiry Time the Company shall
fix a record date for the issuing of rights, options or warrants to all
or substantially all of the holders of the Common Shares entitling them
for a period expiring not more than 45 days after such record date (the
"RIGHTS PERIOD") to subscribe for or purchase Common Shares (or
securities convertible into or exchangeable for Common Shares) at a
price per share (or having a conversion or exchange price per share)
which is less than 95% of the Current Market Price per Common Share on
the record date for such issue (any of such events being called a
"RIGHTS OFFERING"), then effective immediately after the end of the
Rights Period the Exercise Price shall be adjusted to a price
determined by multiplying the applicable Exercise Price in effect at
the end of the Rights Period by a fraction the numerator of which shall
be the sum of:
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(i) the number of Common Shares outstanding as of the record date for
the Rights Offering, and
(ii) a number determined by dividing (A) either the product of (i) the
number of Common Shares issued during the Rights Period upon
exercise of the rights, warrants or options under the Rights
Offering and (ii) the price at which such Common Shares are
issued, or, as the case may be, the product of (iii) the number of
Common Shares for or into which the convertible or exchangeable
securities issued during the Rights Period upon exercise of the
rights, warrants or options under the Rights Offering are
exchangeable or convertible and (iv) the exchange or conversion
price of the convertible or exchangeable securities so issued, by
(B) the Current Market Price per Common Share as of the record
date for the Rights Offering, and
the denominator of which shall be the number of Common Shares
outstanding (including the number of Common Shares actually issued or
subscribed for during the Rights Period upon exercise of the rights,
warrants or options under the Rights Offering) or which would be
outstanding upon the conversion or exchange of all convertible or
exchangeable securities issued during the Rights Period upon exercise
of the rights, warrants or options under the Rights Offering, as
applicable, in each case after giving effect to the Rights Offering.
Common Shares owned by or held (otherwise than as security) for the
account of the Company or any subsidiary of the Company shall be deemed
not to be outstanding for the purpose of any such computation. In order
to give effect to the provisions of Section 2.13(f) in the
circumstances described below, any holder who shall have exercised his
right to purchase Common Shares during the period beginning immediately
after the record date for a Rights Offering and ending on the last day
of the Rights Period therefor, in addition to the Common Shares to
which he is otherwise entitled upon such exercise, shall be entitled to
that number of additional Common Shares equal to the result obtained
when the difference, if any, between the Exercise Price per Common
Share in effect immediately prior to the end of such Rights Offering
and the Exercise Price per Common Share, as adjusted for such Rights
Offering pursuant to this Section 2.13(b), is multiplied by the number
of Common Shares purchased upon exercise of the Warrant held by such
holder during such period, and the resulting product is divided by the
Exercise Price per Common Share, as adjusted for such Rights Offering
pursuant to this Section 2.13(b). Such additional Common Shares shall
be deemed to have been issued to the holder immediately following the
end of the Rights Period and a certificate for such additional Common
Shares shall be delivered to such holder within 10 Business Days
following the end of the Rights Period.
(c) If and whenever at any time prior to the Expiry Time the Company shall
fix a record date for the payment, issue or distribution to all or
substantially all of the
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holders of the Common Shares of (i) a dividend, (ii) cash or assets
(including evidences of the Company's indebtedness), or (iii) rights,
options, warrants or other securities (including securities convertible
into or exchangeable for Common Shares), and such payment, issue or
distribution does not constitute a Dividend Paid in Ordinary Course, a
Share Reorganization or a Rights Offering (any of such non-excluded
events being herein called a "SPECIAL DISTRIBUTION"), the Exercise
Price shall be adjusted effective immediately after such record date to
a price determined by multiplying the applicable Exercise Price in
effect on such record date by a fraction:
(i) the numerator of which shall be:
(A) the product of the number of Common Shares outstanding on such
record date and the Current Market Price per Common Share on
such record date; less
(B) the fair market value, as determined in good faith by action
of the directors (whose determination shall be conclusive), to
the holders of the Common Shares of such dividend, cash,
assets, rights or securities so paid, issued or distributed
less the fair market value, as determined in good faith by
action of the directors (whose determination shall be
conclusive), of the consideration, if any, received therefor
by the Company, and
(ii) the denominator of which shall be the number of Common Shares
outstanding on such record date multiplied by the Current Market
Price per Common Share on such record date.
Such adjustment shall be made successively whenever such a record date
is fixed. To the extent that such payment, issuance or distribution is
not so made, the Exercise Price shall be readjusted effective
immediately to the Exercise Price which would then be in effect based
upon such payment, issuance or distribution actually made.
(d) If and whenever at any time prior to the Expiry Time an issuer bid or a
tender or exchange offer (other than an odd lot offer or a normal
course issuer bid) made by the Company or a subsidiary of the Company
to all or substantially all of the shareholders of the Company for all
or any portion of the Common Shares where the cash and the value of any
other consideration included in such payment per Common Share exceeds
the Current Market Price per Common Share on the Trading Day
immediately preceding the commencement of the issuer bid or tender or
exchange offer (any such issuer bid or tender or exchange offer being
called an "Issuer Bid"), the Exercise Price shall be adjusted to a
price determined by multiplying the applicable Exercise Price in effect
on the date of the completion of such Issuer Bid by a fraction, the
numerator of which shall be the
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product of (i) the number of Common Shares outstanding immediately
prior to the completion of the Issuer Bid (without giving effect to any
reduction in respect of any tendered or exchanged shares) and, (ii) the
Current Market Price per Common Share on the Trading Day immediately
preceding the commencement of the Issuer Bid, and the denominator of
which shall be the sum of (i) the fair market value (determined in good
faith by the board of directors of the Company whose determination
shall be conclusive and described in a resolution of the board of
directors of the Company) of the aggregate consideration paid by the
Company or subsidiary to holders of Common Shares upon the completion
of such Issuer Bid, and (ii) the product of (A) the difference between
the number of Common Shares outstanding immediately prior to the
completion of the Issuer Bid (without giving effect to any reduction in
respect of tendered or exchanged shares) and the number of Common
Shares actually purchased by the Company or subsidiary pursuant to the
Issuer Bid, and (B) the Current Market Price Per Common Share on the
Trading Day immediately preceding the commencement of the Issuer Bid.
(e) If and whenever at any time prior to Expiry Time there shall be a
reorganization, reclassification or other change of Common Shares
outstanding at such time or change of the Common Shares into other
shares or into other securities (other than a Share Reorganization), or
a consolidation, amalgamation, arrangement or merger of the Company
with or into any other corporation or other entity (other than a
consolidation, amalgamation, arrangement or merger which does not
result in any reclassification of the outstanding Common Shares or a
change of the Common Shares into other shares), or a sale, conveyance
or transfer of the undertaking or assets of the Company as an entirety
or substantially as an entirety to another corporation or entity in
which the holders of Common Shares are entitled to receive shares,
other securities or property, including cash (any of such events being
herein called a "CAPITAL REORGANIZATION"), any holder who exercises his
right to subscribe for and purchase Common Shares pursuant to the
exercise of Warrants after the effective date of such Capital
Reorganization shall be entitled to receive, and shall accept for the
same aggregate consideration in lieu of the number of Common Shares to
which such holder was theretofore entitled upon such exercise, the
aggregate number of shares, other securities or other property which
such holder would have received as a result of such Capital
Reorganization had he exercised his right to acquire Underlying
Securities immediately prior to the effective date or record date, as
the case may be, of the Capital Reorganization and had he been the
registered holder of such Underlying Securities on such effective date
or record date, as the case may be, subject to adjustment thereafter in
accordance with provisions the same, as nearly as may be possible, as
those contained in Sections 2.13(b) and (c) hereof. If determined
appropriate by the directors, acting in good faith, appropriate
adjustments shall be made as a result of any such Capital
Reorganization in the application of the provisions set forth in this
Section 2.13, with respect to the rights and interests thereafter of
the holder of a Warrant to the end that the provisions set forth in
this
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Section 2.13 shall thereafter correspondingly be made applicable as
nearly as may be reasonably possible in relation to any shares, other
securities or other property thereafter deliverable upon the exercise
of the Warrant. Any such adjustment shall be made by and set forth in
an agreement supplemental hereto approved by action of the directors,
acting in good faith, and shall for all purposes be conclusively deemed
to be an appropriate adjustment.
(f) If and whenever at any time prior to the Expiry Time there shall occur
a Share Reorganization, a Rights Offering, a Special Distribution or an
Issuer Bid and any such event results in an adjustment to the Exercise
Price pursuant to the provisions of this Section 2.13, the number of
Common Shares purchasable upon the exercise of each Warrant (at the
adjusted Exercise Price) shall be adjusted contemporaneously with the
adjustment of the Exercise Price by multiplying the number of Common
Shares theretofore purchasable on the exercise thereof by a fraction,
the numerator of which shall be the applicable Exercise Price in effect
immediately prior to such adjustment and the denominator of which shall
be the applicable Exercise Price resulting from such adjustment.
(g) In case the Company after the date of issue of the Warrants shall take
any action affecting the Common Shares, other than action described in
this Section 2.13, which in the opinion of the directors, acting
reasonably, would materially adversely affect the rights of the
Warrantholders, the Exercise Price or the number of Common Shares
purchasable upon the exercise of each Warrant shall be adjusted in such
manner, if any, and at such time, by action of the directors, acting
reasonably, as they may determine to be equitable in the circumstances,
but subject in all cases to any necessary regulatory approvals.
2.14 ADJUSTMENT RULES
For the purposes of Section 2.13, any adjustment shall be made
successively whenever an event referred to therein shall occur, subject to the
following provisions:
(a) all calculations shall be made to the nearest 1/100th of a Common
Share;
(b) no adjustment to an Exercise Price shall be required unless such
adjustment would result in a change of at least one per cent in the
prevailing Exercise Price and no adjustment shall be made in the number
of Common Shares which may be subscribed for upon exercise of the
Warrant unless it would require a change of at least 1/100th of a
Common Share; provided, however, that any adjustments which, except for
the provisions of this Section 2.14(b) would otherwise have been
required to be made shall be carried forward and taken into account in
any subsequent adjustment;
(c) if any question shall arise with respect to adjustments provided for in
this Article 2, such question shall, absent manifest error, be
conclusively determined
-17-
by a firm of chartered accountants appointed by the Company (who may be
the Company's auditors) and acceptable to the Trustee, acting
reasonably; such chartered accountants shall have access to all
necessary records of the Company and such determination shall be
binding on the Company, the Trustee and the Warrantholders, absent
manifest error. In the event that any such determination is made, the
Company shall deliver a certificate to the Trustee describing such
determination and confirming such consent;
(d) if the Company shall set a record date to determine the holders of its
Common Shares for the purpose of entitling them to receive any dividend
or distribution or any subscription or purchase rights, options or
warrants and shall thereafter and before the distribution to such
Shareholders of any such dividend, distribution or subscription or
purchase rights legally abandon its plan to pay or deliver such
dividend, distribution or subscription or purchase rights, then no
adjustment in the Exercise Price or the number of Common Shares
purchasable upon exercise of the warrant shall be required by reason of
the setting of such record date; and
(e) as a condition precedent to the taking of any action which would
require any adjustment in any of the subscription rights pursuant to
any of the Warrants, the Company shall take any corporate action which
may, in the opinion of counsel, be necessary in order that the Company
have unissued and reserved in its authorized capital, and may validly
and legally issue as fully paid and non-assessable, all of the
Underlying Securities that the Warrantholders are entitled to receive
on full exercise thereof in accordance with the provisions hereof.
2.15 POSTPONEMENT OF SUBSCRIPTION
In any case where the application of Section 2.13 results in an
increase in the number of Common Shares issuable upon the exercise of the
Warrants taking effect immediately after the record date for a specific event,
if any Warrant is exercised after that record date and prior to completion of
the event, the Company may postpone the issuance to the holder of the Warrant of
the Common Shares to which such Warrantholder is entitled by reason of such
adjustment but such Common Shares shall be so issued and delivered to that
holder upon completion of that event, with the number of such Common Shares
calculated on the basis of the number of Common Shares on the date that the
Warrant was adjusted for completion of that event and the Company shall deliver
to the person or persons in whose name or names the Common Shares are to be
issued an appropriate instrument evidencing the right of such person or persons
to receive such Common Shares and the right to receive any dividends or other
distributions which, but for the provisions of this Section 2.15, such person or
persons would have been entitled to receive in respect of such Common Shares
from and after the date that the Warrant was exercised in respect thereof.
-18-
2.16 NOTICE OF ADJUSTMENT OF EXERCISE RIGHTS
(a) At least 10 days prior to the effective date or record date, as the
case may be, of any event that requires or that may require an
adjustment in any of the exercise rights pursuant to any of the
Warrants, including the number of Underlying Securities that may be
acquired upon the exercise thereof, the Company shall:
(i) file with the Trustee a certificate of the Company specifying the
particulars of such event (including the record date or the
effective date for such event) and, if determinable, the required
adjustment and the computation of such adjustment; and
(ii) give notice to the Warrantholders of the particulars of such event
(including the record date or the effective date for such event)
and, if determinable, the required adjustment, in accordance with
the provisions set out in Section 9.1.
(b) In case any adjustment for which a notice in Section 2.16(a) has been
given is not then determinable, the Company shall promptly after such
adjustment is determinable:
(i) file a certificate of the Company with the Trustee showing how
such adjustment was computed; and
(ii) give notice to the Warrantholders of the adjustment , in
accordance with the provisions set out in Section 9.1.
(c) The Trustee may act and rely for all purposes upon any certificates and
any other documents filed by the Company pursuant to this Section 2.16.
2.17 NO ACTION AFTER NOTICE
The Company shall not take any other corporate action that might
deprive any Warrantholder of the opportunity to exercise Warrants during the
10-day period after the giving of the notice set forth in Section 2.16(a).
2.18 NO DUTY TO INQUIRE
Except as provided in Section 8.2, the Trustee shall not at any time be
under any duty or responsibility to any Warrantholder to determine whether any
facts exist which may require any adjustment contemplated by Sections 2.13 and
2.14, or with respect to the nature or extent of any such adjustment when made,
or with respect to the method employed in making the same. The Trustee shall not
be accountable with respect to the validity or value (or the kind or amount) of
any securities or property which may at any time be issued or delivered upon the
exercise of any Warrant.
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2.19 RIGHTS ISSUED IN RESPECT OF UNDERLYING SECURITIES ISSUED ON EXERCISE
Each Common Share issued on the exercise of Warrants shall be entitled
to receive the appropriate number of purchase rights ("Rights"), if any, that
all Common Shares are entitled to receive, and the certificates representing
such Common Shares shall bear such legends, if any, in each case as may be
provided by the terms of any shareholder rights agreement adopted by the
Company, as the same may be amended from time to time (a "Rights Agreement")
provided that such Rights Agreement requires that each Common Share issued on
exercise of Warrants at any time prior to the distribution of separate
certificates representing the Rights be entitled to receive such Rights, then,
not withstanding anything else to the contrary in this Indenture, there shall
not be any adjustment made pursuant to this Article 2 as a result of the
issuance of Rights, the distribution of separate certificates representing the
Rights, the exercise or redemption of such Rights in accordance with any such
Rights Agreement, or the termination or invalidation of such Rights.
ARTICLE 3
EXERCISE OF WARRANTS
3.1 METHOD OF EXERCISE OF WARRANTS
(a) Subject to Section 3.1(b), the holder of any Warrant may during the
Exercise Period exercise the right thereby conferred on such holder to purchase
the Underlying Securities to which such Warrant entitles the holder, by
surrendering the certificate representing such Warrant to the Trustee at any
time during the Exercise Period at its principal office in the City of Toronto,
Ontario or at the principal office of the U.S. Agent in the Borough of
Manhattan, City of New York, New York (or at such additional place or places as
may be decided by the Company from time to time with the approval of the
Trustee), with: (i) a duly completed and executed exercise form substantially in
the form set out on the Warrant Certificate; and (ii) a certified cheque, bank
draft or money order payable at par to or to the order of Agnico-Eagle Mines
Limited in an amount equal to the Exercise Price multiplied by the number of
Underlying Securities subscribed for. A Warrant Certificate with the duly
completed and executed exercise form shall be deemed to be surrendered only upon
personal delivery thereof to, or if sent by mail or other means of transmission
upon actual receipt thereof by, the Trustee. If the holder subscribes for a
lesser number of Underlying Securities than the aggregate number of Underlying
Securities then issuable pursuant to the exercise of the Warrants represented by
the Warrant Certificate surrendered, the holder shall be entitled to receive a
further Warrant Certificate in respect of the Warrants represented by the
Warrant Certificates that have not been exercised. Any such surrender for
exercise shall be irrevocable.
(b) Notwithstanding any provision to the contrary contained in this
Indenture, no U.S. Person or person holding such Warrant for the account of a
U.S. Person shall exercise any Warrant at any time when no Registration
Statement is effective. If no Registration Statement is effective, all Warrants
held by U.S. Persons or persons holding such Warrants for the account of U.S.
Persons shall immediately cease to be exercisable for so long as the
Registration Statement
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is not effective and such Warrants are held by U.S. Persons or persons holding
such Warrants for the account of U.S. Persons. If no Registration Statement is
effective at any time when any Warrant is exercised, as a condition of the
exercise of such Warrant the Company may require that the holder of such Warrant
provide such evidence that it is not a U.S. Person or person holding such
Warrant for the account of a U.S. Person as the Company shall reasonably
request; provided that if the Company, acting reasonably, is not satisfied in
such circumstance that the holder is not a U.S. Person or person holding such
Warrant for the account of a U.S. Person, such Warrantholder shall be notified
forthwith by the Trustee that such Warrantholder is entitled, at his or her
option, to redeem his or her Warrant, in whole or in part, in accordance with
Section 3.4.
(c) Any exercise form referred to in Section 3.1(a) shall be signed by the
Warrantholder and shall specify the person or persons in whose name or names the
Underlying Securities to be issued upon exercise are to be registered, such
person's or persons' address or addresses and the number of Underlying
Securities to be issued to each person if more than one is so specified. If any
of the Underlying Securities issuable upon the exercise of Warrants by a holder
are to be issued to a person or persons other than the Warrantholder, the
signature(s) set out in the exercise form referred to in Section 3.1(a) shall be
guaranteed by an Eligible Institution, and the Warrantholder shall pay to the
Company or the Trustee all applicable transfer or similar taxes and the Company
shall not be required to issue or deliver certificates evidencing Underlying
Securities unless or until such Warrantholder shall have paid to the Company or
the Trustee on behalf of the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid or
that no tax is due. No such Underlying Securities shall be issued to any U.S.
Person at any time when the Registration Statement is not effective, and during
such period such U.S. Person shall be entitled to the redemption right set out
in Section 3.4.
(d) Any Warrantholder may elect to make payment of the Exercise Price
pursuant to Section 3.1(a) in Canadian dollars. In such an event, the Exercise
Price payable by such Warrantholder shall be the Canadian dollar equivalent of
the Exercise Price payable in Canadian dollars based on the Exchange Rate on the
Business Day immediately preceding the date on which the relevant Warrant is
exercised, rounded to the nearest tenth of a cent. At the request of the
Trustee, the Company shall provide a certificate to the Trustee setting out the
applicable Exchange Rate.
3.2 EXPIRATION OF WARRANTS
(a) After the Expiry Time, all rights under any Warrant in respect of which
the right of subscription and purchase herein and therein provided for shall not
theretofore have been exercised shall wholly cease and terminate, and such
Warrant shall be void and of no effect.
(b) Not less than 90 and not more than 120 days prior to the Expiry Date
the Company shall issue a press release and publish a notice in a newspaper
of general circulation in the City of Toronto, Ontario and a newspaper of
general circulation in the City of New York, New York to the effect that the
Warrants will terminate and become void as of the Expiry Time; provided that
accidental failure to issue such press release or publish such notice shall
not extend the Exercise Period or give rise to any claim against or liability
of the Company whatsoever arising from such failure.
3.3 EFFECT OF EXERCISE OF WARRANTS
(a) Upon compliance by the Warrantholder with the provisions of Section 3.1,
the Underlying Securities issuable upon the exercise of the Warrants shall be
deemed to have been
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issued and the person to whom such Underlying Securities are to be issued shall
be deemed to have become the holder of record of such Underlying Securities on
the Exercise Date unless the transfer registers of the Company for the
Underlying Securities shall be closed on such date, in which case the Underlying
Securities subscribed for shall be deemed to have been issued and such person
shall be deemed to have become the holder of record of such Underlying
Securities on the date on which such transfer registers are reopened.
(b) Forthwith following the due exercise by a Warrantholder in accordance
with Section 3.1 and the surrender of the Warrant Certificate(s) representing
such Warrants as required by the terms thereof, the Trustee shall deliver to the
Company a notice setting out the particulars of the Warrants exercised, the
person in whose name the Underlying Securities are to be issued and the address
of such person.
(c) Funds in an amount equal to the aggregate Exercise Price of the Warrants
exercised shall be forwarded by the Trustee to the Company forthwith upon the
exercise of the Warrants.
(d) Within three Business Days of receipt of the notice referred to in
Section 3.3(b), the Company shall cause to be mailed to the person in whose name
the Underlying Securities issuable upon the exercise of the Warrants are to be
issued, as specified in the completed exercise form attached to the Warrant
Certificate, at the address specified in such exercise form, or, if so specified
in such exercise form, cause to be made available for pick-up by such person at
the office of the Trustee or cause to be mailed to the office of the U.S. Agent
to be made available for pick-up by such person, a certificate or certificates
for the Underlying Securities to which the Warrantholder is entitled. In
addition, if it is required by law, the Company shall cause to be delivered to
any U.S. Person in whose name the Underlying Securities issuable upon the
exercise of the Warrants are to be issued a prospectus that complies with
section 9 of the 1933 Act.
3.4 REDEMPTION OF WARRANTS HELD BY U.S. PERSONS
(a) If the Registration Statement ceases to be effective, prior to the Expiry
Time and for so long as the Registration Statement is not effective, subject to
applicable law any holder of any Warrant that is a U.S. Person may, at its
option, cause the Company to redeem such Warrant by surrendering the certificate
representing such Warrant at any time during such period to the Trustee at its
principal office in the City of Toronto, Ontario or at the principal office of
the U.S. Agent in the Borough of Manhattan, City of New York, New York (or at
such additional place or places as may be designated by the Company from time to
time with the approval of the Trustee), with a duly completed and executed
Redemption Form. As a condition of such redemption, the Company may require that
the holder of such Warrant provides such evidence that it is a U.S. Person as
the Company shall reasonably request, provided that if the Company, acting
reasonably, is not satisfied in such circumstance that such Warrantholder is a
U.S. Person or person holding such Warrant for the account of a U.S. Person,
such Warrantholder shall be notified forthwith by the Trustee that such
Warrantholder is entitled to exercise his or her Warrant, in whole or in part,
in accordance with Section 3.1. A Warrant Certificate with the duly
-22-
completed and executed redemption form shall be deemed to be surrendered only
upon personal delivery thereof to, or sent by mail or other means of
transmission upon actual receipt thereof by, the Trustee, such date of actual
receipt by the Trustee being referred to as the "Redemption Date". If the holder
exercises the redemption right provided for in this Section 3.4(a) in respect of
a lesser number of Warrants than the aggregate number of Warrants represented by
the Warrant Certificate surrendered, the holder shall be entitled to receive a
further Warrant Certificate in respect of the Warrants represented by the
Warrant Certificates that have not been redeemed. Any such surrender for
redemption shall be irrevocable.
(b) Forthwith following the due exercise by a Warrantholder of the redemption
right in accordance with Section 3.4(a), the Trustee shall deliver to the
Company a notice setting out the particulars of the Warrants to be redeemed and
the name and address of the Warrantholder.
(c) Within three Business Days of receipt of the notice referred to in
Section 3.4(b), the Company shall cause a cheque in the amount of money
determined by multiplying the number of Common Shares that would have been
issued if the Warrants to be redeemed were exercised on the Redemption Date by
the difference between the Current Market Price per Common Share on the Trading
Day immediately preceding the Redemption Date and the Exercise Price on the
Redemption Date to be mailed to such Warrantholder at the address specified in
such redemption form, or, if so specified in such redemption form, to be made
available for pick-up by such Warrantholder at the office of the Trustee or
cause to be mailed to the office of the U.S. Agent to be made available for
pick-up by such Warrantholder.
3.5 CANCELLATION OF WARRANT CERTIFICATES
All Warrant Certificates surrendered to the Trustee pursuant to Section
2.6, 2.11, 3.1, 3.4 or 9.7 shall be cancelled by the Trustee and the Trustee
shall record the cancellation of such Warrant Certificates on the register of
holders maintained by the Trustee pursuant to Section 2.8. The Trustee shall, if
required by the Company, furnish the Company with a certificate identifying the
Warrant Certificates so cancelled and deemed to have been cancelled. All
Warrants represented by Warrant Certificates that have been cancelled or have
been deemed to have been cancelled pursuant to this Section 3.5 shall be without
further force or effect whatsoever.
3.6 NO FRACTIONAL SHARES
Notwithstanding anything herein contained, including any adjustment
provided for in Article 2, the Company shall not be required, upon the exercise
of any Warrants, to issue fractional Underlying Securities or to distribute
certificates which evidence fractional Underlying Securities. If more than one
Warrant shall be presented for exercise in full at the same time by the same
Warrantholder, the number of full Underlying Securities shall be issuable upon
the exercise thereof shall be computed on the basis of the aggregate number of
Underlying Securities purchasable on exercise of the Warrants so presented. If
any fraction of an Underlying Security would, except for the provisions of this
Section 3.6, be issuable upon the exercise of any such Warrants (or specified
portion thereof), the Company shall notify the Trustee in writing of the
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amount to be paid in lieu of a fraction of an Underlying Security and
concurrently pay or provide to the Trustee for payment to the Warrantholder, an
amount in cash equal to the Current Market Price per Common Share on the Trading
Day immediately preceding the day the Warrant is surrendered for exercise,
multiplied by such fraction, computed to the nearest whole cent.
3.7 SECURITIES RESTRICTIONS; LEGENDS
Notwithstanding any provision to the contrary contained in this
Indenture, no Common Shares will be issued pursuant to the exercise of any
Warrant if the issuance of such securities would constitute a violation of the
securities laws of any applicable jurisdiction, and, without limiting the
generality of the foregoing, the Company will legend the certificates
representing the Common Shares if, in the opinion of counsel to the Company such
legend is necessary in order to avoid a violation of any securities laws of any
applicable jurisdiction or to comply with the requirements of any stock exchange
on which the Common Shares are listed, provided that if, at any time, in the
opinion of outside counsel to the Company, acting reasonably, such legends are
no longer necessary in order to avoid a violation of any such laws, or the
holder of any such legended certificate, at his expense, provides the Company
with evidence satisfactory in form and substance to the Company (which may
include an opinion of counsel of recognized standing satisfactory to the
Company) to the effect that such holder is entitled to sell or otherwise
transfer such securities in a transaction in which such legends are not
required, such legended certificates may thereafter be surrendered to the
Company in exchange for a certificate which does not bear such legends. For
greater certainty, should no Registration Statement be effective, the Company
shall permit the redemption of Warrants held by U.S. Persons as set forth in
Section 3.4 and shall not be permitted to issue legended Underlying Securities
in lieu thereof.
ARTICLE 4
COVENANTS
4.1 GENERAL COVENANTS
The Company covenants with the Trustee that so long as any Warrants
remain outstanding:
(a) It will at all times maintain its corporate existence and carry on and
conduct its business in a proper and business-like manner;
(b) It will reserve a sufficient number of Common Shares to satisfy the
rights of acquisition provided for herein.
(c) It will cause the Common Shares from time to time subscribed and paid
for pursuant to the Warrants in the manner herein provided and the
certificates representing such Common Shares to be duly issued and
delivered in accordance with the Warrants and the terms hereof.
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(d) All Common Shares that shall be issued upon exercise of the right to
purchase provided for herein, upon payment of the Exercise Price, shall
be issued as fully paid and non-assessable.
(e) It will use its best efforts to maintain the listing of the Warrants on
the TSX.
(f) It will use its reasonable efforts to effect and maintain the quotation
of the Warrants on Nasdaq.
(g) It will use its reasonable efforts to maintain the listing of the
Common Shares on the TSX and the NYSE.
(h) It will use its reasonable efforts to maintain its status as a
reporting issuer or equivalent not in default, and not be in default in
any material respect of the applicable requirements of, the applicable
securities laws of each of the provinces of Canada and the federal
securities laws of the United States.
(i) If at any time no Registration Statement is effective, the Company will
give notice to the Trustee forthwith and will give notice, in
accordance with the provisions set out in Section 9.1, together with a
form for the exercise of the redemption right set out in Section 3.4
(the "Redemption Form") to each Warrantholder having an address in the
United States shown on the register of holders of Warrants kept by the
Trustee pursuant to Section 2.8 of such fact as soon as reasonably
practicable, but in any event such notice must be sent within
5 Business Days, after learning that no Registration Statement is
effective. Such notice must be sent by fax if possible to any
securities depositary that is a registered holder.
(j) It will use its reasonable efforts to maintain the Registration
Statement continuously effective under the 1933 Act.
(k) If, in the opinion of outside counsel, any instrument is required to be
filed with, or any permission, order or ruling is required to be
obtained from any securities administrator, regulatory agency or
governmental authority in Canada or the United States or any other step
is required under any federal or provincial law of Canada or any
federal or state law of the United States before the Underlying
Securities may be issued or delivered to a Warrantholder, the Company
will use its reasonable efforts to file such instrument, obtain such
permission, order or ruling or take all such other actions, at its
expense, as are required.
(l) It will perform all its covenants and carry out all of the acts or
things to be done by it as provided in this Indenture.
The Company and the Trustee acknowledge and agree that: (i) none of the
foregoing covenants shall be interpreted or applied so as to prohibit or
restrict or otherwise limit the Company's ability, right and authority to
implement one or more of the actions contemplated by Section 2.13 or 7.2; and
(ii) the foregoing covenants shall be interpreted and applied
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following each such action with reference to any successor to the Company and
with reference to any securities into which the Common Shares and/or the
Warrants may be changed or for which they may be exercisable as a result of such
action or actions.
4.2 TRUSTEE REMUNERATION AND EXPENSES
The Company covenants that it will pay to the Trustee the fees agreed
to by the Company and the Trustee from time to time for its services hereunder
and will pay or reimburse the Trustee upon its request for all reasonable
expenses and disbursements of the Trustee in the administration or execution of
the trusts hereby created (including the reasonable compensation and the
disbursements of its counsel and all other advisers, experts, accountants and
assistants not regularly in its employ) both before any default hereunder and
thereafter until all duties of the Trustee hereunder shall be finally and fully
performed, except any such expense or disbursement in connection with or related
to or required to be made as a result of the negligence, wilful misconduct or
bad faith of the Trustee.
4.3 PERFORMANCE OF COVENANTS BY TRUSTEE
If the Company should fail to perform any of its covenants contained in
this Indenture and the Company has not rectified such failure within 15 Business
Days after receiving written notice from the Trustee of such failure, the
Trustee may notify the Warrantholders of such failure on the part of the Company
or may itself perform any of the said covenants capable of being performed by
it, but shall be under no obligation to perform said covenants or to notify the
Warrantholders of such performance by it. All reasonable sums expended or
disbursed by the Trustee in so doing shall be repayable as provided in Section
4.2. No such performance, expenditure or disbursement by the Trustee shall be
deemed to relieve the Company of any default hereunder or of its continuing
obligations under the covenants herein contained.
ARTICLE 5
ENFORCEMENT
5.1 SUITS BY WARRANTHOLDERS
All or any of the rights conferred upon a Warrantholder by the terms of
this Indenture may be enforced by such Warrantholder by appropriate legal
proceedings, but subject to the rights that are hereby conferred upon the
Trustee and subject to the provisions of Section 6.10. No Warrantholder shall
have any right to institute any action, suit or proceeding at law or in equity
for the purpose of enforcing the execution of any trust or power hereunder or
for the appointment of a liquidator or receiver or for a receiving order under
the BANKRUPTCY AND INSOLVENCY ACT (Canada) or to have the Company wound up or to
file a proof of claim in any liquidation or bankruptcy proceedings or for any
other remedy hereunder unless: (i) the Warrantholders by Extraordinary
Resolution shall have made a request to the Trustee and the Trustee shall have
been afforded reasonable opportunity to proceed to complete any action or suit
for any such purpose whether or not on its own; (ii) the Warrantholders or any
of them shall
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have furnished to the Trustee, once requested by the Trustee, sufficient funds
or security and indemnity satisfactory to it against costs, expenses and
liabilities to be incurred therein or thereby; and (iii) the Trustee shall have
failed to act within a reasonable time or the Trustee shall have failed to have
actively pursued any such action, suit or proceeding.
5.2 IMMUNITY OF SHAREHOLDERS, ETC.
The Trustee and, by the acceptance of the Warrant Certificates and as
part of the consideration for the issue of the Warrants, the Warrantholders
hereby waive and release any right, cause of action or remedy now or hereafter
existing in any jurisdiction against any person in his capacity as an
incorporator or any past, present or future Shareholder or other securityholder,
director, officer, employee or agent of the Company for the creation and issue
of the Underlying Securities pursuant to any Warrant or on any covenant,
agreement, representation or warranty by the Company contained herein or in the
Warrant Certificates.
5.3 LIMITATION OF LIABILITY
The obligations hereunder are not personally binding upon, nor shall
resort hereunder be had to, the directors or shareholders of the Company or any
of the past, present or future directors or shareholders of the Company or any
of the past, present or future officers, employees or agents of the Company, but
only the property of the Company shall be bound in respect hereof.
ARTICLE 6
MEETINGS OF WARRANTHOLDERS
6.1 RIGHT TO CONVENE MEETINGS
The Trustee may at any time and from time to time, and shall on receipt
of a written request of the Company or of a Warrantholders' Request, convene a
meeting of the Warrantholders, provided that the Trustee is indemnified and
funded to its reasonable satisfaction by the Company or by the Warrantholders
signing such Warrantholders' Request against the costs, charges, expenses and
liabilities that may be incurred in connection with the calling and holding of
such meeting. If within 15 Business Days after the receipt of a written request
of the Company or a Warrantholders' Request and funding and indemnity given as
aforesaid the Trustee fails to give the requisite notice specified in Section
6.2 to convene a meeting, the Company or such Warrantholders, as the case may
be, may convene such meeting. Every such meeting shall be held in the City of
Toronto, Ontario or at such other place in Canada or the United States as may be
approved by the Trustee.
6.2 NOTICE
At least 15 days' prior notice of any meeting of Warrantholders shall
be given to the Warrantholders in the manner provided for in Section 9.1, and a
copy of such notice shall be delivered to the Trustee unless the meeting has
been called by it and to the Company unless the
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meeting has been called by it. Such notice shall state the time and place of the
meeting, the general nature of the business to be transacted and shall contain
such information as is reasonably necessary to enable the Warrantholders to make
a reasoned decision on such matters, but it shall not be necessary for any such
notice to set out the terms of any resolution to be proposed or any of the
provisions of this Article 6. The notice convening any such meeting may be
signed by an appropriate officer of the Trustee or of the Company or the person
designated by the Warrantholders convening the meeting, as the case may be.
6.3 CHAIR
The Trustee may nominate in writing an individual to be chair of the
meeting and if no individual is so nominated, or if the individual so nominated
is not present within 15 minutes after the time fixed for the holding of the
meeting, the Warrantholders present in person or by proxy shall appoint an
individual present to be chair. The Chair of the meeting need not be a
Warrantholder.
6.4 QUORUM
Subject to the provisions of Section 6.11, at any meeting of the
Warrantholders a quorum shall consist of Warrantholders present in person or
represented by proxy and holding or representing at least 10% of the aggregate
number of Warrants then unexercised and outstanding, provided that at least two
persons entitled to vote thereat are personally present. If a quorum of the
Warrantholders shall not be present within one half-hour from the time fixed for
holding any meeting, the meeting, if summoned by the Warrantholders or on a
Warrantholders' Request, shall be dissolved; but in any other case the meeting
shall be adjourned to the same day in the next week (unless such day is not a
Business Day in which case it shall be adjourned to the next following Business
Day) at the same time and place to the extent possible and, subject to the
provisions of Section 6.11, no notice of the adjournment need be given. Any
business may be brought before or dealt with at an adjourned meeting which might
have been dealt with at the original meeting in accordance with the notice
calling the same. At the adjourned meeting, the Warrantholders present in person
or represented by proxy shall form a quorum and may transact the business for
which the meeting was originally convened, notwithstanding that they may not
hold or represent at least 10% of the aggregate number of Warrants then
unexercised and outstanding. No business shall be transacted at any meeting
unless a quorum is present at the commencement of business.
6.5 POWER TO ADJOURN
The chair of any meeting at which a quorum of the Warrantholders is
present may, with the consent of the meeting, adjourn any such meeting, and no
notice of such adjournment need be given except such notice, if any, as the
meeting may prescribe.
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6.6 SHOW OF HANDS
Every question submitted to a meeting shall be decided in the first
place by a majority of the votes given on a show of hands except that votes on
an Extraordinary Resolution shall be given in the manner hereinafter provided.
At any such meeting, unless a poll is duly demanded as herein provided, a
declaration by the chair that a resolution has been carried or carried
unanimously or by a particular majority or lost or not carried by a particular
majority shall be conclusive evidence of the fact.
6.7 POLL AND VOTING
On every Extraordinary Resolution, and when demanded by the chair or by
one or more of the Warrantholders acting in person or by proxy on any other
question submitted to a meeting and after a vote by show of hands, a poll shall
be taken in such manner as the chair shall direct. Questions other than those
required to be determined by Extraordinary Resolution shall be decided by a
majority of the votes cast on a poll. On a show of hands, every person who is
present and entitled to vote, whether as a Warrantholder or as proxy for one or
more absent Warrantholders, or both, shall have one vote. On a poll, each
Warrantholder present in person or represented by a proxy duly appointed by
instrument in writing shall be entitled to one vote in respect of each
unexercised Warrant held by him. A proxyholder need not be a Warrantholder. The
chair of any meeting shall be entitled, both on a show of hands and on a poll,
to vote in respect of the Warrants, if any, held or represented by him.
6.8 REGULATIONS
Subject to the provisions of this Indenture, the Trustee or the Company
with the approval of the Trustee may from time to time make and from time to
time vary such regulations as it shall consider necessary or appropriate:
(a) for the deposit of instruments appointing proxies at such place and
time as the Trustee, the Company or the Warrantholders convening the
meeting, as the case may be, may in the notice convening the meeting
direct;
(b) for the deposit of instruments appointing proxies at some approved
place other than the place at which the meeting is to be held and
enabling particulars of such instruments appointing proxies to be
mailed or faxed before the meeting to the Company or to the Trustee at
the place where the same is to be held and for the voting of proxies so
deposited as though the instruments themselves were produced at the
meeting;
(c) for the form of the instrument of proxy; and
(d) generally for the calling of meetings of Warrantholders and the conduct
of business thereat.
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Any regulations so made shall be binding and effective and the votes
given in accordance therewith shall be valid and shall be counted. Save as such
regulations may provide, the only persons who shall be recognized at any meeting
as a Warrantholder, or be entitled to vote or be present at the meeting in
respect thereof (subject to Section 6.9), shall be Warrantholders or persons
holding proxies of Warrantholders.
6.9 COMPANY, TRUSTEE AND COUNSEL MAY BE REPRESENTED
The Company and the Trustee, by their respective employees, directors
and officers, and the counsel for each of the Company, the Warrantholders and
the Trustee may attend any meeting of the Warrantholders and speak thereto but
shall have no vote as such.
6.10 POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION
In addition to all other powers conferred upon them by any other
provisions of this Indenture or by law, the Warrantholders at a meeting shall
have the power, exercisable from time to time by Extraordinary Resolution:
(a) to agree with the Company to any modification, abrogation, alteration,
compromise or arrangement of the rights of Warrantholders and/or,
subject to the prior consent, the Trustee in its capacity as trustee
hereunder or on behalf of the Warrantholders against the Company
whether such rights arise under this Indenture or otherwise.
(b) to amend or repeal any Extraordinary Resolution previously passed or
sanctioned by the Warrantholders;
(c) to direct or authorize the Trustee, subject to receipt of funding and
indemnity, to enforce any of the covenants on the part of the Company
contained in this Indenture or to enforce any of the rights of the
Warrantholders in any manner specified in such Extraordinary Resolution
or to refrain from enforcing any such covenant or right;
(d) to waive and direct the Trustee to waive any default on the part of the
Company in complying with any provisions of this Indenture or Warrants,
either unconditionally or upon any conditions specified in such
Extraordinary Resolution;
(e) to assent to any change in or omission from the provisions contained
herein or in the Warrant Certificates or any ancillary or supplemental
instrument which is agreed to by the Company and to authorize the
Trustee to concur in and execute any ancillary or supplemental
indenture embodying the change or omission;
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(f) to assent to a compromise or arrangement with a creditor or creditors
or a class or classes of creditors, whether secured or otherwise, and
with holders of any shares or other securities of the Company;
(g) to restrain any Warrantholder from taking or instituting any suit,
action or proceeding against the Company for the enforcement of any of
the covenants on the part of the Company contained in this Indenture or
Warrants or to enforce any of the rights of the Warrantholders;
(h) to direct any Warrantholder who, as such, has brought any suit, action
or proceeding to stay or discontinue or otherwise deal with any such
suit, action or proceeding, upon payment of the costs, charges and
expenses reasonably and properly incurred by such Warrantholder in
connection therewith; and
(i) power from time to time and at any time to remove the Trustee and
appoint a successor trustee;
provided, however, that Trustee shall be bound by any Extraordinary Resolution
varying the rights or protections of the Trustee hereunder without its consent.
6.11 MEANING OF EXTRAORDINARY RESOLUTION
(a) The expression "EXTRAORDINARY RESOLUTION" when used in this Indenture
means, subject as hereinafter in this Section 6.11 and in Section 6.14 provided,
a resolution proposed at a meeting of Warrantholders duly convened for that
purpose and held in accordance with the provisions of this Article 6 at which
there are present in person or represented by proxy Warrantholders holding at
least 25% (50% for any Extraordinary Resolution that would increase the Exercise
Price, reduce the number of Underlying Securities issuable upon exercise of
Warrants (other than pursuant to adjustments provided for herein) or shorten the
Exercise Period) of the aggregate number of then outstanding unexercised
Warrants and passed by the affirmative votes of Warrantholders holding not less
than 66-2/3% of the aggregate number of the then outstanding unexercised
Warrants represented at the meeting and voted on a poll upon such resolution.
(b) If, at any meeting called for the purpose of passing an Extraordinary
Resolution, Warrantholders holding at least 25% (50% for any Extraordinary
Resolution that would increase the Exercise Price, reduce the number of
Underlying Securities issuable upon exercise of Warrants (other than pursuant to
adjustments provided for herein) or shorten the Exercise Period) of the
aggregate number of then outstanding unexercised Warrants are not present in
person or by proxy within one half-hour after the time appointed for the
meeting, then the meeting, if convened by Warrantholders or on a Warrantholders'
Request, shall be dissolved; but in any other case it shall stand adjourned to
such day, being not less than four or more than 10 Business Days later, and to
such place in Canada and the United States and time as may be appointed by the
Chairman. Not less than three Business Days' prior notice shall be given of the
time and place of such adjourned meeting in the manner provided in Article 9.
Such notice shall state that
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at the adjourned meeting the Warrantholders present in person or represented by
proxy shall form a quorum but it shall not be necessary to set forth the
purposes for which the meeting was originally called or any other particulars.
At the adjourned meeting the Warrantholders present in person or represented by
proxy shall form a quorum and may transact the business for which the meeting
was originally convened and a resolution proposed at such adjourned meeting and
passed by the requisite vote as provided in Section 6.11(a) shall be an
Extraordinary Resolution within the meaning of this Indenture notwithstanding
that Warrantholders holding at least 25% or 50%, as the case may be, of the
aggregate number of then outstanding unexercised Warrants are not present in
person or represented by proxy at such adjourned meeting.
(c) Votes on an Extraordinary Resolution shall always be given on a poll and
no demand for a poll on an Extraordinary Resolution shall be necessary.
6.12 POWERS CUMULATIVE
It is hereby declared and agreed that any one or more of the powers or
any combination of the powers in this Indenture stated to be exercisable by the
Warrantholders by Extraordinary Resolution or otherwise may be exercised from
time to time and the exercise of any one or more of such powers or any
combination of powers from time to time shall not be deemed to exhaust the right
of the Warrantholders to exercise such powers or combination of powers then or
thereafter from time to time.
6.13 MINUTES
Minutes of all resolutions and proceedings at every meeting of
Warrantholders shall be made and duly entered in books to be from time to time
provided for that purpose by the Trustee at the reasonable expense of the
Company, and any such minutes as aforesaid, if signed by the chair of the
meeting at which such resolutions were passed or proceedings held, or by the
chair of the next succeeding meeting of the Warrantholders, shall be PRIMA FACIE
evidence of the matters therein stated and, until the contrary is proved, every
such meeting in respect of the proceedings of which minutes shall have been made
shall be deemed to have been duly convened and held, and all resolutions passed
thereat or proceedings taken shall be deemed to have been duly passed and taken.
6.14 INSTRUMENTS IN WRITING
All actions that may be taken and all powers that may be exercised by
the Warrantholders at a meeting held as provided in this Article 6 also may be
taken and exercised by Warrantholders holding, in the case of such actions and
powers not requiring an Extraordinary Resolution, at least 51%, and, in the case
of such actions and powers requiring an Extraordinary Resolution, at least
66-2/3%, of the aggregate number of then outstanding unexercised Warrants by an
instrument in writing signed in one or more counterparts by such Warrantholders
in person or by attorney duly appointed in writing, and the expression
"EXTRAORDINARY RESOLUTION" when used in this Indenture shall include an
instrument so signed.
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6.15 BINDING EFFECT OF RESOLUTIONS
Every resolution and every Extraordinary Resolution passed in
accordance with the provisions of this Article 6 at a meeting of Warrantholders
shall be binding upon all the Warrantholders, whether present at or absent from
such meeting, and every instrument in writing signed by Warrantholders in
accordance with Section 6.14 shall be binding upon all the Warrantholders,
whether signatories thereto or not, and each and every Warrantholder and the
Trustee (subject to the provisions for indemnity herein contained) shall be
bound to give effect accordingly to every such resolution and instrument in
writing. In the case of an instrument in writing, the Trustee shall give notice
in the manner contemplated in Section 9.1 of the effect of the instrument in
writing to all Warrantholders and the Company as soon as is reasonably
practicable.
6.16 HOLDINGS BY THE COMPANY OR SUBSIDIARIES DISREGARDED
In determining whether Warrantholders holding the required number of
outstanding and unexercised Warrants there are present in person or represented
by proxy at a meeting of Warrantholders for the purpose of determining a quorum
or have concurred in any consent, waiver, Extraordinary Resolution,
Warrantholders' Request or other action under this Indenture, Warrants owned
legally or beneficially by the Company or any subsidiary (as that term is
defined in the SECURITIES ACT (Ontario)) of the Company shall be disregarded.
The Company shall provide to the Trustee, upon request, a certificate of the
Company detailing the number of Warrants owned legally or beneficially by the
Company or any subsidiary (as that term is defined in the SECURITIES ACT
(Ontario)) of the Company, together with the registration thereof.
ARTICLE 7
SUPPLEMENTAL INDENTURES
7.1 SUPPLEMENTAL INDENTURES
From time to time the Company and the Trustee may, subject to the
provisions of this Indenture, and shall, when so directed by this Indenture,
execute and deliver by their proper officers, indentures or instruments
supplemental hereto, which thereafter shall form part hereof, for any one or
more or all of the following purposes:
(a) setting forth adjustments in the application of Article 2;
(b) adding to the provisions hereof such additional covenants and
enforcement provisions as in the opinion of counsel are necessary or
advisable, provided that the same are not in the opinion of the Trustee
prejudicial to the interests of the Warrantholders as a group;
(c) giving effect to any Extraordinary Resolution passed as provided in
Article 6;
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(d) making such provisions not inconsistent with this Indenture as may be
necessary or desirable with respect to matters or questions arising
hereunder, provided that such provisions are not, in the opinion of the
Trustee, relying on the opinion of counsel, prejudicial to the
interests of the Warrantholders as a group;
(e) adding to or amending the provisions hereof in respect of the transfer
of Warrants, making provision for the exchange of Warrants, and making
any modification in the forms of the certificates for the Warrants that
does not affect the substance thereof;
(f) making any additions to, deletions from or alterations of the
provisions of this Indenture which, in the opinion of the Trustee do
not materially and adversely affect the interests of the Warrantholders
and are necessary or advisable in order to incorporate, reflect or
comply with any Applicable Legislation; and
(g) for any other purpose not inconsistent with the terms of this
Indenture, including the correction or rectification of any
ambiguities, defective or inconsistent provisions, errors or omissions
herein, provided that, in the opinion of the Trustee, the rights of the
Trustee and of the Warrantholders as a group are not prejudiced
thereby,
provided, however, that no amendment may be made to this Indenture, by
supplement or otherwise, without the prior written consent of each of the TSX
and Nasdaq (to the extent required by the rules and regulations thereof).
7.2 SUCCESSOR CORPORATIONS
In the case of the consolidation, amalgamation, arrangement, merger or
transfer of the undertaking or assets of the Company as an entirety or
substantially as an entirety to another person (a "SUCCESSOR"), forthwith
following the occurrence of such event the successor resulting from such
consolidation, amalgamation, arrangement, merger or transfer (if not the
Company) shall expressly assume, by supplemental indenture satisfactory in form
to the Trustee and executed and delivered to the Trustee, the due and punctual
performance and observance of each and every covenant and condition of this
Indenture to be performed and observed by the Company, and in any event, shall
be bound by the provisions hereof and all obligations for the due and punctual
performance and observance of each and every covenant and obligation contained
in this Indenture to be performed by the Company.
ARTICLE 8
CONCERNING THE TRUSTEE
8.1 TRUST INDENTURE LEGISLATION
(a) In this Article, the term "APPLICABLE LEGISLATION" means the provisions,
if any, of the BUSINESS CORPORATION ACT (Ontario) and any statute of Canada or a
province or territory of
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Canada and the regulations under any such named or other statute relating to
trust indentures and/or to the rights, duties and obligations of trustees and of
corporations under trust indentures, to the extent that such provisions are at
the time in force and applicable to this Indenture.
(b) If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with a mandatory requirement of Applicable Legislation,
such mandatory requirement shall prevail.
(c) The Company and the Trustee agree that each will at all times in relation
to this Indenture and any action to be taken hereunder observe and comply with
and be entitled to the benefit of Applicable Legislation.
8.2 RIGHTS AND DUTIES OF TRUSTEE
(a) In the exercise of the rights and duties prescribed or conferred by the
terms of this Indenture, the Trustee shall act honestly and in good faith with a
view to the best interests of the Warrantholders and shall exercise the degree
of care, diligence and skill that a reasonably prudent trustee would exercise in
comparable circumstances. No provision of this Indenture shall be construed to
relieve the Trustee from, or require any other person to indemnify the Trustee
against, liability for its own negligence, wilful misconduct or bad faith.
(b) Subject only to Section 8.2(a), the Trustee shall not be bound to do or
take any act, action or proceeding for the enforcement of any of the obligations
of the Company under this Indenture unless and until it shall have received a
Warrantholders' Request specifying the act, action or proceeding that the
Trustee is requested to take. The obligation of the Trustee to commence or
continue any act, action or proceeding for the purpose of enforcing any rights
of the Trustee or the Warrantholders hereunder shall be conditional upon the
Warrantholders furnishing, when required by notice in writing by the Trustee,
sufficient funds to commence or continue such act, action or proceeding and an
indemnity reasonably satisfactory to the Trustee to protect and hold harmless
the Trustee against the costs, charges, expenses and liabilities to be incurred
thereby and any loss and damage it may suffer by reason thereof. None of the
provisions contained in this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers unless
indemnified as aforesaid.
(c) The Trustee may, before commencing or at any time during the continuance
of any such act, action or proceeding, require the Warrantholders, at whose
instance it is acting, to deposit with the Trustee the Warrants held by them,
for which Warrants the Trustee shall issue receipts.
(d) Every provision of this Indenture that by its terms relieves the Trustee
of liability or entitles it to rely upon any evidence submitted to it is subject
to the provisions of Applicable Legislation, of this Section 8.2 and of Section
8.3.
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8.3 EVIDENCE, EXPERTS AND ADVISERS
(a) In addition to the reports, certificates, opinions and other evidence
required by this Indenture, the Company shall furnish to the Trustee such
additional evidence of compliance with any provision hereof in such form as may
be prescribed by Applicable Legislation, or as the Trustee may reasonably
require by written notice to the Company.
(b) In the exercise of its rights and duties hereunder, the Trustee may, if
it is acting in good faith, rely as to the truth of the statements and the
accuracy of the opinions expressed therein, upon statutory declarations,
opinions, reports, written requests, consents or orders of the Company,
certificates of the Company or other evidence furnished to the Trustee, provided
that such evidence complies with Applicable Legislation and the Trustee examines
the same and determines that such evidence complies with the applicable
requirements of this Indenture.
(c) Whenever Applicable Legislation requires that evidence referred to in
Section 8.3(a) be in the form of a statutory declaration, the Trustee may accept
such statutory declaration in lieu of a certificate of the Company required by
any provision hereof. Any such statutory declaration may be made by one or more
of the chairman of the board of directors, the chief executive officer, the
president, the secretary, a senior vice-president or a vice-president of the
Company.
(d) Proof of the execution of an instrument in writing, including a
Warrantholders' Request, by any Warrantholder may be made by the certificate of
a notary public, or other officer with similar powers, that the person signing
such instrument acknowledged to him the execution thereof, or by an affidavit of
a witness to such execution or in any other manner that the Trustee may consider
adequate.
(e) The Trustee may employ or retain such counsel, accountants or other
experts or advisers as it may reasonably require for the purpose of determining
and discharging its duties hereunder, may act on and rely upon the advice or
opinions so obtained and may pay reasonable remuneration for all services so
performed by any of them, and shall not be responsible for any misconduct on the
part of such experts or advisors who have been appointed with due care by the
Trustee. The Company shall pay, or reimburse the Trustee for, the costs of
obtaining such advice in accordance with Section 4.2.
8.4 DOCUMENTS HELD BY TRUSTEE
(a) Any securities, documents of title or other instruments that may at any
time be held by the Trustee subject to the trusts hereof may be placed in the
deposit vaults of the Trustee or of any Canadian chartered bank or trust company
or deposited for safekeeping with any such bank or trust company.
(b) Unless herein otherwise expressly provided, any money held pending the
application or withdrawal thereof under any provision of this Indenture may be
deposited in the
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name of the Trustee in any Schedule A Canadian chartered bank at the rate of
interest then current on similar deposits or, with the consent of the Company,
may be:
(i) deposited in the deposit department of the Trustee or of any other
loan or trust company authorized to accept deposits under the laws
of Canada or a province thereof; or
(ii) invested in securities issued or guaranteed by the Government of
Canada or a province thereof or in obligations, maturing not more
than one year from the date of investment, of any Schedule A
Canadian chartered bank.
(c) All interest or other income received by the Trustee in respect of
deposits and investments will belong to the Company.
8.5 ACTIONS BY TRUSTEE TO PROTECT INTERESTS
The Trustee shall have the power to institute and to maintain such
actions and proceedings as it may consider necessary or expedient to preserve,
protect or enforce its interests and the interests of the Warrantholders.
8.6 TRUSTEE NOT REQUIRED TO GIVE SECURITY
Subject to the provisions of this Indenture and Applicable Legislation,
the Trustee shall not be required to give any bond or security in respect of the
execution of the trusts and powers of this Indenture or otherwise.
8.7 PROTECTION OF TRUSTEE
By way of supplement to the provisions of any law for the time being
relating to trustees, it is expressly declared and agreed as follows:
(a) The Trustee shall not be liable for or by reason of any statements of
fact or recitals in this Indenture (except the representation contained
in Section 8.9) or be required to verify the same.
(b) Nothing herein contained shall impose any obligation on the Trustee to
see to or to require evidence of the registration or filing (or renewal
thereof) of this Indenture or any instrument ancillary or supplemental
hereto.
(c) The Trustee shall not be bound to give notice to any person of the
execution hereof.
(d) The Trustee shall not incur any liability or responsibility whatsoever
or be in any way responsible for the consequence of any breach on the
part of the Company of any of the covenants herein contained or of any
acts of any directors, officers, employees, agents or servants of the
Company.
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8.8 REPLACEMENT OF TRUSTEE
(a) The Trustee may resign its trust and be discharged from all further
duties and liabilities hereunder by giving to the Company not less than 45 days'
prior notice in writing or such shorter prior notice as the Company may accept
as sufficient. The Warrantholders by Extraordinary Resolution shall have the
power at any time to remove the existing Trustee and to appoint a new trustee.
In the event of the Trustee resigning or being removed as aforesaid or being
dissolved, becoming bankrupt, going into liquidation or otherwise becoming
incapable of acting hereunder, the Company shall forthwith appoint a new trustee
unless a new trustee has already been appointed by the Warrantholders; failing
such appointment by the Company, within 10 days the retiring Trustee or any
Warrantholder may apply to a justice of the Ontario Court (General Division) at
the Company's expense, on such notice as such justice may direct, for the
appointment of a new trustee; but any new trustee so appointed by the Company or
by the Court shall be subject to removal as aforesaid by the Warrantholders. Any
new trustee appointed under any provision of this Section 8.8 shall be a
corporation authorized to carry on the business of a trust company in the
Province of Ontario and, if required by Applicable Legislation of any other
province, in such other province and shall maintain an office or agency in the
Borough of Manhattan, City of New York, New York where Warrants may be exercised
pursuant to Section 3.1, redeemed pursuant to Section 3.4 or transferred
pursuant to Section 2.9. On any such appointment, the new trustee shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named herein as Trustee without any further assurance,
conveyance, act or deed; but there shall be immediately executed, at the expense
of the Company, all such conveyances or other instruments as may, in the opinion
of counsel, be necessary or advisable for the purpose of assuring the same to
the new trustee, provided that any resignation or removal of the Trustee and
appointment of a successor trustee shall not become effective until the
successor trustee shall have executed an appropriate instrument accepting such
appointment and, at the request of the Company, the predecessor Trustee, upon
payment of its outstanding remuneration and expenses, shall execute and deliver
to the successor trustee an appropriate instrument transferring to such
successor trustee all rights and powers of the predecessor Trustee hereunder.
(b) Upon the appointment of a successor trustee, the Company shall promptly
notify the Warrantholders thereof.
(c) Any corporation into or with which the Trustee may be merged or
consolidated or amalgamated, or any corporation succeeding to the trust business
of the Trustee, shall be the successor to the Trustee hereunder without any
further act on its part or of any of the parties hereto, provided that such
corporation would be eligible for appointment as a new trustee under Section
8.8(a).
(d) Any Warrants certified but not delivered by a predecessor trustee may be
certified by the successor trustee in the name of the predecessor or successor
trustee.
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8.9 CONFLICT OF INTEREST
(a) The Trustee represents to the Company that at the time of execution and
delivery hereof no material conflict of interest exists which it is aware of in
the Trustee's role as a fiduciary hereunder and agrees that in the event of a
material conflict of interest arising which it becomes aware of hereafter it
will, within 90 days after ascertaining that it has such a material conflict of
interest, either eliminate the same or resign its trust hereunder to a successor
trustee approved by the Company. If any such material conflict of interest
exists or hereafter shall exist, the validity and enforceability of this
Indenture and the Warrants shall not be affected in any manner whatsoever by
reason thereof.
(b) Subject to Section 8.9(a), the Trustee, in its personal or any other
capacity, may buy, lend upon and deal in securities of the Company and generally
may contract and enter into financial transactions with the Company or any
subsidiary of the Company without being liable to account for any profit made
thereby.
8.10 ACCEPTANCE OF TRUSTS
The Trustee hereby accepts the trusts in this Indenture declared and
provided for and agrees to perform the same upon the terms and conditions herein
set forth, and to hold all rights, interests and benefits contained herein for
and on behalf of those persons who become Warrantholders from time to time.
8.11 TRUSTEE NOT TO BE APPOINTED RECEIVER
Neither the Trustee nor any person related to the Trustee shall be
appointed a receiver or receiver and manager or liquidator of all or any part of
the assets or undertaking of the Company.
8.12 INDEMNITY OF TRUSTEE
The Company hereby indemnifies and holds harmless the Trustee and its
officers from and against all reasonable costs, liabilities, expenses and
disbursements (including reasonable legal fees and disbursements) that it might
incur or to which it might have become subject in any action, suit or other
similar legal proceeding that might be instituted against the Trustee arising
from or out of any act, omission or error of the Trustee arising pursuant to
this Indenture, provided that the Trustee acted in accordance with the standards
set forth in Section 8.2 and that any such act, omission or error did not
constitute negligence, wilful misconduct or bad faith on the part of the
Trustee. This Section 8.12 shall survive the resignation or removal of the
Trustee or the termination of this Indenture.
8.13 NOTICE
(a) The Trustee shall not be bound to give any notice or to do or take any
act, action, or proceeding by virtue of the powers conferred on it hereby unless
and until it shall have been
-39-
required so to do under the terms hereof and the Trustee shall not be required
to take notice of any default of the Company hereunder unless and until notified
in writing of the default (which notice must specify the nature of the default)
and, in the absence of such notice, the Trustee may for all purposes hereunder
conclusively assume that no default by the Company hereunder has occurred. The
giving of any notice shall in no way limit the discretion of the Trustee
hereunder as to whether any action is required to be taken in respect of any
default hereunder.
(b) Whenever any confirmation or instruction is required to be given to the
Trustee pursuant to this Indenture, such confirmation or instruction must be in
writing to be valid and effectively given.
ARTICLE 9
GENERAL
9.1 NOTICE
(a) Unless herein otherwise expressly provided, any notice, document or thing
required or permitted to be given or delivered hereunder shall be deemed to be
properly given or delivered if:
(i) delivered in person to the address set out below and acknowledged
by written receipt signed by the person receiving such notice;
(ii) telecopied and confirmed by prepaid registered letter addressed
to the party receiving such notice at its respective addresses
set out below; or
(iii) sent by prepaid registered letter (provided that any notice to be
so given is not unlikely to reach its destination as a result of
any actual or threatened interruption of mail services) or
courier delivery addressed to the party receiving such notice at
its respective address set out below:
the Company: Agnico-Eagle Mines Limited
000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx Xxxxxxxx, Vice President, Finance and Chief
Financial Officer
Fax No.: (000) 000-0000
with a Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP
copy (which Barristers & Solicitors
shall not X.X. Xxx 00, Xxxxx 0000
constitute 1 First Canadian Place
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notice) to: Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
the Trustee: Computershare Trust Company of Canada
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx, Xxxxx Xxxxx
Xxxxxxx, XX X0X 0X0
Attention: Manager, Corporate Trust
Fax: (000) 000-0000
a Warrantholder: the address appearing in the register of holders
(b) Any notice or delivery given in accordance with this Section 9.1 shall be
deemed to have been given and received:
(i) if delivered in person in accordance with Section 9.1(a)(i), on
the day of delivery in person (provided that such day is a
Business Day at the place of receipt and delivery occurs prior to
4:00 p.m. (local time of the recipient) and, if it is not, on the
next following Business Day);
(ii) if telecopied in accordance with Section 9.1(a)(ii) during the
business hours of the recipient, on the date of receipt of the
telecopy (provided that such day is a Business Day at the place
of receipt and, if it is not, on the next following Business Day)
and if telecopied other than during business hours, on the next
following Business Day; and
(iii) if sent by prepaid registered letter or courier delivery in
accordance with Section 9.1(a)(iii), on the date the letter is
actually received by the addressee.
(c) For greater certainty, a letter delivered by courier where such courier
obtains a written acknowledgment of receipt from the party receiving the letter
shall be considered a delivery in person in accordance with Section 9.1(a)(i)
rather than the sending of a letter in accordance with Section 9.1(a)(iii).
(d) The Company or the Trustee, as the case may be, may from time to time by
notice in writing delivered in accordance with Section 9.1 change its address
for purposes hereof.
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9.2 ACCIDENTAL FAILURE TO GIVE NOTICE TO WARRANTHOLDERS
Accidental error or omission in giving notice or accidental failure to
give notice to any Warrantholder shall not invalidate any action or proceeding
founded thereon.
9.3 COUNTERPARTS AND FORMAL DATE
This Indenture may be executed in several counterparts, each of which
when so executed shall be deemed to be an original and such counterparts
together shall constitute one and the same instrument and notwithstanding their
date of execution shall be deemed to be dated as of the date hereof.
9.4 SATISFACTION AND DISCHARGE OF INDENTURE
Upon the earlier of: (i) the date by which all Warrants theretofore
certified hereunder have been cancelled or deemed to be cancelled in accordance
with Section 3.5; and (ii) the Expiry Time, this Indenture, except to the extent
that Underlying Securities and certificates therefor have not been issued and
delivered hereunder or the Company has not performed any of its obligations
hereunder, shall cease to be of further effect in respect of the Company, and
the Trustee, on written demand of and at the cost and expense of the Company,
and upon delivery to the Trustee of a certificate of the Company stating that
all conditions precedent to the satisfaction and discharge of this Indenture
have been complied with and upon payment to the Trustee of the expenses, fees
and other remuneration payable to the Trustee, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture; provided that if
the Trustee has not then performed any of its obligations hereunder, any such
satisfaction and discharge of the Company's obligations hereunder shall not
affect or diminish the rights of any Warrantholder or the Company against the
Trustee.
9.5 PROVISIONS OF INDENTURE AND WARRANTS FOR THE SOLE BENEFIT OF PARTIES
AND WARRANTHOLDERS
Except as provided in Sections 5.2 and 5.3, nothing in this Indenture,
expressed or implied, shall give or be construed to give to any person other
than the parties hereto and the holders from time to time of the Warrants any
legal or equitable right, remedy or claim under this Indenture, or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and the Warrantholders.
9.6 LANGUAGE
The parties hereto confirm their express wish that this Indenture and
all documents and agreements directly or indirectly relating thereto be drawn up
in the English language. Notwithstanding such express wish, the parties agree
that any such document or agreement, or any part thereof or of this Indenture,
may be drawn up in the French language.
-42-
Les parties aux presentes confirment leur volonte expresse que la
presente convention ainsi que tous les documents et conventions s'y rattachant
directement ou indirectement soient rediges en anglais. Nonobstant cette volonte
expresse, les parties aux presentes conviennent que la presente convention ainsi
que tous les documents et conventions s'y rattachant directement ou
indirectement, ou toute partie de ceux-ci, puissent etre rediges en francais.
9.7 PURCHASE OF WARRANTS BY COMPANY
Subject to applicable law, the Company may from time to time purchase
on any stock exchange in the open market, by invitation for tender, by private
contract or otherwise any of the Warrants, on such terms as the Company may
determine. Any such purchase may be made in such manner, from such persons, on
such other terms and at such prices as the Company in its sole discretion may
determine. The Warrant Certificates representing the Warrants purchased pursuant
to this Section 9.7 shall forthwith be delivered to and cancelled by the
Trustee. If requested by the Company, the Trustee shall furnish the Company with
a certificate as to such destruction.
9.8 ASSIGNMENT
This Indenture may not be assigned by either party hereto without the
consent in writing of the other party. This Indenture shall enure to and bind
the parties and their lawful successors and permitted assigns.
9.9 NO WAIVER, ETC.
No act, omission, delay, acquiescence or course of conduct on the part
of the party hereto, other than a specific written instrument, shall constitute
a waiver of or consent to any breach or default by the other party hereto, or
affect or limit the right of the party to insist on strict or timely performance
of the obligation of the other party.
9.10 FURTHER ASSURANCES
Each of the parties hereto shall do or cause to be done all such acts
and things and execute such further documents, agreements and assurances as may
reasonably be necessary or advisable from time to time to carry out the
provisions of this Indenture in accordance with their true intent.
-43-
IN WITNESS WHEREOF the parties hereto have executed this Indenture
under the hands of their proper officers in that behalf.
AGNICO-EAGLE MINES LIMITED
by
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President, Finance
and Chief Financial Officer
COMPUTERSHARE TRUST COMPANY OF CANADA
by
----------------------------------
Name:
Title:
by
----------------------------------
Name:
Title:
SCHEDULE A
FORM OF WARRANT CERTIFICATE
TEXT FOR WARRANT CERTIFICATE
THIS CERTIFIES that, for value received, the holder hereof, is the registered
holder of the number of common share purchase warrants (the "Warrants") stated
above and is entitled at any time at or after the date hereof and prior to 5:00
p.m. (Toronto time) on November 14, 2007 (the "Expiry Time") to purchase in
accordance with the provisions of the Indenture (as defined below) one common
share (a "Common Share") of Agnico-Eagle Mines Limited (the "Company") for each
such Warrant represented hereby at a price of U.S.$19.00 per Common Share (the
"Exercise Price") by surrendering to Computershare Trust Company of Canada (the
"Trustee) at its principal office in the City of Toronto, Ontario or at the
principal office of Computershare Trust Company of New York (the "U.S. Agent")
in the Borough of Manhattan, City of New York, New York this certificate
together with an executed exercise form (the "Exercise Form") in the form of the
attached Exercise Form or any other written notice in a form satisfactory to the
applicable Trustee, in either case duly completed and executed, and a certified
cheque, bank draft or money order payable at par to or to the order of
Agnico-Eagle Mines Limited in the amount equal to the exercise price multiplied
by the number of Common Shares subscribed for; PROVIDED THAT UNLESS THE HOLDER
HAS SURRENDERED THE WARRANTS REPRESENTED HEREBY FOR EXERCISE PURSUANT TO THE
PROVISIONS HEREOF AND OF THE INDENTURE ON OR PRIOR TO THE EXPIRY TIME, THE
WARRANTS REPRESENTED HEREBY SHALL BE VOID AND OF NO EFFECT.
Upon the exercise of the Warrants evidenced hereby, the Company shall cause to
be issued to the person(s) in whose name(s) the Common Shares so subscribed for
are to be issued (provided that if the Common Shares are to be issued to a
person other than a holder of this Warrant certificate, the holder's signature
on the Exercise Form herein shall be guaranteed by a Canadian chartered bank, a
major trust company in Canada, a firm which is a member of a recognized stock
exchange in Canada, a member of the Investment Dealers Association of Canada, a
national securities exchange in the United States, or the National Association
of Securities Dealers, Inc. or a participant in the Securities Transfer Agents
Medallion (STAMP) Program (an "Eligible Institution")) the number of Common
Shares to be issued to such person(s), and such person(s) shall become a holder
in respect of Common Shares with effect from the date of such exercise and upon
the due surrender of this Warrant certificate the Company will cause a
certificate(s) representing such Common Shares to be made available for pick-up
by such person(s) at the principal office of the Trustee in the City of Toronto,
Ontario or mailed to be made available for pick-up at the principal office of
the U.S. Agent in the Borough of Manhattan, City of New York, New York or mailed
to such person(s) at the address(es) specified in such Exercise Form, within
three Business Days after receipt of notice from the Trustee of the exercise of
such Warrant.
The Warrants evidenced hereby shall not be exercised by any "U.S. person" (a
"U.S. Person"), as defined in Rule 902(k) of Regulation S under the United
States Securities Act of 1933, as amended (the "1933 Act") or any person holding
such Warrants for the account of a U.S. Person at any time when no registration
statement under the 1933 Act registering the Common Shares issuable upon
exercise of the Warrants evidenced hereby is effective. During such time and
prior
-2-
to the Expiry Time, any U.S. Person holding such Warrants shall have the right
to cause the Company to redeem such Warrants in accordance with the provisions
of the Indenture.
This Warrant Certificate represents Warrants of the Company issued under the
provisions of a Indenture (which indenture together with all other instruments
supplemental or ancillary thereto is herein referred to as the "Indenture")
dated November 14, 2002 between the Company and the Trustee, to which Indenture
reference is hereby made for particulars of the rights of the holders and the
Company and of the Trustee in respect thereof and the terms and conditions upon
which the Warrants are issued and held, all to the same effect as if the
provisions of the Indenture were herein set forth, to all of which the holder by
acceptance hereof assents. A copy of the Indenture will be provided at no cost
to a holder who makes a request for such copy to the Company or to the Trustee.
IF ANY CONFLICT EXISTS BETWEEN THE PROVISIONS CONTAINED HEREIN AND THE
PROVISIONS OF THE INDENTURE, THE PROVISIONS OF THE INDENTURE SHALL GOVERN.
The Indenture provides for adjustments to the right of exercise, including the
amount of and class and kind of securities or other property issuable upon
exercise, upon the happening of certain stated events, including the subdivision
or consolidation of the Common Shares, certain distributions of Common Shares or
securities convertible into Common Shares or of other securities or assets of
the Company, certain offerings of rights, warrants or options and certain
reorganizations.
No fractional Common Shares are issuable upon the exercise of this Warrant. The
Company will pay an amount in cash in lieu of issuing fractional Common Shares,
in accordance with the Indenture. Holders of Warrants will not have any rights
as shareholders of the Company by virtue of holding such Warrants.
Upon presentation to the Trustee at its principal office in the City of Toronto,
Ontario or at the principal office of the U.S. Agent in the Borough of
Manhattan, City of New York, New York, subject to the provisions of the
Indenture and upon compliance with the reasonable requirements of the Trustee,
this Warrant certificate may be exchanged for Warrant certificates entitling the
holder thereof to purchase an equal aggregate number of Common Shares upon
payment of the aggregate Exercise Price. If the holder subscribes for a lesser
number of Common Shares than the number of shares referred to in this Warrant
certificate, the holder shall be entitled to receive a further Warrant
certificate in respect of Common Shares referred to in this Warrant certificate
but not subscribed for. The Company and the Trustee may treat the registered
holder of this Warrant certificate for all purposes as the absolute owner
hereof. The holding of this Warrant certificate shall not constitute the holder
thereof a holder of Common Shares or entitle him to any right or interest in
respect thereof except as herein and in the Indenture expressly provided.
Warrants may be transferred upon compliance with the conditions described in the
Indenture, on the register to be kept at the principal office of the Trustee in
the City of Toronto, by the registered holder thereof or his executors or
administrators or other legal representatives, or his or their attorney
appointed by instrument in writing in form and execution satisfactory to the
Trustee with a signature guaranteed by an Eligible Institution and upon
compliance with such reasonable requirements as the Trustee may prescribe
(including the requirement to provide evidence of satisfactory compliance with
applicable securities laws).
-3-
The Indenture contains provisions making binding upon the holders of Warrants
outstanding thereunder resolutions passed at meetings of such holders held in
accordance with such provisions and instruments in writing signed by the holders
holding a specified percentage of the then unexercised Warrants.
This Warrant certificate and the Indenture shall be governed by the laws of the
Province of Ontario and the federal laws of Canada applicable in that province.
Time shall be of the essence hereof and of the Indenture. This Warrant
certificate shall not be valid for any purpose until it has been certified by or
on behalf of the Trustee for the time being under the Indenture.
IN WITNESS WHEREOF the Company has caused this Warrant certificate to
be signed by its duly authorized officer as of November 14, 2002.
TRANSFER FORM
FOR VALUE RECEIVED, _________________________________hereby sells,
assigns and transfers unto _____________________________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS OF ASSIGNEE
Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint
__________________________________________________ attorney to transfer the said
Warrants on the books of the Trustee and/or the Company with full power of
substitution in the premises.
DATED this ________ day of__________________ , 2002.
------------------------------------------------------
Signature of Warrantholder
------------------------------------------------------
Print full name
------------------------------------------------------
Address in full
Signature guaranteed by:
Name ______________________________
(Authorized Signature Number)
NOTICE: The signature on this assignment must correspond exactly with the name
as written upon the face of this certificate. If Common Shares are to be issued
to a person other than the registered holder, the registered holder must pay to
the Trustee all exigible taxes and the signature of the registered holder must
be guaranteed by an Eligible Institution. The guarantor must affix a stamp
bearing the actual words "Signature Guarantee".
EXERCISE FORM
TO: Agnico-Eagle Mines Limited
The undersigned holder of the within Warrants hereby irrevocably
exercises the Warrants represented hereby and subscribes for the maximum number
of Common Shares (or other shares or securities or property issuable in
accordance with the Indenture) of Agnico-Eagle Mines Limited issuable pursuant
to the within Warrants on the terms specified in the said Warrants and the
Indenture.
The undersigned hereby directs that the said Common Shares be issued in
the name of the undersigned and delivered to the address of the undersigned as
shown on the register of holders of Warrants, unless otherwise specified in the
space provided below.
------------------------ ---------------------- --------------------------------
NAME(S) IN FULL ADDRESS(ES) NUMBER OF COMMON SHARES
(include Postal Code)
------------------------ ---------------------- --------------------------------
------------------------ ---------------------- --------------------------------
------------------------ ---------------------- --------------------------------
------------------------ ---------------------- --------------------------------
------------------------ ---------------------- --------------------------------
(Please Print)
Number of Warrants being Exercised: _____________________________
[ ] Please check box if these certificates are to be delivered to the
office where this Warrant Certificate is surrendered, failing which the
certificates will be mailed to the address shown on the register.
Please note that if Common Shares are to be issued to a person other
than the registered holder, the registered holder must pay to the Trustee all
exigible taxes and duly execute the form of transfer and the signature of the
registered holder must be guaranteed.
-2-
DATED this ________ day of ____________________ , 2002.
------------------------------------------------------
Signature of Warrantholder
------------------------------------------------------
Print full name
------------------------------------------------------
Address in full
------------------------------------------------
(Signature of Guarantor)
Name:
------------------------------------------------
(Authorized Signature Number)
Note: If the signature of the person executing this form is to be guaranteed, it
must be guaranteed by an Eligible Institution.
