EXHIBIT 3.3
THIS SPECIAL WARRANT INDENTURE
made as of the 30th day of September, 1999.
B E T W E E N:
BID.COM INTERNATIONAL INC., a
corporation constituted under the laws of the
Province of Ontario, Canada
(hereinafter called the "Corporation")
-- and--
CIBC MELLON TRUST COMPANY, a trust
company incorporated under the laws of Canada
(hereinafter called the "Special Warrant Agent")
WHEREAS:
A. The Corporation proposes to issue and sell by means of a private placement
up to 2,702,703 special warrants (the "Special Warrants"). Subject to adjustment
in certain events, each Special Warrant entitles the holder thereof to receive
one (1) unit ("Unit"). Each Unit consists of one common share ("Common Share")
and one half of one Common Share purchase warrant ("Share Purchase Warrant"), in
the capital of the Corporation, all upon the terms and conditions herein set
forth;
B. For such purpose the Corporation, deems it necessary to create and issue
the Special Warrants as provided for in this Indenture;
C. The Corporation is duly authorized to create and issue the Special Warrants
to be created and issued, as herein provided;
D. All things necessary have been done and performed to make the Special
Warrants, when certified by the Special Warrant Agent and issued as in this
Indenture provided, legal, valid and binding upon the Corporation with the
benefits of, and subject to the terms of, this Indenture;
E. The foregoing recitals are made as representations and statements of fact
by the Corporation and not by the Special Warrant Agent.
NOW THEREFORE for good and valuable consideration mutually given and
received, the receipt and sufficiency of which is hereby acknowledged, it is
hereby agreed and declared as follows:
Article 1 - Interpretation
1.1 Definitions
In this Indenture, unless there is something in the subject matter or
context inconsistent therewith, the following phrases and words have the
respective meanings indicated opposite them as follows:
(1) "Applicable Legislation" has the meaning ascribed thereto in
subsection 8.1(a);
(2) "Business Day" means a day which is not a Saturday or Sunday or
statutory holiday in any of the cities where special warrant
certificates may be submitted to the Special Warrant Agent pursuant to
subsection 3.1 hereof;
(3) "Capital Reorganization" has the meaning ascribed thereto in section
2.13;
(4) "Closing Date" means September 30, 1999.
(5) "Common Shares" means fully paid and non-assessable common shares in
the capital of the Corporation as currently constituted;
(6) "Corporation" means Bid.Com International Inc., a corporation
constituted under the laws of the Province of Ontario, Canada;
(7) "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 Special Warrant Agent;
(8) "Counsel" means Corporation's counsel or such other firm of barristers
and solicitors retained by the Special Warrant Agent from time to
time;
(9) "Corporation's counsel" means Gowling, Strathy & Henderson or such
other barrister or solicitor or firm of barristers and solicitors
retained by the Corporation from time to time and acceptable to the
Special Warrant Agent;
(10) "director" means a director of the Corporation for the time being and,
unless otherwise specified herein, reference 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 such board;
(11) "Exercise Date" means the day upon which a Special Warrant is
exercised pursuant to the provisions of Section 3.1 or deemed to be
exercised pursuant to Section 3.1(b);
(12) "Expiry Time" means 5:00 p.m. (Toronto time) on the earlier of: (i)
the fifth Business Day after the Qualification Date; and (ii) the day
which is 12 months following the Closing Date;
(13) "extraordinary resolution" has the meaning ascribed thereto in Section
6.11 and 6.14;
(14) "Final Prospectus" means the (final) prospectus of the Corporation
relating to the distribution of the Subject Securities in the
Qualifying Jurisdictions;
(15) "NASDAQ" means the National Market of the National Association of
Securities Dealers Automated Quotation System in the United States;
(16) "person" includes an individual, a corporation, a partnership, any
unincorporated organization or any other juridical entity and words
importing persons have a similar meaning;
(17) "Preliminary Prospectus" means the preliminary prospectus of the
Corporation relating to the distribution of the Subject Securities in
the Qualifying Jurisdictions;
(18) "Qualification Date" means the date of issuance of a receipt or
similar document by the last of the Securities Administrators to issue
a receipt or similar document for the Final Prospectus;
(19) "Qualification Deadline" means the date which is 90 days after the
Closing Date;
(20) "Qualification Default" means the failure on the part of the
Corporation to obtain a receipt for the Final Prospectus from the
Securities Administrators in each of the Qualifying Jurisdictions, on
or before 5:00 p.m. (Toronto time) on the Qualification Deadline;
(21) "Qualifying Jurisdictions" means the Province of Ontario and any such
additional provinces in which purchasers of the Special Warrants are
resident;
(22) "Regulation S" means Regulation S under the U.S. Securities Act (as
hereinafter defined);
(23) "Securities Administrators" means collectively the securities
commission or comparable authority in each of the Qualifying
Jurisdictions;
(24) "Share Purchase Warrants" means the warrants issuable upon the
exercise or deemed exercise of the Special Warrants subject to the
terms and conditions of the Share Purchase Warrant Indenture which
indenture shall govern the entitlement of a holder to acquire one (1)
Common Share at $12.00 at any time prior to 5:00 p.m. (Toronto time)
on the day which is 24 months following the Closing Date;
(25) "Share Purchase Warrant Indenture" means the indenture dated as of
even date herewith among the Corporation and CIBC Mellon Trust Company
as Agent pursuant to which the Share Purchase Warrants will be issued;
(26) "Shareholder" means a holder of record of one or more Common Shares;
(27) "Special Warrant Agent" means CIBC Mellon Trust Company and its lawful
successors and permitted assigns for the time being in the trusts
hereby created;
(28) "Special Warrantholder" or "holder" means a person whose name is
entered for the time being in the register maintained by the Special
Warrant Agent pursuant to subsection 2.8(a);
(29) "Special Warrantholders' Request" means an instrument signed in one or
more counterparts by Special Warrantholders holding in the aggregate
not less than 10% of the then outstanding Special Warrants which
requests the Special Warrant Agent to take some action or proceeding
specified therein;
(30) "Special Warrants" mean the 2,702,703 special warrants of the
Corporation being created hereunder and issued and sold by the
Corporation pursuant to the Underwriting Agreement, each entitling the
registered holder thereof to receive one Unit, each unit consisting of
one (1) Common Share and one-half (1/2) of one Share Purchase Warrant
for each special warrant on the exercise of such special warrant or
such other kind and amount of shares or other securities or property
calculated or otherwise determined pursuant to Sections 2.13 and 2.14
or subsection 2.2(c) hereof as the case may be, on the exercise of
each such special warrant; and
(31) "Subject Securities" means the Common Shares and Share Purchase
Warrants issuable upon the exercise of the Special Warrants, including
the Common Shares and Share Purchase Warrants or other securities or
property issuable upon the exercise of the Special Warrants as a
result of any adjustment of subscription rights pursuant to Sections
2.13 and 2.14 or subsection 2.2(c) hereof;
(32) "successor corporation" has the meaning ascribed thereto in Section
7.2;
(33) "this Special Warrant Indenture", "this Indenture", "herein", "hereby"
and similar expressions mean and refer to this Indenture and any
indenture, deed or instrument supplemental or ancillary hereto; and
the expressions "Article", "Section", "subsection" and "clause"
followed by a number mean and refer to the specified Article, Section,
subsection or clause of this Indenture;
(34) "Transfer Agent" means the transfer agent or agents for the time being
of the Common Shares;
(35) "TSE" means the Toronto Stock Exchange;
(36) "Underwriting Agreement" means the underwriting agreement made as of
the date hereof between the Underwriter and the Corporation;
(37) "Underwriter" means, Canaccord Capital Corporation; and
(38) "U.S. Person" means a U.S. person as that term is defined in
Regulation S;
(39) "U.S. Securities Act" means the Securities Act of 1933, as amended, of
the United States;
(40) "United States" means the United States as that term is defined in
Regulation S;
(41) "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 Number and Gender
Unless elsewhere otherwise expressly provided or unless the context
otherwise requires, words importing the singular include the plural and vice
versa and words importing the masculine gender include the feminine and neuter
genders.
1.3 Interpretation Not Affected by Headings, etc.
The division of this Indenture into Articles, Sections, subsections and
clauses, the provision of a table of contents and the insertion of headings are
for convenience of reference only and shall not affect the construction or
interpretation of this Indenture.
1.4 Business Day
In the event that any day on or before which any action is required or
permitted to be taken hereunder is not a Business Day, then such action shall be
required or permitted to be taken on or before the requisite time on the next
succeeding day that is a Business Day.
1.5 Time of the Essence
Time shall be of the essence in all respects in this Indenture.
1.6 Applicable Law
This Indenture and the Special Warrants shall be governed by and construed
in accordance with the laws of the Province of Ontario and the federal law
applicable therein and shall be treated in all respects as Ontario contracts.
1.7 Choice of Language
The parties hereby acknowledge that they have 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.
1.8 Currency
Unless otherwise stated, all dollar amounts referred to in this Indenture
are in Canadian dollars.
ARTICLE 2-ISSUE OF SPECIAL WARRANTS
2.1 Issue of Special Warrants
A total of 2,702,703 Special Warrants entitling the registered holders
thereof to acquire up to an aggregate of 2,702,703 Common Shares and 1,351,352
Share Purchase Warrants (subject to adjustments as provided in Sections 2.13 and
2.14 or subsection 2.2(c) hereof) are hereby created and authorized to be issued
hereunder upon the terms and conditions herein set
forth and shall be executed by the Corporation as to 2,702,703 Special Warrants,
certified by or on behalf of the Special Warrant Agent and delivered by it in
accordance with and upon receipt of a written order of the Corporation.
2.2 Form and Terms of Special Warrants
(a) The Special Warrant certificates for the 2,702,703 Special Warrants shall
be substantially in the form set out in Article 9, shall be dated as of the
date of this Indenture (regardless of their actual date of issue), and
shall have such distinguishing letters and numbers as the Corporation may,
with the approval of the Special Warrant Agent, prescribe.
(b) Subject to adjustment as provided in Sections 2.13 and 2.14 or subsection
2.2(c), each Special Warrant authorized to be issued hereunder shall
entitle the registered holder thereof to acquire in accordance with Section
3.1, without payment of additional consideration, one (1) Unit, each Unit
consisting of Common Share and one-half (1/2) of one Share Purchase
Warrant, or such other kind and amount of shares or securities or property,
calculated pursuant to the provisions of Sections 2.13 and 2.14 or
subsection 2.2(c), as the case may be, of this Indenture.
(c) Each Special Warrant authorized to be issued hereunder shall in the event
of a Qualification Default prior to the exercise or deemed exercise of the
Special Warrants pursuant to Section 3.1 hereof, entitle the registered
holder hereof to acquire in accordance with said Section 3.1, without
payment of additional consideration, 1.1 Units or such other kind and
amount of shares or securities or property calculated pursuant to the
provisions of Sections 2.13 and 2.14 of this Indenture.
(d) Fractional Special Warrants shall not be issued or otherwise provided for.
(5) Each Special 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 CORPORATION, (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 STATE SECURITIES LAWS.
(6) Special Warrant Certificates may be engraved, lithographed, printed or
partly in one form and partly in another, as the Corporation may determine.
2.3 Signing of Special Warrant Certificates
The Special Warrant certificates shall be signed by any one of the
chairman, president, any vice-president, or the secretary of the Corporation,
and may, but need not be, under the corporate seal of the Corporation or a
reproduction thereof. The signature of such officer may be mechanically
reproduced in facsimile and Special Warrant certificates bearing such facsimile
signatures shall be binding upon the Corporation as if they had been manually
signed by such officer. Notwithstanding that the person whose manual or
facsimile signature appears on any Special Warrant certificate as such officer
may no longer hold office at the date of issue of such Special Warrant
certificate or at the date of certification or delivery thereof, any Special
Warrant certificate signed as aforesaid shall, subject to Section 2.4, be valid
and binding upon the Corporation and the registered holder thereof shall be
entitled to the benefits of this Indenture.
2.4 Certification by the Special Warrant Agent
(a) No Special Warrant certificate shall be issued or, if issued, shall be
valid for any purpose or entitle the registered holder to the benefit
hereof or thereof until it has been certified by manual signature by or on
behalf of the Special Warrant Agent in the form of the certificate set out
in Article 9 and such certification by the Special Warrant Agent upon any
Special Warrant certificate shall be conclusive evidence as against the
Corporation that the Special Warrant certificate so certified has been duly
issued hereunder and the holder is entitled to the benefits hereof.
(b) The certification of the Special Warrant Agent on the Special Warrant
certificates issued hereunder shall not be construed as a representation or
warranty by the Special Warrant Agent as to the validity of this Indenture
or the Special Warrants (except the due certification thereof) or as to the
performance by the Corporation and the Special Warrant Agent shall in no
respect be liable or answerable for the use made of the Special Warrants or
any of them or of the consideration therefor except as otherwise specified
herein.
2.5 Special Warrantholder Not a Shareholder
The holding of a Special Warrant shall not be construed as conferring upon
a Special Warrantholder any right or interest whatsoever as a Shareholder,
nor entitle the Special
Warrantholder to any right or interest in respect thereof except as
herein and in the Special Warrants expressly provided.
2.6 Issue in Substitution for Lost Special Warrant Certificates
(a) In case any of the Special Warrant certificates shall become mutilated or
be lost, destroyed or stolen, the Corporation, subject to applicable law,
and subsection (b) of this Section 2.6, shall issue and thereupon the
Special Warrant Agent shall certify and deliver a new Special Warrant
certificate of like tenor as the one mutilated, lost, destroyed or stolen
in exchange for and in place of such mutilated certificate, or in lieu of
and in substitution for such lost, destroyed or stolen certificate, and the
substituted certificate shall be in a form approved by the Special Warrant
Agent and shall entitle its holder to the benefits hereof and shall rank
equally in accordance with its terms with all other Special Warrant
certificates issued or to be issued hereunder.
(b) The applicant for the issue of a new certificate pursuant to this Section
2.6 shall bear the cost of the issue thereof and in case of mutilation, as
a condition precedent to the issue thereof, shall deliver to the Special
Warrant Agent the mutilated certificate and in the case of loss,
destruction or theft shall, as a condition precedent to the issue thereof,
furnish to the Corporation and to the Special Warrant Agent such evidence
of ownership and of the loss, destruction or theft of the certificate so
lost, destroyed or stolen as shall be satisfactory to the Corporation and
to the Special Warrant Agent in their sole discretion, acting reasonably,
and such applicant shall also be required to furnish an indemnity bond or
security in amount and form satisfactory to the Corporation and the Special
Warrant Agent in their sole discretion, acting reasonably, and shall pay
the reasonable charges of the Corporation and the Special Warrant Agent in
connection therewith.
2.7 Special Warrants to Rank Pari Passu
All Special Warrants shall rank pari passu, whatever may be their actual
date of issue.
2.8 Registers for Special Warrants
(a) The Corporation appoints the Special Warrant Agent as the registrar of the
Special Warrants. The Corporation may hereafter, with the consent of the
Special Warrant Agent, appoint one or more other additional registrars of
the Special Warrants. The Corporation shall cause a register to be kept by
the Special Warrant Agent, and the Special Warrant Agent agrees to maintain
such a register, at its principal transfer office in the city of Toronto,
Ontario in which shall be entered the name and addresses of the holders of
the Special Warrants and other particulars of the Special Warrants held by
them respectively and the number of Special Warrants held by them. The
Corporation shall also cause transfer agencies to be maintained by the
Special Warrant Agent, and the Special Warrant Agent shall maintain such
transfer agencies at its principal transfer office
in the city of Toronto, Ontario and in such other place or places and by
such other agent or agents as the Corporation with the approval of the
Special Warrant Agent may designate.
(b) Subject to the terms of this Indenture and to applicable law, Special
Warrants may be transferred. No transfer of a Special Warrant shall be
valid unless made by the holder or his executors, administrators or other
legal representatives, or his or her attorney duly appointed by an
instrument in writing in form and manner satisfactory to the Special
Warrant Agent, acting reasonably, with signatures guaranteed by a Canadian
chartered bank, a Canadian trust company, a member firm of any Canadian
stock exchange, a member recognized under the Signature Medallion Guarantee
Program or such other guarantor as the Special Warrant Agent determines to
be acceptable, upon surrender of the Special Warrant to the Special Warrant
Agent and upon compliance with such other reasonable requirements as the
Special Warrant Agent may prescribe and shall thereafter be recorded on the
register of transfers maintained by the Special Warrant Agent pursuant to
subsection (a) of this Section 2.8, provided all taxes or governmental or
other charges arising by reason of such transfer have first been paid by or
on behalf of the Special Warrantholder requesting such a transfer.
(3) Special Warrants may not be transferred to U.S. Persons or persons within
the United States, subject to subsection 2.8(d).
(4) Notwithstanding subsection 2.8(c), if a Special Warrant certificate
tendered for transfer bears the legend set forth in subsection 2.2(e):
(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 Special Warrant
certificate issued to such transferee shall also bear such legend; or
(ii) if the Special Warrant represented by such Special 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 Special Warrant Agent shall
be protected in acting and relying solely on the addresses provided by
the transferor for these purposes.
2.9 Transferee Entitled to Registration
The transferee of a Special Warrant shall, after the transfer form attached
to the Special Warrant or any other form of transfer acceptable to the Special
Warrant Agent is duly executed and completed and together with the Special
Warrant is lodged with the Special Warrant Agent, and upon compliance with all
other conditions in that regard required by this Indenture or by
law, be entitled to have his name entered on the register of holders as the
owner of such Special Warrant free from all equities or rights of set-off or
counterclaim as set forth in Section 2.12.
2.10 Registers Open for Inspection
The registers hereinbefore referred to shall be open at all reasonable
times for inspection by the Corporation, the Underwriter, the Special Warrant
Agent or any Special Warrantholder. The Special Warrant Agent shall, from time
to time when requested to do so in writing by the Corporation or the
Underwriter, furnish the Corporation or the Underwriter, as the case may be,
with a list of the names and addresses of holders of Special Warrants entered in
the register of holders maintained by the Special Warrant Agent and showing the
number of Units which may then be acquired upon the exercise of the Special
Warrants held by each such holder.
2.11 Exchange of Special Warrants
(a) Special Warrant certificates may, upon compliance with the reasonable
requirements of the Special Warrant Agent, be exchanged for Special Warrant
certificates in any other authorized denomination representing in the
aggregate the same number of Special Warrants. The Corporation shall sign
and the Special Warrant Agent shall certify, in accordance with Sections
2.3 and 2.4, all Special Warrant certificates necessary to carry out the
exchanges contemplated herein.
(b) Special Warrant certificates may be exchanged only at the principal office
of the Special Warrant Agent in the City of Toronto, Ontario or at any
other place that is designated by the Corporation with the approval of the
Special Warrant Agent. Any Special Warrant certificates tendered for
exchange shall be surrendered to the Special Warrant Agent and canceled.
(c) Except as otherwise herein provided, the Special Warrant Agent may charge
Special Warrantholders requesting an exchange a reasonable sum for each
Special Warrant certificate issued, and payment of such charges and
reimbursement of the Special Warrant 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.
2.12 Ownership and Transfer of Special Warrants
The Corporation and the Special Warrant Agent may deem and treat the
registered holder of any Special Warrant certificate as the absolute owner of
the Special Warrant evidenced thereby for all purposes, and the Corporation and
the Special Warrant Agent shall not be affected by any notice or knowledge to
the contrary except where the Corporation or the Special Warrant Agent is
required to take notice by statute or by order of a court of competent
jurisdiction. A Special Warrantholder shall be entitled to the rights evidenced
by such Special Warrant 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 Special Warrantholder of Common Shares pursuant to the exercise
thereof shall be a good discharge to the Corporation and the Special Warrant
Agent for the same, and neither the Corporation nor the Special Warrant Agent
shall be bound to inquire into the title of any such holder, except where the
Corporation or the Special Warrant Agent is required to take notice by statute
or by order of a court of competent jurisdiction.
2.13 Adjustment of Subscription Rights
Subject to Sections 2.14 and 2.15, if at any time after the date hereof and
prior to the Expiry Time, and provided that any Special Warrants remain
unexercised, there shall be:
(a) a reclassification of the Common Shares at any time or a change of the
Common Shares into other shares or securities or a subdivision or
consolidation of the Common Shares into a greater or lesser number of
shares or any other capital reorganization;
(b) a consolidation, amalgamation or merger of the Corporation with or into any
other corporation (other than a consolidation, amalgamation or merger which
does not result in any reclassification of the outstanding Common Shares or
a change of the Common Shares into other Common Shares or securities);
(c) a transfer of the undertaking or assets of the Corporation as an entirety
or substantially as an entirety to another corporation or other entity; or
(d) an issue or distribution to the holders of all or substantially all of the
Corporation's outstanding Common Shares or securities of the Corporation
including rights, options or warrants to acquire Common Shares or
securities convertible into or exchangeable for Common Shares or any
property or assets including any evidences of indebtedness, other than cash
dividends paid in the ordinary course of the Corporation or securities
issued pursuant to the Corporation's stock option plans,
(any of such events being called a "Capital Reorganization"), the holder of any
Special Warrants that may thereafter be exercised to acquire Common Shares shall
be entitled to receive, and shall accept without the payment of additional
consideration, in lieu of the number of Common Shares to which he was
theretofore entitled upon such exercise, the kind and amount of shares or other
securities or property which such holder would have been entitled to receive as
a result of such Capital Reorganization if, on the effective date thereof or the
record date, as the case may be, he had been the registered holder of the number
of Common Shares which he was theretofore entitled to acquire upon such
exercise. Any such adjustments shall be made by and set forth in an indenture
supplemental hereto approved by the directors and shall for all purposes be
prima facie deemed to be an appropriate adjustment absent manifest error.
2.14 Adjustment Rules
(1) The adjustments provided for in Section 2.13 are cumulative and shall apply
(without duplication) to successive Capital Reorganizations or other events
resulting in any adjustment under the provisions of Section 2.13; provided that,
notwithstanding any other provision of this Article 2, no adjustment shall be
made in the number of Common Shares which may be acquired on the exercise of a
Special Warrant unless it would result in a change of at least one one-hundredth
of a Share (provided, however, that any adjustments which by reason of this
subsection 2.14(1) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment).
(2) The Corporation shall not issue fractional Common Shares or Warrants in
satisfaction of its obligations hereunder. If any fractional interests in a
Common Share or a Warrant would, except for the provisions of this subsection
2.14(2), be deliverable upon the exercise of the Special Warrant, the
Corporation shall make a cash payment equal to the fair value of the fraction of
a Share or Warrant, as the case may be, not so issued as determined by the
Corporation's auditors in their sole discretion. No cheque shall be issued or
cash payment made to any Special Warrantholder for an amount less than $5.00.
(3) If any question arises with respect to the adjustments provided in this
Article 2 such question shall, absent manifest error, be conclusively determined
by the Corporation's auditors or such other firm of chartered accountants
appointed by the Corporation and acceptable to the Special Warrant Agent (who
may be the Corporation's auditors). Such chartered accountants shall have access
to all necessary records of the Corporation and such determination shall be
binding upon the Corporation, the Special Warrant Agent and the Special
Warrantholders absent manifest error.
(4) No adjustment in the number of Common Shares which may be acquired upon
exercise of a Special Warrant shall be made in respect of any event described in
Section 2.14 if Special Warrantholders are entitled to participate in such event
on the same terms mutatis mutandis as if Special Warrantholders had exercised
their Special Warrants prior to or on the effective date or record date of such
event.
(5) If, after the date of this Indenture, the Corporation shall take any action
affecting the Common Shares or Warrants other than the actions described in this
Article 2 which in the opinion of the directors of the Corporation would
materially affect the rights of Special Warrantholders, the number of Common
Shares which may be acquired upon the exercise of a Special Warrant shall be
adjusted in such manner and at such time, by action by the directors, in their
sole discretion, acting reasonably, as they may determine to be equitable in the
circumstances; provided that no such adjustment will be made unless prior
approval of any stock exchange on which the Common Shares are listed for
trading, if required, has been obtained. Failure of the directors to make such
an adjustment shall be conclusive evidence that the directors have determined
that it is equitable to make no adjustment in the circumstances.
2.15 Notice of Adjustment of Subscription Rights
(1) At least 10 days prior to the effective date or record date, as the case
may be, of any event which would require an adjustment in any of the
subscription rights pursuant to any of the Special Warrants, including the
number of Units which may be acquired upon the exercise thereof, the Corporation
shall:
(a) file with the Special Warrant Agent a certificate of the Corporation
specifying the particulars of such event and, if determinable, the
required adjustment and the computation of such adjustment; and
(b) give notice in the manner provided for in Section 10.2 to the Special
Warrantholders of the particulars of such event and, if determinable, the
required adjustment.
(2) In case of any adjustment for which a notice provided for in subsection
2.15(1) has been given is not then determinable or in case a question arises and
a determination has been made in accordance with Section 2.14(3), the
Corporation shall promptly after such adjustment is determinable or conclusion
reached:
(a) file with the Special Warrant Agent a certificate of the Corporation
showing how such adjustment was computed; and
(b) give notice to the Special Warrantholders of the adjustment in the manner
provided for in Section 10.2.
(3) Where a notice referred to in subsection 2.15(1) or (2) has been given, the
Special Warrant Agent shall be entitled to act and rely absolutely on any
adjustment calculation of the Corporation or the Corporation's auditors.
2.16 Proceedings Prior to any Action Requiring Adjustment
As a condition precedent to the taking of action which would require an
adjustment pursuant to Sections 2.13 and 2.14, the Corporation shall take any
action which may, in the opinion of the Corporation's counsel, be necessary in
order that the Corporation may validly and legally issue as fully paid and non-
assessable all the Subject Securities which the holders of the Special Warrants
are entitled to receive on the complete exercise thereof in accordance with the
provisions hereof.
2.17 Protection of the Special Warrant Agent
The Special Warrant Agent shall be entitled to act and rely on any
adjustment calculation of the Corporation's auditors and the Special Warrant
Agent shall not:
(a) at any time be under any duty or responsibility to any holder to
determine whether facts exist which may require any adjustment
contemplated by this article, or with
respect to the nature or extent of any such adjustment when made, or
with respect to the method employed in making same;
(b) be accountable with respect to the validity or value (or the kind or
amount) of any shares or of any other shares or securities or property
which may at any time be issued or delivered upon the exercise or
deemed exercise of any Special Warrant; or
(c) be responsible for any failure of the Corporation to make any cash
payment or to issue, transfer or deliver shares or share certificates
upon the surrender of any Special Warrant for the purpose of exercise
or deemed exercise, or to comply with any of the covenants contained
in this article.
ARTICLE 3 - EXERCISE OF SPECIAL WARRANTS
3.1 Exercise of Special Warrants and Deemed Exercise of Special Warrants
(a) Upon and subject to the provisions of this Article 3, any holder of a
Special Warrant may exercise the right thereby conferred on him to acquire
the Subject Securities, at no additional cost, by surrendering to the
Special Warrant Agent at any time prior to the Expiry Time, in the manner
set forth in subsection 3.1(c), the certificate evidencing the Special
Warrants, with the Exercise Form attached to the Special Warrant
certificate duly completed and executed by the holder or his executors,
administrators or other legal representatives or his or their attorney duly
appointed by an instrument in writing in form and manner satisfactory to
the Special Warrant Agent, acting reasonably.
The Exercise Form attached to the Special Warrant certificate shall be
signed as set out above and shall specify:
(i) the number of Subject Securities which the Special Warrantholder
desires to acquire on exercise of the Special Warrants (being not
more than those which he is entitled to acquire pursuant to the
Special Warrant certificate so surrendered); and
(ii) the person or persons in whose names the Subject Securities are
to be issued, his or their address or addresses and the number of
Subject Securities to be issued to each such person if more than
one is so specified.
If any of the Subject Securities in respect of which the Special Warrants
are exercised or deemed to be exercised are to be issued to a person or
persons other than the Special Warrantholder, the Special Warrantholder
shall pay to the Special Warrant Agent all requisite stamp or security
transfer taxes or other governmental charges exigible in connection with
the issue of such Subject Securities to such other person or persons or
shall establish to the satisfaction of the Special Warrant Agent that such
taxes and
charges have been paid. Furthermore, in such event the signature on the
Exercise Form must be guaranteed by a Canadian chartered bank, a Canadian
trust company, a member firm of any Canadian stock exchange, a member
recognized under the Signature Medallion Guarantee Program or such other
guarantor as the Special Warrant Agent determines to be acceptable.
If at the time of the exercise or deemed exercise of the Special Warrants,
there remain trading restrictions on the Subject Securities acquired, due
to applicable securities legislation, the Corporation may, on the advice of
Counsel, endorse the certificates representing the Subject Securities to
such effect, and prior to issuance of any such certificates the Special
Warrant Agent shall consult the Corporation to determine whether such
endorsement or legending is required.
(b) Any Special Warrants not otherwise exercised for the Subject Securities
shall be deemed to have been exercised immediately prior to the Expiry Time
without any further action on the part of the holder thereof. Upon deemed
exercise, the Corporation shall cause to be mailed to Special
Warrantholders, at the address of such person last appearing on the
register of Special Warrants maintained by the Special Warrant Agent
pursuant to the Indenture on or prior the mailing, certificates
representing the Subject Securities without any further action to be taken
by the Special Warrantholder.
(c) Subject to Section 3.1 (b), in order to acquire certificates representing
the Subject Securities, a holder of one or more Special Warrants must
deliver the Special Warrant certificates evidencing such Special Warrants
to the Special Warrant Agent at its principal office in the City of
Toronto, Ontario (or at such additional place or places as may be
determined by the Corporation from time to time with the approval of the
Special Warrant Agent) or by first class mail, postage prepaid to CIBC
Mellon Trust Company at its principal office in Toronto, Ontario. A Special
Warrant certificate shall be deemed to be surrendered only upon personal
delivery thereof or if sent by mail, upon actual receipt thereof by the
Special Warrant Agent.
(4) Certificates representing the Subject Securities issued to U.S. Persons
pursuant to the exercise of the Special Warrant certificate bearing the
legend set forth in subsection 2.2(e) shall also bear such legend and the
Common Shares forming part of the Units shall bear the following additional
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 STATE SECURITIES LAWS.
3.2 Effect of Exercise of Special Warrants
(a) The Subject Securities in respect of which the Special Warrants are
exercised shall be deemed to have been issued on the Exercise Date at which
time each Special Warrantholder shall be deemed to have become the holder
of record of the Subject Securities issued in respect of the Special
Warrants held by such Special Warrantholder unless the transfer books of
the Corporation shall be closed by law on the said date of such exercise,
in which case such Subject Securities shall be deemed to have been issued
and such Special Warrantholder shall be deemed to have become the holder of
record of such Subject Securities on the date on which such transfer books
are next re-opened.
(b) Forthwith after the Exercise Date and subject to the delivery by a Special
Warrantholder of Special Warrant Certificates and the Exercise Form to the
Special Warrant Agent as provided in subsection 3.1(c), and 3.1(a)(i) and
(ii) respectively, the Corporation shall, subject to the provisions of
Section 3.3, cause to be delivered to each Special Warrantholder or mailed
to it at its address specified in the register of holders maintained by the
Special Warrant Agent or certificates for the appropriate number of Subject
Securities not exceeding those which such Special Warrantholder is entitled
to acquire pursuant to the Special Warrants delivered by the Special
Warrantholder to the Special Warrant Agent.
3.3 Postponement of Delivery of Certificates
The Corporation shall not be required to deliver certificates for Subject
Securities during the period when the transfer books of the Corporation are
closed by law and, in the event of a surrender of a Special Warrant for the
acquisition of Subject Securities during such period, the delivery of
certificates may be postponed for a period not exceeding five (5) Business Days
after the date of the re-opening of the transfer books.
3.4 Cancellation of Special Warrant Certificates
All Special Warrant certificates surrendered to the Special Warrant Agent
pursuant to Sections 2.6, 2.9, 2.11 or 3.1 shall be cancelled by the Special
Warrant Agent. The Special Warrant certificates evidencing all Special Warrants
exercised pursuant to Section 3.1 shall be deemed to have been cancelled on the
Exercise Date and the Special Warrant Agent shall record the cancellation or
deemed cancellation of such Special Warrant certificates on the register of
holders maintained by the Special Warrant Agent pursuant to subsection 2.8(a).
The Special Warrant Agent shall, if required in writing by the Corporation,
furnish the Corporation with a certificate of destruction identifying the
Special Warrant certificates so cancelled and deemed to have been cancelled. All
Special Warrants evidenced by Special Warrant certificates which have
been validly cancelled or which are deemed to have been cancelled pursuant to
this Section 3.4 shall be without further force or effect whatsoever.
ARTICLE 4 - COVENANTS
4.1 General Covenants
The Corporation covenants with the Special Warrant Agent that so long as
any Special Warrants remain outstanding:
(a) It will maintain its corporate existence and will carry on and conduct its
business in accordance with good business practice.
(b) It will send to each Special Warrantholder copies of all financial
statements and other material furnished to the holders of Common Shares
after the date of this Indenture.
(c) It will reserve and there will remain unissued out of its authorized
capital a sufficient number of Common Shares to satisfy the rights of
acquisition on the exercise of the Special Warrants and the Share Purchase
Warrants as provided for herein.
(d) It will cause the Subject Securities issuable upon the exercise of the
Special Warrants in the manner herein provided to be duly issued and
delivered in accordance with the Special Warrants and the terms hereof.
(e) It will use its reasonable best efforts to maintain the listing of the
Common Shares on the TSE and the quotation of the Common Shares on 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 Jurisdictions.
(f) All of the Subject Securities which are issued on the exercise of the
Special Warrants shall be issued as fully-paid and non-assessable and the
holders thereof shall not be liable to the Corporation or its creditors in
respect of the issue of such Subject Securities.
(g) The Corporation covenants and agrees to (i) file a Preliminary Prospectus
for the purpose of qualifying the issuance and distribution of the Subject
Securities upon the exercise of the Special Warrants in each of the
Qualifying Jurisdictions as soon as practicable following the date hereof;
(ii) resolve all comments received or deficiencies raised by the Securities
Administrators; and (iii) file and obtain receipts for the Final Prospectus
in each of the Qualifying Jurisdictions qualifying the Subject Securities
as soon as possible after such regulatory comments and deficiencies have
been resolved and in any event, no later than the Qualification Deadline;
and (iv) obtain the listing and posting of the Common Shares issuable on
exercise of the Special Warrants upon the TSE and NASDAQ on or before the
Expiry Time.
(h) It will not take any other action which might deprive the Special
Warrantholders of the opportunity of exercising their rights pursuant to
the Special Warrants held by such persons during the period of notice
required by subsection 2.15(1).
(i) It will perform all its covenants and carry out all of the acts or things
to be done by it as provided in this Indenture.
(j) It will not amend the attributes of the Special Warrants except in
accordance with Section 6.10.
(k) It will send a written notice to the Special Warrant Agent and to each
holder of Special Warrants of the issuance of the receipts referred to in
subsection 4.1(g), together with a commercial copy of the Final Prospectus
qualifying the Subject Securities for distribution, as soon as practicable
but, in any event, not later than three Business Days after the
Qualification Date and, in the case of the Special Warrant Agent, copies of
such receipts and written confirmation of any adjustment to subscription
rights.
(l) It will send a written notice to the Special Warrant Agent and to each
Special Warrantholder of the record date for the determination of holders
of Common Shares for the purposes of any dividend or other distribution or
rights offering to holders of such securities not later than 10 Business
Days prior to such record date.
(m) It will send a written notice to the Special Warrant Agent and to Special
Warrantholders of the occurrence of a Qualification Default and, as a
result therefrom, each Special Warrantholder's increased entitlement as
contemplated by section 2.2(c).
(n) In the event that it offers any of its securities for sale in the United
States or files a registration statement with the United States Securities
Exchange Commission in respect of any of its securities, whether in
connection with a public offering of such securities, an application for
listing or quotation of its securities on any stock market or quotation
system in the United States or otherwise, the Corporation shall ensure that
the Subject Securities are also registered for resale in the United States
or on such stock exchange and take all such other steps and actions as may
be necessary to ensure that the Subject Securities are not subject to any
statutory hold period.
4.2 Securities Qualification Requirements
(a) If, in the opinion of the Corporation's counsel, any instrument (other than
the Final Prospectus) is required to be filed with, or any permission,
order or ruling is required to be obtained from, any Securities
Administrator or any other step is required under any federal or provincial
law of Canada before any Subject Securities may be issued or delivered to a
Special Warrantholder in any of the Qualifying Jurisdictions upon exercise
of its Special Warrants, free of any restrictions or limitations on resale
of such Subject Securities, the Corporation covenants that it will 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 will give written notice of the issue of the Subject
Securities pursuant to the exercise of Special Warrants in such detail as
may be required to the Securities Administrator in each of the Qualifying
Jurisdictions in which there is legislation requiring the giving of any
such notice.
4.3 Special Warrant Agent's Remuneration and Expenses
The Corporation covenants that it will pay to the Special Warrant Agent
such fees as the parties agree upon from time to time for its services hereunder
and will pay or reimburse the Special Warrant Agent upon its request for all
reasonable expenses, advances and disbursements made or incurred by of the
Special Warrant Agent in the administration or execution of the trusts hereby
created (including, pursuant to subsection 8.3(f), the reasonable compensation
and the disbursements of its counsel and all other advisers, experts,
accountants and assistants not regularly in its employ) both before any default
hereunder and thereafter until all duties of the Special Warrant Agent hereunder
shall be finally and fully performed, except any such expense or disbursement in
connection with or related to or required to be made as a result of the
negligence, wilful misconduct or bad faith of the Special Warrant Agent.
4.4 Performance of Covenants by Special Warrant Agent
Subject to subsection 8.2(g), if the Corporation shall fail to perform any
of their covenants contained in this Indenture and the Corporation have not
rectified such failure within ten Business Days after receiving written notice
from the Special Warrant Agent of such failure, the Special Warrant Agent may
notify the Special Warrantholders of such failure on the part of the Corporation
unless the Special Warrant Agent shall itself perform any of the said covenants
capable of being performed by it, but shall be under no obligation to perform
said covenants or to notify the Special Warrantholders. All reasonable sums
expended or disbursed by the Special Warrant Agent in so doing shall be
repayable as provided in Section 4.3. No such performance, expenditure or
disbursement by the Special Warrant Agent shall be deemed to relieve the
Corporation of any default herein or of their continuing obligations under the
covenants herein contained.
Article 5-Enforcement
5.1 Suits by Special Warrantholders
All or any of the rights conferred upon a Special Warrantholder by the
terms of the Special Warrants held by such Special Warrantholder and/or this
Indenture may be enforced by such Special Warrantholder by appropriate legal
proceedings, but subject to the rights which are hereby conferred upon the
Special Warrant Agent and subject to the provisions of Section 6.10.
5.2 Immunity of Shareholders, etc.
Subject to applicable laws, the Special Warrant Agent and, by the
acceptance of the Special Warrant certificates and as part of the consideration
for the issue of the Special Warrants, the Special Warrantholders hereby waive
and release any right, cause of action or remedy now or hereafter existing in
any jurisdiction against any person in his capacity as an incorporator or any
past, present or future shareholder of the Corporation or other security holder,
director, officer, employee or agent of the Corporation for the issue of the
Subject Securities pursuant to the exercise of any Special Warrant or on any
covenant, agreement, representation or warranty by the Corporation herein or in
the Special Warrant certificates contained.
5.3 Limitation of Liability
The obligations hereunder are not personally binding upon, nor shall resort
hereunder be had to, the shareholders or the directors of the Corporation or any
of the past, present or future shareholders or directors of the Corporation or
any of the past, present or future officers, employees or agents of the
Corporation, but only the Corporation and their property shall be bound in
respect hereof.
Article 6 - Meetings of Special Warrantholders
6.1 Right to Convene Meetings
The Special Warrant Agent may at any time and from time to time, and shall
on receipt of a written request of the Corporation or of a Special
Warrantholders' Request, convene a meeting of the Special Warrantholders
provided that the Special Warrant Agent is indemnified and funded to its
reasonable satisfaction by the Corporation or by the Special Warrantholders
signing such Special Warrantholders' Request against the costs, charges,
expenses and liabilities which may be incurred in connection with the calling
and holding of such meeting. If within 15 Business Days after the receipt of a
written request of the Corporation or a Special Warrantholders' Request and
indemnity and funding given as aforesaid the Special Warrant Agent fails to give
the requisite notice specified in Section 6.2 to convene a meeting, the
Corporation or such Special Warrantholders, as the case may be, may convene such
meeting. Every such meeting shall be held in the City of Toronto or at such
other place as may be approved or determined by the Special Warrant Agent and
the Corporation.
6.2 Notice
At least 15 days' prior notice of any meeting of Special Warrantholders
shall be given to the registered Special Warrantholders, at the expense of the
Corporation, in the manner provided for in Section 10.2 and a copy of such
notice shall be delivered to the Special Warrant Agent unless the meeting has
been called by the Special Warrant Agent, and also to the Corporation, unless
the meeting has been called by the Corporation. Such notice shall state the time
and place of the meeting and the general nature of the business to be transacted
thereat, and shall contain
such information as is reasonably necessary to enable the Special Warrantholders
to make a reasoned decision on the matters for which such meeting has been
called, but it shall not be necessary for any such notice to set out the terms
of any resolution to be proposed or any of the provisions of this Article 6. The
notice convening any such meeting may be signed by the Special Warrant Agent or
of the Corporation or the person designated by such Special Warrantholders, as
the case may be.
6.3 Chairman
The Special Warrant Agent may nominate in writing an individual to be
chairman of the meeting and if no individual is so nominated, or if the
individual so nominated is not present within 15 minutes after the time fixed
for the holding of the meeting, the Special Warrantholders present in person or
by proxy shall appoint an individual present to be chairman of the meeting. The
chairman of the meeting need not be a Special Warrantholder.
6.4 Quorum
Subject to the provisions of Section 6.11, at any meeting of the Special
Warrantholders a quorum shall consist of one or more Special Warrantholders
present in person or represented by proxy and holding at least 25% of the then
issued and outstanding Special Warrants. If a quorum of the Special
Warrantholders shall not be present within one half-hour from the time fixed for
holding any meeting, the meeting, if summoned by the Special Warrantholders or
on a Special Warrantholder's Request, shall be dissolved; but in any other case
the meeting shall be adjourned to the same day in the next week (unless such day
is not a Business Day in which case it shall be adjourned to the next following
Business Day) at the same time and place to the extent possible and, subject to
the provisions of Section 6.1, no notice of the adjournment need be given. Any
business may be brought before or dealt with at an adjourned meeting which might
have been dealt with at the original meeting in accordance with the notice
calling the same. At the adjourned meeting the Special Warrantholders present in
person or represented by proxy (regardless of number) shall form a quorum and
may transact the business for which the meeting was originally convened,
notwithstanding that they may hold less than 25% of the then issued and
outstanding Special Warrants. No business shall be transacted at any meeting
unless a quorum is present at the commencement of the meeting.
6.5 Power to Adjourn
The chairman of any meeting at which a quorum of the Special Warrantholders
is present may, with the consent of the meeting, adjourn any such meeting, and
no notice of such adjournment need be given except such notice, if any, as the
meeting may prescribe.
6.6 Show of Hands
Every question submitted to a meeting shall be decided in the first place
by a majority of the votes given on a show of hands except that votes on an
extraordinary resolution shall be
given in the manner hereinafter provided. At any such meeting, unless a poll is
duly demanded as herein provided, a declaration by the chairman of the meeting
that a resolution has been carried or carried unanimously or by a particular
majority or lost or not carried by a particular majority shall be conclusive
evidence of the fact.
6.7 Poll and Voting
On every extraordinary resolution, and when demanded by the chairman of the
meeting or by one or more of the Special Warrantholders acting in person or by
proxy on any other question submitted to a meeting and after a vote by show of
hands, a poll shall be taken in such manner as the chairman of the meeting shall
direct. Questions other than those required to be determined by extraordinary
resolution shall be decided by a majority of the votes cast on the poll. On a
show of hands, every person who is present and entitled to vote, whether as a
Special Warrantholder or as a proxy for one or more absent Special
Warrantholders, or both, shall have one vote. On a poll, each Special
Warrantholder present in person or represented by a proxy duly appointed by
instrument in writing shall be entitled to one vote in respect of each Special
Warrant which he (or the Special Warrantholder appointing him as proxy) then
holds. A proxy need not be a Special Warrantholder. The chairman of any meeting
shall be entitled, both on a show of hands and on a poll, to vote in respect of
the Special Warrants, if any, held or represented by him.
6.8 Regulations
Subject to the provisions of this Indenture, the Special Warrant Agent or
the Corporation with the approval of the Special Warrant Agent may from time to
time make and from time to time vary such regulations as it shall reasonably
consider necessary or appropriate:
(a) for the deposit of instruments appointing proxies at such place and time as
the Special Warrant Agent, the Corporation or the Special Warrantholders
convening the meeting, as the case may be, may in the notice convening the
meeting direct, and enabling particulars of such instruments appointing
proxies to be mailed or transmitted by facsimile before the meeting to the
Corporation or to the Special Warrant Agent and for the voting of proxies
so deposited as though the instruments themselves were produced at the
meeting;
(b) as to the form of the instrument of proxy; and
(c) generally for the calling of meetings of Special Warrantholders and the
conduct of business thereat, including setting a record date for Special
Warrantholders entitled to receive notice of or to vote at such meeting;
such regulations to be effectual only once notice thereof has been given to
Special Warrantholders in accordance with the provisions of Section 10.2
hereof prior to or concurrently with notice of the first meeting at which
such regulations are to apply.
Any regulations so made shall be binding and effective and the votes given
in accordance therewith shall be valid and shall be counted. Save as such
regulations may provide, the only persons who shall be recognized at any
meeting as a Special Warrantholder, or be entitled to vote or be present at
the meeting in respect thereof (subject to Section 6.9), shall be Special
Warrantholders or persons holding proxies of Special Warrantholders.
6.9 Corporation, Special Warrant Agent and Underwriter may be Represented
The Corporation, the Underwriter and the Special Warrant Agent, by their
respective directors, officers and employees and the counsel for each of the
Corporation, the Underwriter, the Special Warrantholders and the Special Warrant
Agent may attend any meeting of the Special Warrantholders and speak thereat but
shall have no vote as such.
6.10 Powers Exercisable by Extraordinary Resolution
In addition to all other powers conferred upon them by any other provisions
of this Indenture or by law, the Special Warrantholders at a meeting of Special
Warrantholders shall have the power, exercisable from time to time by
extraordinary resolution:
(a) to agree with the Corporation to any modification, alteration, compromise
or arrangement of the rights of Special Warrantholders and/or the Special
Warrant Agent in its capacity as special warrant agent hereunder subject to
the Special Warrant Agent's prior written consent or on behalf of the
Special Warrantholders against the Corporation whether such rights arise
under this Indenture or the Special Warrants or otherwise;
(b) to amend or repeal any extraordinary resolution previously passed or
sanctioned by the Special Warrantholders;
(c) to direct or authorize the Special Warrant Agent subject to receipt of
funding and indemnity to enforce any of the covenants on the part of the
Corporation contained in this Indenture or the Special Warrants or to
enforce any of the rights of the Special Warrantholders in any manner
specified in such extraordinary resolution or to refrain from enforcing any
such covenant or right;
(d) to waive and/or direct the Special Warrant Agent to waive any default on
the part of the Corporation in complying with any provisions of this
Indenture or the Special Warrants either unconditionally or upon any
conditions specified in such extraordinary resolution;
(e) to restrain any Special Warrantholder from taking or instituting any suit,
action or proceeding against the Corporation for the enforcement of any of
the covenants on the part of the Corporation contained in this Indenture or
the Special Warrants or to enforce any of the rights of the Special
Warrantholders;
(f) to direct any Special Warrantholder who, as such, has brought any suit,
action or proceeding to stay or discontinue or otherwise deal with any such
suit, action or proceeding, upon payment of the costs, charges and expenses
reasonably and properly incurred by such Special Warrantholder in
connection therewith; and
(g) to remove the Special Warrant Agent and to appoint a successor special
warrant agent.
6.11 Meaning of Extraordinary Resolution
(a) The expression "extraordinary resolution" when used in this Indenture
means, subject as hereinafter in this Section 6.11 and in Section 6.14
provided, a resolution proposed at a meeting of Special Warrantholders duly
convened for that purpose and held in accordance with the provisions of
this Article 6 at which there are present in person or represented by proxy
Special Warrantholders holding at least 25% of the then issued and
outstanding Special Warrants and passed by the affirmative votes of Special
Warrantholders holding Special Warrants exercisable into not less than two-
thirds (66_%) of the aggregate number of Units which would be issued on
exercise of all of the then outstanding Special Warrants represented at the
meeting and voted on the poll upon such resolution.
(b) If, at any meeting called for the purpose of passing an extraordinary
resolution, Special Warrantholders holding at least 25% of the then issued
and outstanding Special Warrants are not present in person or by proxy
within one half-hour after the time appointed for the meeting, then the
meeting, if convened by Special Warrantholders or on a Special
Warrantholders' Request, shall be dissolved; but in any other case it shall
stand adjourned to such day, being not less than four or more than ten
Business Days later, and to such place and time as may be appointed by the
chairman of the meeting. Not less than three Business Days' prior notice
shall be given of the time and place of such adjourned meeting in the
manner provided in Sections 10.1, 10.2 and 10.3. Such notice shall state
that at the adjourned meeting the Special Warrantholders present in person
or represented by proxy shall form a quorum but it shall not be necessary
to set forth the purposes for which the meeting was originally called or
any other particulars. At the adjourned meeting the Special Warrantholders
present in person or represented by proxy shall form a quorum and may
transact the business for which the meeting was originally convened and a
resolution proposed at such adjourned meeting and passed by the requisite
vote as provided in subsection (a) of this Section 6.11 shall be an
extraordinary resolution within the meaning of this Indenture
notwithstanding that Special Warrantholders holding at least 25% of the
then issued and outstanding Special Warrants are not present in person or
represented by proxy at such adjourned meeting.
(c) Votes on an extraordinary resolution shall always be given on a poll and no
demand for a poll on an extraordinary resolution shall be necessary.
6.12 Powers Cumulative
It is hereby declared and agreed that any one or more of the powers or any
combination of the powers in this Indenture stated to be exercisable by the
Special 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 Special Warrantholders to exercise such powers or combination of powers
then or thereafter from time to time.
6.13 Minutes
Minutes of all resolutions and proceedings at every meeting of Special
Warrantholders shall be made and duly entered in books to be from time to time
provided for that purpose by the Special Warrant Agent at the reasonable 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 held, or by
the chairman of the next succeeding meeting of the Special Warrantholders, shall
be prima facie evidence of the matters therein stated and, until the contrary is
proved, every such meeting in respect of the proceedings of which minutes shall
have been made shall be deemed to have been duly convened and held, and all
resolutions passed thereat or proceedings taken shall be deemed to have been
duly passed and taken.
6.14 Instruments in Writing
All actions which may be taken and all powers that may be exercised by the
Special Warrantholders at a meeting held as provided in this Article 6 may also
be taken and exercised by Special Warrantholders holding Special Warrants
issuable into not less than two-thirds (66_%) of the aggregate number of Units
which would be issued on exercise of all the then outstanding Special Warrants
by an instrument in writing signed in one or more counterparts by such Special
Warrantholders in person or by attorney duly appointed in writing, and the
expression "extraordinary resolution" when used in this Indenture shall include
an instrument so signed.
6.15 Binding Effect of Resolutions
Every resolution and every extraordinary resolution passed in accordance
with the provisions of this Article 6 at a meeting of Special Warrantholders
shall be binding upon all the Special Warrantholders, whether present at or
absent from such meeting, and every instrument in writing signed by Special
Warrantholders in accordance with Section 6.14 shall be binding upon all the
Special Warrantholders, whether signatories thereto or not, and each and every
Special Warrantholder and the Special Warrant Agent (subject to the provisions
for funding and indemnity herein contained) shall be bound to give effect
accordingly to every such resolution and instrument in writing. In the case of
an instrument in writing, the Special Warrant Agent shall give notice in the
manner contemplated in Sections 10.1 and 10.2 of the effect of the instrument in
writing to all Special Warrantholders and the Corporation as soon as is
reasonably practicable.
6.16 Holdings by the Corporation or Associates or Affiliates of the Corporation
Disregarded
In determining whether Special Warrantholders holding the required number
of Special Warrants are present at a meeting of Special Warrantholders for the
purpose of determining a quorum or have concurred in any consent, waiver,
resolution, extraordinary resolution, Special Warrantholders' Request or other
action under this Indenture, Special Warrants owned legally or beneficially by
the Corporation or any associate or affiliate (as those terms are defined in the
Securities Act (Ontario)) of the Corporation shall be disregarded. The
Corporation shall provide to the Special Warrant Agent upon request a
Certificate of the Corporation stating the exact number and registrations of
Special Warrants held by the Corporation or any associate or affiliate.
Article 7 - Supplemental Indentures
7.1 Supplemental Indentures
From time to time the Corporation and the Special Warrant Agent may, subject to
the provisions of this Indenture, and they shall, when so directed by this
Indenture, execute and deliver by their proper officers, indentures or
instruments supplemental hereto, which thereafter shall form part hereof, for
any one or more or all of the following purposes:
(a) adding to the provisions hereof such additional covenants and enforcement
provisions as in the opinion of counsel are necessary or advisable,
provided that the same are not, in the opinion of the Special Warrant
Agent, relying on the advice of Counsel, prejudicial to the interests of
the Special Warrantholders as a group;
(b) giving effect to any extraordinary resolution passed as provided in Article
6;
(c) making such provisions not inconsistent with this Indenture as may be
necessary or desirable with respect to matters or questions arising
hereunder, provided that such provisions are not, in the opinion of the
Special Warrant Agent, relying on the advice of Counsel, prejudicial to the
interests of the Special Warrantholders as a group;
(d) adding to or amending the provisions hereof in respect of the transfer of
Special Warrants, providing for the exchange of Special Warrants, and
making any modification in the form of the certificates for the Special
Warrants provided that such additions, amendments or modifications are not,
in the opinion of the Special Warrant Agent, relying on the advice of its
Counsel, prejudicial to the interests of the Special Warrantholders as a
group;
(e) amending any of the provisions of this Indenture or relieving the
Corporation from any of the obligations, conditions or restrictions herein
contained, provided that no such amendment or relief shall be or become
operative or effective if, in the opinion of the
Special Warrant Agent, relying on the advice of Counsel, such amendment or
relief impairs any of the rights of the Special Warrantholders as a group
or of the Special Warrant Agent, and provided further that the Special
Warrant Agent may in its sole discretion decline to enter into any such
supplemental indenture which in its opinion, relying on the advice of
Counsel, may not afford adequate protection to the Special Warrant Agent
when the same shall become operative;
(f) for any other purpose not inconsistent with the terms of this Indenture,
including the correction or rectification of any ambiguities, defective or
inconsistent provisions, errors or omission herein, provided that, in the
opinion of the Special Warrant Agent, relying on the advice of Counsel, the
rights of the Special Warrant Agent and of the Special Warrantholders as a
group are not prejudiced thereby; and
(g) amending the type or number of Subject Securities or other securities of
the Corporation issuable upon exercise of the Special Warrants as
contemplated by Sections 2.13 and 2.14 hereof, provided that no such
amendment or relief shall be or become operative or effective if, in the
opinion of the Special Warrant Agent, based on the advice of Counsel, such
amendment or relief impairs any of the rights of the Special Warrantholders
as a group.
7.2 Successor Corporations
In the case of the consolidation, amalgamation, arrangement, merger or
transfer of the undertaking or assets of the Corporation as an entirety or
substantially as an entirety to another corporation (a "successor corporation"),
forthwith following the occurrence of such event the successor corporation
resulting from such consolidation, amalgamation, arrangement, merger or transfer
(if not the Corporation) shall expressly assume, by supplemental indenture
satisfactory in form to Counsel to the Special Warrant Agent and executed and
delivered to the Special Warrant Agent, the due and punctual performance and
observance of each and every covenant and condition of this Indenture to be
performed and observed by the Corporation.
Article 8 - Concerning the Special Warrant Agent
8.1 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 Special Warrant 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.
8.2 Rights and Duties of Special Warrant Agent
(a) In the exercise of the rights and duties prescribed or conferred by the
terms of this Indenture, the Special Warrant Agent shall act honestly and
in good faith with a view to the best interests of the Special
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 Special Warrant Agent from or require any other person to
indemnify the Special Warrant Agent against liability for its own
negligence, wilful misconduct or bad faith.
(b) Subject only to subsection 8.2(a), the Special Warrant 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 Special Warrantholders' Request specifying
the act, action or proceeding which the Special Warrant Agent is requested
to take. The obligation of the Special Warrant Agent to commence or
continue any act, action or proceeding for the purpose of enforcing any
rights of the Special Warrant Agent or the Special Warrantholders hereunder
shall be conditional upon the Special Warrantholders furnishing, when
required by notice in writing by the Special Warrant Agent, sufficient
funds to commence or continue such act, action or proceeding and an
indemnity reasonably satisfactory to the Special Warrant Agent and its
officers, directors, employees and agents to protect and hold harmless the
Special Warrant 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 Special Warrant
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 Special Warrant Agent may, before commencing or at any time during the
continuance of any such act, action or proceeding, require the Special
Warrantholders at whose instance it is acting to deposit with the Special
Warrant Agent the Special Warrants held by them, for which Special Warrants
the Special Warrant Agent shall issue receipts.
(d) Every provision of this Indenture that by its terms relieves the Special
Warrant Agent of liability or entitles it to act and rely upon any evidence
submitted to it is subject to the provisions of Applicable Legislation, and
to the provisions of this Section 8.2 and of Section 8.3.
(e) The Special Warrant 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 Special Warrant Agent refuses
to act because any documentation received by it is not clear and
reasonable, the Special Warrant Agent shall immediately provide notice to
the party who provided such documentation advising such party of the
Special Warrant 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 Special Warrant 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 Special Warrant 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 Special Warrant 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 Special Warrant 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 Special Warrant Agent to
determine whether or not the Special Warrant Agent shall take action with
respect to any default.
8.3 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 Special
Warrant Agent such additional evidence of compliance with any provision
hereof in such form as may be prescribed by Applicable Legislation, or as
the Special Warrant Agent may reasonably require by written notice to the
Corporation.
(b) In the exercise of its rights and duties hereunder, the Special Warrant
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 Special Warrant Agent, provided that such
evidence complies with Applicable Legislation.
(c) Whenever Applicable Legislation requires that evidence referred to in
subsection 8.3(a) be in the form of a statutory declaration, the Special
Warrant 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 Special Warrant Agent may act and rely and shall be protected in acting
and relying 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 Special
Warrantholders' Request, by any Special 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 Special Warrant Agent may consider adequate and in respect
of a corporate Special Warrantholder shall include a certificate of
incumbency of such Special Warrantholder together with a certified copy of
a resolution authorizing the person who signed such instrument to sign such
instrument.
(f) The Special Warrant 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 services shall be added to and be part of the
Special Warrant Agent's fees hereunder.
8.4 Documents, Monies, etc. Held by Special Warrant Agent
Any securities, documents of title or other instruments that may at any
time be held by the Special Warrant Agent subject to the trusts hereof may be
placed in the deposit vaults of the Special Warrant Agent or of any Canadian
chartered bank or trust company or deposited for safekeeping with any such bank
or trust company.
8.5 Action by Special Warrant Agent to Protect Interests
Subject to the provisions of this Indenture and Applicable Legislation, the
Special Warrant 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 Special
Warrantholders.
8.6 Special Warrant Agent Not Required to Give Security
The Special Warrant 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.
8.7 Protection of Special Warrant 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 Special Warrant Agent shall not be liable for or by reason of any
statements of fact or recitals in this Indenture or in the Special Warrants
(except the representations contained in Sections 8.9 and 8.12 or in the
certificate of the Special Warrant Agent on the Special Warrants) or be
required to verify the same.
(b) Nothing herein contained shall impose any obligation on the Special Warrant
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 Special Warrant Agent shall not be bound to give notice to any person
of the execution hereof.
(d) The Special Warrant 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 Special Warrant
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 Special Warrant 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 Special Warrant Agent or any of its officers, directors and employees.
It is understood and agreed that this indemnification shall survive the
termination of this Indenture or the resignation or removal of the Special
Warrant Agent.
8.8 Replacement of Special Warrant Agent
(a) The Special Warrant 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 Special Warrantholders by
extraordinary resolution shall have the power at any time to remove the
existing Special Warrant Agent and to appoint a new warrant agent. In the
event of the Special Warrant 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 Special Warrantholders; failing
such appointment by the Corporation, the retiring Special Warrant Agent or
any Special 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 Special Warrantholders. Any new
warrant agent appointed under any provision of this Section 8.8 shall be a
corporation authorized to carry on the business of a trust company in the
Province of Ontario and, if required by Applicable Legislation of any other
province, in such other province. 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 Special
Warrant 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 Special
Warrant 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 Special Warrant 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 Special Warrant Agent
hereunder and all securities, documents of title and other instruments, and
all monies and properties, held by the Special Warrant Agent hereunder.
(b) Upon the appointment of a successor warrant agent, the Corporation shall
promptly notify the Special Warrantholders thereof in the manner provided
for in Section 10.2.
(c) Any corporation into or with which the Special Warrant Agent may be merged
or consolidated or amalgamated, or any corporation succeeding to the trust
business of the Special Warrant Agent, shall be the successor to the
Special Warrant 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 8.8(a).
(d) Any Special 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.
8.9 Conflict of Interest
(a) The Special Warrant Agent represents to the Corporation that at the time of
execution and delivery hereof no material conflict of interest exists in
the Special Warrant 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 Special Warrants shall not be
affected in any manner whatsoever by reason thereof.
(b) Subject to subsection 8.9(a), the Special Warrant 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.
8.10 Acceptance of Trusts
The Special Warrant 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.
8.11 Special Warrant Agent Not to be Appointed Receiver
The Special Warrant Agent and any person related to the Special Warrant
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.
8.12 Authorization to Carry on Business
The Special Warrant 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.
8.13 Liability of Special Warrant Agent
The Special Warrant 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 Special Warrant Agent.
Article 9 - Form of Special Warrant
9.1 Form of Special Warrant Certificate
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 CORPORATION, (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
STATE SECURITIES LAWS.
SPECIAL WARRANT CERTIFICATE
BID.COM INTERNATIONAL INC.
(the "Corporation")
(Constituted pursuant to the laws of the Province of Ontario, Canada)
NO.______________
____________ Special Warrants
(each entitling the holder to
subscribe for one Common
Share and one-half of one
Share Purchase Warrant for no
additional consideration)
THIS IS TO CERTIFY that, for value received, ________________________ (the
"holder") is entitled to acquire, in the manner herein provided, subject to the
restrictions contained in the Indenture hereinafter referred to, at any time and
from time to time on or prior to 5:00 p.m. Toronto time (the "Expiry Time"), on
the date (the "Expiry Date") that is the earlier of:
1. the date which is five (5) Business Days following the date of the issuance
of a receipt by the last of the securities regulatory authorities in the
Qualifying Jurisdictions for a Prospectus; and
2. September 30, 2000;
one unit ("Unit") comprised of one common share of the Corporation ("Common
Share") (or, in the circumstances described below, acquire one and one-tenth
(1.1) Common Shares) and one half of one warrant ("Share Purchase Warrant") (or
in the circumstances described below, acquire 0.55 Share Purchase Warrants) for
each Special Warrant represented by this certificate without payment of any
consideration in addition to the subscription price for such Special Warrant.
The Special Warrants represented by this certificate are issued under
and pursuant to a Special Warrant Indenture (the "Indenture") dated as of
September 30, 1999 between the Corporation and CIBC Mellon Trust Company (the
"Special Warrant Agent") (which expression shall include any successor warrant
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 Special Warrants and the
terms and conditions upon which such Special Warrants are or are to be, issued
and held, all to the same
effect as if the provisions of the Indenture and all amendments thereto and
instruments supplemental thereto were herein set forth and to all of which
provisions the holder of these Special 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 Special 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.
Such right to exercise Special Warrants for the Common Shares and Share
Purchase Warrants may be effected by the holder hereof by:
(a) duly completing in the manner indicated and executing the
Exercise Form attached hereto; and
(b) surrendering this Special Warrant Certificate to the Special
Warrant Agent as hereinafter set forth,
provided that any Special Warrant not so exercised on or before the Expiry Time
shall be deemed to have been exercised by the holder immediately prior thereto.
This Special Warrant Certificate shall be validly surrendered only upon
delivery thereof or by mailing the same to the Special Warrant Agent at its
principal office in the City of Toronto, Ontario. 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.
In the case of a Special Warrant which is exercised by a holder in
accordance with the provisions of subsection 3.1(c) of the Indenture, within
five (5) Business Days after the Exercise Date of such Special Warrant, the
Special Warrant Agent shall:
(a) cause to be mailed to the person in whose name the Common Shares
and Share Purchase Warrants issuable upon the exercise of the
exercise rights of the Special Warrants are to be issued, as
specified in the Special Warrant, at the address specified
therein;
(b) if so specified therein, cause to be delivered to such person at
the office of the Special Warrant Agent where such Special
Warrant was surrendered; or
(c) if no specification as contemplated by (a) or (b) is provided,
cause to be mailed to the person in whose name the Common Shares
and Share Purchase Warrants are
to be issued at the address of such person last appearing on
the register maintained by the Special Warrant Agent pursuant
to the Indenture or as such person may otherwise notify the
Special Warrant Agent in writing on or prior to the Exercise
Date,
a certificate or certificates for the Common Shares and Share Purchase Warrants
to which the holder is entitled.
In the case of a Special Warrant which is deemed exercised in
accordance with the provisions of Subsection 3.1(b) of the Indenture, within
five (5) Business Days after the Exercise Date of such Special Warrants, the
Corporation shall without any further act on the part of the Special
Warrantholder, cause to be mailed to the Special Warrantholder at the address of
such person last appearing on the register of Special Warrants maintained by the
Special Warrant Agent pursuant to the Indenture or as such person may otherwise
instruct the Special Warrant Agent in writing on or prior to the mailing a
certificate or certificates for the Common Shares and Share Purchase Warrants to
which the Special Warrantholder is entitled.
Upon due exercise or deemed exercise of the Special Warrants as
provided herein, the person or persons in whose name or names the Common Shares
and Share Purchase Warrants 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 Share Purchase Warrants and the
Corporation covenant that they will (subject to and in accordance with the
provisions of the aforesaid Indenture) cause a certificate or certificates
representing such Common Shares and Share Purchase Warrants to be delivered or
mailed to such person or persons at the address or addresses specified in such
Exercise Form or on the register of Special Warrants maintained by the Special
Warrant Agent (if deemed to have been exercised).
No fractional Common Shares or Share Purchase Warrants will be issued.
To the extent that the holder of a Special Warrant is entitled to receive on the
exercise or partial exercise thereof a fraction of a Common Share or Share
Purchase Warrants, the Corporation shall make a cash payment equal to the fair
value of the fraction not so issued as determined by the directors of the
Corporation in their sole discretion. No cheque shall be issued or cash payment
made to any Special Warrantholder for an amount less than $5.00.
The Indenture provides for adjustments to the subscription rights
attaching to these Special Warrants in certain events and also provides for the
giving of notice by the Corporation prior to taking certain actions specified
therein.
The holding of the Special Warrants evidenced by this Special 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 Special Warrants evidenced by this Special Warrant Certificate are
not transferable except as set forth in section 2.8 of the Indenture which makes
reference to the fact that no transfer of a Special Warrant shall be valid
unless made by the holder or his executors,
administrators or other legal representatives, or his or her attorney duly
appointed by an instrument in writing in form and manner satisfactory to the
Agent, acting reasonably, with signatures guaranteed by a Canadian chartered
bank, a Canadian trust company, a member of any Canadian stock exchange, a
member of the Medallion Signature Guarantee Program or such other guarantor as
the Special Warrant Agent determines to be acceptable and upon compliance with
such other reasonable requirements as the Special Warrant Agent may prescribe.
Upon compliance with these transfer requirements, and with applicable securities
legislation and requirements of regulatory authorities, the transferee shall
become noted upon the register of holders.
Neither the Special Warrants represented by this certificate nor the
Common Shares or Share Purchase Warrants 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 Special Warrants represented by this certificate nor the Common
Shares or Share Purchase Warrants 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 and Share Purchase Warrants in respect of
which the Special Warrants are exercised are to be issued to a person or persons
other than the holder (as aforesaid), the holder shall pay to the Special
Warrant Agent all requisite stamp transfer taxes or other governmental charges
exigible in connection with the issue of such Common Shares and Share Purchase
Warrants to such other person or persons or shall establish to the satisfaction
of the Special Warrant Agent that such taxes and charges have been paid.
This Special Warrant Certificate shall not be valid for any purpose
whatever unless and until it has been countersigned by or on behalf of the
Special Warrant Agent.
Time shall be of the essence hereof. The Special 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.
The Corporation has covenanted and agreed to use its reasonable best
efforts to promptly finalize and obtain a receipt for a preliminary prospectus
and a final Prospectus in the Qualifying Jurisdictions qualifying the issuance
of the Common Shares and Share Purchase Warrants issuable upon the due exercise
or deemed exercise of the Special Warrants.
In the event the Corporation fails to obtain a receipt for the Final
Prospectus from the Securities Administrators in each of the Qualifying
Jurisdictions on or prior to 5:00 p.m. (Toronto time) on December 29, 1999, (a
"Qualification Default") then each Special Warrant shall entitle the holder to
acquire one and one-tenth (1.1) Units (in lieu of one (1) Unit), without payment
of further consideration, on exercise or deemed exercise of such Special
Warrant.
In the event that a receipt for a Final Prospectus relating to the
distribution of the Common Shares and Share Purchase Warrants is not obtained
from the Securities Administrators in any of the Qualifying Jurisdictions, the
Common Shares and Share Purchase Warrants may be subject to statutory hold
periods during which time these securities may not be resold in such provinces
except pursuant to applicable prospectus and registration exemptions. In
addition, any Special Warrants that are exercised or Common Shares and Share
Purchase Warrants received on such exercise prior to the issuance of a receipt
for the Final Prospectus by the Securities Administrators in the Qualifying
Jurisdictions may be subject to statutory restrictions. Holders are advised to
consult their legal advisors in this regard.
IN WITNESS WHEREOF the Corporation has caused this Special Warrant
Certificate to be signed by its duly authorized officer as of September 30,
1999.
BID.COM INTERNATIONAL INC.
Per:___________________________c/s
Authorized Signing Officer
Countersigned by:
CIBC MELLON TRUST COMPANY
Per:
Authorized Signing Officer
TRANSFER FORM
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
__________________________ Special Warrant(s) represented by the within
certificate, and do(es) hereby irrevocably constitute and
appoint ________________________________________________________________________
_________________________ the attorney of the undersigned to transfer the said
Special Warrant(s) on the register of Special Warrants maintained by the Special
Warrant Agent with full power of substitution hereunder.
DATED this ________ day of _______________ , 199____.
Signature of Special Warrantholder
______________________
Signature Guarantee Name of Special Warrantholder (please print)
The signature of the Special Warrantholder to this assignment must
correspond exactly with the name of the Special Warrantholder as set forth on
the face of this Special 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.
EXERCISE OF EXCHANGE RIGHTS INSTRUCTIONS TO SPECIAL WARRANTHOLDER
The registered holder hereof may exercise his right to exercise Special
Warrants for Common Shares and Share Purchase Warrants of BID.COM INTERNATIONAL
INC. (the "Corporation"), subject to the adjustments described in the Special
Warrant Indenture by completing the Exercise Form and surrendering this Special
Warrant certificate and the duly completed Exercise Form to CIBC Mellon Trust
Company by delivering or mailing it to CIBC Mellon Trust Company at the
following office:
By courier or by hand:
Special projects
199 Bay Street
Commerce Court West
Securities Level
Toronto, Ontario
M5L 1B9
Attention: Courier Window
By mail:
P.O. Box 1036
Adelaide Street Postal Station
Toronto, Ontario
M5C 2K4
Upon exercise, the Special Warrants will be cancelled and become
absolutely void and alternatively, if not exercised on or prior to 5:00 p.m.,
Toronto time, on the Expiry Date will be deemed to have been exercised in full
by such holder immediately prior to that time.
For your own protection, it is suggested that all documentation be
forwarded to the Special Warrant Agent by registered mail.
EXERCISE FORM
TO: BID.COM INTERNATIONAL INC.
The undersigned hereby exercises the right to exercise _________
Special Warrants for ________ Common Shares and __________ Share Purchase
Warrants of BID.COM INTERNATIONAL INC. (or such number of other securities or
property to which such Special Warrants entitle the undersigned in lieu thereof
or in addition thereto under the provisions of the Indenture mentioned in the
within Special Warrant Certificate) according to the terms of the Indenture
mentioned in the within Special Warrant Certificate. If any of the Common Shares
and Share Purchase Warrants are to be issued to a person or persons other than
the holder in those circumstances as set forth in the within Special Warrant
Certificate, the holder must pay to CIBC Mellon Trust Company all requisite
stamp or security transfer taxes or other governmental charges related thereto.
(Print clearly)
Name: __________________________________________________________________________
Address in Full: _______________________________________________________________
________________________________________________________________________________
Number of Special Warrants being Exercised: ___________________________________
DATED this day of , 199 ____.
Signature of Special Warrantholder
Name of Special Warrantholder
(As registered on Special Warrant Certificate)
Print Full Address
SCHEDULE "B"
NOTICE TO SPECIAL WARRANTHOLDERS
Reference is made to the Special Warrant Indenture made as of September
30, 1999 (the "Special Warrant Indenture") between the Corporation and CIBC
Mellon Trust Company. Unless defined herein, capitalized terms used herein have
the respective meanings ascribed to them in the Special Warrant Indenture.
We hereby confirm that receipts have been issued by the securities
commissions in each of the Qualifying Jurisdictions in respect of the prospectus
qualifying the distribution of the Common Shares and Share Purchase Warrants
issuable upon exercise of the Special Warrants. The last receipt was issued on
______________ by the Securities Commission. The Expiry Time is therefore 5:00
p.m. (Toronto Time) on __________.
As soon as possible following the Expiry Time as above, and subject to
delivery by a Special Warrantholder of Special Warrant certificates and the
accompanying Exercise Form, duly completed, to the Special Warrant Agent, the
Corporation shall cause to be delivered to each Special Warrantholder or mailed
to it at its address specified in the register of holders maintained by the
Special Warrant Agent certificates representing the Common Shares and Share
Purchase Warrants to which such Special Warrantholder is entitled pursuant to
the Special Warrants delivered by it.
A copy of the prospectus is enclosed herewith.
Article 10 - General
10.1 Notice to the Corporation and the Special Warrant Agent
(a) Unless herein otherwise expressly provided, any notice to be given
hereunder to the Corporation or the Special Warrant Agent shall be
deemed to be validly given if delivered or if sent by registered
letter, postage prepaid, or if sent by facsimile transmission, telex or
other means of prepaid transmission or recorded communication:
(i) if to the Corporation
BID.COM INTERNATIONAL INC.
6725 Airport Road
Suite 201
Mississauga, Ontario
L4V 1V2
Facsimile: (905) 672-5705
Attention: Paul Godin
if to the Special Warrant Agent:
(ii) CIBC MELLON TRUST COMPANY
320 Bay Street, Ground Floor
Toronto, Ontario M5H 4A6
Facsimile: 416-643-5570
Attention: Assistant Vice-President, Client Services
and any such notice if delivered in accordance with the foregoing shall
be deemed to have been received on the of delivery if that date is a
Business Day or the Business Day following the date of delivery if such
date is not a Business Day or, if mailed, on the fifth Business Day
following the date of deposit in the mail, or if sent by facsimile
transmission, on the date of such facsimile transmission if that date
is a Business Day or the Business Day following the date of sending if
such date is not a Business Day or if sent after normal business hours.
(b) The Corporation or the Special Warrant Agent, as the case may be, may
from time to time notify the other in the manner provided in subsection
10.1(a) of a change of address which, from the effective date of such
notice and until changed by like notice, shall be the address of the
Corporation or the Special Warrant Agent, as the case may be, for all
purposes of this Indenture. A copy of any notice of change of address
given pursuant to this subsection 10.1(b) shall be available for
inspection at the Corporation's office by Special Warrantholders during
normal business hours.
10.2 Notice to the Special Warrantholders
Any notice to the Special Warrantholders under the provisions of this
Indenture shall be deemed to be validly given if delivered, or if sent by
prepaid first class mail posted from within Canada in envelopes addressed to the
Special Warrantholders at their respective addresses appearing in the register
of holders maintained by the Special Warrant Agent. Any notice so delivered
shall be deemed to have been received on the date of delivery if that date is a
Business Day, or the Business Day following the date of delivery if such date is
not a Business Day, and if mailed shall be deemed to have been received on the
fifth Business Day following the date of deposit in the mail. Accidental error
or omission in giving notice or accidental failure to give notice to any Special
Warrantholder shall not invalidate any action or proceeding founded thereon.
10.3 Mail Service Interruption
If by reason of any interruption of mail service, actual or threatened,
any notice to be given to the Special Warrant Agent, the Corporation or the
Special Warrantholders would reasonably be unlikely to reach its destination in
the ordinary course of mail, such notice shall be valid and effective only if
delivered to the party to which it is addressed or, in the case of a notice to
either the Corporation or the Special Warrant Agent, if sent to such party, at
the appropriate address in accordance with Section 10.1, by facsimile
transmission.
10.4 Counterparts and Formal Date
This Indenture may be executed in several counterparts, each of which
when so executed shall be deemed to be an original and such counterparts
together shall constitute one and the same instrument and notwithstanding their
date of execution shall be deemed to be dated as of the date appearing at the
top of this Indenture.
10.5 Satisfaction and Discharge of Indenture
Upon the date upon which all obligations of the Corporation under this
Special Warrant Indenture have been performed in full (including the obligation
to deliver Common Shares and certificates therefor), this Special Warrant
Indenture shall cease to be of further effect in respect of the Corporation. The
Special Warrant Agent, on written demand of and at the cost and expense of the
Corporation, and upon delivery to the Special Warrant Agent of a certificate of
the Corporation stating that all conditions precedent to the satisfaction and
discharge of this Special Warrant Indenture have been complied with and upon
payment by the Corporation to the Special Warrant Agent of the expenses, fees
and other remuneration payable to the Special Warrant Agent, shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture;
provided that if the Special Warrant Agent has not then performed any of its
obligations hereunder any such satisfaction and discharge of the Corporation'
obligations hereunder shall not affect or diminish the rights of any Special
Warrantholder or the Corporation against the Special Warrant Agent.
10.6 Provisions of Indenture and Special Warrants for the Sole Benefit of
Parties and Special Warrantholders
Except as provided in Sections 5.2 and 5.3, nothing in this Indenture
or the Special Warrants, express or implied, shall give or be construed to give
to any person other than the parties hereto, the Underwriter (in the case of
Sections 2.10 and 6.9) and the holders from time to time of the Special Warrants
any legal or equitable right, remedy or claim under this Indenture, or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and the Special Warrantholders.
IN WITNESS WHEREOF the parties hereto have executed this Indenture
under the hands of their proper officers duly authorized in that behalf.
BID.COM INTERNATIONAL INC.
By:_________________________________
CIBC MELLON TRUST COMPANY
By:_________________________________
By:_________________________________
-------------------------------------------------
BID.COM INTERNATIONAL INC.
- and -
CIBC MELLON TRUST COMPANY
------------------------------------------------
SPECIAL WARRANT INDENTURE
Providing for the Issue of up to
2,702,703 Special Warrants
of Bid.Com International Inc.
September 30, 1999
TABLE OF CONTENTS
Article 1-Interpretation................................................................................ 2
1.1 Definitions............................................................................. 2
1.2 Number and Gender....................................................................... 5
1.3 Interpretation Not Affected by Headings, etc............................................ 6
1.4 Business Day............................................................................ 6
1.5 Time of the Essence..................................................................... 6
1.6 Applicable Law.......................................................................... 6
1.7 Choice of Language...................................................................... 6
1.8 Currency................................................................................ 6
Article 2-Issue of Special Warrants..................................................................... 6
2.1 Issue of Special Warrants............................................................... 6
2.2 Form and Terms of Special Warrants...................................................... 7
2.3 Signing of Special Warrant Certificates................................................. 8
2.4 Certification by the Special Warrant Agent.............................................. 8
2.5 Special Warrantholder Not a Shareholder................................................. 8
2.6 Issue in Substitution for Lost Special Warrant Certificates............................. 9
2.7 Special Warrants to Rank Pari Passu..................................................... 9
2.8 Registers for Special Warrants.......................................................... 9
2.9 Transferee Entitled to Registration..................................................... 10
2.10 Registers Open for Inspection........................................................... 11
2.11 Exchange of Special Warrants............................................................ 11
2.12 Ownership and Transfer of Special Warrants.............................................. 11
2.13 Adjustment of Subscription Rights....................................................... 12
2.14 Adjustment Rules........................................................................ 12
2.15 Notice of Adjustment of Subscription Rights............................................. 13
2.16 Proceedings Prior to any Action Requiring Adjustment.................................... 14
2.17 Protection of the Special Warrant Agent................................................. 14
Article 3-Exercise of Special Warrants.................................................................. 15
3.1 Exercise of Special Warrants and Deemed Exercise of Special Warrants.................... 15
3.2 Effect of Exercise of Special Warrants.................................................. 17
3.3 Postponement of Delivery of Certificates................................................ 17
3.4 Cancellation of Special Warrant Certificates............................................ 17
Article 4-Covenants..................................................................................... 18
4.1 General Covenants....................................................................... 18
4.2 Securities Qualification Requirements................................................... 19
4.3 Special Warrant Agent's Remuneration and Expenses....................................... 20
4.4 Performance of Covenants by Special Warrant Agent....................................... 20
Article 5-Enforcement................................................................................... 20
5.1 Suits by Special Warrantholders......................................................... 20
5.2 Immunity of Shareholders, etc........................................................... 21
5.3 Limitation of Liability................................................................. 21
Article 6-Meetings of Special Warrantholders............................................................ 21
6.1 Right to Convene Meetings............................................................... 21
i
6.2 Notice.................................................................................. 21
6.3 Chairman................................................................................ 22
6.4 Quorum.................................................................................. 22
6.5 Power to Adjourn........................................................................ 22
6.6 Show of Hands........................................................................... 22
6.7 Poll and Voting......................................................................... 23
6.8 Regulations............................................................................. 23
6.9 Corporation, Special Warrant Agent and Underwriter may be
Represented............................................................................. 24
6.10 Powers Exercisable by Extraordinary Resolution.......................................... 24
6.11 Meaning of Extraordinary Resolution..................................................... 25
6.12 Powers Cumulative....................................................................... 25
6.13 Minutes................................................................................. 26
6.14 Instruments in Writing.................................................................. 26
6.15 Binding Effect of Resolutions........................................................... 26
6.16 Holdings by the Corporation or Associates or Affiliates of the
Corporation Disregarded................................................................. 27
Article 7-Supplemental Indentures....................................................................... 27
7.1 Supplemental Indentures................................................................. 27
7.2 Successor Corporations.................................................................. 28
Article 8-Concerning the Special Warrant Agent.......................................................... 28
8.1 Trust Indenture Legislation............................................................. 28
8.2 Rights and Duties of Special Warrant Agent.............................................. 29
8.3 Evidence, Experts and Advisers.......................................................... 30
8.4 Documents, Monies, etc. Held by Special Warrant Agent................................... 31
8.5 Action by Special Warrant Agent to Protect Interests.................................... 31
8.6 Special Warrant Agent Not Required to Give Security..................................... 31
8.7 Protection of Special Warrant Agent..................................................... 32
8.8 Replacement of Special Warrant Agent.................................................... 32
8.9 Conflict of Interest.................................................................... 33
8.10 Acceptance of Trusts.................................................................... 34
8.11 Special Warrant Agent Not to be Appointed Receiver...................................... 34
8.12 Authorization to Carry on Business...................................................... 34
8.13 Liability of Special Warrant Agent...................................................... 34
Article 9-Form of Special Warrant....................................................................... 34
9.1 Form of Special Warrant Certificate..................................................... 34
Article 10-General...................................................................................... 44
10.1 Notice to the Corporation and the Special Warrant Agent................................. 44
10.2 Notice to the Special Warrantholders.................................................... 44
10.3 Mail Service Interruption............................................................... 45
10.4 Counterparts and Formal Date............................................................ 45
10.5 Satisfaction and Discharge of Indenture................................................. 45
10.6 Provisions of Indenture and Special Warrants for the Sole Benefit
of Parties and Special Warrantholders................................................... 46
ii