EXHIBIT 4.6
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SHAREHOLDER RIGHTS PLAN AGREEMENT
DATED AS OF FEBRUARY 1, 1995
AND AMENDED AND RESTATED AS OF
May 7, 1998
between
ST. LAURENT PAPERBOARD INC.
and
MONTREAL TRUST COMPANY,
as Rights Agent
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TABLE OF CONTENTS
Page
TABLE OF CONTENTS..........................................................i
ARTICLE 1 INTERPRETATION..................................................2
1.1 Certain Definitions............................................2
1.2 Currency.......................................................10
1.3 Descriptive Headings...........................................10
1.4 References to Agreement........................................10
1.5 Calculation of Number and Percentage of Beneficial Ownership of
Outstanding Voting Shares .....................................11
1.6 Acting Jointly or in Concert...................................11
ARTICLE 2 THE RIGHTS......................................................11
2.1 Legend on Certificates.........................................11
2.2 Execution, Authentication, Delivery and Dating of Rights
Certificates...................................................12
2.3 Registration, Registration of Transfer and Exchange............12
2.4 Mutilated, Destroyed, Lost and Stolen Rights Certificates......13
2.5 Persons Deemed Owners of Rights................................13
2.6 Delivery and Cancellation of Certificates......................13
2.7 Agreement of Rights Holders....................................13
2.8 Rights Certificate Holder Not Deemed a Shareholder.............14
ARTICLE 3 EXERCISE OF THE RIGHTS..........................................14
3.1 Initial Exercise Price; Exercise of Rights;
Detachment of Rights ..........................................14
3.2 Adjustments to Exercise Price; Number of Rights................17
3.3 Date on Which Exercise is Effective............................21
ARTICLE 4 ADJUSTMENTS TO THE RIGHTS UPON A FLIP-IN EVENT..................22
ARTICLE 5 THE RIGHTS AGENT................................................23
5.1 General........................................................23
5.2 Merger or Amalgamation or Change of Name of Rights Agent.......23
5.3 Duties of Rights Agent.........................................23
5.4 Change of Rights Agent.........................................25
ARTICLE 6 MISCELLANEOUS...................................................25
6.1 Redemption and Waiver..........................................25
6.2 Expiration.....................................................27
6.3 Issuance of New Rights Certificate.............................27
6.4 Fractional Rights and Fractional Shares........................27
6.5 Supplements and Amendments.....................................27
6.6 Rights of Action...............................................28
6.7 Notice of Proposed Actions.....................................28
6.8 Notices........................................................29
6.9 Costs of Enforcement...........................................29
6.10 Successors.....................................................30
6.11 Benefits of this Agreement.....................................30
6.12 Governing Law..................................................30
6.13 Counterparts...................................................30
6.14 Severability...................................................30
6.15 Effective Date.................................................30
6.16 Reconfirmation and Approval: Reconfirmation...................30
6.17 Actions by the Board of Directors..............................31
6.18 Time of the Essence............................................31
6.19 Regulatory Approvals...........................................31
6.20 Language.......................................................31
EXHIBIT A [FORM OF RIGHTS CERTIFICATE].....................................32
RIGHTS CERTIFICATE.........................................................32
FORM OF ELECTION TO EXERCISE AND CERTIFICATE...............................34
FORM OF ASSIGNMENT AND CERTIFICATE.........................................36
NOTICE
MEMORANDUM OF AGREEMENT made as of the 1st day of February, 1995,
and amended and restated as of April 28, 1995, as of March 5, 1998 and as of May
7, 0000
X X X X X X X:
ST. LAURENT PAPERBOARD INC., a corporation
incorporated under the laws of Canada,
(hereinafter called the "Corporation"),
OF THE FIRST PART,
- and -
MONTREAL TRUST COMPANY, a trust company incorporated
under the laws of Canada as rights agent,
(hereinafter called the "Rights Agent"),
OF THE SECOND PART.
WHEREAS in order to maximize shareholder value the Board of
Directors of the Corporation has determined that it is advisable for the
Corporation to adopt a shareholder rights plan (the "Rights Plan");
AND WHEREAS in order to implement the Rights Plan the Board of
Directors of the Corporation has:
1. authorized the issuance, effective 5:00 p.m. (Montreal time) on February 1,
1995, of one right (a "Right") in respect of each Common Share (as hereinafter
defined) of the Corporation outstanding at 5:00 p.m. (Montreal time) on February
1, 1995 (the "Record Time");
2. authorized the issuance of one Right in respect of each Common Share issued
after the Record Time and prior to the earlier of the Separation Time (as
hereinafter defined) and the Expiration Time (as hereinafter defined); and
3. with respect to the Debentures (as hereinafter defined), authorized the
issuance of one Right in respect of each Common Share issued upon the conversion
of Debentures after the Separation Time and prior to the occurrence of a Flip-in
Event;
AND WHEREAS each Right entitles the holder thereof, after the
Separation Time, to purchase securities of the Corporation (or, in certain
cases, of certain other entities) pursuant to the terms and subject to the
conditions set forth herein;
AND WHEREAS the Corporation desires to appoint the Rights Agent to
act on behalf of the Corporation and holders of Rights, and the Rights Agent is
willing so to act, in connection with the issuance, transfer, exchange and
replacement of Rights Certificates (as hereinafter defined), the exercise of
Rights and other matters referred to herein;
AND WHEREAS pursuant to section 6.5(a) of this Agreement the Board
of Directors acting in good faith by resolution on April 28, 1995 made certain
amendments to this Agreement and directed that this restatement of the Agreement
as so amended be executed and delivered for and on behalf of the Corporation
(the "Amended and Restated Agreement");
AND WHEREAS in preparation for the reconfirmation of the Amended and
Restated Agreement at the 1998 annual meeting of the Corporation pursuant to
section 6.16 of the Amended and Restated Agreement, the Board of Directors of
the Corporation acting in good faith by resolutions on March 5, 1998 and May 7,
1998 made certain amendments, subject to the consent of the holders of Voting
Shares pursuant to section 6.5(b) of the Amended and Restated Agreement, and
directed that this restatement of the Amended and Restated Agreement as so
amended be executed and delivered for and on behalf of the Corporation (the
Amended and Restated Agreement, as so amended again, being herein called the
"Agreement");
NOW THEREFORE, in consideration of the premises and the respective
covenants and agreements set forth herein, the parties hereby agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Certain Definitions
For the purposes of this Agreement, the following terms have the
meanings indicated:
(a) "Acquiring Person" shall mean any Person who is the Beneficial Owner
of 20% or more of the outstanding Voting Shares; provided, however,
that the term "Acquiring Person" shall not include:
(i) the Corporation or any Subsidiary of the Corporation;
(ii) any Person who becomes the Beneficial Owner of 20% or more of
the outstanding Voting Shares as a result of any one or any
combination of:
(A) an acquisition or redemption by the Corporation of
Voting Shares which, by reducing the number of
outstanding Voting Shares, increases the percentage of
outstanding Voting Shares Beneficially Owned by such
Person to 20% or more of the Voting Shares then
outstanding (a "Voting Share Reduction");
(B) an acquisition of Voting Shares made pursuant to a
Permitted Bid or a Competing Permitted Bid (a "Permitted
Bid Acquisition");
(C) an acquisition of Voting Shares in respect of which the
Board of Directors has waived the application of section
4 pursuant to the provisions of subsection 6.1 (b) or
(c) or which was made on or prior to the date of this
Agreement (an "Exempt Acquisition"); or
(D) a Pro Rata Acquisition;
provided, however, that if a Person shall become the
Beneficial Owner of 20% or more of the Voting Shares of
any class of the Corporation then outstanding by reason
of one or any combination of a Voting Share Reduction, a
Permitted Bid Acquisition, an Exempt Acquisition or a
Pro Rata Acquisition and, while such Person is the
Beneficial Owner of 20% or more of the Voting Shares
then outstanding, such Person's Beneficial Ownership of
Voting Shares thereafter increases by more than 1.0% of
the number of Voting Shares outstanding (other than
pursuant to one or any combination of a Voting Share
Reduction, a Permitted Bid Acquisition, an Exempt
Acquisition or a Pro Rata Acquisition) then, as of the
date such Person becomes the Beneficial Owner of such
additional Voting Shares, such Person shall be an
"Acquiring Person";
(iii) for a period of 10 days after the Disqualification Date (as
hereinafter defined), any Person who becomes the Beneficial
Owner of 20% or more of the outstanding Voting Shares as a
result of such Person becoming disqualified from relying on
subsection 1.1(d)(v) hereof solely because such Person or the
Beneficial Owner of the Voting Shares is making or has
announced an intention to make a Take-over Bid, either alone
or by acting jointly or in concert with any other Person; for
the purposes of this definition, "Disqualification Date" means
the first date of public announcement that any Person is
making or has announced an intention to make a Take-over Bid;
(iv) an underwriter or member of a banking or selling group acting
in such capacity that becomes the Beneficial Owner of 20% or
more of the Voting Shares in connection with a distribution of
securities pursuant to a prospectus or by way of private
placement; and
(v) a Person (a "Grandfathered Person") who is the Beneficial
Owner of 20% or more of the outstanding Voting Shares
determined as of the Record Time, provided, however, that
this exemption shall not be, and shall cease to be,
applicable to a Grandfathered Person in the event that such
Grandfathered Person shall, after the Record Time, become
the Beneficial Owner of additional Voting Shares that
increases its Beneficial Ownership of Voting Shares by more
than 1% of the number of Voting Shares outstanding as at
the Record Time, other than through one or any combination
of a Voting Share Reduction, a Permitted Bid Acquisition,
an Exempt Acquisition or a Pro Rata Acquisition.
(b) "Affiliate", when used to indicate a relationship with a specified
Person, means a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under
common control with, such specified Person;
(c) "Associate" means, when used to indicate a relationship with a
specified Person, a spouse of that Person, any Person of the same or
opposite sex with whom that Person is living in a conjugal
relationship outside marriage, a child of that Person or a relative
of that Person if that relative has the same residence as that
Person;
(d) a Person shall be deemed the "Beneficial Owner" of, and to have
"Beneficial Ownership" of, and to "Beneficially Own":
(i) any securities as to which such Person, or any of such
Person's Affiliates or Associates is the owner at law or in
equity;
(ii) any securities as to which such Person or any of such
Person's Affiliates or Associates has the right to become
the owner at law or in equity (whether such right is
exercisable immediately or within a period of 60 days
thereafter and whether or not on condition or the happening
of any contingency) pursuant to any agreement, arrangement,
pledge or understanding, whether or not in writing (other
than (x) a customary agreement with and between
underwriters and banking group or selling group members
with respect to a distribution of securities of the
Corporation pursuant to a prospectus or by way of private
placement, and (y) a pledge of securities in the ordinary
course of business) or upon the exercise of any conversion
right, exchange right, share purchase right (other than a
Right), warrant or option; and
(iii) any securities which are Beneficially Owned within the meaning
of the foregoing provisions of this subsection 1.1(d)(i) and
(ii) by any other Person with whom such person is acting
jointly or in concert;
provided, however, that a Person shall not be deemed the "Beneficial
Owner" of, or to have "Beneficial Ownership" of, or to "Beneficially
Own", any security:
(iv) where such security has been agreed to be deposited or
tendered pursuant to a Permitted Lock-Up Agreement or is
otherwise deposited or tendered pursuant to any Take-over
Bid made by such Person, made by any of such Person's
Affiliates or Associates or made by any other Person acting
jointly or in concert with such Person until such deposited
or tendered security has been taken up or paid for,
whichever shall occur first;
(v) where such Person, any of such Person's Affiliates or
Associates or any other Person acting jointly or in concert
with such Person holds over such security, provided that:
(A) the ordinary business of that Person (an "Investment
Manager") includes the management of investment funds
for others (which others, for greater certainty, may
include or be limited to one or more employee benefit
plans or pension plans) and such security is held by
the Investment Manager in the ordinary course of such
business in the performance of such Investment
Manager's duties for the account of any other Person
(a "Client"); or
(B) that Person (a "Trust Company") is licensed to carry
on the business of a trust company under applicable
laws and, as such, acts as trustee or administrator
or in a similar capacity in relation to the estates
of deceased or incompetent Persons ("Estate
Accounts") or in relation to other accounts ("Other
Accounts") and holds such security in the ordinary
course of such duties for the estate of any such
deceased or incompetent Person or for such other
account; or
(C) such Person is established by statute for purposes that
include, and the ordinary business or activity of such
Person (the "Statutory Body") includes, the management
of investment funds for employee benefit plans, pension
plans, insurance plans or various public bodies; or
(D) such Person (the "Administrator") is the administrator
or trustee of one or more pension funds or plans (a
"Plan") or is a Plan registered under the laws of Canada
or any Province thereof or the laws of the United States
of America or any State thereof; or
(E) such Person (a "Securities Depository") is a registered
holder of such security as a result of carrying on the
business of, or acting as a nominee of, a securities
depository,
provided, in any of the above cases, that the Investment
Manager, the Trust Company, the Statutory Body, the
Administrator, the Plan or the Securities Depository, as the
case may be, is not then making a Take-over Bid or has not
then announced an intention to make a Take-over Bid, other
than an Offer to Acquire Voting Shares or other securities by
means of a distribution by the Corporation or by means of
ordinary market transactions (including prearranged trades)
executed through the facilities of a stock exchange or
organized over-the-counter market, alone or by acting jointly
or in concert with any other Person;
(vi) where such Person is (A) a Client of the same Investment
Manager as another Person on whose account the Investment
Manager holds such security, (B) an Estate Account or an Other
Account of the same Trust Company as another Person on whose
account the Trust Company holds such security or (C) a Plan
with the same Administrator as another Plan on whose account
the Administrator holds such security; or
(vii) where such Person is (A) a Client of an Investment Manager and
such security is owned at law or in equity by the Investment
Manager, (B) an Estate Account or an Other Account of a Trust
Company and such security is owned at law or in equity by the
Trust Company or (C) a Plan and such security is owned at law
or in equity by the Administrator of the Plan;
(e) "Board of Directors" shall mean the board of directors of the
Corporation or, if duly constituted and whenever duly empowered, the
executive committee of the board of directors of the Corporation;
(f) "Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions in Toronto or Montreal are
authorized or obligated by law to close;
(g) "Canada Business Corporations Act" shall mean the Canada Business
Corporations Act, R.S.C. 1985, c. C-44, as amended, and the
regulations made thereunder, and any comparable or successor laws or
regulations thereto;
(h) "close of business" on any given date shall mean the time on such
date (or, if such date is not a Business Day, the time on the next
succeeding Business Day) at which the offices of the transfer agent
for the Common Shares (or, after the Separation Time, the offices of
the Rights Agent) are closed to the public in the city in which such
transfer agent or Rights Agent has an office for the purposes of
this Agreement;
(i) "Common Share" shall mean a common share of the Corporation and any
other share of the Corporation into which such share may be
subdivided, consolidated, reclassified or changed;
(j) "common shares", when used with reference to any Person other than
the Corporation, shall mean the class or classes of shares (or
similar equity interest) with the greatest per share (or similar
interest) voting power entitled to vote generally in the election of
all directors of such other Person;
(k) "Competing Permitted Bid" means a Take-over Bid made while
another Permitted Bid is in existence and that satisfies all of
the provisions of a Permitted Bid except that the condition set
forth in clause (ii) of the definition of a Permitted Bid may
provide that the Voting Shares that are the subject of the
Take-over Bid may be taken up or paid for on a date which is not
earlier than the later of (i) the earliest date that Voting
Shares may be taken up under the Take-over Bid in accordance with
the statutory requirements of the Securities Act (Ontario), as
amended from time to time, and (ii) the 60th day after the
earliest date on which any other Permitted Bid or Competing
Permitted Bid that is then in existence was made;
(l) "controlled": a corporation is "controlled" by another Person if:
(i) securities entitled to vote in the election of directors
carrying more than 50 per cent of the votes for the election
of directors are held, directly or indirectly, by or for the
benefit of the other Person; and
(ii) the votes carried by such securities are entitled, if
exercised, to elect a majority of the board of directors of
such corporation;
and "controls", "controlling" and "under common control with"
shall be interpreted accordingly;
(m) "Co-Rights Agents" shall have the meaning ascribed thereto in
subsection 5.1(a);
(n) "Disposition Date" shall have the meaning ascribed thereto in clause
6.1(c)(ii);
(o) "Debentures" means the 8% Convertible Unsecured Subordinated
Debentures due 2004 of the Corporation;
(p) "dividends paid in the ordinary course" shall mean cash dividends
paid at regular intervals in any financial year of the Corporation
to the extent that such cash dividends do not exceed, in the
aggregate, the greatest of:
(i) 200% of the aggregate amount of cash dividends declared
payable by the Corporation on its Common Shares in its
immediately preceding financial year;
(ii) 300% of the arithmetic average of the aggregate amounts of
cash dividends declared payable by the Corporation on its
Common Shares in its three immediately preceding financial
years; and
(iii) 100% of the aggregate consolidated net income of the
Corporation, before extraordinary items, for its immediately
preceding financial year;
(q) "Dividend Reinvestment Plan" means a regular dividend reinvestment
or other plan of the Corporation made available by the Corporation
to holders of its securities where such plan permits the holder to
direct that some or all of:
(i) dividends paid in respect of shares of any class of the
Corporation;
(ii) proceeds of redemption of shares of the Corporation;
(iii) interest paid on evidences of indebtedness of the Corporation;
or
(iv) optional cash payments;
be applied to the purchase from the Corporation of Voting Shares;
(r) "Effective Date" means February 1, 1995;
(s) "Election to Exercise" shall have the meaning ascribed thereto in
clause 3.1(d)(ii);
(t) "Exempt Acquisition" shall have the meaning ascribed thereto in
subclause 1.1(a)(ii)(C);
(u) "Exercise Price" shall mean, as of any date, the price at which a
holder of a Right may purchase the securities issuable upon exercise
of such Right. Until adjustment thereof in accordance with the terms
hereof, the Exercise Price for each Right shall be $65;
(v) "Expiration Time" shall mean the close of business on that date
which is the earliest of the date of termination of this Agreement
pursuant to section 6.15 or, if this Agreement is confirmed pursuant
to section 6.15, the date of termination of this Agreement pursuant
to section 6.16 or, if this Agreement is reconfirmed pursuant to
section 6.16, the close of business on the tenth anniversary of the
Effective Date;
(w) "Flip-in Event" shall mean a transaction in or pursuant to which any
Person shall become an Acquiring Person;
(x) "Grandfathered Person" shall have the meaning ascribed thereto in
clause 1.1(a)(v);
(y) "Independent Shareholders" shall mean holders of Voting Shares
other than Voting Shares Beneficially Owned by: (i) any
Acquiring Person; (ii) any Offeror (other than any Person who by
virtue subsection 1.1(d)(v) is not deemed to Beneficially Own the
Voting Shares held by such Person); (iii) any Associate or
Affiliate of any Acquiring Person or Offeror; (iv) any Person
acting jointly or in concert with persons referred to in (i) or
(ii) above; and (v) any employee benefit plan, share purchase
plan, deferred profit sharing plan and any other similar plan or
trust for the benefit of employees of the Corporation or a
Subsidiary of the Corporation, unless the beneficiaries of the
plan or trust direct the manner in which the Voting Shares are to
be voted or direct whether the Voting Shares are to be tendered
pursuant to a Take-over Bid;
(z) "Market Price" per share of any securities on any date of
determination shall mean the weighted average trading price per
share of such securities on the principal stock exchange in
Canada (as determined by the Board of Directors) on which such
securities are listed and posted for trading during the 20
consecutive Trading Day period ending no later than the fifth
Trading Day immediately preceding such date; provided, however,
that if an event of a type analogous to any of the events
described in section 3.2 shall have occurred during such period
such that the Market Price as established pursuant to the
foregoing shall not fully reflect the market price on such date
of determination, such Market Price shall be appropriately
adjusted in a manner analogous to the applicable adjustment
provided for in section 3.2 in order to make it fully comparable;
(aa) "Offer to Acquire" shall include:
(i) an offer to purchase, or a solicitation of an offer to sell
Voting Shares; and
(ii) an acceptance of an offer to sell Voting Shares, whether or
not such offer to sell has been solicited,
or any combination thereof, and the Person accepting an offer to
sell shall be deemed to be making an offer to acquire to the Person
who made the offer to sell;
(ab) "Offeror" shall mean a Person who has announced an intention to make
or who is making a Take-over Bid, but excluding that Person if the
Take-Over Bid so announced or made by that Person has been
withdrawn, has terminated or has expired;
(ac) "Permitted Bid" means a Take-over Bid which is made by means of a
Take-over Bid circular and which also complies with the following
additional provisions:
(i) the Take-over Bid is made to all holders of record of Voting
Shares as registered on the books of the Corporation, other
than the Offeror;
(ii) the Take-over Bid contains, and the take up and payment for
securities tendered or deposited thereunder is subject to,
an irrevocable and unqualified condition that no Voting
Shares shall be taken up or paid for pursuant to the
Take-over Bid prior to the close of business on the date
which is not less than 60 days after the date of the
Take-over Bid and only if at such date more than 50% of the
Voting Shares held by Independent Shareholders shall have
been deposited or tendered pursuant to the Take-over Bid
and not withdrawn;
(iii) unless the Take-over Bid is withdrawn, the Take-over Bid
contains an irrevocable and unqualified provision that Voting
Shares may be deposited pursuant to such Take-over Bid at any
time during the period of time between the date of the
Take-over Bid and the date on which Voting Shares subject to
the Take-over Bid may be taken up and paid for (as referred to
in clause (ii) hereof) and that any Voting Shares deposited
pursuant to the Take-over Bid may be withdrawn until taken up
and paid for; and
(iv) the Take-over Bid contains an irrevocable and unqualified
provision that in the event that, on the date on which
Voting Shares subject to the Take-over Bid may be taken up
and paid for, more than 50% of the Voting Shares held by
Independent Shareholders shall have been deposited or
tendered pursuant to the Take-over Bid and not withdrawn,
the Offeror will make a public announcement of that fact
and the Take-over Bid will remain open for deposits and
tenders of Voting Shares for not less than 10 Business Days
from the date of such public announcement;
provided that if a Take-over Bid constitutes a Competing Permitted Bid,
the term "Permitted Bid" shall also mean the Competing Permitted Bid;
(ad) "Permitted Bid Acquisitions" shall have the meaning ascribed
thereto in subclause 1.1(a)(ii)(B);
(adx) "Permitted Lock-Up Agreement" means an agreement between a Person
and one or more holders of Voting Shares (the terms of which are
publicly disclosed and reduced to writing and a copy of which is
made available to the public not later than the date the Lock-up Bid
(as defined below) is publicly announced) pursuant to which such
holders agree to deposit or tender Voting Shares to a Take-over Bid
(the "Lock-up Bid") made by the Person, made by any of such Person's
Affiliates or Associates or made by any other Person acting jointly
or in concert with such Person and which provides:
(a) that any agreement to deposit or tender or to not withdraw
Voting Shares from the Lock-up Bid is terminable at the option
of any holder if:
(i) another Take-over Bid is made for the same class of
Voting Shares prior to Voting Shares being taken up and
paid for under the Lock-up Bid at a price or value per
Voting Share that is at least 5% in excess of the price
or value per Voting Share offered under the Lock-up Bid;
or
(ii) another Take-over Bid is made prior to Voting Shares
being taken up and paid for under the Lock-up Bid for a
number of Voting Shares at least 5% greater than the
number of Voting Shares that the Offeror has offered to
purchase under the Lock-up Bid at a price or value per
Voting Share that is not less than the price or value
per Voting Share offered under the Lock-up Bid; and
(b) no "break-up" fees, "top-up" fees, penalties, expenses or
other amounts that exceed in the aggregate the cash
equivalent of 2 1/2% of the price or value payable under the
Lock-up Bid to the holders of Voting Shares who are party
to the agreement shall be payable pursuant to the agreement
in the event that the Lock-up Bid is not successfully
concluded or if any holder fails to tender Voting Shares
pursuant thereto;
(ae) "Person" shall include any individual, body corporate, firm,
partnership, association, trust, corporation, unincorporated
organization, syndicate, governmental entity or other entity;
(af) "Pro Rata Acquisition" shall mean the acquisition of Voting
Shares:
(i) as a result of a stock dividend, stock split or other event
pursuant to which a Person receives or acquires Voting Shares
of any class on the same pro rata basis as all other holders
of Voting Shares of the same class; or
(ii) pursuant to a Dividend Reinvestment Plan; or
(iii) pursuant to the acquisition or exercise by the Person of only
those rights to purchase Voting Shares distributed to that
Person in the course of a distribution to all holders of
securities of the Corporation of one or more particular
classes or series pursuant to a rights offering or pursuant to
a prospectus; or
(iv) pursuant to a distribution of Voting Shares, or securities
convertible into or exchangeable for Voting Shares (and the
conversion or exchange of such convertible or exchangeable
securities) made pursuant to a prospectus or by way of
private placement by the Corporation provided that (i) all
necessary stock exchange approvals for such private
placement have been obtained and such private placement
complies with the terms and conditions of such approvals,
and (ii) such Person does not become the Beneficial Owner
of more than 25% of the Voting Shares of the Corporation
outstanding immediately prior to the distribution, and in
making this determination the Voting Shares to be issued
to such person in the distribution shall be deemed to be
held by such Person but shall not be included in the
aggregate number of outstanding Voting Shares immediately
prior to the distribution;
(ag) "Record Time" shall have the meaning ascribed thereto in the
recitals to this Agreement;
(ah) "Right" shall have the meaning ascribed thereto in the recitals
to this Agreement;
(ai) "Rights Agent" shall mean Montreal Trust Company;
(aj) "Rights Certificates" shall mean the certificates representing the
Rights after the Separation Time, which shall be substantially in
the form attached hereto as Exhibit A;
(ak) "Rights Register" and "Rights Registrar" shall have the
respective meanings ascribed thereto in subsection 2.3(a);
(al) "Securities Act (Ontario)" shall mean the Securities Act, R.S.O.
1990, c. S.5, as amended, and the regulations thereunder, and any
comparable or successor laws or regulations thereto;
(am) "Securities Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended, and the regulations thereunder,
and any comparable or successor laws or regulations thereto;
(an) "Separation Time" shall mean, subject to subsection 6.1(c), the
close of business on the eighth Trading Day after the earlier of:
(i) the Stock Acquisition Date;
(ii) the date of the commencement of, or first public announcement
(provided such announcement is made after the Record Time) of,
the intent of any Person (other than the Corporation or any
Subsidiary of the Corporation) to commence, a Take-over Bid
(other than a Permitted Bid or a Competing Permitted Bid); and
(iii) the date upon which a Permitted Bid ceases to be a Permitted
Bid;
(ao) "Stock Acquisition Date" shall mean the date of the first public
announcement (which, for purposes of this definition, shall include,
without limitation, the filing of a report pursuant to the
Securities Act (Ontario), the Securities Exchange Act or any other
applicable laws) by the Corporation or an Acquiring Person that a
Person has become an Acquiring Person;
(ap) "Subsidiary" of a Person shall have the meaning ascribed thereto
in the Securities Act (Ontario);
(aq) "Take-over Bid" shall mean an Offer to Acquire Voting Shares, or
securities convertible into Voting Shares if, assuming that the
Voting Shares or convertible securities subject to the Offer to
Acquire are acquired and are Beneficially Owned at the date of
such Offer to Acquire by the Person making such Offer to Acquire,
such Voting Shares (including Voting Shares that may be acquired
upon conversion of securities convertible into Voting Shares)
together with the Offeror's Securities, constitute in the
aggregate 20% or more of the outstanding Voting Shares at the
date of the Offer to Acquire;
(ar) "Termination Time" shall mean the time at which the right to
exercise Rights shall terminate pursuant to subsection 6.1(f) or
sections 6.15 or 6.16;
(as) "Trading Day", when used with respect to any securities, shall mean
a day on which the principal Canadian securities exchange on which
such securities are listed or admitted to trading is open for the
transaction of business or, if the securities are not listed or
admitted to trading on any Canadian securities exchange, a Business
Day;
(at) "Voting Share", shall mean the Common Shares of the Corporation and
any other shares in the capital of the Corporation entitled to vote
generally in the election of all directors.
1.2 Currency
All sums of money which are referred to in this Agreement are
expressed in lawful money of Canada, unless otherwise specified.
1.3 Descriptive Headings
Descriptive headings appear herein for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
1.4 References to Agreement
References to "this Agreement", "hereto", "herein", "hereby",
"hereunder", "hereof" and similar expressions refer to this Agreement and not to
any particular Article, section, subsection, clause, subclause, subdivision or
other portion hereof and include any and every instrument supplemental or
ancillary hereto.
1.5 Calculation of Number and Percentage of Beneficial Ownership of
Outstanding Voting Shares
(a) For the purposes of this Agreement, in determining the percentage of
the outstanding Voting Shares with respect to which a Person is or is deemed to
be the Beneficial Owner, all unissued Voting Shares of which such Person is
deemed to be the Beneficial Owner shall be deemed to be outstanding.
(b) The percentage of outstanding Voting Shares Beneficially Owned by any
Person shall, for the purposes of this Agreement, be and be deemed to be the
product determined by the formula:
100 x A
B
where:
A = the number of votes for the election of all directors
generally attaching to the outstanding Voting Shares
Beneficially Owned by such Person; and
B = the number of votes for the election of all directors
generally attaching to all outstanding Voting Shares.
The percentage of outstanding Voting Shares represented by any
particular group of Voting Shares acquired or held by any Person shall be
determined in like manner mutatis mutandis.
1.6 Acting Jointly or in Concert
For the purposes of this Agreement, a Person is acting jointly or in
concert with every Person who is a party to an agreement, commitment or
understanding, whether formal or informal, with the first Person or any
Associate or Affiliate thereof, for the purpose of acquiring or offering to
acquire Voting Shares (other than customary agreements with and between
underwriters and/or banking group members and/or selling group members in
connection with a distribution of securities of the Corporation pursuant to a
prospectus or by way of private placement).
ARTICLE 2
THE RIGHTS
2.1 Legend on Certificates
Certificates for Common Shares issued after the Record Time but
prior to the earlier of the Separation Time and the Expiration Time shall
evidence, in addition to the Common Shares, one Right for each Common Share
evidenced thereby and shall have impressed on, printed on, written on or
otherwise affixed to them the following legend:
UNTIL THE SEPARATION TIME (AS DEFINED IN THE RIGHTS AGREEMENT REFERRED TO
BELOW), THIS CERTIFICATE ALSO EVIDENCES AND ENTITLES THE HOLDER HEREOF TO
CERTAIN RIGHTS AS SET FORTH IN A SHAREHOLDER RIGHTS PLAN AGREEMENT, DATED
AS OF THE 1ST DAY OF FEBRUARY, 1995 AND AMENDED AND RESTATED AS OF APRIL
28, 1995, MARCH 5, 1998 AND MAY 7, 1998 (THE "RIGHTS AGREEMENT"), BETWEEN
ST. LAURENT PAPERBOARD INC. (THE "CORPORATION") AND MONTREAL TRUST
COMPANY, AS RIGHTS AGENT, THE TERMS OF WHICH ARE HEREBY INCORPORATED
HEREIN BY REFERENCE AND A COPY OF WHICH MAY BE INSPECTED DURING NORMAL
BUSINESS HOURS AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, SUCH
RIGHTS MAY BE AMENDED, TERMINATED, MAY EXPIRE, MAY BECOME VOID (IF, IN
CERTAIN CASES, THEY ARE "BENEFICIALLY OWNED" BY AN "ACQUIRING PERSON", AS
SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT, WHETHER CURRENTLY HELD BY
OR ON BEHALF OF SUCH PERSON OR ANY SUBSEQUENT HOLDER) OR MAY BE EVIDENCED
BY SEPARATE CERTIFICATES AND MAY NO LONGER BE EVIDENCED BY THIS
CERTIFICATE. THE CORPORATION WILL MAIL OR ARRANGE FOR THE MAILING OF A
COPY OF THE RIGHTS AGREEMENT TO THE HOLDER OF THIS CERTIFICATE WITHOUT
CHARGE AS SOON AS IT IS PRACTICABLE AFTER THE RECEIPT OF A WRITTEN REQUEST
THEREFOR.
Certificates representing Common Shares that are issued and
outstanding at the Record Time shall evidence one Right for each Common Share
evidenced thereby, notwithstanding the absence of the foregoing legend until the
close of business on the earlier of the Separation Time and the Expiration Time.
2.2 Execution, Authentication, Delivery and Dating of Rights
Certificates
(a) The Rights Certificates shall be executed on behalf of the Corporation
by any of the Chairman of the Board, the President or any Vice-President,
together with any other of such Persons or together with any one of the
Secretary, the Treasurer, any Assistant Secretary or any Assistant Treasurer.
The signature of any of these officers of the Corporation on the Rights
Certificates may be manual or facsimile. Rights Certificates bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Corporation shall bind the Corporation, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
countersignature and delivery of such Rights Certificates.
(b) Promptly after the Corporation learns of the Separation Time, the
Corporation will notify the Rights Agent of such Separation Time and will
deliver Rights Certificates executed by the Corporation to the Rights Agent for
countersignature, and the Rights Agent shall manually countersign (in a manner
satisfactory to the Corporation) and deliver such Rights Certificates to the
holders of the Rights pursuant to subsection 3.1(c). No Rights Certificate shall
be valid for any purpose until countersigned by the Rights Agent as aforesaid.
(c) Each Rights Certificate shall be dated the date of the
countersignature thereof.
2.3 Registration, Registration of Transfer and Exchange
(a) After the Separation Time, the Corporation will cause to be kept a
register (the "Rights Register") in which, subject to such reasonable
regulations as it may prescribe, the Corporation will provide for the
registration and transfer of Rights. The Rights Agent is hereby appointed the
"Rights Registrar" for the purpose of maintaining the Rights Register for the
Corporation and registering Rights and transfers of Rights as herein provided
and the Rights Agent hereby accepts such appointment. In the event that the
Rights Agent shall cease to be the Rights Registrar, the Rights Agent will have
the right to examine the Rights Register at all reasonable times. After the
Separation Time and prior to the Expiration Time, upon surrender for
registration of transfer or exchange of any Rights Certificate, and subject to
the provisions of subsection (c) of this section 2.3, the Corporation will
execute, and the Rights Agent will manually countersign and deliver, in the name
of the holder or the designated transferee or transferees, as required pursuant
to the holder's instructions, one or more new Rights Certificates evidencing the
same aggregate number of Rights as did the Rights Certificates so surrendered.
(b) All Rights issued upon any registration of transfer or exchange of
Rights Certificates shall be valid obligations of the Corporation, and such
Rights shall be entitled to the same benefits under this Agreement as the Rights
surrendered upon such registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of transfer or
exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Corporation or the Rights Agent, as the
case may be, duly executed by the holder thereof or such holder's attorney duly
authorized in writing. As a condition to the issuance of any new Rights
Certificate under this section 2.3, the Corporation may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Rights Agent) in connection therewith.
2.4 Mutilated, Destroyed, Lost and Stolen Rights Certificates
(a) If any mutilated Rights Certificate is surrendered to the Rights Agent
prior to the Expiration Time, the Corporation shall execute and the Rights Agent
shall manually countersign and deliver in exchange therefor a new Rights
Certificate evidencing the same number of Rights as the Rights Certificate so
surrendered.
(b) If there shall be delivered to the Corporation and the Rights Agent
prior to the Expiration Time: (i) evidence to their satisfaction of the
destruction, loss or theft of any Rights Certificate; and (ii) such security or
indemnity as may be required by them to save each of them and any of their
agents harmless, then, in the absence of notice to the Corporation or the Rights
Agent that such Rights Certificate has been acquired by a bona fide purchaser,
the Corporation shall execute and upon its request the Rights Agent shall
countersign and deliver, in lieu of any such destroyed, lost or stolen Rights
Certificate, a new Rights Certificate evidencing the same number of Rights as
did the Rights Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate under
this section 2.4, the Corporation may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Rights
Agent) in connection therewith.
(d) Every new Rights Certificate issued pursuant to this section 2.4 in
lieu of any destroyed, lost or stolen Rights Certificate shall evidence the
contractual obligation of the Corporation, whether or not the destroyed, lost or
stolen Rights Certificate shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Agreement equally and proportionately
with any and all other Rights duly issued by the Corporation.
2.5 Persons Deemed Owners of Rights
The Corporation, the Rights Agent and any agent of the Corporation
or the Rights Agent may deem and treat the Person in whose name such Rights
Certificate (or, prior to the Separation Time, the associated Common Share
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever. As used in this Agreement, unless
the context otherwise requires, the term "holder" of any Rights shall mean the
registered holder of such Rights (or, prior to the Separation Time, the
associated Common Shares).
2.6 Delivery and Cancellation of Certificates
All Rights Certificates surrendered upon exercise or for redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Rights Agent, be delivered to the Rights Agent and, in any case, shall
be promptly cancelled by the Rights Agent. The Corporation may at any time
deliver to the Rights Agent for cancellation any Rights Certificates previously
countersigned and delivered hereunder which the Corporation may have acquired in
any manner whatsoever, and all Rights Certificates so delivered shall be
promptly cancelled by the Rights Agent. No Rights Certificate shall be
countersigned in lieu of or in exchange for any Rights Certificates cancelled as
provided in this section 2.6, except as expressly permitted by this Agreement.
The Rights Agent shall, subject to applicable law, destroy all cancelled Rights
Certificates and deliver a certificate of destruction to the Corporation.
2.7 Agreement of Rights Holders
Every holder of Rights by accepting the same consents and agrees
with the Corporation and the Rights Agent and with every other holder of Rights:
(a) to be bound by and subject to the provisions of this Agreement, as
amended and supplemented from time to time in accordance with the
terms hereof, in respect of the Rights held;
(b) that prior to the Separation Time, each Right will be transferable
only together with, and will be transferred by a transfer of, the
associated Common Share certificate representing such Right;
(c) that after the Separation Time, the Rights Certificates will be
transferable only upon registration of the transfer on the Rights
Register as provided herein;
(d) that prior to due presentment of a Rights Certificate (or, prior
to the Separation Time, the associated Common Share certificate)
for registration of transfer, the Corporation, the Rights Agent
and any agent of the Corporation or the Rights Agent may deem and
treat the Person in whose name the Rights Certificate (or, prior
to the Separation Time, the associated Common Share certificate)
is registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on such Rights Certificate or the associated Common Share
certificate made by anyone other than the Corporation or the
Rights Agent) for all purposes whatsoever, and neither the
Corporation nor the Rights Agent shall be affected by any notice
to the contrary;
(e) that such holder of Rights has waived his right to receive any
fractional Rights or any fractional Common Shares upon exercise of a
Right (except as provided herein); and
(f) that without the approval of any holder of Rights or Voting Shares
and upon the sole authority of the Board of Directors acting in good
faith, this Agreement may be supplemented or amended from time to
time pursuant to and as provided herein.
2.8 Rights Certificate Holder Not Deemed a Shareholder
No holder, as such, of any Right or Rights Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose whatsoever the
holder of any Common Share or any other security which may at any time be
issuable on the exercise of such Right, nor shall anything contained herein or
in any Rights Certificate be construed or deemed to confer upon the holder of
any Right or Rights Certificate, as such, any of the rights, titles, benefits or
privileges of a shareholder of the Corporation or any right to vote at any
meeting of shareholders of the Corporation whether for the election of directors
or otherwise or upon any matter submitted to holders of any Common Shares at any
meeting thereof, or to give or withhold consent to any action of the
Corporation, or to receive notice of any meeting or other action affecting any
shareholder of the Corporation (except as provided in section 6.7 hereof) except
as expressly provided herein, or to receive dividends, distributions or
subscription rights, or otherwise, until the Right or Rights evidenced by any
Rights Certificate shall have been duly exercised in accordance with the terms
and provisions hereof.
ARTICLE 3
EXERCISE OF THE RIGHTS
3.1 Initial Exercise Price; Exercise of Rights; Detachment of Rights
(a) Subject to adjustment as herein set forth, from and after the
Separation Time and prior to the Expiration Time, each Right will entitle the
holder thereof to purchase one Common Share for the Exercise Price (which
Exercise Price and number of Common Shares are subject to adjustment as set
forth below). Notwithstanding any other provision of this Agreement, any Rights
held by the Corporation or any of its Subsidiaries shall be void.
(b) Until the Separation Time:
(i) the Rights shall not be exercisable and no Right may be
exercised; and
(ii) each Right will be evidenced by the certificate for the
associated Common Share registered in the name of the holder
thereof (which certificate shall also be deemed to be a Rights
Certificate) and will be transferable only together with, and
will be transferred by a transfer of, such associated Common
Share.
(c) From and after the Separation Time and prior to the Expiration Time:
(i) the Rights shall be exercisable; and
(ii) the registration and transfer of the Rights shall be separate
from and independent of Common Shares.
Promptly following the Separation Time, the Corporation will prepare
and the Rights Agent will mail to each holder of record of Common Shares as of
the Separation Time or, in the case of Debentures converted into Common Shares
after the Separation Time and prior to the close of business on the fifteenth
day following notice of the Stock Acquisition Date having been sent to the
holders of Debentures, promptly after such conversion, the Rights Agent will
mail to the holders so converting, (other than an Acquiring Person and other
than, in respect of any Rights Beneficially Owned by such Acquiring Person which
are not held of record by such Acquiring Person, the holder of Record of such
Rights (a "Nominee")), at such holder's address as shown on the records of the
Corporation (and the Corporation hereby agrees to furnish copies of such records
to the Rights Agent for this purpose):
(x) a Rights Certificate representing the number of Rights held
by such holder at the Separation Time in substantially the
form of Exhibit A hereto, appropriately completed,
representing the number of Rights held by such holder at
the Separation Time and having such marks of identification
or designation and such legends, summaries or endorsements
printed thereon as the Corporation may deem appropriate and
as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law,
rule, regulation or judicial or administrative order or
with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange or quotation
system on which the Rights may from time to time be listed
or traded, or to conform to usage; and
(y) a disclosure statement describing the Rights;
provided that a Nominee shall be sent the materials provided for in clauses (x)
and (y) only in respect of all Common Shares held of record by it which are not
Beneficially Owned by an Acquiring Person.
(d) Rights may be exercised in whole or in part on any Business Day after
the Separation Time and prior to the Expiration Time by submitting to the Rights
Agent:
(i) the Rights Certificate evidencing such Rights;
(ii) an election to exercise such Rights (an "Election to
Exercise") substantially in the form attached to the Rights
Certificate duly completed and executed by the holder or his
executors or administrators or other personal representatives
or his or their legal attorney duly appointed by an instrument
in writing in form and executed in a manner satisfactory to
the Rights Agent;
(iii) payment in cash, or by certified cheque, banker's draft or
money order payable to the order of the Corporation, of a sum
equal to the applicable Exercise Price multiplied by the
number of Rights being exercised and a sum sufficient to cover
any transfer tax or charge which may be payable in respect of
any transfer involved in the transfer or delivery of Rights
Certificates or the issuance or delivery of certificates for
the relevant Common Shares in a name other than that of the
holder of the Rights being exercised.
(e) Upon receipt of the Rights Certificate which is accompanied by a
completed Election to Exercise that does not indicate that such Right is null
and void as provided by subsection 4(b) and payment as set forth in subsection
3.1(d), the Rights Agent (unless otherwise instructed by the Corporation in the
event that the Corporation is of the opinion that the Rights cannot be exercised
in accordance with this Agreement) will thereupon promptly:
(i) requisition from a transfer agent for the relevant Common
Shares, certificates representing the number of such Common
Shares to be purchased (the Corporation hereby irrevocably
authorizing its transfer agent to comply with all such
requisitions);
(ii) when appropriate, requisition from the Corporation the amount
of cash to be paid in lieu of issuing fractional Common
Shares;
(iii) after receipt of such Common Share certificate, deliver the
same to or to the order of the registered holder of such
Rights Certificate, registered in such name or names as may be
designated by such holder;
(iv) when appropriate, after receipt, deliver such cash referred to
in clause (ii) above to or to the order of the registered
holder of the Rights Certificate; and
(v) tender to the Corporation all payments received on exercise of
the Rights.
(f) In case the holder of any Rights shall exercise less than all the
Rights evidenced by such holder's Rights Certificate, a new Rights Certificate
evidencing the Rights remaining unexercised will be issued by the Rights Agent
to such holder or to such holder's duly authorized assigns.
(g) The Corporation covenants and agrees that it will:
(i) take all such action as may be necessary and within its power
to ensure that all Common Shares delivered upon exercise of
Rights shall, at the time of delivery of the certificates
representing such Common Shares (subject to payment of the
Exercise Price), be duly and validly authorized, executed,
issued and delivered as fully paid and non-assessable;
(ii) take all such action as may be necessary and within its
power to comply with any applicable requirements of the
Canada Business Corporations Act, the Securities Act
(Ontario) and the securities acts or comparable legislation
of each of the other provinces of Canada and any other
applicable law, rule or regulation, in connection with the
issuance and delivery of the Rights Certificates and the
issuance of any Common Shares upon exercise of Rights;
(iii) use reasonable efforts to cause all Common Shares issued upon
exercise of Rights to be listed on the principal exchanges on
which the Common Shares were traded prior to the Stock
Acquisition Date;
(iv) cause to be reserved and kept available out of its authorized
and unissued Common Shares the number of Common Shares that,
as provided in this Agreement, will from time to time be
sufficient to permit the exercise in full of all outstanding
Rights; and
(v) pay when due and payable, if applicable, any and all
federal, provincial and municipal transfer taxes (for
greater certainty, not including any income or capital
taxes of the holder or exercising holder or any liability
of the Corporation to withhold tax) and charges which may
be payable in respect of the original issuance or delivery
of the Rights Certificates or certificates for Shares,
provided that the Corporation shall not be required to pay
any transfer tax or charge which may be payable in respect
of any transfer involved in the transfer or delivery of
Rights Certificates or the issuance or delivery of
certificates for Common Shares in a name other than that of
the holder of the Rights being transferred or exercised.
3.2 Adjustments to Exercise Price; Number of Rights
The Exercise Price, the number of Common Shares or other securities
subject to purchase upon the exercise of each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in this
section 3.2.
(a) In the event the Corporation shall at any time after the date of
this Agreement:
(i) declare or pay a dividend on the Common Shares payable in
Common Shares (or other securities exchangeable for or
convertible into or giving a right to acquire Common Shares)
other than pursuant to any optional Dividend Reinvestment
Plan;
(ii) subdivide or change the outstanding Common Shares into a
greater number of Common Shares;
(iii) combine or change the outstanding Common Shares into a smaller
number of Common Shares; or
(iv) issue any Common Shares (or other securities exchangeable for
or convertible into or giving a right to acquire Common
Shares) in respect of, in lieu of or in exchange for existing
Common Shares;
the Exercise Price and the number of Rights outstanding, or, if the
payment or effective date therefor shall occur after the Separation
Time, the securities purchasable upon exercise of Rights shall be
adjusted as of the payment or effective date in the manner set forth
below.
If the Exercise Price and number of Rights outstanding are to be
adjusted:
(x) the Exercise Price in effect after such adjustment will be
equal to the Exercise Price in effect immediately prior to
such adjustment divided by the number of Common Shares (or
other capital stock) (the "Expansion Factor") that a holder of
one Common Share immediately prior to such dividend,
subdivision, change, consolidation or issuance would hold
thereafter as a result thereof; and
(y) each Right held prior to such adjustment will become that
number of Rights equal to the Expansion Factor,
and the adjusted number of Rights will be deemed to be distributed
among the Common Shares with respect to which the original Rights
were associated (if they remain outstanding) and the shares issued
in respect of such dividend, subdivision, change, consolidation or
issuance, so that each such Common Share (or other capital stock)
will have exactly one Right associated with it.
For greater certainty, if the securities purchasable upon exercise
of Rights are to be adjusted, the securities purchasable upon
exercise of each Right after such adjustment will be the securities
that a holder of the securities purchasable upon exercise of one
Right immediately prior to such dividend, subdivision, change,
consolidation or issuance would hold thereafter as a result of such
dividend, subdivision, change, consolidation or issuance.
If, after the Record Time and prior to the Expiration Time, the
Corporation shall issue any shares of capital stock other than
Common Shares in a transaction of a type described in Clause
3.2(a)(i) or (iv), shares of such capital stock shall be treated
herein as nearly equivalent to Common Shares as may be practicable
and appropriate under the circumstances and the Corporation and the
Rights Agent agree to amend this Agreement in order to effect such
treatment.
In the event the Corporation shall at any time after the Record Time
and prior to the Separation Time issue any Common Shares otherwise
than in a transaction referred to in this subsection 3.2(a), each
such Common Share so issued shall automatically have one new Right
associated with it, which Right shall be evidenced by the
certificate representing such associated Common Share.
(b) In case the Corporation shall at any time after the Record Time
and prior to the Expiration Time fix a record date for the
issuance of rights, options or warrants to all holders of Common
Shares entitling them to subscribe for or purchase (for a period
expiring within 45 calendar days after such record date) Common
Shares (or shares having the same rights, privileges and
preferences as Common Shares ("equivalent common shares")) or
securities convertible into Common Shares or equivalent common
shares at a price per Common Share or per equivalent common share
(or having a conversion, exchange or exercise price per share,
including the price required to be paid to purchase such
convertible or exchangeable securities or rights, if a security
convertible into Common Shares or equivalent common shares) of
less than 90% of the Market Price per Common Share on such record
date, the Exercise Price in respect of the Rights to be in effect
after such record date shall be determined by multiplying the
Exercise Price in respect of the Rights in effect immediately
prior to such record date by a fraction:
(i) the numerator of which shall be the number of Common Shares
outstanding on such record date, plus the number of Common
Shares that the aggregate offering price of the total
number of Common Shares and/or equivalent common shares so
to be offered (and/or the aggregate initial conversion,
exchange or exercise price of the convertible or
exchangeable securities or rights so to be offered,
including the price required to be paid to purchase such
convertible or exchangeable securities or rights) would
purchase at such Market Price per Common Share; and
(ii) the denominator of which shall be the number of Common Shares
outstanding on such record date, plus the number of additional
Common Shares and/or equivalent common shares to be offered
for subscription or purchase (or into which the convertible or
exchangeable securities or rights so to be offered are
initially convertible, exchangeable or exercisable).
In case such subscription price may be paid by delivery of
consideration, part or all of which may be in a form other than
cash, the value of such consideration shall be as determined in good
faith by the Board of Directors, whose determination shall be
described in a statement filed with the Rights Agent and shall be
binding on the Rights Agent and the holders of the Rights. Such
adjustment shall be made successively whenever such a record date is
fixed and, in the event that such rights, options or warrants are
not so issued, or if issued, are not exercised prior to the
expiration thereof, the Exercise Price in respect of the Rights
shall be re-adjusted to be the Exercise Price which would then be in
effect if such record date had not been fixed, or to the Exercise
Price which would be in effect based upon the number of Common
Shares (or securities convertible into, or exchangeable or
exercisable for Common Shares) actually issued upon the exercise of
such rights, options or warrants, as the case may be.
(c) For purposes of this Agreement, the granting of the right to
purchase Common Shares (whether from treasury or otherwise)
pursuant to a Dividend Reinvestment Plan or any employee
benefit, stock option or similar plans (so long as such right to
purchase is in no case evidenced by the delivery of rights or
warrants) shall be deemed not to constitute an issue of rights,
options or warrants by the Corporation; provided, however, that,
in all such cases, the right to purchase Common Shares is at a
price per share of not less than 90% of the current market price
per share (determined as provided in such plans) of the Common
Shares.
(d) In case the Corporation shall at any time after the Record Time
and prior to the Expiration Time fix a record date for a
distribution to all holders of Common Shares (including any such
distribution made in connection with a merger or amalgamation in
which the Corporation is the continuing corporation) of evidences
of indebtedness or assets, including cash, (other than a dividend
paid in the ordinary course or a dividend paid in Common Shares,
but including any dividend payable in securities other than
Common Shares), assets or subscription rights, options or
warrants entitling them to subscribe for or purchase Common
Shares (excluding those referred to in subsection 3.2(b)), the
Exercise Price in respect of the Rights to be in effect after
such record date shall be determined by multiplying the Exercise
Price in respect of the Rights in effect immediately prior to
such record date by a fraction:
(i) the numerator of which shall be the Market Price per Common
Share on such record date, less the fair market value (as
determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent
and the holders of the Rights), on a per share basis, of
the portion of the cash, assets or evidences of
indebtedness so to be distributed or of such subscription
rights, options or warrants applicable to a Common Share;
and
(ii) the denominator of which shall be such Market Price per Common
Share.
Such adjustments shall be made successively whenever such a record
date is fixed and, in the event that such distribution is not so
made, the Exercise Price in respect of the Rights shall be adjusted
to be the Exercise Price in respect of the Rights which would have
been in effect if such record date had not been fixed.
(e) Notwithstanding anything herein to the contrary, no adjustment in
an Exercise Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in such Exercise
Price; provided, however, that any adjustments which by reason of
this subsection 3.2(e) are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. All calculations under this section 3.2 shall be
made to the nearest cent or to the nearest ten-thousandth of a
Common Share or other share, as the case may be. Notwithstanding
the first sentence of this subsection 3.2(e), any adjustment
required by this section 3.2 shall be made no later than the
earlier of: (i) three years from the date of the transaction
which mandates such adjustment; and (ii) the Termination Time.
(f) If as a result of an adjustment made pursuant to section 4, the
holder of any Right thereafter exercised shall become entitled to
receive any shares other than Common Shares, thereafter the
number of such other shares so receivable upon exercise of any
Right and the applicable Exercise Price thereof shall be subject
to adjustment from time to time in a manner and on terms as
nearly equivalent as is practicable to the provisions with
respect to the Common Shares contained in this section 3.2, and
the provisions of this Agreement with respect to the Common
Shares shall apply on like terms to any such other shares.
(g) In the event the Corporation shall at any time after the Record
Time and prior to the Separation Time issue any shares of capital
stock (other than Common Shares), or rights, options or warrants
to subscribe for or purchase any such capital stock, or
securities convertible into or exchangeable for any such capital
stock in a transaction referred to in clauses 3.2(a)(i) to (iv)
above, if the Board of Directors acting in good faith determines
that the adjustments contemplated by subsections 3.2(a), (b) or
(d) above in connection with such transaction will not
appropriately protect the interests of the holders of Rights, the
Board of Directors may determine what other adjustments to the
Exercise Price, number of Rights and/or securities purchasable
upon exercise of Rights would be appropriate. The Corporation and
the Rights Agent shall have authority to amend this Agreement as
appropriate to provide for such adjustments, subject to the prior
approval of the holders of the Common Shares or the holders of
Rights obtained as set forth in subsections 6.5(b) or (c), as the
case may be.
(h) All Rights originally issued by the Corporation subsequent to any
adjustment made to an Exercise Price hereunder shall evidence the
right to purchase, at the adjusted Exercise Price, the respective
number of Common Shares, as the case may be, purchasable from time
to time hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(i) Unless the Corporation shall have exercised its election as
provided in subsection 3.2(j), upon each adjustment of an
Exercise Price as a result of the calculations made in
subsections 3.2(b) and (d), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence
the right to purchase, at the adjusted Exercise Price, that
number of Common Shares, as the case may be, (calculated to the
nearest one ten-thousandth), obtained by:
(i) multiplying:
(A) the number of such Common Shares which would have been
issuable upon the exercise of a Right immediately prior
to this adjustment; by
(B) the relevant Exercise Price in effect immediately prior
to such adjustment of the relevant Exercise Price; and
(ii) dividing the product so obtained by the relevant Exercise
Price in effect immediately after such adjustment of the
relevant Exercise Price.
(j) The Corporation may elect on or after the date of any adjustment
of an Exercise Price to adjust the number of Rights, in lieu of
any adjustment in the number of Common Shares purchasable upon
the exercise of a Right. Each of the Rights outstanding after
the adjustment in the number of Rights shall be exercisable for
the number of Common Shares for which such a Right was
exercisable immediately prior to such adjustment. Each Right
held of record prior to such adjustment of the number of Rights
shall become that number of Rights (calculated to the nearest one
ten-thousandth) obtained by dividing the relevant Exercise Price
in effect immediately prior to adjustment of the relevant
Exercise Price by the relevant Exercise Price in effect
immediately after adjustment of the relevant Exercise Price. The
Corporation shall make a public announcement of its election to
adjust the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which
the relevant Exercise Price is adjusted or any day thereafter,
but, if the Rights Certificates have been issued, shall be at
least 10 days later than the date of the public announcement. If
Rights Certificates have been issued, upon each adjustment of the
number of Rights pursuant to this subsection 3.2(j), the
Corporation shall, as promptly as is practicable, cause to be
distributed to holders of record of Rights Certificates on such
record date, Rights Certificates evidencing subject to section
6.4, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the
Corporation, shall cause to be distributed to such holders of
record in substitution and replacement for the Rights
Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the
Corporation, new Rights Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment.
Rights Certificates to be so distributed shall be issued,
executed and countersigned in the manner provided for herein and
may bear, at the option of the Corporation, the relevant adjusted
Exercise Price and shall be registered in the names of holders of
record of Rights Certificates on the record date specified in the
public announcement.
(k) Irrespective of any adjustment or change in an Exercise Price or the
number of Common Shares issuable upon the exercise of the Rights,
the Rights Certificates theretofore and thereafter issued may
continue to express the relevant Exercise Price per Common Share and
the number of Common Shares which were expressed in the initial
Rights Certificates issued hereunder.
(l) In any case in which this section 3.2 shall require that an
adjustment in an Exercise Price be made effective as of a record
date for a specified event, the Corporation may elect to defer,
until the occurrence of such event, the issuance to the holder of
any Right exercised after such record date of the number of
Common Shares and other securities of the Corporation, if any,
issuable upon such exercise over and above the number of Common
Shares and other securities of the Corporation, if any, issuable
upon such exercise on the basis of the relevant Exercise Price in
effect prior to such adjustment; provided, however, that the
Corporation shall deliver to such holder a due xxxx or other
appropriate instrument evidencing such holder's right to receive
such additional Common Shares (fractional or otherwise) or other
securities upon the occurrence of the event requiring such
adjustment.
(m) Notwithstanding anything in this section 3.2 to the contrary, the
Corporation shall be entitled to make such reductions in each
Exercise Price, in addition to those adjustments expressly
required by this section 3.2, as and to the extent that in their
good faith judgment the Board of Directors shall determine to be
advisable in order that any: (i) consolidation or subdivision of
Common Shares; (ii) issuance wholly or in part for cash of any
Common Share or securities that by their terms are convertible
into or exchangeable for Common Shares; (iii) stock dividends; or
(iv) issuance of rights, options or warrants referred to in this
section 3.2, hereafter made by the Corporation to holders of its
Common Shares, shall not be taxable to such shareholders.
(n) The Corporation covenants and agrees that, after the Separation
Time, it will not, except as permitted by section 6.1 or 6.5, take
(or permit any Subsidiary of the Corporation to take) any action if
at the time such action is taken it is reasonably foreseeable that
such action will diminish substantially or otherwise eliminate the
benefits intended to be afforded by the Rights.
3.3 Date on Which Exercise is Effective
Each Person in whose name any certificate for Common Shares is
issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Common Share or other securities, if
applicable, represented thereby on, and such certificate shall be dated, the
date upon which the Rights Certificates evidencing such Rights was duly
surrendered (together with a duly completed Election to Exercise) and payment of
the relevant Exercise Price for such Rights (and any applicable transfer taxes
and other governmental charges payable by the exercising holder hereunder) was
made: provided, however, that if the date of such surrender and payment is a
date upon which the relevant Common Share transfer books of the Corporation are
closed, such Person shall be deemed to have become the holder of record of such
Common Shares on, and such certificate shall be dated, the next succeeding
Business Day on which the relevant Common Share transfer books of the
Corporation are open.
ARTICLE 4
ADJUSTMENTS TO THE RIGHTS UPON A FLIP-IN EVENT
(a) Subject to subsection 4(b) and subsections 6.1(b) and (c), in the
event that prior to the Expiration Time a Flip-in Event shall occur, each Right
shall constitute, effective on and after the later of its date of issue and the
close of business on the eighth Trading Day following the Stock Acquisition
Date, the right to purchase from the Corporation, upon payment of the relevant
Exercise Price and otherwise exercising such Right in accordance with the terms
hereof, that number of Common Shares having an aggregate Market Price on the
date of consummation or occurrence of such Flip-in Event equal to twice the
relevant Exercise Price for an amount in cash equal to the relevant Exercise
Price (such right to be appropriately adjusted in a manner analogous to the
applicable adjustments provided for in section 3.2 upon each occurrence after
the Stock Acquisition Date of any event analogous to any of the events described
in section 3.2).
(b) Notwithstanding anything in this Agreement to the contrary, upon the
occurrence of any Flip-in Event, any Rights that are or were Beneficially Owned
on or after the earlier of the Separation Time and the Stock Acquisition Date
by: (i) an Acquiring Person (or any Affiliate or Associate of an Acquiring
Person or any Person acting jointly or in concert with an Acquiring Person or
any Affiliate or Associate of an Acquiring Person); or (ii) a transferee or
other successor in title, directly or indirectly, (a "Transferee") of Rights
held by an Acquiring Person (or any Affiliate or Associate of an Acquiring
Person or any Person acting jointly or in concert with an Acquiring Person or
any Affiliate or Associate of an Acquiring Person) who becomes a Transferee
concurrently with or subsequent to the Acquiring Person becoming an Acquiring
Person in a transfer that the Board of Directors has determined is part of a
plan, arrangement or scheme of an Acquiring Person (or any Affiliate or
Associate of an Acquiring Person or any Person acting jointly or in concert with
an Acquiring Person or any Affiliate or Associate of an Acquiring Person), that
has the purpose or effect of avoiding clause 4(b)(i) shall become null and void
without any further action, and any holder of such Rights (including any
Transferee) shall not have any right whatsoever to exercise such Rights under
any provision of this Agreement and shall not have thereafter any other rights
whatsoever with respect to such Rights, whether under any provision of this
Agreement or otherwise.
(c) Any Rights Certificate that represents Rights Beneficially Owned by a
Person described in either clauses (i) or (ii) of section 4(b) or transferred to
any Nominee of any such Person, and any Rights Certificate issued upon transfer,
exchange, replacement or adjustment of any other Rights Certificate referred to
in this sentence, shall contain the following legend:
THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE WERE BENEFICIALLY OWNED
BY A PERSON WHO WAS AN ACQUIRING PERSON OR WHO WAS AN AFFILIATE OR AN
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT) OR WAS ACTING JOINTLY OR IN CONCERT WITH ANY OF THEM. THIS
RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY SHALL BECOME VOID IN
THE CIRCUMSTANCES SPECIFIED IN SECTION 4(b) OF THE RIGHTS AGREEMENT.
provided that the Rights Agent shall not be under any responsibility
to ascertain the existence of facts that would require the imposition of such
legend but shall be required to impose such legend only if instructed to do so
by the Corporation or if a holder fails to certify upon transfer or exchange in
the space provided on the Rights Certificate that such holder is not an
Acquiring Person or an Affiliate or Associate thereof.
(d) From and after the Separation Time, the Corporation shall do all such
acts and things as shall be necessary and within its power to ensure compliance
with the provisions of this section 4, including without limitation, all such
acts and things as may be required to satisfy the requirements of the Canada
Business Corporations Act and the Securities Act (Ontario) or comparable
legislation of any other applicable jurisdiction in respect of the issue of
Common Shares upon the exercise of Rights in accordance with this Agreement.
ARTICLE 5
THE RIGHTS AGENT
5.1 General
(a) The Corporation hereby appoints the Rights Agent to act as agent for
the Corporation and the holders of Rights in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment. The
Corporation may from time to time appoint one or more Co-Rights Agents as it may
deem necessary or desirable. In the event the Corporation appoints one or more
Co-Rights Agents, the respective duties of the Rights Agents and Co-Rights
Agents shall be as the Corporation may determine. The Corporation also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any loss,
liability or expense, incurred without negligence, bad faith or wilful
misconduct on the part of the Rights Agent, for anything done or omitted by the
Rights Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against any claim of
liability, which right to indemnification will survive the termination of this
Agreement.
(b) The Rights Agent shall be protected and shall incur no liability for
or in respect of any action taken, suffered or omitted by it in connection with
its administration of this Agreement in reliance upon any certificate for Common
Shares, Rights Certificate, certificate for other securities of the Corporation,
instrument of assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement or other paper or
document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper Person or Persons.
5.2 Merger or Amalgamation or Change of Name of Rights Agent
(a) Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or amalgamated or with which it may be consolidated, or any
corporation resulting from any merger, amalgamation or consolidation to which
the Rights Agent or any successor Rights Agent is a party, or any corporation
succeeding to the shareholder or stockholder services business of the Rights
Agent or any successor Rights Agent, will be the successor to the Rights Agent
under this Agreement without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such corporation
would be eligible for appointment as a successor Rights Agent under the
provisions of section 5.4 hereof. In case at the time such successor Rights
Agent succeeds to the agency created by this Agreement any of the Rights
Certificates have been countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of the predecessor Rights Agent and
deliver such Rights Certificates so countersigned; and in case at that time any
of the Rights Certificates have not been countersigned, any successor Rights
Agent may countersign such Rights Certificates either in the name of the
predecessor Rights Agent or in the name of the successor Rights Agent; and in
all such cases such Rights Certificates will have the full force provided in the
Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is changed and at
such time any of the Rights Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Rights Certificates so countersigned; and in case at that time any
of the Rights Certificates shall not have been countersigned, the Rights Agent
may countersign such Rights Certificates either in its prior name or in its
changed name; and in all such cases such Rights Certificates shall have the full
force provided in the Rights Certificates and in this Agreement.
5.3 Duties of Rights Agent
The Rights Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, by all of which the
Corporation and the holders of Rights Certificates, by their acceptance thereof,
shall be bound:
(a) the Rights Agent may consult with legal counsel (who may be legal
counsel for the Corporation) and the opinion of such counsel will be
full and complete authorization and protection to the Rights Agent
as to any action taken or omitted by it in good faith and in
accordance with such opinion;
(b) whenever in the performance of its duties under this Agreement
Rights Agent deems it necessary or desirable that any fact or
matter be proved or established by the Corporation prior to
taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and
established by a certificate signed by a Person believed by the
Rights Agent to be the Chairman of the Board, the President or
any Vice-President and by the Treasurer or the Secretary or any
Assistant-Treasurer or any Assistant-Secretary of the Corporation
and delivered to the Rights Agent; and such certificate will be
full authorization to the Rights Agent for any action taken or
suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate;
(c) the Rights Agent will be liable hereunder only for its own
negligence, bad faith or wilful misconduct;
(d) the Rights Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the
certificates for Common Shares or the Rights Certificates (except
its countersignature thereof) or be required to verify the same, but
all such statements and recitals are and will be deemed to have been
made by the Corporation only;
(e) the Rights Agent will not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery
hereof (except the due authorization, execution and delivery
hereof by the Rights Agent) or in respect of the validity or
execution of any Common Share certificate or Rights Certificates
(except its countersignature thereof); nor will it be responsible
for any breach by the Corporation of any covenant or condition
contained in this Agreement or in any Rights Certificates; nor
will it be responsible for any change in the exercisability of
the Rights (including the Rights becoming void pursuant to
subsection 4(b)) or any adjustment required under the provisions
of section 3.2 or responsible for the manner, method or amount of
any such adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect to
the exercise of Rights after receipt of the certificate
contemplated by section 3.2 describing any such adjustment); nor
will it by any act hereunder be deemed to make any representation
or warranty as to the authorization of any Common Shares to be
issued pursuant to this Agreement or any Rights or as to whether
any Shares will, when issued, be duly and validly authorized,
executed, issued and delivered as fully paid and non-assessable;
(f) the Corporation agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Rights Agent for the
carrying out or performing by the Rights Agent of the provisions of
this Agreement;
(g) the Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties
hereunder from any Person believed by the Rights Agent to be the
Chairman of the Board, the President, any Vice-President or the
Secretary or the Treasurer or any Assistant-Secretary or any
Assistant-Treasurer of the Corporation, and to apply to such
Persons for advice or instructions in connection with its duties,
and it shall not be liable for any action taken or suffered by it
in good faith in accordance with instructions of any such Person;
(h) the Rights Agent and any shareholder or stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal in
Common Shares, Rights or other securities of the Corporation or
become pecuniarily interested in any transaction in which the
Corporation may be interested, or contract with or lend money to
the Corporation or otherwise act as fully and freely as though it
were not the Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other capacity
for the Corporation or for any other legal entity; and
(i) the Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the Rights
Agent will not be answerable or accountable for any act, default,
neglect or misconduct of any such attorneys or agents or for any
loss to the Corporation resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in
the selection and continued employment thereof.
5.4 Change of Rights Agent
The Rights Agent may resign and be discharged from its duties under
this Agreement upon 90 days' notice in writing (or such lesser notice as is
acceptable to the Corporation) mailed to the Corporation and to each transfer
agent of Common Shares by registered or certified mail, and to the holders of
the Rights in accordance with section 6.8. The Corporation may remove the Rights
Agent upon 30 days' notice in writing, mailed to the Rights Agent and to each
transfer agent of the Common Shares by personal delivery, registered or
certified mail, and to the holders of the Rights in accordance with section 6.8.
If the Rights Agent should resign or be removed or otherwise become incapable of
acting, the Corporation will appoint a successor to the Rights Agent. If the
Corporation fails to make such appointment within a period of 30 days after such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder of
any Rights (which holder shall, with such notice, submit such holder's Rights
Certificate for inspection by the Corporation), then, subject to prior written
notice to the Corporation, the holder of any Rights may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Corporation or by such a court, shall be
a corporation incorporated under the laws of Canada or a province thereof
authorized to carry on the business of a trust company in the Province of
Quebec. After appointment, the successor Rights Agent will be vested with the
same powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent any property at
the time held by it hereunder and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment, the Corporation will file notice thereof in
writing with the predecessor Rights Agent and each transfer agent of the Common
Shares, and mail a notice thereof in writing to the holders of the Rights.
Failure to give any notice provided for in this section 5.4, however, or any
defect therein, shall not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor Rights Agent, as
the case may be.
ARTICLE 6
MISCELLANEOUS
6.1 Redemption and Waiver
(a) The Board of Directors may, subject to the prior approval of the
holders of the Common Shares or the holders of the Rights obtained as set forth
in subsections 6.5(b) or (c), as the case may be, at any time prior to the
occurrence of a Flip-in Event as to which the application of section 4 has not
been waived pursuant to this section 6.1, elect to redeem all but not less than
all of the then outstanding Rights at a redemption price of $0.001 per Right,
appropriately adjusted in a manner analogous to the applicable adjustment
provided for in section 3.2, if an event of the type analogous to any of the
events described in section 3.2 shall have occurred (such redemption price being
herein referred to as the "Redemption Price").
(b) The Board of Directors acting in good faith may, until the occurrence
of a Flip-in Event, upon prior written notice delivered to the Rights Agent,
determine to waive the application of section 4 to a particular Flip-in Event
that would result from a Take-over Bid made by way of take-over bid circular to
all holders of record of Voting Shares (which for greater certainty shall not
include the circumstances described in subsection 6.1(c)); provided that if the
Board of Directors waives the application of section 4 to a particular Flip-in
Event pursuant to this subsection 6.1(b), the Board of Directors shall be deemed
to have waived the application of section 4 to any other Flip-in Event occurring
by reason of any Take-over Bid which is made by means of a take-over bid
circular to all holders of record of Voting Shares prior to the expiry of any
Take-over Bid in respect of which a waiver is, or is deemed to have been,
granted under this subsection 6.1(b).
(c) Notwithstanding the provisions of subsection 6.1(b) hereof, the Board
of Directors of the Corporation may waive the application of section 4 in
respect of any Flip-in Event, provided that both of the following conditions are
satisfied:
(i) the Board of Directors has determined, within 8 Trading Days
following a Stock Acquisition Date, that a Person became an
Acquiring Person by inadvertence and without any intention to
become, or knowledge that it would become, an Acquiring
Person; and
(ii) such Person has, within 14 days after such determination or
such earlier or later period as the Board of Directors may
determine, (the "Disposition Date") reduced its Beneficial
Ownership of Voting Shares such that at the time of the
granting of a waiver pursuant to this subsection 6.1(c)
such Person is no longer an Acquiring Person; if the Person
remains an Acquiring Person at the close of business on the
Disposition Date, the Disposition Date shall be deemed to
be the date of occurrence of a further Stock Acquisition
Date and section 4 shall apply thereto,
and, in the event of any such waiver, for the purposes of this Agreement, such
Flip-in Event shall be deemed not to have occurred and the Separation Time shall
be deemed not to have occurred as a result of such Person having inadvertently
become an Acquiring Person.
(d) Where a Person acquires pursuant to a Permitted Bid, a Competing
Permitted Bid or an Exempt Acquisition under subsection 6.1(b) outstanding
Common Shares, other than Common Shares Beneficially Owned at the date of the
Permitted Bid, the Competing Permitted Bid or the Exempt Acquisition under
subsection 6.1(b) by such Person, then the Board of Directors of the Corporation
shall immediately upon the consummation of such acquisition without further
formality, including any approval under subsection 6.1(a), be deemed to have
elected to redeem the Rights at the Redemption Price.
(e) Where a Take-over Bid that is not a Permitted Bid is withdrawn or
otherwise terminated after the Separation Time has occurred and prior to the
occurrence of a Flip-in Event, the Board of Directors may elect to redeem all
the outstanding Rights at the Redemption Price.
(f) If the Board of Directors elects or is deemed to have elected to
redeem the Rights, the right to exercise the Rights will thereupon, without
further action and without notice, terminate, and the only right thereafter of
the holders of Rights shall be to receive the Redemption Price.
(g) Within 10 days after the Board of Directors electing or having been
deemed to have elected to redeem the Rights, the Corporation shall give notice
of redemption to the holders of the then outstanding Rights by mailing such
notice to each such holder at his last address as it appears upon the registry
books of the Rights Agent or, prior to the Separation Time, on the registry
books of the Transfer Agent for the Common Shares. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made. The Corporation may not
redeem, acquire or purchase for value any Rights at any time in any manner other
than that specifically set forth in this section 6.1, and other than in
connection with the purchase of Common Shares prior to the Separation Time.
(h) Upon the Rights being redeemed pursuant to subsection 6.1(e), all the
provisions of this Agreement shall continue to apply as if the Separation Time
had not occurred and Rights Certificates representing the number of Rights held
by each holder of record of Common Shares as of the Separation Time had not been
mailed to each such holder and from all purposes of this Agreement the
Separation Time shall be deemed not to have occurred.
6.2 Expiration
No Person shall have any rights pursuant to this Agreement or in
respect of any Right after the Expiration Time, except the Rights Agent as
specified in subsection 5.1(a).
6.3 Issuance of New Rights Certificate
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Corporation may, at its option, issue new Rights
Certificates evidencing Rights in such form as may be approved by the Board of
Directors to reflect any adjustment or change in the number or kind or class of
shares purchasable upon exercise of Rights made in accordance with the
provisions of this Agreement.
6.4 Fractional Rights and Fractional Shares
(a) The Corporation shall not be required to issue fractions of Rights or
to distribute Rights Certificates which evidence fractional Rights. After the
Separation Time, in lieu of such fractional Rights, there shall be paid to the
registered holders of the Rights Certificates with regard to which such
fractional Right would otherwise be issuable, an amount in cash equal to the
fraction of the Market Price of a whole Right that the fraction of a Right that
would otherwise be issuable is of one whole Right.
(b) The Corporation shall not be required to issue fractions of Common
Shares upon exercise of the Rights or to distribute certificates which evidence
fractional Common Shares. In lieu of issuing fractional Common Shares, the
Corporation shall pay to the registered holders of Rights Certificates; at the
time such Rights are exercised as herein provided, an amount in cash equal to
the same fraction of the Market Price of a whole Common Share that the fraction
of a Common Share that would be otherwise be issuable upon the exercise of such
Right is of one whole Common Share at the date of such exercise.
6.5 Supplements and Amendments
(a) The Corporation may make amendments to this Agreement to correct any
clerical or typographical error or which are required to maintain the validity
of this Agreement as a result of any change in any applicable legislation, rules
or regulations thereunder. The Corporation may, prior to the date of the
shareholders' meeting referred to in section 6.15, supplement or amend this
Agreement without the approval of any holders of Rights or Voting Shares in
order to make any changes which the Board of Directors acting in good faith may
deem necessary or desirable. Notwithstanding anything in this section 6.5 to the
contrary, no such supplement or amendment shall be made to the provisions of
Article 5 except with the written concurrence of the Rights Agent to such
supplement or amendment.
(b) Subject to the section 6.5(a), the Corporation may, with the prior
consent of the holders of Voting Shares obtained as set forth below, at any time
prior to the Separation Time, amend, vary or rescind any of the provisions of
this Agreement and the Rights (whether or not such action would materially
adversely affect the interests of the holders of Rights generally). Such consent
shall be deemed to have been given if the action requiring such approval is
authorized by the affirmative vote of a majority of the votes cast by
Independent Shareholders present or represented at and entitled to be voted at a
meeting of the holders of Voting Shares duly called and held in compliance with
applicable laws and the articles and by-laws of the Corporation.
(c) The Corporation may, with the prior consent of the holders of Rights,
at any time on or after the Stock Acquisition Date, amend, vary or delete any of
the provisions of this Agreement and the Rights (whether or not such action
would materially adversely affect the interests of the holders of Rights
generally), provided that no such amendment, variation or deletion shall be made
to the provisions of Article 5 except with the written concurrence of the Rights
Agent thereto. Such consent shall be deemed to have been given if such
amendment, variation or deletion is authorized by the affirmative votes of the
holders of Rights present or represented at and entitled to be voted at a
meeting of the holders and representing 50% plus one of the votes cast in
respect thereof.
(d) Any approval of the holders of Rights shall be deemed to have been
given if the action requiring such approval is authorized by the affirmative
votes of the holders of Rights present or represented at and entitled to be
voted at a meeting of the holders of Rights and representing a majority of the
votes cast in respect thereof. For the purposes hereof, each outstanding Right
(other than Rights which are void pursuant to the provisions hereof) shall be
entitled to one vote, and the procedures for the calling, holding and conduct of
the meeting shall be those, as nearly as may be, which are provided in the
Corporation's by-laws and the Canada Business Corporations Act with respect to
meetings of shareholders of the Corporation.
(e) Any amendments made by the Corporation to this Agreement pursuant to
subsection 6.5(a) which are required to maintain the validity of this Agreement
as a result of any change in any applicable legislation, rules or regulation
thereunder shall:
(i) if made before the Separation Time, be submitted to the shareholders
of the Corporation at the next meeting of shareholders and the
shareholders may, by the majority referred to in subsection 6.5(b),
confirm or reject such amendment;
(ii) if made after the Separation Time, be submitted to the holders of
Rights at a meeting to be called for on a date not later than
immediately following the next meeting of shareholders of the
Corporation and the holders of Rights may, by resolution passed by
the majority referred to in subsection 6.5(d), confirm or reject
such amendment.
Any such amendment shall be effective from the date of the resolution of
the Board of Directors adopting such amendment, until it is confirmed or
rejected or until it ceases to be effective (as described in the next sentence)
and, where such amendment is confirmed, it continues in effect in the form so
confirmed. If such amendment is rejected by the shareholders or the holders of
Rights or is not submitted to the shareholders or holders of Rights as required,
then such amendment shall cease to be effective from and after the termination
of the meeting at which it was rejected or to which it should have been but was
not submitted or from and after the date of the meeting of holders of Rights
that should have been but was not held, and no subsequent resolution of the
Board of Directors to amend this Agreement to substantially the same effect
shall be effective until confirmed by the shareholders or holders of Rights as
the case may be.
6.6 Rights of Action
Subject to the terms of this Agreement, all rights of action in
respect of this Agreement, other than rights of action vested solely in the
Rights Agent, are vested in the respective holders of the Rights; and any holder
of any Rights, without the consent of the Rights Agent or of the holder of any
other Rights, may, on such holder's own behalf and for such holder's own benefit
and the benefit of other holders of Rights, enforce, and may institute and
maintain any suit, action or proceeding against the Corporation to enforce, or
otherwise act in respect of, such holder's right to exercise such holder's
Rights in the manner provided in such holder's Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and
will be entitled to specific performance of the obligations under, and
injunctive relief against, actual or threatened violations of, the obligations
of any Person subject to this Agreement.
6.7 Notice of Proposed Actions
In case the Corporation shall propose after the Separation Time and
prior to the Expiration Time:
(a) to effect or permit (in cases where the Corporation's permission
is required) any Flip-in Event; or
(b) to effect the liquidation, dissolution or winding-up of the
Corporation or the sale of all or substantially all of the
Corporation's assets,
then, in each such case, the Corporation shall give to each holder of a Right,
in accordance with section 6.8, a notice of such proposed action, which shall
specify the date on which such Flip-in Event, liquidation, dissolution or
winding-up is to take place, and such notice shall be so given at least 10
Business Days prior to the date of taking such proposed action.
6.8 Notices
Notices or demands authorized or required by this Agreement to be
given or made by the Rights Agent or by the holder of any Rights to or on the
Corporation shall be sufficiently given or made if delivered or sent by
first-class mail, postage prepaid, or by fax (with, in the case of fax, an
original copy of the notice or demand sent by first-class mail, postage prepaid,
to the Corporation following the giving of the notice or demand by
fax),addressed (until another address is filed in writing with the Rights Agent)
as follows:
ST. LAURENT PAPERBOARD INC.
000, Xxxx-Xxxxxxxx Xxxx. Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Vice-President, Administration
and Secretary
Any notice or demand authorized or required by this Agreement to be given or
made by the Corporation or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if delivered or sent by first-class mail,
postage prepaid, or by fax (with, in the case of fax, an original copy of the
notice or demand sent by first-class mail, postage prepaid, to the Rights Agent
following the giving of the notice or demand by fax) addressed (until another
address is filed in writing with the Corporation) as follows:
Montreal Trust Company
Corporate Trust Services
0000 XxXxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xx
X0X 0X0
Attention: Manager, Stock Transfer Services
Notices or demands authorized or required by this Agreement to be given or made
by the Corporation or the Rights Agent to or on the holder of any Rights shall
be sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, or by fax (with, in the case of fax, an original copy of the notice or
demand sent by first-class mail, postage prepaid, to such holder following the
giving of the notice or demand by fax) addressed to such holder at the address
of such holder as it appears upon the registry books of the Rights Agent or,
prior to the Separation Time, on the registry books of the Corporation for the
Common Shares. Any notice which is sent in the manner herein provided shall be
deemed given, whether or not the holder receives the notice.
6.9 Costs of Enforcement
The Corporation agrees that if the Corporation fails to fulfil any
of its obligations pursuant to this Agreement, then the Corporation will
reimburse the holder of any Rights for the costs and expenses (including legal
fees) incurred by such holder in actions to enforce his rights pursuant to any
Rights or this Agreement.
6.10 Successors
All the covenants and provisions of this Agreement by or for the
benefit of the Corporation or the Rights Agent shall bind and enure to the
benefit of their respective successors and assigns hereunder.
6.11 Benefits of this Agreement
Nothing in this Agreement shall be construed to give to any Person
other than the Corporation, the Rights Agent and the holders of the Rights any
legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Corporation, the
Rights Agent and the holders of the Rights.
6.12 Governing Law
This Agreement and each Right issued hereunder shall be deemed to be
a contract made under the laws of the Province of Quebec and for all purposes
shall be governed by and construed in accordance with the laws of such province
applicable to contracts to be made and performed entirely within such province.
6.13 Counterparts
This Agreement may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
6.14 Severability
If any section, subsection, clause, subclause, term or provision
hereof or the application thereof to any circumstance shall, in any jurisdiction
and to any extent, be invalid or unenforceable, such section, subsection,
clause, subclause, term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining sections, subsections,
clauses, subclauses, terms and provisions hereof or the application of such
section, subsection, clause, subclause, term or provision to circumstances other
than those as to which it is held invalid or unenforceable.
6.15 Effective Date
Upon being reconfirmed and approved as provided in section 6.16,
this Agreement shall be effective and in full force and effect in accordance
with its terms from and after the Effective Date and amends, restates and
replaces in its entirety the Amended and Restated Agreement.
6.16 Reconfirmation and Approval: Reconfirmation
To become effective, this Agreement must be reconfirmed and approved
by a resolution passed by a majority of greater than 50% of the votes cast by
all holders of Voting Shares who vote in respect of such reconfirmation at the
1998 annual meeting of the Corporation. Notwithstanding such reconfirmation,
this Agreement must be reconfirmed by a resolution passed by a majority of
greater than 50% of the votes cast by all holders of Voting Shares who vote in
respect of such reconfirmation at every third annual meeting following the 1998
annual meeting. If the Agreement is not so reconfirmed or is not presented for
reconfirmation at such meeting, this Agreement and all outstanding Rights shall
terminate and be of no further force and effect on and from the date of
termination of the annual meeting; provided, that termination shall not occur if
a Flip-in Event has occurred (other than a Flip-in Event which has been waived
pursuant to subsection 6.1(b) or (c) hereof) prior to the date upon which this
Agreement would otherwise terminate pursuant to this section 6.16.
6.17 Actions by the Board of Directors
All actions, calculations and determinations (including all
omissions with respect to the foregoing) which are done or made by the Board of
Directors, in good faith, shall not subject the Board of Directors or any
director of the Corporation to any liability to the holders of the Rights
Certificates.
6.18 Time of the Essence
Time shall be of the essence in this Agreement.
6.19 Regulatory Approvals
Any obligation of the Corporation or action or event contemplated by
this Agreement shall be subject to the receipt of any requisite approval or
consent from any governmental or regulatory authority.
6.20 Language
Les parties aux presentes ont exige que la presente convention ainsi
que tous les documents et avis qui s'y rattachent et/ou qui en decouleront
soient rediges en langue anglaise. The parties hereto have required that this
Agreement and all documents and notices related thereto and/or resulting
therefrom be drawn up in the English language.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
ST. LAURENT PAPERBOARD INC.
By _________________________
MONTREAL TRUST COMPANY
By _________________________
And by _________________________
EXHIBIT A
[FORM OF RIGHTS CERTIFICATE]
Certificate No. __________ __________ Rights
THE RIGHTS ARE SUBJECT TO TERMINATION ON THE TERMS SET FORTH IN THE
SHAREHOLDER RIGHTS PLAN AGREEMENT. UNDER CERTAIN CIRCUMSTANCES (SPECIFIED
IN SUBSECTION 4(b) OF THE SHAREHOLDER RIGHTS PLAN AGREEMENT), RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR CERTAIN RELATED PARTIES, OR
TRANSFEREES OF AN ACQUIRING PERSON OR CERTAIN RELATED PARTIES, MAY BECOME
VOID.
RIGHTS CERTIFICATE
This certifies that ____________________ , or registered assigns, is
the registered holder of the number of Rights set forth above, each of which
entitles the registered holder thereof, subject to the terms, provisions and
conditions of the Shareholder Rights Plan Agreement made as of the 1st day of
February, 1995, as the same may be amended or supplemented from time to time,
(the "Rights Agreement") between St. Laurent Paperboard Inc., a corporation
incorporated under the laws of Canada (the "Corporation") and Montreal Trust
Company, a trust company incorporated under the laws of Canada, as rights agent
(the "Rights Agent", which term shall include any successor Rights Agent under
the Rights Agreement) to purchase from the Corporation at any time after the
Separation Time and prior to the Expiration Time (as such terms are defined in
the Rights Agreement), one fully paid Common Share of the Corporation (a "Common
Share") at the Exercise Price referred to below, upon presentation and surrender
of this Rights Certificate together with the Form of Election to Exercise and
Declaration of Ownership duly executed and submitted to the Rights Agent at its
principal office in any of the cities of Montreal, Toronto, Calgary, Vancouver
and Halifax. The Exercise Price shall initially be $65 per Right and shall be
subject to adjustment in certain events as provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement, each
Right evidenced hereby may entitle the registered holder thereof to purchase or
receive assets, debt securities or shares in the capital of the Corporation
other than Common Shares, or more or less than one Common Share, all as provided
in the Rights Agreement.
This Rights Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Rights Agent, the Corporation and the holders of the Rights Certificates. Copies
of the Rights Agreement are on file at the registered office of the Corporation
and are available upon written request.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at any of the offices of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate or Rights Certificates
of like tenor and date evidencing an aggregate number of Rights equal to the
aggregate number of Rights evidenced by the Rights Certificate or Rights
Certificates surrendered. If this Rights Certificate shall be exercised in part,
the registered holder shall be entitled to receive, upon surrender hereof,
another Rights Certificate or Rights Certificates for the number of whole Rights
not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Rights Certificate (i) may be, and under certain circumstances
are required to be, redeemed by the Corporation at a redemption price of $0.001
per Right and (ii) may be exchanged at the option of the Corporation for cash,
debt or equity securities or other assets of the Corporation.
No fractional Common Shares will be issued upon the exercise of any
Right or Rights evidenced hereby, but in lieu thereof a cash payment will be
made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of Common
Shares or of any other securities of the Corporation which may at any time be
issuable upon the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a shareholder of the Corporation or any right to vote for the
election of directors or upon any matter submitted to shareholders of the
Corporation at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders of the Corporation (except as provided in the Rights Agreement), or
to receive dividends or subscription rights, or otherwise, until the Rights
evidenced by this Rights Certificate shall have been exercised as provided in
the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been manually countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Corporation and its corporate seal.
Date: __________________________
ST. LAURENT PAPERBOARD INC.
By: ______________________________ By: ________________________
President and Chief Executive Officer Secretary
Countersigned:
MONTREAL TRUST COMPANY
By: ______________________________
Authorized Signature
FORM OF ELECTION TO EXERCISE AND CERTIFICATE
(To be executed by the registered holder if such holder desires to exercise the
Rights evidenced by the Rights Certificate)
TO: St. Laurent Paperboard Inc. and Montreal Trust Company
The undersigned hereby irrevocably elects to exercise _____ whole
Rights evidenced by the attached Rights Certificate to purchase the Common
Shares or other securities, if applicable, issuable upon the exercise of such
Rights and requests that certificates for such securities be issued to:
-----------------------------------------------------
Name
-----------------------------------------------------
Address
-----------------------------------------------------
City and Province
-----------------------------------------------------
Social Insurance Number or other
taxpayer identification number
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
-----------------------------------------------------
Name
-----------------------------------------------------
Address
-----------------------------------------------------
City and Province
-----------------------------------------------------
Social Insurance Number or other
taxpayer identification number
Dated:____________________ ______________________________
Signature
Signature Guaranteed:
(Signature must correspond to name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement or any
change whatsoever)
Signature must be guaranteed by a member firm of a recognized stock
exchange in Canada, a registered national securities exchange in the United
States, a member of the Investment Dealers Association of Canada or National
Association of Securities Dealers, Inc., or a commercial bank or trust company
having an office or correspondent in Canada or the United States.
CERTIFICATE
(To be completed if true)
The undersigned hereby represents, for the benefit of the Corporation and all
holders of Rights and Common Shares, that the Rights evidenced by this Rights
Certificate are not, and, to the knowledge of the undersigned, have never been,
Beneficially Owned by an Acquiring Person or an Affiliate or Associate thereof
or any person acting jointly or in concert with any of the foregoing.
Capitalized terms shall have the meaning ascribed thereto in the Rights
Agreement.
------------------------------------------------------------------------------
Signature
FORM OF ASSIGNMENT AND CERTIFICATE
(To be executed by the registered holder if such holder desires to transfer the
Rights represented by this Rights Certificate.)
FOR VALUE RECEIVED _____________________________________________________
hereby sells, assigns and transfers unto _____________________________________
------------------------------------------------------
(Please print name and address of transferee)
------------------------------------------------------
the Rights represented by this Rights Certificate, together with all right,
title and interest therein.
Dated:____________________ ____________________
Signature
Signature
Signature Guaranteed:
(Signature must correspond to name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement or any
change whatsoever)
Signature must be guaranteed by a member firm of a recognized stock
exchange in Canada, a registered national securities exchange in the United
States, a member of the Investment Dealers Association of Canada or National
Association of Securities Dealers, Inc., or a commercial bank or trust company
having an office or correspondent in Canada or the United States.
CERTIFICATE
(To be completed if true)
The undersigned hereby represents, for the benefit of the Corporation and all
holders of Rights and Common Shares, that the Rights evidenced by this Rights
Certificate are not, and, to the knowledge of the undersigned, have never been,
Beneficially Owned by an Acquiring Person or an Affiliate or Associate thereof
or any person acting jointly or in concert with any of the foregoing.
Capitalized terms shall have the meaning ascribed thereto in the Rights
Agreement.
-------------------------------
Signature
NOTICE
In the event the certification set forth above in the Forms of
Assignment and Election is not completed, the Corporation will deem the
Beneficial Owner of the Rights evidenced by this Rights Certificate to be an
Acquiring Person or an Affiliate or Associate thereof and accordingly such
Rights will be null and void. No Rights Certificates shall be issued in exchange
for a Rights Certificate owned or deemed to have been owned by an Acquiring
Person or an Affiliate or Associate thereof, or by a Person acting jointly or in
concert with an Acquiring Person or an Affiliate or Associate thereof.
Capitalized terms shall have the meaning ascribed thereto in the Rights
Agreement.
