ATLAS CORPORATION
SPECIAL WARRANT INDENTURE
DATED NOVEMBER 9, 1995
CONTAINING TERMS AND CONDITIONS GOVERNING THE
ISSUE AND EXERCISE OF SPECIAL DEBENTURE WARRANTS
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE 1
INTERPRETATION............................... 2
--------------
1.1 ...........................................................Definitions 2
1.2 ..............................................................Headings 5
1.3 ................................................................Gender 5
1.4 .................................................Weekends and Holidays 5
1.5 ..............................................Meaning of "Outstanding" 6
1.6 ..................................................................Time 6
1.7 ........................................................Applicable Law 6
1.8 ..............................................................Currency 6
ARTICLE 2
ISSUE AND PURCHASE OF SPECIAL WARRANTS.................. 6
--------------------------------------
2.1 ..........................Creation, Form and Terms of Special Warrants 6
2.2 .....................Transferability and Ownership of Special Warrants 7
2.3 ....................................................Cancellation Right 8
2.4 ....................................................Insufficient Funds 9
2.5 ...............................Special Warrantholders Not Shareholders 9
2.6 ...........................................Signing of Special Warrants 9
2.7 ........................................................Countersigning 9
2.8 ............Loss, Mutilation, Destruction or Theft of Special Warrants 9
2.9 ..........................................Exchange of Special Warrants 10
2.10 .........................Purchase of Special Warrants for Cancellation 10
2.11 ..........................................................Escrow Funds 10
ARTICLE 3
REPRESENTATIONS, WARRANTIES, AND COVENANTS
------------------------------------------
OF THE COMPANY................................ 11
--------------
3.1 ......................To Issue Special Warrants and Reserve Debentures 12
Note: This table of contents shall not, for any purpose, be deened to be a part
of the Indenture
-i-
-(ii)-
PAGE
----
3.2 .........................................To Execute Further Assurances 12
3.3 ..................................................To Carry On Business 12
3.4 ......................................................Reporting Issuer 12
3.5 ...........................Qualification and Registration Requirements 12
3.6 ................................................Stock Exchange Listing 13
3.7 Notice of Qualification and Registration Requirements to Trustee
and Underwriters................................................... 13
3.8 .................................Securities Qualification Requirements 14
ARTICLE 4
ADJUSTMENTS................................ 14
-----------
4.1 ....................................Adjustment of Amount of Debentures 14
4.2 Protection of Trustee.............................................. 14
ARTICLE 5
EXERCISE OF SPECIAL WARRANTS....................... 15
----------------------------
5.1 Notice of Registration and Qualification Requirements to Special
Warrantholders..................................................... 15
5.2 .........................................Voluntary Exercise of Special 15
..............................................................Warrants 15
5.3 ...................................Deemed Exercise of Special Warrants 15
5.4 ................................Effect of Exercise of Special Warrants 16
5.5 .............................Special Warrants Void After Exchange Time 16
5.6 ...............................................Fractions of Debentures 16
5.7 ..............................................Accounting and Recording 16
ARTICLE 6
MEETINGS OF SPECIAL WARRANTHOLDERS...................... 17
----------------------------------
6.1 ...........................................................Definitions 17
6.2 ....................................................Convening Meetings 17
6.3 ......................................................Place of Meeting 17
6.4 ................................................................Notice 17
6.5 ............................................Persons Entitled to Attend 18
6.6 ................................................................Quorum 18
6.7 ..............................................................Chairman 18
-(iii)-
PAGE
----
6.8 .....................................................Adjourned Meeting 18
6.9 .........................................................Show of Hands 18
6.10 ..................................................................Poll 19
6.11 ...........................................................Regulations 19
6.12 ......................................Powers of Special Warrantholders 19
6.12 ...................................................Minutes of Meetings 21
6.14 ...................................................Written Resolutions 21
6.15 ........................................................Binding Effect 21
ARTICLE 7
SUPPLEMENTAL INDENTURES, MERGER, SUCCESSORS................ 22
-------------------------------------------
7.1 ............Provision for Supplemental Indentures for Certain Purposes 22
7.2 ........................Company May Consolidate, etc. on Certain Terms 22
7.3 ...................................Successor Body Corporate Substitued 23
ARTICLE 8
CONCERNING THE TRUSTEE..........................23
----------------------
8.1 .....................................................Duties of Trustee 23
8.2 .....................................................Action by Trustee 23
8.3 ............................................Certificate of the Company 24
8.4 ..................................Trustee May Employ Experts or Agents 24
8.5 ................................Resignation and Replacement of Trustee 24
8.6 .................................................Indenture Legislation 25
8.7 ................................................................Notice 25
8.8 .......................................................Use of Proceeds 25
8.9 ..........................................................No Inquiries 25
8.10 .................................Trustee Not Required to Give Security 25
8.11 ...............................................No Conflict of Interest 25
8.12 ..........................................Trustee Not Ordinarily Bound 26
8.13 .......................................Trustee May Deal in Instruments 26
8.14 ........................Recitals or Statements of Fact Made by Company 26
8.15 .........................................Trustee's Discretion Absolute 26
8.16 .....................................No Representations as to Validity 26
8.17 ..................................................Acceptance of Trusts 27
8.18 ..............................Trustee's Authority to Carry on Business 27
8.19 ..........................................................Disagreement 27
-(iv)-
PAGE
----
8.20 .............................................................Indemnity 28
ARTICLE 9
NOTICES.................................. 28
-------
9.1 ...........................Notice to Company, Trustee and Underwriters 28
9.2 ......................................Notice to Special Warrantholders 29
ARTICLE 10
POWER OF BOARD OF DIRECTORS...................... 30
---------------------------
10.1 ....................................................Board of Directors 30
ARTICLE 11
MISCELLANEOUS PROVISIONS.......................... 30
------------------------
11.1 ....................................................Further Assurances 30
11.2 ...................................................Unenforceable Terms 30
11.3 .............................................................No Waiver 30
11.4 .......................................Suits By Special Warrantholders 30
11.5 .............................................................Enurement 31
11.6 ........................................Formal Date and Effective Date 31
SCHEDULES
Schedule "A" - Special Warrant Certificate
SPECIAL WARRANT INDENTURE
-------------------------
DATED AS OF NOVEMBER 9, 1995
BETWEEN:
ATLAS CORPORATION
-----------------
Suite 3150, 370 Seventeenth Street
Denver, Colorado
U.S.A. 80202
(hereinafter referred to as the "COMPANY")
OF THE FIRST PART
AND:
THE MONTREAL TRUST COMPANY OF CANADA
------------------------------------
3rd floor, 510 Burrard Street
Vancouver, British Columbia
V6C 3B9
(hereinafter referred to as the "TRUSTEE")
OF THE SECOND PART
Containing Terms and Conditions governing the Issue and
Exercise of up to US $15,000,000 of Special Debenture
Warrants of the Company
WHEREAS the Company has created and proposes to issue Special Warrants to be
constituted and issued in the manner herein set forth;
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-i-
-2-
AND WHEREAS the Company, under the laws relating thereto, is duly authorized to
create and issue the Special Warrants;
AND WHEREAS the Company represents to the Trustee that all necessary resolutions
of the directors of the Company have been or will be duly enacted, passed or
confirmed and all other proceedings taken and conditions complied with to
authorize the execution, issue and delivery of the Special Warrants and to make
the Special Warrants legal, valid and binding on the Company with the benefits
of and subject to the terms and conditions of this Indenture, and to approve and
confirm the terms and conditions of this Indenture;
AND WHEREAS the foregoing recitals are made as representations and statements of
fact by the Company and not by the Trustee;
AND WHEREAS the Trustee has agreed to act as trustee on behalf of the Special
Warrantholders on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and in further consideration of
the mutual covenants herein set forth, the parties hereto agree as follows:
INTERPRETATION
--------------
Definitions
-----------
In this Indenture and the Special Warrant Certificate (unless there is something
in the subject matter or context inconsistent therewith):
"1933 ACT" means the United States Securities Act of 1933, as
amended;
"1934 ACT" means the United States Securities Exchange Act of
1934, as amended;
"1933 REGISTRATION STATEMENT" means a registration statement or
registration statements under the 1933 Act, registering for
resale the Subject Securities;
"1934 REGISTRATION STATEMENT" means a registration statement
under the 1934 Act registering the class of Debentures under
Section 12(b) of the 1934 Act;
"APPLICABLE LEGISLATION" means the provisions, if any, for the
time being, of any statute of Canada or a province thereof, and
of the regulations under such statute, relating to trust
indentures and/or to the rights, duties and obligations of
trustees under trust indentures, and of corporations issuing
their securities under trust indentures, to the extent that any
such provisions are in force and applicable to this Indenture;
-3-
"CANCELLATION NOTICE" has the meaning ascribed thereto in Section
2.3 hereof;
"CANCELLATION RIGHT" means the right of holders of Special
Warrants to require the Company to redeem their Special Warrants
at a cash price of US $105 for each (US) $100 of Special Warrants
redeemed, if the Qualification Date does not occur on or before
the Qualification Deadline, pursuant to subsection 2.3 herein;
"CHEMICAL BANK" means the trustee under the Chemical Bank
Indenture being Chemical Bank of 450 West 33rd Street, 15th
floor, New York, New York, U.S.A., 10001;
"CHEMICAL BANK INDENTURE" means the indenture dated November 9,
1995 between the Company and Chemical Bank governing the terms
and conditions of the Debentures;
"CLOSING DATE" means November 9, 1995 or such other date as the
Underwriters and the Company may agree upon in writing;
"CLOSING TIME" means 9:00 a.m. (Vancouver time) on the Closing
Date;
"COMPANY" means Atlas Corporation;
"COMPANY'S AUDITORS" means the firm of accountants appointed by
the shareholders of the Company and serving as the auditors of
the Company at the relevant time;
"DEBENTURES" means the exchangeable debentures of the Company
into which Special Warrants are convertible, to be issued in
denominations of US $100 (or multiples thereof), the terms and
conditions of which Debentures are contained in the Chemical Bank
Indenture;
"DESIGNATED PROVINCES" means the Provinces of Ontario and British
Columbia;
"DIRECTOR" means a director of the Company for the time being and
reference without more to action by the directions means action
by the directors of the Company as a board or, whenever duly
empowered, action by a committee of the board;
"ESCROW FUNDS" means the gross proceeds from the sale of the
Special Warrants, which amount is deposited with the Trustee
pursuant to section 2.11 hereof, and all interest earned thereon;
"EXCHANGE DATE" means the earlier of:
the fifth business day following the Qualification Date; and
-4-
the first business day which is 12 months after the Closing
Date;
"EXCHANGE TIME" means 5:00 p.m. (Vancouver time) on the Exchange
Date;
"FIRST MARATHON" means First Marathon Securities Ltd.;
"GRANGES" means Granges Inc., a British Columbia company;
"GRANGES SHARES" means the common shares of Granges beneficially
owned by the Company;
"INDENTURE", "HEREIN", "HERETO, "HEREUNDER", "HEREOF", "HEREBY"
and similar expressions mean or refer to this Indenture and not
to any particular Article, Section, Subsection, paragraph,
clause, subdivision or portion hereof and include any indenture,
deed or instrument supplemental or ancillary hereto; and the
expressions "ARTICLE", "SECTION", "SUBSECTION" AND "PARAGRAPH"
followed by a number mean and refer to the specified Article,
Section, Subsection or paragraph of this Indenture;
"PRIVATE PLACEMENT" means an aggregate of up to US $15,000,000 of
Special Warrants being sold pursuant to the Underwriting
Agreement;
"PROSPECTUS" means a (final) prospectus of the Company filed with
the applicable securities regulatory authorities in the
Designated Provinces which qualifies the issuance of the
Debentures in the Designated Provinces, pursuant to the exercise
of the Special Warrants;
"QUALIFICATION DATE" means the date upon which the last of the
following has occurred:
receipts have been issued for the Prospectus by each of the
securities commissions in the Designated Provinces;
the 1933 Registration Statement has become effective; and
the 1934 Registration Statement has become effective;
"QUALIFICATION DEADLINE" means 8:00 p.m. (Vancouver time) on
February 9, 1996;
"REGULATION D" means Regulation D promulgated by the SEC under
the 1933 Act;
"REGULATION S" means Regulation S promulgated by the SEC under
the 1933 Act;
-5-
"RETRACTION DEADLINE" means 5:00 p.m. (Vancouver time) on the
tenth day (or the next succeeding business day if the tenth day
is not a business day) following the Qualification Deadline;
"SEC" means the United States Securities and Exchange Commission;
"SECURITIES" means the Special Warrants, the Debentures and the
Granges Shares;
"SPECIAL WARRANTS" means the special debenture warrants of the
Company issued in denominations of US $100 (or multiples thereof)
pursuant to this Indenture, each $100 of Special Warrants
entitling the holder to acquire US $100 principal amount of
Debentures upon exercise, subject to adjustment in accordance
with this Indenture;
"SPECIAL WARRANT CERTIFICATE" means a certificate supplied by the
Company evidencing one or more Special Warrants issuable
hereunder, substantially in the form attached hereto as Schedule
"A";
"SPECIAL WARRANTHOLDER" means the registered holder of an
outstanding Special Warrant;
"SUBJECT SECURITIES" means the Debentures and the Granges Shares;
"SUBSIDIARY OF THE COMPANY" means a corporation of which voting
securities carrying a majority of the votes attached to all
outstanding voting securities are owned, directly or indirectly,
by the Company or by one or more subsidiaries of the Company, or
by the Company and one or more subsidiaries of the Company, and,
as used in this definition, voting securities means securities,
other than debt securities, carrying a voting right to elect
directors either under all circumstances or under some
circumstances that may have occurred and are continuing;
"TRUSTEE" means Montreal Trust Company of Canada, having an
office at 3rd floor, 510 Burrard Street, Vancouver, British
Columbia, V6C 3B9;
"UNDERWRITERS" means collectively, Yorkton and First Marathon;
"UNDERWRITING AGREEMENT" means the underwriting agreement dated
as of October 25, 1995 between the Underwriters and the Company
pursuant to which the Underwriters have agreed to purchase up to
(U.S.) $15,000,000 of the Special Warrants (or obtain
subscriptions for Special Warrants from substituted purchasers);
and
"UNITED STATES" OR "U.S." means the United States of America, its
territories and possessions, and states of the United States, and
the District of Columbia;
-6-
"U.S. PERSON" has the meaning ascribed thereto in Rule 902 of
Regulation S; and
"YORKTON" means Yorkton Securities Inc.
Headings
--------
The division of this Indenture into Articles, Sections, Subsections or other
subdivisions, the provision of a Table of Contents and the insertion of headings
are for convenience of reference only and will not affect the construction or
interpretation of this Indenture or the Special Warrants.
Gender
------
Words importing the singular number also include the plural and vice versa and
words importing the masculine gender include the feminine gender.
Weekends and Holidays
---------------------
If the date for the taking of any action under this Indenture expires on a
Saturday, Sunday or a legal holiday in the Province of British Columbia, such
action may be taken on the next succeeding business day with the same force and
effect as if taken within the period for the taking of such action.
Meaning of "Outstanding"
------------------------
Every Special Warrant represented by a Special Warrant Certificate countersigned
by the Trustee and delivered to the holder is deemed to be outstanding until it
is cancelled or delivered to the Trustee for cancellation or until the Exchange
Time. Where a new Special Warrant Certificate has been issued pursuant to
Section 2.8 hereof to replace one which has been mutilated, lost, stolen or
destroyed, the Special Warrants represented by only one of such Special Warrant
Certificates are counted for the purpose of determining the aggregate number of
Special Warrants outstanding.
Time
----
Time is of the essence hereof.
-7-
Applicable Law
--------------
This Indenture and the Special Warrant Certificate are subject to and construed
in accordance with the laws of the province of British Columbia. The parties
hereto will submit to the jurisdiction of the Courts in the Province of British
Columbia. The parties agree that any litigation between the parties which arises
pursuant to or in connection with this Indenture, or any of its provisions, will
be referred to the Courts in the Province of British Columbia and will not be
referred to the Courts in any other jurisdiction.
Currency
--------
All dollar amounts set out herein refer to U.S. dollars, unless otherwise
indicated.
ISSUE AND PURCHASE OF SPECIAL WARRANTS
--------------------------------------
Creation, Form and Terms of Special Warrants
--------------------------------------------
The Company hereby creates and authorizes for issuance,
$15,000,000 of Special Warrants entitling Special Warrantholders
to acquire $15,000,000 principal amount of Debentures, subject to
the adjustment provisions of section 4.1 hereof.
Subject to the provisions hereof, the Special Warrants issued
under this Indenture are limited in the aggregate to 150,000
Special Warrants of $100 face value per Special Warrant (issuable
in denominations of $100, or multiples thereof) and each Special
Warrant entitles the holder thereof to acquire, without payment
of any consideration in addition to that paid for the Special
Warrant, one Debenture in the principal amount of $100, provided
that the amount of Debentures receivable on exercise of a Special
Warrant is subject to increase so as to give effect to the
adjustments required by Article 4.
The Special Warrants will be issued in registered form and the
Special Warrant Certificate will be substantially in the form set
out or referred to in Schedule "A" hereto with, subject to the
provisions of this Indenture, such additions, variations, or
omissions as may from time to time be permitted pursuant to this
Indenture or as may be agreed upon between the Company and the
Trustee or the Special Warrantholders and will be numbered in
such manner as the Company may prescribe. All Special Warrants
will be, save as to denominations, of like tenor and effect. The
Special Warrant Certificates will be engraved and printed in such
manner as is necessary to have the Special Warrants listed,
posted and called for
-8-
trading on the Vancouver Stock Exchange. No change in the form of
the Special Warrant Certificates will be required by reason of
any adjustment made pursuant to Article 4 hereof in the amount of
Debentures which may be acquired pursuant to the exercise of the
Special Warrants.
Transferability and Ownership of Special Warrants
-------------------------------------------------
The Company will cause the Trustee to keep at its Vancouver
office set forth in Section 1.1 a register in which the Trustee
will enter the names and addresses of the Special Warrantholders
and particulars of the Special Warrants held by them. The Trustee
will cause the register to be open at all reasonable times for
inspection by the Company, the Underwriters and any Special
Warrantholder.
The Special Warrants may be transferred, in accordance with
applicable laws and upon compliance with the conditions herein,
only on the register kept at the office of the Trustee set forth
in Section 1.1 by means of the Special Warrantholder (or its
legal representatives or its attorney duly appointed) and its
transferee duly executing the transfer form attached to the
Special Warrant Certificate and complying with such other
reasonable requirements as the Company or the Trustee may
prescribe and such transfer will be duly noted on the register by
the Trustee.
Notwithstanding anything contained in this Indenture, in the
Special Warrant Certificate or in any subscription agreements
under which Special Warrants were issued and sold, the Trustee,
relying solely on the transfer form or such other reasonable
requirements as the Company or Trustee may prescribe pursuant to
Subsection 2.2(B) will not register any transfer of a Special
Warrant if it has reasonable grounds to believe that such
transfer is otherwise not in accordance with applicable law.
Upon any transfer of Special Warrants in accordance with the
provisions of this Indenture, the Company covenants and agrees
with the Trustee, on behalf of the transferee holder and with the
transferee holder, that the transferee holder is a permitted
assignee of the transferring holder and is entitled to the
benefits of the covenants of the Company set forth under the
heading "Contractual Right of Action for Rescission" in the
Prospectus subject, in each case, to the restrictions and
limitations described thereunder.
The Company and the Trustee will deem and treat the registered
holder of any Special Warrant as the absolute legal and
beneficial owner thereof for all purposes and neither the Company
nor the Trustee is affected by any notice to the contrary except
where the Company or the Trustee is required to take notice by
statute or by order of a court of competent jurisdiction.
-9-
Subject to the provisions of this Indenture and applicable law,
the registered Special Warrantholder is entitled to the rights
and privileges attaching to the Special Warrants, and the issue
of Debentures and delivery of certificates representing the
Debentures on exercise of Special Warrants by any Special
Warrantholder thereof in accordance with the terms and conditions
herein contained and neither the Company nor the Trustee is bound
to inquire into the title of any such registered holder.
Cancellation Right
------------------
If the Qualification Date does not occur on or before the Qualification
Deadline, the Special Warrantholders shall be entitled to exercise the
Cancellation Right on or before the Retraction Deadline and the Company shall
forthwith give written notice to the Trustee and the Underwriters. The Trustee
will forthwith give written notice thereof to the Special Warrantholders. In
order to exercise the Cancellation Right Special Warrantholders shall provide
the Trustee with written notice (the "Cancellation Notice") on or before the
Retraction Deadline specifying the number of Special Warrants to be redeemed,
together with Special Warrant Certificates representing no less than such number
of Special Warrants. Following the Retraction Deadline the Trustee will
forthwith:
cause the number of Special Warrants specified in the
Cancellation Notice to be cancelled;
deliver, or cause to be delivered or credited (out of the Escrow
Funds) to the holders of Special Warrants, the sum of $105 for
each $100 of Special Warrants which have been cancelled; and
deliver, or cause to be delivered, a Special Warrant Certificate
representing the balance of any Special Warrants delivered to the
Trustee pursuant to this subsection, but not specified to be
purchased by the Company in the Cancellation Notice.
If any Special Warrantholder does not provide the Trustee with the aforesaid
Cancellation Notice, then such Special Warrantholder shall, with respect to the
amended terms of the Debentures, be deemed to have renewed the representations
to the Company appearing in Section 9 of the subscription agreement pursuant to
which Special Warrants were originally issued to such Special Warrantholder.
-10-
Insufficient Funds
------------------
In the event that the Escrow Funds are insufficient for redemption and purchase
of the number of Special Warrants to be cancelled pursuant to Section 2.3
hereof, the Company will forthwith provide the Trustee with sufficient funds
therefor.
Special Warrantholders Not Shareholders
---------------------------------------
A Special Warrantholder is not deemed or regarded as a shareholder of the
Company or of Granges nor is such Special Warrantholder entitled to any right or
interest except as is expressly provided in this Indenture and in the Special
Warrant Certificates.
Signing of Special Warrants
---------------------------
Any one director or officer of the Company will sign the Special Warrant
Certificates either manually or by facsimile signature. A facsimile signature
upon any Special Warrant Certificate is for all purposes hereof, deemed to be
the signature of the person whose signature it purports to be and to have been
signed at the time such facsimile signature is reproduced. If a person whose
signature, either manually or in facsimile, appears on a Special Warrant
Certificate is not a director or officer of the Company at the date of this
Indenture or at the date of the countersigning and delivery of such Special
Warrant Certificate, such fact does not affect in any way the validity of the
Special Warrants or the entitlement of the Special Warrantholder to the benefits
of this Indenture or of the Special Warrant Certificate.
Countersigning
--------------
No Special Warrant Certificate is to be issued, or if issued, is valid or
exercisable or entitles the holder thereof to the benefits of this Indenture
until the Special Warrant Certificate has been countersigned by the Trustee. The
countersignature or authentication by or on behalf of the Trustee on any Special
Warrant Certificate is not construed as a representation or warranty by the
Trustee as to the validity of this Indenture or of the Special Warrants or as to
the performance by the Company of its obligations under this Indenture and the
Trustee is in no way liable or answerable for the use made of the Special
Warrants or the proceeds therefrom except as specifically set out herein. The
countersignature or authentication of the Trustee is, however, a representation
and warranty of the Trustee that the Special Warrant Certificate has been duly
countersigned by or on behalf of the Trustee pursuant to the provisions of this
Indenture. For the purposes of this Special Warrant Indenture "countersignature"
and "authentication" have the same meaning.
-11-
Loss, Mutilation, Destruction or Theft of Special Warrants
----------------------------------------------------------
In case any of the Special Warrant Certificates issued and countersigned
hereunder is mutilated or lost, destroyed or stolen, the Company, subject to
applicable laws, and the provisions hereof, shall issue and deliver a new
Special Warrant Certificate of like date and tenor in exchange for and in place
of the one mutilated, lost, destroyed or stolen and upon surrender and
cancellation of such mutilated Special Warrant Certificate or in lieu of and in
substitution for such lost, destroyed or stolen Special Warrant Certificate and
the substituted Special Warrant Certificate entitles the holder thereof to the
benefits hereof and ranks equally in accordance with its terms with all other
Special Warrants issued hereunder.
The Special Warrantholder applying for the issue of a new Special Warrant
Certificate pursuant to this Section will bear the cost of the issue thereof and
in case of loss, destruction or theft will, as a condition precedent to the
issue thereof, furnish to the Company such evidence of ownership and of the
loss, destruction or theft of the Special Warrant Certificate so lost, destroyed
or stolen as is satisfactory to the Company and the Trustee in their sole
discretion. The Company or the Trustee may require such applicant to furnish an
indemnity or surety bond in amount and form satisfactory to the Company or the
Trustee in their sole discretion, and the applicant will pay the reasonable
charges of the Company and the Trustee in connection therewith.
Exchange of Special Warrants
----------------------------
A Special Warrantholder may at any time prior to the Exchange Time, by written
instruction delivered to the Trustee at the office set forth in Section 1.1,
exchange his Special Warrant Certificates for Special Warrant Certificates
evidencing Special Warrants in other denominations (in multiples of $100), in
which case the Trustee may make a charge sufficient to reimburse it for any
government fees or charges required to be paid and an additional reasonable
charge for every Special Warrant Certificate issued upon exchange. The Special
Warrantholder surrendering such Special Warrant Certificate will bear such fee
and charge. Payment of the charges is a condition precedent to the exchange of
the Special Warrant Certificate. The Company will sign and the Trustee will
countersign all Special Warrant Certificates necessary to carry out exchanges as
aforesaid.
Purchase of Special Warrants for Cancellation
---------------------------------------------
Subject to applicable law, the Company may, at any time or from time to time,
purchase all or any of the Special Warrants in the market, by private contract
or otherwise on such terms as the Company may determine.
Escrow Funds
------------
-12-
The Company hereby deposits with the Trustee, and the Trustee hereby
acknowledges receipt of, the Escrow Funds and the Trustee agrees to hold the
Escrow Funds in trust upon and subject to the following irrevocable
authorizations and instructions, and the Company hereby irrevocably authorizes
and instructs the Trustee as follows:
The Trustee will direct that the Escrow Funds promptly be
deposited by wire transfer in a separate bank account of the
Trustee with a bank (as such term is defined in section 3(a)6 of
the 1934 Act) located in the United States (the "U.S. Bank") as
trustee pending disbursement.
Pending disbursements of the Escrow Funds, the Trustee will cause
the Escrow Funds to be invested and reinvested in United States
Dollar short term interest bearing or discount obligations issued
by or guaranteed by the United States Government or a Schedule I
Canadian chartered bank, as determined by the Company from time
to time. Failing such determination by the Company, the Escrow
Funds will be invested or reinvested in thirty day treasury bills
issued by the United States Government (the "Qualified
Investments"). All Qualified Investments will, if registerable,
be registered in the name of the U.S. Bank, and if in bearer form
shall be physically held by the U.S. Bank or by its approved
custodian pending their realization and shall be retained by the
U.S. Bank or by its approved custodian in safekeeping to be held
in trust by the U.S. Bank on behalf of the persons who have an
interest therein pursuant to this Indenture.
If the Qualification Date occurs on or before the Qualification
Deadline and the Trustee receives confirmation from Chemical Bank
that it is ready, willing and able to deliver the Debentures
pursuant to section 5.2 or 5.3 herein, then the Trustee will, on
the first business day following the Exchange Date, realize on
the Qualified Investments and disburse the Escrow Funds and all
interest earned thereon to the Company.
If the Qualification Date does not occur on or before the
Qualification Deadline, then the Trustee will realize on the
Qualified Investments and disburse the Escrow Funds as follows:
upon receipt from any Special Warrantholder who elects to
have its Special Warrants retracted pursuant to Section 2.3
hereof of (A) a Cancellation Notice and (B) the certificate
or certificates for the Special Warrants tendered for
retraction and cancellation pursuant to such Cancellation
Notice in accordance with the terms of Section 2.3 hereof,
the amount that is required to be paid to such Special
Warrantholder;
upon the exercise by any Special Warrantholder of any
Special Warrants held by it, an amount equal to the purchase
price paid for such Special Warrants and interest accrued
thereon, to the Company; and
-13-
the balance, if any, remaining on the first business day
following the Exchange Date to the Company.
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE COMPANY
---------------------------------------------------------
The Company represents, warrants, covenants and agrees with the Trustee for the
benefit of the Trustee and the Special Warrantholders as follows:
To Issue Special Warrants and Reserve Debentures
------------------------------------------------
The Company is duly authorized to create and issue the Special Warrants and the
Special Warrants, when issued and countersigned by the Trustee, will be valid
and enforceable against the Company and, subject to the provisions of this
Indenture, the Company will cause the Debentures from time to time acquired
pursuant to the exercise of Special Warrants and the certificates representing
the Debentures, to be duly issued to the Special Warrantholders without payment
of additional consideration. At all times while any of the Special Warrants are
outstanding, the Company will reserve and allot under the Chemical Bank
Indenture an amount of Debentures sufficient to enable the Company to meet its
obligation to issue Debentures in respect of the exercise of all Special
Warrants. All Debentures acquired pursuant to the Special Warrants will be fully
paid and non-assessable.
To Execute Further Assurances
-----------------------------
The Company will do, execute, acknowledge and deliver or cause to be done,
executed, acknowledged and delivered, all other acts, deeds and assurances in
law as may reasonably be required for the better accomplishing and effecting of
the intentions and provisions of this Indenture.
-14-
To Carry On Business
--------------------
Subject to the express provisions hereof, the Company will carry on and conduct
and will cause to be carried on and conducted its business in the same manner as
heretofore carried on and conducted, except that the Company or any subsidiary
of the Company may cease to operate or may dispose of any business, premises,
property, assets or operation if in the opinion of the directors or officers of
the Company or any subsidiary of the Company, as the case may be, it would be
advisable and in the best interests of the Company or any subsidiary of the
Company to do so. Subject to the express provisions hereof, the Company will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, except that nothing herein contained prevents
the amalgamation, consolidation, merger, sale, winding-up or liquidation of the
Company or any subsidiary of the Company or the abandonment of any rights and
franchises of the Company or any subsidiary of the Company if, in the opinion of
the directors or officers of the Company or any subsidiary of the Company, as
the case may be, it is advisable and in the best interest of the Company or of
such subsidiary of the Company to do so.
Reporting Issuer
----------------
The Company is presently a reporting issuer under the 1934 Act.
Qualification and Registration Requirements
-------------------------------------------
The Company shall, as soon as practicable following the Closing
Date, file (or cause to be filed) the following documents:
a preliminary prospectus and (final) Prospectus in the
Designated Provinces qualifying the distribution of the
Debentures upon exercise of the Special Warrants;
the 1933 Registration Statement, and shall also file (or
cause to be filed) all required filings with state
securities or "blue sky" administrators in the states where
the holders of such Securities propose to offer and sell the
Securities (the "Blue Sky Filings"); and
the 1934 Registration Statement.
The Corporation will use its best efforts to
cause receipts to be issued by the securities commissions in
Ontario and British Columbia for the Prospectus; and
-15-
cause the 1933 Registration Statement and the 1934
Registration Statement to become effective
(collectively, the "Qualification and Registration Requirements")
on or before the Qualification Deadline.
If the Qualification and Registration Requirements are not met on
or before the Qualification Deadline, the Corporation will
continue to use its best efforts to cause the Qualification and
Registration Requirements to be met, unless all Special Warrants
have been redeemed and cancelled pursuant to section 2.3 hereof,
notwithstanding the change in the exercise ratio of Debentures to
Special Warrants pursuant to section 4.1 hereof.
Stock Exchange Listing
----------------------
The Company will cause the Special Warrants to be listed, posted and called for
trading on the Vancouver Stock Exchange as soon as possible following the
Closing Date but in any event not later than thirty (30) days from the Closing
Date.
Notice of Qualification and Registration Requirements to Trustee
----------------------------------------------------------------
and Underwriters
----------------
On the first business day following the Qualification Date the Company will give
prompt notice to the Trustee and the Underwriters thereof, together with such
documentation as is necessary to substantiate that the Qualification and
Registration Requirements have been met including confirmation from the
Company's counsel and counsel for the Underwriters.
Securities Qualification Requirements
-------------------------------------
If, in the opinion of the Company's counsel, any instrument is required to be
filed with or any permission is required to be obtained from any securities
regulatory authority or any other step is required under any federal or
provincial law in Canada or under any federal or state law in the United States,
before any securities or property which a Special Warrantholder is entitled to
receive pursuant to the exercise of a Special Warrant may properly and legally
be delivered upon the due exercise of a Special Warrant, the Company covenants
that it will use its best efforts to take all such action, at its expense, as is
required or appropriate in the circumstances.
-16-
ADJUSTMENTS
-----------
Adjustment of Amount of Debentures
----------------------------------
If the Qualification Date does not occur on or before the Qualification Deadline
as contemplated in Section 3.5 hereof, each $100 of Special Warrants (unless
previously exercised pursuant to Section 5.2 or cancelled pursuant to Section
2.3) shall entitle the Special Warrantholder to receive, upon exercise, $110
principal amount of Debentures.
Protection of Trustee
---------------------
The Trustee:
is not at any time under any duty or responsibility to a Special
Warrantholder to independently determine whether any facts exist
which require any adjustment contemplated by Section 4.1, or with
respect to the nature or extent of any such adjustment when made,
or with respect to the method employed in making the same;
is not responsible for any failure of the Company to make any
cash payment or to issue, transfer or deliver Debentures upon the
surrender of any Special Warrants for the purpose of the exercise
of such rights; and
will not incur any liability or responsibility whatever or be in
any way responsible for the consequence of any breach on the part
of the Company of any of the representations, warranties or
covenants herein contained or of any acts of the agents or
servants of the Company.
EXERCISE OF SPECIAL WARRANTS
----------------------------
Notice of Registration and Qualification Requirements to Special
----------------------------------------------------------------
Warrantholders
--------------
Upon receipt of a written notice pursuant to Section 3.7, the Trustee will
forthwith give notice to the Special Warrantholders, which notice must include a
statement that any Special Warrants not exercised prior to the Exchange Time
will be deemed by the Company and the Trustee to be exercised pursuant to
Section 5.3.
-17-
Voluntary Exercise of Special Warrants
--------------------------------------
A Special Warrantholder may, at any time before the Exchange Time, exercise all
or any number of the Special Warrants held, by surrendering to the Trustee the
Special Warrant Certificate or certificates representing the number of Special
Warrants to be exercised, together with a duly completed and executed exercise
form(s) in the form attached to the Special Warrant Certificate(s). Voluntary
exercise, at a time when the Company has not received a final receipt for the
Prospectus from all the applicable securities regulatory authorities in the
Designated Provinces, is subject to compliance with and may be restricted by the
securities laws of the Designated Provinces and is further subject to the
Special Warrantholders providing such assurances and executing such documents as
may, in the reasonable opinion of the Company or the Trustee, be required to
ensure compliance with applicable securities legislation. If, at the time of the
exercise of the Special Warrants, there remain restrictions on resale under
applicable securities legislation on the Debentures so acquired, the Company,
may, if required on the advice of its counsel, endorse the certificates
representing the Debentures with respect to those restrictions. Upon the
exercise of Special Warrants pursuant to this Section 5.2, the Trustee will
promptly notify Chemical Bank and the Company of such exercise including the
principal amount of Debentures and registration and delivery particulars of
Debenture certificates issuable thereunder, such notice to be provided in a
format agreed upon between the Trustee, Chemical Bank, and the Company.
Deemed Exercise of Special Warrants
-----------------------------------
Any Special Warrants not exercised by the Special Warrantholder pursuant to
Section 5.2 or cancelled pursuant to Section 2.3 prior to the Exchange Time will
be deemed to have been exercised immediately prior to the Exchange Time and
surrendered by the Special Warrantholders without any further action on the part
of the Special Warrantholder. In that event, the Trustee will promptly notify
Chemical Bank and the Company of such exercise including the principal amount of
Debentures and registration and delivery particulars of Debenture certificates
issuable thereunder, such notice to be provided in a format agreed upon between
the Trustee, Chemical Bank. and the Company.
Effect of Exercise of Special Warrants
--------------------------------------
Upon exercise of the Special Warrants as provided in either Section 5.2 or 5.3,
the Debentures, in respect of which the Special Warrants are exercised are
deemed to have been issued, at which time each Special Warrantholder is deemed
to have become the holder or holders of record of such Debentures.
-18-
Special Warrants Void After Exchange Time
-----------------------------------------
After the full exercise of a Special Warrant as provided in either Section 5.2
or 5.3, the holder of a Special Warrant Certificate representing the Special
Warrant so exercised no longer has any rights either under this Indenture or the
Special Warrant Certificate, other than the right to receive certificates
representing Debentures, and the Special Warrant is void and of no value or
effect.
Fractions of Debentures
-----------------------
Where a Special Warrantholder is entitled to receive, as a result
of the adjustments provided for in Section 4.1 or otherwise, on
the exercise or partial exercise of its Special Warrants a
fraction of a Debenture, such right may only be exercised in
respect of such fraction in combination with another Special
Warrant or other Special Warrants which in the aggregate entitle
the Special Warrantholder to receive a whole number of Debentures
(in $100 multiples).
If a Special Warrantholder is not able to, or elects not to,
combine Special Warrants so as to be entitled to acquire a whole
number of Debentures, the Special Warrantholder may not exercise
the right to acquire a fractional Debenture and, as a result, has
the right to acquire only that number of Debentures equal to the
next lowest whole number of Debentures (in $100 multiples).
Accounting and Recording
------------------------
The Trustee will promptly notify the Company and Chemical Bank with respect to
Special Warrants exercised or surrendered for cancellation. The Trustee will
record the particulars of the Special Warrants exercised and surrendered for
cancellation which include the name or names and addresses of the person who
become holders of Debentures on exercise pursuant to this Article 5 and the
amount of Debentures to be issued. Within two (2) business days of the exercise
of each Special Warrant pursuant to either Section 5.2 or 5.3, the Trustee will
provide those particulars in writing to the Company and Chemical Bank.
MEETINGS OF SPECIAL WARRANTHOLDERS
----------------------------------
Definitions
-----------
In this Article 6 or otherwise in this Indenture:
"Adjourned Meeting" means a meeting adjourned in accordance with
Section 6.8;
-19-
"Extraordinary Resolution" means a resolution passed as an
extraordinary resolution at a Meeting duly convened and held in
accordance with the provisions of this Article 6, and carried by
not less than 2/3 of the votes cast on such resolution; and
"Meeting" means a meeting of the Special Warrantholders.
Convening Meetings
------------------
The Trustee or the Company may convene a Meeting at any time at the expense of
the Company. Upon receipt of a written requisition signed by Special
Warrantholders holding not less than 25% of the Special Warrants outstanding,
the Trustee or the Company will convene a Meeting, provided that adequate
provision has been made by the Company or the Special Warrantholders for the
costs of convening and holding a Meeting. If the Trustee or the Company fails to
convene the Meeting within 15 business days after being duly requisitioned to do
so, the Special Warrantholders holding not less than 25% of the Special Warrants
outstanding may themselves convene a Meeting the notice for which must be signed
by a person that those Special Warrantholders specify, provided that the Trustee
and Company receive notice of the Meeting in accordance with Section 6.4. A
written requisition must state, generally, the reason for the Meeting and
business to be transacted at the Meeting.
Place of Meeting
----------------
Every Meeting must be held in Vancouver, British Columbia or at such other place
that the Trustee and Company approve.
Notice
------
The Trustee will give written notice of each Meeting to each Special
Warrantholder at the expense of the Company in the manner specified in Article 9
at least 25 days before the date of the Meeting. The Trustee will give written
notice of each Adjourned Meeting to each Special Warrantholder in the manner
specified in Article 9 at least 12 hours before the date of the Adjourned
Meeting. The notice for a Meeting must state the time and place of the Meeting
and, generally, the reason for the Meeting and the business to be transacted at
the Meeting. The notice for an Adjourned Meeting must state the time and place
of the Adjourned Meeting but need not specify the business to be transacted at
an Adjourned Meeting. The accidental omission by the Trustee to give notice of a
Meeting or an Adjourned Meeting to a Special Warrantholder does not invalidate a
resolution passed at a Meeting or Adjourned Meeting.
-20-
Persons Entitled to Attend
--------------------------
The Company may and the Trustee will, each by its authorized representatives,
attend every Meeting and Adjourned Meeting but neither the Company nor the
Trustee has the right to vote. The legal advisors of the Company, Trustee, and
any Special Warrantholders, respectively, may also attend a Meeting or Adjourned
Meeting and may address such Meeting but do not have the right to vote.
Quorum
------
A quorum for a Meeting of the Special Warrantholders consists of two or more
persons present in person and owning or representing by proxy not less than 25%
of the Special Warrants then outstanding.
Chairman
--------
The Trustee will nominate a natural person as the chairman of a Meeting or
Adjourned Meeting. If the person so nominated is not present within 25 minutes
after the time set for holding the Meeting or Adjourned Meeting, the Special
Warrantholders and proxies for Special Warrantholders present will choose one of
their number to be chairman.
Adjourned Meeting
-----------------
If a quorum of the Special Warrantholders is not present within 30 minutes after
the time fixed for holding a Meeting, the Meeting stands adjourned to a date not
less than 10 calendar days and not more than 30 calendar days later, at a place
determined in accordance with Section 6.3, and at a time specified by the
chairman. The Trustee will promptly and in accordance with Section 6.4 send a
notice of the Adjourned Meeting to each Special Warrantholder. At an Adjourned
Meeting, two or more Special Warrantholders or persons representing Special
Warrantholders by proxy constitutes a quorum for the transaction of business for
which the Meeting was convened.
Show of Hands
-------------
Subject to a poll and except as otherwise required herein, every question
submitted to a Meeting or Adjourned Meeting is decided, in the first instance,
by the majority of votes in a show of hands. If the vote is tied, the chairman
does not have a casting vote and the motion is not carried.
-21-
Poll
----
When requested by a Special Warrantholder acting in person or by the proxy
representing the Special Warrantholder, the chairman of a Meeting or Adjourned
Meeting will request a poll on a question submitted to the meeting. Except as
otherwise required herein, if a question has been put to a poll, that question
is decided by the affirmative vote of not less than a majority of the votes
given on the poll. If the vote is tied, the motion is not carried. On a poll,
each Special Warrantholder is entitled to one vote for every Special Warrant
then outstanding and of which he is the registered holder. A declaration made by
the chairman that a resolution has been carried or lost is conclusive evidence
thereof. In the case of joint registered Special Warrantholders, any one of them
present in person or represented by proxy may vote in the absence of the other
or others but when more than one of them is present in person or by proxy, they
may only vote together in respect of the Special Warrants of which they are
joint registered holders.
Regulations
-----------
Subject to the provisions of this Indenture, the Trustee, or the Company with
the approval of the Trustee, may from time to time make and, thereafter, vary
regulations not contrary to the provisions of this Indenture as it deems fit
providing for and governing the following:
setting a record date for a Meeting for determining Special
Warrantholders entitled to receive notice of and vote at a
Meeting;
voting by proxy, the form of instrument appointing a proxy, the
manner in which a proxy instrument must be executed, and the
production of the authority of any person signing an instrument
of a proxy on behalf of a Special Warrantholder;
lodging and the means of forwarding the instruments appointing
proxies, and the time before a Meeting or Adjourned Meeting by
which an instrument appointing a proxy must be deposited; and
any other matter relating to the conduct of a meeting of Special
Warrantholders.
A regulation so made is binding and effective and votes given in accordance with
such a regulation are valid. The Trustee may permit Special Warrantholders to
make proof of ownership in the manner the Trustee approves.
Powers of Special Warrantholders
--------------------------------
By Extraordinary Resolution passed pursuant to this Article 6 by
not less than a 2/3 majority of the votes cast in respect thereof, the Special
Warrantholders may:
-22-
agree to any modification, abrogation, alteration, compromise, or
arrangement of the rights of the Special Warrantholders whether
arising under this Indenture, or otherwise at law, including the
rights of the Trustee in its capacity as trustee hereunder or on
behalf of the Special Warrantholders against the Company, which
has been agreed to by the Company;
direct and authorize the Trustee to exercise any discretion,
power, right, remedy or authority given to it by or under this
Indenture in the manner specified in such resolution or to
refrain from exercising any such discretion, power, right,
remedy, or authority;
direct the Trustee to enforce any covenant on the part of the
Company contained in this Indenture or to waive any default by
the Company in compliance with any provisions of this Indenture
either unconditionally or upon any conditions specified in such
resolution;
assent to any change in or omission from the provisions contained
in this Indenture or the Special Warrant Certificates or any
ancillary or supplemental instrument which is agreed to by the
Company, and to authorize the Trustee to concur in and execute
any ancillary or supplemental indenture embodying the change or
omission;
with the consent of the Company, remove the Trustee or its
successor in office and to appoint a new registrar and trustee to
take the place of the Trustee so removed;
upon the Trustee being furnished with an indemnity that is, in
its discretion, sufficient, require the Trustee to enforce any
covenant of the Company contained in this Indenture or the
Special Warrant Certificates, or to enforce any right of the
Special Warrantholders in any manner specified in such
Extraordinary Resolution, or to refrain from enforcing any such
covenant or right;
restrain any Special Warrantholder from instituting or continuing
any suit or proceeding against the Company for the enforcement of
a covenant on the part of the Company contained in this Indenture
or any of the rights conferred upon the Special Warrantholders as
set out in this Indenture or the Special Warrant Certificates;
direct a Special Warrantholder who, as such, has brought a suit,
action or proceeding to stay or discontinue or otherwise deal
with the same upon payment of the costs, charges, and expenses
reasonably and properly incurred by such Special Warrantholder in
connection therewith;
waive and direct the Trustee to waive a default by the Company in
complying with any of the provisions of this Indenture or the
Special Warrant Certificate either unconditionally or upon any
conditions specified in such Extraordinary Resolution;
-23-
assent to a compromise or arrangement with a creditor or
creditors or a class or classes of creditors, whether secured or
otherwise, and with holders of any shares or other securities of
the Company;
direct the Trustee to release (or cause to be released) up to 50%
of the Escrow Funds to the Company prior to the Qualification
Date; or
amend, alter, or repeal any resolution previously passed pursuant
to this Section 6.12.
An Extraordinary Resolution of the Special Warrantholders is
binding upon all the Special Warrantholders whether present or not present at
the Meeting or Adjourned Meeting at which the Extraordinary Resolution was
passed or whether or not assented to in writing, and each Special Warrantholder,
the Trustee and the Company will give effect to the Extraordinary Resolution to
the extent that the Extraordinary Resolution applies to such party.
Minutes of Meetings
-------------------
The Trustee will make and maintain minutes and records of all resolutions and
proceedings at a Meeting or Adjourned Meeting and will make available those
minutes and records at the office of the Trustee for inspection by a Special
Warrantholder or his authorized representative at reasonable times. If signed by
the chairman of the Meeting or by the chairman of the next succeeding Meeting of
the Special Warrantholders, such minutes will be prima facie evidence of the
matters therein stated.
Written Resolutions
-------------------
Notwithstanding the foregoing, a written resolution or instrument signed in one
or more counterparts by the Special Warrantholders holding not less than a
majority of the Special Warrants outstanding in the case of a resolution, or not
less than 2/3 of the Special Warrants outstanding in the case of an
Extraordinary Resolution, is deemed to be the same as, and to have the same
force and effect as, a resolution or Extraordinary Resolution, as the case may
be, duly passed at a Meeting or Adjourned Meeting.
Binding Effect
--------------
A resolution of the Special Warrantholders passed pursuant to this Article 6 is
binding upon all Special Warrantholders. Upon the passing of a Special
Warrantholder's resolution at a meeting of the Special Warrantholders, or upon
the signing of a written resolution or instrument pursuant to Section 6.14 and
delivery by the Company to the Trustee of an original, certified or notarial
copy, or copies, of such resolution as executed or passed by the Special
Warrantholders, the Trustee is entitled to and will give effect thereto.
-24-
SUPPLEMENTAL INDENTURES, MERGER, SUCCESSORS
-------------------------------------------
Provision for Supplemental Indentures for Certain Purposes
----------------------------------------------------------
From time to time the Company will, when authorized by the directors of the
Company, and the Trustee may, subject to the provisions of this Indenture,
execute and deliver by their proper offices, deeds, indentures or instruments
supplemental hereto, which thereafter form part hereof for any one or more or
all of the following purposes:
adding to the provisions hereof such additional covenants,
enforcement provisions, and release provisions (if any) as in the
opinion of counsel acceptable to the Company and counsel for the
Trustee are necessary or advisable, provided the same are not, in
the opinion of counsel for the Trustee prejudicial to the
interests of the Special Warrantholders;
adding to the covenants of the Company in this Indenture for the
protection of the Special Warrantholders;
evidencing any succession, (or successive successions), of other
companies to the Company and the covenants of, and obligations
assumed by, such successor (or successors) in accordance with the
provisions of this Indenture;
making such provisions not inconsistent with this Indenture as
may be deemed necessary or desirable with respect to matters or
questions arising hereunder;
giving effect to an Extraordinary Resolution;
to rectify any ambiguity, defective provision, clerical omission
or mistake or manifest or other error contained herein or in any
deed or indenture supplemental or ancillary hereto provided that,
in the opinion of the Trustee, the rights of the Special
Warrantholder are not prejudiced thereby;
adding to or altering the provisions hereof in respect of the
transfer of Special Warrants, making provision for the exchange
of Special Warrant Certificates of different denominations, and
making any modification in the form of the Special Warrant
Certificate which does not affect the substance thereof; or
for any other purpose not inconsistent with the provisions of
this Indenture.
-25-
Company May Consolidate, etc. on Certain Terms
----------------------------------------------
Nothing in this Indenture prevents any consolidation, amalgamation or merger of
the Company with or into any other body corporate or bodies corporate, or a
conveyance or transfer of all or substantially all the properties and assets of
the Company as an entirety to any body corporate lawfully entitled to acquire
and operate the same, provided, however, that the body corporate formed by such
consolidation or amalgamation or into which such merger has been made, or which
has acquired by conveyance or transfer all or substantially all the properties
and assets of the Company as an entirety in circumstances resulting in the
Special Warrantholders being entitled to receive property from or securities of
such body corporate, will execute prior to or contemporaneously with such
consolidation, amalgamation, merger, conveyance or transfer, an indenture
supplemental hereto, satisfactory in form to the Trustee, wherein the due and
punctual performance and observance of all the covenants and conditions of this
Indenture to be performed or observed by the Company are assumed by the
successor body corporate. The Trustee is entitled to receive and is fully
protected in relying upon an opinion of counsel that any such consolidation,
amalgamation, merger, conveyance or transfer, and a supplemental indenture
executed in connection therewith, complies with the provisions of this Section.
Successor Body Corporate Substituted
------------------------------------
Where the Company, pursuant to Section 7.2 hereof, is consolidated, amalgamated
or merged with or into any other body corporate or bodies corporate or conveys
or transfers all or substantially all of the properties and assets of the
Company as an entirety to another body corporate, the successor body corporate
formed by such consolidation or amalgamation or into which the Company has been
merged or which has received a conveyance or transfer as aforesaid succeeds to
and is substituted for the Company hereunder with the same effect as nearly as
may be possible as if it had been named herein. Such changes may be made in the
Special Warrants as may be appropriate in view of such consolidation,
amalgamation, merger, conveyance or transfer.
CONCERNING THE TRUSTEE
----------------------
Duties of Trustee
-----------------
By way of supplement to the provisions of any statute for the time being
relating to trustees, and notwithstanding any other provision of this Indenture,
in the exercise of the rights, duties and obligations prescribed or conferred by
the terms of this Indenture, the Trustee will exercise that degree of care,
diligence and skill that a reasonably prudent trustee would exercise in
comparable circumstances. Provided that the Trustee has exercised such standard
of care, diligence and skill, and in the absence of wilful neglect, gross
negligence or fraud, the Company will indemnify and save harmless the Trustee
from all loss, costs or damages it may suffer in administering the trusts of
this Indenture.
-26-
Action by Trustee
-----------------
The Trustee is not obligated to do any act or thing except where required to do
so by this Indenture and, in the case of a default, only when it has actual
notice thereof.
Certificate of the Company
--------------------------
If in the administration of the trusts of this Indenture, the Trustee deems it
necessary or desirable that any matter be proved or established by the Company,
prior to taking or suffering any action hereunder, the Trustee may accept and
rely on a written order, request, consent, certificate or other document signed
in the name of the Company by any one of the Chairman of the Board, the Vice-
Chairman of the Board, the President, a Vice-President, or Treasurer of the
Company and may consist of one or more instruments so executed, as conclusive
evidence of the truth of any fact relating to the Company or its assets therein
stated and proof of the regularity of any proceedings or actions associated
therewith, but the Trustee may in its discretion require further evidence or
information before acting or relying on any such order, request, consent,
certificate or other document.
Trustee May Employ Experts or Agents
------------------------------------
The Trustee may, at the Company's expense, employ or retain such lawyers,
accountants, engineers, appraisers or other experts, advisers or agents as it
may reasonably require for the purpose of discharging its duties hereunder and
may pay reasonable remuneration for such services rendered to it but it is not
responsible for any misconduct, mistake or error of judgment on the part of any
of them. The Company will reimburse the Trustee for all disbursements, costs and
expenses made or incurred by the Trustee in the discharge of its duties and in
the management of the trusts hereunder. The Trustee may rely upon the Company
and act upon the opinion or advice of, or information obtained from, any such
lawyer, accountant, engineer, appraiser or other expert, adviser or agent in
relation to any matter arising in the administration of the trusts hereof. The
Trustee will not incur any liability for the acts or omissions of such lawyers,
accountants, engineers, appraisers or other experts, advisers or agents employed
by the Trustee in good faith.
-27-
Resignation and Replacement of Trustee
--------------------------------------
The Trustee may resign its trust and be discharged from all
further obligations hereunder by giving to the Company written
notice at least 90 days before the effective date of the
resignation. If the Trustee resigns, or becomes incapable of
acting hereunder, the Company will forthwith appoint in writing a
new trustee. Failing such appointment by the Company, the
retiring Trustee or any Special Warrantholder may apply to a
Judge of the Supreme Court of British Columbia on such notice as
such Judge may direct, for the appointment of a new trustee. The
Special Warrantholders may, by Extraordinary Resolution, remove
the Trustee (including a trustee appointed by the Company or by a
Judge as aforesaid) and appoint a new trustee. On any new
appointment, the new trustee is vested with the same powers,
rights, duties and obligations as if it had been originally named
as Trustee without any further assurance, conveyance, act or
deed. If for any reason it becomes necessary or expedient to
execute any further deed or assurance, the former Trustee will
execute the same in favour of the new trustee.
Any company resulting from a merger, consolidation or
amalgamation to which the Trustee for the time being is a party
is to be the successor Trustee under this Indenture without any
further act.
Indenture Legislation
---------------------
The Company and the Trustee agree that each will at all times in relating to
this indenture and to any action to be taken hereunder, observe and comply with
and be entitled to the benefits of all Applicable Legislation. If and to the
extent that any provision of this indenture limits, qualifies or conflicts with
any mandatory requirement of Applicable Legislation, such mandatory requirement
prevails.
Notice
------
The Trustee is not required to give notice to third parties, including the
Special Warrantholders, of the execution of this Indenture.
Use of Proceeds
---------------
The Trustee is in no way responsible for the use by the Company of the proceeds
of the Private Placement.
-28-
No Inquiries
------------
Prior to the countersignature and delivery of any Special Warrant Certificates
under any provisions of this Indenture, the Trustee is not bound to make any
inquiry or investigation as to the correctness of the matters set out in any of
the resolutions, opinions, certificates or other documents required by the
provisions of this Indenture, but is entitled to accept and act upon the
resolutions, opinions, certificates or other documents. The Trustee may
nevertheless, in its discretion, require further proof in cases where it deems
further proof desirable. The Trustee is not bound to make any inquiry or
investigation as to the performance by the Company of the Company's covenants
hereunder.
Trustee Not Required to Give Security
-------------------------------------
The Trustee is not required to give any bonds or security with respect to the
execution or administration of the trusts and powers of this Indenture.
No Conflict of Interest
-----------------------
The Trustee represents to the Company that, at the date of execution and
delivery by it of this Indenture, there exists no material conflict of interest
in the role of the Trustee as a fiduciary hereunder but if, notwithstanding the
provisions of this Section 8.11, such a material conflict of interest exists,
the validity and enforceability of this Indenture and the instruments issued
hereunder is not affected in any manner whatsoever by reason only that such
material conflict of interest exists or arises. The Trustee will, within 90 days
after ascertaining that it has a material conflict of interest, either eliminate
such material conflict of interest or resign in the manner and with the effect
specified in Section 8.5.
Trustee Not Ordinarily Bound
----------------------------
The Trustee is not obligated to spend its own funds in connection with the
commencement or continued exercise of its duties hereunder. The obligation of
the Trustee to commence or continue any act or action is conditional upon
Special Warrantholders furnishing, when required in writing so to do by the
Trustee, funds sufficient for commencing or continuing the act, action or
proceeding and an indemnity reasonably satisfactory to the Trustee to protect
and hold harmless the Trustee against any loss, damage or liability by reason
thereof.
-29-
Trustee May Deal in Instruments
-------------------------------
The Trustee may in its personal or other capacity, buy, sell, lend upon and deal
in and hold securities of the Company and generally contract and enter into
financial transactions with the Company or otherwise, without being liable to
account for any profits made thereby.
Recitals or Statements of Fact Made by Company
----------------------------------------------
Subject to the provisions hereof, the Trustee is not liable for or by reason of
any of the statements of fact or recitals contained in this Indenture or in the
Special Warrant Certificates and is not required to verify the same but all such
statements and recitals are and are deemed to have been made by the Company
only.
Trustee's Discretion Absolute
-----------------------------
The Trustee, except as herein otherwise provided, has, as regards all the
trusts, powers, authorities and discretion vested in it, absolute and
uncontrolled discretion as to the exercise thereof, whether in relation to the
manner or as to the mode and time for the exercise thereof.
No Representations as to Validity
---------------------------------
The Trustee is not:
under any responsibility in respect of the validity of this
Indenture or the execution and delivery thereof or in respect of
the validity or the execution of any Special Warrant issued
hereunder;
responsible for any breach by the Company of any covenant or
condition contained in this Indenture or in any such Special
Warrant Certificate; or
by any act hereunder, deemed to make any representation or
warranty as to the authorization or reservation of any Debentures
to be issued as provided in this Indenture or in any Special
Warrant Certificate or as to whether any Debentures or Granges
Shares will when issued be duly authorized or be validly issued
and fully paid and non-assessable. The duty and responsibility as
to all the matters and things referred to in this Section 8.16
rests upon the Company and not upon the Trustee and the failure
of the Company to discharge any such duty and responsibility does
not in any way render the Trustee liable or place upon it any
duty or responsibility for breach of which it would be liable.
-31-
Acceptance of Trusts
--------------------
The Trustee hereby accepts the trusts of this Indenture and agrees to perform
the same upon the terms and conditions herein set forth or referred to unless
and until discharged therefrom by resignation or in some other lawful way.
Trustee's Authority to Carry on Business
----------------------------------------
The Trustee represents to the Company that at the date hereof it is authorized
to carry on the business of a trust company in the Province of British Columbia.
If, notwithstanding the provisions of this Section 8.18, it ceases to be
authorized to carry on such business in the Province of British Columbia, the
validity and enforceability of this Indenture and of the Special Warrants issued
hereunder are not affected in any manner whatsoever by reason only of such
event, provided that the Trustee will, within 30 days after ceasing to be
authorized to carry on such business in such Province, either becomes so
authorized or resigns in the manner and with the effects specified in Section
8.5.
Disagreement
------------
In the event of any disagreement between any of the parties to this Agreement,
or between them or either of them and any other person, resulting in demands or
adverse claims being made in connection with or for any asset involved herein or
affected hereby, the Trustee shall be entitled, at its discretion, to refuse to
comply with any demands or claims on it, as long as such disagreement shall
continue, and in so refusing the Trustee may make no delivery or other
disposition of any asset involved herein or affected hereby, and in so doing the
Trustee shall not be or become liable in any way or to any person or party or
for its failure or refusal to comply with such conflicting demands or adverse
claims, and it shall be entitled to continue so to refrain from acting and so to
refuse to act until the right of person or party shall have been finally
adjudicated in a court assuming and having jurisdiction on the asset involved
herein or affected hereby, or all differences shall have been adjusted by
agreement and the Trustee shall have been notified in writing signed by all
persons and parties interested.
Indemnity
---------
-32-
Without limiting any protection or indemnity of the Trustee under any other
provision hereof, or otherwise at law, every party to this Agreement hereby
agrees to jointly and severally indemnify and hold harmless the Trustee from and
against any and all liabilities, losses, damages, penalties, claims, actions,
suits, costs, expenses and disbursements, including reasonable legal or advisor
fees and disbursements, of whatever kind and nature which may at any time be
imposed on, incurred by or asserted against the Trustee in connection with the
performance of its duties and obligations hereunder, other than such labilities,
losses, damages, penalties, claims, actions, suits, costs, expenses and
disbursements arising by reason of the gross negligence or fraud of the Trustee.
This provision shall survive the resignation or removal of the Trustee, or the
termination of the Indenture. The Trustee shall not be under any obligation to
prosecute or to defend any action or suit in respect of the relationship which,
in the opinion of its counsel, may involve it in expense or liability, unless
the party hereto shall, so often as required, furnish the Trustee with
satisfactory indemnity and funding against such expense or liability.
NOTICES
-------
Notice to Company, Trustee and Underwriters
-------------------------------------------
Any notice to the Company, Trustee or Underwriters under the provisions of this
Indenture is valid and effective if in writing delivered or sent by telecopier:
to the Corporation:
Atlas Corporation
Suite 3150, 370 Seventeenth Street, Denver, Colorado, U.S.A.,
80202
Attention: David J. Birkenshaw, CEO
Telefax: (303) 892 - 8808
with a copy to:
Coudert Brothers
1114 Avenue of the Americas, New York, New York, U.S.A.,
10036-7703
Attention: Jeffrey E. Cohen
Telefax: (212) 626 - 4120
- and to -
Lang Michener
Suite 2500, 181 Bay Street, Toronto, Ontario, M5J 2T7
Attention: David Knight
Telefax: (416) 365 - 1719
-33-
to the Underwriters:
Yorkton Securities Inc.
10th floor, 1055 Dunsmuir Street, Vancouver, British Columbia,
V7X 1L4
Attention: Gordon Keep, Telefax: (604) 640 - 0512
- and to -
First Marathon Securities Limited
Exchange Tower, Box 21, 2 First Canadian Place, Toronto,
Ontario, M5X 1J9
Attention: Richard S. Hallisey, Telefax (416) 869 - 8013
with a copy to:
Sobolewski Anfield
Suite 1600, 609 Granville Street, Vancouver, British Columbia,
V7Y 1C3
Attention: Jay Sujir
Telefax: (604) 669 - 3877
- and to -
Miller & Holguin
Seventh Floor, 1801 Century Park East, Los Angeles, California,
U.S.A., 90067
Attention: J. Brad Wiggins
Telefax: (310) 557 - 2205
to the Trustee at:
3rd floor, 510 Burrard Street, Vancouver, British Columbia,
V6C 3B9
Attention: The Manager, Corporate Trust Department
Telecopier: (604) 669 - 1548
and is deemed to have been effectively given on the date of delivery if
delivered if that date is a business day or the business day following the date
of delivery, if such date is not a business day, and on the date of sending if
sent by telecopier if that date is a business day or the business day following
the date of delivery, if such date is not a business day.
-34-
Notice to Special Warrantholders
--------------------------------
Any notice to the Special Warrantholders under the provisions of this Indenture
is valid and effective if delivered or sent by telecopier to each Special
Warrantholder at its address appearing on the register of Special Warrants kept
by the Trustee or, in the case of joint holders, to the first such address, and
is deemed to have been effectively given on the date of delivery, if delivered,
if that date is a business day or the business day following the date of
delivery, if such date is not a business day, and on the date of sending if sent
by telecopier if that date is a business day or the business day following the
date of delivery, if such date is not a business day.
POWER OF BOARD OF DIRECTORS
---------------------------
Board of Directors
------------------
In this Indenture, where the Company is required or empowered to exercise any
acts, all such acts may be exercised by the directors of the Company, by any
duly appointed committee of the directors of the Company or by those officers of
the Company authorized to exercise such acts.
MISCELLANEOUS PROVISIONS
------------------------
Further Assurances
------------------
The parties covenant and agree from time to time, as may be reasonably required
by any party hereto, to execute and deliver such further and other documents and
do all matters and things which are convenient or necessary to carry out the
intention of this Indenture more effectively and completely.
Unenforceable Terms
-------------------
If any term, covenant or condition of this Indenture or the application thereof
to any party or circumstance is invalid or unenforceable to any extent, the
remainder of this Indenture or application of such term, covenant or condition
to a party or circumstance other than those to which it is held invalid or
unenforceable is not affected thereby and each remaining term, covenant or
condition of this Indenture is valid and enforceable to the fullest extent
permitted by law.
-35-
No Waiver
---------
No consent or waiver, express or implied, by either party to or of any breach or
default by the other party in the performance by the other party of its
obligations hereunder is deemed or construed to be a consent or waiver to or of
any other breach or default in the performance of obligations hereunder by such
party. Failure on the part of either party to complain of any act or failure to
act of the other party or to declare the other party in default, irrespective of
how long such failure continues, does not constitute a waiver by such party of
its rights hereunder.
Suits By Special Warrantholders
-------------------------------
No Special Warrantholder has any right to institute any action,
suit or proceeding at law or in equity for the purpose of
enforcing the execution of any trust or power hereunder or for
the appointment of a liquidator or receiver or for a receiving
order under the Bankruptcy Act (Canada) or to have the Company
--------------
wound up or to file or prove a claim in any liquidation or
bankruptcy proceedings or for any other remedy hereunder unless
the Special Warrantholders by Extraordinary Resolution (which
Resolution has not been countermanded or superseded by a
subsequent Extraordinary Resolution) have made a request to the
Trustee and the Trustee has been afforded reasonable opportunity
to proceed or complete any action or suit for any such purpose
whether or not in its own name and the Special Warrantholders or
any or them have furnished to the Trustee, when so requested by
the Trustee sufficient funds and security and indemnity
satisfactory to it against the costs, expenses and liabilities to
be incurred therein or thereby and the Trustee has failed to act
within a reasonable time or the Trustee has failed to actively
pursue any such act or proceeding.
Subject to the provisions of this Section and otherwise in
this Indenture, all or any of the rights conferred upon a
Special Warrantholder by the terms of a Special Warrant may
be enforced by such Special Warrantholder by appropriate
legal proceedings without prejudice to the right which is
hereby conferred upon the Trustee to proceed in its own name
to enforce each and all of the provisions herein contained
for the benefit of the Special Warrantholders from time to
time.
Enurement
---------
This Indenture enures to the benefit of and is binding upon the
parties hereto and their respective successors and assigns.
A - 36
Formal Date and Effective Date
------------------------------
For the purpose of convenience this Indenture is referred to as
bearing the formal date of November 9, 1995, however notwithstanding
such formal date, this Indenture becomes effective as between the
Company and any particular Special Warrantholder upon the date of
issuance of a Special Warrant Certificate to such Special
Warrantholder.
ATLAS CORPORATION
Per: /s/ GERALD E. DAVIS
------------------------------------------
THE MONTREAL TRUST COMPANY OF CANADA
Per:___________________________________________
Per:___________________________________________
A - 37
This Special Warrant was originally issued (i) in the United States
and to U.S. Persons in reliance upon an exemption from the
registration requirements of the U.S. Securities Act of 1933, as
amended (the "1933 Act"), for offers and sales of securities which do
not involve any public offering, and analogous exemptions under state
securities laws and (ii) outside the United States to persons other
than U.S. Persons in accordance with the requirements of Regulation S
under the 1933 Act. This Special Warrant, the Debentures issuable upon
exercise hereof, and the shares of common stock of Granges Inc. into
which such Debentures may be exchanged have not been registered under
the 1933 Act or the securities laws of any of the states of the United
States, and may not be offered or sold in the United States or to U.S.
Persons (as such term is defined in Regulation S under the 1933 Act),
and Special Warrants and Debentures issued outside the United States
to non-U.S. Persons in reliance upon Regulation S may not be exercised
or exchanged by or on behalf of a U.S. Person, unless the securities
are registered under the 1933 Act or an exemption from such
registration is available.
SPECIAL DEBENTURE WARRANT
CERTIFICATE
ATLAS CORPORATION
(Incorporated pursuant to the laws of Delaware)
=========================================================================================
US $ .
SPECIAL DEBENTURE SPECIAL DEBENTURE WARRANTS
WARRANT ("SPECIAL WARRANTS"), EACH SPECIAL WARRANT
CERTIFICATE NO. ENTITLING THE HOLDER TO ACQUIRE US $100 PRINCIPAL
AMOUNT OF EXCHANGEABLE DEBENTURES ("DEBENTURES")
OF THE COMPANY
=========================================================================================
THE SPECIAL WARRANTS ARE EXERCISABLE ON OR BEFORE 5:00 P.M. (VANCOUVER
TIME) ON THE DATE (THE "EXPIRY DATE") WHICH IS THE EARLIER OF:
THE FIFTH BUSINESS DAY FOLLOWING THE DATE (THE "QUALIFICATION
DATE") UPON WHICH ALL QUALIFICATION AND REGISTRATION REQUIREMENTS
(AS HEREINAFTER DEFINED) HAVE BEEN MET; AND
NOVEMBER ., 1996
A - 38
(HEREINAFTER REFERRED TO AS THE "EXCHANGE TIME").
THE SPECIAL WARRANTS REPRESENTED HEREBY WILL BE VOID AFTER 5:00 P.M.
(VANCOUVER TIME) ON THE EXPIRY DATE.
THIS IS TO CERTIFY THAT, FOR VALUE RECEIVED,
__________________________________
______________________________________________________________________
________ of
______________________________________________________________________
__________
______________________________________________________________________
__________ (herein called the "Special Warrantholder") is the
registered holder of the dollar amount of special debenture warrants
(the "Special Warrants") stated above and is entitled to be issued, in
the manner and at the time and subject to the restrictions contained
in the Indenture hereinafter referred to, the amount of Debentures of
Atlas Corporation (the "Company") as is equal to the amount of Special
Warrants represented hereby (subject to adjustment as set out in the
Indenture), all without payment of any consideration in addition to
that paid for the Special Warrants represented hereby.
The Special Warrants represented by this certificate are issued under
and pursuant to a certain indenture (herein called the "Indenture")
made as of November 9, 1995 between the Company and the Montreal Trust
Company of Canada, 510 Burrard Street, Vancouver, British Columbia,
V6C 3B9 (the "Trustee" which expression includes any successor trustee
appointed under the Indenture), to which Indenture and any instruments
supplemental thereto reference is hereby made for a full description
of the rights of the Special Warrantholders and the terms and
conditions upon which such Special Warrants are, or are to be, issued
and held, all to the same effect as if the provisions of the Indenture
and all instruments supplemental thereto were herein set forth, to all
of which provisions the holder of these Special Warrants by acceptance
hereof assents. All terms defined in the Indenture are used herein as
so defined. In the event of any conflict or inconsistency between the
provisions of the Indenture and the provisions of this Special Warrant
Certificate, except those that are necessary by context, the
provisions of the Indenture will prevail. The Company will furnish to
the holder of this Special Warrant Certificate, upon request and
without charge, a copy of the Indenture.
The Special Warrants represented by this Special Warrant Certificate
may be exercised by the holder at any time before the Exchange Time.
Pursuant to the Indenture the Company has covenanted to use its best
efforts to cause receipts for a (final) Prospectus qualifying the
Debentures, to be issued by the
A - 39
securities regulatory authorities in Ontario and British Columbia, and
to cause registration of the Debentures and certain common shares of
Granges Inc. to be made effective under the United States Securities
Act of 1933 and to cause registration of the class of Debentures under
the United States Securities Exchange Act of 1934 (collectively, the
"Qualification and Registration Requirements") on or before 8:00 p.m.
(Vancouver time) on February ., 1996 (the "Qualification Deadline").
Upon meeting the Qualification and Registration Requirements on or
before the Exchange Date (as defined in the Indenture), the Company
will forthwith give written notice to each of the Trustee and the
Underwriters.
Upon receipt by the Trustee of a written notice from the Company
pursuant to Section 3.7 of the Indenture, the Trustee will forthwith
give notice to the Special Warrantholder, which notice must state that
any Special Warrants not exercised prior to the Exchange Time are
deemed to have been exercised immediately prior to the Exchange Time
pursuant to Section 5.3 of the Indenture.
If the Qualification and Registration Requirements are not met on or
before the Qualification Deadline, then the holder of this Special
Warrant Certificate, pursuant to Section 2.3 of the Indenture, may on
or before 5:00 p.m. (Vancouver time) on February ., 1996 (the
"Retraction Deadline"), require the Company to redeem the outstanding
Special Warrants held by it at a price of $105 for each $100 of
Special Warrants held.
In order to exercise the Cancellation Right, the holder of this
Special Warrant must provide the Trustee with written notice (the
"Cancellation Notice") on or before the Retraction Deadline specifying
the number of Special Warrants to be redeemed, together with Special
Warrant Certificates representing no less than such number of Special
Warrants. Upon receipt of the Cancellation Notice, the Trustee will
forthwith:
(a) cause the number of Special Warrants specified in the
Cancellation Notice to be cancelled;
(b) deliver, or cause to be delivered or credited to the holder of
this Special Warrant, the sum of US $105 for each US $100 of
Special Warrants that have been cancelled; and
(c) deliver, or cause to be delivered, a Special Warrant
Certificate representing the balance of any Special Warrants
delivered to the Company pursuant to subsection 2.3(C) of the
Indenture, but not specified to be redeemed by the Company in
the Cancellation Notice.
In the event that the Qualification and Registration Requirements are
not met on or before the Qualification Deadline, each US $100 of
Special Warrants exercised thereafter shall entitle the Special
Warrantholders to receive upon exercise, US $110 principal amount of
Debentures in lieu of US $100 principal amount of Debentures.
A - 40
If the holder of this Special Warrant does not provide the Trustee
with the aforesaid Cancellation Notice, then the holder shall, with
respect to the amended terms of the Debentures, be deemed to have
renewed the representations appearing in Section 9 of the subscription
agreement pursuant to which the Special Warrants were originally
issued.
Special Warrantholders may, at any time before the Exchange Time,
exercise all or any number of the Special Warrants represented hereby,
by surrendering to the Trustee a certificate or certificates
representing the number of Special Warrants to be exercised, together
with the duly completed and executed exercise form attached. ANY SUCH
EXERCISE, AT A TIME WHEN THE QUALIFICATION AND REGISTRATION
REQUIREMENTS HAVE NOT BEEN MET, IS SUBJECT TO COMPLIANCE WITH, AND MAY
BE RESTRICTED BY, APPLICABLE SECURITIES LAWS AND IS FURTHER SUBJECT TO
THE HOLDER PROVIDING SUCH ASSURANCES AND EXECUTING SUCH DOCUMENTS AS
MAY, IN THE REASONABLE OPINION OF THE COMPANY OR THE TRUSTEE, BE
REQUIRED TO ENSURE COMPLIANCE WITH APPLICABLE SECURITIES LEGISLATION.
IF, AT THE TIME OF THE EXERCISE OF THE SPECIAL WARRANTS, THERE REMAIN
RESTRICTIONS ON RESALE UNDER APPLICABLE SECURITIES LEGISLATION ON THE
DEBENTURES ACQUIRED, THE COMPANY, MAY, IF REQUIRED ON THE ADVICE OF
COUNSEL, ENDORSE THE CERTIFICATES REPRESENTING THE DEBENTURES ACQUIRED
WITH RESPECT TO SUCH RESALE RESTRICTIONS.
If the Special Warrants represented hereby have not been exercised by
the holder thereof pursuant to Section 5.2 of the Indenture prior to
the Exchange Time, such Special Warrants will be deemed to have been
exercised by the holder immediately prior to the Exchange Time without
any further action on the part of the holder. In that event, the
Trustee will deliver certificates for the securities comprised in the
Special Warrants issued upon such deemed exercise in the name of the
Special Warrantholder to the address of the Special Warrantholder as
specified in the register for the Special Warrants.
The Debentures in respect of which the Special Warrants are exercised
are deemed to have been issued on the date of such exercise pursuant
to Section 5.2 or 5.3 of the Indenture, at which time each Special
Warrantholder or the person(s) in whose name the Debentures so
subscribed for are to be issued is deemed to have become the holder of
record of such Debentures.
After the exercise of Special Warrants pursuant to either Section 5.2
or 5.3 of the Indenture, the Trustee will notify the separate trustee
under the Debentures to mail by first class insured mail, or if
instructed, delivered, at the expense of the Special Warrantholder
requesting such delivery, to each Special Warrantholder or the
person(s) in whose name the Debentures so subscribed for are to be
issued at its address specified in the exercise form, or in the case
of the deemed exercise of the Special Warrants, to the address of the
Special Warrantholder appearing in the register for the Special
Warrants, certificates for the appropriate amount of Debentures
issuable
A - 41
in respect of such Special Warrants, not exceeding those which such
person(s) is entitled to acquire pursuant to the Special Warrants so
exercised.
Pursuant to the Indenture, Debentures will be issued in multiples of
US $100 and any exercise of Special Warrants in multiples of other
than $100 will entitle the holder to receive that number of Debentures
equal to the next lowest $100 multiple of Debentures.
The holder of this Special Warrant Certificate may at any time up to
the Exchange Time, upon written instruction delivered to the Trustee
and payment of the charges provided for in the Indenture and otherwise
in accordance with the provisions of the Indenture, exchange this
Special Warrant Certificate for other Special Warrant Certificates (in
multiples of US $100) evidencing Special Warrants entitling the holder
to acquire in the aggregate the same amount of Debentures as may be
acquired under this Special Warrant Certificate. If the holder of this
Special Warrant Certificate exercises a lesser number of Special
Warrants than may be acquired under this Special Warrant Certificate,
the Trustee will issue to such holder a new Special Warrant
Certificate representing the Special Warrants not then exercised. The
Trustee will retain possession of all Special Warrant Certificates
delivered to it upon exchange in accordance with the provisions of the
Indenture.
The holding of the Special Warrants evidenced by this Special Warrant
Certificate does not constitute the Special Warrantholder a
shareholder of the Company or of Granges Inc., or entitle such holder
to any right or interest in respect thereof except as herein and in
the Indenture expressly provided.
The Special Warrants evidenced by this Special Warrant Certificate may
be transferred only upon compliance with the conditions prescribed in
the Indenture, on the register kept at the offices of the Trustee, by
the registered Special Warrantholder (or its legal representatives or
its attorney duly appointed) and its transferee duly executing the
transfer form in the form attached hereto and complying with
applicable laws and such other reasonable requirements as the Company
and Trustee may prescribe.
The Indenture contains provisions making binding upon all holders of
Special Warrants outstanding thereunder resolutions passed at meetings
of such holders held in accordance with such provisions and
instruments in writing signed by such holders.
This Special Warrant Certificate is construed in accordance with the
laws of the Province of British Columbia and of Canada applicable
therein and will be treated in all respects as a British Columbia
contract.
This Special Warrant Certificate is not valid for any purpose whatever
unless and until it has been countersigned by or on behalf of the
Trustee.
A - 42
After the exercise of any of the Special Warrants represented by this
Special Warrant Certificate, the Special Warrantholder no longer has
any rights under either the Indenture or this Special Warrant
Certificate, other than the right to receive certificates representing
Debentures issuable on the exercise of those Special Warrants, and
those Special Warrants exercised or deemed to have been exercised are
void and of no further value or effect.
IN WITNESS WHEREOF the Company has caused this Special Warrant
Certificate to be signed by its duly authorized officers as of
ATLAS CORPORATION
Per:_______________________________________
Countersigned by:
MONTREAL TRUST COMPANY OF CANADA
Per:_______________________________________
A - 43
EXERCISE FORM
TO: ATLAS CORPORATION
c/o Montreal Trust Company of Canada
510 Burrard Street, Vancouver, British Columbia, V6C 3B9
The undersigned hereby irrevocably exercises the right to acquire US
$_________________ of Debentures of Atlas Corporation (or such number of other
securities or property to which such Special Warrants entitle the undersigned in
lieu thereof or in addition thereto under the provisions of the Indenture
referenced in the within Special Warrant Certificate) according to the terms of
the Indenture referenced in the within Special Warrant Certificate.
Amount (US $) of Special
Warrants: ____________________________________________________
DATED this _________ day of _______________________, 199___.
===============================================================================
--------------------------- ------------------------------------------
Signature Witnessed (Signature of Special Warrantholder, to be
(See instructions to Special the same as appears on the face of this
Warrantholders) Special Warrant Certificate)
===============================================================================
Name of Special Warrantholder:
Address:
===============================================================================
A - 44
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name)__________________ (the "Transferee"), of (residential address)___________
__________________________________________ (US $) __________ Special Warrants
of Atlas Corporation registered in the name of the undersigned on the records of
Montreal Trust Company of Canada represented by the within certificate, and
irrevocably appoints____________________________________________________________
__________________________________________ as the attorney of the undersigned to
transfer the said securities on the books or register of transfer, with full
power of substitution.
DATED the ________ day of _________________________, 199___.
===============================================================================
--------------------------- ------------------------------------------
Signature Guaranteed (Signature of transferring Special
(See instructions to Special Warrantholder, to be the same as appears
Warrantholders) on the face of this Special Warrant
Certificate)
===============================================================================
--------------------------- ------------------------------------------
Witness as to Signature of (Signature of Transferee)
Transferee
===============================================================================
A - 45
INSTRUCTIONS TO SPECIAL WARRANTHOLDERS
TO EXERCISE OR TRANSFER:
If the Special Warrantholder voluntarily exercises Special Warrants
prior to the Exchange Time pursuant to the Indenture, it must
complete, sign and deliver the Exercise Form together with the Special
Warrant Certificates to the Trustee indicating the amount of
Debentures to be acquired. In such case, the signature of such
registered holder on the Exercise Form must be witnessed.
If the Exercise Form or the Transfer Form is signed by a trustee,
executor, administrator, curator, guardian, attorney, officer of a
corporation or any person acting in a fiduciary or representative
capacity, the Special Warrant Certificates must also be accompanied by
evidence of authority to sign satisfactory to the Trustee or the
Company.
If the Special Warrant Certificate is transferred, the Special
Warrantholder's signature on the Transfer Form must be guaranteed by
an authorized officer of a chartered bank, trust company or an
investment dealer who is a member of a recognized stock exchange.
For the protection of the Special Warrantholder, it would be prudent
to use registered mail if forwarding this Special Warrant Certificate
by mail .