EXHIBIT 4.5
AMENDED AND RESTATED
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
DATED AS OF AUGUST 1, 2003
BETWEEN
GEAC COMPUTER CORPORATION LIMITED
- AND -
COMPUTERSHARE TRUST COMPANY OF CANADA
AS RIGHTS AGENT
TABLE OF CONTENTS
PAGE
ARTICLE 1 - INTERPRETATION.............................................................. 2
1.1 Certain Definitions......................................................... 2
1.2 Currency.................................................................... 15
1.3 Number and Gender........................................................... 15
1.4 Descriptive Headings and References......................................... 15
1.5 Acting Jointly or in Concert................................................ 15
1.6 Holder...................................................................... 16
ARTICLE 2 - THE RIGHTS.................................................................. 16
2.1 Legend on Voting Share Certificates......................................... 16
2.2 Initial Exercise Price; Exercise of Rights; Detachment of Rights............ 16
2.3 Adjustments to Exercise Price; Number of Rights............................. 19
2.4 Date on Which Exercise is Effective......................................... 25
2.5 Execution, Authentication, Delivery and Dating of Rights Certificates....... 26
2.6 Registration, Registration of Transfer and Exchange......................... 26
2.7 Mutilated, Destroyed, Lost and Stolen Rights Certificates................... 27
2.8 Persons Deemed Owners....................................................... 28
2.9 Delivery and Cancellation of Certificates................................... 28
2.10 Agreement of Rights Holders................................................. 28
2.11 Rights Certificate Holder Not a Deemed Shareholder.......................... 29
ARTICLE 3 - ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF A FLIP-IN EVENT.................. 29
3.1 Flip-in Event............................................................... 29
ARTICLE 4 - THE RIGHTS AGENT............................................................ 31
4.1 General..................................................................... 31
4.2 Merger or Consolidation or Change of Name of Rights Agent................... 32
4.3 Duties of Rights Agent...................................................... 32
4.4 Change of Rights Agent...................................................... 34
ARTICLE 5 - MISCELLANEOUS............................................................... 35
5.1 Redemption of Rights........................................................ 35
5.2 Waiver of Flip-In Events.................................................... 36
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TABLE OF CONTENTS
(CONTINUED)
PAGE
5.3 Issuance of New Rights Certificates......................................... 36
5.4 Supplements and Amendments.................................................. 37
5.5 Fractional Rights and Fractional Shares..................................... 38
5.6 Rights of Action............................................................ 39
5.7 Notice of Proposed Actions.................................................. 39
5.8 Notices..................................................................... 39
5.9 Costs of Enforcement........................................................ 40
5.10 Successors.................................................................. 40
5.11 Benefits of this Agreement.................................................. 41
5.12 Governing Law............................................................... 41
5.13 Counterparts................................................................ 41
5.14 Severability................................................................ 41
5.15 Determinations and Actions by the Board of Directors........................ 41
5.16 Effective Date and Renewal.................................................. 41
5.17 Regulatory Approvals........................................................ 42
5.18 Declaration as to Foreign Holders........................................... 42
5.19 Time of the Essence......................................................... 42
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AMENDED AND RESTATED
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDER PROTECTION RIGHTS AGREEMENT dated as of
August 1, 2003 between GEAC COMPUTER CORPORATION LIMITED, a corporation
amalgamated under the Canada Business Corporations Act (the "CORPORATION"), and
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company incorporated under the
laws of Canada, as rights agent (the "RIGHTS AGENT", which term shall include
any successor Rights Agent hereunder) amends and restates an agreement made as
of the 15th day of March, 2000 (the "PRIOR PLAN") between the Corporation and a
predecessor of the Rights Agent.
WHEREAS the Board of Directors of the Corporation in 2000 determined that it was
advisable and in the best interests of the Corporation to adopt a shareholder
protection rights plan (the "RIGHTS PLAN") to ensure, to the extent possible,
that all shareholders of the Corporation are treated fairly in connection with
any take-over bid for Voting Shares (as hereinafter defined);
AND WHEREAS the Prior Plan was approved by the shareholders of the Corporation
on September 12, 2000 and is effective at the latest until the termination of
the annual meeting of the shareholders of the Corporation in 2003;
AND WHEREAS the Board of Directors of the Corporation has determined that it is
advisable and in the best interests of the Corporation to continue the Rights
Plan by adopting an amended and restated shareholder protection rights plan to
take effect immediately upon receipt of approval of the Independent Shareholders
to conform to current corporate practices to effect the continued distribution
of Rights under the Prior Plan as further amended and restated herein (the
"RIGHTS PLAN");
AND WHEREAS in order to continue implementation of the Rights Plan, the Board of
Directors has:
(a) confirmed distribution of one right (a "RIGHT") in respect of each
Common Share (as hereinafter defined) outstanding at the Record Time
(as hereinafter defined); and
(b) confirmed the issuance of one Right in respect of each Voting Share
issued after the Record Time and prior to the earlier of the Separation
Time (as hereinafter defined) and the Expiration Time (as hereinafter
defined);
AND WHEREAS each Right shall entitle the holder thereof, after the Separation
Time, to purchase securities of the Corporation pursuant to the terms and
subject to the conditions set forth herein;
AND WHEREAS the Rights Agent has agreed to act on behalf of the Corporation in
connection with the issuance, transfer, exchange and replacement of Rights
Certificates (as hereinafter defined), the exercise of Rights and other matters
referred to herein;
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NOW THEREFORE, in consideration of the premises and the respective agreements
set forth herein, the Corporation and the Rights Agent hereby agree as follows:
ARTICLE 1 - INTERPRETATION
1.1 CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
indicated:
"ACQUIRING PERSON" shall mean any Person who is the Beneficial Owner of
20% or more of the outstanding Voting Shares; provided, however, that
the term "ACQUIRING PERSON" shall not include:
(i) the Corporation or any Subsidiary of the Corporation;
(ii) any Person who becomes the Beneficial Owner of 20% or
more of the Voting Shares then outstanding as a
result of one or any combination of:
(A) a Voting Share Reduction which, by reducing
the number of Voting Shares outstanding,
increases the percentage of Voting Shares
Beneficially Owned by such Person to 20% or
more of the Voting Shares then outstanding,
(B) a Pro Rata Acquisition,
(C) a Permitted Bid Acquisition,
(D) an Exempt Acquisition, or
(E) a Convertible Security Acquisition,
provided, however, that if a Person becomes the Beneficial
Owner of 20% or more of the Voting Shares then outstanding by
reason of one or any combination of a Voting Share Reduction,
a Pro Rata Acquisition, a Permitted Bid Acquisition, an Exempt
Acquisition or a Convertible Security Acquisition and
thereafter becomes the Beneficial Owner of more than an
additional 1% of the outstanding Voting Shares (other than
pursuant to a Voting Share Reduction, a Pro Rata Acquisition,
a Permitted Bid Acquisition, an Exempt Acquisition or a
Convertible Security Acquisition), then as of the date that
such Person becomes the Beneficial Owner of such additional
Voting Shares, such Person shall become an Acquiring Person;
(iii) an underwriter or member of a banking or selling
group that becomes the Beneficial Owner of 20% or
more of the outstanding Voting Shares then
outstanding from the Corporation in connection with a
distribution of securities pursuant to a prospectus
or by way of private placement; and
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(iv) a Grandfathered Person, provided, however, that if
such Person shall thereafter become the Beneficial
Owner (other than pursuant to a Voting Share
Reduction, a Pro Rata Acquisition, a Permitted Bid
Acquisition, an Exempt Acquisition or a Convertible
Security Acquisition) of additional Voting Shares
constituting more than 1% of the number of Voting
Shares then outstanding, such Person shall become an
Acquiring Person as of the date and time of
acquisition of such additional Voting Shares.
"AFFILIATE", when used to indicate a relationship with a specified
corporation, shall mean a Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, such specified corporation.
"AGREEMENT" shall mean this amended and restated shareholder protection
rights agreement between the Corporation and the Rights Agent, as may
be amended, modified and/or supplemented or restated from time to time.
"ASSOCIATE", when used to indicate a relationship with a specified
Person, shall mean (i) a spouse of such specified Person, (ii) any
Person of either sex with whom such specified Person is living in a
conjugal relationship outside marriage, or (iii) any relative of such
specified Person or of a Person mentioned in Clause (i) or (ii) of this
definition if that relative has the same residence as the specified
Person.
"BENEFICIAL OWNER": a Person shall be deemed the "BENEFICIAL OWNER" and
to have "BENEFICIAL OWNERSHIP" of and to "BENEFICIALLY OWN":
(i) any securities of which such Person or any of such
Person's Affiliates or Associates is the owner at law
or in equity;
(ii) any securities as to which such Person or any of such
Person's Affiliates or Associates has the right to
become the owner at law or in equity, where such
right is exercisable within 60 days of the date of
the determination of Beneficial Ownership and whether
or not on condition or the occurrence of any
contingency or the making of any payment, upon the
exercise of any conversion right, exchange right or
purchase right attaching to Convertible Securities,
or pursuant to any agreement, arrangement, pledge or
understanding, written or oral (other than customary
agreements with and between underwriters and banking
group or selling group members with respect to a
distribution of securities pursuant to a prospectus
or by way of private placement and other than
pursuant to pledges of securities in the ordinary
course of business); and
(iii) any securities which are Beneficially Owned within
the meaning of Clause (i) or (ii) of this definition
by any other Person with which, and in respect of
which securities, such Person is acting jointly or in
concert;
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provided, however, that a Person shall not be deemed the "Beneficial
Owner" of, or to have "Beneficial Ownership" of, or to "Beneficially
Own", any security:
(iv) by reason of:
(A) such security having been deposited or
tendered pursuant to a Take-over Bid made by such
Person or any of such Person's Affiliates or
Associates or any other Person referred to in Clause
(iii) of this definition, until the earlier of such
deposited or tendered security being accepted
unconditionally for payment or exchange or being
taken up and paid for; or
(B) the holder of such security having agreed
pursuant to a Permitted Lock-up Agreement to
deposit or tender such security pursuant to
a Take-over Bid made by any such Person or
any of such Person's Affiliates or
Associates or any other Person referred to
in Clause (iii) of this definition;
(v) by reason of such Person, any of such Person's
Affiliates or Associates or any other Person referred
to in Clause (iii) of this definition holding such
security, provided, however, that:
(A) the ordinary business of the Person (in this
definition, a "MANAGER") includes the
management of mutual funds or investment
funds for others and such security is held
by the Manager in the ordinary course of
such business in the performance of such
Manager's duties for the account of any
other Person (in this definition, a
"CLIENT") including non-discretionary
accounts held on behalf of a Client by a
broker or dealer registered under applicable
law;
(B) the Person (in this definition, a "TRUST
COMPANY") is licensed to carry on the
business of a trust company under applicable
law and, as such, acts as a trustee or
administrator or in a similar capacity in
relation to the estates of deceased or
incompetent Persons (each, in this
definition, an "ESTATE ACCOUNT") or in
relation to other accounts (each, in this
definition, an "OTHER ACCOUNT") and holds
such security and is acting in the ordinary
course of such duties for the Estate Account
or for such Other Accounts;
(C) such Person is a Crown agent or agency (in
this definition, a "CROWN AGENT");
(D) the Person is established by statute for
purposes that include, and the ordinary
business or activity of such Person (in this
definition, a "STATUTORY BODY") includes,
the management of investment
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funds for employee benefit plans, pension
plans and insurance plans of various public
bodies and the Statutory Body holds such
security for the purposes of its activities
as such; or
(E) the Person (in this definition, an
"ADMINISTRATOR") is the administrator or
trustee of one or more pension funds or
plans (each, in this definition, a "PLAN")
registered under the laws of Canada or any
province thereof or the corresponding laws
of the jurisdiction by which such Plan is
governed or is such a Plan and the
Administrator or Plan holds such security
for the purposes of its activities as such;
but only if the Manager, the Trust Company, the Crown Agent,
the Statutory Body, the Administrator or the Plan, as the case
may be, is not then making and has not announced a current
intention to make a Take-over Bid, other than an Offer to
Acquire Voting Shares or other securities pursuant to a
distribution by the Corporation or by means of ordinary market
transactions (including prearranged trades entered into in the
ordinary course of business of such Person) executed through
the facilities of a stock exchange or an organized
over-the-counter market, alone or by acting jointly or in
concert with any other Person;
(vi) because such Person:
(A) is a Client of the same Manager as another
Person on whose account the Manager holds
such security;
(B) has an Estate Account or an Other Account
with the same Trust Company as another
Person on whose account the Trust Company
holds such security; or
(C) is a Plan with the same Administrator as
another Plan on whose account the
Administrator holds such security;
(vii) because such Person:
(A) is a Client of a Manager and such security
is owned at law or in equity by the Manager;
(B) has an Estate Account or an Other Account
with a Trust Company and such security is
owned at law or in equity by the Trust
Company; or
(C) is a Plan and such security is owned at law
or in equity by the Administrator of the
Plan; or
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(viii) because such Person is the registered holder of such
security as a result of carrying on the business of,
or acting as nominee for, a securities depositary.
"BOARD OF DIRECTORS" shall mean the board of directors of the
Corporation.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in Toronto, Ontario are authorized or
obliged by law to close.
"CANADA BUSINESS CORPORATIONS ACT" shall mean the Canada Business
Corporations Act, R.S.C. 1985, c.C-44, as amended, and the regulations
made thereunder and any comparable or successor laws or regulations
thereto.
"CLOSE OF BUSINESS" on any given date shall mean the time on such date
(or, if such date is not a Business Day, the time on the next
succeeding Business Day) at which the office of the transfer agent for
the Common Shares in Toronto, Ontario (or, after the Separation Time,
the office of the Rights Agent in Toronto, Ontario) is closed to the
public.
"COMMON SHARES" shall mean the common shares in the capital of the
Corporation.
"COMPETING PERMITTED BID" shall mean a Take-over Bid that:
(i) is made after a Permitted Bid or another Competing
Permitted Bid has been made and prior to the expiry
of that Permitted Bid or Competing Permitted Bid (in
this definition, the "PRIOR BID");
(ii) satisfies all the provisions of the definition of a
Permitted Bid other than the requirements set out in
Clauses (ii)(A) and (D) of the definition of
Permitted Bid; and
(iii) contains, and the take-up and payment for securities
tendered or deposited thereunder are subject to,
irrevocable and unqualified conditions that:
(A) no Voting Shares shall be taken up or paid
for pursuant to the Take-over Bid (x) prior
to the Close of Business on a date that is
not less than the later of 35 days after the
Offer Date of such Take-over Bid and 60 days
after the Offer Date of the earliest Prior
Bid then in existence, and (y) then only if,
at the Close of Business on the date Voting
Shares are first taken up or paid for under
such Take-over Bid, more than 50% of the
then outstanding Voting Shares held by
Independent Shareholders have been deposited
or tendered pursuant to such Take-over Bid
and not withdrawn; and
(B) in the event that the requirement set forth
in Subclause (iii)(A)(y) of this definition
is satisfied, the Offeror will make a public
announcement of that fact and the Take-over
Bid will remain open
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for deposits and tenders of Voting Shares
for not less than 10 Business Days from the
date of such public announcement.
"CONTROLLED": a body corporate is "CONTROLLED" by another Person or two
or more Persons acting jointly or in concert if:
(i) securities entitled to vote in the election of
directors carrying more than 50% of the votes for the
election of directors are held, directly or
indirectly, by or on behalf of the other Person or
two or more Persons acting jointly or in concert; and
(ii) the votes carried by such securities are entitled, if
exercised, to elect a majority of the board of
directors of such body corporate;
and "CONTROLS", "CONTROLLING" and "UNDER COMMON CONTROL WITH" shall be
interpreted accordingly.
"CONVERTIBLE SECURITIES" shall mean at any time any securities issued
by the Corporation (including rights, warrants and options but
excluding the Rights) carrying any purchase, exercise, conversion or
exchange right, pursuant to which the holder thereof may acquire Voting
Shares or other securities convertible into or exercisable or
exchangeable for Voting Shares (in each case, whether such right is
exercisable immediately or after a specified period and whether or not
on condition or the happening of any contingency).
"CONVERTIBLE SECURITY ACQUISITION" shall mean the acquisition of Voting
Shares upon the exercise, conversion or exchange of Convertible
Securities acquired by a Person pursuant to a Permitted Bid
Acquisition, an Exempt Acquisition or a Pro Rata Acquisition.
"CO-RIGHTS AGENT" shall have the meaning attributed thereto in
Subsection 4.1(a).
"ELECTION TO EXERCISE" shall have the meaning attributed thereto in
Subsection 2.2(d).
"EXEMPT ACQUISITION" shall mean an acquisition of Voting Shares and/or
Convertible Securities (i) in respect of which the Board of Directors
has waived the application of Section 3.1 pursuant to the provisions of
Section 5.2, (ii) pursuant to a distribution of Voting Shares and/or
Convertible Securities made by the Corporation (a) to the public
pursuant to a prospectus (provided the purchaser does not thereby
become the Beneficial Owner of a greater percentage of Voting Shares
and/or Convertible Securities Beneficially Owned by such purchaser
immediately prior to such distribution) or (b) pursuant to a securities
exchange take-over bid circular or (c) a distribution by way of a
private placement provided that (x) all necessary stock exchange
approvals for any distribution made pursuant to a private placement
have been obtained and such private placement complies with the terms
and conditions of such approvals, and (y) the purchaser does not, in
the case of either a securities exchange take-over bid or private
placement, thereby become the Beneficial Owner of Voting Shares equal
in number to
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more than 25% of the Voting Shares outstanding immediately prior to the
private placement, and in making this determination, the securities to
be issued to such purchaser on the private placement shall be deemed to
be held by such purchaser but shall not be included in the aggregate
number of outstanding Voting Shares immediately prior to the private
placement, or (iii) pursuant to an amalgamation, merger or other
statutory procedure requiring shareholder approval.
"EXERCISE PRICE" shall mean, as of any date, the price at which a
holder may purchase the securities issuable upon exercise of one whole
Right in accordance with the terms hereof and, subject to adjustment
thereof in accordance with the terms hereof, the Exercise Price shall
be:
(i) until the Separation Time, an amount equal to three
times the Market Price, from time to time, per Common
Share; and
(ii) from and after the Separation Time, an amount equal
to three times the Market Price, as at the Separation
Time, per Common Share.
"EXPANSION FACTOR" shall have the meaning attributed thereto in
Subsection 2.3(b)(x).
"EXPIRATION TIME" shall mean the earlier of:
(i) the Termination Time; and
(ii) the termination of the annual meeting of the
shareholders of the Corporation in 2006;
or if the continued existence of this Agreement is ratified at such
annual meeting by resolution passed by a majority of the votes cast by
Independent Shareholders who vote in respect thereof in accordance with
Section 5.16(b), shall mean the earlier of the Termination Time and the
termination of the annual meeting of shareholders of the Corporation in
2009.
"FLIP-IN EVENT" shall mean a transaction in which any Person becomes an
Acquiring Person.
"GRANDFATHERED PERSON" shall mean any Person who is the Beneficial
Owner of 20% or more of the outstanding Voting Shares at the date
hereof.
"HOLDER" shall have the meaning attributed thereto in Section 1.6.
"INDEPENDENT SHAREHOLDERS" shall mean holders of Voting Shares, other
than (i) any Acquiring Person, (ii) any Offeror, (iii) any Affiliate or
Associate of any Acquiring Person or Offeror, (iv) any Person acting
jointly or in concert with any Acquiring Person or Offeror, and (v) any
employee benefit plan, deferred profit sharing plan, stock
participation plan or trust for the benefit of employees of the
Corporation or a wholly-
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owned Subsidiary of the Corporation, unless the beneficiaries of such
plan or trust direct the manner in which such Voting Shares are to be
voted or direct whether the Voting Shares are to be tendered to a
Take-over Bid.
"MARKET PRICE" per security of any securities on any date shall mean
the average of the daily closing prices per security of such securities
(determined as described below) on each of the 20 consecutive Trading
Days through and including the Trading Day immediately preceding such
date; provided, however, that if an event of a type analogous to any of
the events described in Section 2.3 shall have caused the closing
prices used to determine the Market Price on any Trading Day not to be
fully comparable with the closing price on such date of determination
(or, if the date of determination is not a Trading Day, on the
immediately preceding Trading Day), each such closing price so used
shall be appropriately adjusted in a manner analogous to the applicable
adjustment provided for in Section 2.3 in order to make it fully
comparable with the closing price on such date of determination (or, if
the date of determination is not a Trading Day, on the immediately
preceding Trading Day). The closing price per security of any
securities on any date shall be:
(i) the closing board lot sale price or, in case no such
sale takes place on such date, the average of the
closing bid and asked prices for each such security
as reported by the principal Canadian stock exchange
on which such securities are listed or admitted to
trading;
(ii) if for any reason none of the prices described in
Clause (i) above are available for such date or the
securities are not listed or admitted to trading on a
Canadian stock exchange, the last sale price or, if
such price is not available, the average of the
closing bid and asked prices, for each such security
on such date as reported by such other securities
exchange on which such securities are listed or
admitted to trading;
(iii) if for any reason none of the prices described in
Clauses (i) and (ii) above are available for such
(late or the securities are not listed or admitted to
trading on a Canadian stock exchange or any other
securities exchange, the last sale price, or if no
sale takes place, the average of the high bid and low
asked prices for each such security on such date in
the over-the-counter market, as quoted by any
reporting system then in use (as determined by the
Board of Directors); or
(iv) if for such date none of the prices described in
Clauses (i), (ii) and (iii) above are available or
the securities are not listed or admitted to trading
on a Canadian stock exchange or any other securities
exchange and are not quoted by any such reporting
system, the average of the closing bid and asked
prices for such date as furnished by a professional
market maker making a market in the securities
selected in good faith by the Board of Directors;
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provided, however, that if on any such date none of such prices is
available, the closing price per security of such securities on such
date shall mean the fair value per security of such securities on such
date as determined in good faith by a recognized investment banking
firm selected by the Board of Directors.
"OFFER DATE" shall mean the date of a Take-over Bid.
"OFFER TO ACQUIRE" shall include:
(i) an offer to purchase, or a solicitation of an offer
to sell, Voting Shares and/or Convertible Securities;
and
(ii) an acceptance of an offer to sell Voting Shares
and/or Convertible Securities, whether or not such
offer to sell has been solicited;
or any combination thereof, and the Person accepting an offer to sell
shall be deemed to be making an Offer to Acquire to the Person that
made the offer to sell.
"OFFEROR" shall mean a Person who has announced an intention to make or
who is making a Take-over Bid (including a Permitted Bid or Competing
Permitted Bid but excluding an Offer to Acquire Voting Shares or other
securities of the Corporation made by a Manager, Trust Company, Crown
Agent, Statutory Body, Administrator or Plan referred to in Clause
11.1(v) of the definition of Beneficial Owner pursuant to a
distribution by the Corporation or by means of ordinary market
transactions (including pre-arranged trades entered into in the
ordinary course of business of such Person) in the circumstances
contemplated in said Clause 1.1(v)) but only for so long as the
Take-over Bid so announced or made has not been withdrawn or terminated
and has not expired.
"OFFEROR'S SECURITIES" shall mean the aggregate of the Voting Shares
Beneficially Owned on the date of an Offer to Acquire by an Offeror.
"PERMITTED BID" shall mean a Take-over Bid that is made by means of a
take-over bid circular and that also complies with the following
additional provisions:
(i) the Take-over Bid is made to all holders of Voting
Shares; and
(ii) the Take-over Bid shall contain, and the take-up and
payment for securities tendered or deposited
thereunder shall be subject to, irrevocable and
unqualified conditions that:
(A) no Voting Shares shall be taken up or paid
for pursuant to the Take-over Bid (x) prior
to the Close of Business on a date that is
not less than 60 days following the Offer
Date, and (y) then only if, at the Close of
Business on the date Voting Shares are first
taken up or paid for under the Take-over
Bid, more than 50% of the then outstanding
Voting Shares held by Independent
Shareholders have
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been deposited or tendered pursuant to the
Take-over Bid and not withdrawn;
(B) Voting Shares may be deposited pursuant to
such Take-over Bid, unless such Take-over
Bid is withdrawn, at any time prior to the
Close of Business on the date Voting Shares
are first taken up or paid for under the
Take-over Bid;
(C) any Voting Shares deposited pursuant to the
Take-over Bid may be withdrawn until taken
up and paid for; and
(D) in the event that the requirement set forth
in Subclause (ii)(A)(y) of this definition
is satisfied, the Offeror will make a public
announcement of that fact and the Take-over
Bid will remain open for deposits and tender
of Voting Shares for not less than 10
Business Days from the date of such public
announcement.
"PERMITTED BID ACQUISITION" shall mean an acquisition of Voting Shares
and/or Convertible Securities made pursuant to a Permitted Bid or a
Competing Permitted Bid.
"PERMITTED LOCK-UP AGREEMENT" shall mean an agreement between a Person
and one or more holders of Voting Shares and/or Convertible Securities
(each a "LOCKED-UP PERSON") (the terms of which are publicly disclosed
and a copy of which is made available to the public (including the
Corporation) not later than the date the Lock-up Bid (as defined below)
is publicly announced or, if the Lock-up Bid has been made prior to the
date on which such agreement is entered into forthwith, and in any
event, not later than the Business Day following the date of such
agreement), pursuant to which each such Locked-up Person agrees to
deposit or tender Voting Shares and/or Convertible Securities to a
Take-over Bid (the "LOCK-UP BID") made or to be made by the Person or
any of such Person's Affiliates or Associates or any other Person
referred to in Clause (iii) of the definition of Beneficial Owner,
provided, however, that:
(i) the agreement permits any Locked-up Person to
terminate its obligation to deposit or tender to or
not to withdraw Voting Shares and/or Convertible
Securities from the Lock-up Bid in order to tender or
deposit such securities to another Take-over Bid or
support another transaction:
(A) where the price or value per Voting Share or
Convertible Security offered under such
other Take-over Bid or transaction is higher
than the price or value per Voting Share or
Convertible Security offered under the
Lock-up Bid; or
(B) if,
(a) the price or value per Voting Share
or Convertible Security offered
under the other Take-over Bid or
transaction
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exceeds by as much as or more than
a specified amount (the "SPECIFIED
AMOUNT") the price or value per
Voting Share or Convertible
Security offered under the Lock-up
Bid, provided that such Specified
Amount is not greater than 7% of
the price or value per Voting Share
or Convertible Security offered
under the Lock-up Bid; or
(b) the number of Voting Shares and/or
Convertible Securities to be
purchased under the other Take-over
Bid or transaction exceeds by as
much as or more than a specified
number (the "SPECIFIED NUMBER") the
number of Voting Shares and/or
Convertible Securities that the
Offeror has offered to purchase
under the Lock-up Bid at a price or
value per Voting Share or
Convertible Security that is not
less than the price or value per
Voting Share or Convertible
Security offered under the Lock-up
Bid, provided that the Specified
Number is not greater than 7% of
the number of Voting Shares and/or
Convertible Securities offered
under the Lock-up Bid;
and, for greater clarity, the agreement may contain a right of first
refusal or require a period of delay to give such Person an opportunity
to match a higher price in another Take-over Bid or transaction or
other similar limitation on a Locked-up Person's right to withdraw
Voting Shares and/or Convertible Securities from the agreement, so long
as the limitation does not preclude the exercise by the Locked-up
Person of the right to withdraw Voting Shares and/or Convertible
Securities during the period of the other Take-over Bid or transaction;
and
(ii) no "break-up" fees, "top-up" fees, penalties,
expenses or other amounts that exceed in the
aggregate the greater of:
(A) the cash equivalent of 2.5% of the price or
value payable under the Lock-up Bid to a
Locked-up Persons; and
(B) 50% of the amount by which the price or
value payable under another Take-over Rid or
transaction to a Locked-up Person exceeds
the price or value of the consideration that
such Locked-up Person would have received
under the Lock-up Bid,
shall be payable by a Locked-up Person pursuant to the
agreement in the event a Locked-up Person fails to deposit or
tender Voting Shares and/or Convertible Securities to the
Lock-up Bid, withdraws Voting Shares and/or Convertible
Securities previously tendered thereto in order to tender to
another Take-over Bid or support another transaction.
- 13 -
"PERSON" shall include any individual, firm, partnership, syndicate,
association, trust, trustee, executor, administrator, legal personal
representative, government, governmental body or authority, corporation
or other incorporated or unincorporated organization.
"PRO RATA ACQUISITION" shall mean an acquisition by a Person of Voting
Shares and/or Convertible Securities (i) as a result of a stock
dividend, a stock split or other event pursuant to which such Person
receives or acquires Voting Shares and/or Convertible Securities on the
same pro rata basis as all other holders of Voting Shares and/or
Convertible Securities of the same class or series of the Corporation;
(ii) pursuant to a regular dividend reinvestment or other plan of the
Corporation made available by the Corporation to the holders of Voting
Shares where such plan permits the holder to direct that the dividends
paid in respect of such Voting Shares be applied to the purchase from
the Corporation of further securities of the Corporation; or (iii)
pursuant to the receipt and/or exercise of rights (other than the
Rights) issued by the Corporation to all of the holders of a series or
class of Voting Shares on a pro rata basis to subscribe for or purchase
Voting Shares and/or Convertible Securities, provided that such rights
are acquired directly from the Corporation and not from any other
Person and provided further that the Person does not thereby acquire a
greater percentage of such Voting Shares, or securities convertible or
exchangeable for Voting Shares of that class, than the Person's
percentage of Voting Shares Beneficially Owned immediately prior to
such acquisition.
"RECORD TIME" shall mean 5:00 p.m. (Toronto time) on March 15, 2000.
"REDEMPTION PRICE" shall have the meaning attributed thereto in
Subsection 5.1(a).
"REGULAR PERIODIC CASH DIVIDEND" shall have the meaning attributed
thereto in Subsection 2.3(d).
"RIGHTS" shall mean the herein described rights to purchase securities
pursuant to the terms and subject to the conditions set forth herein.
"RIGHTS CERTIFICATE" shall mean the certificates representing the
Rights after the Separation Time which shall be substantially in the
form attached hereto as Exhibit A or such other form as the Corporation
and the Rights Agent may agree.
"RIGHTS REGISTER" and "RIGHTS REGISTRAR" shall each have the meaning
attributed thereto in Subsection 2.6(a).
"SECURITIES ACT (ONTARIO)" shall mean the Securities Act, R.S.O. 1990,
c.S-5, as amended, and the regulations made thereunder and any
comparable or successor laws or regulations thereto.
"SEPARATION TIME" shall mean the Close of Business on the tenth Trading
Day after the earliest of:
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(i) the Stock Acquisition Date; and
(ii) the date of the commencement of, or first public
announcement of the intent of any Person (other than
the Corporation or any Subsidiary of the Corporation)
to commence, a Take-over Bid (other than a Permitted
Bid or Competing Permitted Bid);
or such later date as may be determined by the Board of
Directors in good faith, provided, however, that if any
Take-over Bid referred to in Clause (ii) above expires or is
cancelled, terminated or otherwise withdrawn prior to the
Separation Time, such Take-Over Bid shall be deemed, for the
purposes of this definition, never to have been made.
"STOCK ACQUISITION DATE" shall mean the first date of public
announcement (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to Section 101 of the
Securities Act (Ontario)) by the Corporation or an Acquiring Person of
facts indicating that an Acquiring Person has become such.
"SUBSIDIARY": a body corporate is a Subsidiary of another body
corporate if:
(i) it is controlled by (A) that other, or (B) that other
and one or more bodies corporate, each of which is
controlled by that other, or (C) two or more bodies
corporate, each of which is controlled by that other;
or
(ii) it is a Subsidiary of a body corporate that is that
other's Subsidiary.
"TAKE-OVER BID" shall mean an Offer to Acquire Voting Shares and/or
Convertible Securities, where the Voting Shares subject to the Offer to
Acquire together with the Voting Shares which the securities subject to
the Offer to Acquire are convertible into, exchangeable for or
otherwise entitled to acquire and the Offeror's Securities, constitute
in the aggregate 20% or more of the outstanding Voting Shares at the
date of the Offer to Acquire.
"TERMINATION TIME" shall mean the time at which the right to exercise
Rights shall terminate pursuant to Section 5.1 or Section 5.16.
"TRADING DAY", when used with respect to any securities, shall mean a
day on which the principal Canadian securities exchange on which such
securities are listed or admitted to trading is open for the
transaction of business or, if the securities are not listed or
admitted to trading on any Canadian securities exchange, a Business
Day.
"VOTING SHARE REDUCTION" shall mean an acquisition or a redemption by
the Corporation of Voting Shares.
"VOTING SHARES" shall mean collectively the Common Shares and any other
shares in the capital stock or voting interests of the Corporation
entitled to vote generally in the election of directors. For the
purposes of this Agreement, the percentage of Voting Shares
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Beneficially Owned by any Person shall be and be deemed to be the
product determined by the formula:
100 x A
--
B
where
A = the number of votes for the election of all directors
generally attaching to the Voting Shares Beneficially Owned
by such Person; and
B = the number of votes for the election of all directors
generally attaching to all outstanding Voting Shares.
Where any Person is deemed to Beneficially Own unissued Voting Shares,
such Voting Shares shall be deemed to be outstanding for the purposes
of both A and B above, but no other unissued Voting Shares shall, for
the purposes of such calculation, be deemed to be outstanding.
1.2 CURRENCY
All sums of money which are referred to in this Agreement are expressed
in lawful money of Canada, unless otherwise specified.
1.3 NUMBER AND GENDER
Wherever the context so requires, terms used herein importing the
singular number only shall include the plural and vice versa and words importing
any one gender shall include all others.
1.4 DESCRIPTIVE HEADINGS AND REFERENCES
Descriptive headings and the Table of Contents appear herein for
convenience of reference only and shall not affect the meaning or construction
of any of the provisions hereof. All references to Articles, Sections,
Subsections, Clauses and Exhibits are to the articles, sections, subsections,
clauses and exhibits forming part of this Agreement unless otherwise indicated.
The words "hereto", "herein", "hereof", "hereunder", "this Agreement" and
similar expressions refer to this Agreement including the Exhibits, as the same
may be amended, modified or supplemented from time to time.
1.5 ACTING JOINTLY OR IN CONCERT
For purposes of this Agreement, a Person is acting jointly or in
concert with every other Person who is a party to any agreement, commitment or
understanding, whether formal or informal and whether or not in writing, with
the first mentioned Person to acquire or Offer to Acquire Voting Shares (other
than customary agreements with and between underwriters and/or banking group
and/or selling group members with respect to a distribution of securities
pursuant
- 16 -
to a prospectus or by way of private placement and other than pursuant to
pledges of securities in the ordinary course of business).
1.6 HOLDER
As used in this Agreement, unless the context otherwise requires, the
term "HOLDER" of any Rights shall mean the registered holder of such Rights (or,
prior to the Separation Time, of the associated Common Shares).
ARTICLE 2 - THE RIGHTS
2.1 LEGEND ON VOTING SHARE CERTIFICATES
Voting Share certificates issued after the Record Time and prior to the
Close of Business on the earlier of the Separation Time and the Expiration Time
shall evidence one Right for each Voting Share represented thereby and shall
have impressed on, printed on, written on or otherwise affixed to them a legend,
substantially in the following form:
"Until the Separation Time (as such term is defined in the Shareholder
Protection Rights Agreement referred to below), this certificate also
evidences and entitles the holder hereof to certain Rights as set forth
in the Amended and Restated Shareholder Protection Rights Agreement
dated as of August 1, 2003 as amended from time to time (the "Rights
Agreement") between GEAC COMPUTER CORPORATION LIMITED (the
"Corporation") and COMPUTERSHARE TRUST COMPANY OF CANADA, as Rights
Agent, the terms of which are hereby incorporated herein by reference
and a copy of which is on file and may be inspected during normal
business hours at the head office of the Corporation. In certain
circumstances, as set forth in the Rights Agreement, such Rights may be
amended, may be redeemed, may expire, may become void or may be
evidenced by separate certificates and may no longer be evidenced by
this certificate. The Corporation will mail or arrange for the mailing
of a copy of the Rights Agreement to the holder of this certificate
without charge promptly after the receipt of a written request
therefor."
Certificates representing Voting Shares that are issued and outstanding at the
Record Time shall also evidence one Right for each Voting Share evidenced
thereby, notwithstanding the absence of the foregoing legend, until the earlier
of the Separation Time and the Expiration Time.
2.2 INITIAL EXERCISE PRICE; EXERCISE OF RIGHTS; DETACHMENT OF RIGHTS
(a) Subject to adjustment as herein set forth, each Right will
entitle the holder thereof, from and after the Separation Time and
prior to the Expiration Time, to purchase one Common Share for the
Exercise Price (which Exercise Price and number of Common Shares are
subject to adjustment as set forth below). Notwithstanding any other
provision of this Agreement, any Rights held by the Corporation or any
of its Subsidiaries shall be void.
- 17 -
(b) Until the Separation Time, (i) the Rights shall not be
exercisable and no Right may be exercised, and (ii) for administrative
purposes, each Right will be evidenced by the certificate for the
associated Voting Share registered in the name of the holder thereof
(which certificate shall be deemed to represent a Rights Certificate)
and will be transferable only together with, and will be transferred by
a transfer of, such associated Voting Share.
(c) From and after the Separation Time and prior to the Expiration
Time, the Rights may be exercised and the registration and transfer of
the Rights shall be separate from and independent of Voting Shares.
Promptly following the Separation Time, the Corporation will prepare
and the Rights Agent will mail to each holder of record of Voting
Shares as of the Separation Time (other than an Acquiring Person, any
other Person whose Rights are or become void pursuant to the provisions
of Subsection 3.1(b) and, in respect of any Rights Beneficially Owned
by such Acquiring Person which are not held of record by such Acquiring
Person, the holder of record of such Rights), at such holder's address
as shown by the records of the Corporation (the Corporation hereby
agreeing to furnish copies of such records to the Rights Agent for this
purpose):
(i) a Rights Certificate in substantially the form set
out in Exhibit "A" hereto, appropriately completed,
representing the number of Rights held by such holder
at the Separation Time and having such marks of
identification or designation and such legends,
summaries or endorsements printed thereon as the
Corporation may deem appropriate and as are not
inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with
any rule or regulation or judicial or administrative
order made pursuant thereto or with any rule or
regulation of any self-regulatory organization, stock
exchange or quotation system on which the Rights may
from time to time be listed or traded, or to conform
to usage; and
(ii) a disclosure statement prepared by the Corporation
describing the Rights;
provided, however, that a nominee shall be sent the materials provided
for in Clauses (i) and (ii) above in respect of all Voting Shares held
of record by it which are not Beneficially Owned by an Acquiring
Person. In order for the Corporation to determine whether any Person is
holding Voting Shares which are Beneficially-Owned by another Person,
the Corporation may require such first-mentioned Person to furnish such
information and documentation as the Corporation deems necessary or
appropriate to make such determination.
(d) Rights may be exercised in whole or in part on any Business
Day after the Separation Time and prior to the Expiration Time by
submitting to the Rights Agent at its office in Toronto, Ontario or,
with the approval of the Rights Agent, at any other office of the
Rights Agent in the cities designated from time to time for that
purpose by the Corporation:
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(i) the Rights Certificate evidencing such Rights with an
election to exercise (an "ELECTION TO EXERCISE")
substantially in the form attached to the Rights
Certificate appropriately completed and duly executed
by the holder or his executors or administrators or
other personal representatives or his legal attorney
duly appointed by an instrument in writing in form
and executed in a manner satisfactory to the Rights
Agent; and
(ii) payment by certified cheque, banker's draft or money
order payable to the order of the Rights Agent, of a
sum equal to the Exercise Price multiplied by the
number of Rights being exercised and a sum sufficient
to cover any transfer tax or charge which may be
payable in respect of the transfer or delivery of
Rights Certificates or the issuance or delivery of
certificates for Voting Shares in a name other than
that of the holder of the Rights being exercised.
(e) Upon receipt of a Rights Certificate, with a completed
Election to Exercise appropriately completed and duly executed which
does not indicate that such Right is null and void as provided by
Subsection 3.1(b), accompanied by payment as set forth in Clause
2.2(d)(ii), the Rights Agent (unless otherwise instructed in writing by
the Corporation) will thereupon promptly:
(i) requisition from the transfer agent of the Common
Shares certificates for the number of Common Shares
to be purchased (the Corporation hereby irrevocably
agreeing to authorize its transfer agent to comply
with all such requisitions);
(ii) after receipt of such certificates referred to in
Clause 2.2(e)(i), deliver such certificates to or
upon the order of the registered holder of such
Rights Certificate, registered in such name or names
as may be designated by such holder,
(iii) when appropriate, requisition from the Corporation
the amount of cash to be paid in lieu of issuing
fractional Common Shares or fractional Right;
(iv) after receipt, deliver such cash referred to in
Clause 2.2(e)(iii) to or to the order of the
registered holder of the Rights Certificate; and
(v) tender to the Corporation all payments received on
exercise of the Rights.
(f) In case the holder of any Rights shall exercise less than all
the Rights evidenced by such holder's Rights Certificate, a new Rights
Certificate evidencing the Rights remaining unexercised will be issued
by the Rights Agent to such holder or to such holder's duly authorized
assigns.
(g) The Corporation covenants and agrees that it will:
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(i) take all such action as may be necessary and within
its power to ensure that all securities delivered
upon exercise of Rights shall, at the time of
delivery of the certificates for such securities
(subject to payment of the Exercise Price), be duly
and validly authorized, executed, issued and
delivered as fully paid and non-assessable;
(ii) take all such action as may be necessary and within
its power to comply with any applicable requirements
of the Canada Business Corporations Act, the
Securities Act (Ontario) and the securities statute
or comparable legislation of each of the other
provinces and territories of Canada, and other
applicable securities laws and the rules and
regulations thereunder, and any other applicable law,
rule or regulation, in connection with the issuance
and delivery of the Rights Certificates and the
issuance of any Common Shares upon exercise of
Rights;
(iii) use reasonable efforts to cause all Common Shares
issued upon exercise of Rights to be listed upon
issuance on The Toronto Stock Exchange and each other
stock exchange on which the Common Shares are then
listed or admitted to trading at that time;
(iv) pay when due and payable any and all Canadian and
United States federal, provincial and state transfer
taxes (not in the nature of income or withholding
taxes) and charges which may be payable in respect of
the original issuance or delivery of the Rights
Certificates or certificates for Common Shares,
provided that the Corporation shall not be required
to pay any transfer tax or charge which may be
payable in respect of the transfer or delivery of
Rights Certificates or the issuance or delivery of
certificates for Common Shares in a name other than
that of the holder of the Rights being transferred or
exercised; and
(v) cause to be reserved and kept available out of its
authorized and unissued Common Shares, the number of
Common Shares that, as provided in this Agreement,
will from time to time be sufficient to permit the
exercise in full of all outstanding Rights.
2.3 ADJUSTMENTS TO EXERCISE PRICE; NUMBER OF RIGHTS
(a) The Exercise Price, the number and kind of securities subject
to purchase upon exercise of each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in
this Section 2.3.
(b) In the event the Corporation shall at any time after the
Record Time and prior to the Expiration Time:
(i) declare or pay a dividend on the Common Shares of the
Corporation payable in Common Shares or other capital
stock of the Corporation (or
- 20 -
securities exchangeable for or convertible into or
giving a right to acquire Common Shares) other than
pursuant to any optional stock dividend program;
(ii) subdivide or change the then outstanding Common
Shares into a greater number of Common Shares;
(iii) consolidate or change the then outstanding Common
Shares into a smaller number of Common Shares; or
(iv) issue any Common Shares or other capital stock of the
Corporation (or securities exchangeable for or
convertible into or giving a right to acquire Common
Shares) in respect of, in lieu of, or in exchange for
existing Common Shares;
the Exercise Price and the number of Rights outstanding or, if the
payment or effective date therefor shall occur after the Separation
Time, the securities purchasable upon exercise of Rights shall be
adjusted in the manner set forth below.
If the Exercise Price and number of Rights outstanding are to be
adjusted:
(x) the Exercise Price in effect after such adjustment
will be equal to the Exercise Price in effect
immediately prior to such adjustment divided by the
number of Common Shares (the "EXPANSION FACTOR") that
a holder of one Common Share immediately prior to
such dividend, subdivision, change, consolidation or
issuance would hold thereafter as a result thereof
(assuming the exercise of all such exchange,
conversion or acquisition rights, if any); and
(y) each Right held prior to such adjustment will become
that number of Rights equal to the Expansion Factor
and the adjusted number of Rights will be deemed to
be distributed among the Common Shares with respect
to which the original Rights were associated (if they
remain outstanding) and the Common Shares issued or
issuable in respect of such dividend, subdivision,
change, consolidation or issuance, so that each such
Common Share will have exactly one Right associated
with it.
For greater certainty, if the securities purchasable upon exercise of
Rights are to be adjusted, the securities purchasable upon exercise of
each Right after such adjustment will be the securities that a holder
of the securities purchasable upon exercise of one Right immediately
prior to such dividend, subdivision, change, consolidation or issuance
would hold thereafter as a result thereof. To the extent that such
rights of exchange, conversion or acquisition are not exercised prior
to the expiration thereof, the Exercise Price shall be readjusted to
the Exercise Price which would then be in effect based on the number of
Common Shares (or securities convertible into or exchangeable for
Common Shares) actually issued upon the exercise of such rights.
- 21 -
If after the Record Time and prior to the Expiration Time the
Corporation shall issue any shares of capital stock other than Common
Shares in a transaction of a type described in Clause 2.3(b)(i) or
(iv), shares of such capital stock shall be treated herein as nearly
equivalent to Common Shares as may be practicable and appropriate under
the circumstances and the Corporation and the Rights Agent shall amend
this Agreement in order to effect such treatment.
If an event occurs which would require an adjustment under both this
Section 2.3 and Section 3.1, the adjustment provided for in this
Section 2.3 shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 3.1.
If the Corporation shall at any time after the Record Time and prior to
the Separation Time issue any Common Shares otherwise than in a
transaction referred to in this Subsection 2.3(b), each such Common
Share so issued shall automatically have one new Right associated with
it, which Right shall be evidenced by the certificate representing such
associated Common Share.
(c) In the event the Corporation shall at any time after the
Record Time and prior to the Separation Time fix a record date for the
issuance to all holders of Common Shares of rights, options or warrants
entitling them (for a period expiring within 45 days after such record
date) to subscribe for or purchase Common Shares (or securities
convertible into or exchangeable for or carrying a right to acquire
Common Shares) at a price per Common Share (or, if at security
convertible into or exchangeable for or carrying a right to acquire
Common Shares, having a conversion, exchange or exercise price,
including the price required to be paid to purchase such convertible or
exchangeable security or right, per share) less than the Market Price
per Common Share on such record date, the Exercise Price shall be
adjusted. The Exercise Price in effect after such record date will
equal the Exercise Price in effect immediately prior to such record
date multiplied by a fraction, of which the numerator shall be the
number of Common Shares outstanding on such record date plus the number
of Common Shares that the aggregate offering price of the total number
of Common Shares so to be offered (and/or the aggregate initial
conversion, exchange oar exercise price of the convertible or
exchangeable securities or rights so to be offered (including the price
required to be paid to purchase such convertible or exchangeable
securities or rights)) would purchase at such Market Price per Common
Share and of which the denominator shall be the number of Common Shares
outstanding on such record date plus the number of additional Common
Shares to be offered for subscription or purchase (or into which the
convertible or exchangeable securities or rights so to be offered are
initially convertible, exchangeable or exercisable). In case such
subscription price may be paid by delivery of consideration part or all
of which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board of
Directors. To the extent that such rights of exchange, conversion or
acquisition are not exercised prior to the expiration thereof, the
Exercise Price shall be readjusted to the Exercise Price which would
then be in effect based on the number of Common Shares (or securities
convertible into or exchangeable for Common Shares) actually issued
upon the exercise of such rights.
- 22 -
For purposes of this Agreement, the granting of the right to purchase
Common Shares (whether from treasury shares or otherwise) pursuant to
any dividend or interest reinvestment plan and/or any Common Share
purchase plan providing for the reinvestment of dividends or interest
payable on securities of the Corporation and/or the investment of
periodic optional payments and/or employee benefit or similar plans (so
long as such right to purchase is in no case evidenced by the delivery
of rights or warrants) shall not be deemed to constitute an issue of
rights or warrants by the Corporation; provided, however, that, in the
case of any dividend or interest reinvestment plan, the right to
purchase Common Shares is at a price per share of not less than 90
percent of the current market price per share (determined as provided
in such plans) of the Common Shares.
(d) In the event the Corporation shall at any time after the
Record Time and prior to the Separation Time fix a record date for the
making of a distribution to all holders of Common Shares of evidences
of indebtedness or assets (other than a Regular Periodic Cash Dividend
(as defined below) or a dividend paid in Common Shares) or rights,
options or warrants (excluding those referred to in Subsection 2.3(c)),
the Exercise Price shall be adjusted. The Exercise Price in effect
after such record date will equal the Exercise Price in effect
immediately prior to such record date less the fair market value (as
determined in good faith by the Board of Directors) of the portion of
the assets, evidences of indebtedness, rights or warrants so to be
distributed applicable to the securities purchasable upon exercise of
one Right.
For the purpose of this Subsection 2.3(d), "REGULAR PERIODIC CASH
DIVIDEND" shall mean cash dividends paid at regular intervals in any
fiscal year of the Corporation to the extent that such cash dividends
do not exceed, in the aggregate, the greatest of:
(i) 200% of the aggregate amount of cash dividends
declared payable by the Corporation on its Common
Shares in its immediately preceding fiscal year;
(ii) 300% of the arithmetic mean of the aggregate amounts
of cash dividends declared payable by the Corporation
on its Common Shares in its three immediately
preceding fiscal years; and
(iii) 100% of the aggregate consolidated net income of the
Corporation, before extraordinary items, for its
immediately preceding fiscal year.
(e) Each adjustment made pursuant to this Section 2.3 shall be
made as of:
(i) the payment or effective date for the applicable
dividend, subdivision, change, consolidation or
issuance, in the case of an adjustment made pursuant
to Subsection 2.3(b) above; and
(ii) the record date for the applicable dividend or
distribution, in the case of an adjustment made
pursuant to Subsection 2.3(c) or (d) above.
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(f) In the event the Corporation shall at any time after the
Record Time and prior to the Separation Time issue any shares of
capital stock (other than Common Shares), or rights, options or
warrants to subscribe for or purchase any such capital stock, or
securities convertible into or exchangeable for any such capital stock
in a transaction referred to in Clause 2.3(b)(i) or (iv), if the Board
of Directors acting in good faith determines that the adjustments
contemplated by Subsections 2.3(b), (c) and (d) above in connection
with such transaction will not appropriately protect the interests of
the holders of Rights, the Board of Directors may determine what other
adjustments to the Exercise Price, number of Rights and/or securities
purchasable upon exercise of Rights would be appropriate and,
notwithstanding Subsections 2.3(b), (c) and (d) above, but subject to
the prior consent of the holders of Common Shares or Rights obtained as
set forth in Subsection 5.4(b) or (c) as applicable, such adjustments,
rather than the adjustments contemplated by Subsections 2.3(b), (c) and
(d) above, shall be made. The Corporation and the Rights Agent shall
amend this Agreement as appropriate to provide for such adjustments.
(g) Notwithstanding anything herein to the contrary, no adjustment
of the Exercise Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in such Exercise Price;
provided, however, that any adjustments which by reason of this
Subsection 2.3(g) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All adjustments
made pursuant to this Section 2.3 shall be made to the nearest cent or
to the nearest ten-thousandth of a Common Share, as the case may be.
(h) If as a result of an adjustment made pursuant to Section 3.1,
the holder of any Right thereafter exercised shall become entitled to
receive any securities other than Common Shares, thereafter the number
of such other shares so receivable upon exercise of any Right and the
applicable Exercise Price thereof shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common Shares
contained in the provisions of this Section 2.3 and the provisions of
this Agreement with respect to the Common Shares shall apply on like
terms to any such other securities.
(i) All Rights originally issued by the Corporation subsequent to
any adjustment made to an Exercise Price hereunder shall evidence the
right to purchase, at the adjusted Exercise Price, the number of Common
Shares purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(j) Unless the Corporation shall have exercised its election, as
provided in Subsection 2.3(k), upon each adjustment of the Exercise
Price as a result of the calculations made in Subsections 2.3(c) and
(d), each Right outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at the
adjusted Exercise Price, that number of Common Shares obtained by:
(i) multiplying (A) the number of Common Shares covered
by a Right immediately prior to such adjustment, by
(B) the relevant Exercise Price in
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effect immediately prior to such adjustment of the
relevant Exercise Price; and
(ii) dividing the product so obtained by the relevant
Exercise Price in effect immediately after such
adjustment of the relevant Exercise Price.
(k) The Corporation may elect on or after the date of any
adjustment of an Exercise Price to adjust the number of Rights, in lieu
of any adjustment in the number of Common Shares purchasable upon the
exercise of a Right. Each of the Rights outstanding after the
adjustment in the number of Rights shall be exercisable for the number
of Common Shares for which a Right was exercisable immediately prior to
such adjustment. Each Right held of record prior to such adjustment of
the number of Rights shall become the number of Rights (calculated to
the nearest one ten-thousandth) obtained by dividing the relevant
Exercise Price in effect immediately prior to adjustment of relevant
Exercise Price by the relevant Exercise Price in effect immediately
after adjustment of the relevant Exercise Price. The Corporation shall
make a public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and, if known at
the time, the amount of the adjustment to be made. This record date may
be the date on which the relevant Exercise Price is adjusted or any day
thereafter, but, if the Rights Certificates have been issued, shall be
at least 10 days later than the date of the public announcement. If
Rights Certificates have been issued, upon each adjustment of the
number of Rights pursuant to this Subsection 2.3(k), the Corporation
shall, as promptly as practicable, cause to be distributed to holders
of record of Rights Certificates on such record date, Rights
Certificates evidencing, subject to Section 5.5, the additional Rights
to which such holders shall be entitled as a result of such adjustment,
or, at the option of the Corporation, shall cause to be distributed to
such holders of record in substitution and replacement for the Rights
Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof if required by the Corporation, new Rights
Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed and countersigned in the manner
provided for herein and may bear, at the option of the Corporation, the
relevant adjusted Exercise Price and shall be registered in the names
of holders of record of Rights Certificates on the record date
specified in the public announcement.
(l) Irrespective of any adjustment or change in the securities
purchasable upon exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the
securities so purchasable which were expressed in the initial Rights
Certificates issued hereunder.
(m) In any case in which this Section 2.3 shall require that an
adjustment in the Exercise Price be made effective as of a record date
for a specified event, the Corporation may elect to defer until the
occurrence of such event the issuance to the holder of any Right
exercised after such record date of the number of Common Shares and
other securities of the Corporation, if any, issuable upon such
exercise over and above the number of Common Shares and other
securities of the Corporation, if any, issuable upon
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such exercise on the basis of the relevant Exercise Price in effect
prior to such adjustment; provided, however, that the Corporation shall
deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional Common Shares
(fractional or otherwise) or other securities upon the occurrence of
the event requiring such adjustment.
(n) Notwithstanding anything in this Section 2.3 to the contrary,
the Corporation shall be entitled to make such reductions in the
Exercise Price, in addition to those adjustments expressly required by
this Section 2.3, as and to the extent that in its good faith judgment
the Board of Directors shall determine to be advisable in order that
any (i) subdivision or consolidation of the Common Shares, (ii)
issuance (wholly or in part for cash) of Common Shares at less than the
applicable Market Price, (iii) issuance (wholly for cash) of any Common
Shares or securities that by their terms are exchangeable for or
convertible into or give a right to acquire Common Shares, (iv) stock
dividends, or (v) issuance of rights, options or warrants referred to
in this Section 2.3, hereafter made by the Corporation to holders of
its Common Shares, subject to applicable taxation laws, shall not be
taxable to such shareholders.
(o) After the Separation Time, the Corporation will not, except as
permitted by the provisions hereof, take (or permit any Subsidiary of
the Corporation to take) any action if at the time such action is taken
it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be
afforded by the Rights.
(p) Whenever an adjustment to the Exercise Price or a change in
the securities purchasable upon the exercise of Rights is made pursuant
to this Section 2.3, the Corporation shall promptly:
(i) prepare a certificate setting forth such adjustment
and a brief statement of the facts accounting for
such adjustment;
(ii) file with the Rights Agent and with each transfer
agent for the Common Shares, a copy of such
certificate; and
(iii) cause notice of the particulars of such adjustment or
change to be given to the holder of the Rights.
Failure to file such certificate or to cause such notice to be given as
aforesaid, or any defect therein, shall not affect the validity of any
such adjustment or change.
2.4 DATE ON WHICH EXERCISE IS EFFECTIVE
Each Person in whose name any certificate for Common Shares or other
securities, if applicable, is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the Common Shares or
other securities, if applicable, represented thereby, and such certificate shall
be dated the date upon which the Rights Certificate evidencing such Rights was
duly surrendered in accordance with Subsection 2.2(e) (together with a duly
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completed Election to Exercise) and payment of the Exercise Price for such
Rights (and any applicable transfer taxes and other governmental charges payable
by the exercising holder hereunder) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Common Share
transfer books of the Corporation are closed, such Person shall be deemed to
have become the record holder of such shares on, and such certificate shall be
dated, the next succeeding Business Day on which the Common Share transfer books
of the Corporation are open.
2.5 EXECUTION, AUTHENTICATION, DELIVERY AND DATING OF RIGHTS CERTIFICATES
(a) The Rights Certificates shall be executed on behalf of the
Corporation by its President and its Chief Financial Officer, under its
corporate seal reproduced thereon attested by its Secretary. The
signature of any of these officers on the Rights Certificates may be
manual or facsimile. Rights Certificates bearing the manual or
facsimile signatures of individuals holding the above offices of the
Corporation shall bind the Corporation, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to
the countersignature and delivery of such Rights Certificates.
(b) Promptly after the Corporation learns of the Separation Time,
the Corporation will notify the Rights Agent in writing of such
Separation Time and will deliver Rights Certificates executed by the
Corporation to the Rights Agent for countersignature and a disclosure
statement describing the Rights, and the Rights Agent shall countersign
(manually or by facsimile signature) and mail such Rights Certificates
and disclosure statement to the holders of the Rights pursuant to
Subsection 2.2(c). No Rights Certificate shall be valid for any purpose
until countersigned by the Rights Agent as aforesaid.
(c) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.6 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
(a) From and after the Separation Time, the Corporation will cause
to be kept a register (the "RIGHTS REGISTER") in which, subject to such
reasonable regulations as it may prescribe, the Corporation will
provide for the registration and transfer of Rights. The Rights Agent
is hereby appointed "RIGHTS REGISTRAR" for the purpose of maintaining
the Rights Register for the Corporation and registering Rights and
transfers of Rights as herein provided. In the event that the Rights
Agent shall cease to be the Rights Registrar, the Rights Agent will
have the right to examine the Rights Register at all reasonable times.
After the Separation Time and prior to the Expiration Time, upon
surrender for registration of transfer or exchange of any Rights
Certificate, and subject to the provisions of Subsection 2.6(c), the
Corporation will execute, and the Rights Agent will countersign and
deliver, in the name of the holder thereof or the designated transferee
or transferees, as required pursuant to the holder's instructions, one
or more new Rights Certificates evidencing the same aggregate number of
Rights as did the Rights Certificates so surrendered.
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(b) All Rights issued upon any registration of transfer or
exchange of Rights Certificates shall be the valid obligations of the
Corporation, and such Rights shall be entitled to the same benefits
under this Agreement as the Rights surrendered upon such registration
of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Corporation
or the Rights Agent, as the case may be, duly executed, by the holder
thereof or such holder's attorney duly authorized in writing. As a
condition to the issuance of any new Rights Certificate under this
Section 2.6, the Corporation may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees
and expenses of the Rights Agent) connected therewith.
(d) The Corporation shall not be required to register the transfer
or exchange of any Rights after the Rights have been terminated
pursuant to the provisions of this Agreement.
2.7 MUTILATED, DESTROYED, LOST AND STOLEN RIGHTS CERTIFICATES
(a) If any mutilated Rights Certificate is surrendered to the
Rights Agent prior to the Expiration Time, the Corporation shall
execute and the Rights Agent shall countersign and deliver in exchange
therefor a new Rights Certificate evidencing the same number of Rights
as did the Rights Certificate so surrendered.
(b) If there shall be delivered to the Corporation and the Rights
Agent prior to the Expiration Time (i) evidence to their satisfaction
of the destruction, loss or theft of any Rights Certificate, and (ii)
such security or indemnity as may be required by them to save each of
them and any of their agents harmless, then, in the absence of notice
to the Corporation or the Rights Agent that such Rights Certificate has
been acquired by a bona fide purchaser, the Corporation shall execute
and upon its request the Rights Agent shall countersign and deliver, in
lieu of any such destroyed, lost or stolen Rights Certificate, a new
Rights Certificate evidencing the same number of Rights as did the
Rights Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate
under this Section 2.7, the Corporation may require the payment of a
sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the
fees and expenses of the Rights Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to this Section
2.7 in lieu of any destroyed, lost or stolen Rights Certificate shall
evidence a contractual obligation of the Corporation, whether or not
the destroyed, lost or stolen Rights Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Agreement equally and proportionately with any and all other
Rights duly issued hereunder.
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2.8 PERSONS DEEMED OWNERS
Prior to due presentment of a Rights Certificate (or, prior to the
Separation Time, the associated Voting Share certificate) for registration of
transfer, the Corporation, the Rights Agent and any agent of the Corporation or
the Rights Agent may deem and treat the Person in whose name such Rights
Certificate (or, prior to the Separation Time, such Voting Share certificate) is
registered as the absolute owner thereof and of the Rights evidenced thereby for
all purposes whatsoever.
2.9 DELIVERY AND CANCELLATION OF CERTIFICATES
All Rights Certificates surrendered upon exercise or for redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Rights Agent, be delivered to the Rights Agent and, in any case, shall
be promptly cancelled by the Rights Agent. The Corporation may at any time
deliver to the Rights Agent for cancellation any Rights Certificates previously
countersigned and delivered hereunder which the Corporation may have acquired in
any manner whatsoever, and all Rights Certificates so delivered shall be
promptly cancelled by the Rights Agent. No Rights Certificate shall be
countersigned in lieu of or in exchange for any Rights Certificates cancelled as
provided in this Section 2.9, except as expressly permitted by this Agreement.
The Rights Agent shall destroy all cancelled Rights Certificates and deliver a
certificate of destruction to the Corporation.
2.10 AGREEMENT OF RIGHTS HOLDERS
Every holder of Rights, by accepting such Rights, consents and agrees
with the Corporation and the Rights Agent and with every other holder of Rights
that:
(a) such holder shall be bound by and subject to the provisions of
this Agreement, as amended from time to time in accordance with the
terms hereof, in respect of all Rights held;
(b) prior to the Separation Time, each Right will be transferable
only together with, and will be transferred by a transfer of, the
associated Voting Share certificate representing such Right;
(c) after the Separation Time, the Rights will be transferable
only on the Rights Register as provided herein;
(d) prior to due presentment of a Rights Certificate (or, prior to
the Separation Time, the associated Voting Share certificate) for
registration of transfer, the Corporation, the Rights Agent and any
agent of the Corporation or the Rights Agent may deem and treat the
Person in whose name the Rights Certificate (or, prior to the
Separation Time, the associated Voting Share certificate) is registered
as the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on such Rights
Certificate or the associated Voting Share certificate made by anyone
other than
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the Corporation or the Rights Agent) for all purposes whatsoever, and
neither the Corporation nor the Rights Agent shall be affected by any
notice to the contrary;
(e) such holder of Rights is not entitled to receive any
fractional Rights or fractional Common Shares or other securities upon
the exercise of Rights;
(f) without the approval of any holder of Rights or Voting Shares
and upon the sole authority of the Board of Directors acting in good
faith, this Agreement may be supplemented or amended from time to time
in accordance with the provisions of Section 5.4 and the third last
paragraph of Subsection 2.3(b); and
(g) notwithstanding anything in this Agreement to the contrary,
neither the Corporation nor the Rights Agent shall have any liability
to any holder of a Right or to any other Person as a result of its
inability to perform any of its obligations under this Agreement by
reason of any preliminary or permanent injunction or other order,
decree or ruling issued by a court of competent jurisdiction or by a
government, regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by
any governmental authority, prohibiting or otherwise restraining
performance of such obligation.
2.11 RIGHTS CERTIFICATE HOLDER NOT A DEEMED SHAREHOLDER
No holder, as such, of any Rights or Rights Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose whatsoever the
holder of any voting share or any other share or security of the Corporation
which may at any time be issued on the exercise of the Rights represented
thereby, nor shall anything contained herein or in any Rights Certificate be
construed or deemed to confer upon the holder of any Right or Right Certificate,
as such, any of the rights, title, benefits or privileges of a holder of Voting
Shares or any other shares or securities of the Corporation or any right to vote
at any meeting of shareholders of the Corporation whether for the election of
directors or otherwise or upon any matter submitted to the holders of shares of
the Corporation at a meeting thereof, or to give or withhold consent to any
action of the Corporation, or to receive notice of any meeting or other action
affecting any holder of common shares or any other shares or securities of the
Corporation except as expressly provided herein, or to receive dividends,
distributions or subscription rights, or otherwise, until the Right or Rights
evidenced by the Rights Certificates shall have been duly exercised in
accordance with the terms and provisions hereof.
ARTICLE 3 - ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF A FLIP-IN EVENT
3.1 FLIP-IN EVENT
(a) Subject to Subsection 3.1(b) and Sections 5.1 and 5.2, in the
event that prior to the Expiration Time a Flip-in Event shall occur,
each Right shall constitute, effective from and after the Close of
Business on the tenth Trading Day following the Stock Acquisition Date,
the right to purchase from the Corporation, upon exercise thereof in
accordance
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with the terms hereof, that number of Common Shares having an aggregate
Market Price on the date of consummation or occurrence of such Flip-in
Event equal to twice the Exercise Price for an amount in cash equal to
the Exercise Price (such right to be appropriately adjusted in a manner
analogous to the applicable adjustment provided for in Section 2.3 in
the event that after such date of consummation or occurrence an event
of a type analogous to any of the events described in Section 2.3 shall
have occurred with respect to such Common Shares).
(b) Notwithstanding anything in this Agreement to the contrary,
upon the occurrence of a Flip-in Event, any Rights that are or were
Beneficially Owned on or after the earlier of the Separation Time or
the Stock Acquisition Date by:
(i) an Acquiring Person (or any Affiliate or Associate of
an Acquiring Person, or any Person acting jointly or
in concert with an Acquiring Person or with any
Associate or Affiliate of an Acquiring Person); or
(ii) a transferee or other successor-in-title, directly or
indirectly, from an Acquiring Person (or from any
Affiliate or Associate of an Acquiring Person, or any
Person acting jointly or in concert with an Acquiring
Person or with any Associate or Affiliate of an
Acquiring Person) in a transfer of Rights, whether or
not for consideration, that the Board of Directors
has determined is part of a plan, understanding or
scheme of an Acquiring Person (or of any Affiliate or
Associate of an Acquiring Person or any Person acting
jointly or in concert with an Acquiring Person or any
Affiliate or Associate of an Acquiring Person) that
has the purpose or effect of avoiding the provisions
of Clause 3.1(b)(i);
shall become null and void without any further action and any holder of
such Rights (including transferees or other successors-in-title) shall
thereafter have no right to exercise or transfer such Rights under any
provision of this Agreement and shall have no other rights whatsoever
with respect to such Rights, whether under any provision of this
Agreement or otherwise. The holder of any Rights represented by a
Rights Certificate which is submitted to the Rights Agent upon exercise
or for registration of transfer or exchange which does not contain the
necessary certifications set forth in the Rights Certificate
establishing that such Rights are not void under this Subsection 3.1(b)
shall be deemed to be an Acquiring Person for the purposes of this
Section 3.1 and such Rights shall become null and void.
(c) Any Rights Certificate that represents Rights Beneficially
Owned by a Person described in either Clause 3.1(b)(i) or 3.1(b)(ii) or
transferred to any nominee of any such Person, and any Rights
Certificate issued upon transfer, exchange, replacement or adjustment
of any other Rights Certificate referred to in this sentence, shall
contain the following legend:
"The Rights represented by this Rights Certificate
were issued to a Person who was an Acquiring Person,
or an Affiliate or an Associate of an
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Acquiring Person, or a Person acting jointly or in
concert with any of them (as such terms are defined
in the Shareholder Protection Rights Agreement).
This Rights Certificate and the Rights represented
hereby shall become void in the circumstances
specified in Subsection 3.1(b) of the Shareholder
Protection Rights Agreement."
provided, however, that the Rights Agent shall not be under any
responsibility to ascertain the existence of facts that would require
the imposition of such legend but shall be required to impose such
legend only if instructed to do so in writing by the Corporation or if
a holder fails to certify upon transfer or exchange in the space
provided on the Rights Certificate that such holder is not a Person
described in such legend. The issuance of a Rights Certificate without
the legend referred to in this Subsection 3.1(c) shall be of no effect
on the provisions of Subsection 3.1(b).
ARTICLE 4 - THE RIGHTS AGENT
4.1 GENERAL
(a) The Corporation hereby appoints the Rights Agent to act as
agent for the Corporation and the holders of Rights in accordance with
the terms and conditions hereof, and the Rights Agent hereby accepts
such appointment. The Corporation may from time to time appoint one or
more co-rights agents (each a "CO-RIGHTS AGENT") as it may deem
necessary or desirable, subject to the approval of the Rights Agent. In
the event the Corporation appoints one or more Co-Rights Agents, the
respective duties of the Rights Agent and Co-Rights Agents shall be as
the Corporation may determine with the approval of the Rights Agent and
the Co-Rights Agents. The Corporation agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder and,
from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Corporation also agrees to
indemnify the Rights Agent and its directors, officers, employees and
agents for, and to hold it harmless against, any loss, liability, cost,
claim, action, suit, damage or expense, incurred without negligence,
bad faith or wilful misconduct on the part of the Rights Agent, for
anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the costs
and expenses of defending against any claim of liability, which right
to indemnification will survive the termination of this Agreement and
the resignation or removal of the Rights Agent.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by
it in connection with its administration of this Agreement in reliance
upon any certificate for Common Shares, Rights Certificate, certificate
for other securities of the Corporation, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement or other paper or document
believed by it to be genuine and to be signed,
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executed and, where necessary, verified or acknowledged, by the proper
Person or Persons.
(c) The Corporation shall inform the Rights Agent in a reasonably
timely manner of events which may materially affect the administration
of this Agreement by the Rights Agent and, at any time upon request,
shall provide to the Rights Agent an incumbency certificate certifying
the then current officers of the Corporation.
4.2 MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or amalgamated or with which it may be
consolidated, or any corporation resulting from any merger,
amalgamation or consolidation to which the Rights Agent or any
successor Rights Agent is a party, or any corporation succeeding to the
shareholder services business of the Rights Agent or any successor
Rights Agent, will be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights
Agent under the provisions of Section 4.4. In case at the time such
successor Rights Agent succeeds to the agency created by this Agreement
any of the Rights Certificates have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such
Rights Certificates so countersigned; and in case at that time any of
the Rights Certificates have not been countersigned, any successor
Rights Agent may countersign such Rights Certificates either in the
name of the predecessor Rights Agent or in the name of the successor
Rights Agent; and in all such cases such Rights Certificates will have
the full force provided in the Rights Certificates and in this
Agreement.
(b) In case at any time the name of the Rights Agent is changed
and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver such Rights
Certificates so countersigned; and in case at that time any of the
Rights Certificates have not been countersigned, the Rights Agent may
countersign such Rights Certificates either in its prior name or in its
changed name; and in all such cases such Rights Certificates will have
the full force provided in the Rights Certificates and in this
Agreement.
4.3 DUTIES OF RIGHTS AGENT
The Rights Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the
Corporation and the holders of Rights Certificates, by their acceptance thereof,
shall be bound:
(a) The Rights Agent may retain and consult with legal counsel
(who may be legal counsel for the Corporation), and the opinion of such
counsel will be full and complete authorization and protection to the
Rights Agent as to any action taken or omitted by it in good faith and
in accordance with such opinion and the Rights Agent may also retain
and
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consult with such other experts or advisors as the Rights Agent shall
consider necessary or appropriate to properly carry out the duties and
obligations imposed under this Agreement (at the Corporation's expense)
and the Rights Agent shall be entitled to act and rely in good faith on
the advice of such experts or advisors.
(b) Whenever in the performance of its duties under this
Agreement, the Rights Agent deems it necessary or desirable that any
fact or matter be proved or established by the Corporation prior to
taking or suffering any action hereunder, such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by a
certificate signed by an individual believed by the Rights Agent to be
the President, the Chief Financial Officer or the Secretary of the
Corporation and delivered to the Rights Agent; and such certificate
will be full authorization to the Rights Agent for any action taken,
omitted or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Rights Agent will be liable hereunder only for its own
negligence, bad faith or wilful misconduct.
(d) The Rights Agent will not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in
the certificates for Common Shares or the Rights Certificates (except
its countersignature thereof) or be required to verify the same, but
all such statements and recitals are and will be deemed to have been
made by the Corporation only.
(e) The Rights Agent will not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due authorization, execution and delivery hereof by
the Rights Agent) or in respect of the validity or execution of any
Common Share certificate or Rights Certificate (except its
countersignature thereof); nor will it be responsible for any breach by
the Corporation of any covenant or condition contained in this
Agreement or in any Rights Certificate; nor will it be responsible fir
any change in the exercisability of the Rights (including the Rights
becoming void pursuant to Subsection 3.1(b)) or any adjustment required
under the provisions of Section 2.3 or responsible for the manner,
method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with
respect to the exercise of Rights after receipt of the certificate
contemplated by Subsection 2.3(p) describing any such adjustment); nor
will it by any act hereunder be deemed to make any representation or
warranty as to the authorization of any Common Shares to be issued
pursuant to this Agreement or any Rights or as to whether any Common
Shares will, when issued, be duly and validly authorized, executed,
issued and delivered and fully paid and non-assessable.
(f) The Corporation will perform, execute, acknowledge and deliver
or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
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(g) The Rights Agent is hereby authorized and directed to accept
written instructions with respect to the performance of its duties
hereunder from any individual believed by the Rights Agent to be the
President, the Chief Financial Officer or the Secretary of the
Corporation, and to apply to such individuals for advice or
instructions in connection with its duties, and it shall not be liable
for any action taken, omitted or suffered by it in good faith in
accordance with instructions of any such individual.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in Common Shares,
Rights or other securities of the Corporation or become pecuniarily
interested in any transaction in which the Corporation may be
interested, or contract with or lend money to the Corporation or
otherwise act as fully and freely as though it were not Rights Agent
under this Agreement. Nothing herein shall preclude the Rights Agent
from acting in any other capacity for the Corporation or for any other
legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys or agents, and the Rights Agent will not
be answerable or accountable for any act, default, neglect or
misconduct of any such attorneys or agents or for any loss to the
Corporation resulting from any such act, default, neglect or
misconduct, provided reasonable care was exercised in the selection and
continued employment thereof.
4.4 CHANGE OF RIGHTS AGENT
The Rights Agent may resign and be discharged from its duties under
this Agreement upon 60 days' notice (or such lesser notice as is acceptable to
the Corporation) in writing mailed to the Corporation and to the transfer agent
of Common Shares by registered or certified mail. The Corporation may remove the
Rights Agent upon 60 days' notice in writing, mailed to the Rights Agent and to
the transfer agent of the Common Shares by registered or certified mail, and to
the holders of the Rights in accordance with Section 5.8. If the Rights Agent
should resign or be removed or otherwise become incapable of acting, the
Corporation will appoint a successor to the Rights Agent. If the Corporation
fails to make such appointment within a period of 30 days after such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent (at the Corporation's expense) or by the
holder of any Rights (which holder shall, with such notice if given after the
Separation Time, submit such holder's Rights Certificate for inspection by the
Corporation), then the holder of any Rights may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Corporation or by such a court, shall be a
corporation incorporated under the laws of Canada or a province thereof
authorized to carry on the business of a trust company in the Province of
Ontario. After appointment, the successor Rights Agent will be vested with the
same powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor Rights
Agent, upon receipt of any and all outstanding amounts owing to it pursuant to
this Agreement, shall deliver and transfer to the successor Rights Agent any
property at the time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Not later than the
effective date of any such appointment, the Corporation will file
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notice thereof in writing with the predecessor Rights Agent and the transfer
agent of the Common Shares, and mail a notice thereof in writing to the holders
of the Rights. Failure to give any notice provided for in this Section 4.4,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
ARTICLE 5 - MISCELLANEOUS
5.1 REDEMPTION OF RIGHTS
(a) With the prior consent of the holders of Voting Shares or
Rights obtained in accordance with Subsection 5.4(b) or (c), as
applicable, the Board of Directors, at any time prior to the occurrence
of a Flip-in Event as to which the application of Section 3.1 has not
been waived pursuant to Section 5.2, may elect to redeem all but not
less than all of the then outstanding Rights at a redemption price of
$0.001 per Right, appropriately adjusted in a manner analogous to the
applicable adjustment to the Exercise Price provided for in Section 2.3
if an event analogous to any of the events described in Section 2.3
shall have occurred (such redemption price being herein referred to as
the "REDEMPTION PRICE").
(b) If a Person acquires, pursuant to a Permitted Bid, a Competing
Permitted Bid or pursuant to an Exempt Acquisition occurring under
Subsection 5.2(a) or (b), outstanding Voting Shares, other than Voting
Shares Beneficially Owned at the date of such Permitted Bid, Competing
Permitted Bid or Exempt Acquisition by such Person, the Board of
Directors shall, notwithstanding the provisions of Subsection 5.1(a),
immediately upon such acquisition and without further formality, be
deemed to have elected to redeem the Rights at the Redemption Price.
(c) Where a Take-over Bid that is not a Permitted Bid or Competing
Permitted Bid expires, is withdrawn or is otherwise terminated after
the Separation Time has occurred and prior to the occurrence of a
Flip-in Event, the Board of Directors may elect to redeem all of the
outstanding Rights at the Redemption Price.
(d) If the Board of Directors elects to or is deemed to have
elected to redeem the Rights and, in circumstances where Subsection
5.1(a) is applicable, the requisite consent is given by the holders of
Voting Shares or Rights, as applicable, (i) the right to exercise the
Rights will thereupon, without further action and without notice,
terminate and the only right thereafter of the holders of Rights shall
be to receive the Redemption Price, and (ii) subject to Subsection
5.1(1), no further Rights shall thereafter be issued.
(e) Within 10 Business Days of the Board of Directors electing or
having been deemed to have elected to redeem the Rights or, if
Subsection 5.1(a) is applicable, within 10 Business Days after the
requisite consent is given by the holders of Voting Shares or Rights,
as applicable, the Corporation shall give notice of redemption to the
holders of the then outstanding Rights by mailing such notice to each
such holder at his last address as it appears upon the Rights Register
or, prior to the Separation Time, on the register of
- 36 -
Voting Shares maintained by the Corporation's transfer agent or
transfer agents. Each such notice of redemption shall state the method
by which the payment of the Redemption Price shall be made.
(f) Upon the Rights being redeemed pursuant to Subsection 5.1(c),
all the provisions of this Agreement shall continue to apply as if the
Separation Time had not occurred and Rights Certificates representing
the number of Rights held by each holder of record of Voting Shares as
of the Separation Time had not been mailed to each such holder and, for
all purposes of this Agreement, the Separation Time shall be deemed not
to have occurred.
5.2 WAIVER OF FLIP-IN EVENTS
(a) With the prior consent of the holders of Voting Shares
obtained in accordance with Subsection 5.4(b), the Board of Directors
may, at any time prior to the occurrence of a Flip-in Event that would
occur by reason of an acquisition of Voting Shares otherwise than in
the circumstances described in Subsection 5.2(b) or (c), waive the
application of Section 3.1 to such Flip-in Event by written notice
delivered to the Rights Agent.
(b) The Board of Directors may, at any time prior to the
occurrence of a Flip-in Event that would occur by reason of a Take-over
Bid made by means of a take-over bid circular sent to all holders of
Voting Shares (which, for greater certainty, shall not include the
circumstances described in Subsection 5.2(c)), waive the application of
Section 3.1 to such Flip-in Event by written notice delivered to the
Rights Agent, provided, however, that if the Board of Directors waives
the application of Section 3.1 to such a Flip-in Event, the Board of
Directors shall be deemed to have waived the application of Section 3.1
to any other Flip-in Event occurring by reason of any Take-over Bid
which is made by means of a take-over bid circular sent to all holders
of Voting Shares prior to the expiry of any Take-over Bid in respect of
which a waiver is, or is deemed to have been, granted under this
Subsection 5.2(b).
(c) The Board of Directors may waive the application of Section
3.1 to a Flip-in Event provided that the following conditions are
satisfied:
(i) the Board of Directors has determined that the
Acquiring Person became an Acquiring Person by
inadvertence and without any intention to become, or
knowledge that it would become, an Acquiring Person;
and
(ii) such Acquiring Person has reduced its Beneficial
Ownership of Voting Shares such that, at the time of
the waiver pursuant to this Subsection 5.2(c), it is
no longer an Acquiring Person.
5.3 ISSUANCE OF NEW RIGHTS CERTIFICATES
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Corporation may, at its option, issue new Rights
Certificates evidencing Rights in such form
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as may be approved by the Board of Directors to reflect any adjustment or change
in the number or kind or class of shares purchasable upon exercise of Rights
made in accordance with the provisions of this Agreement.
5.4 SUPPLEMENTS AND AMENDMENTS
(a) The Corporation may from time to time prior to or after the
Separation Time supplement or amend this Agreement without the approval
of any holders of Rights or Voting Shares in order to correct any
clerical or typographical error or, subject to Subsection 5.4(d), to
maintain the validity and effectiveness of this Agreement as a result
of any change in applicable laws, rules or regulatory requirements. The
Corporation may, prior to the date of the shareholders' meeting
referred to in Section 5.16(a), supplement or amend this Agreement
without the approval of any holders of Rights or Voting Shares in order
to make any changes which the Board of Directors acting in good faith
may deem necessary or desirable. Notwithstanding anything in this
Section 5.4 to the contrary, no such supplement or amendment shall be
made to the provisions of Article 4 except with the written concurrence
of the Rights Agent to such supplement or amendment.
(b) Subject to Subsection 5.4(a), the Corporation may, with the
prior consent of the holders of Voting Shares obtained as set forth
below, at any time prior to the Separation Time, amend, vary or rescind
any of the provisions of this Agreement and the Rights (whether or not
such action would materially adversely affect the interests of the
holders of Rights generally). Such consent shall be deemed to have been
given if the action requiring such approval is authorized by the
affirmative vote of a majority of the votes cast by Independent
Shareholders present or represented at and entitled to vote at a
meeting of the holders, of Voting Shares duly called and held in
compliance with applicable laws and the articles and by-laws of the
Corporation.
(c) Subject to Subsection 5.4(a), the Corporation may, with the
prior consent of the holders of Rights obtained as set forth below, at
any time after the Separation Time, amend, vary or rescind any of the
provisions of this Agreement and the Rights (whether or not such action
would materially adversely affect the interests of the holders of
Rights generally). Such consent shall be deemed to have been given if
the action requiring such approval is authorized by the affirmative
vote of a majority of the votes cast by the holders of Rights (other
than any holder of Rights whose Rights have become null and void
pursuant to the provisions hereof) present or represented at and
entitled to vote at a meeting of the holders of Rights. For the
purposes hereof, the procedures for the calling, holding and conduct of
a meeting of the holders of Rights shall be those, as nearly as may be,
which are provided in the Corporation's by-laws with respect to
meetings of its shareholders and each Right shall be entitled to one
vote at any such meeting.
(d) Any amendments made by the Corporation to this Agreement
pursuant to Subsection 5.4(a) which are required to maintain the
validity and effectiveness of this Agreement as a result of any change
in any applicable laws, rules or regulatory requirements shall:
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(i) if made before the Separation Time, be submitted to
the holders of Voting Shares at the next meeting of
holders of Voting Shares and the holders of Voting
Shares may, by the majority referred to in Subsection
5.4(b), confirm or reject such amendment; and
(ii) if made after the Separation Time, be submitted to
the holders of Rights at a meeting to be called and
held in accordance with the provisions of Subsection
5.4(c) and the holders of Rights may, by a majority
referred to in Subsection 5.4(c), confirm or reject
such amendment.
Any such amendment shall, unless the Board of Directors otherwise
stipulates, be effective from the date of the resolution of the Board
of Directors adopting such amendment, until it is confirmed or rejected
or until it ceases to be effective (as described in the next sentence)
and, where such amendment is confirmed, it shall continue in effect in
the form so confirmed. If such amendment is rejected by the holders of
Voting Shares or the holders of Rights or is not submitted to the
holders of Voting Shares or holders of Rights as required, then such
amendment shall cease to be effective from and after the termination of
the meeting at which it was rejected or to which it should have been
but was not submitted or if such a meeting of the holders of Rights is
not called within 90 days after the date of the resolution of the Board
of Directors adopting such amendment, at the end of such period, and no
subsequent resolution of the Board of Directors to amend this Agreement
to substantially the same effect shall be effective until confirmed by
the holders of Voting Shares or holders of Rights as the case may be.
(e) The Corporation shall be required to provide the Rights Agent
with notice in writing of any amendment, rescission or variation to
this Agreement as referred to in this Section 5.4 within five days of
effecting such amendment, rescission or variation.
5.5 FRACTIONAL RIGHTS AND FRACTIONAL SHARES
(a) The Corporation shall not be required to issue fractions of
Rights or to distribute Rights Certificates which evidence fractional
Rights. Subject to Section 5.16, after the Separation Time there shall
be paid to the registered holders of the Rights Certificates with
regard to which fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the Market Price at the
Separation Time of a whole Right in lieu of such fractional Rights. The
Rights Agent shall have no obligation to make any payments in lieu of
fractional Rights unless the Corporation shall have provided the Rights
Agent with the necessary funds to pay in full all amounts payable in
accordance with Subsection 2.2(e).
(b) The Corporation shall not be required to issue fractional
Common Shares upon exercise of the Rights or to distribute certificates
which evidence fractional Common Shares. In lieu of issuing fractional
Common Shares, the Corporation shall pay to the registered holder of
Rights Certificates at the time such Rights are exercised as herein
provided, an amount in cash equal to the same fraction of the Market
Price at the date of such exercise of one Common Share. The Rights
Agent shall have no obligation to make
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any payments in lieu of fractional Voting Shares unless the Corporation
shall have provided the Rights Agent with the necessary funds to pay in
full all amounts payable in accordance with Subsection 2.2(e).
5.6 RIGHTS OF ACTION
Subject to the terms of this Agreement, rights of action in respect of
this Agreement, other than rights of action vested solely in the Rights Agent,
are vested in the respective holders of the Rights; and any holder of any
Rights, without the consent of the Rights Agent or of the holder of any other
Rights, may, on such holder's own behalf and for such holder's own benefit and
the benefit of other holders of Rights, enforce, and may institute and maintain
any suit, action or proceeding against the Corporation to enforce, or otherwise
act in respect of, such holder's right to exercise such holders Rights in the
manner provided in such holder's Rights Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the holders of
Rights, it is specifically acknowledged that the holders of Rights would not
have an adequate remedy at law for any breach of this Agreement and will be
entitled to specific performance of the obligations under, and injunctive relief
against actual or threatened violations of, the obligations of any Person
subject to this Agreement.
5.7 NOTICE OF PROPOSED ACTIONS
If after the Separation Time and prior to the Expiration Time:
(i) there shall occur an adjustment in the rights
attaching to the Rights pursuant to Section 3.1 as a
result of the occurrence of a Flip-in Event; or
(ii) the Corporation proposes to effect the liquidation,
dissolution or winding up of the Corporation or the
sale of all or substantially all of the Corporation's
assets;
then, in each such case, the Corporation shall give to each holder of a
Right, in accordance with Section 5.8, a notice of such event or
proposed action, which shall specify the date on which such adjustment
to the Rights occurred or liquidation, dissolution or winding up is to
take place, and such notice shall be so given within 10 Business Days
after the occurrence of an adjustment to the Rights and not less than
20 Business Days prior to the date of taking such proposed action by
the Corporation.
5.8 NOTICES
Notices or demands authorized or required by this Agreement to be given
or made by the Rights Agent or by the holder of any Rights to or on the
Corporation shall be sufficiently given or made if delivered or sent by first
class mail, postage prepaid or sent by fax, addressed (until another address is
filed in writing with the Rights Agent) as follows:
- 40 -
GEAC Computer Corporation Limited
11 Allstate Parkway
Suite 300
Markham, ON L3R 9T8
Attention: President
Fax No.: 905-940-3722
Any notice or demand authorized or required by this Agreement to be given or
made by the Corporation or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if delivered or sent by first-class mail,
postage prepaid or sent by fax, addressed (until another address is filed in
writing with the Corporation) as follows:
Computershare Trust Company of Canada
100 University Avenue
8th Floor
Toronto, Ontario
M5J 2N1
Attention: Manager - Client Services
Fax No.: (416) 981-9800
Notices or demands authorized or required by this Agreement to be given or made
by the Corporation or the Rights Agent to or on the holder of any Rights shall
be sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as it appears
upon the Rights Register or, prior to the Separation Time, on the registry books
of the Corporation for the Common Shares. Any notice which is mailed to a holder
of Rights in the manner herein provided shall be deemed given, whether or not
such holder receives the notice.
5.9 COSTS OF ENFORCEMENT
The Corporation agrees that, if the Corporation fails to fulfil any of
its obligations pursuant to this Agreement, then the Corporation will reimburse
the holder of any Rights for the costs and expenses (including legal fees)
reasonably incurred by such holder in actions to enforce his rights pursuant to
any Rights or this Agreement.
5.10 SUCCESSORS
All the covenants and provisions of this Agreement by or for the
benefit of the Corporation or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
- 41 -
5.11 BENEFITS OF THIS AGREEMENT
Nothing in this Agreement shall be construed to give to any Person
other than the Corporation, the Rights Agent and the holders of the Rights any
legal or equitable right, remedy or claim under this Agreement; this Agreement
shall be for the sole and exclusive benefit of the Corporation, the Rights Agent
and the holders of the Rights.
5.12 GOVERNING LAW
This Agreement and each Right issued hereunder shall be deemed to be a
contract made under the laws of the Province of Ontario and for all purposes
shall be governed by and construed in accordance with the laws of such province
applicable to contracts to be made and performed entirely within such province.
5.13 COUNTERPARTS
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
5.14 SEVERABILITY
If any term or provision hereof or the application thereof to any
circumstance shall, in any jurisdiction and to any extent, be invalid or
unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining terms and provisions
hereof or the application of such term or provision to circumstances other than
those as to which it is held invalid or unenforceable.
5.15 DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS
All actions, calculations and determinations (including all omissions
with respect to the foregoing) which are done or made by the Board of Directors
in good faith pursuant to this Agreement, shall not subject the Board of
Directors to any liability to the holders of the Rights.
Without limiting the generality of the foregoing, nothing contained
herein shall be construed to suggest or imply that the Board of Directors shall
not be entitled to recommend that the holders of Voting Shares reject or accept
in the Take-over Bid or take any other action (including without limitation, the
commencement, prosecution, defense or settlement of any litigation and the
submission of additional or alternative Take-over Bids or other proposals to the
Shareholders of the Corporation) with respect to any Take-over Bid or otherwise
that the Board of Directors believes is necessary or appropriate in the exercise
of its fiduciary duties.
5.16 EFFECTIVE DATE AND RENEWAL
(a) Notwithstanding its amendment and restatement as of the date
hereof, this Agreement (subject to receipt of the approval of the
Independent Shareholders as set
- 42 -
forth below) is effective from the Record Time and replaces and
supercedes the Prior Plan. If this Agreement is not approved by a
resolution passed by a majority of the votes cast be Independent
Shareholders who vote in respect of reconfirmation of the Prior Plan as
amended and restated herein at a meeting of shareholders to be held not
later than the date on which the 2003 annual meeting of shareholders of
the Corporation terminates, then the Prior Plan and this Agreement and
all outstanding rights shall terminate and be void and of no further
force and effect on and from that date which is the earlier of (i) the
date of termination of the meeting called to consider the confirmation
of the Prior Plan as amended and restated herein under this Section
5.16, and (ii) the date of termination of the 2003 annual meeting of
shareholders of the Corporation.
(b) At or prior to the annual meeting of shareholders of the
Corporation in the year 2006, provided that a Flip-In Event has not
occurred prior to such time, the Board of Directors shall submit a
resolution ratifying the continued existence of this Agreement to the
Independent Shareholders for their consideration and, if thought
advisable, approval period unless a majority of the votes cast by the
Independent Shareholders who vote in respect of such resolution are
voted in favour of the continued existence of this Agreement, the Board
of Directors shall, immediately upon the confirmation of the results of
the votes on such resolution and without further formality, be deemed
to elect to redeem the rights at the Redemption Price.
5.17 REGULATORY APPROVALS
Any obligation of the Corporation or action or event contemplated by
this Agreement, or any amendment or supplement to this Agreement, shall be
subject to receipt of any requisite approval or consent from any governmental or
regulatory authority having jurisdiction including, while any securities of the
Corporation are listed and admitted to trading thereon, The Toronto Stock
Exchange.
5.18 DECLARATION AS TO FOREIGN HOLDERS
If in the opinion of the Board of Directors (who may rely upon the
advice of counsel) any action or event contemplated by this Agreement would
require compliance by the Corporation with the securities laws or comparable
legislation of a jurisdiction outside Canada or the United States, the Board of
Directors acting in good faith shall take such actions as it may deem
appropriate to ensure compliance. In no event shall the Corporation or the
Rights Agent be required to issue or deliver Rights or securities issuable on
the exercise of Rights to persons who are citizens, residents or nationals of
any jurisdiction other than Canada or the United States, in which such issue or
delivery would be unlawful without registration of the relevant Persons or
securities for such purposes.
5.19 TIME OF THE ESSENCE
Time shall be of the essence in this Agreement.
- 43 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
GEAC COMPUTER CORPORATION LIMITED
Per: "Craig C. Thorburn"
------------------------------------------------
Senior Vice President, Mergers & Acquisitions,
and Corporate Secretary
COMPUTERSHARE TRUST COMPANY OF CANADA
Per: "Shirley Yuen"
------------------------------------------------
Professional, Client Services
Per: "Christine Lawton"
------------------------------------------------
Manager, Client Services
EXHIBIT A
(Form of Rights Certificate)
Certificate No. Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE CORPORATION, ON THE
TERMS SET FORTH IN THE AMENDED AND RESTATED SHAREHOLDER PROTECTION RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES (SPECIFIED IN SUBSECTION 3.1(b) OF THE
AMENDED AND RESTATED SHAREHOLDER PROTECTION RIGHTS AGREEMENT), RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR ITS AFFILIATES OR ASSOCIATES OR ANY
PERSON ACTING JOINTLY OR IN CONCERT WITH ANY OF THEM (AS SUCH TERMS ARE DEFINED
IN THE AMENDED AND RESTATED SHAREHOLDER PROTECTION RIGHTS AGREEMENT) OR
TRANSFEREES OF ANY OF THE FOREGOING WILL BECOME VOID WITHOUT FURTHER ACTION.
RIGHTS CERTIFICATE
This certifies that ______________________, or registered assigns, is
the registered holder of the number of Rights set forth above, each of
which entitles the registered holder thereof, subject to the terms,
provisions and conditions of the Amended and Restated Shareholder
Protection Rights Agreement dated as of August 1, 2003 as amended from
time to time (the "RIGHTS AGREEMENT") between GEAC COMPUTER CORPORATION
LIMITED, a corporation incorporated under the laws of Canada (the
"CORPORATION") and COMPUTERSHARE TRUST COMPANY OF CANADA, a trust
company incorporated under the laws of Canada, as Rights Agent (the
"RIGHTS AGENT", which term shall include any successor Rights Agent
under the Rights Agreement), to purchase from the Corporation at any
time after the Separation Time and prior to the Expiration Time (as
such terms are defined in the Rights Agreement), one fully paid common
share of the Corporation (a "Common Share") at the Exercise Price
referred to below, upon presentation and surrender of this Rights
Certificate with the Form of Election to Exercise duly executed and
submitted to the Rights Agent at its principal office in Toronto,
Ontario or, with the approval of the Rights Agent, at any other office
of the Rights Agent in the cities designated from time to time by the
Corporation. Until adjustment thereof in certain events as provided in
the Rights Agreement, the Exercise Price shall be:
(i) until the Separation Time, an amount equal to three
times the Market Price (as such term is defined in
the Rights Agreement), from time to time, per Common
Share; and
(ii) from and after the Separation Time, an amount equal
to three times the Market Price, as at the Separation
Time, per Common Share.
In certain circumstances described in the Rights Agreement, each Right evidenced
hereby may entitle the registered, holder thereof to purchase more or less than
one Common Share, all as provided in the Rights Agreement.
- 2 -
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Rights Agent, the Corporation and the holders of the Rights. Copies of the
Rights Agreement are on file at the head office of the Corporation and are
available upon written request.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at any of the offices of the Rights Agent designated for such purpose,
may be exchanged for another Rights Certificate or Rights Certificates of like
tenor and date evidencing an aggregate number of Rights equal to the aggregate
number of Rights evidenced by the Rights Certificate or Rights Certificates
surrendered. If this Rights Certificate shall be exercised in part, the
registered holder shall be entitled to receive, upon surrender hereof, another
Rights Certificate or Rights Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by this
Certificate may be, and under certain circumstances are required to be, redeemed
by the Corporation at a redemption price of $0.001 (Canadian) per Right, subject
to adjustment in certain events.
No fractional Common Shares will be issued upon the exercise of any Right or
Rights evidenced hereby, but in lieu thereof, a cash payment will be made, as
provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of Common Shares or
any other securities which may at any time be issuable upon the exercise hereof,
nor shall anything contained in the Rights Agreement or herein be construed to
confer upon the holder hereof, as such, any of the rights of a shareholder of
the Corporation or any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meeting or other
actions affecting shareholders (except as provided in the Rights Agreement), or
to receive dividends or subscription rights, or otherwise, until the Rights
evidenced by this Rights Certificate shall have been exercised as provided in
the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose until
it shall have been countersigned by the Rights Agent.
- 3 -
IN WITNESS WHEREOF, the parties hereto have caused this Certificate to
be duly executed as of _________________________, ______________.
GEAC COMPUTER CORPORATION LIMITED
Per: ______________________________________
Per: ______________________________________
COMPUTERSHARE TRUST COMPANY OF CANADA
Per: ______________________________________
Per: ______________________________________
(To be attached to each Rights Certificate)
FORM OF ELECTION TO EXERCISE
TO:
The undersigned hereby irrevocably elects to exercise _____________________
whole Rights represented by the attached Rights Certificate to purchase the
Common Shares issuable upon the exercise of such Rights and requests that
certificates for such shares be issued in the name of:
____________________________________________
Name
____________________________________________
Address
____________________________________________
____________________________________________
Social Insurance, Social Security or
Other Taxpayer Identification Number ________________________________________
DATED:
________________________________________
Signature
(Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular,
without alteration or enlargement or
any change whatsoever)
________________________________________
Signature Guaranteed
Signature must be guaranteed by a Canadian chartered bank, a Canadian trust
company or by a medallion guarantee by a member firm of the Securities Transfer
Agents Medallion Programme, (STAMP).
________________________________________________________________________________
(To be completed if true)
- 2 -
The undersigned hereby represents, for the benefit of all holders of Rights and
Common Shares, that the Rights evidenced by this Rights Certificate are not,
and, to the knowledge of the undersigned, have never been, Beneficially Owned by
an Acquiring Person or an Affiliate or Associate thereof or by any Person acting
jointly or in concert with any of the foregoing (all as defined in the Rights
Agreement).
_______________________________________
Signature
________________________________________________________________________________
NOTICE
In the event the certification set forth above is not completed, the Corporation
will deem the Beneficial Owner of the Rights evidenced by this Rights
Certificate to be an Acquiring Person (as defined in the Rights Agreement) and,
accordingly, such Rights shall be null and void and not transferable or
exercisable.
(To be executed by the registered holder if such holder desires to transfer
the Rights evidenced by this Rights Certificate.)
FORM OF ASSIGNMENT
FOR VALUE RECEIVED ______________________________________ Hereby
sells, assigns and transfers unto ______________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print name and address of transferee)
the Rights evidenced by this Fights Certificate, together with all right, title
and interest therein, and does hereby irrevocably constitute and appoint
attorney, to transfer the within Rights on the books of the within-named
Corporation, with full power of substitution.
DATED:
________________________________________
Signature
(Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular,
without alteration or enlargement or
any change whatsoever)
______________________________________
Signature Guaranteed
Signature must be guaranteed by a Canadian chartered bank, a Canadian trust
company or by a medallion guarantee by a member firm of the Securities Transfer
Agents Medallion Programme, (STAMP).
________________________________________________________________________________
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
Common Shares, that the Rights evidenced by this Rights Certificate are not,
and, to the knowledge of the undersigned, have never been, Beneficially Owned by
an Acquiring Person or an Affiliate or Associate thereof or by any Person acting
jointly or in concert with any of the foregoing (all as defined in the Rights
Agreement).
________________________________________
Signature
- 2 -
NOTICE
In the event the certification set forth above is not completed, the Corporation
will deem the Beneficial Owner of the Rights evidenced by this Rights
Certificate to be an Acquiring Person (as defined in the Rights Agreement) and,
accordingly, such Rights shall be null and void and not transferable or
exercisable.