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ONTARIO CORPORATION NUMBER
481860
ARTICLES OF INCORPORATION
EXHIBIT 3.3
1. THE NAME OF THE CORPORATION IS
G E D D E S R E S O U R C E S L I M I T E D
2. THE ADDRESS OF THE HEAD OFFICE IS
7 King Street East, Suite 1604
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(Street & Number or R.R. Number & if Multi-Office
Building give Room No.)
Toronto, Ontario M 5 C 1 A 2
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(Name of Municipality or Post Office)(Postal Code)
______________________ in the ______________________
(Name of Municipality (County, District,
Geographical Township) Regional Municipality)
3. THE NUMBER OF DIRECTORS IS ONE
4. THE FIRST DIRECTOR(S) IS/ARE
NAME IN FULL, INCLUDING RESIDENCE ADDRESS, GIVING
ALL GIVEN NAMES STREET & NO. OR R.R. NO. &
MUNICIPALITY OR POST OFFICE
AND POSTAL CODE
Warren Stephen 15 Clarendon Avenue
Richard Seyffert Toronto, Ontario M4V 1H8
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5. THE OBJECTS FOR WHICH THE CORPORATION IS INCORPORATED ARE
(a) To acquire, own, lease, prospect for, open, drill, explore, develop, work,
improve, maintain and manage mines and resource lands and mineral deposits,
including oil and gas lands, pipelines and deposits, and to dig for, raise,
crush, wash, smelt, assay, analyze, reduce, amalgamate, refine, pipe, convey
and otherwise treat, handle and market ores, metals, minerals and commodities,
including oil and gas, ocean deposits, forests, surface rights, land
development and improvements whether belonging to the Corporation or not, and
to render the same merchantable and to sell or otherwise dispose of the same or
any part thereof or interest therein;
(b) To take, acquire and hold as consideration for ores, metals, minerals or
commodities, including oil and gas, sold or otherwise disposed of or for goods
supplied or for work done by contract or otherwise, shares, debentures or other
securities of or in any other company having objects similar, in whole or in
part, to those of the Corporation hereby incorporated and to sell and otherwise
dispose of the same;
(c) To trade in, invest in, prospect, examine, explore, survey and develop the
resources of any territories, estates or properties and with a view thereto to
finance, organize, employ, equip and dispatch expeditions, commissions,
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engineering, mining, geological and other experts and agents, and to collect,
process, prepare or cause to be prepared or assist in or subscribe towards the
preparation of any plans, examinations, data, surveys, reports and
specifications of any kind and nature;
(d) To negotiate or enter into any agreements or arrangements with any person,
form or corporation or with any government, authority or power for any purpose,
and in particular for the grant or transfer to the Corporation or to any
company promoted, formed or registered by the Corporation or in which the
Corporation may be interested or to any person, firm, or corporation of any
leases, concessions, concessions, options, rights, licences, permits or other
authorization for or relating to the exploration, development, acquisition or
working of any lands;
(e) To search for, acquire, work and dispose of and deal in any mines, metals,
minerals, oil and gas, salts, chemicals, clay and other like substances as well
as renewable resources such as forest products;
(f) To search for, obtain, produce, work, exploit, develop, purchase, store,
manufacture, treat, render suitable for market or trade, smelt, calcine,
refine, handle, carry away, sell, dispose of and deal in or otherwise turn to
account petroleum and other minerals, oils, natural gas, asphalt and
hydrocarbons of all kinds and their products or substances of every
description;
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(g) To bore, drill, open, explore, develop, work, improve, maintain, manage and
operate mines, mills, smelters, refineries, fabricators, oil wells, quarries
and mineral lands and deposits of all classes and descriptions, whether
belonging to the Corporation or not; and
(h) To evaluate, test, estimate, consult, manage, advise, share, design,
install, operate, finance in any related processing plants, operations,
development of sea, air or land resources.
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6. THE AUTHORIZED CAPITAL IS divided into 10,000,000 Class A Preferred Shares
with a par value of $10 each and 10,000,000 Common Shares without par value.
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7. THE DESIGNATIONS, PREFERENCES, RIGHTS, CONDITIONS, RESTRICTIONS,
LIMITATIONS OR PROHIBITIONS ATTACHING TO THE SPECIAL SHARES, IF ANY, ARE
1. The special shares with a par value of ten dollars ($10) each shall be
designated as non-cumulative redeemable non-voting Class A preference shares
with a par value of $10 each (hereinafter called "Class A Preference Shares").
2. The holders of the Class A Preference Shares, in priority, to the common
shares without par value (hereinafter called the "Common Shares") and any other
shares ranking junior to the Class A Preference Shares, shall be entitled to
receive and the Corporation shall pay thereon, as and when declared by the
board of directors of the Corporation out of the moneys of the Corporation
properly applicable to the payment of dividends, fixed preferential
non-cumulative cash dividends determined solely by the board of directors. If
the board of directors in its discretion shall not declare a dividend on the
Class A Preference Shares for a fiscal year, then the rights of the holders of
the Class A Preference Shares to such dividend for such fiscal year shall be
forever extinguished. The holders of the Class A Preference Shares shall not
be entitled to any dividends other than or in excess of the preferential
non-cumulative cash dividends hereinbefore provided for.
3. Except with the approval of the holders of all the Class A Preference Shares
outstanding given by at least two-thirds (2/3) of the votes cast at a meeting
of the
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holders of the Class A Preference Shares at a meeting duly called for that
purpose as described in paragraph 9 hereof, no dividend shall at any time be
declared and paid on or set apart for payment on the Common Shares or any other
shares of the Corporation ranking junior to the Class A Preference Shares in
any fiscal year unless and until the preferential non-cumulative cash dividend
on all the Class A Preference Shares outstanding in respect of such fiscal year
has been declared and paid or set apart for payment.
4. In the event of the liquidation, dissolution or winding-up of the
Corporation or other distribution of assets or property of the Corporation
among shareholders for the purpose of winding up its affairs, the holders of
the Class A Preference Shares shall be entitled to receive from the assets and
property of the Corporation a sum equivalent to the aggregate par value of the
Class A Preference Shares held by them respectively together with all declared
and unpaid preferential non-cumulative cash dividends thereon before any amount
shall be paid or any property or assets of the Corporation distributed to the
holders of any Common Shares or shares of any other class ranking junior to the
Class A Preference Shares. After payment to the holders of the Class A
Preference Shares of the amount so payable to them as above provided they shall
not be entitled to share in any further distribution of the assets or property
of the Corporation.
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5. The Corporation may at any time or from time to time purchase for
cancellation all or part of the outstanding Class A Preference Shares at the
lowest price at which, in the opinion of the directors, such shares are
obtainable but not exceeding an amount equal to the aggregate par value
thereof. Except where the purchase for cancellation is made on the open market
or all the holders of the Class A Preference Shares consent to the purchase,
the Corporation may purchase such shares only pursuant to tenders received by
the Corporation upon request for tenders addressed to all the holders of the
Class A Preference Shares and the Corporation shall accept only the lowest
tenders. Where, in response to the invitation for tenders, two or more
shareholders submit tenders at the same price and the tenders are accepted by
the Corporation as to part only of the Class A Preference Shares offered, the
Corporation shall accept part of the Class A Preference Shares offered in each
tender in proportion as nearly as may be to the total number of Class A
Preference Shares offered in each tender (disregarding fractions).
6. The Corporation may, upon giving notice as hereinafter provided, redeem at
any time the whole or from time to time any part of the then outstanding Class
A Preference Shares on payment for each share to be redeemed of the par value
thereof together with all declared and unpaid preferential non-cumulative cash
dividends thereon.
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7. In the case of redemption of Class A Preference Shares under the provisions
of clause 6 hereof, the Corporation shall at least thirty (30) days before the
date specified for redemption mail to each person who at the date of mailing is
a registered holder of Class A Preference Shares to be redeemed a notice in
writing of the intention of the Corporation to redeem such Class A Preference
Shares. Such notice shall be mailed by letter, postage prepaid, addressed to
each such shareholder at his address as it appears on the records of the
Corporation or in the event of the address of any such shareholder not so
appearing then to the last known address of such shareholder; provided,
however, that accidental failure to give any such notice to one (1) or more of
such shareholders shall not affect the validity of such redemption. Such
notice shall set out the redemption price and the date on which redemption is
to take place and, if part only of the shares held by the person to whom it is
addressed is to be redeemed, the number thereof so to be redeemed. On or after
the date so specified for redemption, the Corporation shall pay or cause to be
paid to or to the order of the registered holders of the Class A Preference
Shares to be redeemed the redemption price thereof on presentation and
surrender, at the head office of the transfer agent of the Corporation located
in the City of Toronto, Ontario or any other place designated in such notice,
of the certificates representing the Class A Preference Shares called for
redemption. If a part only of the
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shares represented by any certificate be redeemed a new certificate for the
balance shall be issued at the expense of the Corporation. From and after the
date specified for redemption in any such notice the Class A Preference Shares
called for redemption shall cease to be entitled to dividends and the holders
thereof shall not be entitled to exercise any of the rights of shareholders in
respect thereof unless payment of the redemption price shall not be made upon
presentation of certificates in accordance with the foregoing provisions, in
which case the rights of the shareholders shall remain unaffected. The
Corporation shall have the right at any time after the mailing of notice of its
intention to redeem any Class A Preference Shares to deposit the redemption
price of the shares so called for redemption or of such of the said shares so
called for redemption or of such of the said shares represented by certificates
as have not at the date of such deposit been surrendered by the holders thereof
in connection with such redemption to a special trust account with the transfer
agent, to be paid without interest to or to the order of the respective holders
of such Class A Preference Shares called for redemption upon presentation and
surrender to the transfer agent of the certificates representing the same, and
upon such deposit being made or upon the date specified for redemption in such
notice, whichever the later, the Class A Preference Shares in respect whereof
such deposit shall have been made shall be redeemed and the rights of the
holders thereof after such deposit or such
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redemption date, as the case may be, shall be limited to receiving without
interest their proportionate part of the total redemption price so deposited
against presentation and surrender of the said certificates held by them
respectively.
8. The holders of the Class A Preference Shares shall not be entitled as such
(except as hereinafter specifically provided) to receive notice of or to attend
any meeting of the shareholders of the Corporation and shall not be entitled to
vote at any such meeting. The holders of the Class A Preference Shares shall,
however, be entitled to notice of meetings of the shareholders called for the
purpose of authorizing the dissolution of the Corporation or the sale of its
undertaking or a substantial part thereof.
9. The confirmation required by subsection 4 of section 189 of The Business
Corporations Act, as now enacted or as the same may from time to time be
amended, re-enacted or replaced (and in the case of such amendment,
re-enactment or replacement, any reference herein shall be read as referring to
the amended, re-enacted or replaced provisions), of a resolution authorizing an
amendment to the articles deleting or varying a preference, right, condition,
restriction, limitation or prohibition attaching to the Class A Preference
Shares or creating special shares ranking in any respect in
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priority to or on a parity with the Class A Preference Shares may be given by
at least two-thirds (2/3) of the votes cast at a meeting of the holders of the
Class A Preference Shares duly called for that purpose and held upon at least
twenty-one (21) days notice at which the holders of at least ten per cent (10%)
of the then outstanding Class A Preference Shares are present or represented by
proxy. If at any such meeting the holders of ten per cent (10%) of the
outstanding Class A Preference Shares are not present or represented by proxy
within half an hour after the time appointed for the meeting, then the meeting
shall be adjourned to such date not being less than fourteen (14) days later
and to such time and place as may be appointed by the chairman and at least ten
(10) days' notice shall be given of such adjourned meeting but it shall not be
necessary in such notice to specify the purpose for which the meeting was
originally called. At such adjourned meeting the holders of Class A Preference
Shares present or represented by proxy may transact the business for which the
meeting was originally called and the confirmation of the holders of Class A
Preference Shares referred to above may be given by at least two-thirds (2/3)
of the votes cast at such adjourned meeting. The formalities to be observed
with respect to the giving of notice of any such meeting and the conduct
thereof shall be those from time to time prescribed in the by-laws of the
Corporation with respect to meetings of shareholders. On every poll taken at
every such
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meeting every holder of Class A Preference Shares shall be entitled to one (1)
vote in respect of each Class A Preference Share held.
10. The Common Shares shall rank junior to the Class A Preference Shares and
shall be subject in all respects to the Class A preferences, rights,
conditions, restrictions, limitations and prohibitions attaching to the Class A
Preference Shares.
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8. THE RESTRICTIONS, IF ANY, ON THE ALLOTMENT, ISSUE OR TRANSFER OF SHARES ARE
None
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9. THE SPECIAL PROVISIONS, IF ANY, ARE
(a) Subject to the provisions of The Business Corporations Act, the
Corporation may purchase any of its common shares;
(b) The board of directors of the Corporation may, without
authorization of the shareholders, from time to time, in such amounts
and on such terms as it deems expedient:
(i) borrow money on the credit of the Corporation;
(ii) issue, reissue, sell or pledge debt obligations of the Corporation;
or
(iii) charge, mortgage, hypothecate, pledge or otherwise create a
security interest in all or currently owned or subsequently
acquired real or personal, movable or immovable property of the
Corporation, including book debts, rights, powers, franchises and
undertaking to secure any debt obligation or any money borrowed,
or other debt or liability of the Corporation;
For greater certainty the foregoing powers conferred on the
directors shall be deemed to include the powers conferred on a
company by Division VI of the Special Corporate Powers Act, being
chapter 275 of the Revised Statutes of Quebec, 1964, and every
statutory provision that may be substituted therefor or for any
provision therein.
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The board of directors may from time to time delegate to such one or more
of the directors and officers of the Corporation as may be designated by the
board all or any of the powers hereby conferred on the board above to such
extent and in such manner as the board shall determined at the time of each
such delegation.
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10. THE SHARES, IF ANY, TO BE TAKEN BY THE INCORPORATORS ARE
INCORPORATORS FULL NAMES, NUMBER OF AMOUNT
INCLUDING ALL GIVEN NAMES SHARES CLASS DESIGNATION TO BE PAID
------------------------- ---------- ----------------- -----------
Warren Stephen Richard Seyffert One Common $1
11. THE NAMES AND RESIDENCE ADDRESSES OF THE INCORPORATORS ARE
FULL RESIDENCE ADDRESS GIVING
STREET & NO. OR R.R. NO.,
MUNICIPALITY OR POST
FULL NAMES, INCLUDING ALL GIVEN NAMES OFFICE AND POSTAL CODE
- --------------------------------------- --------------------------------
Warren Stephen Richard Seyffert 15 Clarendon Avenue, Toronto
Ontario M4V 1H8
THESE ARTICLES ARE EXECUTED IN DUPLICATE FOR DELIVERY TO THE MINISTER
SIGNATURES OF INCORPORATORS
/s/ Warren S.R. Seyffert
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Warren Stephen Richard Seyffert
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Ontario Corporation Number
Numero de la compagnie en Ontario
481860
ARTICLES OF AMENDMENT
STATUTS DE MODIFICATION
1. The present name of the Denomination sociale actuelle
corporation is: de la compagnie:
G E D D E S R E S O U R C E S L I M I T E D
2. The name of the corpora- Nouvelle denomination sociale
tion is changed to (if de la compagnie (s'il y a lieu):
applicable):
3. Date of incorporation/ Date de la constitution ou de
amalgamation: la fusion:
3 June 1981
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(Day, Month, Year)
(jour, mois, annee)
4. The articles of the Les statuts de la compagnie
corporation are amended sont modifies de la faccon
as follows: suivante:
"WHEREAS Geddes Resources Limited (the "Corporation") was
incorporated under the laws of the Province of Ontario by Articles
of Incorporation dated June 3, 1981;
AND WHEREAS the authorized capital of the Corporation is
divided into 10,000,000 Class A Preferred Shares with a par
value of $10 each and 10,000,000 Common Shares without par
value;
NOW THEREFORE BE IT RESOLVED THAT:
A. The Articles of Incorporation be amended by deleting all of Item 7
setting forth the designations, preferences, rights, conditions,
restrictions, limitations or prohibiitons attaching to the Class A
Preferred Shares and substituting the following therefor:
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Designation
1.1 The preferred shares with a par value of ten dollars ($10) each shall be
designated as non-cumulative, convertible, redeemable, non-voting Class A
preferred shares with a par value of $10 each (hereinafter called "Class A
Shares").
Dividends
2.1 For the purpose of this clause 2:
"Common Shares" shall mean common shares without par value in the capital
of the Corporation as such shares were constituted on December 11, 1981
and shares of any other class resulting from the reclassification or
change of such common shares. In the event of any adjustment of the
conversion rights herein granted pursuant to subclause 6.8, "Common
Shares" shall thereafter mean the shares or other securities or property
resulting after such adjustment;
"Equivalent Dividend Basis" at any time shall mean the quotient obtained
when the dividend payable on a Class A Share is divided by the dividend
payable on a Common Share which, until adjusted pursuant to subclause 2.3
hereof, shall equal one (1);
"Current Market Price" means at any date the weighted average price at
which the Common Shares of the Corporation have traded on The Toronto
Stock Exchange, or, if the Common Shares are not then listed on The
Toronto Stock Exchange, on such stock exchange on which such shares are
listed as may be selected for such purpose by the Board of Directors of
the Corporation (the "Board") during a period of 30 consecutive trading
days, selected for such purpose by the Board, commencing not more than 45
trading days before such date, or if the Common Shares are not listed on
any stock exchange in Canada, as determined by the Board.
2.2 The Class A Shares shall rank equally with the Common Shares with respect
to the payment of dividends and the holders of the Class A Shares shall be
entitled to receive and the Corporation shall pay thereon, as and when
declared by the Board out of the moneys of the Corporation properly
applicable to the payment of dividends, a dividend on each Class A Share
equal to the product obtained when the dividend payable on each Common
Share is multiplied by the Equivalent Dividend Basis. The dividend
payable on the Common Shares shall be payable in such amounts and at such
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times as the Board may, in its discretion, from time to time determine.
2.3 The Equivalent Dividend Basis shall be subject to adjustment from time to
time in the events and in the manner following:
(i) if the Corporation shall (a) issue Common Shares to all or
substantially all the holders of the Common Shares as a stock
dividend, or (b) make a distribution on its outstanding Common
Shares payable in Common Shares or securities exchangeable for or
convertible into Common Shares, or (c) subdivide its outstanding
Common Shares, or (d) consolidate its outstanding Common Shares
into a smaller number of shares (any of such events being called a
"Common Share Reorganization"), the Equivalent Dividend Basis shall
be adjusted effective immediately after the record date at which
the holders of Common Shares are determined for the purposes of the
Common Share Reorganization to an Equivalent Dividend Basis equal
to the product obtained when the Equivalent Dividend Basis in
effect on such record date is multiplied by a fraction the
denominator of which shall be the number of Common Shares
outstanding on such record date, and the numerator of which shall
be the number of Common Shares outstanding after the completion of
such Common Share Reorganization, including in the case where
securities exchangeable for or convertible into Common Shares are
distributed, the number of Common Shares that would have been
outstanding had such securities been exchanged for or converted
into Common Shares on such record date; and
(ii) if the Corporation shall issued rights, options or warrants
to all or substantially all of the holders of the Common Shares
under which such holders are entitled, during a period expiring not
more than forty-five (45) days after the record date for such issue,
to subscribe for or purchase Common Shares or securities
exchangeable for or convertible into Common Shares at a price per
share (or at an exchange or conversion price per share in the case
of securities exchangeable for or convertible into Common Shares)
less than 95% of the Current Market Price of the Common Shares on
such record date (any of such events being called a "Rights
Offering"), the
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Equivalent Dividend Basis shall be adjusted effective
immediately after such record date to an Equivalent Dividend
Basis equal to the product obtained when the Equivalent Dividend
Basis in effect on such record date is multiplied by a fraction:
(a) the denominator of which shall be the aggregate of:
(A) the number of Common Shares outstanding on such
record date; and
(B) the number determined by
dividing (1) either, as the case may be, (AA) the
product of (i) the number of Common Shares so
offered, and (ii) the price at which such shares are
offered, or (BB) the product of (iii) the exchange or
conversion price thereof, and (iv) the maximum number
of Common Shares for or into which the securities so
offered pursuant to the Rights Offering may be
exchanged or converted, by (2) the Current Market
Price of the Common Shares on such record date, and
(b) the numerator of which shall be the aggregate of (A) the
number of Common Shares outstanding on such record date,
and (B) the number of Common Shares offered pursuant to
the Rights Offering (or the maximum number of Common
Shares for or into which the securities so offered
pursuant to the Rights Offering may be exchanged or
converted).
To the extent that such options, rights or warrants are not
exercised prior to the expiry date thereof, the Equivalent
Dividend Basis shall be readjusted effective immediately
after such expiry date to the Equivalent Dividend Basis
which would then have been in effect based upon the number
of Common Shares or securities exchangeable for or
convertible into Common Shares actually delivered on the
exercise of such options, rights or warrants.
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2.4 For the purpose of this clause 2:
(i) no adjustment in the Equivalent Dividend Basis shall be required
if any of the events described in subclause 2.3(ii) shall occur
so long as the holders of Class A Shares are allowed to
participate with the holders of Common Shares as though they had
converted their Class A Shares into Common Shares prior to the
record date for such event;
(ii) no adjustment in the Equivalent Dividend Basis shall be made in
respect of the issue from time to time of shares to holders of
Common Shares who exercise an option to receive substantially
equivalent dividends in shares in lieu of receiving cash
dividends paid in the ordinary course;
(iii) if a dispute shall at any time arise with respect to adjustments
in the Equivalent Dividend Basis such disputes shall be
conclusively determined by the auditors of the Corporation or if
they are unable or unwilling to act, by such other firm of
independent chartered accountants as may be selected by the
Board and any such determination shall be binding upon the
Corporation and all holders of Class A Shares; and
(iv) in any case in which subclause 2.3 shall require that an
adjustment shall become effective immediately after a record
date for an event referred to therein, the Corporation may
defer, until the occurrence of such event, paying to the holders
of Class A Shares a dividend which has been declared, provided
that any dividend payable on the Common Shares shall also be
deferred in the same manner.
Dissolution
3.1 In the event of the liquidation, dissolution or winding-up of the
Corporation or other distribution of assets or property of the Corporation
among shareholders for the purpose of winding up its affairs, the holders of
the Class A Shares shall be entitled to receive from the assets and property of
the Corporation a sum equivalent to the aggregate par value of the Class A
Shares held by them respectively together with all declared and unpaid
dividends thereon before any amount shall be paid or any property or assets of
the Corporation distributed to the holders of any Common Shares or shares of
any other class ranking junior to
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the Class A Shares. After payment to the holders of the Class A Shares of the
amount so payable to them as above provided they shall not be entitled to share
in any further distribution of the assets or property of the Corporation.
Purchase for Cancellation
4.1 The Corporation may at any time or from time to time purchase for
cancellation all or part of the outstanding Class A Shares at the lowest price
at which, in the opinion of the directors, such shares are obtainable but not
exceeding an amount equal to the aggregate par value thereof together with all
declared and unpaid dividends thereon. Except where the purchase for
cancellation is made on the open market or all the holders of the Class A
shares consent to the purchase, the Corporation may purchase such shares only
pursuant to tenders received by the Corporation upon request for tenders
addressed to all the holders of the Class A Shares and the Corporation shall
accept only the lowest tenders. Where, in response to the invitation for
tenders, two or more shareholders submit tenders at the same price and the
tenders are accepted by the Corporation as to part only of the Class A Shares
offered, the Corporation shall accept part of the Class A Shares offered in
each tender in proportion as nearly as may be to the total number of Class A
Shares offered in each tender (disregarding fractions).
Redemption
5.1 From and after January 1, 1984, the Corporation may, upon giving notice as
hereinafter provided, redeem at any time the whole or from time to time any
part of the then outstanding Class A Shares on payment for each share to be
redeemed of the par value thereof together will all declared and unpaid
dividends thereon.
5.2 In the case of redemption of Class A Shares under the provisions of
subclause 5.1, the Corporation shall at least thirty (30) days before the date
specified for redemption mail to each person who at the date of mailing is a
registered holder of Class A Shares to be redeemed a notice in writing of the
intention of the Corporation to redeem such Class A Shares. Such notice shall
be mailed by letter, postage prepaid, addressed to each such shareholder at his
address as it appears on the records of the Corporation or in the event of the
address of any such shareholder not so appearing then to the last known address
of such shareholder; provided, however, that accidental failure to give any
such notice to one (1) or more of such shareholders shall not affect the
validity of such redemption. Such notice shall set out the redemption price
and the date on which
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redemption is to take place and, if part only of the shares held by the person
to whom it is addressed is to be
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redeemed, the number thereof so to be redeemed. On or after the date so
specified for redemption, the Corporation shall pay or cause to be paid to or
to the order of the registered holders of the Class A Shares to be redeemed the
redemption price thereof on presentation and surrender, at the principal office
of the transfer agent of the Corporation located in the Cities of Toronto,
Calgary or Vancouver or any other place or places designated in such notice, of
the certificates representing the Class A Shares called for redemption. If a
part only of the shares represented by any certificate be redeemed a new
certificate for the balance shall be issued at the expense of the Corporation.
From and after the date specified for redemption in any such notice the Class A
Shares called for redemption shall cease to be entitled to dividends, and the
holders thereof shall not be entitled to exercise any of the rights of
shareholders in respect thereof unless payment of the redemption price shall
not be made upon presentation of certificates in accordance with the foregoing
provisions, in which case the rights of the shareholders shall remain
unaffected. The Corporation shall have the right at any time after the mailing
of notice of its intention to redeem any Class A Shares to deposit the
redemption price of the shares so called for redemption or of such of the said
shares represented by certificates as have not at the date of such deposit been
surrendered by the holders thereof in connection with such redemption to a
special trust account with the transfer agent, to be paid without interest to
or to the order of the respective holders of such Class A Shares called for
redemption upon presentation and surrender to the transfer agent of the
certificates representing the same, and upon such deposit being made or upon
the date specified for redemption in such notice, whichever be the later, the
Class A Shares in respect whereof such deposit shall have been made shall be
redeemed and the rights of the holders thereof after such deposit or such
redemption date, as the case may be, shall be limited to receiving without
interest their proportionate part of the total redemption price so deposited
against presentation and surrender of the said certificates held by them
respectively.
Conversion
6.1 For the purpose of this clause 6:
"business day" shall mean any day other than Saturdays, Sundays and
statutory holidays in the Province of Ontario;
"Common Shares" shall mean common shares without par value in the capital
of the Corporation as such shares were constituted on
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December 11, 1981 and shares of any other class resulting from the
reclassification or change of such common shares. In the event of any
adjustment of the conversion rights herein granted pursuant to subclause
6.8, "Common Shares" shall thereafter mean the shares or other securities
or property resulting after such adjustment;
"Conversion Basis" at any time shall mean the number of Common Shares
into which at such time one (1) Class A Share shall be convertible in
accordance with the provisions of this clause 6 which initially shall be
one (1) Common Share for each Class A Share subject to adjustment as
described in subclause 6.8;
"Current Market Price" means at any date the weighted average price at
which the Common Shares have traded on The Toronto Stock Exchange, or, if
the Common Shares are not then listed on The Toronto Stock Exchange, on
such stock exchange on which such shares are listed as may be selected
for such purpose by the Board of Directors of the Corporation (the
"Board"), during a period of 30 consecutive trading days, selected for
such purpose by the Board, commencing not more than 45 trading days
before such date, or if the Common Shares are not listed on any stock
exchange in Canada, as determined by the Board;
6.2 Holders of Class A Shares shall have the right at any time from and after
January 1, 1984 and prior to the earlier of:
(i) the close of business on January 4, 1988; and
(ii) in respect of Class A Shares previously called for redemption, the
business day immediately preceding the date fixed for redemption of
such Class A Shares (the "Time of Expiry") to convert Class A Shares
into Common Shares on the Conversion Basis.
6.3 The conversion right herein provided for may be exercised by notice in
writing given to the transfer agent for the Class A Shares at its
principal office in any of the Cities of Toronto, Calgary and Vancouver
or at such other place or places as the Corporation may from time to time
27
1H
appoint, accompanied by the certificate or certificates representing Class A
Shares in respect of which the holder thereof desires to exercise such right of
conversion. Such notice shall be signed by such holder or his duly authorized
attorney and shall specify the number of Class A Shares which the holder
desires to have converted. The transfer form in the certificate or
certificates in question need not be endorsed, except in the circumstances
contemplated by subclause 6.5. If less than all the Class A Shares represented
by a certificate or certificates accompanying any such notice are to be
converted, the holder shall be entitled to receive, at the expense of the
Corporation, a new certificate representing the Class A Shares comprised in the
certificate or certificates surrendered as aforesaid which are not to be
converted.
6.4 In the case of any Class A Shares which may be called for redemption, the
right of conversion thereof shall, notwithstanding anything herein contained,
cease and terminate at the close of business on the last business day next
preceding the date fixed for redemption, provided, however, that if the
Corporation shall fail to redeem such Class A Shares in accordance with the
notice of redemption the right of conversion shall thereupon be restored.
6.5 On any conversion of Class A Shares the share certificates for Common
Shares resulting therefrom shall be issued in the name of the registered holder
of the Class A Shares converted or in such name or names as such registered
holder may direct in writing either in the notice referred to in subclause 6.3
or otherwise, provided that such registered holder shall pay any applicable
security transfer taxes; in any such case the transfer form on the back of the
certificates in question shall be endorsed by the registered holder of the
Class A Shares or his duly authorized attorney, with signature guaranteed in a
manner satisfactory to the transfer agent.
6.6 Subject as hereinafter provided in this subclause 6.6, the right of a
holder of Class A Shares to convert the same into Common Shares shall be deemed
to have been exercised, and the registered holders of Class A Shares to be
converted (or any person or persons in whose name or names any such registered
holder of Class A Shares shall have directed certificates representing Common
Shares to be issued as provided in subclause 6.5) shall be deemed to have
become a holder of Common Shares of record of the Corporation for all purposes
on the date of receipt by the transfer agent of certificates representing the
Class A Shares to be converted accompanied by notice in writing as provided in
subclause 6.3, notwithstanding any delay in the delivery of
28
1I
certificates representing the Common Shares into which such Class A Shares have
been converted.
6.7 (a) At the close of business on January 4, 1988, the holders of the Class
A Shares then outstanding shall be deemed (without any action required
on their part) to have exercised the right of conversion described in
subclause 6.2 and all of the Class A Shares then outstanding shall be
automatically converted into Common Shares on the Conversion Basis and
thereafter the former holders of Class A Shares shall be deemed to be
holders of Common Shares and shall be entitled to all of the rights
thereof.
(b) At any time thereafter, holders will be entitled to receive
certificates representing Common Shares upon presentation and
surrender of their certificates representing Class A Shares to the
transfer agent for the Common Shares at its principal office in any of
the Cities of Toronto, Calgary and Vancouver and such other place or
places as the Corporation may from time to time appoint.
(c) The Corporation shall give notice of the conversion provided for in
this subclause 6.7 as promptly as possible after January 4, 1988 in
the manner specified in subclause 5.2 to holders of Class A Shares who
pursuant to this subclause 6.7 are deemed to have converted their
shares.
6.8 The Conversion Basis shall be subject to adjustment from time to time in
the events and in the manner following:
(i) if at any time prior to the Time of Expiry the Corporation shall
(a) issue Common Shares to all or substantially all the holders
of the Common Shares as a stock dividend, or (b) make a
distribution on its outstanding Common Shares payable in Common
Shares or securities exchangeable for or convertible into Common
Shares, or (c) subdivide its outstanding Common Shares, or (d)
consolidate its outstanding Common Shares into a smaller number
of shares (any of such events being called a
29
1J
"Common Share Reorganization"), the Conversion Basis shall be
adjusted effective immediately after the record date at which
the holders of Common Shares are determined for the purposes of
the Common Share Reorganization to a Conversion Basis equal to
the product obtained when the Conversion Basis in effect on such
record date is multiplied by a fraction the denominator of which
shall be the number of Common Shares outstanding on such record
date, and the numerator of which shall be the number of Common
Shares outstanding after the completion of such Common Share
Reorganization, including in the case where securities
exchangeable for or convertible into Common Shares are
distributed, the number of Common Shares that would have been
outstanding had such securities been exchanged for or converted
into Common Shares on such record date;
(ii) if at any time prior to the Time of Expiry, the
Corporation shall issue rights, options or warrants to all or
substantially all of the holders of the Common Shares under which
such holders are entitled, during a period expiring not more than
forty-five (45) days after the record date for such issue, to
subscribe for or purchase Common Shares or securities
exchangeable for or convertible into Common Shares at a price per
share (or at an exchange or conversion price per share in the
case of securities exchangeable for or convertible into Common
Shares) less than 95% of the Current Market Price of the Common
Shares on such record date (any of such events being called a
"Rights Offering"), the Conversion Basis shall be adjusted
effective immediately after the record date at which holders of
Common Shares are determined for the purposes of the Rights
Offering to a Conversion Basis equal to the product obtained when
the Conversion Basis in effect on such record date is multiplied
by a fraction:
(a) the denominator of which shall be the aggregate of:
(A) the number of Common Shares
outstanding on such record date; and
30
1K
(B) the number determined by dividing (1) either, as the
case may be, (AA) the product of (i) the number of
Common Shares so offered, and (ii) the price at which
such shares are offered, or (BB) the product of (iii)
the exchange or conversion price thereof, and (iv) the
maximum number of Common Shares for or into which the
securities so offered pursuant to the Rights Offering
may be exchanged or converted, by (2) the Current
Market Price of the Common Shares on such record date,
and
(b) the numerator of which shall be the aggregate of (A) the
number of Common Shares outstanding on such record date, and
(B) the number of Common Shares offered pursuant to the
Rights Offering (or the maximum number of Common Shares for
or into which the securities so offered pursuant to the
Rights Offering may be exchanged or converted).
To the extent that such options, rights or warrants are not
exercised prior to the expiry date thereof, the Conversion
Basis shall be readjusted effective immediately after such
expiry date to the Conversion Basis which would then have
been in effect based upon the number of Common Shares or
securities exchangeable for or convertible into Common
Shares actually delivered on the exercise of such options,
rights or warrants;
(iii) if at any time prior to the Time of Expiry the Corporation shall
distribute to all or substantially all holders of the Common
Shares (a) shares of any class other than Common Shares or of
shares of any other body corporate, or (b) rights, options or
warrants to acquire Common Shares or securities exchangeable for
or convertible into Common Shares (other than rights, options or
warrants to acquire within a period of forty-five (45) days at a
price at least 95% of the Current Market Price of the Common
Shares on the record date for such distribution), or (c)
evidences of indebtedness, or (d) any
31
1L
other assets (excluding cash dividends paid in the ordinary
course), and such issuance or distribution does not constitute
a Common Share Reorganization or a Rights Offering (any of
such events being herein called a "Special Distribution"), the
Conversion Basis shall be adjusted effective immediately after
the record date at which the holders of Common Shares are
determined for purposes of the Special Distribution to a
Conversion Basis equal to the product obtained when the
Conversion Basis in effect on such record date is multiplied
by a fraction:
(A) the denominator of which shall be the
difference between:
(I) the product of (1) the number of Common Shares
outstanding on such record date, and (2) the Current
Market Price of the Common Shares on such date; and (II)
the aggregate fair value, as determined by the Board
(whose determination shall be conclusive) to the holders
of the Common Shares of the shares, rights, options,
warrants, evidences of indebtedness or other assets issued
or distributed in the Special Distribution, and
(B) the numerator of which shall be the
number of Common Shares outstanding on such record date
multiplied by the Current Market Price of the Common
Shares on such date;
(iv) if and whenever prior to the Time of Expiry there is
a capital reorganization of the Corporation not otherwise
provided for in this subclause 6.8 or a consolidation, merger or
amalgamation of the Corporation with or into another body
corporate (any such event being called a "Capital
Reorganization"), any holder of Class A Shares entitled to
receive Common Shares on the conversion of his Class A Shares
and whose Class A Shares have not been converted into Common
Shares shall be entitled to receive and shall accept, upon the
conversion of such Class A Shares at any time after the
effective date of such Capital Reorganization, in lieu of the
number of Common Shares to which he was theretofore
32
1M
entitled on conversion, the kind and aggregate number of
shares or other securities of the Corporation or of the body
corporate resulting from the Capital Reorganization that such
holder would have been entitled to receive as a result of such
Capital Reorganization if, on the effective date thereof, he
had been the registered holder of the number of Common Shares
to which he was theretofore entitled upon conversion, subject
to adjustment thereafter in accordance with provisions the
same, as nearly as may be possible, as those contained in this
clause 6; provided that no such Capital Reorganization shall
be carried into effect unless all necessary steps shall have
been taken so that the holders of Class A Shares shall
thereafter be entitled to receive such number of shares or
other securities of the Corporation or of the body corporate
resulting from the Capital Reorganization; and
(v) if the Corporation shall reclassify the outstanding
Common Shares, the Conversion Basis shall be adjusted effective
immediately after the record date of such reclassification so
that holders of Class A Shares surrendered for conversion after
such date shall be entitled to receive such shares as they
would have received had such Class A Shares been converted
immediately prior to such record date, subject to adjustment
thereafter in accordance with provisions the same, as nearly as
may be possible, as those contained in this clause 6 hereof.
6.9 For the purposes of this clause 6:
(i) no adjustment in the Conversion Basis shall be required if any
of the events described in subclause 6.8(ii), (iii) and (iv)
shall occur so long as the holders of Class A Shares are
allowed to participate with the holders of Common Shares as
though they had converted their Class A Shares into Common
Shares prior to the record date for such event;
(ii) no adjustment in the Conversion Basis shall be required unless
such adjustment would result in a change of at least 1% in the
Conversion Basis then prevailing, provided, however, that any
adjustments which, except for
33
1N
the provisions of this subclause 6.9(ii) would otherwise have
been required to be made, shall be carried forward and taken
into account in any subsequent adjustment;
(iii) no adjustment in the Conversion Basis shall be made in respect
of the issue from time to time of shares to holders of Common
Shares who exercise an option to receive substantially
equivalent dividends in shares in lieu of receiving cash
dividends paid in the ordinary course, and any such issue
shall be deemed not to be a Common Share Reorganization;
(iv) subject to subclause 6.8(iii) of this clause 6, if a dispute
shall at any time arise with respect to adjustments of the
Conversion Basis such disputes shall be conclusively
determined by the auditors of the Corporation or if they are
unable or unwilling to act, by such other firm of independent
chartered accountants as may be selected by the Board and any
such determination shall be binding upon the Corporation and
all holders of Class A Shares; and
(v) in any case which this subclause 6.8 shall require that an
adjustment shall become effective immediately after a record
date for an event referred to herein, the Corporation may
defer, until the occurrence of such event, issuing to the
holder of any Class A Shares exercising his right to convert
after such record date and before the occurrence of such event
the Common Shares issuable upon such exercise by reason of the
adjustment required by such event; provided, however, that the
Corporation shall deliver to such holder an appropriate
instrument evidencing such holder's right to receive such
Common Shares upon the occurrence of the event requiring such
adjustment and the right to receive any distributions made on
such Common Shares declared in favor of holders of record of
Common Shares on and after the date that such holder would,
but for the provisions of this subsection, have become the
holder of record of such Common Shares pursuant to subclause
6.6.
34
1O
6.10 The Corporation shall give at least fourteen (14) days prior written
notice in the manner specified in subclause 5.2 hereof to the holders of Class
A Shares then outstanding of the record date of any of the events specified in
subclause 6.8 hereof other than events described in subclause 6.8(i)(c) and (d)
and subclause 6.8(v). The notice shall specify in reasonable detail the event
that will cause an adjustment to the Conversion Basis, the Conversion Basis to
be in effect following the adjustment and the manner of determining the same.
6.11 A holder of Class A Shares on the record date for any dividend declared
payable on such shares will be entitled to such dividend notwithstanding that
such shares are converted after such record date and before the payment date of
such dividend, and the registered holder of any Common Share resulting from any
conversion shall be entitled to rank equally with the registered holders of all
other Common Shares in respect of all dividends declared payable to holders of
Common Shares of record on any date after the date of conversion. Subject as
aforesaid, no payment or adjustment will be made on account of any dividend,
accrued or otherwise, on the Class A Shares converted or the Common Shares
resulting from any conversion.
6.12 The Corporation shall not issue fractional shares upon any conversion of
Class A Shares. If a fractional interest in a Common Share would, except for
the provisions of this subparagraph, be deliverable upon conversion of a Class
A Share the Corporation shall issue a non-voting and non-dividend bearing
bearer scrip certificate of the Corporation in respect of such fractional
interest, which scrip certificate, when surrendered to the transfer agent for
the Common Shares at any office for the transfer of Common Shares of the
Corporation, together with similar scrip certificates representing in the
aggregate the right to receive at least one whole Common Share, shall be
exchangeable for a share certificate or certificates for the full number of
Common Shares called for by all the scrip certificates so surrendered and a new
scrip certificate in respect of any remaining fractional interest in a Common
Share called for thereby. Such scrip certificate shall become void on such
date, not less than two years after the date of issuance thereof, as shall be
determined by the directors of the Corporation and stated in such scrip
certificate and on such date each such scrip certificate which has become void
and the fractional interest represented thereby shall be deemed to have been
purchased by the Corporation. Such scrip certificate shall be in such form and
contain such reasonable terms and provisions as the directors shall at any time
or from time to time determine.
35
1P
Voting Rights
7.1 Except as required by the Business Corporations Act, as now enacted or as
the same may from time to time be amended, re-enacted or replaced (and in the
case of such amendment, re-enactment or replacement, any reference herein shall
be read as referring to the amended, re-enacted or replaced provisions) (the
"Act"), the holders of the Class A Shares shall not be entitled as such (except
as hereinafer specifically provided) to receive notice of or to attend any
meeting of the shareholders of the Corporation and shall not be entitled to
vote at any such meeting. The holders of the Class A Shares shall, however, be
entitled to notice of meetings of the shareholders called for the purpose of
authorizing the dissolution of the Corporation or the sale of its undertaking
or a substantial part thereof.
General
8.1 The confirmation described in section 180 of the Act, of a resolution
authorizing an amendment to the articles deleting or varying a preference,
right, condition, restriction, limitation or prohibition attaching to the Class
A Shares or creating special shares ranking in any respect in priority to or on
a parity with the Class A Shares may be given by at least two-thirds (2/3) of
the votes cast at a meeting of the holders of the Class A Shares duly called
for that purpose and held upon at least twenty-one (21) days notice at which
the holders of at least ten per cent (10%) of the then outstanding Class A
Shares are present or represented by proxy. If at any such meeting the holders
of ten per cent (10%) of the outstanding Class A Shares are not present or
represented by proxy within half an hour after the time appointed for the
meeting, then the meeting shall be adjourned to such date not being less than
fourteen (14) days later and to such time and place as may be appointed by the
chairman and at least ten (10) days' notice shall be given of such adjourned
meeting but it shall not be necessary in such notice to specify the purpose for
which the meeting was originally called. At such adjourned meeting the holders
of Class A Shares present or represented by proxy may transact the business for
which the meeting was originally called and the confirmation of the holders of
Class A Shares referred to above may be given by at least two-thirds (2/3) of
the votes cast at such adjourned meeting. The formalities to be observed with
respect to the giving of notice of any such meeting and the conduct thereof
shall be those from time to time prescribed in the by-laws of the Corporation
with respect to meetings of shareholders. On every poll taken at every such
meeting
36
2
every holder of Class A Shares shall be entitled to one (1) vote in respect of
each Class A Share held.
8.2 Save and except with respect to dividends, the Common Shares shall rank
junior to the Class A Shares and shall be subject in all respects to the
preferences, rights, conditions, restrictions, limitations and prohibitions
attaching to the Class A Shares.
B. Any two officers or directors of the Corporation be and they are hereby
authorized and directed on behalf of the Corporation to deliver Articles of
Amendment in duplicate to the Minister of Consumer and Commercial Relations and
to sign and execute all documents and to do all things necessary or advisable
in connection with the foregoing."
5. The amendment has been duly authorized La modification a ete dument
as required by Sections 167 and 169 autorisee conformement a
(as applicable) of the Business l'article 167 et, s'il y a
Corporations Act. lieu, a l'article 169 de la
Loi sur les compagnies.
6. The resolution authorizing the Les actionnaires ou les
amendment was approved by the administrateurs (le cas
shareholders/directors (as echeant) de la compagnie ont
applicable) of the corporation on approuve la resolution
autorisant la modification
11 December 1981
- -------------------------------------------------------------------------------
(Day, Month, Year)
(jour, mois, annee)
These articles are signed in duplicate. Les presents statuts sont
signes en double
exemplaire.
GEDDES RESOURCES LIMITED
--------------------------------------
(Name of Corporation)
(Denomination sociale de la compagnie)
37
ONTARIO CORPORATION NUMBER
481860
ARTICLES OF AMENDMENT
1. THE NAME OF THE CORPORATION IS
G E D D E S R E S O U R C E S L I M I T E D
2. DATE OF INCORPORATION/AMALGAMATION June 3, 1981
---------------
(DAY, MONTH AND
YEAR)
3. THE FOLLOWING IS A CERTIFIED COPY OF THE RESOLUTION AMENDING
THE ARTICLES OF THE CORPORATION:
WHEREAS Geddes Resources Limited (the "Corporation")
was incorporated under the Laws of the Province of Ontario
by Articles of Incorporation dated June 3, 1981;
AND WHEREAS the authorized capital of the Corporation
is divided into 10,000,000 non-cumulative, convertible,
redeemable, non-voting Class A preferred shares with a par
value of $10.00 each (hereinafter called "Class A Shares")
and 10,000,000 Common Shares without par value;
AND WHEREAS 74,910 of the said Class A shares and
909,910 Common Shares without par value are outstanding as
fully paid and non-assessable;
NOW THEREFORE BE IT RESOLVED AS A SPECIAL RESOLUTION
THAT the Articles of the Corporation are hereby amended to:
(a) decrease the authorized capital of the corporation
by cancelling the 9,925,190 unissued Class A shares; and
38
(b) reclassify, change and subdivide the 74,910 issued
Class A shares of the Corporation into 374,550 shares
without par value on the basis of 5 shares without par
value for each issued Class A share, the said shares
without par value to rank on a parity with the 909,910
issued and outstanding shares without par value so that the
authorized capital of the corporation shall consist of
10,000,000 shares without par value of which 1,284,460 of
the said shares are declared to be issued and outstanding
as fully paid and non-assessable.
4. THE AMENDMENT HAS BEEN DULY AUTHORIZED AS REQUIRED
BY SUBSECTIONS 2, 3 AND 4 (AS APPLICABLE) OF
SECTION 189 OF THE BUSINESS CORPORATIONS ACT.
5. THE RESOLUTION AUTHORIZING THE AMENDMENT WAS
CONFIRMED BY THE SHAREHOLDERS OF THE CORPORATION ON
June 30, 1982
-------------
6. THESE ARTICLES ARE EXECUTED IN DUPLICATE FOR
DELIVERY TO THE MINISTER.
CERTIFIED
GEDDES RESOURCES LIMITED
------------------------
(NAME OF CORPORATION)
(CORPORATE SEAL) BY /s/ President
-------------------------------
(SIGNATURE) (DESCRIPTION OF
OFFICE)
BY /s/ Secretary
---------------------------------
(SIGNATURE) (DESCRIPTION OF
OFFICE)
39
Ontario Corporation Number
Numero de la compagnie en Ontario
481860
ARTICLES OF AMENDMENT
STATUTS DE MODIFICATION
1. The present name of the Denomination sociale
corporation is: actuelle de la compagnie:
G E D D E S R E S O U R C E S L I M I T E D
2. The name of the corporation Nouvelle denomination
is changed to (if applica- sociale de la compagnie
ble): (s'il y a lieu):
3. Date of incorporation Date de la constitution ou
amalgamation: de la fusion:
3 June 1981
----------------------
(Day, Month, Year,)
(jour, mois, annee)
4. The articles of the corpora- Les statuts de la compagnie
tion are amended as follows: sont modifies de la facon
suivante:
RESOLVED that the articles of the Corporation be amended
to provide that the Corporation shall have a minimum of four
and a maximum of twelve directors.
40
5. The amendment has been duly La modification a ete
authorized as required by dument autorisee conformement
Sections 167 and 169 (as a l'article 167 et, s'il y
applicable) of the Business a lieu, a l'article 169 de la
Corporations Act. Loi sur les compagnies.
6. The resolution authorizing Les actionnaires ou les
the amendment was approved administrateurs (le cas
by the shareholders/ echeant) de la compagnie
directors (as applicable) ont approuve la resolution
of the corporation on autorisant la modification
28 April 1987
- -----------------------------------------------------------------------------
(Day, Month, Year)
(jour, mois, annee)
These articles are signed Les presents statuts sont
in duplicate. signes en double
exemplaire.
GEDDES RESOURCES LIMITED
------------------------
(Name of Corporation)
(Denomination sociale de la compagnie)
By/Par: /s/ Secretary-Treasurer
-----------------------------------------------
(Signature) (Description of Office)
(Signature) (Fonction)
41
Ontario Corporation Number
Numero de la compagnie en Ontario
481860
ARTICLES OF AMENDMENT
STATUTS DE MODIFICATION
1. The present name of the Denomination sociale actuelle de
corporation is: la compagnie:
G E D D E S R E S O U R C E S L I M I T E D
2. The name of the corporation is Nouvelle denomination sociale de la
changed to (if applicable): compagnie (s'il y a lieu)
3. Date of incorporation/ Date de la constitution ou de
amalgamation la fusion:
3 June 1981
- -----------------------------------------------------------------------------
(Day, Month, Year)
(jour, mois, annee)
4. The articles of the corporation Les statuts de la compagnie sont
are amended as follows: modifies de la facon suivante:
WHEREAS the authorized capital of the Corporation consists of 10,000,000
shares without par value;
AND WHEREAS it is considered necessary and expedient in the interests of
the Corporation to amend its articles of incorporation as hereinafter provided;
BE IT RESOLVED as a special resolution that the articles of the
Corporation be amended as follows:
42
(a) to redesignate the 10,000,000 shares of the Corporation, both issued and
unissued, as common shares;
43
(b) to delete the number of shares without par value that the Corporation is
authorized to issue and to provide that the Corporation may henceforth
issue an unlimited number of common shares without par value;
(c) to declare that, after giving effect to the foregoing, the classes and
maximum number of shares that the Corporation is authorized to issue shall
be an unlimited number of common shares without par value.
5. The amendment has been duly authorized La modification a ete dument
as required by Sections 167 and 169 autorisee conformement a
(as applicable) of the Business l'article 167 et, s'il y a
Corporations Act. lieu, a l'article 169 de
la Loi sur les compagnies.
6. The resolution authorizing the Les actionnaires ou les
amendment was approved by the adminstrateurs (le cas
shareholders/directors (as echeant) de la compagnie ont
applicable) of the corporation on approuve la resolution
autorisant la modification
30 March 1988
- --------------------------------------------------------------------------------
(Day, Month, Year)
(jour, mois, annee)
These articles are signed in . Les presents statuts sont
duplicate signes en double exemplaire.
GEDDES RESOURCES LIMITED
-------------------------------------
(Name of Corporation)
(Denomination sociale de compagnie)
G. Samuel Carpenter, Secretary - By/Par. /s/ G.S. Carpenter
---------------------------
Treasurer (Signature) (Description of Office)
44
Ontario Corporation Number
Numero de la compagnie en Ontario
481860
ARTICLES OF AMENDMENT
STATUTS DE MODIFICATION
1. The present name of the corporation Denomination sociale
is: actuelle de la compagnie:
G E D D E S R E S O U R C E S L I M I T E D
2. The name of the corporation is Nouvelle denomination sociale
changed to (if applicable): N/A de la compagnie (s'il y a lieu):
3. Date of incorporation/amalgamation: Date de la constitution
ou de la fusion:
03/06/81
- --------------------------------------------------------------------------------
(Day, Month, Year)
(jour, mois, annee)
4. The articles of the corporation Les statuts de la
are amended as follows: compagnie sont modifies
de la facon suivante:
RESOLVED AS A SPECIAL RESOLUTION THAT the Articles of the Corporation be
amended to provide that the number of directors of the Corporation shall
consist of a minimum of three (3) and a maximum of twelve (12) and that:
(i) until otherwise determined, the number of directors of the Corporation
shall be 3; and
(ii) having regard to such minimum and maximum numbers, the directors of the
Corporation are hereby empowered to determine the number of directors
of the Corporation hereafter from time to time.
45
5. The amendment has been duly La modification a ete
authorized as required by dument autorisee
Sections 168 & 170 (as applicable) conformement a
of the Business Corporations l'article 168 et, s'il y
Act. a lieu, a l'article 170
de la Loi sur les
compagnies.
6. The resolution authorizing the Les actionnaires ou les
amendment was approved by the administrateurs (le cas
shareholders/directors (as applicable) echeant) de la compagnie of
of the corporation on ont approuve la resolution
autorisant la modifica-
tion
29/06/93
- -------------------------------------------------------------------------------
(Day, Month, Year)
(jour, mois, annee)
These articles are signed in duplicate. Les presents statuts sont
signes en double
exemplaire
GEDDES RESOURCES LIMITED
--------------------------------------
(Name of Corporation)
(Denomination sociale de la compagnie)
By/Par: /s/ Secretary
----------------------------------------------------
(Signature) (Description of
Office)
(Signature) (Fonction)
46
Ontario Corporation Number
Numero de la compagnie en
Ontario
481860
ARTICLES OF ARRANGEMENT
STATUS D'ARRANGEMENT
1. The name of the corporation is: Denomination sociale de
la compagnie:
G E D D E S R E S O U R C E S L I M I T E D
2. The new name of the corporation Nouvelle denomination sociale
(if changed by the arrangement:) de la compagnie si elle
est modifiee par suite de
l'arrangement:
3. Date of incorporation/amalgamation: Date de la constitution
ou de la fusion:
03 JUNE 1981
- ------------------------------------------------------------------------------
(Day, Month, Year)
(jour, mois, annee)
4. The arrangement has been approved Les actionnaires de la
by the shareholders of the compagnie ont approuve
corporation in accordance with l'arrangement conforme-
section 182 of the Business ment a l'article 182 de
Corporations Act. la Loi sur les
compagnies.
5. A copy of the arrangement is Une copie de l'arrange-
attached to these articles as ment constitue l'annexe
Exhibit "A". "A".
47
6. The arrangement was approved by the La cour a approuve
court on l'arrangement le
24 OCTOBER 1995
-----------------------------------------------------------------------------
(Day, Month, Year)
(jour, mois, annee)
and a certified copy of the Order une copie certifiee
of the court is attached to these conforme de l'ordonnance de
articles as Exhibit "B". la cour constitue l'annexe
"B".
7. The terms and conditions to which Les conditions que
the scheme is made subject by the l'ordonnance impose au
Order have been complied with. plan en vertu de
l'ordonnance ont
ete respectees.
These articles are signed in Les presents statuts sont
duplicate. signes en double
exemplaire.
GEDDES RESOURCES LIMITED
--------------------------------------
(Name of Corporation)
(Denomination sociale de la compagnie)
By/Par: /s/ Secretary
--------------------------------------
48
EXHIBIT "A"
ARRANGEMENT AGREEMENT
THIS ARRANGEMENT AGREEMENT is dated as of the 29th day of August, 1995.
BETWEEN:
ROYAL OAK MINES INC., a corporation amalgamated
pursuant to the provisions of the Business
Corporations Act (Ontario)
(hereinafter referred to as "Royal Oak")
OF THE FIRST PART,
- and -
EL CONDOR RESOURCES LTD., a corporation
amalgamated pursuant to the provisions of the
British Columbia Company Act
(hereinafter referred to as "El Condor")
OF THE SECOND PART,
- and -
ST. PHILIPS RESOURCES INC., a corporation
incorporated pursuant to the provisions of the
British Columbia Company Act
(hereinafter referred to as "St. Philips")
OF THE THIRD PART,
- and -
GEDDES RESOURCES LIMITED, a corporation
incorporated pursuant to the provisions of the
Business Corporation Act (Ontario)
(hereinafter referred to as "Geddes")
OF THE FOURTH PART.
WHEREAS El Condor and St. Philips propose to convene meetings of their
members to, among other things, authorize their continuance under the OBCA and
to approve the Arrangement in accordance with the provisions of the OBCA;
49
AND WHEREAS Geddes proposes to convene a meeting of its shareholders to,
among other things, approve the Arrangement in accordance with the provisions
of the OBCA;
AND WHEREAS, upon the Arrangement becoming effective, the common shares of
each of El Condor, St. Philips and Geddes will be exchanged for Royal Oak
Common Shares and/or cash in accordance with the provisions of this Agreement
and the Plan of Arrangement;
NOW THEREFORE, in consideration of the premises and the respective
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
each of the parties hereto, the parties hereto hereby covenant and agree as
follows:
1
50
ARTICLE ONE
DEFINITIONS AND INTERPRETATION
Section 1.01 Definitions: In this Agreement, unless there is something
in the subject matter or context inconsistent therewith, the following
capitalized words and terms shall have the following meanings:
"Agreement" means this arrangement agreement as the same may be supplemented or
amended from time to time;
"Arrangement" means the arrangement pursuant to section 182 of the OBCA, on the
terms and conditions set forth herein and in the Plan of Arrangement;
"BCCA" means the British Columbia Company Act, R.S.B.C. 1979, c.59, as amended;
"Business Day" means a day which is not a Saturday, Sunday or statutory holiday
in Canada;
"Charter Documents" means memorandum and articles or articles and by-laws, as
applicable;
"Court" means the Ontario Court of Justice (General Division);
"Director" means the Director under the OBCA;
"Dissenting Shareholders" means holders of El Condor Common Shares, St. Philips
Common Shares or Geddes Common Shares who exercise in accordance with
applicable statutory provisions the right of dissent available to such holders
in respect of the continuance of El Condor and St. Philips under the OBCA
and/or the Arrangement and do not withdraw such dissent;
"Effective Date" means the date set forth in the certificates of arrangement
issued by the Director to each of El Condor, St. Philips and Geddes under the
OBCA giving effect to the Arrangement;
"El Condor" means El Condor Resources Ltd., a corporation amalgamated under the
BCCA;
"El Condor Common Shares" means the common shares in the capital of El Condor,
as the same are constituted on the date hereof;
"El Condor Financial Statements" means the audited financial statements of El
Condor for the year ended December 31, 1994 and the unaudited financial
statements of El Condor for the six months ended June 30, 1995;
51
"El Condor Lock-Up Agreement" means the agreement made the 16th day of August,
1995 among Royal Oak, El Condor and the El Condor Principal Shareholders;
"El Condor Meeting" means the extraordinary general meeting of shareholders of
El Condor to be held to consider, among other things, the Arrangement, and any
adjournment thereof;
"El Condor Principal Shareholders" means Robert G. Hunter, Robert A. Dickinson,
David J. Copeland, Ronald W. Thiessen and Douglas B. Forster;
"Final Order" means the final order of the Court approving the Arrangement;
"Geddes" means Geddes Resources Limited, a corporation incorporated under the
OBCA;
"Geddes Common Shares" means the common shares in the capital of Geddes, as the
same are constituted on the date hereof;
"Geddes Financial Statements" means the audited consolidated financial
statements of Geddes for the year ended December 31, 1994 and the unaudited
consolidated financial statements of Geddes for the six months ended June 30,
1995;
"Geddes Meeting" means the special meeting of shareholders of Geddes to be held
to consider the Arrangement and any adjournment thereof;
"Interim Order" means the interim order of the Court concerning the Arrangement
pursuant to the application therefor contemplated by section 2.01 hereof;
"Meetings" means the El Condor Meeting, the St. Philips Meeting and the Geddes
Meeting;
"OBCA" means the Business Corporations Act, R.S.O. 1990, c. B.16, as amended;
"Person" includes an individual, sole proprietorship, partnership,
unincorporated association, unincorporated syndicate, unincorporated
organization, trust, body corporate, trustee, executor, administrator or other
legal representative of the Crown or any agency or instrumentality thereof;
2
"Plan of Arrangement" means the plan of arrangement attached to this Agreement
as Exhibit 1, as amended from time to time;
"Prior Valuation" means an existing independent appraisal or valuation or any
material non-independent appraisal or valuation in respect of a company, its
material assets or its securities;
52
"Proxy Circular" means the joint management proxy circular of El Condor, St.
Philips and Geddes to be sent to the shareholders of each of El Condor, St.
Philips and Geddes in connection with the Meetings;
"Royal Oak" means Royal Oak Mines Inc., a corporation amalgamated under the
OBCA;
"Royal Oak Common Shares" means the common shares in the capital of Royal Oak,
as the same are constituted on the date hereof;
"Royal Oak Financial Statements" means the audited consolidated financial
statements of Royal Oak for the year ended December 31, 1994 and the unaudited
consolidated financial statements of Royal Oak for the six months ended June
30, 1995;
"St. Philips" means St. Philips Resources Inc., a corporation incorporated
under the BCCA;
"St. Philips Common Shares" means the common shares in the capital of St.
Philips, as the same are constituted on the date hereof;
"St. Philips Financial Statements" means the audited consolidated financial
statements of St. Philips for the year ended December 31, 1994 and the
unaudited consolidated financial statements of St. Philips for the six months
ended June 30, 1995;
"St. Philips Directors" means John Ivany, Jim Heras, James S. Kermeen and
Evangelos Catevatis;
"St. Philips Lock-Up Agreement" means the agreement made the 18th day of
August, 1995 among Royal Oak, St. Philips and the St. Philips Directors;
"St. Philips Meeting" means the extraordinary general meeting of shareholders
of St. Philips to be held to consider, among other things, the Arrangement, and
any adjournment thereof; and
"Subsidiary" means a subsidiary as defined in the OBCA.
Section 1.02 Currency: All amounts of money which are referred to in
this Agreement are expressed in lawful money of Canada unless otherwise
specified.
Section 1.03 Interpretation Not Affected by Heading: The division of
this Agreement into articles, sections, subsections, paragraphs and
subparagraphs and the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation of the provisions
of this Agreement. The terms "this Agreement", "hereof", "herein", "hereunder"
and similar expressions refer to this Agreement and
53
the exhibit hereto as a whole and not to any particular article, section,
subsection, paragraph or subparagraph hereof and include any agreement or
instrument supplementary or ancillary hereto.
Section 1.04 Number and Gender: Unless the context otherwise requires,
words importing the singular number only shall include the plural and vice
versa and words importing the use of either gender shall include both genders
and neuter.
Section 1.05 Date for Any Action: In the event that any date on which
any action is required to be taken hereunder by any of the parties hereto is
not a Business Day in the place where the action is required to be taken, such
action shall be required to be taken on the next succeeding day which is a
Business Day in such place.
Section 1.06 Meaning: Words and phrases used herein and defined in the
OBCA shall have the same meaning herein as in the OBCA unless the context
otherwise requires.
ARTICLE TWO
ARRANGEMENT
Section 2.01 Arrangement: As soon as reasonably practicable, El Condor,
St. Philips and Geddes shall apply to the Court pursuant to section 182 of the
OBCA for an order approving the Arrangement and in connection with such
application shall:
3
54
(a) forthwith file, proceed with and diligently prosecute an
application for an Interim Order under section 182 of the OBCA
providing for, among other things, the calling and holding of the
Meetings; and
(b) subject to obtaining such approval of the shareholders of El
Condor, St. Philips and Geddes as contemplated in the Interim Order
as may be directed by the Court in the Interim Order, take the steps
necessary to submit the Arrangement to the Court and apply for the
Final Order,
and, subject to the fulfilment of the conditions set forth in Article Five, El
Condor, St. Philips and Geddes shall deliver to the Director articles of
arrangement and such other documents as may be required to give effect to the
Arrangement.
Section 2.02 Effective Date: The Arrangement shall become effective on
the Effective Date, which shall not be more than ten Business Days after the
date of the Final Order unless otherwise agreed to in writing by Royal Oak, El
Condor, St. Philips and Geddes.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of Royal Oak: Royal Oak
hereby represents and warrants to and in favour of the other parties hereto and
acknowledges that such parties are relying upon such representations and
warranties in connection with the matters contemplated by this Agreement, that:
(a) Royal Oak has been duly amalgamated and is a valid and
subsisting corporation under the provisions of the OBCA, has all
requisite corporate power and authority to carry on its business as
now being carried on by it and owns or leases and operates its
properties and assets and is duly licensed or otherwise qualified to
carry on business in each jurisdiction in which a material amount of
its business is conducted or wherein the character of the properties
and assets now owned by it makes such qualification necessary;
(b) Royal Oak has no Subsidiaries which are material to its
business or operations;
(c) the authorized capital of Royal Oak consists of an unlimited
number of common shares and an unlimited number of special shares,
issuable in series, of which as of the date hereof, 119,020,714
common shares and no special shares were issued and outstanding;
55
(d) the execution, delivery and performance of this Agreement and
the agreements, documents and transactions contemplated herein are
within the corporate power and authority of Royal Oak and have been
duly authorized by all necessary corporate action and this Agreement
constitutes a valid and binding obligation of Royal Oak enforceable
in accordance with its terms;
(e) Royal Oak does not have any outstanding agreements,
subscriptions, warrants, options or commitments, nor has it granted
any rights or privileges capable of becoming an agreement,
subscription, warrant, option or commitment, obligating Royal Oak to
issue any additional shares or other securities, except for options
granted to directors, officers and employees of Royal Oak to purchase
an aggregate of 2,380,166 Royal Oak Common Shares and warrants to
purchase an aggregate of 3,000,000 Royal Oak Common Shares;
(f) the Royal Oak Financial Statements present fairly the
consolidated financial condition and results of operations of Royal
Oak as at the respective dates and for the respective periods
indicated in such consolidated financial statements and have been
prepared in accordance with Canadian generally accepted accounting
principles applied on a consistent basis, except as otherwise stated
in the notes to such consolidated financial statements;
(g) since June 30, 1995, there has been no material adverse change
in the business, operations, properties, assets or condition,
financial or otherwise, of Royal Oak on a consolidated basis from
that shown in the unaudited consolidated financial statements of
Royal Oak as at and for the six months ended June 30, 1995;
(h) Royal Oak is the beneficial owner of the properties and assets
described as being owned by it in the Royal Oak Financial Statements
free and clear of material encumbrances, except as disclosed in the
Royal Oak Financial Statements;
4
(i) Royal Oak has no liability or obligation including, without
limitation, tax liabilities, whether accrued, absolute, contingent or
otherwise, not reflected in the Royal Oak Financial Statements,
except liabilities and obligations incurred in the ordinary course of
business since June 30, 1995, which liabilities and obligations are
not materially adverse in the aggregate;
56
(j) except as described in the Royal Oak Financial Statements,
there are no actions, suits, proceedings, investigations or
outstanding claims or demands, whether or not purportedly on behalf
of Royal Oak, pending, or, to the knowledge of Royal Oak, threatened
against or affecting Royal Oak at law or in equity or before or by
any governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or before any arbitrator, nor
is there any judgment, order, decree or award of any court or other
governmental authority having jurisdiction, obtained, pending or to
the knowledge of Royal Oak, threatened, against Royal Oak, which
would prevent or materially hinder the consummation of the
Arrangement or the other transactions contemplated by this Agreement
or which would involve the reasonable possibility of any material
judgment or liability, whether or not covered by insurance, which
could prevent or materially hinder the consummation of the
Arrangement and the timely completion of Royal Oak's obligations
pursuant to the Arrangement or which in the aggregate would have a
material adverse effect on the business, operations, properties,
assets or condition, financial or otherwise, of Royal Oak;
(k) since June 30, 1995 Royal Oak has not declared or paid any
dividends or made any distribution of its properties or assets to its
shareholders and Royal Oak has not disposed of any of its properties
or assets or incurred any material indebtedness;
(l) the business of Royal Oak is being conducted in all material
respects in compliance with all applicable laws, regulations and
ordinances of all authorities having jurisdiction;
(m) each contract or agreement with Royal Oak and any other Person
which is material to the ownership, use or operation of a material
portion of the business, properties or assets of Royal Oak is in full
force and effect and, to the best of the knowledge and belief of
Royal Oak, is valid, binding and enforceable against each of the
parties thereto in accordance with its terms and no material breach
or default exists in respect thereof on the part of any party thereto
and no event has occurred which, with the giving of notice or the
lapse of time or both, would constitute such a material breach or
default;
(n) none of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby
57
or the fulfillment of or compliance with the terms and provisions
hereof do or will, nor will they with the giving of notice or the
lapse of time or both:
(i) violate any provision of any law or administrative
regulation or any judicial or administrative order, award,
judgment or decree applicable to Royal Oak,
(ii) conflict with any of the terms, conditions or
provisions of the Charter Documents of Royal Oak,
(iii) conflict with, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of the
performance required by, any material agreement, covenant,
undertaking, commitment, instrument, judgment, order, decree
or award to which Royal Oak is a party or by which it is bound
or to which its property is subject, all as of the Effective
Date, or
(iv) result in the cancellation, suspension or material
alteration in the terms of any material licence, permit or
authority held by Royal Oak or in the creation of any lien,
charge, security interest or encumbrance upon any of the
material assets of Royal Oak under any such material agreement,
covenant, undertaking, commitment, instrument, judgment, order,
decree or award or give to any other Person any material
interest or rights, including rights of purchase, termination,
cancellation or acceleration, under any such material
agreement, covenant, undertaking, commitment, instrument,
judgment, order, decree or award;
(o) the Form 20-F of Royal Oak dated May 19, 1995, together with
the Royal Oak Financial Statements, the 1994 Annual Report of Royal
Oak and other public filings made by Royal Oak under applicable
Canadian disclosure laws since May 19, 1995, when taken together
constitute full, true and plain disclosure of all material facts
relating to the business, operations and capital of Royal Oak and the
other matters therein and do not contain any untrue statement of a
material fact or omit to state any material
5
58
fact required to be stated therein or necessary in order to make the
statements made therein not misleading in light of the circumstances
under which they were made and, in particular, no material fact
exists on the date hereof which was not disclosed in such public
filings and which if publicly disclosed would reflect that a
material adverse change (or an event, condition or state of facts
which might reasonably have been expected to give rise to any such
change) had occurred in the assets, liabilities, business,
operations or capital of Royal Oak; and
(p) there have been no Prior Valuations with respect to Royal Oak
prepared within the previous 24 months, except as have been disclosed
to each of the parties hereto.
Section 3.02 Representations and Warranties of El Condor: El Condor
hereby represents and warrants to and in favour of the other parties hereto and
acknowledges that such parties are relying upon such representations and
warranties in connection with the matters contemplated by this Agreement, that:
(a) El Condor has been duly amalgamated and is a valid and
subsisting corporation under the provisions of the BCCA, has all
requisite corporate power and authority to carry on its business as
now being carried on by it and owns or leases and operates its
properties and assets and is duly licensed or otherwise qualified to
carry on business in each jurisdiction in which a material amount of
its business is conducted or wherein the character of the properties
and assets now owned by it makes such qualification necessary;
(b) El Condor has no Subsidiaries;
(c) the authorized capital of El Condor consists of 100,000,000
common shares, of which as of the date hereof, 14,503,903 common
shares were issued and outstanding;
(d) the execution, delivery and performance of this Agreement and
the agreements, documents and transactions contemplated herein are
within the corporate power and authority of El Condor and have been
duly authorized by all necessary corporate action and this Agreement
constitutes a valid and binding obligation of El Condor enforceable
in accordance with its terms;
(e) El Condor does not have any outstanding agreements,
subscriptions, warrants, options or commitments, nor has
59
it granted any rights or privileges capable of becoming an agreement,
subscription, warrant, option or commitment, obligating El Condor to
issue any additional shares or other securities;
(f) the El Condor Financial Statements present fairly the financial
condition and results of operations of El Condor as at the respective
dates and for the respective periods indicated in such financial
statements and have been prepared in accordance with Canadian
generally accepted accounting principles applied on a consistent
basis, except as otherwise stated in the notes to such financial
statements;
(g) since June 30, 1995, there has been no material adverse change
in the business, operations, properties, assets or condition,
financial or otherwise, of El Condor from that shown in the unaudited
financial statements of El Condor as at and for the six months ended
June 30, 1995;
(h) El Condor is the beneficial owner of the properties and assets
described as being owned by it in the El Condor Financial Statements
free and clear of material encumbrances, except as disclosed in the
El Condor Financial Statements;
(i) El Condor has no liability or obligation including, without
limitation, tax liabilities, whether accrued, absolute, contingent or
otherwise, not reflected in the El Condor Financial Statements,
except liabilities and obligations incurred in the ordinary course of
business since June 30, 1995, which liabilities and obligations are
not materially adverse in the aggregate and except for El Condor's
engagement of TD Securities as its financial advisor and the
obligation to remunerate TD Securities in connection with its
services to be provided to El Condor pursuant to the Arrangement and
except as contemplated in the El Condor Lock-Up Agreement;
(j) except as described in the El Condor Financial Statements,
there are no actions, suits, proceedings, investigations or
outstanding claims or demands, whether or not purportedly on behalf
of El Condor, pending, or, to the knowledge of El Condor, threatened
against or affecting El Condor at law or in equity or before or by
any governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or before any arbitrator, nor
is there any judgment, order, decree or award of any court or other
governmental authority having jurisdiction, obtained, pending or to
the knowledge of El Condor, threatened, against El
60
Condor, which would prevent or materially hinder the consummation
6
61
of the Arrangement or the other transactions contemplated by this
Agreement or which would involve the reasonable possibility of any
material judgment or liability, whether or not covered by insurance,
which could prevent or materially hinder the consummation of the
Arrangement and the timely completion of El Condor's obligations
pursuant to the Arrangement or which in the aggregate would have a
material adverse effect on the business, operations, properties,
assets or condition, financial or otherwise, of El Condor;
(k) since June 30, 1995 El Condor has not declared or paid any dividends
or made any distribution of its properties or assets to its
shareholders and El Condor has not disposed of any of its properties
or assets or incurred any material indebtedness;
(l) the business of El Condor is being conducted in all material
respects in compliance with all applicable laws, regulations and
ordinances of all authorities having jurisdiction;
(m) each contract or agreement with El Condor and any other Person
which is material to the ownership, use or operation of a material
portion of the business, properties or assets of El Condor is in full
force and effect and, to the best of the knowledge and belief of El
Condor, is valid, binding and enforceable against each of the parties
thereto in accordance with its terms and no material breach or
default exists in respect thereof on the part of any party thereto
and no event has occurred which, with the giving of notice or the
lapse of time or both, would constitute such a material breach or
default;
(n) none of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or the
fulfillment of or compliance with the terms and provisions hereof do
or will, nor will they with the giving of notice or the lapse of time
or both:
(i) violate any provision of any law or administrative
regulation or any judicial or administrative order, award,
judgment or decree applicable to El Condor,
(ii) conflict with any of the terms, conditions or provisions
of the Charter Documents of El Condor,
(iii) conflict with, result in a breach of, constitute a default
under, or accelerate or permit the acceleration of the
performance required by, any
62
material agreement, covenant, undertaking, commitment,
instrument, judgment, order, decree or award to which El
Condor is a party or by which it is bound or to which its
property is subject, all as of the Effective Date, or
(iv) result in the cancellation, suspension or material
alteration in the terms of any material licence, permit or
authority held by El Condor or in the creation of any lien,
charge, security interest or encumbrance upon any of the
material assets of El Condor under any such material agreement,
covenant, undertaking, commitment, instrument, judgment, order,
decree or award or give to any other Person any material
interest or rights, including rights of purchase, termination,
cancellation or acceleration, under any such material
agreement, covenant, undertaking, commitment, instrument,
judgment, order, decree or award;
(o) the Form 20-F of El Condor dated June 28, 1995, together with
the El Condor Financial Statements, the Information Circular for the
Annual General Meeting of Shareholders of El Condor held on June 15,
1995 and other public filings made by El Condor under applicable
Canadian disclosure laws since June 28, 1995, when taken together
constitute full, true and plain disclosure of all material facts
relating to the business, operations and capital of El Condor and the
other matters therein and do not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made
therein not misleading in light of the circumstances under which they
were made and, in particular, no material fact exists on the date
hereof which was not disclosed in such public filings and which if
publicly disclosed would reflect that a material adverse change (or
an event, condition or state of facts which might reasonably have
been expected to give rise to any such change) had occurred in the
assets, liabilities, business, operations or capital of El Condor;
and
(p) there have been no Prior Valuations with respect to El Condor
prepared within the previous 24 months, except as have been disclosed
to each of the parties hereto.
Section 3.03 Representations and Warrants of St. Philips: St. Philips
hereby represents and warrants to and in favour of the other parties hereto and
acknowledges that such parties are
63
relying upon such representations and warranties in connection with the matters
contemplated by this Agreement, that:
7
64
(a) each of St. Philips and Stork Ventures Ltd. ("Stork") has been
duly incorporated and is a valid and subsisting corporation under the
provisions of the BCCA, has all requisite corporate power and
authority to carry on its business as now being carried on by it and
owns or leases and operates its properties and assets and is duly
licensed or otherwise qualified to carry on business in each
jurisdiction in which a material amount of its business is conducted
or wherein the character of the properties and assets now owned by it
makes such qualification necessary;
(b) St. Philips has no Subsidiaries which are material to its
business or operations other than Stork, all of the issued shares of
which are beneficially owned by St. Philips;
(c) the authorized capital of St. Philips consists of 20,000,000
common shares, of which as of the date hereof, 11,342,475 common
shares were issued and outstanding;
(d) the execution, delivery and performance of this Agreement and
the agreements, documents and transactions contemplated herein are
within the corporate power and authority of St. Philips and have been
duly authorized by all necessary corporate action and this Agreement
constitutes a valid and binding obligation of St. Philips enforceable
in accordance with its terms;
(e) St. Philips does not have any outstanding agreements,
subscriptions, warrants, options or commitments, nor has it granted
any rights or privileges capable of becoming an agreement,
subscription, warrant, option or commitment, obligating St. Philips
to issue any additional shares or other securities, except for
options granted to directors, officers and employees of St. Philips
to purchase an aggregate of 100,000 St. Philips Common Shares;
(f) the St. Philips Financial Statements present fairly the
consolidated financial condition and results of operations of St.
Philips as at the respective dates and for the respective periods
indicated in such consolidated financial statements and have been
prepared in accordance with Canadian generally accepted accounting
principles applied on a consistent basis, except as otherwise stated
in the notes to such consolidated financial statements;
(g) since June 30, 1995, there has been no material adverse change
in the business, operations, properties, assets
65
or condition, financial or otherwise, of St. Philips on a
consolidated basis from that shown in the unaudited consolidated
financial statements of St. Philips as at and for the six months
ended June 30, 1995;
(h) St. Philips is the beneficial owner of the properties and
assets described as being owned by it in the St. Philips Financial
Statements free and clear of material encumbrances, except as
disclosed in the St. Philips Financial Statements;
(i) neither St. Philips nor Stork has any liability or obligation
including, without limitation, tax liabilities, whether accrued,
absolute, contingent or otherwise, not reflected in the St. Philips
Financial Statements, except liabilities and obligations incurred in
the ordinary course of business since June 30, 1995, which
liabilities and obligations are not materially adverse in the
aggregate and except for St. Philips' engagement of Nesbitt Burns as
its financial advisor and the obligation to remunerate Nesbitt Burns
in connection with its services to be provided to St. Philips
pursuant to the Arrangement and except as contemplated in the St.
Philip's Lock-Up Agreement;
(j) except as described in the St. Philips Financial Statements,
there are no actions, suits, proceedings, investigations or
outstanding claims or demands, whether or not purportedly on behalf
of St. Philips or Stork, pending, or, to the knowledge of St.
Philips, threatened against or affecting St. Philips or Stork at law
or in equity or before or by any governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, or
before any arbitrator, nor is there any judgment, order, decree or
award of any court or other governmental authority having
jurisdiction, obtained, pending or to the knowledge of St. Philips,
threatened, against St. Philips or Stork, which would prevent or
materially hinder the consummation of the Arrangement or the other
transactions contemplated by this Agreement or which would involve
the reasonable possibility of any material judgment or liability,
whether or not covered by insurance, which could prevent or
materially hinder the consummation of the Arrangement and the timely
completion of St. Philips' obligations pursuant to the Arrangement or
which in the aggregate would have a material adverse effect on the
business, operations, properties, assets or condition, financial or
otherwise, of St. Philips and its Subsidiaries on a consolidated
basis;
8
66
(k) since June 30, 1995 St. Philips has not declared or paid any
dividends or made any distribution of its properties or assets to its
shareholders and neither St. Philips nor Stork has disposed of any of
its properties or assets or incurred any material indebtedness save
and except to Nesbitt Burns as contemplated in subsection 3.03(i);
(l) the business of St. Philips and Stork is being conducted in all
material respects in compliance with all applicable laws, regulations
and ordinances of all authorities having jurisdiction;
(m) each contract or agreement with St. Philips, Stork and any
other Person which is material to the ownership, use or operation of
a material portion of the business, properties or assets of St.
Philips and its Subsidiaries on a consolidated basis is in full force
and effect and, to the best of the knowledge and belief of St.
Philips, is valid, binding and enforceable against each of the
parties thereto in accordance with its terms and no material breach
or default exists in respect thereof on the part of any party thereto
and no event has occurred which, with the giving of notice or the
lapse of time or both, would constitute such a material breach or
default;
(n) none of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or the
fulfillment of or compliance with the terms and provisions hereof do
or will, nor will they with the giving of notice or the lapse of time
or both:
(i) violate any provision of any law or administrative
regulation or any judicial or administrative order, award,
judgment or decree applicable to St. Philips or Stork,
(ii) conflict with any of the terms, conditions or
provision of the Charter Documents of St. Philips or Stork.
(iii) conflict with, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of the
performance required by, any material agreement, covenant,
undertaking, commitment, instrument, judgment, order, decree or
award to which St. Philips or Stork is a party or by which
either of them is bound or to which their property is subject,
all as of the Effective Date, or
67
(iv) result in the cancellation, suspension or material
alteration in the terms of any material licence, permit or
authority held by St. Philips or Stork or in the creation of
any lien, charge, security interest or encumbrance upon any of
the material assets of St. Philips or Stork under any such
material agreement, covenant, under-taking, commitment,
instrument, judgment, order, decree or award or give to any
other Person any material interest or rights, including rights
of purchase, termination, cancellation or acceler-ation, under
any such material agreement, covenant, undertaking, commitment,
instrument, judgment, order, decree or award;
(o) the Listing Application of St. Philips to The Toronto Stock
Exchange dated September 15, 1994 together with the St. Philips
Financial Statements, the 1994 Annual Report of St. Philips and other
public filings made by St. Philips under applicable Canadian
disclosure laws since September 15, 1994, when taken together
constitute full, true and plain disclosure of all material facts
relating to the business, operations and capital of St. Philips and
the other matters therein and do not contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made
therein not misleading in light of the circumstances under which they
were made and, in particular, no material fact exists on the date
hereof which was not disclosed in such public filings and which if
publicly disclosed would reflect that a material adverse change (or
an event, condition or state of facts which might reasonably have
been expected to give rise to any such change) had occurred in the
assets, liabilities, business, operations or capital of St. Philips;
and
(p) there have been no Prior Valuations with respect to St. Philips
prepared within the previous 24 months except as have been disclosed
to each of the parties hereto.
Section 3.04 Representations and Warranties of Geddes: Geddes hereby
represents and warrants to and in favour of the other parties hereto and
acknowledges that such parties are relying upon such representations and
warranties in connection with the matters contemplated by this Agreement, that:
(a) Geddes has been duly incorporated and is a valid and subsisting
corporation under the provisions of the OBCA, has all requisite
corporate power and authority to carry on its business as now being
carried on by
9
68
it and owns or leases and operates its properties and assets and is
duly licensed or otherwise qualified to carry on business in each
jurisdiction in which a material amount of its business is conducted
or wherein the character of the properties and assets now owned by
it makes such qualification necessary;
(b) Geddes has no Subsidiaries which are material to its business
or operations;
(c) the authorized capital of Geddes consists of an unlimited
number of common shares and an unlimited number of special shares,
issuable in series, of which as of the date hereof, 36,693,721 common
shares were issued and outstanding;
(d) the execution, delivery and performance of this Agreement and
the agreements, documents and transactions contemplated herein are
within the corporate power and authority of Geddes and have been duly
authorized by all necessary corporate action and this Agreement
constitutes a valid and binding obligation of Geddes enforceable in
accordance with its terms;
(e) Geddes does not have any outstanding agreements, subscriptions,
warrants, options or commitments, nor has it granted any rights or
privileges capable of becoming an agreement, subscription, warrant,
option or commitment, obligating Geddes to issue any additional
shares or other securities, except for options granted to directors,
officers, employees, and consultants to, Geddes to purchase an
aggregate of 1,940,000 Geddes Common Shares;
(f) the Geddes Financial Statements present fairly the consolidated
financial condition and results of operations of Geddes as at the
respective dates and for the respective periods indicated in such
consolidated financial statements and have been prepared in
accordance with Canadian generally accepted accounting principles
applied on a consistent basis, except as otherwise stated in the
notes to such consolidated financial statements;
(g) since June 30, 1995, there has been no material adverse change
in the business, operations, properties, assets or condition,
financial or otherwise, of Geddes on a consolidated basis from that
shown in the unaudited consolidated financial statements of Geddes as
at and for the six months ended June 30, 1995;
69
(h) Geddes is the beneficial owner of the properties and assets
described as being owned by it in the Geddes Financial Statements
free and clear of material encumbrances, except as disclosed in the
Geddes Financial Statements;
(i) Geddes has no liability or obligation including, without
limitation, tax liabilities, whether accrued, absolute, contingent or
otherwise, not reflected in the Geddes Financial Statements, except:
(i) liabilities and obligations incurred in the ordinary course of
business since June 30, 1995, which liabilities and obligations are
not materially adverse in the aggregate; (ii) an agreement to
indemnify the Government of British Columbia from any claims made by
Falconbridge Limited and/or any shareholder of Geddes as a result of
the enactment of Order in Council No. 1439; (iii) the obligation to
carry out its current remediation/closure program on the Windy Craggy
Property; (iv) an indemnity to the members of the special committee
of the board of directors of Geddes established to consider and
report to the board with respect to the Arrangement and to the
special committee's professional advisors; and (v) the special
committee of the board of directors of Geddes' engagement of Gordon
Capital Corporation as its financial advisor and the obligation to
remunerate Gordon Capital in connection with its services to be
provided pursuant to the Arrangement;
(j) except as described in the Geddes Financial Statements, there
are no actions, suits, proceedings, investigations or outstanding
claims or demands, whether or not purportedly on behalf of Geddes,
pending, or, to the knowledge of Geddes, threatened against or
affecting Geddes at law or in equity or before or by any governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or before any arbitrator, nor is there any
judgment, order, decree or award of any court or other governmental
authority having jurisdiction, obtained, pending or to the knowledge
of Geddes, threatened, against Geddes, which would prevent or
materially hinder the consummation of the Arrangement or the other
transactions contemplated by this Agreement or which would involve
the reasonable possibility of any material judgment or liability,
whether or not covered by insurance, which could prevent or
materially hinder the consummation of the Arrangement and the timely
completion of Geddes' obligations pursuant to the Arrangement, or
which in the aggregate would have a material
10
70
adverse effect on the business, operations, properties, assets or
condition, financial or otherwise, of Geddes;
(k) since June 30, 1995 Geddes has not declared or paid any
dividends or made any distribution of its properties or assets to
its shareholders and Geddes has not disposed of any of its properties
or assets or incurred any material indebtedness;
(l) the business of Geddes is being conducted in all material
respects in compliance with all applicable laws, regulations and
ordinances of all authorities having jurisdiction;
(m) each contract or agreement with Geddes and any other Person
which is material to the ownership, use or operation of a material
portion of the business, properties or assets of Geddes is in full
force and effect and, to the best of the knowledge and belief of
Geddes, is valid, binding and enforceable against each of the parties
thereto in accordance with its terms and no material breach or
default exists in respect thereof on the part of any party thereto
and no event has occurred which, with the giving of notice or the
lapse of time or both, would constitute such a material breach or
default;
(n) none of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or the
fulfilment of or compliance with the terms and provisions hereof do
or will, nor will they with the giving of notice or the lapse of time
or both:
(i) violate any provision of any law or administrative
regulation or any judicial or administrative order, award,
judgment or decree applicable to Geddes,
(ii) conflict with any of the terms, conditions or
provisions of the Charter Documents of Geddes,
(iii) conflict with, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of the
performance required by, any material agreement, covenant,
undertaking, commitment, instrument, judgment, order, decree or
award to which Geddes is a party or by which it is bound or to
which its property is subject, all as of the Effective Date, or
(iv) result in the cancellation, suspension or material
alteration in the terms of any material licence, permit or
authority held by Geddes or in the
71
creation of any lien, charge, security interest or encumbrance
upon any of the material assets of Geddes under any such
material agreement, covenant, undertaking, commitment,
instrument, judgment, order, decree or award or give to any
other Person any material interest or rights, including rights
of purchase, termination, cancellation or acceleration, under
any such material agreement, covenant, undertaking,
commitment, instrument, judgment, order, decree or award;
(o) the Geddes Financial Statements, together with the 1994 Annual
Report of Geddes and other public filings made by Geddes under
applicable Canadian disclosure laws since January 1, 1995, when taken
together constitute full, true and plain disclosure of all material
facts relating to the business, operations and capital of Geddes and
the other matters therein and do not contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made
therein not misleading in light of the circumstances under which they
were made and, in particular, no material fact exists on the date
hereof which was not disclosed in such public filings and which if
publicly disclosed would reflect that a material adverse change (or
an event, condition or state of facts which might reasonably have
been expected to give rise to any such change) had occurred in the
assets, liabilities, business, operations or capital of Geddes; and
(p) there have been no Prior Valuations with respect to Geddes
prepared within the previous 24 months except as have been disclosed
to each of the parties hereto.
ARTICLE FOUR
COVENANTS
Section 4.01 Covenants of Royal Oak: Royal Oak hereby covenants and
agrees with each of the other parties hereto that prior to the Effective Date,
it shall take or perform or refrain from doing, taking and performing such
actions and steps as may be necessary or advisable to ensure compliance with
the following:
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72
(a) Royal Oak will carry on business in the ordinary course and
will not, without the prior written consent of the other parties
hereto (acting reasonably), enter into any transaction or incur any
obligation or liability out of the ordinary course of business,
except as contemplated in this Agreement and except for purposes of
providing financing for work to be conducted on the Kemess property;
(b) Royal Oak will not merge into or with, or amalgamate or
consolidate with, or enter into any other corporate reorganization
with, any other Person or perform any act or enter into any
transaction or negotiation which interferes or is inconsistent with
the completion of the transactions contemplated hereby or would
render inaccurate in any material way any of the representations and
warranties set forth in section 3.01 hereof as if such
representations and warranties were made at a date subsequent to such
act, negotiation or transaction and all references to the date of
this Agreement were deemed to be such later date, except as
contemplated in this Agreement, and, without limiting the generality
of the foregoing, Royal Oak will not:
(i) make any distribution by way of dividend, return of
capital or otherwise to or for the benefit of its shareholders,
(ii) without the prior written consent of the other
parties hereto (acting reasonably), issue any shares or other
securities convertible into or exchangeable for shares except
pursuant to agreements existing at the date hereof or enter
into any commitment or agreement therefor, except for purposes
of providing financing for work to be conducted on the Kemess
property, or
(iii) increase or decrease its paid-up capital;
(c) prior to the Effective Date, Royal Oak will use all reasonable
efforts to do all acts and things as may be necessary or desirable to
ensure the successful implementation of the Arrangement and, without
limiting the generality of the foregoing:
(i) Royal Oak will apply for and use all reasonable
efforts to obtain the listing on The Toronto Stock Exchange and
the American Stock Exchange, as of the Effective Date, of the
Royal Oak Common Shares which are to be issued pursuant to the
Arrangement;
73
(ii) Royal Oak will cooperate in obtaining the Interim
Order and the Final Order; and
(iii) Royal Oak will use all reasonable efforts to cause
each of the conditions precedent set forth in Article Five to
be complied with;
(d) Royal Oak will provide El Condor, St. Philips and Geddes in a
timely and expeditious manner with all information relating to Royal
Oak required to be included in the Proxy Circular in order for the
Proxy Circular to comply with all applicable disclosure laws and the
Interim Order, and Royal Oak will indemnify and save harmless El
Condor, St. Philips and Geddes and the directors and officers of each
of them from and against any and all claims, suits, actions, causes
of action, liabilities, damages, costs, charges and expenses of every
nature and kind whatsoever for which the directors and officers of El
Condor, St. Philips or Geddes may become personally liable by virtue
of the inclusion of such information in the Proxy Circular, provided
such information was included in full and in the form provided by
Royal Oak, with only such amendments as shall be approved by Royal
Oak;
(e) Royal Oak will pay the cash consideration, in accordance with
the terms of the Plan of Arrangement, to those holders of shares of
El Condor and St. Philips who are entitled to receive cash for their
shares pursuant to the Arrangement;
(f) Royal Oak will issue Royal Oak Common Shares, in accordance
with the terms of the Plan of Arrangement, to those holders of shares
of El Condor and Geddes who are entitled to receive Royal Oak Common
Shares pursuant to the Arrangement; and
(g) after the Effective Date, Royal Oak will cause El Condor, St.
Philips and Geddes to satisfy any obligations which any of them may
have to Dissenting Shareholders.
Section 4.02 Covenants of El Condor: El Condor hereby covenants and
agrees with each of the other parties hereto that prior to the Effective Date,
it shall take or perform or refrain from doing, taking and performing such
actions and steps as may be necessary or advisable to ensure compliance with
the following:
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74
(a) El Condor will carry on business in the ordinary course and
will not, without the prior written consent of the other parties
hereto (acting reasonably), enter into any transaction or incur any
obligation or liability out of the ordinary course of business,
except as contemplated in this Agreement;
(b) El Condor will not merge into or with, or amalgamate or
consolidate with, or enter into any other corporate reorganization
with, any other Person or perform any act or enter into any
transaction or negotiation which interferes or is inconsistent with
the completion of the transactions contemplated hereby or would
render inaccurate in any material way any of the representations and
warranties set forth in section 3.02 hereof as if such
representations and warranties were made at a date subsequent to such
act, negotiation or transaction and all references to the date of
this Agreement were deemed to be such later date, except as
contemplated in this Agreement, and, without limiting the generality
of the foregoing, El Condor will not
(i) directly or indirectly solicit, initiate or
encourage proposals or offers from, or negotiations with, any
person, or provide information to any Person relating to any
other potential transaction with respect to, or assist or
participate in or facilitate any effort or attempt with respect
to, the disposition of all or a material portion of its
business or assets or its outstanding securities;
(ii) make any distribution by way of dividend, return of
capital or otherwise to or for the benefit of its shareholders,
(iii) without the prior written consent of the other
parties hereto (acting reasonably), issue any shares or other
securities convertible into or exchangeable for shares or enter
into any commitment or agreement therefor, or
(iv) increase or decrease its paid-up capital;
provided that, in the event that any Person proposes an unsolicited
bona fide share acquisition or merger transaction which, in the
opinion of the board of directors of El Condor, offers terms that
are more favourable to El Condor's shareholders than pursuant to
this Agreement, nothing in this Agreement shall limit the power of
the El Condor board of directors to withdraw or modify any
recommendation with respect to
75
the Arrangement or to otherwise fulfil their fiduciary duties to El
Condor and its shareholders in relation to such transaction if to do
so would, in the opinion of the board of directors (having consulted
outside counsel), be a proper exercise of such directors' fiduciary
duties; but nothing referred to in this proviso shall entitle El
Condor to terminate this Agreement, to not proceed with the El
Condor Meeting as contemplated herein or to withdraw from El
Condor's shareholders the vote on the Arrangement;
(c) in the event that El Condor receives any proposal or offer
referred to in subclause 4.02(b)(i) or any enquiry with respect
thereto, El Condor will promptly notify Royal Oak in writing of all
relevant details relating thereto;
(d) El Condor will use all reasonable efforts to do all acts and
things as may be necessary or desirable to ensure the successful
implementation of the Arrangement and, without limiting the
generality of the foregoing:
(i) subject to the granting of the Interim Order, El
Condor will use all reasonable efforts to, as soon as
practicable and in any event on or before September 6, 1995,
complete the preparation of the Proxy Circular and mail to its
shareholders and file in all jurisdictions where required for
the Proxy Circular and other documentation required in
connection with the El Condor Meeting, all in accordance with
National Policy No. 41 of the Canadian Securities
Administrators, the Interim Order and applicable law, and El
Condor will use all reasonable efforts to, as soon as
practicable and in any event on or before October 16, 1995,
convene the El Condor Meeting for the purpose of approving the
Arrangement in accordance with the Interim Order,
(ii) El Condor will cause a list of El Condor
shareholders as of the record date for the El Condor Meeting,
in a form suitable for soliciting of El Condor shareholders and
prepared by the transfer agent of El Condor, to be delivered to
Royal Oak no later than the second Business Day after such
record date, and
(iii) El Condor will use all reasonable efforts to cause
each of the conditions precedent set forth in Article Five
which is within its control to be complied with, provided that
nothing in this
13
76
Agreement will obligate El Condor to make any recommendation
to its shareholders except as expressly authorized by the El
Condor board of directors or to engage proxy solicitors to
solicit proxies in favour of the Arrangement;
(e) subject to compliance by Royal Oak with clause 4.01(d), El
Condor will ensure that the Proxy Circular, insofar as it contains
disclosure with respect to El Condor and the Arrangement, complies
with all applicable disclosure laws and, without limiting the
generality of the foregoing, provides El Condor shareholders to which
such circular is sent with information in sufficient detail to permit
them to form a reasoned judgment concerning the matters before them.
Section 4.03 Covenants of St. Philips: St. Philips hereby covenants and
agrees with each of the other parties hereto that prior to the Effective Date,
it shall take or perform or refrain from doing, taking and performing such
actions and steps as may be necessary or advisable to ensure compliance with
the following:
(a) St. Philips will carry on business in the ordinary course and
will not, without the prior written consent of the other parties
hereto (acting reasonably), enter into any transaction or incur any
obligation or liability out of the ordinary course of business,
except as contemplated in this Agreement;
(b) St. Philips will not merge into or with, or amalgamate or
consolidate with, or enter into any other corporate reorganization
with, any other Person or perform any act or enter into any
transaction or negotiation which interferes or is inconsistent with
the completion of the transactions contemplated hereby or would
render inaccurate in any material way any of the representations and
warranties set forth in section 3.03 hereof as if such
representations and warranties were made at a date subsequent to such
act, negotiation or transaction and all references to the date of
this Agreement were deemed to be such later date, except as
contemplated in this Agreement, and, without limiting the generality
of the foregoing, St. Philips will not
(i) directly or indirectly solicit, initiate or
encourage proposals or offers from, or negotiations with, any
person, or provide information to any Person relating to any
other potential transaction with respect to, or assist or
participate in or facilitate any effort or attempt with respect
to, the disposition of all or
77
a material portion of its business or assets or its
outstanding securities;
(ii) make any distribution by way of dividend, return of
capital or otherwise to or for the benefit of its shareholders,
(iii) without the prior written consent of the other
parties hereto (acting reasonably), issue any shares or other
securities convertible into or exchangeable for shares except
pursuant to agreements existing at the date hereof or enter
into any commitment or agreement therefor, or
(iv) increase or decrease its paid-up capital;
provided that, in the event that any person proposes an unsolicited
bona fide share acquisition or merger transaction which, in the
opinion of the board of directors of St. Philips, offers terms that
are more favourable to St. Philips' shareholders than pursuant to
this Agreement, nothing in this Agreement shall limit the power of
the St. Philips board of directors to withdraw or modify any
recommendation with respect to the Arrangement or to otherwise
fulfil their fiduciary duties to St. Philips and its shareholders in
relation to such transaction if to do so would, in the opinion of
the board of directors (having consulted counsel), be a proper
exercise of such directors' fiduciary duties; but nothing referred
to in this proviso shall entitle St. Philips to terminate this
Agreement, to not proceed with the St. Philips Meeting as
contemplated herein or to withdraw from St. Philips' shareholders
the vote on the Arrangement;
(c) in the event that St. Philips receives any proposal or offer
referred to in subclause 4.03(b)(i) or any enquiry with respect
thereto, St. Philips will promptly notify Royal Oak in writing of all
relevant details relating thereto;
(d) St. Philips will use all reasonable efforts to do all acts and
things as may be necessary or desirable to ensure the successful
implementation of the Arrangement and, without limiting the
generality of the foregoing:
(i) subject to the granting of the Interim Order, St.
Philips will use all reasonable efforts to, as soon as
practicable and in any event on or before September 6, 1995,
complete the preparation of the Proxy Circular and mail to
78
its shareholders and file in all jurisdictions where
required for the Proxy
14
79
Circular and other documentation required in connection
with the St. Philips Meeting, all in accordance with
National Policy No. 41 of the Canadian Securities
Administrators, the Interim Order and applicable law, and
St. Philips will use all reasonable efforts to, as soon as
practicable and in any event on or before October 16, 1995,
convene the St. Philips Meeting for the purpose of
approving the Arrangement in accordance with the Interim
Order;
(ii) St. Philips will cause a list of St. Philips
shareholders as of the record date for the St. Philips Meeting,
in a form suitable for soliciting of St. Philips shareholders
and prepared by the transfer agent of St. Philips, to be
delivered to Royal Oak no later than the second Business Day
after such record date, and
(iii) St. Philips will use all reasonable efforts to
cause each of the conditions precedent set forth in Article
Five which is within its control to be complied with, provided
that nothing in this Agreement will obligate St. Philips to
make any recommendation to its shareholders except as expressly
authorized by the St. Philips board of directors or to engage
proxy solicitors to solicit proxies in favour of the
Arrangement;
(e) subject to compliance by Royal Oak with clause 4.01(d), St.
Philips will ensure that the Proxy Circular, insofar as it contains
disclosure with respect to St. Philips and the Arrangement, complies
with all applicable disclosure laws and, without limiting the
generality of the foregoing, provides St. Philips shareholders to
which such circular is sent with information in sufficient detail to
permit them to form a reasoned judgment concerning the matters before
them.
Section 4.04 Covenants of Geddes: Geddes hereby covenants and agrees
with each of the other parties hereto that prior to the Effective Date, it
shall take or perform or refrain from doing, taking and performing such actions
and steps as may be necessary or advisable to ensure compliance with the
following:
(a) Geddes will carry on business in the ordinary course and will
not, without the prior written consent of the other parties hereto
(acting reasonably), enter into any transaction or incur any
obligation or liability out of the ordinary course of business,
except as contemplated in this Agreement;
80
(b) Geddes will not merge into or with, or amalgamate or
consolidate with, or enter into any other corporate reorganization
with, any other Person or perform any act or enter into any
transaction or negotiation which interferes or is inconsistent with
the completion of the transactions contemplated hereby or would
render inaccurate in any material way any of the representations and
warranties set forth in section 3.04 hereof as if such
representations and warranties were made at a date subsequent to such
act, negotiation or transaction and all references to the date of
this Agreement were deemed to be such later date, except as
contemplated in this Agreement, and, without limiting the generality
of the foregoing, Geddes will not
(i) directly or indirectly solicit, initiate or
encourage proposals of offers from, or negotiations with, any
person, or provide information to any Person relating to any
other potential transaction with respect to, or assist or
participate in or facilitate any effort or attempt with respect
to, the disposition of all or a material portion of its
business or assets or its outstanding securities;
(ii) make any distribution by way of dividend, return of
capital or otherwise to or for the benefit of its shareholders,
(iii) without the prior written consent of the other
parties hereto (acting reasonably), issue any shares or other
securities convertible into or exchangeable for shares except
pursuant to agreements existing at the date hereof or enter into
any commitment or agreement therefor, or
(iv) increase or decrease its paid-up capital;
provided that, in the event that any person proposes an unsolicited
bona fide share acquisition or merger transaction which, in the
opinion of the board of directors of Geddes, offers terms that are
more favourable to Geddes' shareholders than pursuant to this
Agreement, nothing in this Agreement shall limit the power of the
Geddes board of directors to withdraw or modify any recommendation
with respect to the Arrangement or to otherwise fulfil their
fiduciary duties to Geddes and its shareholders in relation to such
transaction if to do so would, in the opinion of the board of
directors (having consulted outside counsel), be a proper exercise
of such directors'
81
fiduciary duties; but nothing referred to in this proviso
15
82
shall entitle Geddes to terminate this Agreement, to not proceed
with the Geddes Meeting as contemplated herein or to withdraw from
Geddes' shareholders the vote on the Arrangement;
(c) in the event that Geddes receives any proposal or offer
referred to in subclause 4.04(b)(i) or any enquiry with respect
thereto, Geddes will promptly notify Royal Oak in writing of all
relevant details relating thereto;
(d) Geddes will use all reasonable efforts to do all acts and
things as may be necessary or desirable to ensure the successful
implementation of the Arrangement and, without limiting the
generality of the foregoing:
(i) subject to the granting of the Interim Order,
Geddes will use all reasonable efforts to, as soon as
practicable and in any event on or before September 6, 1995,
complete the preparation of the Proxy Circular and mail to its
shareholders and file in all jurisdictions where required for
the Proxy Circular and other documentation required in
connection with the Geddes Meeting, all in accordance with
National Policy No. 41 of the Canadian Securities
Administrators, the Interim Order and applicable law, and
Geddes will use all reasonable efforts to, as soon as
practicable and in any event on or before October 16, 1995,
convene the Geddes Meeting for the purpose of approving the
Arrangement in accordance with the Interim Order;
(ii) Geddes will cause a list of Geddes shareholders as
of the record date for the Geddes Meeting, in a form suitable
for soliciting of Geddes shareholders and prepared by the
transfer agent of Geddes, to be delivered to Royal Oak no later
than the second Business Day after such record date, and
(iii) Geddes will use all reasonable efforts to cause
each of the conditions precedent set forth in Article Five
which is within its control to be complied with, provided that
nothing in this Agreement will obligate Geddes to make any
recommendation to its shareholders except as expressly
authorized by the Geddes board of directors or to engage proxy
solicitors to solicit proxies in favour of the Arrangement;
83
(e) subject to compliance by Royal Oak with clause 4.01(d), Geddes
will ensure that the Proxy Circular, insofar as it contains
disclosure with respect to Geddes and the Arrangement, complies with
all applicable disclosure laws and, without limiting the generality
of the foregoing, provides Geddes shareholders to which such circular
is sent with information in sufficient detail to permit them to form
a reasoned judgment concerning the matters before them.
Section 4.05 Mutual Covenants of Royal Oak, El Condor, St. Philips and
Geddes: Each of Royal Oak, El Condor, St. Philips and Geddes covenants in
favour of the others that prior to the Effective Date, it shall take or perform
or refrain from doing, taking and performing such actions and steps as may be
necessary or advisable to ensure compliance with the following:
(a) Each of Royal Oak, El Condor, St. Philips and Geddes will use
all reasonable efforts to satisfy (or cause the satisfaction of) the
conditions precedent to its obligations hereunder and to take, or
cause to be taken, all other action and to do, or cause to be done,
all other things necessary, proper or advisable under applicable laws
and regulations to complete the Arrangement, including using all
reasonable efforts to:
(i) obtain all necessary waivers, consents and
approvals required to be obtained by it from other parties to
loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and
authorizations as are required to be obtained by it under any
Canadian or foreign law or regulation; and
(iii) effect all necessary registrations and filing and
submissions of information requested by governmental
authorizations required to be effected by it in connection with
the Arrangement;
and each of Royal Oak, El Condor, St. Philips and Geddes will use
all reasonable efforts to cooperate with the others in connection
with the performance by the others of their obligations under this
Agreement including, without limitation, the preparation and mailing
of the Proxy Circular and continuing to provide reasonable access to
information and to maintain ongoing communications as between
representatives of Royal Oak, El Condor, St. Philips and Geddes; and
84
(b) Each of Royal Oak, El Condor, St. Philips and Geddes will as
soon as reasonably practicable notify the others of any actual,
imminent or incipient material adverse change referred to in clause
3.01(g) in the
16
85
case of Royal Oak, clause 3.02(g) in the case of El Condor, clause
3.03(g) in the case of St. Philips and clause 3.04(g) in the case of
Geddes.
ARTICLE FIVE
CONDITIONS
Section 5.01 Mutual Conditions Precedent: The respective obligations of
Royal Oak, El Condor, St. Philips and Geddes to complete the transactions
contemplated by this Agreement shall be subject to the satisfaction of the
following conditions:
(a) El Condor and St. Philips shall have been continued under the
OBCA in accordance with the provisions of the OBCA;
(b) the Arrangement, with or without amendment, shall have been
approved at the Meetings in accordance with the Interim Order and the
Arrangement shall have otherwise been approved and adopted by the
requisite majorities of the shares entitled or required to vote
thereon as determined by the Court and as required pursuant to the
provisions of Policy Statement 9.1 of the Ontario Securities
Commission and any other applicable policies of the Canadian
provincial securities administrators;
(c) the Interim Order and Final Order shall have been obtained in
form and substance satisfactory to Royal Oak, El Condor, St. Philips
and Geddes;
(d) The Toronto Stock Exchange and the American Stock Exchange
shall have conditionally approved the listing thereon of the Royal
Oak Common Shares to be issued pursuant to the Arrangement, subject
to compliance with the usual requirements of such exchanges;
(e) all other consents, orders, regulations and approvals,
including regulatory and judicial approvals and orders (including,
without limitation, the consent of la Commission des valeurs
mobilieres du Quebec under Section 50 of the Securities Act
(Quebec)), required or necessary or desirable for the completion of
the transactions provided for in this Agreement and the Arrangement
shall have been obtained or received from the persons, authorities or
bodies having jurisdiction in the circumstances;
(f) there shall not be in force any order or decree restraining or
enjoining the consummation of the
86
transactions contemplated by this Agreement and the Arrangement;
(g) none of the consents, orders, regulations or approvals
contemplated herein shall contain terms or conditions or require
undertakings or security deemed unsatisfactory or unacceptable by any
of the parties hereto;
(h) Royal Oak shall have acquired a 100% undivided interest in the
Red Mountain property located in northwestern British Columbia; and
(i) this Agreement shall not have been terminated under Article Six.
The foregoing conditions are for the mutual benefit of the parties hereto
and may be waived, in whole or in part, by any of them at any time. If any of
the said conditions precedent shall not be complied with or waived as aforesaid
on or before the date required for the performance thereof, any of the parties
hereto may, in addition to the other remedies it may have at law or in equity,
rescind and terminate this Agreement by written notice to the other parties.
Section 5.02 Royal Oak Conditions: The obligation of Royal Oak to
complete the transactions contemplated herein is subject to the fulfillment of
the following conditions on or before the Effective Date or such other time as
specified below:
(a) the representations and warranties made by each of the other
parties hereto in this Agreement shall be true as of the Effective
Date as if made on and as of such date and each of the other parties
hereto shall have provided to Royal Oak certificates of two officers
of such party certifying such accuracy on the Effective Date and
Royal Oak shall have no knowledge to the contrary;
(b) on or before the Effective Date, each of the other parties
hereto shall have furnished Royal Oak with:
(i) certified copies of the resolutions duly passed by
the boards of directors of such party approving this Agreement
and the completion of the transactions contemplated hereby,
approving the Proxy
17
Circular and directing the submission of the Arrangement (and,
in the case of El Condor and St. Philips, their continuance
under the OBCA) for approval at the applicable Meeting; and
87
(ii) certified copies of the resolutions duly passed at
the applicable Meeting approving the Arrangement (and, in the
case of El Condor and St. Philips, their continuance under the
OBCA);
(c) each of the other parties hereto shall have provided Royal Oak
with opinions of its counsel reasonably satisfactory to Royal Oak
dated the Effective Date (or such other date as the parties hereto
may agree) and addressed to Royal Oak and its counsel to the effect
that:
(i) such party and, if applicable, each of its material
Subsidiaries is duly incorporated and validly existing under
the laws of the jurisdiction of its incorporation and has the
corporate power and authority to own or lease its property and
assets and to carry on any business now conducted by it and is
duly qualified to carry on business in each jurisdiction in
which the nature of its business or the property or assets
owned or leased by it makes such qualification necessary;
(ii) such party has full corporate power and authority
to enter into this Agreement and to perform its obligations
hereunder;
(iii) all necessary proceedings, corporate, regulatory
or otherwise, of such party have been taken to fully, validly
and effectively authorize this Agreement and the transactions
contemplated herein, including the Arrangement, the performance
by such party of its obligations hereunder and the execution
and delivery by such party of this Agreement and all documents
delivered pursuant hereto;
(iv) the execution and delivery by such party of this
Agreement and all documents delivered pursuant hereto, the
performance by such party of its obligations hereunder and
thereunder and the consummation of the transactions
contemplated herein and therein will not result in the breach
of or violate any term or provision of the articles, by-laws or
other governing documents of such party; and
(v) this Agreement has been duly executed and delivered
by such party and this Agreement and all documents delivered
pursuant to the terms hereof
88
are valid and binding obligations of such party enforceable
against it in accordance with their respective terms, subject
to enforce-ability being limited by applicable bankruptcy,
insolvency, reorganization and other laws affecting
creditors' rights generally and the discretionary nature of
certain remedies (including specific performance and
injunctive relief) and subject to the effectiveness of
provisions providing rights of indemnity or exculpating a
party or persons from a liability or a duty otherwise owed
which may be limited by law.
In giving such opinions, counsel to such party may rely, where
appropriate, upon the opinions of local counsel provided that
counsel to such party is of the opinion that the opinion of such
local counsel is one upon which counsel to the other parties may
properly rely, and, in respect of matters of fact, upon such
certificates of senior officers of such party or any other
appropriate persons;
(d) each of the other parties hereto shall have complied in all
material respects with its covenants herein and shall have provided
to Royal Oak certificates of two officers of such party certifying
that such party has complied in all material respects with its
respective covenants herein and Royal Oak shall have no knowledge to
the contrary;
(e) before giving effect to the transactions contemplated by this
Agreement, there shall have been no material adverse change,
financial or otherwise, in the business, financial condition,
operations, prospects, properties, assets or affairs, of any of the
other parties hereto and its Subsidiaries on a consolidated basis or
any occurrences or circumstances which have resulted or might
reasonably be expected to result in a material adverse change thereto
(other than changes attributable to general economic conditions,
including changes in interest rates and fluctuations in the price of
gold); and
(f) holders of not more than 5% of the issued and outstanding El
Condor Common Shares, St. Philips Common Shares or Geddes Common
Shares shall have exercised rights of dissent in respect of the
matters to be dealt with at the Meetings and each of El Condor, St.
Philips and Geddes shall have provided to Royal Oak a certificate
signed by a senior officer as to the number of shareholders and the
number of shares in respect of which such rights have been exercised.
18
89
The foregoing conditions are for the benefit of Royal Oak and may be
waived, in whole or in part, by Royal Oak in writing at any time. If any of
the said conditions precedent shall not be complied with or waived by Royal Oak
on or before the date required for their performance then Royal Oak may, in
addition to the other remedies it may have at law or in equity, rescind and
terminate this Agreement by written notice to the other parties hereto.
Section 5.03 El Condor Conditions: The obligation of El Condor to
complete the transactions contemplated herein is subject to the fulfillment of
the following conditions on or before the Effective Date or such other time as
specified below:
(a) the representations and warranties made by each of the other
parties hereto in this Agreement shall be true as of the Effective
Date as if made on and as of such date and each of the other parties
hereto shall have provided to El Condor certificates of two officers
of such party certifying such accuracy on the Effective Date and El
Condor shall have no knowledge to the contrary;
(b) on or before the Effective Date, each of the other parties
hereto shall have furnished El Condor with:
(i) certified copies of the resolutions duly passed by
the boards of directors of such party approving this Agreement
and the completion of the transactions contemplated hereby and,
in the case of St. Philips and Geddes, approving the Proxy
Circular and directing the submission of the Arrangement (and,
in the case of St. Philips, its continuance under the OBCA) for
approval at the applicable Meeting; and
(ii) certified copies of the resolutions duly passed at
the St. Philips and Geddes Meetings approving the Arrangement
(and, in the case of St. Philips, its continuance under the
OBCA);
(c) each of the other parties hereto shall have provided El Condor
with opinions of its counsel reasonably satisfactory to El Condor
dated the Effective Date (or such other date as the parties hereto
may agree) and addressed to El Condor and its counsel to the effect
that:
(i) such party and, if applicable, each of its material
Subsidiaries is duly incorporated and validly existing under
the laws of the jurisdiction of its incorporation and has the
corporate power and authority to own or lease
90
its property and assets and to carry on any business now
conducted by it and is duly qualified to carry on business
in each jurisdiction in which the nature of its business or
the property or assets owned or leased by it makes such
qualification necessary;
(ii) such party has full corporate power and authority
to enter into this Agreement and to perform its obligations
hereunder;
(iii) all necessary proceedings, corporate, regulatory
or otherwise, of such party have been taken to fully, validly
and effectively authorize this Agreement and the transactions
contemplated herein, including the Arrangement, the performance
by such party of its obligations hereunder and the execution
and delivery by such party of this Agreement and all documents
delivered pursuant hereto;
(iv) the execution and delivery by such party of this
Agreement and all documents delivered pursuant hereto, the
performance by such party of its obligations hereunder and
thereunder and the consummation of the transactions
contem-plated herein and therein will not result in the breach
of or violate any term or provision of the articles, by-laws or
other governing documents of such party; and
(v) this Agreement has been duly executed and delivered
by such party and this Agreement and all documents delivered
pursuant to the terms hereof are valid and binding obligations
of such party enforceable against it in accordance with their
respective terms, subject to enforceability being limited by
applicable bankruptcy, insolvency, reorganization and other
laws affecting creditors' rights generally and the
discretionary nature of certain remedies (including specific
performance and injunctive relief) and subject to the
effectiveness of provisions providing rights of indemnity or
exculpating a party or persons from a liability or a duty
otherwise owed which may be limited by law.
In giving such opinions, counsel to such party may rely, where
appropriate, upon the opinions of local counsel provided that
counsel to such party is of the opinion that the opinion of such
local counsel is one
19
91
upon which counsel to the other parties may properly rely, and, in
respect of matters of fact, upon such certificates of senior officers
of such party or any other appropriate persons;
(d) each of the other parties hereto shall have complied in all
material respects with its covenants herein and shall have provided
to El Condor certificates of two officers of such party certifying
that such party has complied in all material respects with its
respective covenants herein and El Condor shall have no knowledge to
the contrary; and
(e) before giving effect to the transactions contemplated by this
Agreement, there shall have been no material adverse change,
financial or otherwise, in the business, financial condition,
operations, prospects, properties, assets or affairs, of any of the
other parties hereto and its Subsidiaries on a consolidated basis or
any occurrences or circumstances which have resulted or might
reasonably be expected to result in a material adverse change thereto
(other than changes attributable to general economic conditions,
including changes in interest rates and fluctuations in the price of
gold).
Section 5.04 St. Philips Conditions: The obligation of St. Philips to
complete the transactions contemplated herein is subject to the fulfilment of
the following conditions on or before the Effective Date or such other time as
specified below:
(a) the representations and warranties made by each of the other
parties hereto in this Agreement shall be true as of the Effective
Date as if made on and as of such date and each of the other parties
hereto shall have provided to St. Philips certificates of two
officers of such party certifying such accuracy on the Effective Date
and St. Philips shall have no knowledge to the contrary;
(b) on or before the Effective Date, each of the other parties
hereto shall have furnished St. Philips with:
(i) certified copies of the resolutions duly passed by
the boards of directors of such party approving this Agreement
and the completion of the transactions contemplated hereby and,
in the case of El Condor and Geddes, approving the Proxy
Circular and directing the submission of the Arrangement (and,
in the case of El Condor, its continuance under the OBCA) for
approval at the applicable Meeting; and
92
(ii) certified copies of the resolutions duly passed at
the El Condor and Geddes Meetings approving the Arrangement
(and, in the case of El Condor, its continuance under the
OBCA);
(c) each of the other parties hereto shall have provided St.
Philips with opinions of its counsel reasonably satisfactory to St.
Philips dated the Effective Date (or such other date as the parties
hereto may agree) and addressed to St. Philips and its counsel to the
effect that:
(i) such party and each of its material Subsidiaries is
duly incorporated and validly existing under the laws of the
jurisdiction of its incorporation and has the corporate power
and authority to own or lease its property and assets and to
carry on any business now conducted by it and is duly qualified
to carry on business in each jurisdiction in which the nature
of its business or the property or assets owned or leased by it
makes such qualification necessary;
(ii) such party has full corporate power and authority
to enter into this Agreement and to perform its obligations
hereunder;
(iii) all necessary proceedings, corporate, regulatory
or otherwise, of such party have been taken to fully, validly
and effectively authorize this Agreement and the transactions
contemplated herein, including the Arrangement, the performance
by such party of its obligations hereunder and the execution
and delivery by such party of this Agreement and all documents
delivered pursuant hereto;
(iv) the execution and delivery by such party of this
Agreement and all documents delivered pursuant hereto, the
performance by such party of its obligations hereunder and
thereunder and the consummation of the transactions
contemplated herein and therein will not result in the breach
of or violate any term or provision of the articles, by-laws or
other governing documents of such party; and
(v) this Agreement has been duly executed and delivered
by such party and this Agreement and all documents delivered
pursuant to the terms
93
hereof are valid and binding obligations of such party
20
94
enforceable against it in accordance with their respective terms,
subject to enforceability, being limited by applicable
bankruptcy, insolvency, reorganization and other laws affecting
creditors' rights generally and the discretionary nature of
certain remedies (including specific performance and injunctive
relief) and subject to the effectiveness of provisions providing
rights of indemnity or exculpating a party or persons from a
liability or a duty otherwise owed which may be limited by law.
In giving such opinions, counsel to such party may rely, where
appropriate, upon the opinions of local counsel provided that counsel
to such party is of the opinion that the opinion of such local counsel
is one upon which counsel to the other parties may properly rely, and,
in respect of matters of fact, upon such certificates of senior
officers of such party or any other appropriate persons;
(d) each of the other parties hereto shall have complied in all
material respects with its covenants herein and shall have provided
to St. Philips certificates of two officers of such party certifying
that such party has complied in all material respects with its
respective covenants herein and St. Philips shall have no knowledge
to the contrary; and
(e) before giving effect to the transactions contemplated by this
Agreement, there shall have been no material adverse change,
financial or otherwise, in the business, financial condition,
operations, prospects, properties, assets or affairs, of any of the
other parties hereto and its Subsidiaries on a consolidated basis or
any occurrences or circumstances which have resulted or might
reasonably be expected to result in a material adverse change thereto
(other than changes attributable to general economic conditions,
including changes in interest rates and fluctuations in the price of
gold).
Section 5.05 Geddes Conditions: The obligation of Geddes to complete the
transactions contemplated herein is subject to the fulfilment of the following
conditions on or before the Effective Date or such other time as specified
below:
(a) the representations and warranties made by each of the other
parties hereto in this Agreement shall be true as of the Effective
Date as if made on and as of such date and each of the other parties
hereto shall have provided to Geddes certificates of two officers of
such party
95
certifying such accuracy on the Effective Date and Geddes shall have
no knowledge to the contrary;
(b) on or before the Effective Date, each of the other parties
hereto shall have furnished Geddes with:
(i) certified copies of the resolutions duly passed by
the boards of directors of such party approving this Agreement
and the completion of the transactions contemplated hereby and,
in the case of El Condor and St. Philips, approving the Proxy
Circular and directing the submission of the Arrangement and
their continuance under the OBCA for approval at the applicable
Meeting; and
(ii) certified copies of the resolutions duly passed at
the El Condor and St. Philips Meetings approving the
Arrangement and the continuance of El Condor and St. Philips
under the OBCA;
(c) each of the other parties hereto shall have provided Geddes
with opinions of its counsel reasonably satisfactory to Geddes dated
the Effective Date (or such other date as the parties hereto may
agree) and addressed to Geddes and its counsel to the effect that:
(i) such party and, if applicable, each of its material
Subsidiaries is duly incorporated and validly existing under
the laws of the jurisdiction of its incorporation and has the
corporate power and authority to own or lease its property and
assets and to carry on any business now conducted by it and is
duly qualified to carry on business in each jurisdiction in
which the nature of its business or the property or assets
owned or leased by it makes such qualification necessary;
(ii) such party has full corporate power and authority
to enter into this Agreement and to perform its obligations
hereunder;
(iii) all necessary proceedings, corporate, regulatory
or otherwise, of such party have been taken to fully, validly
and effectively authorize this Agreement and the transactions
contemplated herein, including the Arrangement, the performance
by such party of its obligations hereunder and the execution
and delivery by such party of this Agreement and all documents
delivered pursuant hereto;
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96
(iv) the execution and delivery by such party of this Agreement and
all documents delivered pursuant hereto, the performance by such
party of its obligations hereunder and thereunder and the
consummation of the transactions contemplated herein and therein
will not result in the breach of or violate any term or
provision of the articles, by-laws or other governing documents
of such party; and
(v) this Agreement has been duly executed and delivered by such
party and this Agreement and all documents delivered pursuant to
the terms hereof are valid and binding obligations of such party
enforceable against it in accordance with their respective
terms, subject to enforceability being limited by applicable
bankruptcy, insolvency, reorganization and other laws affecting
creditors' rights generally and the discretionary nature of
certain remedies (including specific performance and injunctive
relief) and subject to the effectiveness of provisions providing
rights of indemnity or exculpating a party or persons from a
liability or a duty otherwise owed which may be limited by law.
In giving such opinions, counsel to such party may rely, where
appropriate, upon the opinions of local counsel provided that
counsel to such party is of the opinion that the opinion of such
local counsel is one upon which counsel to the other parties may
properly rely, and, in respect of matters of fact, upon such
certificates of senior officers of such party or any other
appropriate persons;
(d) each of the other parties hereto shall have complied in all
material respects with its covenants herein and shall have provided
to Geddes certificates of two officers of such party certifying that
such party has complied in all material respects with its respective
covenants herein and Geddes shall have no knowledge to the contrary;
and
(e) before giving effect to the transactions contemplated by this
Agreement, there shall have been no material adverse change,
financial or otherwise, in the business, financial condition,
operations, prospects, properties, assets or affairs, of any of the
other parties hereto and its Subsidiaries on a consolidated basis or
any occurrences or circumstances which have resulted or might
reasonably be expected to result in a material adverse change thereto
(other than changes attributable
97
to general economic conditions, including changes in interest rates
and fluctuations in the price of gold).
Section 5.06 Merger of Conditions: The conditions set out in sections
5.01, 5.02, 5.03, 5.04 and 5.05 shall be conclusively deemed to have been
satisfied, waived or released on the filing by El Condor, St. Philips and
Geddes of articles of arrangement under subsection 183(l) of the OBCA.
ARTICLE SIX
AMENDMENT AND TERMINATION
Section 6.01 Amendment: This Agreement may, at any time and from time to
time before and after the holding of the Meetings, but not later than the
Effective Date, be amended by written agreement of the parties hereto without,
subject to applicable law, further notice to or authorization on the part of
the shareholders of the El Condor, St. Philips and Geddes. Without limiting
the generality of the foregoing, any such amendment may:
(a) change the time for the performance of any of the obligations
or acts of the parties hereto;
(b) waive any inaccuracies or modify any representation or warranty
contained herein or in any document to be delivered pursuant hereto;
or
(c) waive compliance with or modify any of the covenants contained
herein or waive or modify the performance of any of the obligations
of the parties hereto;
provided that no such amendment shall decrease the consideration to be received
by the shareholders of El Condor, St. Philips or Geddes in exchange for their
shares pursuant to the Arrangement without the approval of such shareholders in
the same manner as required for the approval of the Arrangement or in such
other manner as may be ordered by the Court. This agreement including the Plan
of the Arrangement may be amended in accordance with the Final Order but if the
terms of the Final Order require any such amendment, the rights of the parties
hereto under Article Five and Section 6.02 shall remain unaffected.
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98
Section 6.02 Termination: Notwithstanding any other rights contained
herein, any party to this Agreement may terminate this Agreement at any time
prior to the Effective Date, upon notice to the other parties but without
further notice to, or action on the part of, its shareholders:
(a) if, notwithstanding the best efforts of the parties hereto, the
Interim Order has been refused or has been granted in form or
substance not satisfactory to any party hereto, or has not been
granted by September 6, 1995 or, if issued, has been set aside or
modified in a manner unacceptable to any party on appeal or
otherwise;
(b) if, notwithstanding the best efforts of El Condor and St.
Philips, the shareholders of such corporations do not approve the
continuance under the OBCA of such corporation;
(c) if, notwithstanding the best efforts of El Condor, St. Philips
and Geddes, the shareholders of such corporations do not approve the
Arrangement in accordance with the terms of the Interim Order;
(d) if, notwithstanding the best efforts of the parties hereto, the
Final Order has not been granted in form and substance satisfactory
to the parties on or before November 30, 1995; or
(e) if, notwithstanding the best efforts of the parties hereto, the
Arrangement has not become effective on or before December 31, 1995.
Section 6.03 Effect of Termination: Upon the termination of this
Agreement pursuant to this Article Six, and except as otherwise specifically
provided herein, no party shall have any liability or further obligation to the
other parties hereunder provided that nothing herein shall in any way limit or
negate the liability of any party hereto to any other party or parties hereto
pursuant to any other agreement which pertains to or contemplates the
Arrangement.
ARTICLE SEVEN
GENERAL
Section 7.01 Notices: All notices which may or are required to be given
pursuant to any provision of this Agreement shall be given or made in writing
and shall be served personally or by telecopy, in each case addressed to:
99
(a) in the case of Royal Oak:
5501 Lakeview Drive
Kirkland, Washington
98033
Telecopy number: (206) 822-3552
(b) in the case of El Condor:
Suite 1020
800 West Pender Street
Vancouver, British Columbia
V6C 2V6
Telecopy number: (604) 684-8092
(c) in the case of St. Philips:
Suite 1995
650 West Georgia Street
Vancouver, British Columbia
V6B 4N8
Telecopy number: (604) 682-0904
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100
(d) in the case of Geddes:
1st Floor
West Pender Street
Vancouver, British Columbia
V6G 2S3
Telecopy number: (206) 822-3349
or such other address or telecopier number as the parties may, from time to
time, advise the other parties hereto by notice in writing. The date of
receipt of any such notice shall be deemed to be the date of delivery thereof
or, in the case of notice sent by telecopy, the date of successful transmission
thereof (unless transmission is received after normal business hours, in which
case the date of receipt shall be deemed to be the next Business Day).
Section 7.02 Assignment: No party hereto may assign its rights or
obligations under this Agreement or the Arrangement without the prior written
consent of the other parties hereto.
Section 7.03 Binding Effect: This Agreement and the Arrangement shall be
binding upon and shall enure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 7.04 Waiver: Any waiver or release of any of the provisions of
this Agreement, to be effective must be in writing and executed by the party
granting such waiver or release. Waivers may only be granted upon compliance
with the terms governing amendments set forth in Section 6.01 hereof.
Section 7.05 Governing Law: This Agreement shall be governed by and be
construed in accordance with the laws of the Province of Ontario and the laws
of Canada applicable therein and shall be treated in all respects as an Ontario
contract. Each party hereby attorns to the non-exclusive jurisdiction of the
Courts of the Province of Ontario.
Section 7.06 Counterparts: This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
Section 7.07 Entire Agreement: This Agreement, together with the
agreements and other documents herein or therein referred to, constitutes the
entire agreement among the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, among the parties hereto with respect to
the
101
subject matter hereof save and except for greater certainty, the El Condor
Lock-Up Agreement and the St. Philips Lock-Up Agreement.
Section 7.08 Expenses: Subject to the El Condor Lock-Up Agreement and
the St. Philips Lock-Up Agreement, all expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expenses, provided that Royal Oak agrees to indemnify and
save Geddes harmless of and from the fees and disbursements of its financial
and legal advisors from and including July 28, 1995 to and including August 16,
1995 to a maximum of $75,000 in the event the Arrangement is not completed on
or before August 14, 1996.
The provisions of this Section 7.08 shall survive the termination of this
Agreement.
Section 7.09 Time of Essence: Time is of the essence of this Agreement.
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102
IN WITNESS WHEREOF the parties hereto have executed Agreement as of the
date hereinbefore written.
ROYAL OAK MINES INC. EL CONDOR RESOURCES LTD.
/s/ Margaret K. Witte /s/ Robert G. Hunter
Per: (Signed) MARGARET K. WITTE Per: (Signed) ROBERT G. HUNTER
President Chief Executive Officer
/s/ William J.V. Sheridan c/s /s/ Ronald W. Thiessen c/s
Per: (Signed) WILLIAM J.V. SHERIDAN Per: (Signed) RONALD W.
THIESSEN
Secretary Director
ST. PHILIPS RESOURCES INC. GEDDES RESOURCES LIMITED
/s/ Jim Heras /s/ Margaret K. Witte
Per: (Signed) JIM HERAS Per: (Signed) MARGARET K.
Director WITTE
Chairman
/s/ Evangelos Catevatis c/s /s/ William J.V. Sheridan c/s
Per: (Signed) EVANGELOS CATEVATIS Per: (Signed) WILLIAM
J.V. SHERIDAN
Director Secretary
25
103
EXHIBIT 1
To the Arrangement Agreement made as of August 29, 1995
Among Royal Oak Mines Inc., El Condor Resources Ltd.,
St. Philips Resources Inc.
and Geddes Resources Limited
PLAN OF ARRANGEMENT UNDER SECTION 182
OF THE BUSINESS CORPORATIONS ACT (ONTARIO)
1.1 Definitions
In this Plan, unless the context otherwise requires, defined terms shall
have the following meanings:
"Arrangement" means the arrangement contemplated by this Plan;
"Articles of Arrangement" means the articles of arrangement in respect of the
Arrangement required by the OBCA to be sent to the Director by each of El
Condor, St. Philips and Geddes after the Final Order is made;
"BCCA" means the British Columbia Company Act, R.S.B.C. 1979, c. 59, as
amended;
"Business Day" means a day which is not a Saturday, Sunday or a statutory
holiday in Canada;
"Court" means the Ontario Court of Justice (General Division);
"Depositary" means The R-M Trust Company, as the registrar and transfer agent
of the Royal Oak Common Shares;
"Director" means the Director appointed pursuant to section 278 of the OBCA;
"Effective Date" means the date set forth in the certificates of arrangement
issued by the Director to each of El Condor, St. Philips and Geddes under
the OBCA giving effect to the Arrangement;
"El Condor" means El Condor Resources Ltd., a corporation amalgamated under
the BCCA;
"El Condor Common Shares" means the common shares in the capital of El
Condor, as the same are constituted on the date hereof;
"El Condor Dissenting Shares" means all El Condor Common Shares which are
deemed to have been cancelled on the Effective Date in accordance with the
provisions of clause 5.1(a);
104
"Final Order" means an order of the Court approving the Arrangement, as such
order may be amended or modified by the highest court to which appeal may
be applied for;
"Geddes" means Geddes Resources Limited, a corporation incorporated under the
OBCA;
"Geddes Common Shares" means the common shares in the capital of Geddes as the
same are constituted on the date hereof;
"Geddes Dissenting Shares" means the Geddes Common Shares which are deemed to
have been cancelled on the Effective Date in accordance with the
provisions of clause 5.1(a);
"Interim Order" means an order of the Court containing declarations and
directions under the OBCA with respect to the Arrangement;
"Letter of Transmittal" shall have the meaning ascribed thereto in section 4.2
hereof;
"OBCA" means the Business Corporations Act, R.S.O. 1990 c. B.16, as amended;
"Plan" means this plan, as amended or supplemented for time to time, and
"hereby", "hereof", "hereunder", "herewith" and similar terms refer to
this Plan and not to any particular provision of this Plan;
"Royal Oak" means Royal Oak Mines Inc., a corporation amalgamated under the
OBCA;
"Royal Oak Common Shares" means the common shares in the capital of Royal Oak,
as the same are constituted on the date hereof;
"St. Philips" means St. Philips Resources Inc., a corporation incorporated
under the BCCA;
26
105
"St. Philips Common Shares" means the common shares in the capital of St.
Philips, as the same are constituted on the date hereof;
"St. Philips Dissenting Shares" means all St. Philips Common Shares which are
deemed to have been cancelled on the Effective Date in accordance with the
provisions of clause 5.1(a);
"Shareholders" means the registered holders of El Condor Common Shares, St.
Philips Common Shares and Geddes Common Shares as of the Effective Date;
and
"Subsidiary" means a subsidiary as defined in the OBCA.
1.2 Interpretation Not Affected by Headings
The division of this agreement into articles, sections, subsections and
paragraphs and the insertion of headings are for convenience of reference only
and shall not affect in any way the meaning or interpretation of this Plan.
1.3 Article References
Unless the contrary intention appears, references in this Plan to an
article, section, subsection, paragraph, exhibit or schedule by number or
letter or both refer to the article, section, subsection, paragraph, exhibit or
schedule, respectively, bearing that designation in this Plan.
1.4 Number
In this Plan, unless the contrary intention appears, words importing the
singular include the plural and vice versa, words importing gender shall
include all genders, and words importing persons shall include a natural
person, firm, trust, partnership, association, corporation, joint venture or
government (including any governmental board, agency or instrumentality
thereof).
1.5 Date for Any Action
In the event that the date on which any action is required to be taken
hereunder is not a Business Day, such action shall be required to be taken on
the next succeeding day which is a Business Day.
106
1.6 Currency
Unless otherwise stated, all references in this Plan to sums of money are
expressed in lawful money of Canada.
ARTICLE 2
PURPOSE AND EFFECT OF THE PLAN
2.1 The following is only intended to be a general statement of the purpose of
the Plan and is qualified in its entirety by the specific provisions of the
Plan. The purpose of the Plan is to effect a reorganization and restructuring
of the share capital of each of El Condor, St. Philips and Geddes in a manner
that is equitable to the Shareholders, maintains the business and goodwill of
El Condor, St. Philips and Geddes as going concerns and results in El Condor,
St. Philips and Geddes becoming wholly-owned subsidiaries of Royal Oak.
2.2 The Plan shall be binding on all Shareholders, on El Condor, St. Philips
and Geddes and on Royal Oak upon the filing of the Articles of Arrangement with
the Director.
ARTICLE 3
ARRANGEMENT
3.1 On the Effective Date, each of the events set out below shall occur and be
deemed to occur without further act or formality:
(a) all issued and outstanding El Condor Common Shares (other than
the El Condor Dissenting Shares and El Condor Common Shares
beneficially owned by Royal Oak) shall be and be deemed to be
transferred to Royal Oak (free of any claims) and the registered
holders thereof shall be entitled to receive from Royal Oak in
exchange for each such share:
(i) subject to section 4.7, 0.95 Royal Oak Common
Shares (for 69.06% of each El Condor Common Share); and
27
107
(ii) $2.00 in cash (for 30.94% of each El Condor Common Share);
(b) all issued and outstanding St. Philips Common Shares (other
than the St. Philips Dissenting Shares and St. Philips Common Shares
beneficially owned by Royal Oak) shall be and be deemed to be
transferred to Royal Oak (free of any claims) and the registered
holders thereof shall be entitled to receive from Royal Oak $3.40 in
cash in exchange for each such share;
(c) all issued and outstanding Geddes Common Shares (other than the
Geddes Dissenting Shares and Geddes Common Shares beneficially owned
by Royal Oak) shall be and be deemed to be transferred to Royal Oak
(free of any claims) and the registered holders thereof shall be
entitled to receive from Royal Oak in exchange for each share,
subject to section 4.7, 0.30 Royal Oak Common Shares;
(d) with respect to each El Condor Common Share, St. Philips Common
Share and Geddes Common Share to which clause 3.1(a), 3.1(b) or
3.1(c) applies:
(i) the registered holder thereof shall cease to be a
holder of such share and such holder's name shall be removed
from the applicable register of shares as of the Effective
Date; and
(ii) Royal Oak shall be and be deemed to be the
transferee of such share (free of any claims) and shall be
entered in the register of such shares as the holder thereof.
ARTICLE 4
OUTSTANDING CERTIFICATES AND PAYMENTS
4.1 After the Effective Date and subject to Article 5, certificates formerly
representing El Condor Common Shares, St. Philips Common Shares and Geddes
Common Shares (other than El Condor Common Shares, St. Philips Common Shares
and Geddes Common Shares beneficially owned by Royal Oak) shall represent only
the right to receive the consideration therefor specified in section 3.1,
subject to compliance with the requirements set forth in this Article 4.
4.2 As soon as practicable after the Effective Date, Royal Oak shall forward or
cause to be forwarded to each Shareholder (other than Royal Oak and those
shareholders who have exercised their dissent rights), at the address of such
holder as it appears in the relevant share register a letter of transmittal
(the "Letter
108
of Transmittal") containing, among other things, instructions for obtaining
delivery of Royal Oak Common Shares and/or cash pursuant to this Plan. Subject
to section 4.6, such Shareholders shall be entitled to receive certificates
representing the Royal Oak Common Shares and/or cheques representing the cash
payment specified in section 3.1 upon delivering the certificate or
certificates formerly representing such holder's El Condor Common Shares, St.
Philips Common Shares or Geddes Common Shares, as the case may be, to the
Depositary or as the Depositary may otherwise direct in accordance with the
instructions contained in the Letter of Transmittal. Such certificate or
certificates shall be accompanied by the Letter of Transmittal, duly completed,
and such other documents as the Depositary may reasonably require.
4.3 Subject to Article 5, the Depositary shall register the Royal Oak Common
Shares to which each Shareholder of El Condor or Geddes is entitled in the name
of such Shareholder or as otherwise instructed in the Letters of Transmittal,
and shall deliver such Royal Oak Common Shares as each such holder may direct
in such Letter of Transmittal, as soon as practicable after receipt by the
Depositary thereof.
4.4 Subject to Article 5, Royal Oak shall forward or cause to be forwarded to
each Shareholder of El Condor and St. Philips as soon as practicable after
receipt by the Depositary of such Shareholder's Letter of Transmittal, in
accordance with the instructions of such Shareholder therein, a cheque in
Canadian currency representing the cash payment required to be made to such
Shareholder pursuant to section 3.1.
4.5 After the Effective Date, and subject to Article 5, the Shareholders shall
not be entitled to any interest, dividend, premium or other payment on or with
respect to El Condor Common Shares, St. Philips Common Shares or Geddes Common
Shares other than the Royal Oak Common Shares and/or cash which they are
entitled to receive for such shares pursuant to section 3.1.
4.6 Any certificate formerly representing El Condor Common Shares, St. Philips
Common Shares or Geddes Common Shares that is not deposited with the Letters of
Transmittal and other required documents as provided in section 4.2 on or
before the sixth anniversary of the Effective Date shall cease to represent a
right or claim of any kind or nature against Royal Oak, El Condor, St. Philips
or Geddes and the right of the holder of such shares to
28
109
receive Royal Oak Common Shares and/or cash shall be deemed to be surrendered
to Royal Oak together with all dividends, distributions and any interest
thereon held for such holder.
4.7 No fractional Royal Oak Common Shares will be issued. In the event that
the exchange ratios referred to herein would in any case otherwise result in a
Shareholder being entitled to a fractional Royal Oak Common Share, an
adjustment will be made to the next highest whole number of Royal Oak Common
Shares in the case of a fraction that is greater than or equal to one half, and
to the next lowest whole number of Royal Oak Common Shares in the case of
fractions less than one half, and a certificate for the resulting whole number
of Royal Oak Common Shares will be issued.
ARTICLE 5
SHAREHOLDER DISSENT RIGHTS
5.1 Shareholders who have given a demand for payment which remains outstanding
on the Effective Date in accordance with the rights of dissent in respect of
the Plan granted by the Interim Order and who:
(a) are ultimately entitled to be paid for the El Condor Common
Shares, St. Philips Common Shares or Geddes Common Shares in respect
of which they dissent in accordance with the provisions of such
Interim Order whether by order of a Court (as defined in the OBCA) or
by acceptance of an offer made pursuant to such Interim Order, shall
be deemed to have transferred such shares to El Condor, St. Philips
or Geddes, as the case may be, for cancellation immediately after the
Effective Date; or
(b) are ultimately not so entitled to be paid for the El Condor
Common Shares, St. Philips Common Shares or Geddes Common Shares in
respect of which they dissent for any reason, shall be or be
reinstated as shareholders of El Condor, St. Philips or Geddes, as
the case maybe, but for purposes of receipt of consideration shall be
treated as if they had participated in this Plan on the same basis as
a non-dissenting holder of shares and such holders shall accordingly
be entitled to receive Royal Oak Common Shares and/or cash as such
non-dissenting holders are entitled to receive on the basis
determined in accordance with Section 3.1 and shall be deemed to have
transferred such shares to Royal Oak.
In no case shall Royal Oak, El Condor, St. Philips or Geddes be entitled or
required to recognize Shareholders as shareholders of El Condor, St. Philips or
Geddes, as the case may be, after the Effective Date.
110
ARTICLE 6
AMENDMENTS
6.1 Royal Oak, El Condor, St. Philips and Geddes may at any time and from time
to time before the Effective Date, vary, amend, modify or supplement this Plan
if the Court and each of Royal Oak, El Condor, St. Philips and Geddes determine
that such variation, amendment, modification or supplement would not be
prejudicial to the interests of Shareholders under this Plan.
29
111
AMENDING AGREEMENT
THIS AMENDING AGREEMENT is dated as of the 31st day of October, 1995.
BETWEEN:
ROYAL OAK MINES INC., a corporation amalgamated pursuant to the
provisions of the Business Corporation Act (Ontario)
(hereinafter referred to as "Royal Oak")
OF THE FIRST PART
-and-
EL CONDOR RESOURCES LTD., a corporation continued
pursuant to the provisions of the Business Corporations Act
(Ontario)
(hereinafter referred to as "El Condor")
OF THE SECOND PART
-and-
ST. PHILIPS RESOURCES INC., a corporation continued
pursuant to the provisions of the Business Corporations Act (Ontario)
(hereinafter referred to as "St. Philips")
OF THE THIRD PART
-and-
GEDDES RESOURCES LIMITED, a corporation incorporated
pursuant to the provisions of the Business Corporations Act (Ontario)
(hereinafter referred to as "Geddes")
OF THE FOURTH PART
WHEREAS Royal Oak, El Condor, St. Philips and Geddes (collectively the
"Participating Companies") entered into an arrangement agreement (the
"Arrangement Agreement") dated as of the 29th day of August, 1995;
112
-2-
AND WHEREAS the Final Order (as defined in the Arrangement Agreement) was
issued on October 24, 1995;
AND WHEREAS the Participating Companies wish to extend the time permitted
under the Arrangement Agreement for the fulfilment of the conditions contained
therein to the completion of the transactions contemplated thereby:
NOW THEREFORE, in consideration of the premises and the respective
covenants and agreements contained herein and in the Arrangement Agreement, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by each of the parties hereto, the parties hereto
hereby covenant and agree as follows:
1. Section 2.02 of the Arrangement Agreement is hereby amended by deleting the
phrase "more than ten Business Days after the date of the Final Order" after
the words "which shall not be" and substituting therefor "later than January
31, 1996".
2. Clause 6.02(e) of the Arrangement Agreement is hereby amended by deleting
"December 31, 1995" and substituting therefor "January 31, 1996".
3. In consideration for the foregoing amendments, Royal Oak covenants and
agrees with each of the other Participating Companies to complete as soon as
possible bulk sampling and bulk sample milling testing on the Kemess South
property owned by El Condor and St. Philips, to commence engineering on the
Kemess South property by January 31, 1996, to complete any and all reclamation
work, if necessary, as a result of the foregoing or any other work carried out
by Royal Oak on the Kemess South property, and to expend approximately $2.5
million in connection with the foregoing activities. Royal Oak further agrees
that all such expenditures made by it are for Royal Oak's own account and will
not be subject to repayment by El Condor and St. Philips under any
circumstances whatsoever, including the failure to complete the transactions
contemplated by the Arrangement Agreement.
4. Royal Oak will conduct all work related to the Kemess South property prior
to the completion of the Arrangement (as defined in the Arrangement Agreement)
in a proper and workman-like manner and will indemnify El Condor and St.
Philips and their respective directors, officers, employees and agents from any
claims made against and liabilities incurred by any of such indemnified parties
(including any liens which are registered against the Kemess South property)
arising as a result of such work done by or for the account of Royal Oak. In
the event the Arrangement is not completed, Royal Oak will deliver to
El Condor
113
and St. Philips all reports or other documentation pertaining to such work.
The obligation of Royal Oak to indemnify hereunder shall survive any
termination of the Arrangement Agreement.
5. Royal Oak acknowledges and accepts that as a result of this Amending
Agreement, El Condor and/or St. Philips may be in a position where either or
both of such companies have limited or no cash or cash equivalents and Royal
Oak agrees to waive
114
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compliance with any representation or condition in the Arrangement Agreement
that would otherwise be in default as a result of such financial situation.
6. Royal Oak agrees to reimburse the other Participating Companies for all
reasonable fees and disbursements of legal counsel incurred by them relating to
the entering into of this Amending Agreement or incurred by them after December
31, 1995 and until completion of the Arrangement or termination of the
Arrangement Agreement. Legal fees and disbursements incurred after December
31, 1995 shall be subject to the prior approval of Royal Oak.
7. The parties acknowledge that the principal purpose of this Amending
Agreement is to extend the time provided under the Arrangement Agreement for
the completion of the Arrangement and that, except as specifically provided
herein, this Amending Agreement is not intended to and does not vary, alter,
withdraw or affect in any manner and is without prejudice to any rights or
obligations of the Participating Companies under the Arrangement Agreement.
8. This Amending Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Amending
Agreement as of the date hereinbefore written.
ROYAL OAK MINES INC. EL CONDOR RESOURCES LTD.
Per:/s/ M.K. Witte Per: /s/
----------------------------- -----------------------------
c/s c/s
Per:/s/ Ross F. Burns Per: /s/
----------------------------- -----------------------------
ST. PHILIPS RESOURCES INC. GEDDES RESOURCES LIMITED
Per:/s/ E. Catevatis Per: /s/ M.K. Witte
----------------------------- -----------------------------
c/s c/s
Per: Per: /s/
----------------------------- -----------------------------
115
Court File No:
B254/95
ONTARIO COURT OF JUSTICE
(GENERAL DIVISION)
COMMERCIAL LIST
THE HONORABLE ) Tuesday, the 24th day
MR. JUSTICE WINKLER ) of October, 1995.
ON BEHALF OF:
ROYAL OAK MINES INC., EL CONDOR RESOURCES LTD.,
ST. PHILIPS RESOURCES INC. and GEDDES RESOURCES LIMITED
Applicants
APPLICATION UNDER Section 182 of the Business Corporations Act, R.S.O. 1990, c.
B.16, as amended, in respect of a Plan of Arrangement involving Royal Oak Mines
Inc., El Condor Resources Ltd., St. Philips Resources Inc. and Geddes Resources
Limited.
JUDGMENT
THIS APPLICATION was heard this day in the presence of counsel for the
Applicants.
ON READING THE NOTICE OF APPLICATION AND THE EVIDENCE FILED BY THE
APPLICANTS, and on hearing the submissions of counsel, and upon being advised
that if made this Judgement will form the basis for an exemption from the
registration and prospectus delivery requirements under the Securities Act of
1933, as amended, of the United States of America with respect to the common
shares which are to be issued by Royal Oak Mines Inc. pursuant to the plan of
arrangement,
AND UPON this Court being of the opinion that the terms and conditions of
the arrangement are fair and reasonable and ought therefore to be approved,
1. THIS COURT ORDERS that the Arrangement (the "Arrangement") as set forth in
the Plan of Arrangement, a copy of which is annexed hereto, be and the same is
hereby approved.
/s/
-----------------------------
Registrar
116
EXHIBIT 1
To the Arrangement Agreement made as of August 29, 1995
Among Royal Oak Mines Inc., El Condor Resources Ltd.,
St. Philips Resources Inc.
and Geddes Resources Limited
PLAN OF ARRANGEMENT UNDER SECTION 182
OF THE BUSINESS CORPORATIONS ACT (ONTARIO)
1.1 Definitions
In this Plan, unless the context otherwise requires, defined terms shall
have the following meanings:
"Arrangement" means the arrangement contemplated by this Plan;
"Articles of Arrangement" means the articles of arrangement in respect of the
Arrangement required by the OBCA to be sent to the Director by each of El
Condor, St. Philips and Geddes after the Final Order is made;
"BCCA" means the British Columbia Company Act, R.S.B.C. 1979, c. 59, as
amended;
"Business Day" means a day which is not a Saturday, Sunday or a statutory
holiday in Canada;
"Court" means the Ontario Court of Justice (General Division);
"Depositary" means The R-M Trust Company, as the registrar and transfer agent
of the Royal Oak Common Shares;
"Director" means the Director appointed pursuant to Section 278 of the OBCA;
"Effective Date" means the date set forth in the certificates of arrangement
issued by the Director to each of El Condor, St. Philips and Geddes under
the OBCA giving effect to the Arrangement;
"El Condor" means El Condor Resources Ltd., a corporation amalgamated under
the BCCA;
"El Condor Common Shares" means the common shares in the capital of El
Condor, as the same are constituted on the date hereof;
117
"El Condor Dissenting Shares" means all El Condor Common Shares which are
deemed to have been cancelled on the Effective Date in accordance with the
provisions of clause 5.1(a);
"Final Order" means an order of the Court approving the Arrangement, as such
order may be amended or modified by the highest court to which appeal may
be applied for;
"Geddes" means Geddes Resources Limited, a corporation incorporated under the
OBCA;
"Geddes Common Shares" means the common shares in the capital of Geddes, as the
same are constituted on the date hereof;
"Geddes Dissenting Shares" means the Geddes Common Shares which are deemed to
have been cancelled on the Effective Date in accordance with the
provisions of clause 5.1(a);
"Interim Order" means an order of the Court containing declarations and
directions under the OBCA with respect to the Arrangement;
"Letter of Transmittal" shall have the meaning ascribed thereto in section 4.2
hereof;
"OBCA" means the Business Corporations Act, R.S.O. 1990 c. B.16, as amended;
"Plan" means this plan, as amended or supplemented for time to time, and
"hereby", "hereof", "hereunder", "herewith" and similar terms refer to
this Plan and not to any particular provision of this Plan;
"Royal Oak" means Royal Oak Mines Inc., a corporation amalgamated under the
OBCA;
"Royal Oak Common Shares" means the common shares in the capital of Royal Oak,
as the same are constituted on the date hereof;
"St. Philips" means St. Philips Resources Inc., a corporation incorporated
under the BCCA;
A-26
118
"St. Philips Common Shares" means the common shares in the
capital of St. Philips, as the same are constituted on the date hereof;
"St. Philips Dissenting Shares" means all St. Philips Common Shares which are
deemed to have been cancelled on the Effective Date in accordance with the
provisions of clause 5.1(a);
"Shareholders" means the registered holders of El Condor Common Shares, St.
Philips Common Shares and Geddes Common Shares as of the Effective Date;
and
"Subsidiary" means a subsidiary as defined in the OBCA.
1.2 Interpretation Not Affected by Headings
The division of this agreement into articles, sections, subsections and
paragraphs and the insertion of headings are for convenience of reference only
and shall not affect in any way the meaning or interpretation of this Plan.
1.3 Article References
Unless the contrary intention appears, references in this Plan to an
article, section, subsection, paragraph, exhibit or schedule by number or
letter or both refer to the article, section, subsection, paragraph, exhibit or
schedule, respectively, bearing that designation in this Plan.
1.4 Number
In this Plan, unless the contrary intention appears, words importing the
singular include the plural and vice versa, words importing gender shall
include all genders, and words importing persons shall include a natural
person, firm, trust, partnership, association, corporation, joint venture or
government (including any governmental board, agency or instrumentality
thereof).
1.5 Date for Any Action
In the event that the date on which any action is required to be taken
hereunder is not a Business Day, such action shall be required to be taken on
the next succeeding day which is a Business Day.
119
1.6 Currency
Unless otherwise stated, all references in this Plan to sums of money are
expressed in lawful money of Canada.
ARTICLE 2
PURPOSE AND EFFECT OF THE PLAN
2.1 The following is only intended to be a general statement of the purpose of
the Plan and is qualified in its entirety by the specific provisions of the
Plan. The purpose of the Plan is to effect a reorganization and restructuring
of the share capital of each of El Condor, St. Philips and Geddes in a manner
that is equitable to the Shareholders, maintains the business and goodwill of
El Condor, St. Philips and Geddes as going concerns and results in El Condor,
St. Philips and Geddes becoming wholly-owned subsidiaries of Royal Oak.
2.2 The Plan shall be binding on all Shareholders, on El Condor, St. Philips
and Geddes and on Royal Oak upon the filing of the Articles of Arrangement with
the Director.
ARTICLE 3
ARRANGEMENT
3.1 On the Effective Date, each of the events set out below shall occur and be
deemed to occur without further act or formality:
(a) all issued and outstanding El Condor Common Shares (other than
the El Condor Dissenting Shares and El Condor Common Shares
beneficially owned by Royal Oak) shall be and be deemed to be
transferred to Royal Oak (free of any claims) and the registered
holders thereof shall be entitled to receive from Royal Oak in
exchange for each such share:
(i) subject to section 4.7, 0.95 Royal Oak Common
Shares (for 69.06% of each El Condor Common Share); and
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120
(ii) $2.00 in cash (for 30.94% of each El Condor Common Share);
(b) all issued and outstanding St. Philips Common Shares (other
than the St. Philips Dissenting Shares and St. Philips Common Shares
beneficially owned by Royal Oak) shall be and be deemed to be
transferred to Royal Oak (free of any claims) and the registered
holders thereof shall be entitled to receive from Royal Oak $3.40 in
cash in exchange for each such share;
(c) all issued and outstanding Geddes Common Shares (other than the
Geddes Dissenting Shares and Geddes Common Shares beneficially owned
by Royal Oak) shall be and be deemed to be transferred to Royal Oak
(free of any claims) and the registered holders thereof shall be
entitled to receive from Royal Oak in exchange for each share,
subject to section 4.7, 0.30 Royal Oak Common Shares;
(d) with respect to each El Condor Common Share, St. Philips Common
Share and Geddes Common Share to which clause 3.1(a), 3.1(b) or
3.1(c) applies:
(i) the registered holder thereof shall cease to be a
holder of such share and such holder's name shall be removed
from the applicable register of shares as of the Effective
Date; and
(ii) Royal Oak shall be and be deemed to be the
transferee of such share (free of any claims) and shall be
entered in the register of such shares as the holder thereof.
ARTICLE 4
OUTSTANDING CERTIFICATES AND PAYMENTS
4.1 After the Effective Date and subject to Article 5, certificates formerly
representing El Condor Common Shares, St. Philips Common Shares and Geddes
Common Shares (other than El Condor Common Shares, St. Philips Common Shares
and Geddes Common Shares beneficially owned by Royal Oak) shall represent only
the right to receive the consideration therefor specified in section 3.1,
subject to compliance with the requirements set forth in this Article 4.
4.2 As soon as practicable after the Effective Date, Royal Oak shall forward or
cause to be forwarded to each Shareholder (other than Royal Oak and those
shareholders who have exercised their dissent rights), at the address of such
holder as it appears in the relevant share register a letter of transmittal
(the "Letter
121
of Transmittal") containing, among other things, instructions for obtaining
delivery of Royal Oak Common Shares and/or cash pursuant to this Plan. Subject
to section 4.6, such Shareholders shall be entitled to receive certificates
representing the Royal Oak Common Shares and/or cheques representing the cash
payment specified in section 3.1 upon delivering the certificate or
certificates formerly representing such holder's El Condor Common Shares, St.
Philips Common Shares or Geddes Common Shares, as the case may be, to the
Depositary or as the Depositary may otherwise direct in accordance with the
instructions contained in the Letter of Transmittal. Such certificate or
certificates shall be accompanied by the Letter of Transmittal, duly completed,
and such other documents as the Depositary may reasonably require.
4.3 Subject to Article 5, the Depositary shall register the Royal Oak Common
Shares to which each Shareholder of El Condor or Geddes is entitled in the name
of such Shareholder or as otherwise instructed in the Letters of Transmittal,
and shall deliver such Royal Oak Common Shares as each such holder may direct
in such Letter of Transmittal, as soon as practicable after receipt by the
Depositary thereof.
4.4 Subject to Article 5, Royal Oak shall forward or cause to be forwarded to
each Shareholder of El Condor and St. Philips as soon as practicable after
receipt by the Depositary of such Shareholder's Letter of Transmittal, in
accordance with the instructions of such Shareholder therein, a cheque in
Canadian currency representing the cash payment required to be made to such
Shareholder pursuant to section 3.1.
4.5 After the Effective Date, and subject to Article 5, the Shareholders shall
not be entitled to any interest, dividend, premium or other payment on or with
respect to El Condor Common Shares, St. Philips Common Shares or Geddes Common
Shares other than the Royal Oak Common Shares and/or cash which they are
entitled to receive for such shares pursuant to section 3.1.
4.6 Any certificate formerly representing El Condor Common Shares, St. Philips
Common Shares or Geddes Common Shares that is not deposited with the Letters of
Transmittal and other required documents as provided in section 4.2 on or
before the sixth anniversary of the Effective Date shall cease to represent a
right or claim of any kind or nature against Royal Oak, El Condor, St. Philips
or Geddes and the right of the holder of such shares to
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122
receive Royal Oak Common Shares and/or cash shall be deemed to be surrendered
to Royal Oak together with all dividends, distributions and any interest
thereon held for such holder.
4.7 No fractional Royal Oak Common Shares will be issued. In the event that
the exchange ratios referred to herein would in any case otherwise result in a
Shareholder being entitled to a fractional Royal Oak Common Share, an
adjustment will be made to the next highest whole number of Royal Oak Common
Shares in the case of a fraction that is greater than or equal to one half, and
to the next lowest whole number of Royal Oak Common Shares in the case of
fractions less than one half, and a certificate for the resulting whole number
of Royal Oak Common Shares will be issued.
ARTICLE 5
SHAREHOLDER DISSENT RIGHTS
5.1 Shareholders who have given a demand for payment which remains outstanding
on the Effective Date in accordance with the rights of dissent in respect of
the Plan granted by the Interim Order and who:
(a) are ultimately entitled to be paid for the El Condor Common
Shares, St. Philips Common Shares or Geddes Common Shares in respect
of which they dissent in accordance with the provisions of such
Interim Order whether by order of a Court (as defined in the OBCA) or
by acceptance of an offer made pursuant to such Interim Order, shall
be deemed to have transferred such shares to El Condor, St. Philips
or Geddes, as the case may be, for cancellation immediately after the
Effective Date; or
(b) are ultimately not so entitled to be paid for the El Condor
Common Shares, St. Philips Common Shares or Geddes Common Shares in
respect of which they dissent for any reason, shall be or be
reinstated as shareholders of El Condor, St. Philips or Geddes, as
the case maybe, but for purposes of receipt of consideration shall be
treated as if they had participated in this Plan on the same basis as
a non-dissenting holder of shares and such holders shall accordingly
be entitled to receive Royal Oak Common Shares and/or cash as such
non-dissenting holders are entitled to receive on the basis
determined in accordance with Section 3.1 and shall be deemed to have
transferred such shares to Royal Oak.
In no case shall Royal Oak, El Condor, St. Philips or Geddes be entitled or
required to recognize Shareholders as shareholders of El Condor, St. Philips or
Geddes, as the case may be, after the Effective Date.
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ARTICLE 6
AMENDMENTS
6.1 Royal Oak, El Condor, St. Philips and Geddes may at any time and from time
to time before the Effective Date, vary, amend, modify or supplement this Plan
if the Court and each of Royal Oak, El Condor, St. Philips and Geddes determine
that such variation, amendment, modification or supplement would not be
prejudicial to the interests of Shareholders under this Plan.
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Ontario Corporation Number
Numero de la compagnie
en Ontario
481860
ARTICLES OF AMENDMENT
STATUTS DE MODIFICATION
1. The present name of the Denomination sociale
corporation is: actuelle de la
compagnie:
G E D D E S R E S O U R C E S L I M I T E D
2. The name of the corpora- Nouvelle denomination
tion is changed to (if sociale de la compagnie
applicable): (s'il y a lieu):
K E M E S S M I N E S I N C.
3. Date of incorporation/ Date de la constitution ou de
amalgamation: la fusion:
3 JUNE 1981
--------------------------------------------------------------
(Day, Month, Year)
(jour, mois, annee)
4. The articles of the Les statuts de la compagnie
corporation are amended sont modifies de la facon
as follows: suivante:
RESOLVED as a special resolution that the articles of the
Corporation are hereby amended as follows:
1. to change the name of the Corporation to Kemess Mines Inc.
125
5. The amendment has been duly authorized La modification a ete
as required by Sections 168 & 170 dument autorisee
(as applicable) of the Business conformement a l'article
Corporations Act. 168 et, s'il y a lieu, a
l'article 170 de la Loi
sur les compagnies.
6. The resolution authorizing the Les actionnaires ou les
amendment was approved by the administrateurs (le cas
shareholders/directors (as echeant) de la compagnie
applicable) of the corporation on ont approuve la
resolution autorisant la
modification
12 January 1996
- -----------------------------------------------------------------------------
(Day, Month, Year)
(jour, mois, annee)
These articles are signed in duplicate. Les presents statuts sont
signes en double
exemplaire.
GEDDES RESOURCES LIMITED
-------------------------------------------
(Name of Corporation)
(Denomination sociale de la compagnie)
By/Par: /s/ SECRETARY
------------------------------------
(Signature) (Description of Office)
(Signature) (Fonction)
126
Ontario Corporation Number
Numero de la compagnie en Ontario
481860
ARTICLES OF AMENDMENT
STATUTS DE MODIFICATION
1. The present name of the Denomination sociale
corporation is: actuelle de la
compagnie:
G E D D E S R E S O U R C E S L I M I T E D
2. The name of the corpora- Nouvelle denomination
tion is changed to (if sociale de la compagnie
applicable): (s'il y a lieu):
3. Date of incorporation/ Date de la constitution ou
amalgamation: de la fusion:
3 JUNE 1981
- ---------------------------------------------------------------------------
(Day, Month, Year)
(jour, mois, annee)
4. The articles of the Les statuts de la compagnie
corporation are amended sont modifies de la facon
as follows: suivante:
"WHEREAS Geddes Resources Limited (the "Corporation") was
incorporated under the laws of the Province of Ontario by
Articles of Incorporation dated June 3, 1981;
AND WHEREAS the authorized capital of the Corporation is
divided into 10,000,000 Class A Preferred Shares with a par
value of $10 each and 10,000,000 Common Shares without par
value;
NOW THEREFORE BE IT RESOLVED THAT:
A. The Articles of Incorporation be amended by deleting all of
item 7 setting forth the designations, preferences, rights,
conditions, restrictions, limitations or prohibitions attaching
to the Class A
127
Preferred Shares and substituting the following therefor:
128
5. The amendment has been duly authorized La modification a ete
as required by Sections 168 & 170 dument autorisee
(as applicable) of the Business conformement a l'article
Corporations Act. 168 et, s'il y a lieu, a
l'article 170 de la Loi
sur les compagnies.
6. The resolution authorizing the Les actionnaires ou les
amendment was approved by the administrateurs (le cas
shareholders/directors (as echeant) de la compagnie
applicable) on the corporation on ont approuve la
resolution autorisant la
modification
12 JANUARY 1996
- --------------------------------------------------------------------------------
(Day, Month, Year)
(jour, mois, annee)
These articles are signed in duplicate. Les presents status sont
signes en double
exemplaire.
GEDDES RESOURCES LIMITED
----------------------------------------
(Name of Corporation)
(Denomination sociale de la compagnie)
By/Par. /s/ SECRETARY
----------------------------------------
(Signature) (Description of Office)
(Signature) (Fonction)
129
-2-
AND WHEREAS the Final Order (as defined in the Arrangement Agreement) was
issued on October 24, 1995;
AND WHEREAS the Participating Companies wish to extend the time permitted
under the Arrangement Agreement for the fulfilment of the conditions contained
therein to the completion of the transactions contemplated thereby;
NOW THEREFORE, in consideration of the premises and the respective
covenants and agreements contained herein and in the Arrangement Agreement, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by each of the parties hereto, the parties hereto
hereby covenant and agree as follows:
1. Section 2.02 of the Arrangement Agreement is hereby amended by deleting the
phrase "more than ten Business Days after the date of the Final Order" after
the words "which shall not be" and substituting therefor "later than January
31, 1996".
2. Clause 6.02(e) of the Arrangement Agreement is hereby amended by deleting
"December 31, 1995" and substituting therefor "January 31, 1996".
3. In consideration for the foregoing amendments, Royal Oak covenants and
agrees with each of the other Participating Companies to complete as soon as
possible bulk sampling and bulk sample milling testing on the Kemess South
property owned by El Condor and St. Philips, to commence engineering on the
Kemess South property by January 31, 1996, to complete any and all reclamation
work, if necessary, as a result of the foregoing or any other work carried out
by Royal Oak on the Kemess South property, and to expend approximately $2.5
million in connection with the foregoing activities. Royal Oak further agrees
that all such expenditures made by it are for Royal Oak's own account and will
not be subject to repayment by El Condor and St. Philips under any
circumstances whatsoever, including the failure to complete the transactions
contemplated by the Arrangement Agreement.
4. Royal Oak will conduct all work related to the Kemess South property prior
to the completion of the Arrangement (as defined in the Arrangement Agreement)
in a proper and workmanlike manner and will indemnify El Condor and St. Philips
and their respective directors, officers, employees and agents from any claims
made against and liabilities incurred by any of such indemnified parties
(including any
130
liens which are registered against the Kemess South property) arising as a
result of such work done by or for the account of Royal Oak. In the event the
Arrangement is not completed, Royal Oak will deliver to El Condor and St.
Philips all reports or other documentation pertaining to such work. The
obligation of Royal Oak to indemnify hereunder shall survive any termination of
the Arrangement Agreement.
5. Royal Oak acknowledges and accepts that as a result of this Amending
Agreement, El Condor and/or St. Philips may be in a position where either or
both of such companies have limited or no cash or cash equivalents and Royal
Oak agrees to waive
131
-3-
compliance with any representation or condition in the Arrangement Agreement
that would otherwise be in default as a result of such financial situation.
6. Royal Oak agrees to reimburse the other Participating Companies for all
reasonable fees and disbursements of legal counsel incurred by them relating to
the entering into of this Amending Agreement or incurred by them after December
31, 1995 and until completion of the Arrangement or termination of the
Arrangement Agreement. Legal fees and disbursements incurred after December
31, 1995 shall be subject to the prior approval of Royal Oak.
7. The parties acknowledge that the principal purpose of this Amending
Agreement is to extend the time provided under the Arrangement Agreement for
the completion of the Arrangement and that, except as specifically provided
herein, this Amending Agreement is not intended to and does not vary, alter,
withdraw or affect in any manner and is without prejudice to any rights or
obligations of the Participating Companies under the Arrangement Agreement.
8. This Amending Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Amending
Agreement as of the date hereinbefore written.
ROYAL OAK MINES INC. EL CONDOR RESOURCES LTD.
Per:/s/ M.K. Witte Per: /s/
-------------------------- --- ----------------------------- ---
c/s c/s
Per:/s/ Ross F. Burns Per: /s/
-------------------------- --- ----------------------------- ---
ST. PHILIPS RESOURCES INC. GEDDES RESOURCES LIMITED
Per:/s/ Per: /s/ M.K. Witte
-------------------------- --- ----------------------------- ---
c/s c/s
Per: Per: /s/
-------------------------- --- ----------------------------- ---