Exhibit 2.2
CEDARA SOFTWARE CORP.
and
MONTREAL TRUST COMPANY OF CANADA
as Rights Agent
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SHAREHOLDER RIGHTS PLAN AGREEMENT
June 15, 2000
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STIKEMAN ELLIOTT
TABLE OF CONTENTS
ARTICLE 1
INTERPRETATION
Section 1.1 Certain Definitions.........................................................................1
Section 1.2 Currency...................................................................................12
Section 1.3 Headings...................................................................................13
Section 1.4 Number and Gender..........................................................................13
Section 1.5 Acting Jointly or in Concert...............................................................13
Section 1.6 Statutory References.......................................................................13
ARTICLE 2
THE RIGHTS
Section 2.1 Legend on Common Share Certificates........................................................13
Section 2.2 Initial Exercise Price; Exercise of Rights; Detachment of Rights...........................14
Section 2.3 Adjustments to Exercise Price; Number of Rights............................................16
Section 2.4 Date on Which Exercise is Effective........................................................21
Section 2.5 Execution, Authentication, Delivery and Dating of Rights Certificates......................21
Section 2.6 Registration, Registration of Transfer and Exchange........................................22
Section 2.7 Mutilated, Destroyed, Lost and Stolen Right Certificates...................................23
Section 2.8 Persons Deemed Owners......................................................................23
Section 2.9 Delivery and Cancellation of Rights Certificates...........................................23
Section 2.10 Agreement of Rights Holders................................................................24
Section 2.11 Rights Certificate Holder not Deemed a Shareholder.........................................25
ARTICLE 3
ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF CERTAIN TRANSACTIONS
Section 3.1 Flip-in Event..............................................................................25
ARTICLE 4
THE RIGHTS AGENT
Section 4.1 General....................................................................................26
Section 4.2 Merger or Amalgamation or Change of Name of Rights Agent...................................26
Section 4.3 Duties of Rights Agent.....................................................................27
Section 4.4 Change of Rights Agent.....................................................................29
ARTICLE 5
MISCELLANEOUS
Section 5.1 Redemption and Waiver......................................................................30
Section 5.2 Expiration.................................................................................31
Section 5.3 Issuance of New Rights Certificates........................................................32
Section 5.4 Supplements and Amendments.................................................................32
Section 5.5 Fractional Rights and Fractional Shares....................................................33
Section 5.6 Rights of Action...........................................................................34
Section 5.7 Notice of Proposed Actions.................................................................34
Section 5.8 Notices....................................................................................34
Section 5.9 Successors.................................................................................35
Section 5.10 Benefits of this Agreement.................................................................35
Section 5.11 Governing Law..............................................................................35
Section 5.12 Severability...............................................................................35
Section 5.13 Effective Date.............................................................................35
Section 5.14 Determinations and Actions by the Board of Directors.......................................36
Section 5.15 Rights of Board, Corporation and Offeror...................................................36
Section 5.16 Regulatory Approvals.......................................................................36
Section 5.17 Declaration as to Non-Canadian Holders.....................................................36
Section 5.18 Time of the Essence........................................................................36
Section 5.19 Execution in Counterparts..................................................................36
SCHEDULE
SCHEDULE 2.2(3)
SHAREHOLDER RIGHTS PLAN AGREEMENT
This Agreement dated June 15, 2000 between Cedara Software Corp. (the
"Corporation"), a corporation incorporated under the laws of Ontario, and
Montreal 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).
WITNESSES THAT:
WHEREAS the Board of Directors has determined that it is advisable
and in the best interests of the Corporation to adopt and maintain a
shareholder rights plan (the "Rights Plan"); and
WHEREAS in order to implement the adoption of the Rights Plan the
Board of Directors has authorized the issuance of one Right:
(i) effective at the Record Time in respect of each Common Share
outstanding at the Record Time; and
(ii) in respect of each Common Share issued after the Record Time
and prior to the earlier of the Separation Time and the
Expiration Time; and
WHEREAS each Right entitles 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 Corporation desires to appoint the Rights Agent to act on
behalf of the Corporation, and the Rights Agent is willing to so act, in
connection with the issuance, transfer, exchange and replacement of Rights
Certificates, the exercise of Rights and other matters referred to herein;
NOW THEREFORE, in consideration of the foregoing premises and the
respective covenants and agreements set forth herein, the parties hereby agree
as follows:
ARTICLE 1
INTERPRETATION
Section 1.1 Certain Definitions.
For purposes of the Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" means, any Person who is the Beneficial
Owner of twenty percent (20%) or more of the outstanding
Voting Shares of the Corporation; 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
twenty percent (20%) or more of the outstanding
Voting Shares of the Corporation as a result of (A)
Corporate Acquisitions, (B) Permitted Bid
Acquisitions, (C) Corporate Distributions, (D)
Exempt Acquisitions, or (E) Convertible Security
Acquisitions; provided, however, that if a Person
shall become the Beneficial Owner of twenty percent
(20%) or more of the Voting Shares of the
Corporation then outstanding by reason of one or
more or any combination of the operation of a
Corporate Acquisition, Permitted Bid Acquisition,
Corporate Distribution, Exempt Acquisition or
Convertible Security Acquisition and, after such
Corporate Acquisition, Permitted Bid Acquisition,
Corporate Distribution, Exempt Acquisition or
Convertible Security Acquisition, becomes the
Beneficial Owner of an additional one percent (1%)
or more of the outstanding Voting Shares of the
Corporation other than pursuant to Corporate
Acquisitions, Permitted Bid Acquisitions, Corporate
Distributions, Exempt Acquisitions or Convertible
Security Acquisitions, then as of the date of such
acquisition, such Person shall become an Acquiring
Person;
(iii) for a period of ten (10) days after the
Disqualification Date (as hereinafter defined), any
Person who becomes the Beneficial Owner of twenty
percent (20%) or more of the outstanding Voting
Shares of the Corporation as a result of such
Person becoming disqualified from relying on Clause
1.1(e)(3) hereof solely because such Person makes
or proposes to make a Take-over Bid in respect of
securities of the Corporation alone or by acting
jointly or in concert with any other Person (the
first date of public announcement (which, for the
purposes of this definition, shall include, without
limitation, a report filed pursuant to section 101
of the Securities Act (Ontario)) by such Person or
the Corporation of a current intent to commence
such a Take-over Bid being herein referred to as
the "Disqualification Date"); and
(iv) an underwriter or member of a banking or selling
group that acquires Voting Shares of the
Corporation from the Corporation in connection with
a distribution of securities.
(b) "Affiliate" when used to indicate a relationship with a
specified Person, means a Person that directly or indirectly
through one or more intermediaries, controls, or is controlled
by, or is under common control with, such specified Person.
(c) "Agreement" means this agreement as amended, modified or
supplemented from time to time.
(d) "Associate" when used to indicate a relationship with a
specified Person, means any relative of such specified Person
who has the same home as such specified Person, or any Person
to whom such specified Person is married or with whom such
specified Person is living in a conjugal relationship outside
marriage, or any relative of such spouse or other Person who
has the same home as such specified Person.
(e) 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
Affiliate or Associate of such Person is the owner
in law or equity;
(ii) any securities as to which such Person or any of
such Person's Affiliates or Associates has the
right to acquire (A) upon the exercise of any
Convertible Securities, or (B) pursuant to any
agreement, arrangement or understanding, if such
right is exercisable immediately or within a period
of 60 days thereafter whether or not on condition
or the happening of any contingency (other than
customary agreements with and between underwriters
and banking group or selling group members with
respect to a distribution of securities or pursuant
to a pledge of securities in the ordinary course of
business); and
(iii) any securities that are Beneficially Owned within
the meaning of Sections 1.1(e)(i) or (ii) hereof by
any other Person with whom such Person is acting
jointly or in concert;
provided, however, that a Person shall not be deemed the
"Beneficial Owner", or to have "Beneficial Ownership" of, or
to "Beneficially Own", any security as a result of the
existence of any one or more of the following circumstances:
(1) such security has been deposited or tendered,
pursuant to a Take-over Bid made by such Person or
made by any Affiliate or Associate of such Person
or made by any other Person acting jointly or in
concert with such Person, unless such deposited or
tendered security has been taken up or paid for,
whichever shall first occur;
(2) by reason of the holder of such security having
agreed to deposit or tender such security 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 pursuant to a Permitted Lock-Up
Agreement;
(3) such Person or any Affiliate or Associate of such
Person or any other Person acting jointly or in
concert with such Person, holds such security;
provided that (i) the ordinary business of any such
Person (the "Fund Manager") includes the management
of investment funds for others (which others may
include or be limited to one or more employee
benefit plans or pension plans) or includes the
acquisition or holding of securities for a
non-discretionary account of a Client (as defined
below) by a dealer or broker registered under
applicable securities laws to the extent required,
and such security is held by the Fund Manager in
the ordinary course of such business in the
performance of such Fund Manager's duties for the
account of any other Person (a "Client"), (ii) such
Person (the "Trust Company") is licensed to carry
on the business of a trust company under applicable
law and, as such, acts as trustee or administrator
or in a similar capacity in relation to the estates
of deceased or incompetent Persons or in relation
to other accounts and holds such security in the
ordinary course of such duties for the estate of
any such deceased or incompetent Person (each an
"Estate Account") or for such other accounts (each
an "Other Account"), (iii) the Person (the
"Statutory Body") is an independent Person
established by statute for purposes that include,
and the ordinary business or activity of such
person includes, the management of investment funds
for employee benefit plans, pension plans,
insurance plans of various public bodies and the
Statutory Body holds such security for the purposes
of its activities as such, (iv) the ordinary
business of any such Person includes acting as an
agent of the Crown in the management of public
assets (the "Crown Agent"), or (v) the Person, any
of such Person's Affiliates or Associates or any
other Person acting jointly or in concert with such
Person holds such security, provided that the
Person is the administrator or the trustee of one
or more pension funds or plans (each a "Pension
Fund") registered under the laws of Canada or any
province thereof or the United States or any state
thereof (the "Independent Person"), or is a Pension
Fund and holds such securities for the purposes of
its activities as an Independent Person or as a
Pension Fund, and further provided that such Person
does not hold more than thirty percent (30%) of the
Voting Shares of the Corporation;
provided, however, that in any of the foregoing cases
no one of the Fund Manager, the Trust Company, the
Statutory Body, the Crown Agent, the Independent
Person or the Pension Fund makes or announces a
current intention to make a Take-over Bid in respect
of securities of the Corporation alone or by acting
jointly or in concert with any other Person (other
than pursuant to a distribution by the Corporation or
by means of ordinary market transactions (including
prearranged trades entered into the ordinary course
of business of such Person) executed through the
facilities of a stock exchange or organized
over-the-counter market);
(4) such Person is a Client of the same Fund Manager as
another Person on whose account the Fund Manager
holds such security, or such Person is an Estate
Account or an Other Account of the same Trust
Company as another Person on whose account the
Trust Company holds such security, or such Person
is a Pension Fund with the same Independent Person
as another Pension Fund;
(5) such Person is a Client of a Fund Manager and such
security is owned at law or in equity by the Fund
Manager, or such Person is an Estate Account or an
Other Account of a Trust Company and such security
is owned at law or in equity by the Trust Company,
or such Person is a Pension Fund and such security
is owned at law or in equity by the Independent
Person; or
(6) such Person is a registered holder of securities as
a result of carrying on the business of, or acting
as a nominee of, a securities depository.
For purposes of this Agreement, the percentage of Voting
Shares Beneficially Owned by any Person, shall be and be
deemed to be the product of one hundred (100) and the number
of which the numerator is the number of votes for the election
of all directors generally attaching to the Voting Shares
Beneficially Owned by such Person and the denominator of which
is 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 issued and
outstanding for the purpose of calculating the percentage of
Voting Shares Beneficially Owned by such Person.
(f) "Board of Directors" means, at any time, the duly
constituted board of directors of the Corporation.
(g) "Business Day" means any day other than a Saturday, Sunday
or a day on which banking institutions in Toronto are
authorized or obligated by law to close.
(h) "close of business" on any given date means 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 the City of Toronto
(or, after the Separation Time, the office of the Rights
Agent in the City of Toronto) is closed to the public.
(i) "Common Shares", when used with reference to the
Corporation, means the common shares in the capital of the
Corporation.
(j) "Competing Bid" means a Take-over Bid that: (i) is made
while another Permitted Bid is in existence, and (ii)
satisfies all the components of the definition of a
Permitted Bid, except that the requirements set out in
Clause (ii) of the definition of a Permitted Bid shall be
satisfied if the Take-over Bid shall contain, and the take
up and payment for securities tendered or deposited
thereunder shall be subject to, an irrevocable and
unqualified condition that no Voting Shares shall be taken
up or paid for pursuant to the Competing Bid prior to the
close of business on the date that is no earlier than the
date which is the later of twenty-one (21) days (or such
longer minimum period of days that a take-over bid must
remain open for acceptance under the Securities Act
(Ontario)) after the date the Competing Bid is made or 60
days after the earliest date on which a Permitted Bid or
Competing Bid then in existence was made and only if at that
date, more than fifty percent (50%) of the then outstanding
Voting Shares held by Independent Shareholders have been
deposited to the Competing Bid and not withdrawn.
(k) "controlled": a corporation is "controlled" by another
Person if:
(i) securities entitled to vote in the election of
directors carrying more than fifty percent (50%) of
the votes for the election of directors are held,
directly or indirectly, by or for the benefit of
the other Person; and
(ii) the votes carried by such securities are entitled,
if exercised, to elect a majority of the board of
directors of such corporation;
(l) and "controls", "controlling" and "under common control
with" shall be interpreted accordingly. "Convertible
Security" means at any time:
(i) any right (other than the Rights), regardless of
whether such right constitutes a security, to
acquire Voting Shares from the Corporation; and
(ii) any securities issued by the Corporation from time
to time (other than the Rights) carrying any
exercise, conversion or exchange right;
which is then exercisable or exercisable within a period of
60 days from that time pursuant to which the holder thereof
may acquire Voting Shares or other securities which are
convertible into or exercisable or exchangeable for Voting
Shares (in each case, whether such right is then exercisable
or exercisable within a period of 60 days from that time and
whether or not on condition or the happening of any
contingency).
(m) "Convertible Security Acquisition" means the acquisition of
Voting Shares upon the exercise of Convertible Securities
received by a Person pursuant to a Permitted Bid
Acquisition, Exempt Acquisition or a Corporate Distribution.
(n) "Corporate Acquisition" means an acquisition by the
Corporation or the redemption by the Corporation of Voting
Shares of the Corporation which by reducing the number of
Voting Shares of the Corporation outstanding increases the
proportionate number of Voting Shares Beneficially Owned by
any Person.
(o) "Corporate Distribution" means an acquisition as a result
of:
(i) a stock dividend or a stock split or other event
pursuant to which a Person receives or acquires
Voting Shares on the same pro rata basis as all
other holders of Voting Shares of the same class;
or
(ii) any other event pursuant to which all holders of
Voting Shares of the Corporation are entitled to
receive Voting Shares or Convertible Securities on
a pro rata basis, including, without limiting the
generality of the foregoing, pursuant to the
receipt or exercise of rights issued by the
Corporation and distributed to all the holders of a
class of Voting Shares to subscribe for or purchase
Voting Shares or Convertible Securities of the
Corporation, provided that such rights are acquired
directly from the Corporation and not from any
other Person.
(p) "Disqualification Date" has the meaning ascribed thereto in
Section 1.1(a)(iii) hereof.
(q) "Effective Date" has the meaning ascribed thereto in Section
5.13 hereof.
(r) "Election to Exercise" has the meaning ascribed thereto in
Section 2.2(4) hereof.
(s) "Exempt Acquisition" means an acquisition:
(i) in respect of which the Board of Directors has
waived the application of Section 3.1 hereof
pursuant to the provisions of Section 5.1(2),
5.1(3) or 5.1(4) hereof;
(ii) which was made on or prior to the Record Time;
(iii) which was made pursuant to a dividend reinvestment
plan of the Corporation;
(iv) pursuant to a distribution to the public by the
Corporation of Voting Shares or Convertible
Securities made pursuant to a prospectus provided
that the Person in question does not thereby
acquire a greater class percentage of Voting
Shares, or Convertible Securities representing the
right to acquire Voting Shares of such class, than
the percentage of Voting Shares of the class
Beneficially Owned immediately prior to such
acquisition; or
(v) pursuant to a distribution by the Corporation of
Voting Shares or Convertible Securities by way of a
private placement by the Corporation, provided that
(x) all necessary stock exchange approvals for such
private placement have been obtained and such
private placement complies with the terms and
conditions of such approvals, and (y) the purchaser
does not become the Beneficial Owner of 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).
(t) "Exercise Price" means, as of any date, the price at which a
holder may purchase the securities issuable upon exercise of
one whole Right. Until adjustment thereof in accordance with
the terms hereof, the Exercise Price shall be $100.
(u) "Expiration Time" means the earlier of: (i) the Termination
Time, and (ii) the close of business on the date immediately
following the date of the Corporation's annual meeting of
shareholders to be held in 2003.
(v) "Flip-in Event" means a transaction in or pursuant to which
any Person becomes an Acquiring Person.
(w) "Independent Shareholders" means holders of Voting Shares of
the Corporation, but shall not include any Acquiring Person
or any Offeror (other than any Person who pursuant to Clause
1.1(e)(3) is not deemed to Beneficially Own the Voting
Shares held by such Person), or any Affiliate or Associate
of such Acquiring Person or such Offeror, or any Person
acting jointly or in concert with such Acquiring Person or
such Offeror, or any employee benefit plan, stock purchase
plan, deferred profit sharing plan or any similar plan or
trust for the benefit of employees of the Corporation or a
Subsidiary of the Corporation, unless the beneficiaries of
any such plan or trust direct the manner in which the Voting
Shares are to be voted or direct whether the Voting Shares
are to be tendered to a Take-over Bid.
(x) "Market Price" per share of any securities on any date of
determination means the average of the daily closing prices
per share of such securities (determined as described below)
on each of the twenty (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
hereof shall have caused the closing prices used to
determine the Market Price on any Trading Days 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 hereof 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 share of any securities on any date shall
be (i) the closing board lot sale price or, if such price is
not available, the average of the closing bid and asked
prices, for each share as reported by The Toronto Stock
Exchange, or (ii) if for any reason none of such prices is
available on such day or the securities are not listed or
admitted to trading on The Toronto Stock Exchange, the
closing board lot sale price or, if such price is not
available, the average of the closing bid and asked prices,
for each share as reported in the principal consolidated
transaction reporting system with respect to securities
listed or admitted to trading on the securities exchange on
which the securities are primarily traded, or (iii) if not
so listed, the last quoted price, or if not so quoted, the
average of the high bid and low asked prices for each share
of such securities in the over-the-counter market, or (iv)
if on any such date the securities are not quoted by any
such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the securities selected in good faith by the Board
of Directors; provided, however, that if on any such date
the securities are not traded in the over-the-counter
market, the closing price per share of such securities on
such date shall mean the fair value per share of such
securities on such date as determined in good faith by a
nationally or internationally recognized investment dealer
or investment banker.
(y) "OBCA" means the Ontario Business Corporations Act R.S.O.
1990, c. B.16, and the regulations thereunder, and any
comparable or successor laws or regulations thereto.
(z) "Offer to Acquire" shall include:
(i) an offer to purchase, a public announcement of an
intention to make an offer to purchase, or a
solicitation of an offer to sell, Voting Shares of
the Corporation; and
(ii) an acceptance of an offer to sell Voting Shares of
the Corporation, 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.
(aa) "Offeror" means a Person who has announced a current
intention to make, or who makes and has outstanding, a
Take-over Bid.
(bb) "Offeror's Securities" means Voting Shares of the
Corporation Beneficially Owned by an Offeror, any Affiliate
or Associate of such Offeror or any Person acting jointly or
in concert with the Offeror.
(cc) "Permitted Bid" means a Take-over Bid that is made by means
of a Take-over Bid circular and which also complies with the
following additional provisions:
(i) the Take-over Bid shall be made to all registered
holders of Voting Shares (other than the Voting
Shares held by the Offeror);
(ii) the Take-over Bid shall contain, and the take up and
payment for securities tendered or deposited
thereunder shall be subject to, an irrevocable and
unqualified condition that no Voting Shares shall be
taken up or paid for pursuant to the Take-over Bid
prior to the close of business on the date which is
not less than sixty (60) days following the date of
the Take-over Bid and that no Voting Shares shall be
taken up or paid for pursuant to the Take-over Bid
unless, at such date, more than fifty percent (50%)
of the then outstanding Voting Shares held by
Independent Shareholders have been deposited to the
Take-over Bid and not withdrawn;
(iii) the Take-over Bid shall contain an irrevocable and
unqualified provision that, unless the Take-over Bid
is withdrawn, Voting Shares of the Corporation may be
deposited pursuant to such Take-over Bid at any time
during the period of time described in Clause (ii) of
this Section 1.1(cc) and that any Voting Shares
deposited pursuant to the Take-over Bid may be
withdrawn at any time until taken up and paid for;
and
(iv) the Take-over Bid shall contain an irrevocable and
unqualified provision that should the condition
referred to in Clause (ii) of this Section 1.1(cc) be
met: (A) the Offeror will make a public announcement
of that fact on the date the Take-over Bid would
otherwise expire; and (B) the Take-over Bid will be
extended for a period of not less than ten (10)
Business Days from the date it would otherwise
expire.
(dd) "Permitted Bid Acquisitions" means share acquisitions made
pursuant to a Permitted Bid or a Competing Bid.
(ee) "Permitted Lock-Up Agreement" means an agreement between a
Person and one or more holders (each a "Locked-up Person")
of Voting Shares or Convertible Securities (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 agreement was entered into
after the date of the Lock-up Bid, not later than the date
the agreement was entered into), pursuant to which such
Locked-up Persons agree to deposit or tender Voting Shares
or Convertible Securities to a Take-over Bid (the "Lock-up
Bid") 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 and where the
agreement:
(i) (A) permits the Locked-up Person to withdraw Voting
Shares or Convertible Securities in order to tender
or deposit Voting Shares or Convertible Securities to
another Take-over Bid or to support another
transaction that contains an offering price for each
Voting Share or Convertible Security that exceeds, or
provides a value for each Voting Share or Convertible
Security that is greater than, the offering price or
value contained or proposed to be contained in the
Lock-up Bid, provided that the other Take-over Bid is
made for at least the same number of Voting Shares or
Convertible Securities as the Lock-up Bid; or
(B) permits the Locked-up Person to withdraw Voting
Shares or Convertible Securities in order to tender
or deposit the Voting Shares or Convertible
Securities to another Take-over Bid or to support
another transaction that contains an offering price
for each Voting Share or Convertible Security that
exceeds, or provides a value for each Voting Share or
Convertible Security that is greater than, the
offering price contained in or proposed to be
contained in, the Lock-up Bid by as much or more than
a specified amount (the "Specified Amount") and the
Specified Amount is not greater than 7% of the
offering price that is contained in the Lock-up Bid,
provided that the other Take-over Bid is made for at
least the same number of Voting Shares or Convertible
Securities as the Lock-up Bid; and
(ii) provides that 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 the Locked-up Person, and (B) 50% of
the amount by which the price or value payable under
another Take-over Bid 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 such Locked-up
Person pursuant to the agreement in the event that
the Lock-up Bid is not successfully concluded or if
any Locked-up Person fails to tender Voting Shares or
Convertible Securities pursuant thereto;
and, for greater certainty, the agreement may contain a
right of first refusal or require a period of delay to give
the Offeror an opportunity to at least match a higher
consideration in another Take-over Bid or transaction or
contain other similar limitation on a Locked-up Person's
right to withdraw Voting Shares or Convertible Securities
from the agreement, so long as any such limitation does not
preclude the exercise by the Locked-up Person of the right
to withdraw Voting Shares or Convertible Securities in
sufficient time to tender to the other Take-over Bid or
transaction.
(ff) "Person" means any individual, firm, partnership,
association, trust, trustee, executor, administrator, legal
or personal representative, government, governmental body,
entity or authority, group, body corporate, corporation,
unincorporated organization or association, syndicate, joint
venture or any other entity, whether or not having legal
personality, and any of the foregoing in any derivative,
representative or fiduciary capacity and pronouns have a
similar extended meaning.
(gg) "Record Time" means 5:00 p.m. (Toronto time) on June 15,
2000.
(hh) "Redemption Price" has the meaning ascribed thereto in
Section 5.1(1) hereof. (ii) "regular periodic cash
dividends" means 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) two hundred percent (200%) of the aggregate amount
of cash dividends declared payable by the
Corporation on its Common Shares in its immediately
preceding fiscal year; and
(ii) one hundred percent (100%) of the aggregate
consolidated net income of the Corporation, before
extraordinary items, for its immediately preceding
fiscal year.
(jj) "Right" means a right issued pursuant to this Agreement.
(kk) "Rights Certificate" has the meaning ascribed thereto in
Section 2.2(3) hereof.
(ll) "Rights Register" has the meaning ascribed thereto in
Section 2.6(1) hereof.
(mm) "Securities Act (Ontario)" means the Securities Act, R.S.O.
1990, c. S.5, and the regulations, rules, policies, and
notices thereunder, and any comparable or successor laws,
regulations, rules, policies or notices thereto.
(nn) "Separation Time" means the close of business on the tenth
(10th) Trading Day after the earlier of (i) the Stock
Acquisition Date, (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 Bid) and (iii) the date on which
a Permitted Bid or Competing Bid ceases to qualify as such
or, in the case of Clauses (ii) and (iii) of this Section
1.1(nn) such later date as may be determined by the Board of
Directors provided that, if any Take-over Bid referred to in
Clause (ii) of this Section 1.1(nn) or any Permitted Bid or
Competing Bid referred to in Clause (iii) of this Section
1.1(nn) expires, is cancelled, terminated or otherwise
withdrawn prior to the Separation Time, such Take-over Bid,
Permitted Bid or Competing Bid, as the case may be, shall be
deemed, for the purposes of this Section 1.1(nn), never to
have been made and provided further that if the Board of
Directors determines pursuant to Sections 5.1(2),(3) or (4)
hereof to waive the application of Section 3.1 hereof to a
Flip-in Event, the Separation Time in respect of such
Flip-in Event shall be deemed never to have occurred.
(oo) "Stock Acquisition Date" means 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 Offeror or Acquiring Person of facts
indicating that a Person has become an Acquiring Person.
(pp) "Subsidiary": a corporation shall be deemed to be a
Subsidiary of another corporation if:
(i) it is controlled by:
(A) that other;
(B) that other and one or more corporations each
of which is controlled by that other; or
(C) two or more corporations each of which is
controlled by that other; and
(ii) it is a Subsidiary of a corporation that is that
other's Subsidiary.
(qq) "Take-over Bid" means an Offer to Acquire Voting Shares of
the Corporation or securities convertible into or
exchangeable for or carrying a right to purchase Voting
Shares of the Corporation where the Voting Shares of the
Corporation subject to the Offer to Acquire, together with
the Voting Shares of the Corporation into which the
securities subject to the Offer to Acquire are convertible,
exchangeable or exercisable, and the Offeror's Securities,
constitute in the aggregate twenty percent (20%) or more of
the outstanding Voting Shares of the Corporation at the date
of the Offer to Acquire.
(rr) "Termination Time" means the time at which the right to
exercise Rights shall terminate pursuant to Sections 5.1(1),
(5) or 5.13 hereof.
(ss) "Trading Day", when used with respect to any securities,
means a day on which the principal Canadian stock exchange
or American stock exchange or market 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 stock exchange or
American stock exchange or market, a Business Day.
(tt) "Voting Shares" means the Common Shares and any other shares
of capital stock or voting interests of the Corporation
entitled to vote generally in the election of all directors.
Section 1.2 Currency.
All sums of money which are referred to in this Agreement are
expressed in lawful money of Canada, unless otherwise specified.
Section 1.3 Headings.
The division of this Agreement into Articles, Sections and Clauses
and the insertion of headings, subheadings and a table of contents are for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
Section 1.4 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 only one gender shall include all others.
Section 1.5 Acting Jointly or in Concert.
For the purposes of this Agreement, a Person is acting jointly or in
concert with every Person who is a party to an agreement, commitment or
understanding, whether formal or informal, with the first Person or any
Associate or Affiliate of the second Person to acquire or to make an Offer to
Acquire Voting Shares of the Corporation (other than customary agreements with
and between underwriters or banking group members or selling group members
with respect to a distribution of securities or to a pledge of securities in
the ordinary course of business).
Section 1.6 Statutory References.
Unless the context otherwise requires or except as expressly provided
herein, any reference herein to a specific part, section, clause or Rule of
any statute or regulation shall be deemed to refer to the same as it may be
amended, re-enacted or replaced or, if repealed and there shall be no
replacement therefor, to the same as it is in effect on the date of this
Agreement.
ARTICLE 2
THE RIGHTS
Section 2.1 Legend on Common Share Certificates.
(1) Certificates issued for Common Shares after the Record Time but prior
to the close of business on the earlier of the Separation Time and
the Expiration Time shall evidence one Right for each Common Share
represented thereby and, commencing as soon as reasonably practicable
after the effective date of this Agreement, shall have impressed on,
printed on, written on or otherwise affixed to them, a legend in
substantially the following form:
Until the Separation Time (as defined in the Rights Plan
referred to below), this certificate also evidences and
entitles the holder hereof to certain Rights as set forth in
the Shareholder Rights Plan Agreement, dated June 15, 2000, as
amended and restated from time to time (the "Rights Plan"),
between Cedara Software Corp. (the "Corporation") and Montreal
Trust Company of Canada, as rights agent (the "Rights Agent"),
the terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal executive
office of the Corporation. Under certain circumstances, as set
forth in the Rights Plan, such Rights may be amended or
redeemed, may expire, may become null and void (if, in certain
cases, they are issued to or "Beneficially Owned" by any
Person who is, was or becomes an "Acquiring Person", as such
terms are defined in the Rights Plan, whether currently held
by or on behalf of such Person or any subsequent holder) 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 Plan to the holder of this certificate without
charge upon receipt of a written request therefor.
(2) Until the earlier of the Separation Time and the Expiration Time,
certificates representing Common Shares that are issued and
outstanding at the Record Time shall evidence one Right for each
Common Share evidenced thereby notwithstanding the absence of the
foregoing legend. Following the Separation Time, Rights will be
evidenced by Rights certificates issued pursuant to Section 2.2
hereof.
Section 2.2 Initial Exercise Price; Exercise of Rights; Detachment of Rights.
(1) Right to entitle holder to purchase one Common Share prior to
adjustment. Subject to adjustment as herein set forth and subject to
Section 3.1(1) hereof, each Right will entitle the holder thereof,
from and after the Separation Time and prior to the Expiration Time,
to purchase, for the Exercise Price as at the Business Day
immediately preceding the date of exercise of the Right, one Common
Share (which price and number of Common Shares are subject to
adjustment as set forth below and are subject to Section 3.1(1)
hereof). Notwithstanding any other provision of this Agreement, any
Rights held by the Corporation and any of its Subsidiaries shall be
void.
(2) Rights not exercisable until Separation Time. 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 certificates for the associated Common Shares
registered in the names of the holders thereof (which certificates
shall also be deemed to be Rights Certificates) and will be
transferable only together with, and will be transferred by a transfer
of, such associated Common Shares.
(3) Delivery of Rights Certificate and disclosure statement. From and after
the Separation Time and prior to the Expiration Time, (i) the Rights
shall be exercisable, and (ii) the registration and transfer of the
Rights shall be separate from, and independent of, Common Shares.
Promptly following the Separation Time, the Corporation will prepare
and the Rights Agent will mail to each holder of record of Rights as of
the Separation Time (other than an Acquiring Person 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 (a "Nominee")) 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), (A) a
certificate (a "Rights Certificate") in substantially the form of
Schedule 2.2(3) 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, rule, regulation or judicial
or administrative order or with any rule or regulation 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
(B) a disclosure statement describing the Rights, provided that a
Nominee shall be sent the materials provided for in (A) and (B) in
respect of all Common 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 Common Shares which are
Beneficially Owned by another Person, the Corporation may require such
first mentioned Person to furnish it with such information and
documentation as the Corporation considers advisable.
(4) Exercise of Rights. 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 the office of the Rights Agent in
the City of Toronto or any other office of the Rights Agent in the
cities designated from time to time for that purpose by the
Corporation) the Rights Certificate evidencing such Rights together
with an election to exercise such Rights (an "Election to Exercise")
substantially in the form attached to the Rights Certificate duly
completed, accompanied by payment by certified cheque, banker's draft
or money order payable to the order of the Corporation, 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 any transfer involved in 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 exercised, all of the above to be received
before the Expiration Time by the Rights Agent at its principal office
in any of the cities listed on the Rights Certificate.
(5) Duties of Rights Agent upon receipt of Election to Exercise. Upon
receipt of a Rights Certificate, which is accompanied by (i) a
completed and duly executed Election to Exercise, and (ii) payment as
set forth in Section 2.2(4) above, the Rights Agent (unless otherwise
instructed by the Corporation) will thereupon promptly:
a. requisition from the transfer agent for the Common Shares
certificates representing the number of Common Shares to be
purchased (the Corporation hereby irrevocably authorizing
its transfer agent to comply with all such requisitions);
b. when appropriate, requisition from the Corporation the
amount of cash to be paid in lieu of issuing fractional
Common Shares;
c. after receipt of such certificates, deliver the same 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 registered holder;
d. when appropriate, after receipt, deliver such cash (less any
amounts required to be withheld) to or to the order of the
registered holder of the Rights Certificate; and
e. tender to the Corporation all payments received on exercise
of the Rights.
(6) Partial Exercise of Rights. In case the holder of any Rights shall
exercise less than all of 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.
(7) Duties of the Corporation. The Corporation covenants and agrees that it
will:
(a) take all such action as may be necessary and within its
power to ensure that all Common Shares or other securities
delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares (subject to
payment of the Exercise Price), be duly and validly
authorized, executed, issued and delivered and fully paid
and non-assessable;
(b) take all such action as may be necessary and within its
power to ensure compliance with the provisions of Section
3.1 hereof including, without limitation, all such action to
comply with any applicable requirements of the OBCA, the
Securities Act (Ontario) and any applicable comparable
securities legislation of each of the provinces of Canada
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 or other
securities upon exercise of Rights;
(c) use reasonable efforts to cause, from and after such time as
the Rights become exercisable, all Common Shares issued upon
exercise of Rights to be listed upon issuance on the
principal stock exchange on which the Common Shares were
traded prior to the Stock Acquisition Date;
(d) 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;
(e) pay when due and payable any and all Canadian federal and
provincial transfer taxes and charges (not including any
income or capital taxes of the holder or exercising holder
or any liability of the Corporation to withhold tax) which
may be payable in respect of the original issuance or
delivery of the Rights Certificates, provided that the
Corporation shall not be required to pay any transfer tax or
charge which may be payable in respect of any transfer
involved in the transfer or delivery of Rights Certificates
or the issuance or delivery of certificates for shares or
other securities in a name other than that of the registered
holder of the Rights being transferred or exercised; and
(f) after the Separation Time, except as permitted by Sections
5.1 or 5.4 hereof, not take (or permit any Subsidiary 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.
Section 2.3 Adjustments to Exercise Price; Number of Rights.
The Exercise Price, the number and kind of Common Shares or other
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:
(a) Adjustment to Exercise Price upon changes to share capital.
In the event the Corporation shall at any time after the
Record Time:
(i) declare or pay a dividend on the Common Shares
payable in Common Shares (or other securities
exchangeable for or convertible into or giving a
right to acquire Common Shares or other securities)
other than the issue of Common Shares or such
exchangeable or convertible securities to holders
of Common Shares in lieu of but not in an amount
which exceeds the value of regular periodic cash
dividends;
(ii) subdivide or change the outstanding Common Shares
into a greater number of Common Shares;
(iii) combine or change the outstanding Common Shares
into a smaller number of Common Shares; or
(iv) issue any Common Shares (or other securities
exchangeable for or convertible into or giving a
right to acquire Common Shares or other securities)
in respect of, in lieu of or in exchange for
existing Common Shares, except as otherwise
provided in this Section 2.3;
the Exercise Price in effect at the time of the record date
for such dividend or of the effective date of such
subdivision, combination or reclassification, and the number
and kind of Common Shares, or other securities, as the case
may be, issuable on such date, shall be proportionately
adjusted so that the holder of any Right exercised after such
time shall be entitled to receive, upon payment of the
Exercise Price then in effect, the aggregate number and kind
of Common Shares or other securities, as the case may be,
which, if such Right had been exercised immediately prior to
such date and at a time when the Common Share transfer books
of the Corporation were open, such holder would have owned
upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification.
If an event occurs which would require an adjustment under
both this Section 2.3 and Section 3.1 hereof, 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 hereof.
(b) Adjustment to Exercise Price upon issue of rights, options
and warrants. In case the Corporation shall at any time
after the Record Time fix a record date for the issuance of
rights, options or warrants to all holders of Common Shares
entitling them (for a period expiring within forty-five (45)
calendar days after such record date) to subscribe for or
purchase Common Shares (or shares having the same rights,
privileges and preferences as Common Shares ("equivalent
common shares")) or securities convertible into or
exchangeable for or carrying a right to purchase Common
Shares or equivalent common shares at a price per Common
Share or per equivalent common share (or having a conversion
price or exchange price or exercise price per share, if a
security convertible into or exchangeable for or carrying a
right to purchase Common Shares or equivalent common shares)
less than ninety percent (90%) of the Market Price per
Common Share on such record date, the Exercise Price to be
in effect after such record date shall be determined by
multiplying the Exercise Price in effect immediately prior
to such record date by a fraction, the numerator of which
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 and/or equivalent common shares so to be offered
(and/or the aggregate initial conversion, exchange or
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 so to be offered) would purchase at
such Market Price per Common Share, and the denominator of
which shall be the number of Common Shares outstanding on
such record date, plus the number of additional Common
Shares and/or equivalent common shares to be offered for
subscription or purchase (or into which the convertible or
exchangeable securities are initially convertible,
exchangeable or exercisable). In case such subscription
price may be paid by delivery of consideration, part or all
of which may be in a form other than cash, the value of such
consideration shall be as determined in good faith by the
Board of Directors, whose determination shall be described
in a certificate filed with the Rights Agent and shall be
binding on the Rights Agent and the holders of the Rights.
Such adjustment shall be made successively whenever such a
record date is fixed and, in the event that such rights or
warrants are not so issued, the Exercise Price shall be
adjusted to be the Exercise Price which would then be in
effect if such record date had not been fixed.
For purposes of this Agreement, the granting of the right to
purchase Common Shares (or equivalent 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, stock
option 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, options
or warrants by the Corporation; provided, however, that, in
the case of any dividend or interest reinvestment plan, the
right to purchase Common Shares (or equivalent common shares)
is at a price per share of not less than ninety percent (90%)
of the current market price per share (determined as provided
in such plans) of the Common Shares.
(c) Adjustment to Exercise Price upon Corporate Distributions.
In case the Corporation shall at anytime after the Record
Time fix a record date for a distribution to all holders of
Common Shares (including any such distribution made in
connection with a merger, amalgamation, arrangement, plan,
compromise or reorganization in which the Corporation is the
continuing or successor corporation) of evidences of
indebtedness, cash (other than a regular periodic cash
dividend or a regular periodic cash dividend paid in Common
Shares, but including any dividend payable in securities
other than Common Shares), assets or subscription rights,
options or warrants (excluding those referred to in Section
2.3(b) above), the Exercise Price to be in effect after such
record date shall be determined by multiplying the Exercise
Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the Market Price
per Common Share on such record date, less the fair market
value (as determined in good faith by the Board of
Directors, whose determination shall be described in a
statement filed with the Rights Agent) of the portion of the
cash, assets or evidences of indebtedness so to be
distributed or of such subscription rights, options or
warrants applicable to a Common Share and the denominator of
which shall be such Market Price per Common Share. Such
adjustments shall be made successively whenever such a
record date is fixed, and in the event that such
distribution is not so made, the Exercise Price shall be
adjusted to be the Exercise Price which would have been in
effect if such record date had not been fixed.
(d) De minimis threshold for adjustment to Exercise Price.
Notwithstanding anything herein to the contrary, no
adjustment in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at
least one percent (1%) in the Exercise Price; provided,
however, that any adjustments which by reason of this
Section 2.3(d) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
All calculations under this Section 2.3 shall be made to the
nearest cent or to the nearest one-hundredth of a Common
Share or other share, as the case may be. Notwithstanding
the first sentence of this Section 2.3(d), any adjustment
required by this Section 2.3 shall be made no later than the
earlier of (i) three (3) years from the date of the
transaction which mandates such adjustment or (ii) the
Expiration Time.
(e) Corporation may provide for alternate means of adjustment.
Subject to the prior consent of the holders of Voting Shares
or Rights obtained as set forth in Section 5.4(2) or (3)
hereof, as applicable, in the event the Corporation shall at
any time after the Record Time issue any shares of capital
stock (other than Common Shares), or rights 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 Sections
2.3(a)(i) or (iv) or 2.3(b) or (c) above, if the Board of
Directors acting in good faith determines that the
adjustments contemplated by Sections 2.3(a), (b) and (c)
above in connection with such transaction will not
appropriately protect the interests of the holders of
Rights, the Corporation shall be entitled to determine what
other adjustments to the Exercise Price, number of Rights
and/or securities purchasable upon exercise of Rights would
be appropriate and, notwithstanding Sections 2.3(a), (b) and
(c) above, such adjustments, rather than the adjustments
contemplated by Sections 2.3(a), (b) and (c) above, shall be
made. The Corporation and the Rights Agent shall amend this
Agreement as appropriate to provide for such adjustments.
(f) Adjustment to Rights exercisable into shares other than
Common Shares. If as a result of an adjustment made pursuant
to Section 3.1 hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares other
than Common Shares, thereafter the number of such other
shares so receivable upon exercise of any Right and the
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 Sections 2.3(a), (b), (c), (d), (e),
(g), (h), (i), (j), (k) and (l) above and below, as the case
may be, and the provisions of this Agreement with respect to
the Common Shares shall apply on like terms to any such
other shares.
(g) Rights to evidence right to purchase Common Shares at adjusted
Exercise Price. Each Right originally issued by the
Corporation subsequent to any adjustment made to the 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 such
Right, all subject to further adjustment as provided herein.
(h) Adjustment to number of Common Shares purchasable upon
adjustment to Exercise Price. Unless the Corporation shall
have exercised its election as provided in Section 2.3(i)
below, upon each adjustment of the Exercise Price as a
result of the calculations made in Sections 2.3(b) and (c)
above, 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 (calculated to the nearest one
ten-thousandth) obtained by (A) multiplying (x) the number
of shares purchasable upon exercise of a Right immediately
prior to this adjustment by (y) the Exercise Price in effect
immediately prior to such adjustment of the Exercise Price,
and (B) dividing the product so obtained by the Exercise
Price in effect immediately after such adjustment of the
Exercise Price.
(i) Election to adjust number of Rights upon adjustment to
Exercise Price. The Corporation shall be entitled to elect
on or after the date of any adjustment of the 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 that number of Rights (calculated to the
nearest one ten-thousandth) obtained by dividing the
Exercise Price in effect immediately prior to adjustment of
the Exercise Price by the Exercise Price in effect
immediately after adjustment of the 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 Exercise Price is adjusted or any day
thereafter but, if Rights Certificates have been issued,
shall be at least ten (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 Section 2.3(i), 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 hereof, 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, 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 adjusted
Exercise Price and shall be registered in the names of the
holders of record of Rights Certificates on the record date
for the adjustment specified in the public announcement.
(j) Rights Certificates may contain Exercise Price before
adjustment. Irrespective of any adjustment or change in the
Exercise Price or the number of Common Shares issuable upon
the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express
the Exercise Price per share and the number of shares which
were expressed in the initial Rights Certificates issued
hereunder.
(k) Corporation may in certain cases defer issues of securities.
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 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 such exercise on the
basis of the Exercise Price in effect prior to such
adjustment; provided, however, that the Corporation shall
deliver to such holder an appropriate instrument evidencing
such holder's right to receive such additional shares
(fractional or otherwise) or securities upon the occurrence
of the event requiring such adjustment.
(l) Corporation has discretion to reduce Exercise Price for tax
reasons. 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 their good faith judgment, the Board
of Directors shall determine to be advisable in order that
any (A) consolidation or subdivision of the Common Shares,
(B) issuance of any Common Shares at less than the Market
Price, (C) issuance of securities convertible into or
exchangeable for Common Shares, (D) stock dividends or (E)
issuance of rights, options or warrants, referred to in this
Section 2.3 hereafter made by the Corporation to holders of
its Common Shares, shall not be taxable to such
shareholders.
Section 2.4 Date on Which Exercise is Effective.
Each person in whose name any certificate for Common Shares is issued
upon the exercise of Rights, shall for all purposes be deemed to have become the
holder of record of the Common Shares represented thereby on, and such
certificate shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered (together with a duly 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.
Section 2.5 Execution, Authentication, Delivery and Dating of Rights
Certificates
(1) The Rights Certificates shall be executed on behalf of the
Corporation by its Chairman of the Board, Chief Executive Officer or
Chief Financial Officer, together with 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 who were at any time the proper officers 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.
(2) Promptly after the Corporation learns of the Separation Time, the
Corporation will notify the Rights Agent of such Separation Time and
will deliver Rights Certificates executed by the Corporation to the
Rights Agent for countersignature and a disclosure statement as
described in Section 2.2(3), and the Rights Agent shall manually or
by facsimile signature countersign and mail such Rights Certificates
and disclosure statement to the holders of the Rights pursuant to
Section 2.2(3) hereof. No Rights Certificate shall be valid for any
purpose until countersigned by the Rights Agent as aforesaid.
(3) Each Rights Certificate shall be dated the date of countersignature
thereof.
Section 2.6 Registration, Registration of Transfer and Exchange.
(1) 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 Section 2.6(3) below and
the other provisions of this Agreement, the Corporation will execute
and the Rights Agent will countersign, register and deliver, in the
name of the holder 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.
(2) 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.
(3) 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 registered
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 or the Rights Agent may require the
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and the Corporation
may require payment of a sum sufficient to cover any other expenses
(including the fees and expenses of the Rights Agent) in connection
therewith.
Section 2.7 Mutilated, Destroyed, Lost and Stolen Right Certificates.
(1) 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 manually countersign and deliver in exchange
therefor a new Rights Certificate evidencing the same number of
Rights as did the Rights Certificate so surrendered.
(2) If there shall be delivered to the Corporation and the Rights Agent
prior to the Expiration Time (i) evidence to their reasonable
satisfaction of the destruction, loss or theft of any Rights
Certificate, and (ii) such indemnity or other security 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.
(3) As a condition to the issuance of any new Rights Certificate under
this Section 2.7, the Corporation or the Rights Agent may require the
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and the Corporation
may require payment of a sum sufficient to cover any other expenses
(including the fees and expenses of the Rights Agent) in connection
therewith.
(4) Every new Rights Certificate issued pursuant to this Section 2.7 in
lieu of any destroyed, lost or stolen Rights Certificate shall
evidence an original additional contractual obligation of the
Corporation, whether or not the destroyed lost or stolen Rights
Certificate shall be at any time enforceable by anyone, and the
holder thereof shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other holders
of Rights duly issued by the Corporation.
Section 2.8 Persons Deemed Owners.
Prior to due presentment of a Rights Certificate (or, prior to the
Separation Time, the associated Common Share certificate) for registration of
transfer, the Corporation, the Rights Agent and any agent of the Corporation
or the Rights Agent shall be entitled to deem and treat the person in whose
name a Rights Certificate (or, prior to the Separation Time, the associated
Common Share certificate) is registered as the absolute owner thereof and of
the Rights evidenced thereby for all purposes whatsoever. 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, the associated Common Shares).
Section 2.9 Delivery and Cancellation of Rights 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, subject to applicable
laws, destroy all cancelled Rights Certificates and deliver a certificate of
destruction to the Corporation.
Section 2.10 Agreement of Rights Holders.
Every holder of Rights, by accepting the same, consents and agrees
with the Corporation and the Rights Agent and with every other holder of
Rights:
(a) to be bound by and subject to the provisions of this
Agreement, as amended or supplemented from time to time in
accordance with the terms hereof, in respect of all Rights
held;
(b) that prior to the Separation Time each Right will be
transferable only together with, and will be transferred by
a transfer of, the Common Share certificate representing
such Right;
(c) that after the Separation Time, the Rights Certificates will
be transferable only on the Rights Register as provided
herein;
(d) that prior to due presentment of a Rights Certificate (or,
prior to the Separation Time, the associated Common Share
certificate) for registration of transfer, the Corporation,
the Rights Agent and any agent of the Corporation or the
Rights Agent shall be entitled to deem and treat the person
in whose name the Rights Certificate (or prior to the
Separation Time, the associated Common 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 Common Share certificate made by anyone other
than 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) that such holder of Rights has waived his right to receive
any fractional Rights or any fractional shares upon exercise
of Right;
(f) that without the approval of any holder of Rights 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 pursuant to and as provided herein; and
(g) that 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 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 governmental, 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.
Section 2.11 Rights Certificate Holder not Deemed a 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 Common Share or any other share or security of the
Corporation which may at any time be issuable 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
Rights Certificate, as such, any of the rights, titles, benefits or privileges
of a holder of Common 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 holders of shares of the Corporation at any 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
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 CERTAIN TRANSACTIONS
Section 3.1 Flip-in Event.
(1) Subject to Section 3.1(2) below, and Sections 5.1(2), (3) and (4)
hereof, in the event that prior to the Expiration Time a Flip-in
Event shall occur, the Corporation shall take such action as may be
necessary to ensure and provide within eight (8) Business Days of
such occurrence, or such longer period as may be required to satisfy
all applicable requirements of the Securities Act (Ontario), and the
securities legislation of each other province of Canada that, except
as provided below, each Right shall thereafter constitute the right
to purchase from the Corporation upon exercise thereof in accordance
with the terms hereof that number of Common Shares of the Corporation
having an aggregate Market Price on the date of the 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 hereof in the event that after such date of
occurrence an event of a type analogous to any of the events
described in Section 2.3 hereof shall have occurred with respect to
such Common Shares).
(2) Notwithstanding anything in this Agreement to the contrary, upon the
occurrence of any Flip-in Event, any Rights that are Beneficially
Owned 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 any Affiliate or Associate of such Acquiring
Person, or any Affiliate or Associate of such Person so acting
jointly or in concert, or (ii) a transferee or other successor in
title of Rights, directly or indirectly, of an Acquiring Person (or
of any Affiliate or Associate of an Acquiring Person) or of any
Person acting jointly or in concert with an Acquiring Person or any
Associate or Affiliate of an Acquiring Person (or of any Affiliate or
Associate of such Person so acting jointly or in concert) who becomes
a transferee or successor in title concurrently with or subsequent to
the Acquiring Person becoming such, shall become null and void
without any further action, and any holder of such Rights (including
transferees or successors in title) shall not have any rights
whatsoever to exercise such Rights under any provision of this
Agreement and shall not have thereafter any other rights whatsoever
with respect to such Rights, whether under any provision of this
Agreement or otherwise.
ARTICLE 4
THE RIGHTS AGENT
Section 4.1 General.
(1) The Corporation hereby appoints the Rights Agent to act as agent for
the Corporation in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The Corporation
may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable, subject to the prior approval of the Rights
Agent. In the event the Corporation appoints one or more co-Rights
Agents, the respective duties of the Rights Agents and co-Rights
Agents shall be as the Corporation may determine, with the approval
of the Rights Agent. 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 (including the reasonable fees and disbursements
of counsel for the Rights Agent) 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, its officers, directors and employees for, and to hold such
persons harmless against, any loss, liability, cost, claim, action,
suit, damage, or expense incurred (that is not the result of
negligence, bad faith or wilful misconduct on the part of any one or
all of the Rights Agent, its officers, directors or employees) 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 or
the resignation or removal of the Rights Agent.
(2) The Rights Agent shall be protected from 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 or any Rights Certificate or
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,
executed and, where necessary, verified or acknowledged, by the
proper Person or Persons.
(3) 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.
Section 4.2 Merger or Amalgamation or Change of Name of Rights Agent.
(1) 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, statutory arrangement or consolidation to which the
Rights Agent or any successor Rights Agent is a party, or any
corporation succeeding to the shareholder or stockholder 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 hereof. 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.
(2) 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 Rights Certificates
so countersigned; and in case at that time any of the Rights
Certificates shall not have 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
shall have the full force provided in the Rights Certificates and in
this Agreement.
Section 4.3 Duties of Rights Agent.
The Rights Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, to 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 to be taken by it in good faith and
in accordance with such opinion. Subject to the prior
written consent of the Corporation, which consent shall not
be unreasonably withheld, the Rights Agent may also consult
with such other experts as the Rights Agent shall consider
necessary or appropriate to properly carry out the duties
and obligations imposed under this Agreement (at the expense
of the Corporation) and the Rights Agent shall be entitled
to act and rely in good faith on the advice of any such
expert.
(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 proven and established by a
certificate signed by a person believed by the Rights Agent
to be the Chairman of the Board, the Chief Executive
Officer, 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 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 events
which are the result of its own negligence, bad faith or
wilful misconduct and that of its officers, directors and
employees.
(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 for
any change in the exercisability of the Rights (including
the Rights becoming void pursuant to Section 3.1(2) hereof)
or any adjustment required under the provisions of Section
2.3 hereof 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 Section 2.3 hereof 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 or fully paid and
non-assessable.
(f) The Corporation agrees that it 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.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties
hereunder from any person believed by the Rights Agent to be
the Chairman of the Board, the Chief Executive Officer, the
Chief Financial Officer or the Secretary of the Corporation
and to apply to such persons for advice or instructions in
connection with its duties, and it shall not be liable for
any action taken or suffered by it in good faith in
accordance with instructions of any such person. It is
understood that instructions to the Rights Agent shall,
except where circumstances make it impracticable or the
Rights Agent otherwise agrees, be given in writing and,
where not in writing, such instructions shall be confirmed
in writing as soon as reasonably possible after the giving
of such instructions.
(h) The Rights Agent and any shareholder or stockholder,
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, with the prior written consent of the
Corporation, by or through its attorneys or agents. The
Rights Agent will not be answerable or accountable for any
act, omission, default, neglect or misconduct of any such
attorneys or agents or for any loss to the Corporation
resulting from any such act, omission, default, neglect or
misconduct, provided the prior written consent of the
Corporation was obtained and reasonable care was exercised
in the selection and continued employment thereof.
Section 4.4 Change of Rights Agent.
The Rights Agent may resign and be discharged from its duties under
this Agreement upon sixty (60) days' notice (or such lesser notice as is
acceptable to the Corporation) in writing mailed to the Corporation and to
each transfer agent of Voting Shares of the Corporation by registered or
certified mail, and to the holders of the Rights in accordance with Section
5.8 hereof (all of which shall be at the expense of the Corporation). The
Corporation may remove the Rights Agent upon thirty (30) days' notice in
writing, mailed to the Rights Agent and to each transfer agent of the Voting
Shares of the Corporation by registered or certified mail and to the holders
of the Rights in accordance with Section 5.8 hereof. 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 sixty (60) days after such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder of
any Rights (which holder shall, with such notice, submit such holder's Rights
Certificate for inspection by the Corporation), then the Rights Agent or the
holder of any Rights may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent at the Corporation's expense. 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 Canada. 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 receiving from the Corporation payment in full of all amounts outstanding
under 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 notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Voting Shares of the Corporation, and mail a notice
thereof in writing to the holders of the Rights. The cost of giving any notice
required under this Section 4.4 shall be borne solely by the Corporation.
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
Section 5.1 Redemption and Waiver.
(1) Subject to the prior consent of the holders of Voting Shares or
Rights obtained as set forth in Section 5.4(2) or Section 5.4(3)
hereof, as applicable, the Board of Directors acting in good faith
may, at any time prior to the occurrence of a Flip-in Event, elect to
redeem all but not less than all of the then outstanding Rights at a
redemption price of $0.00001 per Right appropriately adjusted in a
manner analogous to the applicable adjustment provided for in Section
2.3 hereof in the event that an event of the type described in
Section 2.3 hereof shall have occurred (such redemption price being
herein referred to as the "Redemption Price").
(2) Subject to the prior consent of the holders of Voting Shares obtained
as set forth in Section 5.4(2) hereof, the Board of Directors may, at
any time prior to the occurrence of a Flip-in Event as to which the
application of Section 3.1 hereof has not been waived pursuant to
this Section 5.1, if such Flip-in Event would occur by reason of an
acquisition of Voting Shares otherwise than pursuant to a Take-over
Bid made by means of a Take-over Bid circular to all registered
holders of Voting Shares and otherwise than in the circumstances set
forth in Section 5.1(4) hereof, waive the application of Section 3.1
hereof to such Flip-in Event. In such event, the Board of Directors
shall extend the Separation Time to a date at least ten (10) Business
Days subsequent to the meeting of shareholders called to approve such
waiver.
(3) The Board of Directors acting in good faith, may, prior to the
occurrence of a Flip-in Event, and upon prior written notice
delivered to the Rights Agent, determine to waive the application of
Section 3.1 hereof to a Flip-in Event that may occur by reason of a
Take-over Bid made by means of a Take-over Bid circular to all
registered holders of Voting Shares; provided that if the Board of
Directors waives the application of Section 3.1 hereof to a
particular Flip-in Event pursuant to this Section 5.1(3), the Board
of Directors shall be deemed to have waived the application of
Section 3.1 hereof to any other Flip-in Event occurring by reason of
any Take-over Bid made by means of a Take-over Bid circular to all
registered 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, pursuant to this Section 5.1(3).
(4) The Board of Directors may, prior to the close of business on the
tenth (10th) day following the Stock Acquisition Date, determine,
upon prior written notice delivered to the Rights Agent, to waive or
to agree to waive the application of Section 3.1 hereof to a Flip-in
Event, provided that both of the following conditions are satisfied:
(a) the Board of Directors has determined that a Person became
an Acquiring Person by inadvertence and without any
intention to become, or knowledge that Person would become,
an Acquiring Person; and
(b) such Acquiring Person has reduced its Beneficial Ownership
of Voting Shares (or has entered into a contractual
arrangement with the Corporation, acceptable to the Board of
Directors, to do so within thirty (30) days of the date on
which such contractual arrangement is entered into) such
that at the time the waiver becomes effective pursuant to
this Section 5.1(4) it is no longer an Acquiring Person;
and in the event of such a waiver, for the purposes of this
Agreement, the Flip-in Event shall be deemed never to have occurred.
(5) Where a Person acquires pursuant to a Permitted Bid, a Competing Bid
or an Exempt Acquisition under Section 5.1(3) above, outstanding
Voting Shares, then the Corporation shall immediately upon the
consummation of such acquisition redeem the Rights at the Redemption
Price.
(6) If the Corporation is obligated under Section 5.1(5) above to redeem
the Rights, or if the Board of Directors elects under Section 5.1(1)
above or Section 5.1(8) below to redeem the Rights, the right to
exercise the Rights will thereupon, without further action and
without notice, terminate and each Right will after redemption be
null and void and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price.
(7) Within ten (10) days after the Corporation is obligated under Section
5.1(5) above to redeem the Rights, or the Board of Directors elects
under Section 5.1(1) above or Section 5.1(8) below to redeem the
Rights, the Corporation shall give notice of redemption to the
holders of the then outstanding Rights by mailing such notice to all
such holders at their last address as they appear upon the Rights
Register or, prior to the Separation Time, on the registry books of
the Transfer Agent for the Common Shares. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of redemption will
state the method by which the payment of the Redemption Price will be
made. The Corporation may not redeem, acquire or purchase for value
any Rights at any time in any manner other than that specifically set
forth in this Section 5.1 and other than in connection with the
purchase of Common Shares prior to the Separation Time.
(8) Where a Take-over Bid that is not a Permitted Bid Acquisition is
withdrawn or 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 the outstanding Rights at the
Redemption Price.
(9) Notwithstanding the Rights being redeemed pursuant to Section 5.1(8)
above, 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
Common 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 and Rights shall remain
attached to the outstanding Voting Shares, subject to and in
accordance with the provisions of this Agreement.
Section 5.2 Expiration.
No person shall have any rights whatsoever pursuant to or arising out
of this Agreement or in respect of any Right after the Expiration Time, except
the Rights Agent as specified in Section 4.1(1) hereof.
Section 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 as may be approved by its 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.
Section 5.4 Supplements and Amendments.
(1) The Corporation may, prior to any shareholders' meeting called to
approve this Agreement, supplement or amend this Agreement without
the approval of any holder of Rights or Voting Shares. Thereafter,
the Corporation may from time to time supplement or amend this
Agreement without the approval of any holders of Rights or Voting
Shares to correct any clerical or typographical error or to maintain
the validity of the Agreement as a result of a change in any
applicable legislation or regulations or rules thereunder.
Notwithstanding anything in this Section 5.4 to the contrary, no
supplement or amendment shall be made to the provisions of Article 4
hereof except with the written concurrence of the Rights Agent to such
supplement or amendment.
(2) Subject to Section 5.4(1) above, the Corporation may, with the prior
consent of the holders of the 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 provided by the holders of Voting Shares
at a meeting of the holders of Voting Shares, which meeting shall be
called and held in compliance with applicable laws and regulatory
requirements and the requirements in the articles and by-laws of the
Corporation. Subject to compliance with any requirements imposed by
the foregoing, consent shall be deemed to have been given if the
proposed amendment, variation or revision is approved by the
affirmative vote of a majority of the votes cast by all holders of
Voting Shares (other than any holder of Voting Shares who is an
Offeror pursuant to a Take-over Bid that is not a Permitted Bid or
Competing Bid with respect to all Voting Shares Beneficially Owned by
such Person), represented in person or by proxy at the meeting.
(3) The Corporation may, with the prior consent of the holders of Rights,
at any time after the Separation Time and before the Expiration 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).
(4) Any approval of the holders of Rights shall be deemed to have been
given if the action requiring such approval is authorized by the
affirmative votes of the holders of Rights present or represented at
and entitled to be voted at a meeting of the holders of Rights and
representing a majority of the votes cast in respect thereof. For the
purposes hereof, each outstanding Right (other than Rights which are
void pursuant to the provisions hereof) shall be entitled to one
vote, and the procedures for the calling, holding and conduct of the
meeting shall be those, as nearly as may be, which are provided in
the Corporation's by-laws and the OBCA with respect to a meeting of
shareholders of the Corporation.
(5) The Corporation shall be required to provide the Rights Agent with
notice in writing of any such amendment, variation or deletion to
this Agreement as referred to in this Section 5.4 within 5 days of
effecting such amendment, variation or deletion.
(6) Any supplements or amendments made by the Corporation to this
Agreement pursuant to Section 5.4(1) above which are required to
maintain the validity of this Agreement as a result of any change in
any applicable legislation or regulations or rules thereunder shall:
(a) if made before the Separation Time, be submitted to the
shareholders of the Corporation at the next meeting of
shareholders and the shareholders may, by the majority
referred to in Section 5.4(2) above confirm or reject such
amendment; and
(b) if made after the Separation Time, be submitted to the
holders of Rights at a meeting to be called for on a date
not later than immediately following the next meeting of
shareholders of the Corporation and the holders of Rights
may, by resolution passed by the majority referred to in
Section 5.4(4) above, confirm or reject such amendment.
A supplement or amendment of the nature referred to in this Section
5.4(6) shall be effective from the date of the resolution of the Board
of Directors adopting such supplement or amendment until it is
confirmed or rejected or until it ceases to be effective (as described
in the next sentence) and, where such supplement or amendment is
confirmed, it continues in effect in the form so confirmed. If such
supplement or amendment is rejected by the shareholders or the holders
of Rights or is not submitted to the shareholders or holders of Rights
as required, then such supplement or 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 from
and after the date of the meeting of holders of Rights that should have
been but was not held, and no subsequent resolution of the Board of
Directors to amend, vary or delete any provision of this Agreement to
substantially the same effect shall be effective until confirmed by the
shareholders or holders of Rights, as the case may be.
Section 5.5 Fractional Rights and Fractional Shares.
(1) The Corporation shall not be required to issue fractions of Rights or
to distribute Rights Certificates which evidence fractional Rights.
Any such fractional Right shall be null and void and the Corporation
will not have any obligation or liability in respect thereof.
(2) The Corporation shall not be required to issue fractions of Common
Shares or other securities upon exercise of the Rights or to
distribute certificates which evidence fractional Common Shares or
other securities. In lieu of issuing fractional Common Shares or
other securities, the Corporation shall pay to the registered holders
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 of one Common Share. The Rights Agent shall have no
obligation to make any payments in lieu of fractional Common Shares
unless the Corporation shall have provided the Rights Agent with the
necessary funds to pay in full all amounts payable in accordance with
Section 2.2(5).
Section 5.6 Rights of Action.
Subject to the terms of this Agreement, all rights of action in respect
of this Agreement, other than rights of action vested solely in the Rights
Agent, are vested in the respective registered holders of the Rights; and any
registered holder of any Rights, without the consent of the Rights Agent or of
the registered 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 such holder's right to exercise such holder's 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.
Section 5.7 Notice of Proposed Actions.
In case the Corporation shall propose after the Separation Time and
prior to the Expiration Time 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 hereof, a notice of such
proposed action, which shall specify the date on which such liquidation,
dissolution, winding up, or sale is to take place, and such notice shall be so
given at least twenty (20) Business Days prior to the date of taking of such
proposed action.
Section 5.8 Notices.
(1) 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, addressed
(until another address is filed in writing with the Rights Agent) as
follows:
Cedara Software Corp.
6509 Airport Road
Mississauga, Ontario
L4V 1S7
Attention: Chief Executive Officer
Facsimile No.: (905) 672-0360
(2) 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, addressed (until
another address is filed in writing with the Corporation) as follows:
Montreal Trust Company of Canada
151 Front Street West
8th Floor
Toronto, Ontario
M5J 2N1
Attention: Senior Manager, Client Services
Facsimile No.: (416) 981-9800
(3) 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 transfer agent for the Common Shares. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or not
the holder receives the notice.
Section 5.9 Successors.
All the covenants and provisions of this Agreement by or for the
benefit of the Corporation or the Rights Agent shall bind and enure to the
benefit of their respective successors and assigns hereunder.
Section 5.10 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; but this
Agreement shall be for the sole and exclusive benefit of the Corporation, the
Rights Agent and the holders of the Rights.
Section 5.11 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.
Section 5.12 Severability.
If any Section, Clause, term or provision hereof or the application
thereof to any circumstances or any right hereunder shall, in any jurisdiction
and to any extent, be invalid or unenforceable, such Section, Clause, term or
provision or such right shall be ineffective only in such jurisdiction and to
the extent of such invalidity or unenforceability in such jurisdiction without
invalidating or rendering unenforceable or ineffective the remaining Sections,
Clauses, terms and provisions hereof or rights hereunder in such jurisdiction or
the application of such Section, Clause, term or provision or rights hereunder
in any other jurisdiction or to circumstances other than those as to which it is
specifically held invalid or unenforceable.
Section 5.13 Effective Date.
This Agreement is effective and in full force and effect in
accordance with its terms and conditions as of and from the date hereof (the
"Effective Date"). If this Agreement is not confirmed by a majority of the
votes cast by holders of Voting Shares permitted to vote on such resolution
under Section 5.4 hereof who vote in respect of the confirmation of this
Agreement, in person or by proxy at a meeting of holders of Voting Shares to
be held no later than 6 months from the date of this Agreement then this
Agreement and any then outstanding Rights shall be of no further force and
effect from the earlier of the close of business on the date immediately
following the date of such meeting and the close of business on the date which
is 6 months from the date of this Agreement.
Section 5.14 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, in relation to or in connection with this Agreement,
shall not subject the Board of Directors or any director of the Corporation to
any liability to the holders of the Rights.
Section 5.15 Rights of Board, Corporation and Offeror.
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 holders of Voting Shares reject or
accept any Take-over Bid or take any other action (including, without
limitation, the commencement, prosecution, defence 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.
Section 5.16 Regulatory Approvals.
Any obligation of the Corporation or action or event contemplated by
this Agreement shall be subject in any jurisdiction to the prior receipt of any
required approval or consent from any governmental or regulatory authority in
such jurisdiction including any securities regulatory authority or stock
exchange
Section 5.17 Declaration as to Non-Canadian 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 with the securities laws or comparable legislation of a
jurisdiction outside Canada, the Board of Directors acting in good faith may
take such actions as it may deem appropriate to ensure such compliance. In no
event shall the Corporation or the Rights Agent be required to issue or
deliver Rights or securities issuable on 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 or (until
such notice is given as required by law) without advance notice to any
regulatory or self-regulatory body.
Section 5.18 Time of the Essence.
Time shall be of the essence in this Agreement.
Section 5.19 Execution in 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 one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement.
CEDARA SOFTWARE CORP.
By: /s/ BRYAN ROBB
---------------------------
Authorized Signing Officer
By: /s/ ROBERT DIETRICH
---------------------------
Authorized Signing Officer
MONTREAL TRUST COMPANY OF CANADA
By: /s/ PIERRE TELLIS
---------------------------
Authorized Signing Officer
By: /s/ FLORENCE SMITH
---------------------------
Authorized Signing Officer
SCHEDULE 2.2(3)
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 RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES (SPECIFIED
IN SECTION 3.1(2) OF THE RIGHTS AGREEMENT), RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON, ANY PERSON ACTING JOINTLY OR IN CONCERT WITH AN ACQUIRING
PERSON OR THEIR RESPECTIVE ASSOCIATES AND AFFILIATES (AS SUCH TERMS ARE DEFINED
IN THE RIGHTS AGREEMENT) AND THEIR RESPECTIVE TRANSFEREES SHALL BECOME VOID
WITHOUT ANY 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 Shareholder Rights Plan Agreement dated June 15, 2000, as
amended and restated from time to time (the "Rights Agreement"), between
Cedara Software Corp., a corporation incorporated under the laws of Ontario
(the "Corporation"), and Montreal 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 (as such term is defined in the Rights Agreement) and prior to the close
of business on the date immediately following the date of the Corporation's
annual shareholders meeting to be held in 2003 (or such earlier expiration
time as is provided in the Rights Agreement) one fully paid and non-assessable
Common Share of the Corporation (a "Common Share") at the Exercise Price
referred to below, upon presentation and surrender of this Rights Certificate
together with the Form of Election to Exercise duly executed and submitted to
the Rights Agent at its principal offices in any of the City of Toronto. The
Exercise Price shall initially be $100 (Canadian) per Right and shall be
subject to adjustment in certain events as provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement, each
Right evidenced hereby may entitle the registered holder thereof to purchase
or receive assets, debt securities or other equity securities of the
Corporation (or a combination thereof) all as provided in the Rights
Agreement.
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 registered 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
entitling the holder to purchase a like aggregate number of Common Shares as
the 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 Rights Certificate may be, and under certain circumstances
are required to be, redeemed by the Corporation at a redemption price of
$0.00001 per Right.
No fractional Common Shares will be issued upon the exercise of any
Right or Rights evidenced hereby.
No holder of this Rights Certificate, as such, shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of Common
Shares or of any other securities of the Corporation 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 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 of the
Corporation at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders of the Corporation (except as expressly provided in the Rights
Agreement), or to receive dividends, distributions 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 manually countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Corporation.
Dated o
CEDARA SOFTWARE CORP.
By:
-------------------------------
Authorized Signing Officer
By:
-------------------------------
Authorized Signing Officer
MONTREAL TRUST COMPANY OF CANADA
By:
-------------------------------
Authorized Signing Officer
By:
-------------------------------
Authorized Signing Officer
(To be attached to each Rights Certificate)
FORM OF ELECTION TO EXERCISE
TO: [NAME OF CORPORATION]
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 to:
_______________________________
(NAME)
_______________________________
(ADDRESS)
_______________________________
(CITY AND STATE OR PROVINCE)
If such number of Rights shall not be all the Rights evidenced by
this Rights Certificate, a new Rights Certificate for the balance of such
Rights shall be registered in the name of and delivered to:
_______________________________
(NAME)
_______________________________
(ADDRESS)
_______________________________
(CITY AND STATE OR PROVINCE)
__________________________________________________________________
SOCIAL INSURANCE, SOCIAL SECURITY OR OTHER TAXPAYER NUMBER
Dated ___________________________
Signature Guaranteed _______________________________________
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 must be guaranteed by a Canadian chartered bank, a Canadian
trust company or a member of a recognized stock exchange or a member of the
Securities Transfer Association Medallion Program (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 any Person
acting jointly or in consent with any of the foregoing or any Affiliate or
Associate of such Person (as defined in the Rights Agreement).
_______________________________________
Signature
NOTICE
In the event the certification set forth in the Form of Election to
Exercise is not completed, the Corporation will deem the Beneficial Owner of the
Rights evidenced by this Rights Certificate to be an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement) and
accordingly such Rights shall be null and void.
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate)
FOR VALUE RECEIVED ______________________________________________ hereby sells,
assigns and transfers unto ______________________________________
_______________________________________________________
(Please print name and address of transferee)
the Rights represented by this Rights Certificate, together with all right,
title and interest therein and does hereby irrevocably constitute and appoint
_____________________________ as attorney to transfer the within Rights on the
books of the Corporation, with full power of substitution.
Dated __________________________
Signature Guaranteed ______________________________________
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 must be guaranteed by a Canadian chartered bank, or
Medallion guaranteed by a Canadian trust company or a member of a recognized
stock exchange or a member of the Transfer Association Medallion (Stamp)
Program.
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 any Person acting jointly or in consent with any of the foregoing (as
defined in the Rights Agreement).
_______________________________________
Signature
NOTICE
In the event the certification set forth in the Form of Assignment is
not completed, the Corporation will deem the Beneficial Owner of the Rights
evidenced by this Rights Certificate to be an Acquiring Person or an Affiliate
or Associate thereof (as defined in the Rights Agreement) and accordingly such
Rights shall be null and void.