EXHIBIT 4.4
THE WARRANTS REPRESENTED HEREBY AND THE COMMON SHARES ISSUABLE ON THE EXERCISE
THEREOF HAVE NOT BEEN AND WILL NOT BE QUALIFIED FOR SALE UNDER THE SECURITIES
LAWS OF ANY PROVINCE OR TERRITORY OF CANADA. NEITHER THE WARRANTS REPRESENTED
HEREBY NOR THE COMMON SHARES TO BE ISSUED UPON EXERCISE THEREOF HAVE BEEN OR
WILL BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED.
ACCORDINGLY, THE WARRANTS AND THE COMMON SHARES ISSUABLE ON THE EXERCISE THEREOF
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN ANY CANADIAN OR U.S.
PROVINCE, TERRITORY OR STATE OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT THEREOF
IN CONTRAVENTION OF THE LAWS OF ANY SUCH JURISDICTION. COMPLIANCE WITH THE
SECURITIES LAWS OF ANY JURISDICTION IS THE RESPONSIBILITY OF THE HOLDER OR ITS
TRANSFEREE
WARRANT CERTIFICATE Certificate representing 1,333,333
NO. W-001- Warrants, each entitling the holder to
acquire one common share of Golden Star
Resources Ltd.(subject to adjustment as
set out below)
GOLDEN STAR RESOURCES LTD.
THREE-YEAR WARRANT
TO PURCHASE COMMON STOCK
This certifies that, for good and valuable consideration, Golden Star Resources
Ltd. (the "Company"), a corporation subsisting under the Canada Business
Corporations Act, grants to BARNATO EXPLORATION LIMITED or its registered
assigns (the "Warrant-holder"), the right to subscribe for and purchase from the
Company 1,333,333 (one million, three hundred and thirty three thousand, three
hundred and thirty three) validly issued, fully paid and non-assessable shares
(the "Warrant Shares") of the Company's common shares (the "Common Stock"), at
the purchase price per Warrant Share (the "Exercise Price") of U.S. $0.70 at any
time and from time to time, prior to 5:00 p.m. Rocky Mountain Time on September
6, 2004 (the "Expiration Date"), all subject to the terms, conditions and
adjustments herein set forth.
1. Duration and Exercise of Warrant; Limitation on Exercise: Payment of
Taxes.
1.1 Duration and Exercise of Warrant.
Subject to the terms and conditions set forth herein, the Warrant may
be exercised, in whole or in part, poor to 5:00 p.m. on the Expiration
Date, by the Warrant-holder by:
(a) the surrender of this Warrant to the Company, with a duly
executed Exercise Form specifying the number of Warrant Shares
to be purchased, during normal business hours on any Business
Day; and
(b) the delivery of payment to the Company, for the account of the
Company, by cash or by certified or bank cashier's check, of
the Exercise Price for the number of Warrant Shares specified
in the Exercise Form in lawful money of the United States of
America.
The Company agrees that such Warrant Shares shall be deemed to be
issued to the Warrant-holder as the record holder of such Warrant
Shares as of the close of business on the date on which this Warrant
shall have been surrendered and payment made for the Warrant Shares as
aforesaid.
1.2 Warrant Shares Certificate.
A stock certificate or certificates for the Warrant Shares specified in
the Exercise Form shall be mailed to the Warrant-holder via regular
mail, postage prepaid, within three Business Days after receipt
(including facsimile receipt) of the Exercise Form and actual receipt
of the Warrant and payment of the Exercise Price. If this Warrant shall
have been exercised only in part, the Company shall, at the time of
delivery of the stock certificate or certificates, deliver to the
Warrant-holder a new Warrant evidencing the rights to purchase the
remaining Warrant Shares, which new Warrant shall in all other respects
be identical with this Warrant.
1.3 Payment of Taxes.
The issuance of certificates for Warrant Shares shall be made without
charge to the Warrant-holder for any stock transfer or other issuance
tax in respect thereto; provided, however, that the Warrant-holder
shall be required to pay any and all taxes which may be payable in
respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the then Warrant-holder as
reflected upon the books of the Company.
1.4 Divisibility of Warrant; Transfer of Warrant.
(a) Subject to the provisions of this Section 1.4, this Warrant
may be divided into warrants of one thousand shares or
multiples thereof (except for any "stub amount"), upon
surrender at the principal office of the Company, without
charge to any Warrant-holder. Upon such division, the Warrants
may be transferred of
-2-
record as the then Warrant-holder may specify without charge
to such Warrant-holder (other than any applicable transfer
taxes). In addition, the Warrant-holder shall also have the
right to transfer this Warrant in its entirety to any person
or entity.
(b) Upon surrender of this Warrant to the Company with a duty
executed Assignment Form and funds sufficient to pay any
transfer tax, the Company shall, without charge, execute and
deliver a new Warrant or Warrants of like tenor in the name of
the assignee named in such Assignment Form, and this Warrant
shall promptly be canceled. The term "Warrant" as used in this
Agreement shall be deemed to include any Warrants issued in
substitution or exchange for this Warrant.
2. Issuance and Reservation of Shares; Approval Process.
2.1 The Company covenants and agrees as follows:
(a) all Warrant Shares which are issued upon the due exercise of
this Warrant will, upon issuance, be validly issued, fully
paid, and nonassessable, not subject to any preemptive rights,
and free from all taxes, liens, security interests, charges,
and other encumbrances with respect to the issue thereof,
other than taxes with respect to any transfer occurring
contemporaneously with such issue; and
(b) during the period within which this Warrant may be exercised,
the Company will at all times have authorized and reserved,
and keep available free from preemptive rights, a sufficient
number of shares of Common Stock to provide for the exercise
of the rights represented by this Warrant.
2.2 The Company represents, warrants and covenants that the Toronto Stock
Exchange ("TSE") has approved the issuance of the Warrants, and the
upon exercise of the Warrants, the TSE will have approved the listing
of the Warrant Shares issuable upon such exercise. The Company
covenants and agrees to fulfill all the requirements of the TSE with
respect to the Warrants and the Warrant Shares.
3. Loss or Destruction of Warrant.
Subject to the terms and conditions hereof, upon receipt by the Company
of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant and, in the case of loss,
theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon
surrender and cancellation of this Warrant, the Company promptly (but
not later than in two Business Days) will execute and deliver a new
Warrant of like tenor.
4. Registers and Ownership-of Warrant.
4.1 The Company shall maintain a register at its principal office in
Littleton, Colorado, in which shall be entered the name and address of
the Warrant-holder and all other particulars of the Warrants held by it
and of all transfers of the Warrants. The address of
-3-
a holder on such register shall be conclusive evidence of the address
at which a holder is resident.
4.2 The Company may deem and treat the person(s) listed on the register as
the holder and owner of this Warrant (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for
all purposes and shall not be affected by any notice to the contrary.
5. Certain Adjustments.
5.1 The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment from time
to time as follows:
(a) Stock Dividends. If at any time after the date of the issuance
of this Warrant (i) the Company shall fix a record date for
the issuance of any stock dividend or distribution payable in
shares of Common Stock or securities or rights convertible or
exchangeable into Common Stock or (ii) the number of shares of
Common Stock shall have been increased by a subdivision or
split-up of shares of Common Stock, then, on the record date
fixed for the determination of holders of Common Stock
entitled to receive such dividend or distribution (or on the
dividend distribution date if no record date is set) or
immediately after the effective date of subdivision or
split-up, as the case may be, the number of shares to be
delivered upon exercise of this Warrant will be increased so
that the Warrant-holder will be entitled to receive the number
of shares of Common Stock that such Warrant-holder would have
owned (or been entitled to receive in the case of convertible
or exchangeable securities) immediately following such action
had this Warrant been exercised immediately prior thereto, and
the Exercise Price will be adjusted as provided below in
paragraph (g).
(b) Combination of Stock. If the number of shares of Common Stock
outstanding at any time after the date of the issuance of this
Warrant shall have been decreased by a combination of the
outstanding shares of Common Stock, then, immediately after
the effective date of such combination, the number of shares
of Common Stock to be delivered upon exercise of this Warrant
will be decreased so that the Warrant-holder thereafter will
be entitled to receive the number of shares of Common Stock
that such Warrant-holder would have owned immediately
following such action had this Warrant been exercised
immediately prior thereto, and the Exercise Price will be
adjusted as provided below in paragraph (g).
(c) Reorganization, etc. If any capital reorganization of the
Company, any reclassification of the Common Stock, any
consolidation of the Company with or merger of the Company
with or into any other person, or any sale or lease or other
transfer of all or substantially all of the assets of the
Company to any other person, shall be effected in such a way
that the holders of Common Stock shall be entitled to receive
stock, other securities or assets (whether such stock, other
securities or assets are issued or distributed by the Company
or another person) with respect to or in exchange for Common
Stock, then, upon exercise of this
-4-
Warrant, the Warrant-holder shall have the right to receive
the kind and amount of stock, other securities or assets
receivable upon such reorganization, reclassification,
consolidation, merger or sale, lease or other transfer by a
holder of the number of shares of Common Stock that such
Warrant-holder would have been entitled to receive upon
exercise of this Warrant had this Warrant been exercised
immediately before such reorganization, reclassification,
consolidation, merger or sale, lease or other transfer.
(d) Distributions to All Holders of Common Stock. If the Company
shall, at any time after the date of issuance of this Warrant,
fix a record date to distribute (or distribute without a
record date) to all holders of its Common Stock, any shares of
capital stock of the Company (other than Common Stock) or
evidences of its indebtedness or assets or rights or warrants
to subscribe for or purchase any of its securities or
securities issued in connection with a spin-off, then the
Warrant-holder shall be entitled to receive, upon exercise of
the Warrant, on a pro rata basis, that portion of such
distribution to which it would have been entitled had the
Warrant-holder exercised its Warrant immediately prior to the
date of such distribution. At the time it fixes the record
date for such distribution (or prior to any distribution if no
record date is fixed), the Company shall allocate sufficient
reserves to ensure the timely and full performance of the
provisions of this Section 5.l(d). The Company shall promptly
(but in any case no later than five Business Days prior to the
record date of such distribution) mail by first class, postage
prepaid, to the Warrant-holder, notice that such distribution
will take place.
(e) Fractional Shares. No fractional shares of Common Stock or
scrip shall be issued to any Warrant-holder in connection with
the exercise of this Warrant. Instead of any fractional shares
of Common Stock that would otherwise be issuable to such
Warrant-holder, the Company will pay to such Warrant-holder a
cash adjustment in respect of such fractional interest in an
amount equal to that fractional interest of the then current
Fair Market Value per share of Common Stock.
(f) Carryover. Notwithstanding any other provision of this Section
5, no adjustment shall be made to the number of shares of
Common Stock to be delivered to the Warrant-holder (or to the
Exercise Price) if such adjustment represents less than 1% of
the number of shares to be so delivered hereunder, but any
lesser adjustment shall be carried forward and shall be made
at the time and together with the next subsequent adjustment
which together with any adjustments so carried forward shall
amount to 1% or more of the number of shares to be so
delivered.
(g) Exercise Price Adjustment. Whenever the number of Warrant
Shares purchasable upon the exercise of this Warrant is
adjusted pursuant to Sections 5.1(a) and (b) herein, the
Exercise Price payable upon the exercise of this Warrant shall
be adjusted by multiplying such Exercise Price immediately
prior to such adjustment by a fraction, of which the numerator
shall be the number of Warrant Shares purchasable upon the
exercise of the Warrant immediately prior to such
-5-
adjustment, and of which the denominator shall be the number
of Warrant Shares purchasable immediately thereafter.
5.2 Rights Offering.
In the event the Company shall effect an offering of Common Stock pro
rata among its stockholders, the Warrant-holder shall be entitled to
elect to participate in each and every such offering as if this Warrant
had been exercised immediately prior to each such offering. The Company
shall, concurrently within the mailing to stockholders, mail by first
class, postage prepaid, to the Warrant-holder, notice that such rights
offering will take place together with all documents and information
relating to the terms of the offering. The Company shall not be
required to make any adjustment with respect to the issuance of shares
of Common Stock pursuant to a rights offering in which the holder
hereof has been entitled to elect to participate under the provisions
of this Section 5.2.
5.3 Notice of Adjustments.
Whenever the number of Warrant Shares or the Exercise Price of such
Warrant Shares is to be adjusted, as herein provided, the Company
shall, at least 10 Business Days prior to such adjustment, mail by
first-class, postage prepaid, to the Warrant-holder, notice of such
adjustment or adjustments and a certificate of the Company setting
forth the number of Warrant Shares and the Exercise Price of such
Warrant Shares after such adjustment, a detailed statement of the facts
requiring such adjustment, and the computation by which such adjustment
was made,
5.4 Notice of Extraordinary Corporate Events.
In case the Company after the date hereof shall propose to (i)
distribute any dividend (whether stock or cash or otherwise) to the
holders of shares of Common Stock or to make any other distribution to
the holders of shares of Common Stock, (ii) offer to the holders of
shares of Common Stock rights to subscribe for or purchase any
additional shares of any class of stock or any other rights or options,
or (iii) effect any reclassification of the Common Stock (other than a
reclassification involving merely the subdivision or combination of
outstanding shares of Common Stock), any capital reorganization, any
amalgamation, arrangement or merger, any sale, transfer or other
disposition of all or substantially all of its property, assets and
business, or the liquidation, dissolution or winding up of the Company,
then, in each such case, the Company shall mail to each Warrant-holder
notice of such proposed action, which notice shall specify the date on
which (a) the books of the Company shall close, or (b) a record shall
be taken for determining the holders of Common Stock entitled to
receive such stock dividends or other distribution or such rights or
options, or (c) such reclassification, reorganization, amalgamation,
arrangement, merger, sale, transfer, other disposition, liquidation,
dissolution or winding up shall take place or commence, as the case may
be, and the date, if any, as of which it is expected that holders of
record of Common Stock shall be entitled to receive securities or other
property deliverable upon such action. Such notice shall be mailed in
the case of any action covered by clause (i) or (ii) above at least ten
days prior to the record date for determining holders of Common Stock
for
-6-
purposes of receiving such payment or offer, or in the case of any
action covered by clause (iii) above at least 30 days prior to the date
upon which such action takes place and at least 20 days prior to any
record date to determine holders of Common Stock entitled to receive
such securities or other property.
5.5 Effect of Failure to Notify.
Failure to file any certificate or notice or to mail any notice, or any
defect in any certificate or notice, pursuant to Sections 5.3 and 5.4
shall not affect the necessity of the adjustment to the Exercise Price,
the calculation of the number of shares purchasable upon exercise of
this Warrant, or the legality or validity of any transaction giving
rise thereto, without prejudicing the Warrant-holder's rights to seek
damages for such failure.
5.6 Other Dilutive Events.
In case the Company after the date of this Warrant shall take any
action affecting the Common Shares, other than action described in
Section 5.1, which in the opinion of the board of directors of the
Company would materially affect the rights of the Warrantholder, the
Exercise Price and/or the number of Warrant Shares purchasable upon
exercise of the Warrant shall be adjusted in such manner, if any, and
at such time, by action of the directors, in their sole discretion, as
they may determine to be equitable in the circumstances, provided,
however, that any such determination shall be subject to the written
consent of the TSE before it is effective. Failure to take action by
the directors so as to provide for an adjustment on or prior to the
effective date of any action by the Company affecting the Common Shares
shall be conclusive evidence that the board of directors of the Company
has determined that it is equitable to make no adjustment in the
circumstances.
6. Amendments.
Any provision of this Warrant may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the
Company and the Warrant-holder. Any amendment or waiver effected in
accordance with this Section 6 shall be binding upon such
Warrant-holder and the Company.
7. Definitions.
As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
Assignment Form: an Assignment Form in the form annexed hereto as
Exhibit B.
Business Day: any day other than a Saturday, Sunday or a day on which
national banks are authorized by law to close in the City of New York,
State of New York,
Common Stock: the meaning specified on the cover of this Warrant.
-7-
Company: the meaning specified on the cover of this Warrant.
Exercise Form: an Exercise Form in the form annexed hereto as Exhibit
A.
Exercise Price: the meaning specified on the cover of this Warrant.
Expiration Date: the meaning specified on the cover of this Warrant.
Fair Market Value: Fair Market Value of a share of Common Stock
(including any Warrant Share) as of a particular date (the
"Determination Date") shall mean:
(a) If the Common Stock is listed on the TSE, then the Fair Market
Value shall be the average of the last ten "daily sales
prices" of the Common Stock on the TSE on the last ten trading
days prior to the Determination Date, or if not listed on the
TSE, then the Fair Market Value shall be the average of the
last ten "daily sales prices" of the Common Stock on the
Over-The-Counter Bulletin Board on the last ten trading days
prior to the Determination Date. The "daily sales price" shall
be the weighted average price of the Common Stock determined
by dividing the aggregate sale price of all Common Stock sold
on the exchanges or in such market, as the case may be, during
such ten trading days by the total number of Common Stock so
sold; or
(b) If the Common Stock is not so listed or traded or if no such
sale is made on at least nine of such days, then the Fair
Market Value shall be the fair value as reasonably determined
in good faith by an independent, nationally-recognized (U.S.
or Canadian) investment banking firm reasonably acceptable to
the Warrant-holder (whose determination shall be conclusive
but subject to the written consent of the TSE before it is
effective).
Warrant-holder: the meaning specified on the cover of this Warrant.
Warrant Shares: the meaning specified on the cover of this Warrant.
8. Miscellaneous.
8.1 Entire Agreement.
This Warrant constitutes the entire agreement between the Company and
the Warrantholder with respect to the Warrants.
8.2 Binding Effects; Benefits.
This Warrant shall inure to the benefit of and shall be binding upon
the Company and the Warrant-holder and their respective heirs, legal
representatives, successors and assigns. Nothing in this Warrant,
expressed or implied, is intended to or shall confer on any person
other than the Company and the Warrant-holder, or their respective
heirs, legal representatives, successors or assigns, any rights,
remedies, obligations or liabilities under or by reason of this
Warrant.
-8-
8.3 Section and Other Headings.
The section and other headings contained in this Warrant are for
reference purposes only and shall not be deemed to be a part of this
Warrant or to affect the meaning or interpretation of this Warrant.
8.4 Pronouns.
All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require.
8.5 Notices.
All notices and other communications required or permitted to be given
under this Warrant shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by facsimile (with a copy
also sent by regular mail or overnight courier) or by recognized
overnight courier or by United States certified mail, postage prepaid,
return receipt requested, to the parties hereto at the following
addresses or to such other address as any party hereto shall hereafter
specify by notice to the other party hereto:
(a) if to the Company, addressed to:
Golden Star Resources Ltd.
10579 Bradford Road, Suite 103
Littleton, Colorado 80127-4247
Facsimile: (303) 830-9094
Attention: Chief Financial Officer
(b) if to the Warrant-holder or any subsequent transferee of
Warrants, addressed to the Warrant-holder at the address set
forth in the register of Warrant-holders.
Except as otherwise provided herein, all such notices and
communications shall be deemed to have been received on the date of
delivery thereof, if delivered personally, or on the third Business Day
after the mailing thereof.
8.6 Separability.
Any term or provision of this Warrant which is invalid or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such invalidity or unenforceability without rendering
invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or
provisions of this Warrant in any other jurisdiction.
8.7 Governing Law.
This Warrant shall be deemed to be a contract made under the laws of
Ontario, Canada and for all purposes shall be governed by and construed
in accordance with the laws of
-9-
such Province applicable to such agreements made and to be performed
entirely within such Province.
8.8 No Rights or Liabilities as Stockholder.
Nothing contained in this Warrant shall be determined as conferring
upon the Warrantholder any rights as a stockholder of the Company or as
imposing any liabilities on the Warrant-holder to purchase any
securities whether such liabilities are asserted by the Company or by
creditors or stockholders of the Company or otherwise.
8.9 Submission to Jurisdiction.
(a) The Company and Warrant-holder irrevocably submit to the
non-exclusive jurisdiction of any federal or provincial court
located in the City of Toronto in any suit or proceeding
arising out of or relating to the Warrants or the Warrant
Shares.
(b) To the extent that the Company or Warrant-holder has or
hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or
its property, it hereby irrevocably waives such immunity in
respect of its obligations under the above-referenced
documents, to the extent permitted by law.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly
authorized officer.
GOLDEN STAR RESOURCES LTD.
By: /s/ Peter Bradford
------------------
Name: Peter Bradford
--------------
Title: President and CEO
-----------------
Dated: September 11, 2001
-10-
Exhibit A
EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably (provided that the Warrant Shares are timely
delivered) elects to exercise the right, represented by this Warrant, to
purchase __________ of the Warrant Shares and herewith tenders payment for such
Warrant Shares to the order of Golden Star Resources Ltd. ("GSR") in the amount
of US$__________.
The undersigned will deliver the Warrant covering the Warrant Shares being
exercised hereunder to GSR in accordance with the terms of this Warrant. The
undersigned directs that a certificate for such Warrant Shares be registered as
follows:
___________________________________________________
Print Name of Registered Holder
___________________________________________________
Print Address of Registered Holder
___________________________________________________
Print City, State and Zip Code of Registered Holder
The undersigned directs that such certificates be delivered to _________________
whose address is___________________ .
Dated: __________________________
Signature __________________________
Print Name of Warrant-holder __________________________
Street Address of Warrant-holder __________________________
City, State and Zip Code of Warrant-holder __________________________
(The Company may require that the signature above be guaranteed, in which event
the following must be completed.)
_____________________________ ___________________________________________
Signature of Warrant-holder *Signature of Warrant-holder Guaranteed by:
NOTE: The signature to this exercise must correspond with the name as recorded
on the Warrant in every particular without alteration or enlargement or any
change whatever.
* Signature must be guaranteed by an authorized officer of a chartered bank
or a major trust company or by a medallion signature guarantee from a
member of a recognized medallion signature guarantee program, and in the
case of a corporate entity, an authority to sign.
-12-
Exhibit B
FORM OF ASSIGNMENT
(To be executed only upon transfer of this Warrant)
For value received, the undersigned registered holder of the within Warrant
hereby sells, assigns and transfers unto:
____________________________________________
Print Name of Transferee
____________________________________________
Print Address of Transferee
____________________________________________
Print City, State and Zip Code of Transferee
the right represented by such Warrant to purchase __________ common shares of
Golden Star Resources Ltd. ("GSR") to which such Warrant relates and all other
rights of the Warrant-holder under the within Warrant (to the extent of such
shares), and appoints ____________ Attorney to make such transfer on the books
of GSR maintained for such purpose, with full power of substitution in the
premises.
Dated: __________________________
Signature __________________________
Print Name of Registered Warrant-holder __________________________
Street Address of Registered Warrant-holder __________________________
City, State and Zip Code of Registered Warrant-holder __________________________
____________________________ ___________________________________________
Signature of Warrant-holder *Signature of Warrant-holder Guaranteed by:
NOTE: The signature to this transfer must correspond with the name as recorded
on the Warrant in every particular without alteration or enlargement or any
change whatever.
* Signature must be guaranteed by an authorized officer of a chartered bank
or a major trust company or by a medallion signature guarantee from a
member of a recognized medallion signature guarantee program, and in the
case of a corporate entity, an authority to sign.