Exhibit 3.2
BID.COM INTERNATIONAL INC.
- and -
CIBC MELLON TRUST COMPANY
_________________________________________________________
Warrant Indenture
Providing for the Issue of Common Share Purchase Warrants
dated as of September 30, 1999
_________________________________________________________
THIS Warrant Indenture dated as of the 30th day of September, 1999, is made
B E T W E E N:
BID.COM INTERNATIONAL INC., a company incorporated under the laws
of the Province of Ontario
(hereinafter called the "Corporation")
- and -
CIBC MELLON TRUST COMPANY, a trust company incorporated under the
laws of Canada
(hereinafter called the "Agent")
WHEREAS the Corporation proposes to create and issue up to 1,621,621
Warrants to be constituted, issued and sold in the manner herein set forth; and
WHEREAS the Agent has agreed to act as warrant agent on behalf of the
Warrantholders on the terms and conditions herein set forth;
WHEREAS the foregoing statements of fact and recitals are made by the
Corporation and not the Agent.
NOW THEREFORE in consideration of the premises and in further consideration
of the mutual covenants herein set forth, the parties hereto agree as follows:
ARTICLE 1
INTERPRETATION
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1.1 Definitions: In this Indenture, unless there is something in the subject
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matter or context inconsistent therewith, the following words have the
respective meanings indicated below:
(a) "Agent" has the meaning specified above and includes a successor agent
determined in accordance with Section 9.8;
(b) "Broker Warrants" means the 270,270 broker warrants of the Corporation
created and issued by the Corporation to the Underwriter entitling the
Underwriter to acquire one Common Share and one-half of one Warrant;
(c) "Business Day" means a day which is not a Saturday, Sunday or civic or
statutory holiday in the Province of Ontario;
(d) "Closing Date" means September 30, 1999, being the date of the closing
of the completion of the issue and sale by the Corporation of the
Special Warrants;
(e) "Common Shares" means collectively the fully paid and non-assessable
common shares in the capital of the Corporation as presently
constituted and, except where the context hereof otherwise requires,
includes common shares issued or to be issued in accordance with the
due exercise of Warrants hereunder;
(f) "Corporation's auditors" means Deloitte & Touche or such other
chartered accountant or firm of chartered accountants duly appointed
as auditor or auditors of the Corporation from time to time and
acceptable to the Agent;
(g) "counsel" means a barrister and solicitor or a firm of barristers and
solicitors retained by the Agent or retained by the Corporation and
acceptable to the Agent;
(h) "director" means a director of the Corporation for the time being and
reference without more to action by the directors means action by the
directors of the Corporation as a board or, whenever duly empowered,
action by a committee of the board;
(i) "Dividends paid in the Ordinary Course" means such dividends payable
in cash (or in securities, property or assets of equivalent value)
declared payable on a Common Share in any fiscal year of the
Corporation to the extent that the amount or value of such dividends
in the aggregate do not exceed 5% of the Purchase Price and provide
that such dividends in the aggregate do not exceed 50% of the
consolidated net income of the Corporation for its immediately
preceding financial year determined in accordance with Canadian
generally accepted accounting principles and for such purposes the
amount of any dividends paid in other than cash or shares shall be the
fair market value of such dividends as determined by the directors
acting reasonably;
(j) "Exercise Date" has the meaning ascribed to it in section 5.2;
(k) "Exercise Form" means the exercise form accompanying a Warrant
Certificate;
(l) "Exercise Number" means the number of Common Shares which may be
received from time to time on exercise of a Warrant;
(m) "Expiry Date" means September 30, 2001;
(n) "Expiry Time" means 5:00 p.m., Toronto time, on the Expiry Date;
(o) "Extraordinary Resolution" has the meaning ascribed to it in Section
7.10;
(p) "person" means any entity whatsoever including without limitation an
individual, a corporation, a partnership, a trustee, a trust, an
unincorporated organization or a syndicate and words importing persons
have a similar meaning;
(q) "Prospectus" means a "final" prospectus qualifying for distribution
the Common Shares and Warrants issuable upon exercise or deemed
exercise of the exchange rights of the Special Warrants;
(r) "Purchase Price" means $12.00 per Common Share;
(s) "Qualifying Provinces" means the Province of Ontario and such other
jurisdictions in Canada in which purchasers of Special Warrants are
resident;
(t) "Regulation S" means Regulation S under the U.S. Securities Act (as
hereinafter defined);
(u) "Special Warrants" means collectively the special warrants of the
Corporation issued pursuant to a Special Warrant Indenture dated as of
September 30, 1999 (the "Special Warrant Indenture") entitling
registered holders thereof to receive upon the exercise of the
exchange rights thereof, one unit (herein a "Unit") consisting of one
Common Share and one-half a Warrant or alternatively, if a receipt by
the last of the securities regulatory authorities in the Qualifying
Provinces for a Prospectus is not obtained on or prior to December 29,
1999, each Unit shall consist of 1.1 Common Shares and 0.55 Warrants
(in lieu of one Common Share and one-half a Warrant);
(v) "subsidiary of the Corporation" means a corporation of which voting
securities carrying a majority of the votes attached to all
outstanding voting securities are owned, directly or indirectly, by
the Corporation or by one or more subsidiaries of the Corporation, or
by the Corporation and one or more subsidiaries of the Corporation
and, as used in this definition, voting securities means securities,
other than debt securities, carrying a voting right to elect directors
either under all circumstances or under some circumstances that may
have occurred and are continuing;
(w) "TSE" means The Toronto Stock Exchange;
(x) "Underwriter" means Canaccord Capital Corporation;
(y) "U.S. Person" means a U.S. person as that term is defined in
Regulation S;
(z) "U.S. Securities Act" means the Securities Act of 1933, as amended, of
the United States;
(aa) "United States" means the United States as that term is defined in
Regulation S;
(bb) "Warrant Certificate" means a warrant certificate in the form of
warrant certificate attached hereto as Schedule "A";
(cc) "Warrantholder" or "holder" means the registered holder of a Warrant
hereunder;
(dd) "Warrantholders' Request" means an instrument signed in one or more
counterparts by Warrantholders holding in the aggregate not less than
10% of the then outstanding Warrants which requests the Warrant Agent
to take some action or proceeding specified therein;
(ee) "Warrants" means warrants to be created and issued by the Corporation
upon exercise of the Special Warrants or exercise of the Broker
Warrants issued to the Underwriter entitling registered holders
thereof to receive one Common Share (or such kind and amount of shares
or other securities or property calculated pursuant to Article 4
hereof, as the case may be) on the exercise of one such warrant at or
before the Expiry Time upon payment of the Purchase Price by way of
certified cheque or bank draft payable to the Corporation;
(ff) "Weighted Average Price" in respect of a Common Share at any date
means the weighted average trading price of the Common Shares on the
principal stock exchange upon which the Common Shares are then listed
or if the Common Shares are not listed on any stock exchange, then on
the principal over-the-counter market or quotation system on which the
Common Shares are listed for quotation. The Weighted Average Price
will be calculated over the thirty (30) consecutive trading days
before the date on which the Weighted Average Price is to be
determined. The Weighted Average Price shall be determined by dividing
the aggregate of the sale prices of all the Common Shares sold on the
said exchange or market, as the case may be, during the said thirty
(30) consecutive trading days by the total number of Common Shares so
sold. If there is no market for the Common Shares during the period
in which the Weighted Average Price thereof would otherwise be
determined, the Weighted Average Price shall be determined by the
Corporation's auditors; and
(gg) "written order of the Corporation", "written request of the
Corporation", "written consent of the Corporation", "certificate of
the Corporation" and any other document required to be signed by the
Corporation, means, respectively, a written order, request, consent,
certificate or other document signed in the name of the Corporation by
any one of the president, any vice-president, or the secretary of the
Corporation, and may consist of one or more instruments so executed.
1.2 Entire Indenture: This Indenture constitutes the entire agreement
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between the parties hereto relating to the subject matter hereof and supersedes
all prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, of the parties and there are no general or
specific warranties, representations or other agreements by or among the parties
in connection with the entering into of this Indenture or the subject matter
hereof except as specifically set forth herein.
1.3 Headings: The division of this Indenture into Articles, Sections,
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Subsections, paragraphs and other subdivisions and the insertion of headings are
for convenience of reference only and shall not affect the construction or
interpretation of this Indenture or the Warrants.
1.4 Extending Meanings: In this Indenture, whenever the context permits or
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requires, words importing number shall include the singular and the plural and
words importing gender shall include all genders.
1.5 References: References to an Article, Section, Subsection, paragraph or
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other subdivision or schedule shall be construed as references to an Article,
Section, Subsection, paragraph or other subdivision of or schedule to this
Indenture unless the context otherwise requires.
1.6 Business Day: In the event that any day on or before which any action
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is required to be taken hereunder is not a Business Day, then such action shall
be required to be taken on or before the requisite time on the next succeeding
day that is a Business Day.
1.7 Meaning of "Outstanding": Every Warrant represented by a Warrant
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Certificate countersigned and delivered by the Agent hereunder shall be deemed
to be outstanding until it shall be cancelled or delivered to the Agent for
cancellation or until the Expiry Time; provided that where a new Warrant
Certificate has been issued pursuant to Section 2.6 to replace one which has
been mutilated, lost, stolen or destroyed, the Warrants represented by only such
new Warrant Certificate shall be counted for the purpose of determining the
aggregate number of Warrants outstanding.
1.8 Time: Time shall be of the essence hereof and of the Warrants issued
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hereunder.
1.9 Choice of Language: The parties hereby acknowledge that they have
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expressly requested that this Indenture and all notices, statements of account
and other documents required or permitted to be given or entered into pursuant
hereto be drawn up in the English language only. Les parties reconnaissent
avoir expressment demandees que la presente Convention ainsi que tout avis, tout
etat de compte et tout autre document a etre ou pouvant etre donne ou conclu en
vertu des dispositions des presentes, soient rediges en langue anglaise
seulement.
1.10 Applicable Law: This Indenture and the Warrants shall be governed by
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and construed in accordance with the laws of the Province of Ontario and the
laws of Canada applicable therein. The parties hereto submit to the exclusive
jurisdiction of the courts in the Province of Ontario. The parties agree that
any litigation between the parties which arises pursuant to or in connection
with this Indenture, or any of its provisions, shall be referred to the courts
in the Province of Ontario and shall not be referred to the courts in any other
jurisdiction.
ARTICLE 2
ISSUE AND PURCHASE OF WARRANTS
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2.1 Form and Terms of Warrants: (1) Subject to the provisions hereof, up
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to an aggregate of 1,621,621 Warrants are hereby authorized to be created by the
Corporation and each whole Warrant, together with payment of the Purchase Price
prior to the Expiry Time, shall entitle a holder thereof to acquire one Common
Share (or other kind and amount of shares and
securities or property calculated pursuant to the provisions of Article 4, as
the case may be) at any time after their issue and on or prior to the Expiry
Time.
(2) The Warrants shall be executed by the Corporation and certified
by the Agent and shall be in registered form and the Warrant Certificates
shall be substantially in the form set out in Schedule "A" hereto with, subject
to the provisions of this Indenture, such additions, variations and/or omissions
as may from time to time be agreed upon between the Corporation and the Agent
and as otherwise provided by this Indenture, and shall be numbered in such
manner as the Corporation, with the approval of the Agent, may prescribe. All
Warrants shall, save as to denominations, be of like tenor and effect. The
Warrant Certificates may be engraved, lithographed, printed or partly in one
form and partly another as the Corporation may determine. No change in the form
of the Warrant Certificates shall be required (except as to content) by reason
of any adjustment made pursuant to Article 4.
(3) Each Warrant certificate originally issued to a U.S. Person or person
within the United States, as well as all certificates issued in exchange for or
in substitution of the foregoing securities, will bear a legend to the following
effect:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "U.S. SECURITIES ACT"), AND MAY BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE
THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION
S UNDER THE U.S. SECURITIES ACT AND IN COMPLIANCE WITH ANY
APPLICABLE STATE SECURITIES LAWS, (C) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER, IF APPLICABLE, AND IN
COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (D)
UPON RECEIPT OF AN OPINION OF COUNSEL REASONABLY ACCEPTABLE
TO THE CORPORATION THAT SUCH TRANSFER IS EXEMPT FROM
REGISTRATION UNDER THE U.S. SECURITIES ACT AND ALL
APPLICABLE U.S. STATE SECURITIES LAWS.
(4) Fractional Warrants Share not be issued or otherwise provided for.
2.2 Transfer and Ownership of Warrants: (1) The Agent shall maintain a
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register of the holders at its principal office in the City of Toronto which
shall be open for inspection by any agent or representative of the Corporation,
the Underwriter or a Warrantholder, in which shall be entered the name and
addresses of the holders of the Warrants, the number of Warrants held by them
and all other information required by law. The Agent shall, from time to time
when requested to do so in writing by the Corporation or the Underwriter furnish
the Corporation or the Underwriters, as the case may be, with a list of the
names and addresses of holders of
Warrants entered in the registers kept by the Agent and showing the number of
Common Shares which might then be acquired upon the exercise of the Warrants
held by each such holder.
(2) Except as otherwise set forth in this Section 2.2, the Warrants are
not transferable.
(3) A person who furnishes evidence to the reasonable satisfaction of the
Agent that he is:
(a) a Warrantholder;
(b) an executor, administrator, heir or legal representative of the heirs
of the estate of a deceased Warrantholder;
(c) a guardian, committee, trustee, curator or tutor representing a
Warrantholder who is an infant, an incompetent person or a missing
person;
(d) a liquidator of, or a trustee in bankruptcy for, a Warrantholder; or
(e) a transferee of a Warrantholder,
may as hereinafter stated, by surrendering such evidence together with the
Warrant Certificate in question to the Agent (by delivery or mail as set forth
in Section 10.3) and subject to such reasonable requirements with respect to the
payment by the holder of the costs associated with the transfer as the Agent may
prescribe and all applicable securities legislation and requirements of
regulatory authorities, become noted upon the register of Warrantholders. After
receiving the surrendered Warrant Certificates and upon the person surrendering
the same meeting the requirements as hereinbefore set forth, the Agent shall
forthwith give written notice thereof together with confirmation as to the
identity of the person entitled to become the holder to the Corporation.
Forthwith after receiving written notice from the Agent as aforesaid, the
Corporation shall, in accordance with the provisions of Section 2.7, cause a new
Warrant Certificate to be issued and sent to the new holder and the Agent shall
alter its register of holders accordingly.
(4) Warrants may not be transferred to U.S. Persons or persons within the
United States, subject to subsection 2.2(5).
(5) Notwithstanding subsection 2.2(4), if a Warrant certificate tendered
for transfer bears the legend set forth in subsection 2.1(3):
(i) the transfer may be made to a U.S. Person or persons within the United
States, provided that the transfer is made in accordance with the
terms of such legend and provided further that the Warrant certificate
issued to such transferee shall also bear such legend; or
(ii) if the Warrant represented by such Warrant Certificate are being sold
outside the United States under Rule 904 of Regulation S, the legend
may be removed by the transferor providing an opinion of counsel
reasonably acceptable to the
Corporation that such transfer is exempt from registration under the
U.S. Securities Act and all applicable U.S. State securities laws. The
Warrant Agent shall be protected in acting and relying solely on the
addresses provided by the transferor for these purposes.
(6) Subject to the provisions of this Indenture and applicable law, the
Warrantholder shall be entitled to the rights and privileges attaching to the
Warrants free from all equities and rights of set-off or counterclaim between
the Corporation and such Warrantholder's transferor or previous holder of
Warrants and the issue of Common Shares by the Corporation upon the exercise of
Warrants by any Warrantholder in accordance with the terms and conditions herein
contained shall discharge all responsibilities of the Corporation and the Agent
with respect to such Warrants.
2.3 Warrantholders not Shareholders: A Warrantholder shall not, as such, be
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deemed to be or regarded as a shareholder of the Corporation nor shall such
Warrantholder be entitled to any right or interest except as is expressly
provided in this Indenture and in the Warrant Certificate.
2.4 Signing of Warrants: The Warrant Certificates shall be signed either
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manually or by facsimile signature by any one director or officer of the
Corporation and may, but need not be, under its corporate seal. A facsimile
signature upon any Warrant Certificate shall for all purposes hereof be deemed
to be the signature of the person whose signature it purports to be and to have
been signed at the time such facsimile signature is reproduced. If a person
whose signature, either manually or in facsimile, appears on a Warrant
Certificate is not a director or officer of the Corporation, at the date of this
Indenture or at the date of the countersigning and delivery of such Warrant
Certificate, such fact shall not affect in any way the validity of the Warrants
or the entitlement of the holder thereof to the benefits of this Indenture.
2.5 Countersigning: No Warrant Certificate shall be issued, or if issued,
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shall be valid or exercisable or entitle the holder thereof to the benefits of
this Indenture until the Warrant Certificate has been manually countersigned by
or on behalf of the Agent. The countersignature by or on behalf of the Agent on
any Warrant Certificate shall not be construed as a representation or warranty
by the Agent as to the validity of this Indenture or of the Warrants or as to
the performance by the Corporation of its obligations under this Indenture and
the Agent shall in no way be liable or answerable for the use made of the
Warrants. The countersignature of the Agent shall, however, be a representation
and warranty of the Agent that the Warrant Certificate has been duly
countersigned by or on behalf of the Agent pursuant to the provisions of this
Indenture and shall be conclusive evidence as against the Corporation that the
Warrant Certificate so countersigned has been duly issued hereunder and the
holder is entitled to the benefits hereof and thereof.
2.6 Loss, Mutilation, Destruction or Theft of Warrants: (1) In case any of the
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Warrant Certificates issued and countersigned hereunder shall become mutilated
or be lost, destroyed or stolen, the Corporation shall, upon the holder
complying with this Section 2.6, issue and thereupon the Agent shall countersign
and deliver a new Warrant Certificate of like date and tenor in exchange for and
in place of the one mutilated, lost, destroyed or stolen and upon
surrender and cancellation of such mutilated Warrant Certificate or in lieu of
and in substitution for such lost, destroyed or stolen Warrant Certificate and
the substituted Warrant Certificate shall be in a form approved by the Agent and
shall entitle the holder thereof to the benefits hereof and rank equally in
accordance with its terms with all other Warrants issued hereunder.
(2) The applicant for the issue of a new Warrant Certificate pursuant to
this Section 2.6 shall bear the reasonable costs of the issue thereof, which
costs will include all applicable taxes, and in case of loss, destruction or
theft shall, as a condition precedent to the issue thereof, furnish to the
Corporation and to the Agent such evidence of ownership and of the loss,
destruction or theft of the Warrant Certificate so lost, destroyed or stolen as
shall be satisfactory to the Corporation and to the Agent, in their discretion,
acting reasonably, and such applicant shall also be required to furnish an
indemnity bond in amount and form satisfactory to the Corporation and the Agent
in their discretion, acting reasonably, and shall pay the reasonable charges of
the Corporation and the Agent in connection therewith.
2.7 Issue of Warrants: Warrant Certificates shall be signed by the
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Corporation as aforesaid and delivered to the Agent from time to time. The
Agent shall countersign any Warrant Certificate delivered by the Corporation to
the Agent as aforesaid and shall forthwith deliver to the person or persons in
whose name or names the Warrant Certificate is to be issued (as specified in any
written order from time to time given by the Corporation to the Agent and signed
by the President, Secretary or Assistant Secretary of the Corporation) or mail
to such person or persons at their respective addresses specified in the written
order from the Corporation the Warrant Certificate for the appropriate number of
Warrants.
2.8 Warrants to Rank Pari Passu: All Warrants shall rank pari passu,
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whatever may be the actual date of same.
2.9 Exchange of Warrants:
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(a) Warrant Certificates may, upon compliance with the reasonable
requirements of the Agent, be exchanged for Warrant Certificates in
any other authorized denomination representing in the aggregate the
same number of Warrants. The Corporation shall sign and the Agent
shall countersign, in accordance with Sections 2.4 and 2.5, all
Warrant Certificates necessary to carry out the exchanges contemplated
herein.
(b) Warrant Certificates may be exchanged only at the principal office of
the Agent in the City of Toronto. Any Warrant Certificates tendered
for exchange shall be surrendered to the Agent and cancelled.
(c) Except as otherwise herein provided, the Agent may charge registered
holders requesting an exchange a reasonable sum for each Warrant
Certificate exchanged; and payment of such charges and reimbursement
of the Agent or the Corporation for any and all taxes or governmental
or other charges required to be paid shall be made by the party
requesting such exchange as a condition precedent to such exchange.
2.10 Recognition of Registered Holder: The Corporation and the Agent may deem
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and treat the registered holder of any Warrant Certificate as the absolute
beneficial owner of the Warrants represented thereby for all purposes under this
Indenture and the Corporation and the Agent shall not be affected by any notice
or knowledge to the contrary except where the Corporation or the Agent is
required to take notice by statute or by order of a court of competent
jurisdiction. A Warrantholder shall be entitled to the rights evidenced by the
Warrants registered in his name free from all equities or rights of set-off or
counterclaim between the Corporation and the original or any intermediate holder
thereof and all persons may act accordingly and the receipt by any such
Warrantholder of Common Shares upon the exercise thereof shall be a good
discharge to the Corporation and the Agent for the same and neither the
Corporation nor the Agent shall be bound to inquire into the title of any such
holder except where the Corporation or the Agent is required to take notice by
statute or by order of a court of competent jurisdiction.
ARTICLE 3
COVENANTS OF THE CORPORATION
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3.1 Covenants of the Corporation: The Corporation represents, warrants,
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covenants and agrees with the Agent for the benefit of the Agent and the
Warrantholders as follows:
(a) To Issue Warrants and Reserve Common Shares: That it is duly
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authorized to create and issue the Warrants and that the Warrant
Certificates, when issued and countersigned as herein provided, will
be valid and enforceable against the Corporation and that, subject to
the provisions of this Indenture, the Corporation will cause the
Common Shares from time to time acquired pursuant to the Warrants
under this Indenture and the certificates representing such Common
Shares to be duly issued and delivered in accordance with the terms
hereof and of the Warrant Certificates. At all times prior to and
including the Expiry Time, while any of the Warrants are outstanding,
the Corporation shall ensure that its authorized capital shall be
sufficient, and shall reserve and allot and conditionally issue out of
its authorized capital a number of Common Shares as is sufficient, to
enable the Corporation to meet its obligation to issue Common Shares
in respect of the exercise of all the Warrants outstanding hereunder
from time to time. All Common Shares acquired pursuant to exercise of
the Warrants shall be fully paid and non-assessable.
(b) To Pay Agent's Remuneration: That it will pay the Agent from time to
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time reasonable remuneration for its services hereunder and will, upon
the Agent's request, pay to or reimburse the Agent for all reasonable
expenses, disbursements and advances made or incurred by the Agent in
the administration or execution of its obligations hereunder
(including the compensation and disbursements of its counsel and other
advisors and assistants not regularly in its employ), both before any
default hereunder and thereafter until all duties of the Agent
hereunder have been finally and fully performed, except any such
expense, disbursement or advance that arises out of or results from
negligence, willful misconduct or bad faith of the Agent.
(c) To Execute Further Assurances: That it will do, execute, acknowledge
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and deliver or cause to be done, executed, acknowledged and delivered
all other acts, deeds and assurances in law as the Agent may
reasonably require for the better accomplishing and effecting the
intentions and provisions of this Indenture.
(d) Delivery of Financial Statements to Warrantholders: The Corporation
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will send to the Warrantholders copies of all financial statements and
other material furnished to the holders of its Common Shares during
the term of this Indenture.
(e) Performance of Covenants by Agent: If the Corporation shall fail to
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perform any of its covenants contained in this Indenture, the Agent
may notify the Warrantholders of such failure on the part of the
Corporation or may itself perform any of the said covenants capable of
being performed by it, but, subject to Section 9.2, the Agent shall be
under no obligation to do so or to notify the Warrantholders. All
sums reasonably expended or advanced by the Agent in performance of
its rights provided for in this Subsection 3.1(e) shall be repayable
as provided in this Section 3.1. No such performance, expenditure or
advance by the Agent shall be deemed to relieve the Corporation of any
default hereunder or its continuing obligations hereunder.
(f) Performance of Indenture: It will well and truly perform and carry
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out all of the acts or things to be done by it as provided in this
Indenture.
(g) Corporate Existence: It will maintain its corporate existence and
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will carry on and conduct its business in accordance with good
business practice.
(h) Listing: The Corporation will use its reasonable best efforts to
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maintain the listing of the Common Shares on the TSE and NASDAQ and to
become or maintain its status as (as the case may be) a "reporting
issuer" not in default of the requirements of the securities
legislation and policies of each of the Qualifying Provinces.
(i) Action During Period of Notice: It will not take any other action
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which might deprive the Warrantholders of the opportunity of
exercising their rights pursuant to the Warrants held by such persons
during the period of notice required by section 4.6.
3.2 Securities Qualification Requirements:
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(a) If, in the opinion of counsel, any instrument (not including a
prospectus, except as required by Section 3.1) is required to be filed
with or any permission, order or ruling is required to be obtained
from any securities regulatory authority or any other action is
required under any Canadian federal or any provincial laws of the
Qualifying Provinces before any securities or property which a
Warrantholder is entitled to receive pursuant to the exercise of a
Warrant may properly and legally be delivered upon the due exercise of
a Warrant, the Corporation covenants that it
will use its best efforts to file such instrument, obtain such
permission, order or ruling or take all such other actions, at its
expense, as is required or appropriate in the circumstances.
(b) The Corporation, or if required by the Corporation, the Agent, will
give written notice of the issue of Common Shares pursuant to the
exercise of Warrants, in such detail as may be required, to the
securities regulatory authorities in the Qualifying Provinces if there
is therein any legislation, ruling or order requiring the giving of
any such notice in order that the subsequent disposition of the Common
Shares so issued will not be subject to the prospectus requirements of
such legislation, ruling or order (subject to any applicable hold
periods).
ARTICLE 4
ADJUSTMENT TO SUBSCRIPTION RIGHTS
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4.1 Adjustment to Subscription Rights: The Exercise Number shall be subject to
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adjustment from time to time in accordance with the following provisions:
(a) Stock Dividends, Subdivisions and Consolidations: If the Corporation
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shall:
(i) issue Common Shares or securities exchangeable for or
convertible into Common Shares without further payment
pursuant to a stock dividend to all or substantially
all of the holders of the Common Shares (other than as
Dividends paid in the Ordinary Course);
(ii) make a distribution on its issued and outstanding
Common Shares payable in Common Shares or securities
exchangeable for or convertible into Common Shares
without further payment (other than as Dividends paid
in the Ordinary Course);
(iii) subdivide its issued and outstanding Common Shares into
a greater number of Common Shares; or
(iv) consolidate its issued and outstanding Common Shares
into a smaller number of Common Shares;
(any such event being called a "Share Reorganization"), the Exercise
Number then in effect shall be adjusted effective immediately after
the record date on which the holders of Common Shares are determined
for the purposes of the Share Reorganization to the Exercise Number
determined by multiplying the Exercise Number then in effect by the
fraction, the numerator of which shall be the number of Common Shares
issued and outstanding after the completion of such Share
Reorganization and the denominator of which shall be the number of
Common Shares issued and outstanding on such record date.
(b) Rights Offering: If the Corporation shall distribute to all or
----------------
substantially all of its shareholders resident in Canada rights,
options or warrants exercisable within a period of forty-five (45)
days after the record date for such distribution 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 value per share in the case of securities exchangeable or
convertible into Common Shares equal to or less than ninety-five
percent (95%) of the Weighted Average Price for Common Shares
determined as of the record date for such distribution, to all or
substantially all of the holders of the Common Shares (any such event
being called a "Rights Offering"), the Exercise Number shall be
adjusted effective immediately after the record date on which holders
of Common Shares are determined for the purposes of the Rights
Offering to the Exercise number determined by multiplying:
(i) the Exercise Number in effect on such record date; by
(ii) the fraction
(1) the numerator of which shall be the aggregate of
(a) the number of Common Shares issued and 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, as the case may be, and
(2) the denominator of which shall be the aggregate of
(a) the number of Common Shares issued and outstanding
on such record date, and
(b) the number determined by dividing either:
(1) the product of
(a) the number of Common Shares so offered;
and
(b) the price at which each of such Common
Shares is offered, or
(2) the product of
(a) the maximum number of Common Shares for
or into which the securities so offered
pursuant to the Rights Offering may be
exchanged or converted; and
(b) the exchange or conversion value of each
one of such securities so offered,
as the case may be, by the Weighted Average Price
of Common Shares determined as of such record
date.
To the extent that such options, rights or warrants are not
exercised prior to the expiry date thereof, the Exercise
Number shall be readjusted effective immediately after such
expiry date to the Exercise Number 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.
(c) Special Distributions: If the Corporation shall distribute to all or
----------------------
substantially all of the holders of the Common Shares:
(i) shares of any class other than Common Shares;
(ii) rights, options or warrants, other than rights, options or
warrants referred to in Subsection 4.1(b) and other than
rights, options or warrants exercisable within a period of
forty-five (45) days after the record date for such
distribution 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
value per share greater than ninety-five percent (95%) of
the Weighted Average Price of the Common Shares determined
as of the record date for such distribution;
(iii)evidences of indebtedness; or
(iv) any other assets;
and such issuance or distribution does not constitute a Dividend paid
in the Ordinary Course, a Share Reorganization or a Rights Offering
(any such event being called a "Special Distribution"), the Exercise
Number then in effect shall be adjusted effective immediately after
the record date at which the holders of Common Shares are determined
for the purpose of the Special Distribution to the
Exercise Number determined by multiplying the Exercise Number in
effect on the record date of the Special Distribution by:
(v) the fraction
(1) the numerator of which shall be the number of Common
Shares issued and outstanding on such record date
multiplied by the Weighted Average Price of the Common
Shares determined as of such record date; and
(2) the denominator of which shall be the difference
between
(a) the product of
(1) the number of Common Shares issued and
outstanding on such record date, and
(2) the Weighted Average Price of the Common
Shares determined as of such record date,
and
(b) the fair value, as reasonably determined by the
directors of the Corporation, 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.
(d) Other Reorganization: If and whenever there is a capital
---------------------
reorganization of the Corporation not otherwise provided for in this
Section 4.1 or a consolidation, merger or amalgamation of the
Corporation with or into another body corporate or a sale of all or
substantially all of the assets of the Corporation, (any such event
being called a "Capital Reorganization"), any Warrantholder who
exercises its right to subscribe for Common Shares pursuant to the
exercise of a Warrant after the effective date of such Capital
Reorganization shall be entitled to receive and shall accept, upon the
exercise of such Warrant, in lieu of or in addition to the number of
Common Shares to which the Warrantholder was theretofore entitled on
conversion, the aggregate number of Common Shares or other securities
of the Corporation or of the body corporate resulting from the Capital
Reorganization that the Warrantholder would have been entitled to
receive as a result of such Capital Reorganization if, on the
effective date thereof, the Warrantholder had been the registered
holder of the number of Common Shares to which the Warrantholder was
theretofore entitled upon exercise of such Warrant subject to
adjustment thereafter in accordance with provisions the same, as
nearly as may be possible, as those contained in Subsections
4.1(a),(b) and (c), provided that it shall be a condition precedent to
such Capital Reorganization that all necessary steps shall have been
taken so that the Warrantholder shall thereafter be entitled to
receive such number of such Common Shares or other securities of the
Corporation or of the body corporate resulting from the Capital
Reorganization.
(e) Reclassification: If the Corporation shall reclassify the issued and
-----------------
outstanding Common Shares (such event being called a
"Reclassification"), the Exercise Number shall be adjusted effective
immediately after the record date of such Reclassification so that
Warrantholders who exercise Warrants shall be entitled to receive the
securities that they would have received had such Warrants been
exercised 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 Subsections 4.1(a),(b) and (c).
4.2 Adjustment of Purchase Price: The Purchase Price in effect at any date
----------------------------
shall be subject to adjustment from time to time as follows:
(a) If and whenever at any time during the term hereof, the Corporation
shall complete a Share Reorganization, the Purchase Price shall be
adjusted effective immediately after the effective date or record
date, as the case may be, on which the holders of Common Shares are
determined for the purpose of the Share Reorganization by multiplying
the Purchase Price in effect immediately prior to such effective date
or record date by a fraction, the numerator of which shall be the
number of Common Shares outstanding on such effective date or record
date before giving effect to such Share Reorganization and the
denominator of which shall be the number of Common Shares outstanding
immediately after giving effect to such Share Reorganization
(including, in the case where securities exchangeable for or
convertible into Common Shares are distributed, the number of Common
Shares that would be issued and outstanding had such securities been
exchanged for or converted into Common Shares on such record date) .
(b) If and whenever at any time during the term hereof, the Corporation
shall fix a record date for a Rights Offering, the Purchase Price
shall be adjusted immediately after such record date so that it shall
equal the price determined by multiplying the Purchase Price in effect
on such record date by a fraction of which the numerator shall be the
total number of Common Shares outstanding on such record date plus a
number equal to the number determined by dividing the aggregate price
of the total number of additional Common Shares offered for
subscription or purchase, or the aggregate conversion or exchange
price of the convertible securities so offered, by such Weighted
Average Price per Common Share, and of which the denominator shall be
the total number of Common Shares outstanding on such record date plus
the total number of additional Common Shares offered for subscription
or purchase (or into which the convertible securities so offered are
convertible or exchangeable). If by the terms of the rights, options
or warrants referred to in this Section 4.2(b), there is more than one
purchase, conversion or exchange price per Common Share, the aggregate
price of the total number of additional Common Shares offered for
subscription or purchase, or the aggregate conversion or exchange
price of the convertible
securities so offered, shall be calculated for purposes of the
exchange price per Common Share, as the case may be. To the extent
that any adjustment in Purchase Price occurs pursuant to this Section
4.2(b) as a result of the fixing by the Corporation of a record date
for the distribution of rights, options or warrants referred to in
this Section 4.2(b), the Purchase Price shall be readjusted
immediately after the expiration of any relevant exchange, conversion
or exercise right to the Purchase Price which would then be in effect
based upon the number of Common Shares actually issued and remaining
issuable after such expiration, and shall be further readjusted in
such manner upon expiration of any further such right.
(c) If and whenever at any time during the term hereof the Corporation
shall fix a record date for a special distribution, the Purchase Price
shall be adjusted immediately after such record date so that it shall
equal the price determined by multiplying the Purchase Price in effect
on such date by a fraction, of which the numerator shall be the
product of the number of Common Shares outstanding on such record date
and the Weighted Average Price on such record date, less the aggregate
fair market value (as determined by the directors which determination
shall be conclusive) of such securities, property or other assets so
issued or distributed, and of which the denominator shall be the
product of the number of Common Shares outstanding on such record date
and such Weighted Average Price.
4.3 Adjustment Rules: The following rules and procedures shall be
----------------
applicable to adjustments of the Exercise Number made pursuant to Section 4.1:
(a) Subject to the following subsections of this Section 4.3, any
adjustment pursuant to Section 4.1 or Section 4.2 shall be made
successively whenever an event referred to therein shall occur. All
adjustments within this Article 4 are cumulative.
(b) No adjustment in the Exercise Number shall be required unless such
adjustment would result in a change of at least one one-hundredth of a
Common Share; provided, however, that any adjustments which, except
for the provisions of this Subsection 4.3(b), would otherwise have
been required to be made shall be carried forward and taken into
account in any subsequent adjustment with respect to the Exercise
Number.
(c) No adjustment in the Exercise Number shall be made in respect of any
event described in Section 4.1 or to the Purchase Price in respect of
any event described in Section 4.2 if the Warrantholders are entitled
to participate in such event on the same terms mutatis mutandis as if
they had exercised their Warrants prior to or on the effective date or
record date of such event, subject to the prior written consent of The
TSE and NASDAQ, or such other stock exchange upon which the Common
Shares of the Corporation are then listed.
(d) If a dispute shall at any time arise with respect to adjustments of
the Exercise Number, such dispute shall be conclusively determined by
the Corporation's auditors or if they are unable or unwilling to act,
by such other firm of independent chartered accountants as may be
selected by the directors of the Corporation. In the event any such
determination is made, the Corporation shall deliver a certificate to
the Agent describing such determination.
(e) In the absence of a resolution of the directors of the Corporation
fixing a record date at which the holders of Common Shares are
determined for a Share Reorganization, Rights Offering, Special
Distribution or Reclassification requiring such a record date to be so
fixed, the directors of the Corporation shall be deemed to have fixed
as the record date therefor the date on which such Share
Reorganization, Rights Offering, Special Distribution or
Reclassification is effected.
(f) Subject to subsection 4.3(h), In the event that the Corporation after
the date of this Indenture shall take any action affecting the Common
Shares other than action described in this Article 4, the directors of
the Corporation may, but shall not be required to, make any other
adjustments to the to the extent, if any, such directors deem
appropriate, provided that no such adjustment shall be made unless
prior approval of any stock exchange or quotation system on which the
Common Shares are listed or quoted for trading, or have been listed or
quoted for trading within the past six months, for trading, if
required, has been obtained, no increase shall be made to the Purchase
Price and no decrease shall be made to the Exercise Number.
(g) In case the Corporation after the date of this Indenture shall take
any action affecting the Common Shares, other than an action described
in Section 4.1, which would have an adverse effect upon the rights of
the Warrantholders, the Exercise Number and the Purchase Price,
subject to the prior approval of any stock exchange or quotation
system on which the Common Shares are listed or quoted for trading
shall be adjusted in such manner and at such time as the directors of
the Corporation may, acting reasonably, determine to be equitable in
the circumstances, no increase shall be made to the Purchase Price and
no decrease shall be made to the Exercise Number.
(h) Subject to Section 4.3 hereof, no adjustment shall be made in the
subscription rights attached to the Warrants if the issue of Common
Shares is being made pursuant to any stock option or stock purchase
plan in force from time to time for directors, officers or employees
of the Corporation or any other currently existing obligation of the
Corporation.
4.4 Proceedings Prior to any Action Requiring Adjustment: As a condition
----------------------------------------------------
precedent to the taking of any action which would require an adjustment in any
of the subscription rights arising pursuant to the exercise of any of the
Warrants, including the number of Common Shares which are to be issued upon the
exercise thereof, the Corporation shall take any corporate action
which may, in the opinion of counsel, be necessary in order that the Corporation
shall have allotted and reserved for issue in the authorized capital of the
Corporation to enable the Corporation to validly and legally issue as fully paid
and non-assessable all the Common Shares and may validly and legally deliver all
other securities or property which the holders of such Warrants are entitled to
receive on the full exercise thereof in accordance with the provisions hereof.
4.5 Certificate of Adjustment: The Corporation shall from time to time
-------------------------
immediately after the occurrence of any event which requires an adjustment or
readjustment as provided in Section 4.1 hereof, or which may require an
adjustment or readjustment as provided in Subsections 4.3(g) and (h), deliver a
certificate of the Corporation to the Agent specifying the nature of the event
requiring the same and the amount of the adjustment necessitated thereby and
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based, which certificate and the amount of the
adjustment specified therein shall be verified by the Corporation's auditors
upon whose verification the Agent shall be entitled to act and rely. When so
verified, the Corporation shall forthwith give written notice to the
Warrantholders specifying the event requiring such adjustment or readjustment
and the results thereof; provided that if the Corporation has given prior notice
under Section 4.6 hereof covering all the relevant facts in respect of such
event and if the Agent consents in writing, no such notice need be given under
this Section 4.5.
4.6 Notice of Special Matters: The Corporation covenants with the Agent
-------------------------
that so long as any Warrant remains outstanding it will give at least 14 days'
prior written notice in the manner provided for in Article 10 to the Agent and
to each Warrantholder of the record date or effective date, as the case may be,
any event which requires an adjustment to the subscription rights attaching to
any of the Warrants pursuant to this Article 4. The Corporation covenants and
agrees that such notice shall contain the particulars of such event in
reasonable detail and, if determinable, the required adjustment in the manner
provided for in this Article 4. The Corporation further covenants and agrees
that it shall promptly, as soon as the adjustment calculations are reasonably
determinable, file a certificate of the Corporation with the Agent showing how
such adjustment shall be computed.
4.7 No Action after Notice: The Corporation covenants with the Agent that
----------------------
it will not close its transfer books or take any other corporate action which
might deprive a Warrantholder of the opportunity of exercising his right of
subscription pursuant thereto during the period of thirty (30) days after the
giving of the notices set forth in Sections 4.5 and 4.6 hereof.
4.8 Protection of Agent: The Agent:
-------------------
(a) shall not at any time be under any duty or responsibility to any
Warrantholder to determine whether any facts exist which may require
any adjustment contemplated by Section 4.1 hereof, or with respect to
the nature or extent of any such adjustment when made, or with respect
to the method employed in making the same;
(b) shall not be accountable with respect to the validity or value (or the
kind or amount) of any Common Shares or of any shares or other
securities or property which may at any time be issued or delivered
upon the exercise of the subscription rights attaching to any Warrant;
(c) shall not be responsible for any failure of the Corporation to make
any cash payment or to issue, transfer or deliver Common Shares or
certificates for the same upon the surrender of any Warrants for the
purpose of the exercise of such rights or to comply with any of the
covenants contained in this Article 4; and
(d) shall not incur any liability or responsibility whatever or be in any
way responsible for the consequence of any breach on the part of the
Corporation of any of the representations, warranties or covenants
herein contained or of any acts of the agents or servants of the
Corporation.
ARTICLE 5
EXERCISE AND CANCELLATION OF WARRANTS
-------------------------------------
5.1 Exercise of Warrants: (1) Upon and subject to the provisions of this
--------------------
Article 5, any holder of a Warrant may exercise from time to time the right
thereby conferred on him to subscribe for Common Shares by surrendering to the
Agent after the date upon which the Warrants are issued and until the Expiry
Time at its principal office in the City of Toronto, the Warrant Certificate
evidencing the Warrants, together with a certified cheque or bank draft in an
amount equal to the applicable Purchase Price, multiplied by the number of
Common Shares to be received payable to or to the order of the Corporation and
the Exercise Form duly completed and executed by the holder or his executors or
administrators or other legal representatives or his or their attorney duly
appointed by an instrument in writing in form and manner satisfactory to the
Agent.
(2) The Exercise Form shall be signed as set out above and shall specify:
(a) the number of Common Shares which the Warrantholder wishes to
subscribe for upon the exercise of the Warrants (being not more
than those which he is entitled to subscribe for pursuant to the
aggregate number of the Warrants so surrendered); and
(b) the person or persons in whose name or names the Common Shares are
to be issued, his or their address or addresses and the number of
Common Shares to be issued to each such person if more than one is
so specified, provided that the Warrantholder shall only be
entitled to direct his entitlement to the Common Shares in a manner
permitted by applicable securities legislation.
(3) Such Warrant Certificate shall be deemed to be so surrendered only
upon delivery thereof to the Agent at the Agent's principal office in the City
of Toronto (at the address specified in the attachment to the
Exercise Form) or by mailing the same to the Agent at the Agent's principal
office in the City of Toronto (at the address specified in the attachment to the
Exercise Form). Subject as hereinafter in this Section 5.1 provided, but
notwithstanding anything else herein contained, the Warrants shall be deemed to
be validly exercised only upon actual receipt of the Warrant Certificate(s),
together with a certified cheque or bank draft in an amount equal to the
applicable Purchase Price, multiplied by the number of Common Shares to be
received payable to or to the order of the Corporation and the duly completed
Exercise Form attached to said Warrant Certificate(s) by the Agent at the office
referred to above (by way of delivery or mail respectively) at or prior to the
Expiry Time.
(4) The Exercise Form shall not be deemed to be duly completed if the name
and mailing address of the holder do not appear legibly on such Exercise Form or
such Exercise Form is not signed by the holder, his executors, administrators,
other legal representatives or such holder's attorney duly appointed.
(5) If any of the Common Shares in respect of which the Warrants are
exercised are to be issued to a person or persons other than the Warrantholder
in accordance with the provisions of Section 2.2, the Warrantholder shall pay to
the Agent all requisite stamp or security transfer taxes or other government
charges exigible in connection with the issue of such Common Shares to such
other person or persons or shall establish to the satisfaction of the Agent that
such taxes and charges have been paid.
(6) If at the time of the exercise of the Warrants, there remain trading
restrictions on the Common Shares acquired, due to applicable securities
legislation, the Corporation may, on the advice of counsel, endorse the
certificates evidencing such Common Shares accordingly.
(7) Certificates representing the Common Shares issued to U.S. Persons
pursuant to the exercise of the Warrant certificate bearing the legend set forth
in subsection 2.1(3) shall also bear such legend:
DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE
"GOOD DELIVERY" IN SETTLEMENT OF TRANSACTIONS ON
STOCK EXCHANGES IN CANADA. A NEW CERTIFICATE,
BEARING NO LEGEND, MAY BE OBTAINED FROM THE REGISTRAR
AND TRANSFER AGENT UPON DELIVERY OF THIS CERTIFICATE
AND AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE
CORPORATION THAT SUCH TRANSFER IS EXEMPT FROM REGISTRATION
UNDER THE U.S. SECURITIES ACT AND ALL APPLICABLE U.S.
STATE SECURITIES LAWS.
5.2 Effect of Exercise of Warrants: (1) Upon valid exercise of the Warrants
------------------------------
as provided in Section 5.1, the Common Shares in respect of which the Warrants
are validly exercised shall be deemed to have been issued and such person or
persons as are specified pursuant to Section 5.1 shall be deemed to have become
the holder or holders of record of such securities on the date of such exercise
(herein called the "Exercise Date") and shall be registered as such in the
registers maintained for the Common Shares. The Common Shares issued upon the
valid exercise of Warrants shall be entitled only to dividends declared in
favour of shareholders of record on and
after the Exercise Date from which date such shares will for all purposes be and
be deemed to be issued and outstanding as fully paid and non-assessable Common
Shares.
(2) Upon valid exercise of the Warrants as aforesaid, the Agent shall
forthwith give written notice thereof to the Corporation.
(3) In the case of a Warrant which is exercised by a Warrantholder in
accordance with the provisions of Section 5.1, within three (3) Business Days
after the Exercise Date of such Warrant, the Corporation shall:
(a) cause to be mailed to the person in whose name the Common Shares so
subscribed for are to be issued, as specified in the subscription
completed on the Warrant, at the address specified in such
subscription;
(b) if so specified in such subscription, cause to be delivered to such
person at the office of the Agent where such Warrant was surrendered;
or
(c) if no specification as contemplated by paragraphs 5.2(3) (a) or (b) is
provided, cause to be mailed to the person in whose name the Common
Shares are to be issued at the address of such person last appearing
on the register maintained by the Agent pursuant hereto or as such
person may otherwise notify the Agent in writing on or prior to the
Exercise Date,
a certificate or certificates for the Common Shares to which the Warrantholder
is entitled.
5.3 Postponement of Delivery of Certificates: The Corporation shall not be
----------------------------------------
required to deliver certificates in respect of Common Shares during the period
when the stock transfer books of the Corporation are closed by law and in the
event of a surrender of a Warrant for the subscription for Common Shares during
such period, the delivery of certificates may be postponed for a period not
exceeding three (3) Business Days after the date of the re-opening of the stock
transfer books.
5.4 Cancellation of Warrants: All Warrant Certificates evidencing Warrants
------------------------
exercised as provided in Section 5.1, shall be cancelled and destroyed by the
Agent and, if required by the Corporation in writing, the Agent shall furnish
the Corporation with a certificate as to the destruction.
5.5 Warrants Void after Expiry Time: After the Expiry Time no holder of a
-------------------------------
Warrant Certificate representing a Warrant which has not been validly exercised
as set forth herein has any rights either under this Indenture or the Warrant,
and the Warrants are void and of no value or effect. All provisions of this
Indenture are subject to this Section 5.5.
5.6 Fractions of Common Shares: (1) To the extent that the holder of a
--------------------------
Warrant is entitled to receive on the exercise or partial exercise thereof a
fraction of a Common Share, such right may only be exercised in respect of such
fraction in combination with another Warrant or other
Warrants which in the aggregate entitle the holder to receive a whole number of
Common Shares. No fractional Common Shares will be issued.
(2) If a holder is not able to, or elects not to, combine Warrants so as
to be entitled to acquire a whole number of Common Shares, the Corporation shall
make an appropriate cash adjustment. However, in respect of any holder, the
Corporation shall only be required to make such a cash adjustment once and for
one Warrant and no more. The amount of the cash adjustment with respect to the
Common Share shall be equal to the fraction of the Common Share to which the
holder would be entitled multiplied by the Weighted Average Price.
5.7 Subscription for Less than Entitlement: A Warrantholder may subscribe
--------------------------------------
for a number of Common Shares less than the number which the Warrantholder is
entitled to purchase pursuant to the surrendered Warrant, in which event the
Warrantholder shall be entitled to receive (except after the Expiry Date) a new
Warrant Certificate evidencing the balance of the Common Shares which the
Warrantholder was entitled to subscribe for pursuant to the surrendered Warrant
and which were not then so subscribed for.
ARTICLE 6
NON-REDEMPTION
--------------
6.1 Non-Redemption of Warrants: The Warrants shall not be redeemable by the
--------------------------
Corporation. Any Warrants not exercised on or before the Expiry Time shall be
void and of no value.
ARTICLE 7
MEETINGS OF WARRANTHOLDERS
--------------------------
7.1 Convening of Meeting: At any time a meeting of Warrantholders may be
--------------------
convened by the Agent or the Corporation or by the holders of Warrants holding
not less than ten percent (10%) of the aggregate number of Warrants then
outstanding, who shall serve the Agent with a requisition signed by such holders
and the Agent shall then be bound to convene a meeting of Warrantholders. In
the event that the Agent fails to convene the meeting after being duly required
to do so, the holders of the then outstanding Warrants representing no less than
ten percent (10%) of the aggregate number of Warrants then outstanding may
themselves convene a meeting, the notice of which shall be signed by any person
as such Warrantholders may specify, provided that every such meeting shall be
held at the City of Toronto or such other place as the Agent may approve and the
Agent and the Corporation shall receive notice of such meeting, as provided in
Section 7.2. If a meeting is convened by the Warrantholders, the Agent will be
funded and indemnified against all costs, charges, expenses and liabilities by
the Warrantholders. If a meeting is convened by the Corporation, the Agent will
be indemnified against all costs, charges, expenses and liabilities by the
Corporation.
7.2 Notice: At least fifteen (15) days' prior notice of a meeting of
------
Warrantholders shall be given to all Warrantholders, the Agent, the Underwriter
and the Corporation and the notice shall state the time, place and in general
terms the nature of the business to be transacted but it shall
not be necessary to specify the text of the resolutions to be considered. It
shall not be necessary to specify the nature of business to be transacted at an
adjourned meeting.
7.3 Chairman: The chairman of the meeting of Warrantholders may be
--------
designated in writing by the Agent and need not be a Warrantholder. If no
person is so designated or if the person so designated is not present within
thirty (30) minutes after the time fixed for the holding of a meeting, the
Warrantholders and proxyholders for Warrantholders present at the meeting shall
choose one of their number to be the chairman.
7.4 Quorum: A quorum consists of those Warrantholders, whether present or
------
represented by proxy, holding not less than twenty-five percent (25%) of the
aggregate number of Warrants then outstanding. If at a meeting, a quorum is not
present or represented by proxy within thirty (30) minutes after the time
appointed for the meeting, then the meeting, if called by or upon the
requisition of Warrantholders shall be dissolved, but in any other case after
the appointment of a chairman, the meeting shall stand adjourned to such day
being not less than five (5) Business Days later and to such place and time as
may be appointed by the chairman of the meeting. At the adjourned meeting,
those persons present in person and owning Warrants or representing by proxy
Warrantholders shall, in any event, constitute a quorum for the transaction of
business for which the original meeting was convened.
7.5 Show of Hands: Subject to Section 7.6, every question submitted to a
-------------
meeting, except one requiring an Extraordinary Resolution, shall be decided in
the first instance by a majority of hands on a show of hands, the outcome of
which will be declared by the chairman.
7.6 Poll: A poll shall be taken when requested by a Warrantholder acting in
----
person or by proxy and, when demanded on the election of a chairman or on the
question of adjournment, it shall be taken forthwith. If demanded on any other
question or on an Extraordinary Resolution, a poll shall be taken in such manner
and either at once or after an adjournment as the chairman may direct. The
result of a poll shall be the decision of the meeting at which the poll was
demanded. On a poll vote, each Warrantholder acting in person or by proxy shall
have one vote for each Warrant which he holds or represents. Votes may be given
in person or by proxy and the proxyholder need not be a Warrantholder. The
chairman of any meeting shall be entitled to vote in respect of any Warrants and
proxies held by him.
7.7 Regulations: (1) The Agent, or the Corporation with the approval of
-----------
the Agent, may from time to time make and from time to time vary such
regulations not contrary to the provisions of this Indenture as it shall think
fit providing for and governing:
(a) the setting of the record date for a meeting for the purpose of
determining Warrantholders entitled to receive notice of and to vote
at a meeting;
(b) voting by proxy, the form of instrument appointing proxyholders, the
manner in which proxies are to be executed and the production of the
authority of any persons signing on behalf of a Warrantholder;
(c) the lodging of and means of forwarding the instruments appointing
proxyholders and the time before the holding of a meeting or adjourned
meeting by which the instruments appointing proxyholders are to be
deposited; and
(d) any other matter relating to the conduct of meetings of
Warrantholders.
(2) Any regulations so made shall be binding and effective and votes given
in accordance therewith shall be valid. The Agent may require Warrantholders to
provide proof of ownership of the Warrants in such manner as the Agent may
approve. Save as aforesaid, the only persons who shall be recognized at any
meeting as Warrantholders or entitled to vote or, except as provided in Section
7.12, be present at the meeting in respect thereof shall be persons who hold
Warrants or are duly appointed proxyholders for registered holders of Warrants.
7.8 Minutes: Minutes of all resolutions passed and proceedings taken at every
-------
meeting as aforesaid shall be made and duly entered in books to be from time to
time provided for that purpose by the Agent at the expense of the Corporation
and any such minutes as aforesaid, if signed by the chairman of the meeting at
which such resolutions were passed or proceedings taken, or by the chairman of
the next succeeding meeting of Warrantholders, shall be prima facie evidence of
the matters therein stated and until the contrary is proved, every such meeting
in respect of the proceedings of which minutes shall have been made shall be
deemed to have been duly held and convened and all resolutions passed thereat or
proceedings taken to have been duly passed and taken.
7.9 Powers Exercisable by Extraordinary Resolution: (1) In addition to all
----------------------------------------------
other powers conferred upon the Warrantholders by any other provision of this
Indenture or by law, the Warrantholders shall have the power, in addition to any
other powers exercisable by Extraordinary Resolution that may be enumerated
herein, from time to time by Extraordinary Resolution:
(a) to agree to or sanction any modification, abrogation, alteration or
compromise of the rights of the Warrantholders or the Agent in its
capacity as agent (subject to the Agent's prior written approval)
hereunder or on behalf of Warrantholders against the Corporation which
shall be agreed to by the Corporation whether such rights arise under
this Indenture or under the Warrants or otherwise;
(b) to assent to any change in or omission from the provisions contained
in the Warrants and this Indenture or any ancillary or supplemental
instrument which may be agreed to by the Corporation and to authorize
the Agent to concur in and execute any ancillary or supplemental
agreement embodying the change or omission;
(c) with the consent of the Corporation, to remove the Agent or its
successor in office and to appoint a new agent or agents to take the
place of the Agent so removed;
(d) upon the Agent being furnished with funding and an indemnity, as it
may in its discretion determine, to require, direct or authorize the
Agent to enforce any of
the covenants on the part of the Corporation contained in this
Indenture or the Warrants or to enforce any of the rights of the
Warrantholders in any manner specified in such Extraordinary
Resolution or to refrain from enforcing any such covenant or right;
(e) to restrain any Warrantholder from instituting or continuing any suit
or proceedings against the Corporation for the enforcement of the
covenants on the part of the Corporation contained in this Indenture
or any of the rights conferred upon the Warrantholders by the Warrants
and this Indenture;
(f) to direct any Warrantholder who, as such, has brought any suit, action
or proceeding to stay or discontinue or otherwise deal with the same
upon payment of the costs, charges and expenses reasonably and
properly incurred by such Warrantholder in connection therewith;
(g) to waive and direct the Agent to waive any default on the part of the
Corporation in complying with any of the provisions of this Indenture
or the Warrants either unconditionally or upon any conditions
specified in such Extraordinary Resolution;
(h) to assent to any compromise or arrangement with any creditor or
creditors or any class or classes of creditors, whether secured or
unsecured, and with holders of any shares or other securities of the
Corporation; and
(i) to amend, alter or repeal any Extraordinary Resolution previously
passed or sanctioned by the Warrantholders.
(2) An Extraordinary Resolution of the Warrantholders is binding upon all
the Warrantholders whether present or not present at the meeting at which the
Extraordinary Resolution was passed or whether or not assented to in writing and
each Warrantholder, the Agent and the Corporation shall be bound to give effect
to the Extraordinary Resolution to the extent that the Extraordinary Resolution
applies to such party.
7.10 Meaning of "Extraordinary Resolution": (1) The expression "Extraordinary
-------------------------------------
Resolution" when used in this Indenture means a resolution proposed to be passed
as an extraordinary resolution at a meeting of Warrantholders duly convened for
the purpose and held in accordance with the provisions of this Article 7 and
attended by Warrantholders holding not less than twenty-five percent (25%) of
the Warrants outstanding and passed by not less than sixty-six and two-thirds
percent (66 2/3%) of the votes cast upon such resolution.
(2) If, at any meeting called for the purpose of passing an Extraordinary
Resolution, Warrantholders holding at least twenty-five percent (25%) of the
then outstanding Warrants are not present in person or by proxy within thirty
(30) minutes after the time appointed for the meeting, then the meeting if
convened by Warrantholders or on a Warrantholder's request, shall be dissolved;
but in any other case it shall be adjourned to such day, being not less than
fifteen (15) or more than sixty (60) days later, and to such place and time as
may be appointed by the
chairman. Not less than ten (10) days' prior notice shall be given of the time
and place of such adjourned meeting. Such notice shall state that at the
adjourned meeting the Warrantholders present in person or by proxy shall form a
quorum but it shall not be necessary to set forth the purposes for which the
meeting was originally convened or any other particulars. At the adjourned
meeting the Warrantholders present in person or by proxy shall form a quorum and
may transact the business for which the meeting was originally convened and a
resolution proposed at such adjourned meeting and passed by the requisite vote
as provided in subsection of this Section 7.10 shall be an Extraordinary
Resolution within the meaning of this Indenture notwithstanding that
Warrantholders holding at least twenty-five percent (25%) of the Warrants
outstanding are not present in person or by proxy at such adjourned meeting.
(3) All actions that may be taken and all powers that may be exercised by
the Warrantholders at a meeting as hereinbefore in this Article provided may
also be taken and exercised by holders of not less than sixty-six and two-thirds
percent (66 2/3%) of the aggregate number of Warrants then outstanding by an
instrument in writing signed in one or more counterparts by such holders and the
expression "Extraordinary Resolution" when used in this Indenture shall include
an instrument so signed.
7.11 Powers Cumulative: It is hereby declared and agreed that any one or more
-----------------
of the powers or any combination of the powers in this Indenture stated to be
exercisable by the Warrantholders by Extraordinary Resolution or otherwise may
be exercised from time to time and the exercise of any one or more of such
powers or any combination of powers from time to time shall not be deemed to
exhaust the right of the Warrantholders to exercise the same or any other such
power or powers or combination of powers then or thereafter from time to time.
7.12 Corporation, Underwriters, Warrantholders and Agent May be Represented:
----------------------------------------------------------------------
The Corporation, the Underwriter and the Agent, by their respective employees,
officers and directors, and the legal and financial advisors and auditors of the
Corporation and the Agent may attend any meeting of the Warrantholders, but they
shall have no vote as such. In addition, any Warrantholder is entitled to have
his legal or financial advisers present at any such meeting, but they shall have
no vote as such.
7.13 Binding Effect of Resolutions: Every resolution and every Extraordinary
-----------------------------
Resolution passed in accordance with the provisions of this Article 7 at a
meeting of Warrantholders shall be binding upon all the Warrantholders, whether
present at or absent from such meeting, and every Extraordinary Resolution
signed by Warrantholders in accordance with Section 7.10(3) shall be binding
upon all the Warrantholders, whether signatories thereto or not and each and
every Warrantholder and the Agent (subject to the provisions for funding and
indemnity herein contained) shall be bound to give effect accordingly to every
such resolution and Extraordinary Resolution. In the case of an Extraordinary
Resolution in writing, the Agent shall give notice in the manner contemplated in
Article 10 of the effect of the Extraordinary Resolution in writing to all
Warrantholders and the Corporation as soon as it is reasonably practicable.
7.14 Holdings by the Corporation or Subsidiaries of the Corporation
--------------------------------------------------------------
Disregarded: In determining whether Warrantholders holding a sufficient number
- -----------
of Warrants are present at a meeting of Warrantholders for the purpose of
determining a quorum or have concurred in any
consent, waiver, resolution, Extraordinary Resolution or other action under this
Indenture, Warrants owned legally or beneficially by the Corporation or any
subsidiary of the Corporation shall be disregarded. The Corporation shall
provide to the Agent upon request a Certificate of the Corporation the exact
registrations of any warrants owned legally or beneficially by the Corporation
or any subsidiary of the Corporation.
ARTICLE 8
SUPPLEMENTAL INDENTURES, MERGER, SUCCESSORS
-------------------------------------------
8.1 Provision for Supplemental Indentures for Certain Purposes: From time to
-----------------------------------------------------------
time the Corporation (when authorized) and the Agent may, subject to the
provisions of these presents, and they shall, when so required by any provision
of this Indenture (other than this Section 8.1), execute and deliver by their
proper officers, deeds, agreements or instruments supplemental hereto, which
thereafter shall form part hereof, for any one or more of the following
purposes:
(a) adding to the provisions hereof such additional covenants and
enforcement provisions as, in the opinion of counsel, are necessary or
advisable in the premises, provided that the same are not, in the
opinion of the Agent relying on the advice of its counsel, prejudicial
to the interests of the Warrantholders;
(b) giving effect to any Extraordinary Resolution passed as provided in
Article 7;
(c) making such provisions not inconsistent with this Indenture as may be
necessary or desirable with respect to matters or questions arising
hereunder or for the purpose of obtaining a listing or quotation of
the Warrants or the Common Shares issuable upon the exercise thereof
on any stock exchange, provided that such provisions are not, in the
opinion of the Agent relying on the advice of its counsel, prejudicial
to the interests of the Warrantholders;
(d) making any modification in the form of the Warrant Certificate which
does not affect the substance of the Warrants;
(e) evidencing any succession, or successive successions, of other bodies
corporate to the Corporation and the assumption by any successor of
the covenants of the Corporation herein and in the Warrant
Certificates contained as provided hereafter in this Article 8; and
(f) for any other purpose not inconsistent with the terms of this
Indenture, including the correction or rectification of any
ambiguities, defective provisions, errors or omissions herein,
provided that, in the opinion of the Agent relying on the advice of
its counsel, the rights of the Agent and of the Warrantholders are in
no way prejudiced thereby.
8.2 Corporation May Consolidate, etc. on Certain Terms: Subject to Subsection
--------------------------------------------------
4.1(d), nothing in this Indenture shall prevent any consolidation,
reorganization, arrangement,
amalgamation or merger of the Corporation with or into any other body corporate,
or bodies corporate, or person, or a conveyance or transfer of all or
substantially all the properties and assets of the Corporation as an entirety to
any body corporate or person lawfully entitled to acquire and operate the same,
provided, however, that the body corporate or person formed by such
consolidation or amalgamation or arrangement or into which such merger shall
have been made or the person which acquires by conveyance or transfer all or
substantially all the properties and assets of the Corporation as an entirety
shall execute and deliver to the Agent prior to or contemporaneously with such
consolidation, reorganization, amalgamation, arrangement, merger, conveyance or
transfer, and as a condition precedent thereto an agreement supplemental hereto
wherein the due and punctual performance and observance of all the covenants and
conditions of this Indenture to be performed or observed by the Corporation
shall be assumed by such body corporate or person on terms and conditions not
adverse to the Warrantholders. The Agent shall be entitled to receive and shall
be fully protected in relying upon opinions of counsel and such other advisors
as it deems necessary, that any such consolidation, reorganization,
amalgamation, arrangement, merger, conveyance or transfer and any supplemental
agreement executed in connection therewith, complies with the provisions of this
Section 8.2.
8.3 Successor Body Corporate Substituted: In case the Corporation, pursuant
------------------------------------
to Section 8.2, shall be consolidated, amalgamated, reorganized, arranged or
merged with or into any other body corporate, bodies corporate or person or
shall convey or transfer all or substantially all of the properties and any of
the assets of the Corporation as an entirety to another body corporate or
person, the successor body corporate or person formed by such consolidation,
reorganization, arrangement or amalgamation of the Corporation or into which the
Corporation shall have been merged or which shall have received a conveyance or
transfer as aforesaid shall succeed to and be substituted for the Corporation
hereunder with the same effect as nearly as may be possible as if it had been
named herein as the party of the First Part. Such changes may be made in the
Warrants as may be appropriate in view of such consolidation, reorganization,
amalgamation, merger, conveyance or transfer and as may be necessary to ensure
that the Warrantholders are not adversely affected by such consolidation,
reorganization, amalgamation, merger, conveyance or transfer. Such changes may
be made in the Special Warrants as may be appropriate in view of such
consolidation, reorganization, amalgamation, merger, conveyance or transfer and
as may be necessary to ensure that the Warrantholders are not adversely affected
by such consolidation, organization, amalgamation, merger, conveyance or
transfer.
8.4 Amendments for Listing: Notwithstanding any of the terms of this Indenture
----------------------
to the contrary, the Agent and the Corporation shall make such amendments to the
provisions of this Indenture as in the opinion of counsel would not prejudice
the interests of Warrantholders and would be required to comply with any and all
requirements of the stock exchanges or quotation system on which the Common
Shares may be listed in order for the Common Shares to be listed or quoted for
trading on such stock exchange or quoted for trading on such quotation system.
The Agent and the Corporation shall execute and deliver by their proper officers
all deeds, agreements or instruments supplemental hereto for the foregoing
purpose which are required in the opinion of counsel and thereafter shall form
part hereof. For greater certainty, no resolution, approval or meeting of
Warrantholders will be required for the Agent and the Corporation to amend or
supplement this Indenture as provided in this Section 8.4.
ARTICLE 9
CONCERNING THE AGENT
--------------------
9.1 Trust Indenture Legislation:
---------------------------
(a) In this Article, the term "Applicable Legislation" means the provisions of
any statute of Canada or a province thereof and of regulations under any
such named or other statute relating to trust indentures and/or to the
rights, duties and obligations of warrant agents and of corporations under
trust indentures, to the extent that such provisions are at the time in
force and applicable to this Indenture.
(b) If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with a mandatory requirement of Applicable Legislation, such
mandatory requirement shall prevail.
(c) The Corporation and the Agent agree that each will at all times in relation
to this Indenture and any action to be taken hereunder observe and comply
with and be entitled to the benefit of Applicable Legislation.
9.2 Rights and Duties of Agent:
--------------------------
(a) In the exercise of the rights and duties prescribed or conferred by the
terms of this Indenture, the Agent shall act honestly and in good faith
with a view to the best interests of the Warrantholders as a group and
shall exercise the degree of care, diligence and skill that a reasonably
prudent warrant Agent would exercise in comparable circumstances. No
provision of this Indenture shall be construed to relieve the Agent from
or require any other person to indemnify the Agent against liability for
its own negligence, wilful misconduct or bad faith.
(b) Subject only to subsection 9.2(a), the Agent shall not be bound to do or
take any act, action or proceeding for the enforcement of any of the
obligations of the Corporation under this Indenture unless and until it
shall have received a request in writing signed by a Warrantholder (a
"Warrantholders' Request") specifying the act, action or proceeding which
the Agent is requested to take. The obligation of the Agent to commence
or continue any act, action or proceeding for the purpose of enforcing any
rights of the Agent or the Warrantholders hereunder shall be conditional
upon the Warrantholders furnishing, when required by notice in writing by
the Agent, sufficient funds to commence or continue such act, action or
proceeding and an indemnity reasonably satisfactory to the Agent and its
officers, directors, employees and agents to protect and hold harmless the
Agent and its officers, directors, employees and agents against the costs,
charges, expenses and liabilities to be incurred thereby and any loss and
damage it may suffer by reason thereof. None of the provisions contained in
this Indenture shall require the Agent to expend or risk its own funds or
otherwise incur financial liability in
the performance of any of its duties or in the exercise of any of its
rights or powers unless indemnified and funded as aforesaid.
(c) The Agent may, before commencing or at any time during the continuance of
any such act, action or proceeding, require the Warrantholders at whose
instance it is acting to deposit with the Agent the Warrants held by them,
for which Warrants the Agent shall issue receipts.
(d) Every provision of this Indenture that by its terms relieves the Agent of
liability or entitles it to rely upon any evidence submitted to it is
subject to the provisions of Applicable Legislation, and to the provisions
of this Section 9.2 and of Section 9.3.
(e) The Agent shall retain the right not to act and shall not be held liable
for refusing to act unless it has received clear and reasonable
documentation which complies with the terms of this Indenture. Such
documentation must not require the exercise of any discretion or
independent judgment. In the event that the Agent refuses to act because
any documentation received by it is not clear and reasonable, the Agent
shall immediately provide notice to the party who provided such
documentation advising such party of the Agent's refusal to act together
with a brief explanation of the reason for its refusal.
(f) In the event of any disagreement arising regarding the terms of this
Indenture, the Agent shall be entitled, at its option, to refuse to comply
with any or all demands whatsoever until the dispute is settled either by
agreement amongst the various parties or by a court of competent
jurisdiction.
(g) The Agent shall not be bound to give any notice or do or take any act,
action or proceeding by virtue of the powers conferred on it hereby unless
and until it shall have been required so to do under the terms hereof; nor
shall the Agent be required to take notice of any default hereunder,
unless and until notified in writing of such default, which notice shall
distinctly specify such default and in the absence of any such notice the
Agent may for all purposes of this Indenture conclusively assume that no
default has been made in the observance or performance of any of the
representations, warranties, covenants, agreements or conditions contained
herein. Any such notice shall in no way limit any discretion herein given
to the Agent to determine whether or not the Agent shall take action with
respect to any default.
9.3 Evidence, Experts and Advisers:
------------------------------
(a) In addition to the reports, certificates, opinions and other evidence
required by this Indenture, the Corporation shall furnish to the Agent
such additional evidence of compliance with any provision hereof in such
form as may be prescribed by Applicable Legislation, or as the Agent may
reasonably require by written notice to the Corporation.
(b) In the exercise of its rights and duties hereunder, the Agent may, if it
is acting in good faith, act and rely as to the truth of the statements and
the accuracy of the opinions expressed therein, upon statutory
declarations, opinions, reports, written requests,
consents, orders of the Corporation, certificates of the Corporation or
other evidence furnished to the Agent, provided that such evidence complies
with Applicable Legislation.
(c) Whenever Applicable Legislation requires that evidence referred to in
subsection 9.3(a) be in the form of a statutory declaration, the Agent may
accept such statutory declaration in lieu of a certificate of the
Corporation required by any provision hereof. Any such statutory
declaration may be made by one or more of the chairman, president, vice-
president, secretary or treasurer of the Corporation.
(d) The Agent may act and rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, letter, telegram, cablegram or other paper or
document believed by it to be genuine and to have been signed, sent, or
presented by or on behalf of the proper party or parties.
(e) Proof of the execution of an instrument in writing, including a
Warrantholders' Request, by any Warrantholder may be made by the
certificate of a notary public, or other officer with similar powers, that
the person signing such instrument acknowledged to him the execution
thereof, or by an affidavit of a witness to such execution or in any other
manner which the Agent may consider adequate and in respect of a corporate
Warrantholder shall include a certificate of incumbency of such
Warrantholder together with a certified copy of a resolution authorizing
the person who signed such instrument to sign such instrument.
(f) The Agent may employ or retain such counsel, accountants or other experts
or advisers as it may reasonably require for the purpose of determining and
discharging its duties hereunder, may act on and rely upon the advice or
opinion so obtained and may pay reasonable remuneration for all services so
performed by any of them, without taxation of costs of any counsel, and
shall not be responsible for any misconduct on the part of any of them. The
cost of such service shall be added to and be part of the Agent's fees
hereunder.
9.4 Documents, Monies, etc. Held by Agent:
--------------------------------------
Any securities, documents of title or other instruments that may at any
time be held by the Agent subject to the trusts hereof may be placed in the
deposit vaults of the Agent or of any Canadian chartered bank or trust company
or deposited for safekeeping with any such bank or trust company.
9.5 Action by Agent to Protect Interests:
------------------------------------
Subject to the provisions of this Indenture and Applicable Legislation, the
Agent shall have the power to institute and to maintain such action and
proceedings as it may consider necessary or expedient to preserve, protect or
enforce its interests and the interests of the Warrantholders.
9.6 Agent Not Required to Give Security:
-----------------------------------
The Agent shall not be required to give any bond or security in respect of
the execution of the trusts and powers of this Indenture or otherwise.
9.7 Protection of Agent:
-------------------
By way of supplement to the provisions of any law for the time being
relating to warrant agents, it is expressly declared and agreed as follows:
(a) The Agent shall not be liable for or by reason of any statements of fact
or recitals in this Indenture or in the Warrants (except the representation
contained in Sections 9.9 and 9.12 or in the certificate of the Agent on
the Warrants) or be required to verify the same.
(b) Nothing herein contained shall impose any obligation on the Agent to see
to or to require evidence of the registration or filing (or renewal
thereof) of this Indenture or any instrument ancillary or supplemental
hereto.
(c) The Agent shall not be bound to give notice to any person of the execution
hereof.
(d) The Agent shall not incur any liability or responsibility whatsoever or be
in any way responsible for the consequence of any breach on the part of the
Corporation of any of the covenants herein contained or of any acts of any
directors, officers, employees, agents or servants of the Corporation.
(e) The Corporation hereby indemnifies and saves harmless the Agent and its
officers, directors, employees and agents from and against any and all
liabilities, losses, costs, claims, action or demands whatsoever which may
be brought against the Agent or which it may suffer or incur as a result
or arising out of the performance of its duties and obligations under this
Indenture, including any legal fees and disbursements, save only in the
event of negligence or wilful misconduct of the Agent or any of its
officers, directors, employees or agents. It is understood and agreed that
this indemnification shall survive the termination of this Indenture or the
resignation of the Agent.
9.8 Replacement of Agent:
--------------------
(a) The Agent may resign its trust and be discharged from all further duties
and liabilities hereunder by giving to the Corporation not less than 30
days' prior notice in writing or such shorter prior notice as the
Corporation may accept as sufficient. The Warrantholders by extraordinary
resolution shall have the power at any time to remove the existing Agent
and to appoint a new warrant agent. In the event of the Agent resigning or
being removed as aforesaid or being dissolved, becoming bankrupt, going
into liquidation or otherwise becoming incapable of acting hereunder, the
Corporation shall forthwith appoint a new warrant agent unless a new
warrant agent has already been appointed by the Warrantholders; failing
such appointment by the Corporation, the retiring Agent or any
Warrantholder may apply to a justice of the Ontario Court of
Justice (General Division) at the Corporation's expense, on such notice as
such justice may direct, for the appointment of a new warrant agent; but
any new warrant Agent so appointed by the Corporation or by the Court shall
be subject to removal as aforesaid by the Warrantholders. Any new warrant
agent appointed under any provision of this Section 9.8 shall be a
corporation authorized to carry on the business of a trust company in the
Province of Ontario and, if required by Applicable Legislation of any other
province, in such other province. On any such appointment the new warrant
agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as Agent without
any further assurance, conveyance, act or deed; but there shall be
immediately executed, at the expense of the Corporation, all such
conveyances or other instruments as may, in the opinion of counsel, be
necessary or advisable for the purpose of assuring the same to the new
warrant agent, provided that any resignation or removal of the Agent and
appointment of a successor warrant Agent shall not become effective until
the successor warrant agent shall have executed an appropriate instrument
accepting such appointment and, at the request of the Corporation, the
predecessor Agent, upon payment of its outstanding remuneration and
expenses, shall execute and deliver to the successor warrant agent an
appropriate instrument transferring to such successor warrant agent all
rights and powers of the Agent hereunder and all securities, documents of
title and other instruments, and all monies and properties, held by the
Agent hereunder.
(b) Upon the appointment of a successor warrant agent, the Corporation shall
promptly notify the Warrantholders thereof in the manner provided for in
Section 10.2.
(c) Any corporation into or with which the Agent may be merged or consolidated
or amalgamated, or any corporation succeeding to the trust business of the
Agent, shall be the successor to the Agent hereunder without any further
act on its part or of any of the parties hereto, provided that such
corporation would be eligible for appointment as a new warrant agent under
subsection 9.8(a).
(d) Any Warrants certified but not delivered by a predecessor warrant agent may
be certified by the successor warrant agent in the name of the predecessor
or successor warrant agent.
9.9 Conflict of Interest:
--------------------
(a) The Agent represents to the Corporation that at the time of execution and
delivery hereof no material conflict of interest exists in the Agent's
role as a fiduciary hereunder and agrees that in the event of a material
conflict of interest arising hereafter it will, within 90 days after
ascertaining that it has such a material conflict of interest, either
eliminate the same or resign its trust hereunder to a successor warrant
agent approved by the Corporation. If any such material conflict of
interest exists or hereafter shall exist, the validity and enforceability
of this Indenture and the Warrants shall not be affected in any manner
whatsoever by reason thereof.
(b) Subject to subsection (a) of this Section 9.9, the Agent, in its personal
or any other capacity, may buy, lend upon and deal in securities of the
Corporation and generally may
contract and enter into financial transactions with the Corporation or any
subsidiary of the Corporation without being liable to account for any
profit made thereby.
9.10 Acceptance of Trusts:
--------------------
The Agent hereby accepts the trusts in this Indenture declared and
provided for and agrees to perform the same upon the terms and conditions herein
set forth.
9.11 Agent Not to be Appointed Receiver:
----------------------------------
The Agent and any person related to the Agent shall not be appointed a
receiver or receiver and manager or liquidator of all or any part of the assets
or undertaking of the Corporation.
9.12 Authorization to Carry on Business:
----------------------------------
The Agent represents to the Corporation that it is duly authorized and
qualified to carry on the business of a trust company in each of the provinces
of Canada.
9.13 Liability of Agent:
------------------
The Agent shall not be liable or accountable for any loss or damage
whatsoever to any person caused by the performance or failure to perform by it
of its responsibilities under this agreement save only to the extent that such
loss or damage is attributable to the negligence, fraud or wilful misconduct of
the Agent.
ARTICLE 10
NOTICES
-------
10.1 Notice to Corporation: Unless and until the Corporation notifies the
---------------------
Agent of a change of address, any notice or communication required or permitted
to be given to the Corporation under the provisions of this Indenture shall be
valid and effective if delivered to the Corporation at 6725 Airport Road, Suite
201, Mississauga, Ontario, L4V 1V2, Attention: President, or sent by telecopier
to telecopier number (905) 672-5705 (and a copy by regular mail) or other means
of prepaid transmitted or recorded communication to such address. Any notice to
the Corporation as aforesaid shall be deemed to have been effectively given on
the earlier of:
(a the date of delivery, if delivered during normal business hours of the
Corporation (and, if not, on the next following Business Day); or
(b the Business Day immediately following the day of sending, if sent by
telecopier (with receipt confirmed).
10.2 Notice to Warrantholders: Unless and until a Warrantholder notifies the
------------------------
Agent of a change of address, any notice or communication required or permitted
to be given to a
Warrantholder under the provisions of this Indenture shall be valid and
effective if delivered to such holders at their post office addresses appearing
on the register to be kept by the Agent or sent by telecopier (and a copy by
regular mail) or other means of prepaid transmitted or recorded communication to
such address, or subject to the provisions of Section 10.4, if mailed by prepaid
first class mail addressed to such holders at their post office addresses
appearing on the register to be kept by the Agent. Any notice to a Warrantholder
as aforesaid shall be deemed to have been effectively given on the earlier of:
(a the date of delivery, if delivered during normal business hours (and,
if not, on the next following Business Day);
(b the Business Day immediately following the day of sending, if sent by
telecopier (with receipt confirmed); or
(c on the seventh (7th) Business Day after effectual posting in Canada.
10.3 Notice to Agent: (1) Unless and until the Agent is changed in accordance
---------------
with the provisions of this Indenture or the Agent notifies the Corporation of a
change of address, any notice or communication required or permitted to be given
to the Agent under the provisions of this Indenture, except under Section 2.2,
shall be valid and effective if delivered to the Agent at 320 Bay Street, Ground
Floor, Toronto, Ontario M5H 4A6, or sent by telecopier to telecopier number
(416) 643-5570 (and a copy by regular mail) or other means of prepaid
transmitted or recorded communication to such address, or subject to the
provisions of Section 10.4, if mailed by prepaid registered mail addressed to
the Agent at 320 Bay Street, P.O. Box 1, Toronto, Ontario M5H 1A6. Any notice to
the Agent as aforesaid shall be deemed to have been effectively given on the
earlier of:
(a the date of delivery, if delivered during normal business hours of the
Agent (and, if not, on the next following Business Day);
(b the Business Day immediately following the day of sending, if sent by
telecopier (with receipt confirmed); or
(c on the fifth (5th) Business Day after effectual posting in Canada.
(2) Surrender of a Warrant Certificate and evidence relating thereto
pursuant to Section 2.2 shall be valid and effective if delivered by hand or by
courier to Special Projects, Securities Level, Commerce Court West, 199 Bay
Street, Toronto, Ontario M5L 1G9 or if mailed by prepaid mail to P.O. Box 1036,
Adelaide Postal Station, Toronto, Ontario M5C 2K4, and shall be deemed to have
been effectively surrendered on the date of delivery, if delivered during normal
business hours of the Agent (and, if not, on the next following Business Day)
or, if mailed, on the fifth (5th) Business Day after effectual posting in
Canada.
10.4 Mail Service Interruption: If by reason of strike, lockout or other work
-------------------------
stoppage, actual or threatened, of postal employees, any notice to be given to
the Agent or to the Corporation would be unreasonably delayed in reaching its
destination, such notice shall be valid
and effective only if delivered to an officer of the party to which it is
addressed or if sent to such party, at the appropriate address in accordance
with Sections 10.1 or 10.3, as the case may be, by cable, telegram, telecopier,
telex or other means of prepaid transmitted or recorded communication.
ARTICLE 11
POWER OF BOARD OF DIRECTORS
---------------------------
11.1 Board of Directors: In this Indenture, wherever the Corporation are
------------------
required or empowered to exercise any acts, all such acts may be exercised by
the directors of the Corporation or by those officers of the Corporation
authorized to exercise such acts.
ARTICLE 12
FORMAL EXECUTION AND EFFECTIVE DATE
-----------------------------------
12.1 Suits by Warrantholders: (1) No Warrantholder shall have any right to
-----------------------
institute any action, suit or proceeding at law or in equity for the purpose of
enforcing the execution of any obligations or power hereunder or for the
appointment of a liquidator or receiver or for a receiving order under the
Bankruptcy and Insolvency Act (Canada) or to have any of the Corporation wound
up or to file or prove a claim in any liquidation or bankruptcy proceedings or
for any other remedy hereunder unless (i) a Warrantholders Request shall have
made to the Agent and the Agent shall have been afforded reasonable opportunity
to proceed or complete any action or suit for any such purpose whether or not in
its own name; (ii) the Warrantholders or any of them shall have furnished to the
Agent, when so requested by the Agent, sufficient funds and security and
indemnity satisfactory to it against the costs, expenses and liabilities to be
incurred therein or thereby; and (iii) the Agent shall have failed to act within
a reasonable time or where the Agent shall have failed to have actively pursued
any such act or proceeding.
(2) Subject to the provisions of this Section 12.1 and Section 7.9, all
or any of the rights conferred upon a Warrantholder by the terms of a Warrant
may be enforced by such Warrantholder by appropriate legal proceedings without
prejudice to the right which is hereby conferred upon the Agent to proceed in
its own name to enforce each and all of the provisions herein contained for the
benefit of the Warrantholders from time to time.
12.2 Waiver of Default: (1) Upon the happening of any default hereunder, the
-----------------
Agent shall have power to waive any default hereunder upon such terms and
conditions as the Agent may deem advisable, if, in the Agent's opinion, the same
shall have been cured or adequate provision made therefor.
(2) Subject to the provisions of Section 7.9, no consent or waiver,
express or implied, by either party to or of any breach or default by the other
party in the performance by the other party of its obligations hereunder shall
be deemed or construed to be a consent or waiver to or of any other breach or
default in the performance of obligations hereunder by such party hereunder.
Failure on the part of either party to complain of any act or failure to act of
the other party or to declare the other party in default, irrespective of how
long such failure continues, shall not constitute a waiver by such party of its
rights hereunder.
12.3 Further Assurances: The parties hereto and each of them do hereby
------------------
covenant and agree to do such things and execute such further documents,
agreements and assurances as may be necessary or advisable from time to time in
order to carry out the terms and conditions of this Indenture in accordance with
their true intent.
12.4 Severability: If any term, covenant or condition of this Indenture or
------------
the application thereof to any party or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Indenture or application of
such term, covenant or condition to a party or circumstance other than those to
which it is held invalid or unenforceable shall not be affected thereby and each
remaining term, covenant or condition of this Indenture shall be valid and shall
be enforceable to the fullest extent permitted by law.
12.5 Satisfaction and Discharge of Indenture: Upon the later of the date when
---------------------------------------
the Common Shares have been delivered to Warrantholders who have exercised
Warrants to the full extent of the rights attached to all Warrants theretofore
certified hereunder and the Expiry Date, this Indenture shall cease to be of
further effect and the Agent, on demand of and at the cost and expense of the
Agent and upon delivery to the Agent of a certificate of the Corporation stating
that all conditions precedent to the satisfaction and discharge of this
Indenture have been complied with and upon payment to the Agent of all
outstanding fees, the parties hereto shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture.
12.6 Formal Date and Execution Date: For the purpose of convenience this
------------------------------
Indenture may be referred to as bearing the formal date of September 30, 1999
which shall be the date on which this Indenture shall become effective between
the parties hereto, irrespective of the actual date of execution hereof.
12.7 Counterparts: This Indenture may be executed in one or more counterparts,
------------
each of which so executed shall be deemed to be an original and such
counterparts together shall constitute one and the same instrument.
12.8 Enurement: This Indenture shall benefit and bind the parties to it and
---------
their respective successors and assigns.
IN WITNESS WHEREOF the parties hereto have executed this Indenture as of
the 30th day of September, 1999.
BID.COM INTERNATIONAL INC.
Per:
CIBC MELLON TRUST COMPANY
Per:
Per:
SCHEDULE "A"
WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE WILL BE VOID AND OF NO VALUE UNLESS
EXERCISED AT OR PRIOR TO 5:00 P.M., (TORONTO TIME) ON SEPTEMBER 30, 2001.
BID.COM INTERNATIONAL INC.
(the "Corporation")
(Constituted pursuant to the laws of the Province of Ontario)
WARRANT CERTIFICATE NO. _______ _________ WARRANTS
THIS IS TO CERTIFY that ___________________________________________________
(the "holder") is entitled to subscribe for, in the manner herein provided,
subject to adjustment in certain events and to the restrictions contained
herein, at any time and from time to time on or prior to 5:00 p.m. (Toronto
Time) on September 30, 1999 (the "Expiry Time"), one Common Share in the capital
of the Corporation for each whole Warrant represented hereby at a price per
share equal to $12.00, subject to adjustment in certain events.
Such right to subscribe for Common Shares in the capital of the Corporation
may only be exercised by the registered holder hereof within the time
hereinbefore set out by:
(a duly completing in the manner indicated and executing the Exercise
Form attached hereto; and
(b surrendering to CIBC Mellon Trust Company (the "Agent") as hereinafter
set forth this Warrant Certificate evidencing a minimum of one Warrant
together with payment by certified cheque or bank draft payable to or
to the order of the Corporation for each Common Share subscribed for,
subject to adjustment in the manner set forth in the Indenture.
This Warrant Certificate shall be validly exercised only upon delivery
thereof or by mailing the same to the Agent at its Stock and Bond Transfer
Department in its principal stock transfer offices in the City of Toronto (at
the address hereinafter indicated). The Exercise Form attached hereto shall not
be deemed to be duly completed if the name and mailing address of the holder do
not appear legibly on such Exercise Form or such Exercise Form is not signed by
the holder.
The Warrants represented by this certificate are issued under and pursuant
to a Warrant Indenture (the "Indenture") made as of September 30, 1999 between
the Corporation and the Agent (which expression shall include any successor
agent appointed under the Indenture), to which Indenture (and any amendments
thereto and instruments supplemental thereto) reference is hereby made for a
full description of the rights of the holders of the Warrants and the terms and
conditions upon which such Warrants are, or are to be, issued and held, all to
the same effect as if the provisions of the Indenture and all amendments thereto
and instruments supplemental thereto were herein set forth and to all of which
provisions the holder of these Warrants by acceptance hereof assents. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Indenture.
In the event of any conflict or inconsistency between the provisions of the
Indenture (and any amendments thereto and instruments supplemental thereto) and
the provisions of this Warrant Certificate, except those that are necessary by
context, the provisions of the Indenture (and any amendments thereto and
instruments supplemental thereto) shall prevail. The terms and provisions of
the Indenture (and any amendments thereto and instruments supplemental thereto)
are incorporated herein by reference.
Upon due exercise of the Warrants as provided herein, the person or persons
in whose name or names the Common Shares are issuable, shall be deemed for all
purposes (except as provided in the Indenture hereinafter referred to) to be the
holder or holders of record of such Common Shares and the Corporation covenants
that it will (subject to and in accordance with the provisions of the aforesaid
Indenture) cause a certificate or certificates representing such Common Shares
to be delivered or mailed to such person or persons at the address or addresses
specified in such Exercise Form.
The holder of this Warrant Certificate may exercise any lesser number of
Common Shares than the aggregate number of Warrants evidenced by this Warrant
Certificate and, in such event, shall be entitled to receive, without charge, a
new Warrant Certificate representing the balance of the Warrants held by such
holder not then exercised.
No fractional Common Shares will be issued. To the extent that the holder
of a Warrant is entitled to receive on the exercise or partial exercise thereof
a fraction of a Common Share, such right may only be exercised in respect of
such fraction in combination with another Warrant or other Warrants which in the
aggregate entitle the holder to receive a whole number of Common Shares. If a
holder is not able to, or elects not to, combine Warrants so as to be entitled
to acquire a whole number of Common Shares, the Corporation shall make an
appropriate cash adjustment. However, in respect of any holder, the Corporation
shall only be required to make such a cash adjustment once and for one Warrant
and no more. The amount of the cash adjustment with respect to the Common
Shares shall be equal to the fraction of the Common Share to which the holder
would be entitled multiplied by the Weighted Average Price (as defined in the
Indenture.
The holding of the Warrants evidenced by this Warrant Certificate shall not
constitute the holder hereof a shareholder of the Corporation or entitle such
holder to any right or interest in respect thereof except as herein and in the
Indenture expressly provided.
The Warrants evidenced by this Warrant Certificate are not transferable
except as set forth in Section 2.2 of the Indenture which makes reference to the
fact that a person who furnishes evidence to the reasonable satisfaction of the
Agent that it is:
(a a Warrantholder;
(b an executor, administrator, heir or legal representative of the heirs
of the estate of a deceased registered holder hereof,
(c a guardian, committee, trustee, curator or tutor representing a
registered holder who is an infant, an incompetent person or a missing
person,
(d a liquidator of, or a trustee in bankruptcy for, a holder hereof, or
(e a transferee of a Warrantholder,
may, as set forth in the Indenture, by surrendering such evidence together with
the Warrant Certificate in question to the Agent and subject to such reasonable
requirements with respect to the payment by the holder of the costs associated
with the transfer as the Agent may prescribe and all applicable securities
legislation and requirements of regulatory authorities, become noted upon the
register of Warrantholders. Neither the Warrants represented by this
certificate nor the Common Shares issuable upon the exercise thereof have been
or will be registered under the United States Securities Act of 1933, as amended
(the "U.S. Securities Act"). Subject to certain limited exceptions, neither the
Warrants represented by this certificate nor the Common Shares issuable upon the
exercise thereof may be transferred to, or for the account or benefit of, a U.S.
Person or person in the United States (as such terms are defined in Regulation S
under the U.S. Securities Act).
If any of the Common Shares in respect of which the Warrants are exercised
are to be issued to a person or persons other than the holder (as aforesaid),
the holder shall pay to the Agent all requisite stamp transfer taxes or other
governmental charges exigible in connection with the issue of such Common Shares
to such other person or
persons or shall establish to the satisfaction of the Agent that such taxes and
charges have been paid or are not exigible.
This Warrant Certificate shall not be valid for any purpose whatever unless
and until it has been countersigned by or on behalf of the Agent.
Time shall be of the essence hereof. The Warrants and the Indenture (and
any amendments thereto and instruments supplemental thereto) shall be governed
by, performed, construed and enforced 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 Ontario contracts.
In the event that the Warrants represented by the within certificate are
acquired prior to the date on which the Corporation obtains a receipt for a
(final) prospectus qualifying the distribution of the Warrants from the
securities regulatory authority in the jurisdiction in which the Warrantholder
is resident, the Warrants and the Common Shares underlying them may be subject
to statutory hold periods during which these securities may not be resold in
such provinces except pursuant to an applicable exemption from the prospectus
and registration requirements of applicable securities legislation.
IN WITNESS WHEREOF the Corporation has caused this Warrant Certificate to
be signed by its duly authorized officer as of September 30, 1999
BID.COM INTERNATIONAL INC.
Per:___________________________
Countersigned
CIBC MELLON TRUST COMPANY
Per:_________________________________
Authorized Signing Officer
EXERCISE INSTRUCTIONS TO WARRANTHOLDER
The registered holder hereof may exercise his right to subscribe for Common
Shares of BID.COM INTERNATIONAL INC. (the "Corporation") by completing the
Exercise Form and surrendering this Warrant Certificate (evidencing a minimum of
one Warrant) and the appropriate amount per Common Share subscribed for by way
of certified cheque or recognized bank draft payable to or to the order of the
Corporation and the duly completed Exercise Form to CIBC Mellon Trust Company by
delivering or mailing it to CIBC Mellon Trust Company at its principal stock
transfer offices in the City of Toronto at its Stock and Bond Transfer
Department as follows:
In the City of Toronto: P.O. Box 1036
Adelaide Street Postal Station
Toronto, Ontario
M5C 2K4
If by hand or courier: Special Projects
Securities Level
Commerce Court West
199 Bay Street
Toronto, Ontario
M5L 1G9
If not exercised at or prior to the Expiry Time, the Warrants evidenced by
this Certificate will be cancelled and become absolutely void.
For your own protection, it would be prudent to forward all documentation
to the Agent by registered mail.
Subject to adjustment in certain events as described in the Indenture, the
maximum number of Common Shares which you may acquire is one Common Share for
every whole Warrant set out on the face of this Warrant Certificate (provided
that the required subscription proceeds are paid for each one Common Share)
unless you are otherwise notified by the Corporation.
EXERCISE FORM
TO: BID.COM INTERNATIONAL INC.
The undersigned hereby exercises the right to subscribe for _________
Common Shares in the capital of BID.COM INTERNATIONAL INC. (or such number of
other securities or property to which such Warrants entitle the undersigned in
lieu thereof or in addition thereto under the provisions of the Indenture
mentioned in the within Warrant Certificate) at a price per share of $12.00
(subject to adjustment in certain events) according to the terms of the
Indenture mentioned in the within Warrant Certificate and encloses the necessary
subscription monies per Common Share, by way of certified cheque or bank draft
(or the adjusted dollar amount per share at which the undersigned is entitled to
purchase such shares or other securities or property under the provisions of the
Indenture). If any of the Common Shares are to be issued to a person or persons
other than the holder in those circumstances as set forth in the within Warrant
Certificate, the holder must pay to CIBC Mellon Trust Company all requisite
stamp or security transfer taxes or other governmental charges related thereto.
Such Common Shares should be delivered to the following address in the name of
the person(s) listed below.
(Print clearly)
Name: __________________________________________________________________________
Address in Full: _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Number of Warrants Exercised: __________________________________________________
Number of Common Shares Subscribed
for (equal to the Number of Warrants
Exercised rounded down to the nearest
whole number of shares): _______________________________________________________
Total Amount of Subscription
Funds Enclosed: ________________________________________________________________
DATED this day of , 19.
Signature of Warrantholder
Name of Warrantholder
(As registered on Warrant Certificate)
Print Full Address
TRANSFER FORM
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
______________ Warrant(s) represented by the within certificate, and do(es)
hereby irrevocably constitute and appoint ________________________________
________________________ the attorney of the undersigned to transfer the said
Warrant(s) on the register of Warrants maintained by the Agent with full power
of substitution hereunder.
DATED this ________ day of _______________ , 199__.
Signature of Warrantholder
_________________________
Signature Guarantee Name of Warrantholder (please print)
The signature of the Warrantholder to this assignment must correspond
exactly with the name of the Warrantholder as set forth on the face of this
Warrant certificate in every particular, without alteration or enlargement or
any change whatsoever and the signature must be guaranteed by a Canadian
chartered bank or by a trust company or by a member firm of any Canadian stock
exchange or by a member recognized under the Medallion Signature Guarantee
Program, any of whose signature must be on file with the Agent.
ARTICLE 1................................................................................. INTERPRETATION 2
--------------
1.1 Definitions................................................................................... 2
-----------
1.2 Entire Indenture.............................................................................. 5
----------------
1.3 Headings...................................................................................... 5
--------
1.4 Extending Meanings............................................................................ 6
------------------
1.5 References.................................................................................... 6
----------
1.6 Business Day.................................................................................. 6
------------
1.7 Meaning of.................................................................................... 6
----------
1.8 Time.......................................................................................... 6
----
1.9 Choice of Language............................................................................ 6
------------------
1.10 Applicable Law:............................................................................... 6
--------------
ARTICLE 2...................................................................ISSUE AND PURCHASE OF WARRANTS 6
------------------------------
2.1 Form and Terms of Warrants:................................................................... 6
--------------------------
2.2 Transfer and Ownership of Warrants: (1)....................................................... 7
----------------------------------
2.3 Warrantholders not Shareholders:.............................................................. 9
-------------------------------
2.4 Signing of Warrants:.......................................................................... 9
-------------------
2.5 Countersigning:............................................................................... 9
--------------
2.6 Loss, Mutilation, Destruction or Theft of Warrants:........................................... 9
--------------------------------------------------
2.7 Issue of Warrants:............................................................................ 10
-----------------
2.8 Warrants to Rank Pari Passu:.................................................................. 10
---------------------------
2.9 Exchange of Warrants:......................................................................... 10
--------------------
2.10 Recognition of Registered Holder:............................................................. 11
--------------------------------
ARTICLE 3.....................................................................COVENANTS OF THE CORPORATION 11
----------------------------
3.1 Covenants of the Corporation:................................................................. 11
----------------------------
3.2 Securities Qualification Requirements:........................................................ 12
-------------------------------------
ARTICLE 4................................................................ADJUSTMENT TO SUBSCRIPTION RIGHTS 13
---------------------------------
4.1 Adjustment to Subscription Rights:............................................................ 13
---------------------------------
4.2 Adjustment of Purchase Price:................................................................. 17
----------------------------
4.3 Adjustment Rules:............................................................................. 18
----------------
4.4 Proceedings Prior to any Action Requiring Adjustment:......................................... 19
----------------------------------------------------
4.5 Certificate of Adjustment:.................................................................... 20
-------------------------
4.6 Notice of Special Matters:.................................................................... 20
-------------------------
4.7 No Action after Notice:....................................................................... 20
----------------------
4.8 Protection of Agent:.......................................................................... 20
-------------------
ARTICLE 5............................................................EXERCISE AND CANCELLATION OF WARRANTS 21
-------------------------------------
5.1 Exercise of Warrants:......................................................................... 21
--------------------
5.2 Effect of Exercise of Warrants................................................................ 22
------------------------------
5.3 Postponement of Delivery of Certificates:..................................................... 23
----------------------------------------
5.4 Cancellation of Warrants:..................................................................... 23
------------------------
5.5 Warrants Void after Expiry Time:.............................................................. 23
-------------------------------
5.6 Fractions of Common Shares:................................................................... 23
--------------------------
5.7 Subscription for Less than Entitlement:....................................................... 24
--------------------------------------
ARTICLE 6...................................................................................NON-REDEMPTION 24
--------------
6.1 Non-Redemption of Warrants:................................................................... 24
--------------------------
ARTICLE 7.......................................................................MEETINGS OF WARRANTHOLDERS 24
--------------------------
7.1 Convening of Meeting:......................................................................... 24
--------------------
7.2 Notice:....................................................................................... 24
------
7.3 Chairman:..................................................................................... 25
--------
7.4 Quorum:....................................................................................... 25
------
7.5 Show of Hands:................................................................................ 25
-------------
7.6 Poll:......................................................................................... 25
----
7.7 Regulations:.................................................................................. 25
-----------
7.8 Minutes:...................................................................................... 26
-------
7.9 Powers Exercisable by Extraordinary Resolution:............................................... 26
----------------------------------------------
7.10 Meaning of.................................................................................... 27
----------
7.11 Powers Cumulative:............................................................................ 28
-----------------
7.12 Corporation, Underwriters, Warrantholders and Agent May be Represented:....................... 28
----------------------------------------------------------------------
7.13 Binding Effect of Resolutions:................................................................ 28
-----------------------------
7.14 Holdings by the Corporation or Subsidiaries of the Corporation Disregarded:................... 28
--------------------------------------------------------------------------
ARTICLE 8......................................................SUPPLEMENTAL INDENTURES, MERGER, SUCCESSORS 29
-------------------------------------------
8.1 Provision for Supplemental Indentures for Certain Purposes:................................... 29
-----------------------------------------------------------
8.2 Corporation May Consolidate, etc. on Certain Terms:........................................... 29
--------------------------------------------------
8.3 Successor Body Corporate Substituted:......................................................... 30
------------------------------------
8.4 Amendments for Listing:....................................................................... 30
----------------------
ARTICLE 9.............................................................................CONCERNING THE AGENT 31
--------------------
9.1 Trust Indenture Legislation:.................................................................. 31
---------------------------
9.2 Rights and Duties of Agent:................................................................... 31
--------------------------
9.4 Documents, Monies, etc. Held by Agent:....................................................... 33
--------------------------------------
9.5 Action by Agent to Protect Interests:......................................................... 33
------------------------------------
9.6 Agent Not Required to Give Security:.......................................................... 33
-----------------------------------
9.7 Protection of Agent:.......................................................................... 34
-------------------
9.8 Replacement of Agent:......................................................................... 34
--------------------
9.9 Conflict of Interest:......................................................................... 35
--------------------
9.10 Acceptance of Trusts:......................................................................... 35
--------------------
9.11 Agent Not to be Appointed Receiver:........................................................... 36
----------------------------------
9.12 Authorization to Carry on Business:........................................................... 36
----------------------------------
9.13 Liability of Agent:........................................................................... 36
------------------
ARTICLE 10.........................................................................................NOTICES 36
-------
10.1 Notice to Corporation:........................................................................ 36
---------------------
10.2 Notice to Warrantholders:..................................................................... 36
------------------------
10.3 Notice to Agent:.............................................................................. 37
---------------
10.4 Mail Service Interruption:.................................................................... 37
-------------------------
ARTICLE 11.....................................................................POWER OF BOARD OF DIRECTORS 38
---------------------------
11.1 Board of Directors:........................................................................... 38
------------------
ARTICLE 12.............................................................FORMAL EXECUTION AND EFFECTIVE DATE 38
-----------------------------------
12.1 Suits by Warrantholders:...................................................................... 38
-----------------------
12.2 Waiver of Default............................................................................. 38
-----------------
12.3 Further Assurances:........................................................................... 39
------------------
12.4 Severability:................................................................................. 39
------------
12.5 Satisfaction and Discharge of Indenture....................................................... 40
---------------------------------------
12.6 Formal Date and Execution Date:............................................................... 40
-------------------------------
12.7 Counterparts:................................................................................. 40
------------
12.8 Enurement:.................................................................................... 40
---------