IAMGOLD CORPORATION AND COMPUTERSHARE TRUST COMPANY OF CANADA WARRANT INDENTURE FOR THE ISSUANCE OF COMMON SHARE PURCHASE WARRANTS NOVEMBER 6, 2006
IAMGOLD
CORPORATION
AND
COMPUTERSHARE
TRUST COMPANY OF CANADA
WARRANT
INDENTURE FOR THE ISSUANCE
OF
COMMON SHARE PURCHASE WARRANTS
NOVEMBER
6, 2006
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TABLE
OF CONTENTS
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1
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INTERPRETATION
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2
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1.1
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Definitions
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2
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1.2
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Gender
and Number
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5
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1.3
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Interpretation
not Affected by Headings, etc.
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5
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1.4
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Day
not a Business Day
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5
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1.5
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Time
of the Essence
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5
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1.6
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Entire
Agreement
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6
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1.7
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Currency
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6
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1.8
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Applicable
Law
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6
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2
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ISSUE
AND TRANSFER OF WARRANTS
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6
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2.1
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Issue
of Warrants
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6
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2.2
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Form
and Terms of Warrants
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7
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2.3
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Warrantholder
not a Shareholder
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8
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2.4
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Warrants
to Rank Pari
Passu
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8
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2.5
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Signing
of Warrant Certificates
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8
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2.6
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Certification
by the Warrant Trustee
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9
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2.7
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Issue
in Substitution for Warrant Certificate Lost, etc.
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9
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2.8
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Exchange
of Warrant Certificates
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10
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2.9
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Charges
for Exchange
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10
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2.1
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Registration
and Transfer of Warrants
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10
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2.11
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Registers
Open for Inspection
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12
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3
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EXERCISE
OF WARRANTS
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12
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3.1
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Method
of Exercise of Warrant Certificates
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12
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3.2
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Effect
of Exercise of Warrants
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13
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3.3
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Subscription
for Less than Entitlement; Fractions
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13
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3.4
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Expiration
of Warrants
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14
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3.5
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Cancellation
of Surrendered Warrants
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14
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3.6
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Accounting
and Recording
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14
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4
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ADJUSTMENT
OF SUBSCRIPTION RIGHTS AND EXERCISE PRICE
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15
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4.1
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Adjustment
of Subscription Rights
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15
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4.2
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Proceedings
Prior to any Action Requiring Adjustment
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19
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4.3
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Certificate
of Adjustment
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19
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4.4
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Adjustment
Rules
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19
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4.5
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Notice
of Special Matters
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20
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4.6
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No
Action After Notice
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20
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4.7
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Protection
of Warrant Trustee
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21
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5
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COVENANTS,
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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21
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5.1
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General
Covenants, Representations and Warranties
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21
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5.2
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Securities
Qualification Requirements
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24
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6
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ENFORCEMENT
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24
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6.1
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Suits
by Warrantholders
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24
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6.2
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Warrant
Trustee may Institute all Proceedings
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24
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7
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MEETING
OF WARRANTHOLDERS
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24
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7.1
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Right
to Convene Meetings
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24
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7.2
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Notice
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25
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7.3
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Chairman
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25
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7.4
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Quorum
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25
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7.5
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Show
of Hands
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26
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7.6
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Poll
and Voting
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26
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7.7
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Regulations
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26
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7.8
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Minutes
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27
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7.9
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Powers
Exercisable by Special Resolution
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27
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7.1
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Meaning
of Special Resolution
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29
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7.11
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Powers
Cumulative
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29
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7.12
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Company,
Warrantholders and Warrant Trustee may be Represented
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30
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7.13
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Instruments
in Writing
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30
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7.14
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Binding
Effect of Resolutions
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30
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7.15
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Holdings
by the Company or Subsidiaries of the Company Disregarded
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30
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8
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SUPPLEMENTAL
INDENTURES
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31
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8.1
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Provision
for Supplemental Amendments for Certain Purposes
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31
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8.2
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Company
may Consolidate etc. on Certain Terms
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32
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8.3
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Successor
Body Corporate Substituted
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32
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9
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CONCERNING
THE WARRANT TRUSTEE
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33
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9.1
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Conflict
of Interest
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33
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9.2
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Replacement
of the Warrant Trustee
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33
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9.3
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Duty
of Warrant Trustee
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34
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9.4
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Evidence,
Experts and Advisers
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35
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9.5
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Documents,
Monies etc., Held by Warrant Trustee
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36
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9.6
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Warrant
Trustee not Required to Give Security nor Advance its own
Funds
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36
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9.7
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Warrant
Trustee not Ordinarily Bound
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36
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9.8
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Warrant
Trustee may Rely on Certificates
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37
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9.9
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Recitals
or Statements of Fact Made by the Company
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37
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9.1
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Warrant
Trustee's Liability
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37
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9.11
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Indemnity
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38
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9.12
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No
Representation as to Validity
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38
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9.13
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Acceptance
of Duties
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39
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9.14
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Contracting
with the Company
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39
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9.15
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Warrant
Trustee's Authority to Carry on Business
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39
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9.16
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Warrant
Trustee not Required to Give Security
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39
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9.17
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Warrant
Trustee not Appointed Receiver
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39
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9.18
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Counsel
Fees Need not be Taxed
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40
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9.19
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Copies
of Information
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40
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9.2
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Warrants
Owned by the Company or its Subsidiaries - Certificates to be
Provided
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40
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10
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GENERAL
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41
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10.1
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Notice
to the Company and the Warrant Trustee
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41
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10.2
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Notice
to Warrantholders
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42
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10.3
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Counterparts
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42
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10.4
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Satisfaction
and Discharge of Indenture
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43
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10.5
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Provisions
of Indenture and Warrants for the Sole Benefit of Parties and
Warrantholders
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43
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11
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Power
of the Board of Directors
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43
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12
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Further
Assurances
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43
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13
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Unenforceable
Terms
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43
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14
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Severability
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44
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THIS WARRANT
INDENTURE
is made
in the City of Toronto, Ontario, as of November 6,
2006.
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BETWEEN:
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IAMGOLD CORPORATION, a corporation duly incorporated under the Canada Business Corporations Act, having its principal place of business at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ | ||
| (hereinafter referred to as the “Company”) | |||
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OF
THE FIRST PART
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AND:
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COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company existing under the laws of Canada, having a place of business in the city of Toronto at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ | ||
| (hereinafter referred to as the "Warrant Trustee") | |||
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OF
THE SECOND PART |
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WHEREAS
Cambior
Inc. (“Cambior”)
issued
40,000,000 units, pursuant to a public offering on August 5, 2003, each unit
consisting of 40,000,000 common shares of Cambior and 20,000,000 Series C common
share purchase warrants (the "Cambior
Series C Warrants"),
whereby each whole Cambior Series C Warrant entitled the holder thereof to
purchase one common share of Cambior;
AND
WHEREAS
for such
purpose, Cambior and CIBC Mellon Trust Company, as trustee, entered into a
warrant indenture dated August 5, 2003 (the “Original
Indenture”)
to make
provision for the creation and issue of the Cambior Series C
Warrants;
AND
WHEREAS
all
things necessary were done and performed to make the Cambior Series C
Warrants, as certified by the trustee and issued as provided in the Original
Indenture, legal, valid and binding upon Cambior with the benefits and subject
to the terms of the Original Indenture;
AND
WHEREAS
the
Company agreed to acquire all of the outstanding shares of Cambior pursuant
to
an acquisition agreement dated September 13, 2006 and amended and restated
on
September 29, 2006 (the “Agreement”)
under
the terms of an arrangement pursuant to the Companies
Act
(Québec)
(the “Arrangement”);
AND
WHEREAS
in
connection with the Agreement, and effective as of the effective date of the
Arrangement, the Company agreed to issue a warrant to purchase 0.42 of a Company
common share (each, a “Warrant”)
to each
holder of a Cambior Series C Warrant in consideration of the cancellation of
such Cambior Series C Warrant;
AND
WHEREAS
▇▇▇▇▇▇▇
and the trustee under the Original Indenture agreed to terminate the Original
Indenture as of the effective date of the Arrangement;
AND
WHEREAS
the
Company wishes to enter into this Indenture to provide for the creation and
issue of the Warrants, effective as of the effective date of the Arrangement,
upon the terms and conditions set forth herein.
NOW
THEREFORE THIS INDENTURE WITNESSES
that for
good and valuable consideration mutually given and received, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed and declared
as follows:
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1.
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INTERPRETATION
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1.1
|
Definitions
|
In
this
Indenture, including the preamble, and in all indentures supplemental
hereto:
"Adjustment
Period"
means
the period from and including the date of this Indenture (being the effective
date of the Arrangement) up to and including the Time of Expiry;
"Applicable
Legislation"
means
the laws of the provinces of Canada and the laws of Canada applicable therein
or
the laws of the United States or states of the United States, as the context
may
require;
"Business
Day"
means a
day which is not Saturday or Sunday or a legal holiday in any of the cities
where Warrant Certificates may be surrendered to the Warrant Trustee pursuant
to
the provisions hereof;
"Common
Share"
means a
common share in the share capital of the Company as such share existed at the
close of business as of the date of this Indenture;
"Company"
means
IAMGOLD Corporation and any successor body corporate;
-2-
"Company's
auditors"
means
the firm of chartered accountants appointed by the shareholders of the Company
as the auditors of the Company in accordance with the provisions of the
Canada
Business Corporations Act;
"Counsel"
means a
lawyer or a law firm (who may be counsel to the Company) acceptable to the
Warrant Trustee;
"Current
Market Price"
of the
Common Shares at any date means the price per share equal to the weighted
average price at which the Common Shares have traded on the Toronto Stock
Exchange for any 20 consecutive trading days selected by the Company
commencing not more than 30 trading days before such date and ending no
less than three trading days prior to such date, or, if the Common Shares are
not listed on the Toronto Stock Exchange, on any other stock exchange on which
such shares are then listed as may be selected by the directors of the Company,
or, if the Common Shares are not listed on any stock exchange, then on the
over-the-counter market with the weighted average price per Common Share being
determined by dividing the aggregate sale price of all Common Shares sold on
the
said exchange or market, as the case may be, during the said 20 consecutive
trading days by the aggregate number of Common Shares so sold or, if not traded
on any recognized market or exchange, as determined by the directors of the
Company, acting reasonably;
"Director"
means a
director of the Company for the time being and, unless otherwise specified
herein, reference to action "by the Directors" means action by the directors
of
the Company as a board or, whenever duly empowered, action by any committee
of
such board;
"Exercise
Date",
with
respect to any Warrant, means the date on which the Warrant Certificate
representing such Warrant is surrendered for exercise, together with full
payment of the Exercise Price, in accordance with the provisions of Article
3;
"Exercise
Price"
at any
time means, with respect to a Warrant, the price at which 0.42 of a Common
Share
may be purchased by the exercise of one whole Warrant, and which equals $3.75
unless such price shall have been adjusted in accordance with the provisions
of
Article 4,
in which
case it shall mean the adjusted price in effect at such time;
"Issue
Date"
means
the date upon which a Warrant or Warrants are issued, accordingly;
"Jurisdictions"
means
all the provinces and territories of Canada;
-3-
"Person"
means an
individual, body corporate, partnership, trust, trustee, executor,
administrator, legal representative or any unincorporated
organization;
"Securities
Commissions"
means
the securities regulatory authorities of the Canadian
Jurisdictions;
"Share
Rate"
means
the number of Common Shares which are issuable upon the exercise of the Warrants
(which is 0.42 of one Common Share for each whole Warrant), subject to
adjustment in accordance with Article 4;
"Special
Resolution"
has the
meaning attributed thereto in Section 7.10;
"this
Warrant Indenture",
"this
Indenture", "herein", "hereby", "hereto" and similar expressions mean and refer
to this Indenture and any indenture, deed or instrument supplemental hereto;
and
the expressions "Article", "Section" and "subsection" followed by a number
again
mean and refer to the specified article, section or subsection of the
Indenture;
"Time
of Expiry"
means,
with respect to a Warrant, 5:00 p.m. Toronto time, on
August 12, 2008;
"Trading
Day",
with
respect to a stock exchange, means a day on which such exchange is open for
the
transaction of business and with respect to the over-the-counter market means
a
day on which the Toronto Stock Exchange is open for the transaction of
business;
"Transfer
Agent"
means
the transfer agent for the time being of the Common Shares;
"U.S.
Person"
has the
meaning ascribed thereto in Regulation S under the United
States Securities Act of
1933,
as
amended;
"Warrant"
means a
common share purchase warrant referred to in Article 2
and
issued and certified hereunder and for the time being outstanding entitling
the
holder thereof, upon payment of the Exercise Price thereof and upon tendering
one whole Warrant, to purchase on or before the Time of Expiry (and before
any
adjustment pursuant to Article 4
hereof)
0.42 of one Common Share;
"Warrant
Certificate"
means
the definitive certificate evidencing Warrants;
"Warrantholders"
or
"holders"
without
reference to Common Shares means the persons who are bearers of
Warrants;
-4-
"Warrantholders'
Request"
means an
instrument signed in one or more counterparts by Warrantholders entitled to
purchase in the aggregate not less than 10% of the aggregate number of Common
Shares which could be purchased pursuant to all Warrants then unexercised and
outstanding requesting the Warrant Trustee to take some action or proceeding
specified therein;
"Warrant Trustee"
means
Computershare Trust Company of Canada, for the time being or its successor
in
the trusts hereby created; and
"Written
order of the Company",
"written
request of the Company",
"written
consent of the Company"
and
"certificate
of the Company"
mean,
respectively, a written order, request, consent and certificate signed in the
name of the Company by its President, its Secretary or a Director, and may
consist of one or more instruments so executed.
|
1.2
|
Gender
and Number
|
Unless
herein otherwise expressly provided or unless the context otherwise requires,
words importing the singular include the plural and vice versa and words
importing gender include all genders.
|
1.3
|
Interpretation
not Affected by Headings, etc.
|
The
division of this Indenture into Articles and Sections, the provision of a table
of contents and the insertion of headings are for convenience of reference
only
and shall not affect the construction or interpretation of this
Indenture.
|
1.4
|
Day
not a Business Day
|
In
the
event that any day on or before which any action is required to be taken
hereunder is not a Business Day in the Province of Ontario, then such action
shall be required to be taken at or before the requisite time on the next
succeeding day that is a Business Day.
|
1.5
|
Time
of the Essence
|
Time
shall
be of the essence in this Indenture, the Warrants and the Warrant
Certificates.
-5-
|
1.6
|
Entire
Agreement
|
This
Indenture constitutes the entire agreement between the parties hereto relating
to the subject matter hereof and supersedes all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties and there are no general or specific warranties,
representations or other agreements by or among the parties in connection with
the entering into of this Indenture or the subject matter hereof except as
specifically set forth herein.
|
1.7
|
Currency
|
Except
where otherwise expressly provided, all amounts in this Indenture are stated
and
shall be paid in Canadian currency.
|
1.8
|
Applicable
Law
|
This
Indenture and the Warrant Certificates shall be construed in accordance with
the
laws of the Province of Ontario and federal laws of Canada applicable therein
and shall be treated in all respects as Ontario contracts.
|
1.
|
ISSUE
AND TRANSFER OF
WARRANTS
|
|
2.1
|
Issue
of Warrants
|
There
are
hereby created and authorized to be issued an aggregate of 20,000,000
Warrants
entitling the Warrantholders to purchase an aggregate of 8,400,000
Common
Shares (plus such additional indeterminate number of Common Shares as may be
issued pursuant to the adjustments referred to in Article 4
hereof),
at the times and upon the terms and conditions herein set forth.
Notwithstanding
any other provision in this Indenture, certificates formerly evidencing the
Cambior Series C Warrants will evidence and will be deemed to evidence the
Warrants issued in replacement thereof pursuant to the terms of the Agreement
and the Arrangement, provided, however, that upon the transfer of certificates
formerly representing Cambior Series C Warrants after the effective time of
the
Arrangement, the Company will issue a new Warrant Certificate representing
the
relevant Warrants and such certificate representing Cambior Series C Warrants
will be deemed to be cancelled.
-6-
The
Warrants shall not be issued to U.S. Persons or to persons within the United
States, except as directed by the Company in transactions exempt from the
registration requirements of the United
States Securities Act of
1933,
as
amended (the "U.S.
Securities Act").
The
Warrant Trustee understands and acknowledges that the Warrants have not and
will
not be registered under the U.S. Securities Act.
|
2.2
|
Form
and Terms of Warrants
|
The
Warrants shall be substantially in the form set out in Schedule A, shall bear
such distinguishing letters and numbers as the Company may, with the approval
of
the Warrant
Trustee,
prescribe, and shall be issuable in any whole number denomination. All
replacements issued in accordance with this Indenture shall be dated as of
the
Issue Date or such other date as the Company may designate. Notwithstanding
any
adjustments pursuant to Article 4
hereof,
all replacement Warrants shall express the number of Warrant(s) evidenced
thereby and the Exercise Price thereof as if such Warrant were initially issued
as of the date hereof.
One
whole
Warrant authorized to be issued hereunder shall entitle the holder at any time
from the Issue Date and until the Time of Expiry and upon payment of the
Exercise Price thereof, to purchase (subject to adjustment in accordance with
Article 4)
0.42 of
one Common Share.
No
fractional Warrants shall be issued or otherwise provided for and a
Warrantholder shall not be entitled to any cash or other consideration in lieu
of any fractional interest in a Warrant or claim thereto. No fractional Common
Shares shall be issued or otherwise provided for with regard to the exercise
of
Warrants and any resulting fractional Common Share shall be rounded down or
up,
as appropriate, to the closest whole number, it being understood for greater
certainty that 0.5 Common Shares shall be rounded down to the closest whole
number.
The
Exercise Price and the number of Common Shares which may be purchased pursuant
to the Warrants shall be adjusted in the events and in the manner specified
in
Article 4.
Each
replacement Warrant Certificate issued to a U.S. Person, a person in the United
States or a person for the account or benefit of a U.S. Person or a person
in
the United States, as well as all certificates issued in exchange for the
Warrants or in substitution thereof, shall bear the following
legend:
"THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF, BY
PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH
SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF
REGULATION S UNDER THE 1933 ACT, (C) WITHIN THE UNITED STATES IN ACCORDANCE
WITH
THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY RULES 144
THEREUNDER, IF APPLICABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS, OR (D) IN COMPLIANCE WITH CERTAIN OTHER PROCEDURES SATISFACTORY
TO THE COMPANY. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE "GOOD DELIVERY"
IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA. A NEW CERTIFICATE
BEARING NO LEGEND MAY BE OBTAINED FROM COMPUTERSHARE TRUST COMPANY OF CANADA,
AS
REGISTRAR AND TRANSFER AGENT OF THE COMPANY, UPON DELIVERY OF THIS CERTIFICATE
AND A DULY EXECUTED DECLARATION, IN A FORM SATISFACTORY TO COMPUTERSHARE TRUST
COMPANY OF CANADA AND THE COMPANY, TO THE EFFECT THAT SUCH SALE IS BEING MADE
IN
ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT."
-7-
|
2.3
|
Warrantholder
not a Shareholder
|
Nothing
in
this Indenture or in the holding of a Warrant itself, or otherwise, shall confer
or be construed as conferring upon a Warrantholder any right or interest
whatsoever as a shareholder of the Company, including, but not limited to,
the
right to vote at, to receive notice of, or to attend, meetings of shareholders
or any other proceedings of the Company, or the right to receive dividends
and
other distributions.
|
2.4
|
Warrants
to Rank Pari
Passu
|
All
Warrants shall rank pari
passu,
whatever
may be the actual issue date of same.
|
2.5
|
Signing
of Warrant Certificates
|
All
replacement Warrant Certificates shall be signed by any one of the officers
of
the Company as may delegated by the Directors from time to time. The signatures
of such Officers may be mechanically or photostatically reproduced in facsimile
and Warrant Certificates bearing such facsimile signatures shall be binding
upon
the Company as if they had been manually signed by such officers.
Notwithstanding that any of the persons whose manual or facsimile signature
appears on any Warrant Certificate as one of such officers may no longer hold
office at the date of such Warrant Certificate or at the date of certification
or delivery thereof, any Warrant Certificate signed as aforesaid shall, subject
to Section 2.6
and
2.7,
be valid
and binding upon the Company and the Warrantholder shall be entitled to the
benefits of this Indenture.
-8-
|
2.6
|
Certification
by the Warrant Trustee
|
Except
as
set forth in Section 2.1,
no
Warrant Certificate shall be issued or, if issued, shall be valid for any
purpose or entitle the holder to the benefit thereof until it has been certified
by manual signature by or on behalf of the Warrant Trustee substantially in
the
form of the certificate set out in Schedule A or in some other form approved
by
the Company and the Warrant Trustee, and such certification by the Warrant
Trustee upon any Warrant shall be conclusive evidence as against the Company
that the Warrant so certified has been duly issued hereunder and that the holder
is entitled to the benefits hereof.
The
certification of the Warrant Trustee on any Warrant Certificate issued hereunder
shall not be construed as a representation or warranty by the Warrant Trustee
as
to the validity of this Indenture or of the Warrants (except the due
certification thereof in accordance with this Indenture) and the Warrant Trustee
shall in no respect be liable or answerable for the use made of any Warrant
Certificate or any of them or of the consideration therefor except as otherwise
specified herein.
|
2.7
|
Issue
in Substitution for Warrant Certificate Lost,
etc.
|
In
case a
Warrant Certificate shall become mutilated or be lost, destroyed or stolen,
the
Company, subject to Applicable Legislation, shall issue and thereupon the
Warrant Trustee shall certify and deliver, a new Warrant Certificate of like
tenor as the one mutilated, lost, destroyed or stolen in exchange for and in
place of and upon cancellation of such mutilated Warrant, or in lieu of and
in
substitution for such lost, destroyed or stolen Warrant, and the substituted
Warrant Certificate shall be in form approved by the Warrant Trustee and shall
carry the benefits hereof and shall rank equally in accordance with its terms
with all other Warrant Certificates issued or to be issued
hereunder.
The
Warrantholder making an application for the issue of a new Warrant Certificate
pursuant to this Section 2.7
shall
bear the reasonable cost of the issue thereof and in case of loss, destruction
or theft shall, as a condition precedent to the issue thereof, furnish to the
Company and to the Warrant Trustee such evidence of ownership and of the loss,
destruction or theft of the Warrant so lost, destroyed or stolen as shall be
satisfactory to the Company and to the Warrant Trustee in their sole discretion,
acting reasonably, and such Warrantholder shall also be required to furnish
an
indemnity, surety bond and security in amount and form satisfactory to the
Company and the Warrant Trustee each in their own discretion, acting reasonably,
and shall pay the reasonable charges of the Company and the Warrant Trustee
in
connection herewith.
-9-
|
2.8
|
Exchange
of Warrant Certificates
|
Warrant
Certificates may, upon compliance with the reasonable requirements of the
Warrant Trustee, be exchanged for another Warrant Certificate or Warrant
Certificates of like tenor and entitling the holder to purchase in the aggregate
the same number of Common Shares as are purchasable under the Warrant
Certificate or Warrant Certificates so exchanged. Each Warrant Certificate
must
be in a whole number denomination.
Warrant
Certificates may be exchanged only at the Warrant Trustee's principal Corporate
Trust offices in the City of Toronto at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ or at any other place that is designated by the
Company with the approval of the Warrant Trustee. Any Warrant tendered for
exchange shall be cancelled by the Warrant Trustee.
|
2.9
|
Charges
for Exchange
|
Except
as
otherwise herein provided, no fee, tax or governmental charges shall be charged
to the Warrantholder requesting an exchange.
|
2.10
|
Registration
and Transfer of Warrants
|
|
2.10.1
|
The
Company will cause to be kept by the Warrant Trustee at the principal
stock transfer offices of the Warrant Trustee in the City of Toronto,
Ontario:
|
|
(a)
|
a
register of holders in which shall be entered in alphabetical order
the
names and addresses of the Warrantholders and particulars of the
Warrants
held by them and the Warrant Trustee shall be entitled to rely on
such
register in connection with the exchange, transfer, exercise or deemed
exercise of any Warrant or Warrants pursuant to the terms of this
indenture or the terms thereof; and
|
|
(b)
|
a
register of transfers in which all transfers of Warrants and the
date and
other particulars of each such transfer shall be
entered.
|
|
2.10.2
|
No
transfer of any Warrant will be valid unless entered on the register
of
transfers referred to in Subsection 2.10.1
hereof, upon surrender to the Warrant Trustee of the Warrant Certificate
evidencing such Warrant, duly endorsed by, or accompanied by a written
instrument of transfer substantially in the form attached hereto
in
Schedule A executed by the registered holder or his executors,
administrators or other legal representatives or his or their attorney
duly appointed by an instrument in writing in form and execution
satisfactory to the Warrant Trustee, and, upon compliance with such
requirements and such other reasonable requirements as the Warrant
Trustee
may prescribe, such transfer will be recorded on the register of
transfers
by the Warrant Trustee.
|
-10-
|
2.10.3
|
Warrants
may not be transferred to U.S. Persons, persons in the United States
or a
person for the account or benefit of a U.S. Person or a person in
the
United States, subject to Subsection 2.10.4.
|
|
2.10.4
|
Notwithstanding
Subsection 2.10.3,
if
a Warrant Certificate tendered for transfer bears the legend set
forth in
Section 2.2:
|
|
(a)
|
the
transfer may be made to a U.S. Person, a person in the United States
or a
person for the account or benefit of a U.S. Person or a person in
the
United States, provided that the transfer is made in accordance with
the
terms of such legend and provided further that the Warrant Certificate
issued to such transferee shall also bear such legend;
or
|
|
(b)
|
if
the Warrants represented by such Warrant Certificate are being sold
outside the United States under Rule 904 of Regulation S, the legend
may be removed by the transferor providing a declaration to the Warrant
Trustee to the effect set forth in Schedule B hereto. The Warrant
Trustee shall be protected in acting and relying solely on the addresses
provided by the transferor for these
purposes.
|
|
2.10.5
|
The
transferee of any Warrant will, after surrender to the Warrant Trustee
of
the Warrant Certificate evidencing such Warrant as required by
Subsection 2.10.2
hereof and upon compliance with all other conditions in respect thereof
required by this Indenture or by Applicable Legislation, be entitled
to be
entered on the register of holders referred to in
Subsection 2.10.1
hereof, as the owner of such Warrant free from all equities or rights
of
set-off or counterclaim between the Company and the transferor or
any
previous holder of such Warrant, except in respect of equities of
which
the Company is required to take notice by statute or by order of
a court
of competent jurisdiction.
|
|
2.10.6
|
The
Company will be entitled, and may direct the Warrant Trustee, to refuse to
recognize any transfer, or enter the name of any transferee, of any
Warrant on the registers referred to in Subsection 2.10.1
hereof, if such transfer would constitute a violation of Applicable
Legislation or the rules, regulations or policies of any regulatory
authority having jurisdiction. The Warrant Trustee is entitled to
assume
compliance with all Applicable Legislation unless otherwise notified
in
writing by the Company. No duty shall rest with the Warrant Trustee
to
determine compliance of the transferee or transferor of any Warrant
with
Applicable Legislation.
|
-11-
|
2.10.5
|
If a Warrant Certificate tendered for transfer does not bear the legend set forth in Section 2.2 and if such transfer would constitute a violation of Applicable Legislation or the rules, regulations or policies of any regulatory authority having jurisdiction, the Warrant Trustee shall not register such transfer unless the transferor has provided the Warrant Trustee with the Warrant Certificate and the Transfer of Warrants form attached to the Warrant Certificate, and the offer of the securities being transferred was made to a person not in the United States and that is not a U.S. Person nor to a person for the account or benefit of a U.S. Person or a person in the United States. |
The
signature on the Transfer Form must be guaranteed by a Schedule A chartered
bank
or a member of an acceptable Medallion Guarantee Program. The guarantor must
affix a stamp bearing the actual words “Signature Guaranteed” or “Medallion
Guaranteed”. Please note signature guarantees are not accepted from Treasury
Branches or Credit Unions unless they are members of the Stamp Medallion
Program. Please note that in the United States, signature guarantees must be
done by members of the Medallion Signature Guarantee Program only.
|
2.11
|
Registers
Open for Inspection
|
The
registers referred to in Subsection 2.10.1
shall be
open at all reasonable times during business hours on a Business Day for
inspection by the Company, the Warrant Trustee or any Warrantholder. The Warrant
Trustee shall, from time to time when requested to do so in writing by the
Company, furnish the Company with a list of the names and addresses of
Warrantholders entered in the register of holders kept by the Warrant Trustee
and showing the number of Common Shares which might then be acquired upon the
exercise of the Warrants held by each holder.
|
3.
|
EXERCISE
OF WARRANTS
|
|
3.1
|
Method
of Exercise of Warrant
Certificates
|
|
3.1.1
|
A
Warrantholder may exercise the right to purchase Common Shares as
set
forth on the Warrant Certificate by surrendering, prior to the Time
of
Expiry, to the Warrant Trustee:
|
|
(a)
|
the
Warrant Certificate, with a duly completed and executed subscription
of
Common Shares in substantially the form set out in Schedule A;
and
|
|
(b)
|
a
certified cheque, money order or bank draft, in lawful money of Canada
in
an amount equal to the aggregate Exercise Price for the Common Shares
so
subscribed, payable to or to the order of the Warrant Trustee at
par in
the City of Toronto, Ontario.
|
-12-
|
3.1.2
|
A
Warrant Certificate with the duly completed and executed subscription
referred to in Subsection 3.1.1,
together with the payment of the aggregate Exercise Price referred
to in
Subsection 3.1.1,
shall be deemed to be surrendered only upon personal delivery thereof
or,
if sent by mail or other means of transmission, upon actual receipt
thereof at the Warrant Trustee's principal office in the City of
Toronto,
Ontario.
|
|
3.1.3
|
Any
subscription referred to in Subsection 3.1.1
shall be signed by the Warrantholder and shall specify the number
of
Common Shares which the holder desires to purchase (being not more
than
those which the holder is entitled to purchase pursuant to the Warrant
Certificate(s) surrendered), the person or persons in whose name
or names
such Common Shares are to be issued, and the mailing address for
the
Common Shares to be issued. If any of the Common Shares subscribed
for are
to be issued to a person or persons other than the Warrantholder,
the
Warrantholder shall pay to the Company or the Warrant Trustee on
behalf of
the Company, all reasonable applicable transfer fees and the Company
shall
not be required to issue or deliver certificates evidencing Common
Shares
unless or until such Warrantholder shall have paid to the Company
or to
the Warrant Trustee on behalf of the Company the amount of such fees
or
shall have established to the satisfaction of the Company that such
fee
has been paid or that no fee is
due.
|
|
3.2
|
Effect
of Exercise of Warrants
|
Upon
compliance by the Warrantholder with the provisions of Section 3.1,
and
subject to Section 3.4,
the
Common Shares subscribed for pursuant to the exercise of the Warrants shall
be
issued in accordance with the terms hereof. Such holder shall thereafter be
entitled to delivery of certificate(s) evidencing the Common Shares subscribed
at the address specified by the holder within five business days of exercise
of
the Warrants.
|
3.3
|
Subscription
for Less than Entitlement;
Fractions
|
A
Warrantholder may subscribe for and purchase a number of Common Shares less
than
the number which the holder is entitled to purchase pursuant to the surrendered
Warrant Certificate provided that, in no event shall fractional Common Shares
be
issued with regard to Warrants exercised. In the event of any purchase of a
number of Common Shares less than the number which the holder is entitled to
purchase, the Warrantholder, upon exercise thereof shall, in addition, be
entitled to receive, without charge therefor, a new Warrant Certificate in
respect of the balance of the Common Shares which such holder was
entitled to purchase pursuant to the surrendered Warrant Certificate(s) and
which were not then ▇▇▇▇▇▇▇▇▇.▇▇
fractional Common Shares shall be issued or otherwise provided for with regard
to the exercise of Warrants and any resulting fractional Common Share shall
be
rounded down or up, as appropriate, to the closest whole number, it being
understood for greater certainty that 0.5 Common Shares shall be rounded down
to
the closest whole number.
-13-
|
3.4
|
Expiration
of Warrants
|
After
the
Time of Expiry, all rights under this Indenture and under any Warrant that
has
not been exercised shall wholly cease and terminate and the Warrant Certificate
therefor shall be void and of no effect.
|
3.5
|
Cancellation
of Surrendered Warrants
|
All
Warrants surrendered to the Warrant Trustee pursuant to Sections 2.8
or
3.1
shall be
cancelled by the Warrant Trustee, and, upon the request of the Company, the
Warrant Trustee shall furnish the Company with a copy of the certificate
identifying the Warrant Certificates so cancelled and the number of Warrants
evidenced thereby.
|
3.6
|
Accounting
and Recording
|
The
Warrant Trustee shall promptly notify the Company when Warrants are exercised
and forward to the Company at the times hereinafter set forth (or into an
account or accounts of the Company with the bank or trust company designated
by
the Company for that purpose) all money received on exercise of Warrants. The
Warrant Trustee shall hold money received on the subscription of Common Shares
through the exercise of Warrants and shall forward such money to the Company
(or
into an account or accounts of the Company with the bank or trust company
designated by the Company for that purpose) within five Business
Days
from
the date of receipt thereof. All such money, and any securities or other
instruments, from time to time received by the Warrant Trustee shall be received
in trust for, and shall be segregated and kept apart by the Warrant Trustee
in
trust for the Company.
The
Warrant Trustee shall record the particulars of the Warrants exercised which
shall include the names and addresses of the persons who have subscribed for
Common Shares, the number of Common Shares subscribed for upon such exercise,
the Exercise Date and the Exercise Price. Upon request of the Company, the
Warrant Trustee shall provide within five Business
Days
such
particulars in writing to the Company.
-14-
|
4.
|
ADJUSTMENT
OF SUBSCRIPTION RIGHTS AND EXERCISE
PRICE
|
|
4.1
|
Adjustment
of Subscription Rights
|
The
number
of Common Shares to which the Warrantholders are entitled upon exercise of
the
Warrants shall be subject to adjustment from time to time as
follows:
|
4.1.1
|
if
and whenever at any time from the date hereof and prior to the Time
of
Expiry, the Company:
|
|
(i)
|
subdivides
its outstanding Common Shares into a greater number of Common Shares;
or
|
|
(ii)
|
consolidates
its outstanding Common Shares into a smaller number of Common
Shares;
|
|
(iii)
|
fix
a record date for the issuance of Common Shares or securities convertible
into Common Shares by way of stock dividend or other distribution
(other
than a distribution in the ordinary
course);
|
the
number
of Common Shares obtainable upon the exercise of each Warrant shall be adjusted,
at no cost to any Warrantholder, immediately after the effective date of such
subdivision or consolidation by multiplying the number of Common Shares
theretofore obtainable on the exercise thereof by the fraction of
which:
|
-
|
the
numerator shall be the total number of Common Shares outstanding
immediately after such date, and
|
|
-
|
the
denominator shall be the total number of Common Shares outstanding
immediately prior to such date,
|
and
such
adjustment shall be made successively whenever any event referred to in this
Subsection 4.1.1
shall
occur (and all adjustments in this Subsection 4.1.1
are
cumulative), any such issuance of Common Shares by way of stock dividend shall
be deemed to have been made on the record date for such stock
dividend;
-15-
|
4.1.3
|
if
and whenever at any time from the date hereof and ending at the
Expiry
Date, the Company shall fix a record date for the issue of rights,
options
or warrants to all or substantially all of the holders of Common
Shares
entitling the holders thereof, within a period expiring not more
than 45
days after the record date for such issue, to subscribe for or
purchase
Common Shares (or securities convertible into or exchangeable for
Common
Shares) at a price per share (or having a conversion or exchange
price per
share) less than 95% of the Current Market Price on such record
date, then
the Share Rate will be adjusted immediately after such record date
so that
it will equal the rate determined by multiplying the Share Rate
in effect
on such record date by a fraction, of which the denominator shall
be the
total number of Common Shares outstanding on such record date plus
the
number of Common Shares equal to the number arrived at by dividing
the
aggregate price of the total number of additional Common Shares
so offered
for subscription or purchase (or the aggregate conversion or exchange
price of the convertible or exchangeable securities so offered)
by such
Current Market Price, and of which the numerator shall be the total
number
of Common Shares outstanding on such record date plus the total
number of
additional Common Shares so offered for subscription or purchase
(or into
or for which the convertible or exchangeable securities so offered
are
convertible or exchangeable). Any Common Shares owned by or held
for the
account of the Company or any Subsidiary of the Company shall be
deemed
not to be outstanding for the purpose of any such computation.
Such
adjustment will be made successively whenever such a record date
is fixed,
provided that if two or more such record dates or record dates
referred to
in this Subsection 4.1.2
are
fixed within a period of 25 Trading Days, such adjustment will
be made
successively as if each of such record dates occurred on the earliest
of
such record dates. To the extent that any such rights, options
or warrants
are not exercised prior to the expiration thereof, the Share Rate
will
then be readjusted to the Share Rate which would then be in effect
based
upon the number of Common Shares (or securities convertible into
or
exchangeable for Common Shares) actually issued upon the exercise
of such
rights, options or warrants, as the case may
be;
|
|
4.1.3
|
if
and whenever at any time from the date hereof and prior to the Time
of
Expiry, the Company issues or distributes to the holders of all or
substantially all of the Company's outstanding Common Shares any
securities of the Company including rights, options or warrants to
acquire
Common Shares of the Company or securities convertible into or
exchangeable for Common Shares of the Company or property or assets
including evidences of indebtedness, a Warrantholder who thereafter
shall
exercise his right to subscribe for Common Shares and thereunder
shall be
entitled to receive, at no cost to such holder, and shall accept
for the
same aggregate consideration, in addition to the Common Shares which
he
was theretofore entitled upon such exercise, the kind and amount
of shares
or other securities or property which such holder would have been
entitled
to receive as a result of such issue or distribution as if, on the
effective date thereof, he had been the registered holder of the
number of
Common Shares to which he was theretofore entitled upon such
exercise;
|
-16-
|
4.1.4
|
if
and whenever at any time from the date hereof and ending at the Expiry
Date, there is (A) any reclassification of or amendment to the outstanding
Common Shares, any change of the Common Shares into other shares
or any
other reorganization of the Company (other than as described above),
(B)
any consolidation, amalgamation, arrangement, merger or other form
of
business combination of the Company with or into any other company
resulting in any reclassification of the outstanding Common Shares,
any
change of the Common Shares into other shares or any other reorganization
of the Company, or (C) any sale, lease, exchange or transfer of the
undertaking or assets of the Company as an entirety or substantially
as an
entirety to another company or entity, then, in each such event,
each
holder of any Warrant which is thereafter exercised will be entitled
to
receive, and shall accept, in lieu of the number of Common Shares
to which
such holder was theretofore entitled upon such exercise, the kind
and
number or amount of shares or other securities or property which
such
holder would have been entitled to receive as a result of such event
if,
on the effective date thereof, such holder had been the registered
holder
of the number of Common Shares to which such holder was theretofore
entitled upon such exercise. If necessary as a result of any such
event,
appropriate adjustments will be made in the application of the provisions
set forth in this subsection with respect to the rights and interests
thereafter of the Warrantholders to the end that the provisions set
forth
in this subsection will thereafter correspondingly be made applicable,
as
nearly as may reasonably be, in the relation to any shares or other
securities or property thereafter deliverable upon the exercise of
any
Warrant. Any such adjustments will be made by and set forth in an
indenture supplemental hereto approved by the directors, acting
reasonably, and shall for all purposes be conclusively deemed to
be an
appropriate adjustment;
|
|
4.1.5
|
appropriate
adjustments shall be made as a result of any such subdivision,
consolidation, issue or distribution to the rights and interests
of
Warrantholders thereafter so that the provisions of this article
shall
thereafter apply correspondingly to any Common Shares, other securities
or
other property thereafter deliverable upon the exercise of any Warrant
and
any such adjustments shall be made by and set forth in an agreement
supplemental hereto approved by the Directors and the Warrant Trustee
and
shall for all purposes be conclusively deemed to be an appropriate
adjustment;
|
|
4.1.6
|
in
any case in which this Section 4.1
shall require that an adjustment shall become effective immediately
after
a record date for an event referred to herein, the Company may defer,
until the occurrence of such event, issuing to a Warrantholder exercising
his subscription rights after such record date the additional Common
Shares or other securities or property issuable upon such exercise
by
reason of the adjustment required by such event; provided, however,
that
the Company shall deliver to such holder an appropriate instrument
evidencing such holder's right to receive such additional Common
Shares,
other securities or property, as the case may be, upon the occurrence
of
the event requiring such adjustment and the right to receive any
distributions made on such additional Common Shares, other securities
or
property, as the case may be, declared in favour of holders of record
of
Common Shares, other securities or property, as the case may be,
on and
after the date of exercise or such later date as such holder would
but for
the provisions of this Subsection 4.1.6,
have become the holder of record of such additional Common Shares,
other
securities or property, as the case may be, pursuant to the due exercise
of the Warrants held by such
holder;
|
-17-
|
4.1.7
|
all
Common Shares or other securities or property which a Warrantholder
is at
that time entitled to receive on the full exercise of his Warrant,
whether
or not as a result of adjustments made pursuant to this Section
4.1
shall, for the purposes of interpreting this Indenture, be deemed
to be
Common Shares which such Warrantholder is entitled to acquire pursuant
to
the exercise of such Warrant;
|
|
4.1.8
|
notwithstanding
anything in this Section 4.1
to
the contrary, no adjustment shall be made in the subscription rights
attached to the Warrants if the issue of Common Shares is being made
pursuant to any stock option or stock purchase plan in force from
time to
time for directors, officers or employees of the Company or persons
who
provide on-going services to the Company or any other currently existing
obligation of the Company; and
|
|
4.1.9
|
in
the event of any question arising with respect to the adjustments
provided
for in this Section 4.1
such question shall be conclusively determined by a firm of independent
chartered accountants appointed by the Company (which may be the
Company's
auditors). Such accountants shall have access to all necessary records
of
the Company, and such determination shall be binding upon the Company,
the
Warrant Trustee, all Warrantholders and all other persons interested
therein. In the event that any such determination is made, the Company
shall deliver a certificate to the Warrant Trustee describing such
determination;
|
subject
to
the prior written consent of the Toronto Stock Exchange, if necessary, and
adjustment to the number of Common Shares issuable upon the exercise of the
Warrants, as set forth herein, shall also include a corresponding adjustment
to
the Exercise Price which shall be calculated by multiplying the Exercise Price
by a fraction: (i) the numerator of which shall be the Share Rate prior to
the
adjustment; and (ii) the denominator of which shall be the Share Rate after
the
adjustment; provided that no adjustment will be required if the Warrantholder
is
otherwise entitled to participate in the event which triggers the adjustment
pursuant to this Section 4.1
on the
same basis as such Warrantholder would have been entitled had he exercised
his
Warrants and subscribed for Common Shares immediately prior to such event.
Any
participation of a Warrantholder in a distribution, dividends, or other
operations referred to in section 4.1
is
subject to the prior approval of the Toronto Stock Exchange.
-18-
|
4.2
|
Proceedings
Prior to any Action Requiring
Adjustment
|
As
a
condition precedent to the taking of any action which would require an
adjustment in any of the subscription rights arising pursuant to the exercise
of
any of the Warrants, including the number of Common Shares which are to be
received upon the exercise thereof, the Company shall take any corporate action
which may, in the opinion of Counsel, be necessary in order that the Company
shall have allotted and reserved for issue in its authorized capital and
enabling the Company to validly and legally issue as fully paid and
non-assessable, such number of Common Shares and validly and legally deliver
all
other securities or property which the Warrantholders are entitled to receive
on
the full exercise of Warrants, in accordance with the provisions
hereof.
|
4.3
|
Certificate
of Adjustment
|
The
Company shall from time to time immediately after the occurrence of any event
which requires an adjustment or readjustment as provided in Section 4.1
hereof,
deliver a certificate of the Company to the Warrant Trustee specifying the
nature of the event requiring the same and the amount of the adjustment
necessitated thereby and setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based, which
certificate and the amount of the adjustment specified therein shall be verified
by the Company's auditors, upon whose verification the Warrant Trustee shall
be
entitled to act and rely. When so verified, the Company shall, except in respect
of any subdivision or consolidation of the Common Shares, forthwith give written
notice to the Warrantholders specifying the event requiring such adjustment
or
readjustment and the results thereof; provided that if the Company has already
given the required notices under Section 4.5
hereof
covering all the relevant facts in respect of such event and if the Warrant
Trustee consents in writing, no further notice need be given under this Section
4.3.
|
4.4
|
Adjustment
Rules
|
The
adjustments provided for in this Article 4
are
cumulative and shall apply (without duplication) to successive actions requiring
an adjustment under the provisions of Section 4.1;
provided
that, notwithstanding any other provision of this Article 4,
no
adjustment shall be made in the number of Common Shares which may be subscribed
for on the exercise of a Warrant unless it would change the exercise price
by at
least 1% or the number of Shares purchasable upon exercise by at least
one-hundredth of a Share (provided, however, that any adjustments which by
reason of this Section 4.4
are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment).
-19-
In
the
event that the Company after the date of this Indenture shall take any action
affecting the Common Shares other than action described in this
Article 4,
the
Directors may, but shall not be required to, make any other adjustments to
the
number of Common Shares which may be acquired upon exercise of the Warrants,
to
the extent, if any, the Board of Directors of the Company deems appropriate,
provided that no such adjustment shall be made unless prior approval of any
stock exchange on which the Common Shares are then listed for trading, if
required, has been obtained.
|
4.5
|
Notice
of Special Matters
|
The
Company covenants with the Warrant Trustee that so long as any Warrant remains
outstanding it will give at least 21 days' prior written notice in the manner
provided for in Article 10
to the
Warrant Trustee and Warrantholders of any event which requires an adjustment
to
the subscription rights attaching to any of the Warrants pursuant to this
Article 4.
The
Company covenants and agrees that such notice shall contain the particulars
of
such event in reasonable detail and, if determinable, the required adjustment
in
the manner provided for in this Article 4.
The
Company further covenants and agrees that it shall promptly as soon as the
adjustment calculations are reasonably determinable, file a Certificate of
the
Company with the Warrant Trustee and direct the Warrant Trustee to send a copy
of such certificate to the Warrantholders showing how such adjustment shall
be
computed.
|
4.6
|
No
Action After Notice
|
The
Company covenants with the Warrant Trustee that it will not close its transfer
books or take any other corporate action which might deprive the Warrantholder
of the opportunity of exercising his subscription right pursuant thereto during
the period of 30 days after the giving of the notice set forth in Sections
4.3
and
4.5
hereof.
-20-
|
4.7
|
Protection
of Warrant Trustee
|
Except
as
provided in Section 9.3
hereof,
the Warrant Trustee, unless it has been negligent or acted with wilful
misconduct or fraudulently;
|
(a)
|
shall
not at any time be under any duty or responsibility to any Warrantholder
to determine whether any facts exist which may require any adjustment
contemplated by Section 4.1
hereof, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed in making the
same;
|
|
(b)
|
shall
not be accountable with respect to the validity or value (or the
kind or
amount) of any Common Shares, or of any shares or other securities
or
property which may at any time be issued or delivered upon the exercise
of
the subscription rights attaching to any
Warrant;
|
|
(c)
|
shall
not be responsible for any failure of the Company to make any cash
payment
or to issue, transfer or deliver Common Shares, or certificates therefor
upon the surrender of any Warrants for the purpose of the exercise
of such
rights or to comply with any of the covenants contained in this Article
4;
and
|
|
(d)
|
shall
not incur any liability or responsibility whatsoever or be in any
way
responsible for the consequence of any breach on the part of the
Company
of any of the representations, warranties or covenants herein contained
or
of any acts of the agents or servants of the
Company.
|
|
5.
|
COVENANTS,
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
|
|
5.1
|
General
Covenants,
Representations and
Warranties
|
The
Company represents, warrants, covenants and agrees as follows with the Warrant
Trustee for the benefit of the Warrant Trustee and the Warrantholders that
so
long as any Warrants remain outstanding and may be exercised for Common
Shares.
|
5.1.1
|
To
Issue Warrants and to Reserve Common Shares: That it is duly authorized
to
create and issue the Warrants and that the Warrant Certificates,
when
issued and countersigned as herein provided, will be valid and enforceable
against the Company and that, subject to the provisions of this Indenture,
the Company will cause a sufficient number of Common Shares from
time to
time to be issuable under this Indenture and the certificates representing
such Common Shares be duly issued and delivered in accordance with
instructions on the Warrant Certificates and the terms hereof. At
all
times prior to and including the Time of Expiry, while any of the
Warrants
are also outstanding, the Company shall reserve and allot out of
its
authorized capital a number of Common Shares sufficient to enable
the
Company to meet its obligation to issue Common Shares in respect
of the
exercise of all Warrants
outstanding.
|
-21-
|
5.1.2
|
Warrant
Trustee's Remuneration and Expenses: The Company will pay to the
Warrant
Trustee from time to time reasonable remuneration for its services
hereunder and will, upon the Warrant Trustee's request, pay to or
reimburse the Warrant Trustee for all reasonable expenses, disbursements
and advances made or incurred by the Warrant Trustee in the administration
or execution of the trust hereof (including the compensation and
disbursements of its counsel and other advisors and assistants not
regularly in its employ), both before any default hereunder and thereafter
until all duties of the Warrant Trustee hereunder have been finally
and
fully performed, except any such expense, disbursement or advance
that
arises out of or results from negligence, wilful misconduct or bad
faith
of the Warrant Trustee.
|
Any
amount
owing hereunder and remaining unpaid after 30 days from the invoice date will
bear interest at the then current rate charged by the Warrant Trustee against
unpaid invoices and shall be payable upon demand. This Section shall survive
the
termination of this Agreement and the removal or resignation of the Warrant
Trustee.
|
5.1.3
|
To
Execute Further Assurance: That it will do, execute, acknowledge
and
deliver or cause to be done, executed, acknowledged and delivered,
all
other acts, deeds and assurances in law as the Warrant Trustee may
reasonably require for the better accomplishing and effecting the
intentions and provisions of this
Indenture.
|
|
5.1.4
|
Performance
of Covenants by Warrant Trustee: That, if the Company shall fail
to
perform any of its covenants contained in this Indenture, the Warrant
Trustee may notify the Warrantholders of such failure on the part
of the
Company or may itself perform any of the said covenants capable of
being
performed by it, but, subject to Section 9.3
hereof, the Warrant Trustee shall be under no obligation to do so
or to
notify the Warrantholders. All sums reasonably expended or advanced
by the
Warrant Trustee in performance of its rights provided for in this
subsection shall be repayable as provided in Subsection 5.1.2.
No
such performance, expenditure or advance by the Warrant Trustee shall
be
deemed to relieve the Company of any default
hereunder.
|
The
Company will not take any action or omit to take any action which would have
the
effect of preventing the Warrantholders from exercising any of the Warrants
or
receiving the Common Shares upon such exercise.
|
5.1.5
|
Performance
of Agreement: It will well and truly perform and carry out all of
the acts
or things to be done by it as provided in this
Indenture.
|
-22-
|
5.1.5
|
To
Maintain Stock Exchange Listing: That it will arrange for the listing
of
the Warrants and of the Common Shares to be issued pursuant to
the
exercise of the Warrants on the Toronto Stock Exchange and ensure
that
Common Shares of the Company remain thereafter listed and posted
for
trading on the facilities of the Toronto Stock
Exchange.
|
|
5.1.7
|
To
Carry on Business: That subject to the express provisions hereof,
it will
at all times maintain its corporate existence, carry on and conduct
and
will cause to be carried on and conducted its business in the same
manner
as heretofore carried on and conducted, keep or cause to be kept
proper
books of account in accordance with generally accepted accounting
principles, and will furnish the Warrant Trustee and Warrantholders
with
such information as may reasonably be required, provided, however,
that
the Company may cease to operate or may dispose of any business,
premises,
property or operation if in the opinion of the Board of Directors
of the
Company, it would be advisable and in the best interests of the Company,
to do so; and subject to the express provisions hereof, it will do
or
cause to be done all things necessary to preserve and keep in full
force
and effect its corporate existence, provided, however, that (subject
to
compliance with the provisions of Article 4
hereof) nothing herein contained shall prevent the amalgamation,
consolidation, merger, sale, winding-up or liquidation of the Company
or
the abandonment of any rights and franchises of the Company if, in
the
opinion of the Board of Directors of the Company, it would be advisable
and in the best interests of the Company to do
so.
|
|
5.1.8
|
Reporting
Issuer: The Company is presently a reporting issuer in the Canadian
Jurisdictions. The Company covenants and agrees to ensure that it
remains
a reporting issuer in good standing under the securities legislation
of
the Canadian Jurisdictions and shall make all requisite filings under
the
Applicable Legislation and the regulations of the Toronto Stock
Exchange.
|
|
5.1.9
|
No
Conflict: The creation and issue of the Warrants do not and will
not
result in a breach by the Company of, and do not and will not create
a
state of facts which after notice or lapse of time, or both, will
result
in a breach by the Company of, any applicable laws, and do not and
will
not conflict with any of the terms, conditions or provisions of the
articles of the Company or the by-laws or resolutions of the Company
or
any trust indenture, loan, agreement or any other agreement to which
the
Company is a party or by which it is contractually bound on the date
hereof.
|
|
5.2
|
Securities
Qualification Requirements
|
If,
in the
opinion of Counsel, any instrument is required to be filed with or any
permission, order or ruling is required to be obtained from any securities
regulatory authority or any other actions required under any Applicable
Legislation in which Warrantholders reside prior to the issue of any Common
Shares or any securities or property which a Warrantholder is entitled to
receive pursuant to the exercise of a Warrant, the Company covenants that it
will use its best efforts to file such instrument, obtain such permission,
order
or ruling or take all such other actions at its expense, as is required or
appropriate in the circumstances.
The
Company will give written notice of the issue of
the Common Shares, in such detail as may be required, to the Toronto Stock
Exchange and to the securities regulatory authorities in the provinces in which
the Company is a reporting issuer if there is therein any legislation, ruling
or
order requiring the giving of any such notice.
-23-
|
6.
|
ENFORCEMENT
|
|
6.1
|
Suits
by Warrantholders
|
All
or any
of the rights conferred upon any Warrantholder by any of the terms of the
Warrants or of the Indenture, or of both, may be enforced by the Warrantholders
by appropriate legal proceedings but without prejudice to the right which is
hereby conferred upon the Warrant Trustee to proceed in its own name to enforce
each and all of the provisions herein contained for the benefit of the
Warrantholders.
|
6.2
|
Warrant
Trustee may Institute all
Proceedings
|
The
Warrant Trustee shall also have the power at any time from time to time to
institute and to maintain such suits and proceedings as it may be advised shall
be necessary or advisable to preserve and protect its interests and the
interests of the Warrantholders.
|
7.
|
MEETING
OF WARRANTHOLDERS
|
|
7.1
|
Right
to Convene Meetings
|
At
any
time and from time to time a meeting of Warrantholders may be convened by the
Warrant Trustee or the Company or by the Warrantholders holding not less than
ten percent (10%) of the aggregate number of Warrants then outstanding, who
shall deliver to the Warrant Trustee a requisition signed by such holders,
and
the Warrant Trustee, upon receipt of reasonable funding and indemnity from
the
Company or by Warrantholders signing the request, shall then be bound to convene
a meeting of Warrantholders. In the event that the Warrant Trustee fails to
convene the meeting within 15 days after receipt of funding and indemnity and
after being duly required to do so, Warrantholders holding no less than ten
(10%) of the aggregate number of Warrants then outstanding may themselves
convene a meeting, the notice of which shall be signed by any person as such
Warrantholders may specify, provided that every such meeting shall be held
in
the City of Toronto or such other place as the Warrant Trustee may approve
and
the Warrant Trustee and the Company shall receive notice of such meeting, as
provided in Section 7.2
hereof
-24-
|
7.2
|
Notice
|
At
least
14 days prior notice of a meeting of Warrantholders shall be given to all
Warrantholders in accordance with Article 10
hereof,
the Warrant Trustee and the Company, and the notice shall state the time, place
and in general terms the nature of the business to be transacted but it shall
not be necessary to specify the text of the resolutions to be considered. It
shall not be necessary to specify the nature of business to be transacted at
an
adjourned meeting.
|
7.3
|
Chairman
|
The
chairman of the meeting of Warrantholders shall be designated in writing by
the
Warrant Trustee and need not be a Warrantholder. If no person is so designated
or if the person so designated is not present within 25 minutes after the time
fixed for the holding of a meeting, the Warrantholders and proxyholders for
Warrantholders present at the meeting shall appoint one of them as chairman.
If
the chairman is a Warrantholder or a proxy of a Warrantholder, the chairman
shall be entitled to vote at the meeting.
|
7.4
|
Quorum
|
A
quorum
consists of those Warrantholders, whether present or represented by proxy,
holding not less than twenty percent (20%) of the aggregate number of Warrants
then outstanding. If at a meeting, a quorum is not present or represented by
proxy within 30 minutes after the time appointed for the meeting, then the
meeting, if called by or upon the requisition of Warrantholders shall be
dissolved, but in any other case after the appointment of a chairman, the
meeting shall stand adjourned to such day being not less than five Business
Days
later and to such place and time as may be decided by the chairman of the
meeting. At the adjourned meeting, those persons present in person and owning
Warrants or representing Warrantholders by proxy shall, in any event, constitute
a quorum for the transaction of business for which the original meeting was
convened, notwithstanding that they may not hold at least twenty percent (20%)
of the then outstanding Warrants.
-25-
|
7.5
|
Show
of Hands
|
Subject
to
Section 7.6
hereof,
every question submitted to a meeting, except one requiring a Special
Resolution, shall be decided in the first instance by simple majority on a
show
of hands, the outcome of which will be declared by the chairman.
|
7.6
|
Poll
and Voting
|
A
poll
shall be taken when requested by a Warrantholder acting in person or by proxy
and, when demanded on the election of a chairman or on the question of
adjournment, it shall be taken forthwith. If demanded on any other question
or
on a Special Resolution, a poll shall be taken in such manner and either at
once
or after an adjournment as the chairman may direct. The result of a poll shall
be the decision of the meeting at which the poll was demanded. On a poll vote,
each Warrantholder acting in person or by proxy shall have one vote for each
Warrant which he holds or represents. Votes may be given in person or by proxy
and the proxyholder need not be a Warrantholder. The chairman of any meeting
shall be entitled to vote in respect of any Warrants and proxies held by
him.
|
7.7
|
Regulations
|
The
Warrant Trustee, or the Company with the approval of the Warrant Trustee, may
from time to time make and from time to time amend such regulations not contrary
to the provisions of this Indenture as it shall think fit providing for and
governing:
|
(a)
|
the
setting of the record date for a meeting for the purpose of determining
Warrantholders entitled to receive notice of and to vote at a
meeting;
|
|
(b)
|
voting
by proxy, the form of instrument appointing proxyholders, the manner
in
which proxies are to be executed and the production of the authority
of
any persons signing on behalf of a
Warrantholder;
|
|
(c)
|
the
lodging of and means of forwarding the instruments appointing proxyholders
and the time before the holding of a meeting or adjourned meeting
by which
the instruments appointing proxyholders are to be deposited;
and
|
|
(d)
|
any
other matter relating to the conduct of meetings of
Warrantholders.
|
-26-
Any
regulations so made shall be binding and effective on the holders and votes
given in accordance therewith shall be valid and counted. The Warrant Trustee
may permit Warrantholders to provide proof of ownership of the Warrants in
such
manner as the Warrant Trustee may approve. Save as aforesaid, the only persons
who shall be recognized at any meeting as Warrantholders or entitled to vote
or,
except as provided in Section 7.12
hereof,
be present at the meeting in respect thereof shall be persons who hold Warrants
or are duly appointed proxyholders for registered holders of
Warrants.
|
7.8
|
Minutes
|
Minutes
of
all resolutions adopted and proceedings taken at every meeting as aforesaid
shall be made and duly entered in books to be from time to time provided for
that purpose by the Warrant Trustee at the expense of the Company and any such
minutes as aforesaid, if signed by the chairman of the meeting at which such
resolutions were passed or proceedings taken, or by the chairman of the next
succeeding meeting of Warrantholders, shall be prima facie evidence of the
matters therein stated and until the contrary is proved, every such meeting
in
respect of the proceedings of which minutes shall have been made shall be deemed
to have been duly held and convened and all resolutions passed thereat or
proceedings taken to have been duly passed and taken.
|
7.9
|
Powers
Exercisable by Special
Resolution
|
The
Warrantholders shall have the power from time to time by Special Resolution
and
subject to the necessary approvals of the Toronto Stock Exchange:
|
(a)
|
to
agree to or sanction any modification, abrogation, alteration, compromise
or arrangement of the rights of the Warrantholders or the Warrant
Trustee
in its capacity as trustee hereunder (subject to the consent of the
Warrant Trustee) or on behalf of Warrantholders against the Company
which
shall be agreed to by the Company whether such rights arise under
this
Indenture or under the Warrants or
otherwise;
|
|
(b)
|
to
assent to any change in or omission from the provisions contained
in the
Warrants and this Indenture or any ancillary or supplemental instrument
which may be agreed to by the Company and to authorize the Warrant
Trustee
to concur in and execute any ancillary or supplemental agreement
embodying
the change or omission;
|
|
(c)
|
with
the consent of the Company, to remove the Warrant Trustee or its
successor
in office and to appoint a new trustee or trustees to take the place
of
the Warrant Trustee so removed;
|
-27-
|
(d)
|
to
require, direct or authorize the Warrant Trustee to enforce any of
the
covenants on the part of the Company contained in this Indenture
or the
Warrants or to enforce any of the rights of the Warrantholders in
any
manner specified in such Special Resolution or to refrain from enforcing
any such covenant or right upon the Warrant Trustee being furnished
with
an indemnity, as it may in its discretion
determine;
|
|
(e)
|
to
restrain any Warrantholder from instituting or continuing any suit
or
proceedings against the Company for the enforcement of the covenants
on
the part of the Company contained in this Indenture or any of the
rights
conferred upon the Warrantholders by the Warrants and this
Indenture;
|
|
(f)
|
to
direct any Warrantholder who, as such, has brought any suit, action or
proceeding to stay or discontinue or otherwise deal with the same
upon
payment of the costs, charges and expenses reasonably and properly
incurred by such Warrantholder in connection
therewith;
|
|
(g)
|
to
waive, authorize and direct the Warrant Trustee to waive any default
on
the part of the Company in complying with any of the provisions of
this
Indenture or the Warrants either unconditionally or upon any conditions
specified in such Special
Resolution;
|
|
(h)
|
to
assent to any compromise or arrangement with any creditor or creditors
or
any class or classes of creditors, whether secured or unsecured,
and with
holders of any shares or other securities of the Company;
and
|
|
(i)
|
to
amend, alter or repeal any Special Resolution previously passed or
sanctioned by the Warrantholders.
|
A
Special
Resolution of the Warrantholders is binding upon all the Warrantholders whether
present or not present at the meeting at which the Special Resolution was
adopted or whether or not assented to in writing and each Warrantholder and
the
Warrant Trustee shall be bound to give effect to the Special Resolution to
the
extent that the Special Resolution applies to such party.
-28-
|
7.10
|
Meaning
of Special Resolution
|
The
expression "Special Resolution" when used in this Indenture means a resolution
proposed to be adopted as a Special Resolution at a meeting of Warrantholders
duly convened for the purpose and held in accordance with the provisions of
this
Article 7
and
attended by Warrantholders holding not less than fifty-one percent (51%) of
the
Warrants outstanding and adopted by not less than sixty-six and two-thirds
percent (66 2/3%) of the votes cast upon such resolution.
If,
at any
meeting called for the purpose of adopting a Special Resolution, Warrantholders
holding at least fifty-one percent (51%) of the aggregate number of Warrants
are
not present in person or represented by proxy within 30 minutes after the time
appointed for the meeting, then the meeting if convened by Warrantholders or
on
a Warrantholders' request, shall be dissolved; but in any other case it shall
be
adjourned to such day, being not less than 15 or more than 60 days later, and
to
such place and time as may be decided by the chairman. Not less than 10 days
prior notice shall be given of the time and place of such adjourned meeting
in
the manner provided in Section 10.2.
Such
notice shall indicate that at the adjourned meeting the Warrantholders present
in person or represented by proxy shall form a quorum but it shall not be
necessary to set forth the purposes for which the meeting was originally
convened or any other particulars. At the adjourned meeting the Warrantholders
present in person or represented by proxy shall form a quorum and may transact
the business for which the meeting was originally convened and a resolution
proposed at such adjourned meeting and adopted by the requisite vote as provided
in this Section 7.10
shall be
a Special Resolution within the meaning of this Indenture notwithstanding that
Warrantholders holding at least fifty-one percent (51%) of the aggregate number
of Warrants outstanding are not present in person or represented by proxy at
such adjourned meeting.
Subject
to
Section 7.13
hereof,
votes on a Special Resolution shall always be given on a poll.
|
7.11
|
Powers
Cumulative
|
It
is
hereby declared and agreed that any one or more of the powers or any combination
of the powers in this Indenture stated to be exercisable by the Warrantholders
pursuant to a Special Resolution or otherwise may be exercised from time to
time
and the exercise of any one or more of such powers or any combination of powers
from time to time shall not be deemed to exhaust the right of the Warrantholders
to exercise the same or any other such power or powers or combination of powers
then or thereafter from time to time.
-29-
|
7.12
|
Company,
Warrantholders and Warrant Trustee may be
Represented
|
The
Company and the Warrant Trustee, by their respective employees, officers and
directors, and the legal and financial advisers and auditors of the Company
and
the Warrant Trustee may attend any meeting of the Warrantholders, but they
shall
have no vote as such. In addition, any Warrantholder is entitled to have his
legal or financial advisers present at any such meeting, but they shall have
no
vote as such.
|
7.13
|
Instruments
in Writing
|
All
actions that may be taken and all powers that may be exercised by the
Warrantholders at a meeting as hereinbefore in this Article provided may also
be
taken and exercised by holders of not less than sixty-six and two-thirds percent
(66 2/3%) of the aggregate number of Warrants then outstanding by an instrument
in writing signed in one or more counterparts by such holders and the expression
"Special Resolution" when used in this Indenture shall include an instrument
so
signed.
|
7.14
|
Binding
Effect of Resolutions
|
Every
resolution and every Special Resolution adopted in accordance with the
provisions of this Article 7
at a
meeting of Warrantholders shall be binding upon all the Warrantholders, whether
present or represented by proxy at, or absent from such meeting, and every
Special Resolution signed by Warrantholders in accordance with Section
7.13
shall be
binding upon all the Warrantholders, whether signatories thereto or not and
each
and every Warrantholder and the Warrant Trustee (subject to the provisions
for
indemnity herein contained) shall be bound to give effect accordingly to every
such resolution and Special Resolution. In the case of a Special Resolution
in
writing, the Warrant Trustee shall give notice in the manner contemplated in
Article 10
of the
effect of the Special Resolution in writing to all Warrantholders and the
Company as soon as it is reasonably practicable.
|
7.15
|
Holdings
by the Company or Subsidiaries of the Company
Disregarded
|
In
determining whether Warrantholders holding a sufficient number of Warrants
are
present at a meeting of Warrantholders for the purpose of determining a quorum
or have concurred in any consent, waiver, resolution, Special Resolution or
other action under this Indenture, Warrants owned legally or beneficially by
the
Company shall be disregarded. The Company shall provide, upon written request,
a
certificate to the Warrant Trustee stating the exact registrations and
denomination of any Warrants owned by the Company or any of its affiliates
or
associates (as such terms are defined in the Canada
Business Corporations Act).
-30-
|
8.
|
SUPPLEMENTAL
INDENTURES
|
|
8.1
|
Provision
for Supplemental Amendments for Certain
Purposes
|
From
time
to time the Company and the Warrant Trustee may, subject to the provisions
hereof, and they shall, when so required by any provision of this Indenture
(other than this Section 8.1)
and
subject to the approval of the Toronto Stock Exchange, execute and deliver
by
their proper officers, deeds, agreements or instruments supplemental hereto,
which thereafter shall form part hereof, for any one or more of the following
purposes:
|
(a)
|
adding
to the provisions hereof such additional covenants and enforcement
provisions as, in the opinion of Counsel, are necessary or advisable
in
the premises, provided that the same are not, in the opinion of the
Warrant Trustee acting on the advice of Counsel, prejudicial to the
interests of the Warrantholders;
|
|
(b)
|
giving
effect to any Special Resolution passed as provided in
Article 7
hereof;
|
|
(c)
|
making
such provisions not inconsistent with this Indenture as may be necessary
or desirable with respect to matters or questions arising hereunder
or for
the purpose of obtaining a listing or quotation of the Warrants or
the
Common Shares upon the exercise thereof on any stock exchange, provided
that such provisions are not, in the opinion of the Warrant Trustee
acting
on the advice of Counsel, prejudicial to the interests of the
Warrantholders;
|
|
(d)
|
making
any modification in the form of the Warrant Certificate which does
not
affect the substance of the Warrants provided that, in the opinion
of the
Warrant Trustee, the rights of the Warrant Trustee and in the opinion
of
the Warrant Trustee acting on advice of counsel, the interests of
the
Warrantholders are in no way prejudiced
thereby;
|
|
(e)
|
evidencing
any succession, or successive successions, of other bodies corporate
to
the Company and the assumption by any successor of the covenants
of the
Company herein and in the Warrant Certificates contained as provided
hereafter in this Article 8;
and
|
|
(f)
|
for
any other purpose not inconsistent with the terms of this Indenture,
including the correction or rectification of any ambiguities, defective
provisions, errors or omissions herein, provided that, in the opinion
of
the Warrant Trustee, the rights of the Warrant Trustee and in the
opinion
of the Warrant Trustee acting on advice of counsel, the interests
of the
Warrantholders are in no way prejudiced thereby;
and
|
-31-
|
(g)
|
setting
forth any adjustments resulting from the application of provisions
of
Article 4.
|
|
8.2
|
Company
may Consolidate etc. on Certain
Terms
|
Subject
to
Section 4.1,
nothing
in this Indenture shall prevent any consolidation, reorganization, arrangement,
amalgamation or merger of the Company with or into any other body corporate,
or
bodies corporate, or person, or a conveyance or transfer of all or substantially
all the properties and assets of the Company as an entirety to any body
corporate or person lawfully entitled to acquire and operate the same, provided,
however, that the body corporate or person formed by such consolidation or
amalgamation or arrangement or into which such merger shall have been made
or
the person which acquires by conveyance or transfer all or substantially all
the
properties and assets of the Company as an entirety shall execute and deliver
to
the Warrant Trustee prior to or contemporaneously with such consolidation,
reorganization, amalgamation, arrangement, merger, conveyance or transfer,
and
as a condition precedent thereto an agreement supplemental hereto wherein the
due and punctual performance and observance of all the covenants and conditions
of this Indenture to be performed or observed by the Company shall be assumed
by
such body corporate or person on terms and conditions not adverse to the
Warrantholders. The Warrant Trustee shall be entitled to receive and shall
be
fully protected in acting and relying upon an opinion of Counsel and such other
advisors as they deem necessary that any such consolidation, reorganization,
amalgamation, arrangement, merger, conveyance or transfer and any supplemental
agreement executed in connection therewith, complies with the provisions of
this
Section 8.2.
|
8.3
|
Successor
Body Corporate Substituted
|
In
case
the Company, pursuant to Section 8.2
hereof,
shall be consolidated, amalgamated, reorganized, arranged or merged with or
into
any other body corporate, bodies corporate or person or shall convey or transfer
all or substantially all of the properties and assets of the Company as an
entirety to another body corporate or person, the successor body corporate
or
person formed by such consolidation, reorganization, arrangement or amalgamation
or into which the Company shall have been merged or which shall have received
a
conveyance or transfer as aforesaid shall succeed to and be substituted for
the
Company hereunder with the same effect as nearly as may be possible as if it
had
been an original party to this Agreement. Such changes may be made in the
Warrants as may be appropriate in view of such consolidation, reorganization,
amalgamation, merger, conveyance or transfer and as may be necessary to ensure
that the Warrantholders are not adversely affected by such consolidation,
reorganization, amalgamation, merger, conveyance or transfer.
-32-
|
9.
|
CONCERNING
THE WARRANT TRUSTEE
|
|
9.1
|
Conflict
of Interest
|
The
Warrant Trustee represents to the Company that at the time of execution and
delivery hereof no material conflict of interest exists in the Warrant Trustee's
role as a fiduciary hereunder and agrees that in the event of a material
conflict of interest arising hereafter it will, within 90 days after
ascertaining that it has such a material conflict of interest, either eliminate
the same or resign its trusts hereunder to a successor trustee approved by
the
Company. If any such material conflict of interests exists or hereafter shall
exist, the validity and enforceability of this Indenture and the Warrants shall
not be affected in any manner whatsoever by reason thereof.
|
9.2
|
Replacement
of the Warrant Trustee
|
The
Warrant Trustee may resign its duties and be discharged from all further duties
and liabilities hereunder after giving 60 days notice in writing to the Company,
provided that such shorter notice may be given as the Company shall accept
as
sufficient. In the event of the office of the Warrant Trustee becoming vacant
by
resignation or incapacity to act or otherwise, the Company shall appoint in
writing a new trustee in place of the Warrant Trustee vacating office. If the
Company makes default for a period of 10 Business Days in making such
appointment, then any Warrantholder or the retiring or former Warrant Trustee
at
the expense of the Company may apply to a judge of the Superior Court for the
district of Toronto for the appointment of a new trustee after such notification
to the holders of the then outstanding Warrants and to the Company as such
judge
may order. Upon appointment, the successor trustee shall be vested with the
same
powers, rights, duties and responsibilities as if it had been originally named
as Warrant Trustee without any further assurance, conveyance, act or deed;
but
if for any reason it becomes necessary or expedient to execute any further
deed
or assurance the same shall be done at the expense of the Company and may and
shall be legally and validly executed by the former Warrant Trustee. Upon the
appointment of a successor trustee, the Company shall promptly notify the
Warrantholders thereof in writing. Any company resulting from a merger,
consolidation or amalgamation to which the Warrant Trustee for the time being
is
a party shall be the successor trustee under this Indenture without any further
act.
-33-
|
9.3
|
Duty
of Warrant Trustee
|
In
the
exercise of the rights and duties prescribed or conferred by the terms of this
Indenture, the Warrant Trustee will act honestly and in good faith with a view
to the best interests of the Warrantholders, and will exercise that degree
of
care, diligence and skill that a reasonably prudent trustee would exercise
in
comparable circumstances.
No
provision of this Indenture will be construed to relieve the Warrant Trustee
from liability for its own negligent act, negligent failure to act, willful
misconduct or bad faith.
The
obligation of the Warrant Trustee to commence or continue any act, action or
proceeding for the purpose of enforcing any rights of the Warrant Trustee or
the
Warrantholders shall be conditional upon the Warrantholders furnishing, when
required by notice in writing by the Warrant Trustee, sufficient funds to
commence or continue such act, action or proceeding and indemnity reasonably
satisfactory to the Warrant Trustee to protect and hold harmless the Warrant
Trustee against the costs, charges and expenses and liabilities to be incurred
thereby and any loss and damage it may suffer by reason thereof. None of the
provisions contained in this Indenture shall require the Warrant Trustee to
risk
or expend its own funds or otherwise incur financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers unless funded and indemnified as aforesaid.
The
Warrant Trustee may, before commencing or at any time during the continuance
of
any such act, action or proceeding, require the Warrantholders at whose instance
it is acting to deposit with the Warrant Trustee the Warrants held by them,
for
which Warrants the Warrant Trustee shall issue receipts.
The
Warrant Trustee shall not be bound to give any notice or do or take any act,
action or proceeding by virtue of the powers conferred on it hereby unless
and
until it shall have been required so to do under the terms hereof; nor shall
the
Warrant Trustee be required to take notice of any default hereunder, unless
and
until notified in writing of such default, which notice shall distinctly specify
the default desired to be brought to the attention of the Warrant Trustee and
in
the absence of any such notice the Warrant Trustee may for all purposes of
this
Indenture conclusively assume that no default has been made in the observance
or
performance of any of the representations, warranties, covenants, agreements
or
conditions contained herein. Any such notice shall in no way limit any
discretion herein given the Warrant Trustee to determine whether or not the
Warrant Trustee shall take action with respect to any default.
Every
provision in this Indenture that relieves the
Warrant Trustee of liability or entitles it to rely on any evidence submitted
to
it is subject to the provisions of Applicable Legislation, of this Section
and
of Section 9.4.
-34-
|
9.4
|
Evidence,
Experts and Advisers
|
In
addition to the reports, certificates, opinions and evidence required by this
Indenture, the Company, shall furnish to the Warrant Trustee such additional
evidence of compliance with any provision hereof, and in such form as the
Warrant Trustee may reasonably require by written notice to the
Company.
In
the
exercise of its rights and duties hereunder, the Warrant Trustee may, if it
is
acting in good faith, act and rely as to the truth of the statements and the
accuracy of the opinions expressed in statutory declarations, opinions, reports,
written requests, consents or orders of the Company, as the case may be, on
certificates of the Company, as the case may be, or other evidence furnished
to
the Warrant Trustee pursuant to any provision hereof or pursuant to a request
of
the Warrant Trustee, provided that such evidence complies with applicable
legislation and that the Warrant Trustee examines the same and determines that
such evidence complied with the applicable requirements of this
Indenture.
Proof
of
the execution of an instrument in writing, including a Warrantholders' Request,
by any Warrantholder may be made by the certificate of a notary public, or
other
officer with similar powers, that the Person signing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness
to
such execution or in any other manner which the Warrant Trustee may consider
adequate.
The
Warrant Trustee may employ or retain such Counsel, accountants, appraisers,
engineers or other experts or advisers as it may reasonably require for the
purpose of determining and discharging its duties and administering the trust
hereunder and may pay reasonable remuneration for all services so performed
by
any of them, without taxation of costs of any Counsel, and shall not be
responsible for any misconduct or negligence on the part of any such experts
or
advisers, any remuneration so paid by the Warrant Trustee shall be repaid by
the
Company in accordance with Section 5.1.2.
The
Warrant Trustee may act and rely and shall be protected in acting and relying
in
good faith on the opinion or advice of or information obtained by any counsel,
accountant, appraiser, engineer or any other expert or adviser,
whether
retained
or employed by the Company or by the Warrant Trustee in relation to any matter
arising in the administration of the trusts hereunder.
The
Warrant Trustee may act and rely and shall be protected in acting and relying
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, letter, telegram, cablegram, or other paper
document believed by it to be genuine and to have been signed, sent or presented
by or on behalf of the proper party or parties.
-35-
|
9.5
|
Documents,
Monies etc., Held by Warrant
Trustee
|
The
Warrant Trustee may retain any cash balance held in connection with this
Indenture and may, but need not, hold the same in its deposit department or
the
deposit department of one of its affiliates; but the Warrant Trustee and its
affiliates shall not be liable to account for any profit to the Company or
any
other person or entity other than at a rate, if any, established from time
to
time by the Warrant Trustee or its affiliates.
For
the
purpose of this Section 9.5,
“affiliate” means affiliated companies within the meaning of the Business
Corporations Act
(Ontario).
|
9.6
|
Warrant
Trustee not Required to Give Security nor Advance its own
Funds
|
The
Warrant Trustee shall not be required to give security for its conduct or
administration of the trusts hereof and shall not be responsible for the acts,
omissions, defaults, errors or failures of any agents whom it may reasonably
employ in the exercise of the powers conferred upon it hereby, nor for any
loss
occasioned by its own acts, omissions or defaults unless such acts, omissions
or
defaults constitute a wilful misconduct, gross negligence or fraud or a wilful
or negligent breach of trust. The Warrant Trustee shall never be obliged to
advance its own funds.
|
9.7
|
Warrant
Trustee not Ordinarily
Bound
|
Subject
to
Sections 7.1
and
7.9
hereof,
the Warrant Trustee shall not be bound to do or to take any act for the
enforcement of any of the obligations of the Company under this Indenture unless
and until it is required to do so by an instrument in writing signed by the
holders representing not less than twenty-five percent (25%) of the aggregate
number of Warrants then outstanding. The Warrant Trustee may, before taking
the
action, require the Warrantholders at whose instance the action is required
to
deposit with the Warrant Trustee the Warrants held by them for which the Warrant
Trustee shall issue receipts. The obligation of the Warrant Trustee to commence
or continue any act, action or proceeding shall be conditional upon such
Warrantholders furnishing, when required in writing so to do by the Warrant
Trustee, funds sufficient for commencing or continuing the act, action or
proceeding and an indemnity reasonably satisfactory to the Warrant Trustee
to
protect and hold harmless the Warrant Trustee against any loss, damage or
liability by reason thereof.
-36-
|
9.8
|
Warrant
Trustee may Rely on
Certificates
|
Whenever
in the administration of the trusts of this Indenture the Warrant Trustee shall
deem it necessary or desirable that any matter be proved or established by
the
Company prior to taking or suffering any action to be taken hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
certificate or instrument signed by any of the President, a Vice President
or
the Secretary of the Company and delivered to the Warrant Trustee and such
certificate or instrument shall be full authority to the Warrant Trustee for
any
action taken or suffered by it under the provisions of this Indenture on the
faith thereof; provided in its reasonable discretion the Warrant Trustee may
in
lieu thereof accept other evidence of such fact or matter or may require such
further or additional evidence as to it may seem reasonable.
|
9.9
|
Recitals
or Statements of Fact Made by the
Company
|
Subject
to
the provisions hereof, the Warrant Trustee shall not be liable for, or by reason
of any of the statements of fact or recitals contained in this Indenture or
in
the Warrant Certificates or be required to verify the same but all such
statements and recitals are and shall be deemed to have been made by the Company
only.
|
9.10
|
Warrant
Trustee's Liability
|
The
Warrant Trustee shall not be liable or accountable for any loss or damage
whatsoever to any person caused by the performance or failure to perform by
it
of its responsibilities under this Indenture save only to the extent that such
loss or damage is attributable to the gross negligence, wilful misconduct or
fraud of the Warrant Trustee. The Warrant Trustee shall not be responsible
for
any misconduct on the part of any barrister, solicitor, attorney, banker,
receiver, agent or other person appointed with due care by it hereunder, or
bound to supervise the proceedings of any such appointee.
-37-
|
9.11
|
Indemnity
|
Subject
to
Section 9.3,
if the
Warrant Trustee has acted in good faith and without wilful misconduct, gross
negligence or fraud, the Company assumes full responsibility and shall indemnify
the Warrant Trustee, its officers, directors and employees
and save them harmless from and against any and all actions and suits and from
and against any and all losses, damages, costs, charges, payments, expenses
and
liabilities arising directly or indirectly out of its relationship to the
Company. The Warrant Trustee shall not be under any obligation to prosecute
or
to defend any action or suit in respect of the relationship which, in the
opinion of its counsel, may involve it in expense or liability, unless the
Company shall, so often as required, furnish the Warrant Trustee with
satisfactory funding and indemnity against such expense or liability. This
indemnity shall survive the resignation or removal of the Warrant Trustee or
the
termination of the trusts hereunder.
The
Warrant Trustee shall not be bound to give any notice or do or take any act,
action or proceeding by virtue of the powers conferred on it hereby unless
and
until it shall have been required so to do under the terms hereof; nor shall
the
Warrant Trustee be required to take notice of any default hereunder, unless
and
until notified in writing of such default, which notice shall distinctly specify
the default desired to be brought to the attention of the Warrant Trustee and
in
the absence of any such notice the Warrant Trustee may for all purposes of
this
Indenture conclusively assume that no default has been made in the observance
or
performance of any of the representations, warranties, covenants, agreements
or
conditions contained herein. Any such notice shall in no way limit any
discretion herein given the Warrant Trustee to determine whether or not the
Warrant Trustee shall take action with respect to any default.
|
9.12
|
No
Representation as to
Validity
|
The
Warrant Trustee shall be under no responsibility in respect of the validity
of
this Indenture or the execution and delivery hereof or in respect of the
validity or the execution of any Warrant Certificate issued hereunder; nor
shall
it be responsible for any breach by the Company of any covenant or condition
contained in this Indenture or in any Warrant Certificate; nor shall it, by
any
act hereunder, be deemed to make any representation or warranty as to the
authorization or reservation of any Common Shares to be issued upon the right
to
acquire provided for in this Indenture and/or in any Warrant Certificate or
as
to whether any Common Shares will, when issued, be duly authorized or be validly
issued and fully paid and non-assessable, it being hereby agreed and declared
that as to all the matters and things referred to in this Section 9.11,
the duty
and responsibility shall rest upon the Company and not upon the Warrant Trustee
and the failure of the Company to discharge any such duty and responsibility
shall not in any way render the Warrant Trustee liable or place upon it any
duty
or responsibility for breach of which it would be liable.
-38-
|
9.13
|
Acceptance
of Duties
|
The
Warrant Trustee hereby accepts the duties of this Indenture, agrees to perform
the same upon the terms and conditions herein set forth or referred to and
agrees to hold all rights, interests and benefits contained herein for and
on
behalf of those persons who become Warrantholders from time to time issued
pursuant to this Indenture, unless and until discharged therefrom by resignation
or in some other lawful manner.
|
9.14
|
Contracting
with the Company
|
The
Warrant Trustee may contract with the Company and deal with the Warrants
constituted hereunder without being accountable for profits arising
therefrom.
|
9.15
|
Warrant
Trustee's Authority to Carry on
Business
|
The
Warrant Trustee represents to the Company that as at the date hereof it is
authorized to carry on the business of a trust company in the Province of
Ontario. If, notwithstanding the provisions of this Section 9.15,
it
ceases to be authorized to carry on such business in such province, the validity
and enforceability of this Indenture and the Warrants issued hereunder shall
not
be affected in any manner whatsoever by reason only of such event provided
that
the Warrant Trustee shall, within 30 days after ceasing to be authorized to
carry on such business in such province, either become so authorized or resign
in the manner and with the effects specified in Section 9.2
hereof.
|
9.16
|
Warrant
Trustee not Required to Give
Security
|
The
Warrant Trustee will not be required to give any bond or security in respect
of
the execution of the trusts and powers on this Indenture or otherwise in respect
of the premises.
|
9.17
|
Warrant
Trustee not Appointed
Receiver
|
The
Warrant Trustee and any person related to the Warrant Trustee will not be
appointed a receiver or receiver and manager or liquidator of all or any part
of
the assets or undertaking of the Company.
-39-
|
9.18
|
Counsel
Fees Need not be Taxed
|
Whenever
the Warrant Trustee is authorized under this Indenture to employ Counsel, the
costs of such Counsel need not be taxed unless the Warrant Trustee or the
Company shall deem it necessary to tax the same, but may be
fixed
by
the Warrant Trustee and paid as a lump sum. No costs paid in good faith by
the
Warrant Trustee under the provisions of this shall be disallowed in the talking
of any accounts by reason only of the fact that such costs are greater than
they
might have been if taxed or by reason of their not have been taxed, but such
costs so paid by the Warrant Trustee shall be allowed and paid to the Warrant
Trustee.
|
9.19
|
Copies
of Information
|
A
Warrantholder shall be entitled to obtain from the Warrant Trustee, on request
and upon payment of a reasonable copying charge therefor, a copy of all written
information in the possession of the Warrant Trustee which relates to this
Indenture or to matters directly pertaining to this Indenture.
|
9.20
|
Warrants
Owned by the Company or its Subsidiaries - Certificates to be
Provided
|
For
the
purpose of disregarding any Warrants owned legally or beneficially by the
Company or any subsidiary of the Company or any other affiliate or associate
of
the Company, the Company shall provide to the Warrant Trustee, upon request,
a
certificate of the Company setting forth as at the date of such
certificate:
|
(a)
|
the
names (other than the name of the Company) of the registered
Warrantholders of which, to the knowledge of the Company, are owned
by or
held for the account of the Company or any subsidiary of the Company
or
any other affiliate or associate of the Company;
and
|
|
(b)
|
the
number of Warrants owned legally and beneficially by the Company
or any
subsidiary of the Company or any other affiliate or associate of
the
Company;
|
and
the
Warrant Trustee in making the determination in shall be entitled to act and
rely
on such certificate.
-40-
|
10.
|
GENERAL
|
|
10.1
|
Notice
to the Company and the Warrant
Trustee
|
|
10.1.1
|
Unless
herein otherwise expressly provided, any notice to be given hereunder
to
the Company and the Warrant Trustee shall be deemed to be validly
given if
delivered or if sent by registered letter, postage
prepaid:
|
if
to the Company:
IAMGOLD
Corporation
▇▇▇
▇▇▇
▇▇▇▇▇▇
5th
Floor
Toronto,
ON M5J 2W4
Attention:
Corporate Secretary
if
to the Warrant Trustee:
Computershare
Trust Company of Canada
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Suite
900
Toronto,
Ontario.
M5J
2Y1
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
Manager, Corporate Trust
and
any
such notice delivered in accordance with the foregoing shall be deemed to have
been received on the date of delivery or, if mailed, on the fifth Business
Day
following the date of the postmark on such notice.
|
10.1.2
|
The
Company or the Warrant Trustee, as the case may be, may from time
to time
notify the other in the manner provided in Subsection 10.1.1
of
a change of address which, from the effective date of such notice
and
until changed by like notice, shall be the address of the Company
or the
Warrant Trustee, as the case may be, for all purposes of this Indenture.
A
copy of any notice of change of address given pursuant to
Subsection 10.2
shall be available for inspection by Warrantholders during normal
business
hours at the principal office of the Warrant Trustee in the City
of
Toronto, Ontario.
|
-41-
|
10.1.3
|
If,
by reason of a strike, lockout or other work stoppage, actual or
threatened, involving postal employees, any notice to be given to
the
Warrant Trustee or the Company hereunder could reasonably be considered
unlikely to reach its destination, each notice shall be valid and
effective only if it is delivered to the named officer of the party
to
which it is addressed or, if it is delivered to such party at the
appropriate address provided in Subsection 10.1,
by
cable, telegram, telex or other means of prepaid, transmitted and
recorded
communication.
|
|
10.2
|
Notice
to Warrantholders
|
Any
notice
or communication required or permitted to be given to Warrantholders under
the
provisions of this Agreement shall be valid and effective if delivered to such
holders at their post office addresses appearing on the register to be kept
by
the Warrant Trustee or sent by telecopier (and a copy by regular mail) or other
means of prepaid transmitted or recorded communication to such address, or
subject to the provisions of Subsection 10.1.3
hereof,
if mailed by prepaid registered mail addressed to such holders at their post
office addresses appearing on the register to be kept by the Warrant Trustee.
Any notice to a Warrantholder as aforesaid shall be deemed to have been
effectively given on the earlier of:
|
10.2.1
|
the
date of delivery, if delivered during normal business hours (and,
if not,
on the next following Business
Day);
|
|
10.2.2
|
the
Business Day immediately following the day of sending, if sent by
telecopier (with receipt confirmed),
or
|
|
10.2.3
|
on
the fifth Business Day after effectual posting in
Canada.
|
-42-
|
10.3
|
Counterparts
|
This
Indenture may be executed in several counterparts, each of which when so
executed shall be deemed to be an original and such counterparts together shall
constitute one and the same instrument and notwithstanding their date of
execution they shall be deemed to be dated as of the date hereof. The Company
and the Warrant Trustee will be entitled to rely upon delivery by facsimile
machine of an executed copy of this Agreement and acceptance of the Company
of
such facsimile copy will be legally effective to create a valid and binding
agreement between the Warrant Trustee and the Company in accordance with the
terms hereof.
|
10.4
|
Satisfaction
and Discharge of Indenture
|
Upon
the
earlier of (a) the date by which there shall have been delivered to the Warrant
Trustee for exercise or destruction all Warrant Certificates theretofore
certified hereunder or (b) the Time of Expiry, this Indenture shall cease to
be
of further effect, except any provisions in this Indenture indemnifying the
Warrant Trustee, and the Warrant Trustee, on demand of and at the cost and
expense of the Company and upon the delivery to the Warrant Trustee of a
certificate of the Company stating that all conditions precedent to the
satisfaction and discharge
of this Indenture have been complied with, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture.
|
10.5
|
Provisions
of Indenture and Warrants for the Sole Benefit of Parties and
Warrantholders
|
Nothing
in
this Indenture or in the Warrant Certificates, express or implied, shall give
or
be construed to give to any person other than the parties hereto and the
Warrantholders, as the case may be, any legal or equitable right, remedy or
claim under this Indenture, or under any covenant or provisions herein or
therein contained, all such covenants and provisions being for the sole benefit
of the parties hereto and the Warrantholders.
|
11.
|
POWER
OF THE BOARD OF DIRECTORS
|
In
this
Indenture, wherever the Company is required or empowered to exercise any acts,
all such acts may be exercised by the Directors or by those officers of the
Company authorized to exercise such acts.
|
12.
|
FURTHER
ASSURANCES
|
The
parties hereto and each of them do hereby covenant and agree to do such things
and execute such further documents, agreements and assurances as may be
necessary or advisable from time to time in order to carry out the terms and
conditions of this Indenture in accordance with their true intent.
-43-
|
13.
|
UNENFORCEABLE
TERMS
|
If
any
term, covenant or condition of this Indenture, or the application thereof to
any
party or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Indenture or application of such term, covenant or condition
to a party or circumstance other than those to which it is held invalid or
unenforceable shall not be affected thereby and each remaining term, covenant
or
condition of this Indenture shall be valid and shall be enforceable to the
fullest extent permitted by law.
|
14.
|
SEVERABILITY
|
The
invalidity or unenforceability of any particular provision of this Indenture
shall not affect or limit the validity or enforceability of the remaining
provisions of this Indenture.
IN
WITNESS WHEREOF
the
parties hereto have executed this Indenture as of the day and year first above
written.
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IAMGOLD
CORPORATION
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| Date: | By: | s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Vice President, Corporate Affairs & Corporate
Secretary
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COMPUTERSHARE
TRUST COMPANY OF CANADA
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| Date: | By: |
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
Professional, Corporate Trust
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/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title:
Professional, Corporate Trust
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-44-
SCHEDULE
A
FORM
OF WARRANT
THE
WARRANTS REPRESENTED BY THIS CERTIFICATE ARE EXERCISABLE AT ANY TIME PRIOR
TO
5:00 P.M., TORONTO TIME ON AUGUST 12, 2008 AFTER WHICH TIME THESE
WARRANTS SHALL BE NULL AND VOID.
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NUMBER:
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ONE
(1) WARRANT AND $3.75
(CANADIAN
FUNDS) ARE REQUIRED
TO
SUBSCRIBE FOR 0.42 OF ONE COMMON SHARE
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WARRANTS
TO PURCHASE 0.42 OF
ONE
COMMON SHARE OF IAMGOLD
CORPORATION
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IAMGOLD
CORPORATION
THIS
IS TO CERTIFY THAT
the
holder hereof (herein called the "holder") is entitled to purchase at any time
prior to 5:00 p.m., Toronto
time, on
August 12, 2008, 0.42 of one Common Share (herein called the
"Share") in the capital of IAMGOLD Corporation (herein called the "Company")
as
constituted on the date hereof, for every one Warrant of the holder, by
surrendering this Warrant Certificate to Computershare Trust Company of Canada
(the "Warrant Trustee") at the principal offices of the Warrant Trustee in
Toronto, with a subscription in the form set forth on the reverse side hereof
duly completed and executed, accompanied by a certified cheque, bank draft
or
money order in lawful money of Canada payable to or to the order of
Computershare Trust Company of Canada in an amount equal to the purchase price
of the Shares so subscribed for.
This
Warrant Certificate, the subscription on the reverse hereof, and the certified
cheque, bank draft or money order shall be deemed to be so surrendered only
upon
personal delivery thereof or, if sent by mail or other means of transmission,
upon actual receipt thereof by the Warrant Trustee.
Subject
to
adjustment thereof in the events and in the manner set forth in the Warrant
Indenture hereinafter mentioned, the price payable for each 0.42 of a Share
shall be one (1) Warrant and $3.75 in lawful money of Canada.
No
fractional Warrant will be issued and the holder hereof understands and agrees
that it will not be entitled to any cash payment or other form of compensation
in respect of a fractional Warrant that might otherwise have been issued. No
fractional Shares shall be issued or otherwise provided for with regard to
the
exercise of Warrants and any resulting fractional Shares shall be rounded down
or up, as appropriate, to the closest whole number, it being understood for
greater certainty that 0.5 Shares shall be rounded down to the closest whole
number.
Shares
will be issued in accordance with the indenture (which indenture together with
all other instruments supplemental or ancillary thereto is herein referred
to as
the "Warrant Indenture") dated as of November 6, 2006 and entered into between
the Company and the Warrant Trustee.
In
the
event of a purchase of a number of Shares fewer than the number which can be
purchased pursuant to this Warrant, the holder shall be entitled to receive
without charge a new Warrant in respect of the balance of unexercised
Warrants.
Reference
is hereby made to the Warrant Indenture for particulars of the rights of the
holders of the Warrants and of the Company and of the Warrant Trustee in respect
thereof and the terms and conditions upon which the Warrant evidenced hereby
is
issued and held, all to the same effect as if the provisions of the Warrant
Indenture were herein set forth, to all of which the holder of this Warrant
by
acceptance hereof assents. The Company will furnish to the holder of this
Warrant, upon request and without charge, a copy of the Warrant
Indenture.
Upon
presentation to the Warrant Trustee, subject to the provisions of the Warrant
Indenture and upon compliance with the reasonable requirements of the Warrant
Trustee, Warrants may be exchanged for Warrants entitling the holder thereof
to
purchase in the aggregate an equal number of Shares as are purchasable under
the
Warrant Certificate or Warrant Certificates so exchanged. Nothing contained
in
the Warrant, the Warrant Indenture or otherwise shall be construed as conferring
upon the holder hereof any right or interest whatsoever as a holder of Shares
or
other securities of the Company or any other right or interest except as herein
and in the Warrant Indenture expressly provided.
The
Warrant Indenture contains provisions for the adjustment of the price payable
for each Share upon the exercise of this Warrant and the number of Shares
issuable upon the exercise of this Warrant in the events and in the manner
set
forth therein.
The
Warrant Indenture contains provisions making binding upon all holders of Warrant
Certificates outstanding thereunder resolutions passed at meetings of such
holders held in accordance with such provisions and instruments in writing
signed by the Warrantholders entitled to purchase a specified majority of the
Shares which may be purchased pursuant to all then outstanding Warrant
Certificates.
The
Warrant Indenture provides for the giving of notice by the Company prior to
taking certain actions specified therein.
Time
is of
the essence hereof.
This
Warrant Certificate shall not be valid for any purpose until it has been
certified by or on behalf of the Warrant Trustee for the time being under the
Warrant Indenture.
This
Warrant Certificate is one of the Warrants referred to in the Warrant Indenture
within mentioned.
IN
WITNESS WHEREOF
IAMGOLD
Corporation has caused this Warrant to be signed by its duly authorized officers
as of l, 2006.
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IAMGOLD
CORPORATION
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COMPUTERSHARE
TRUST COMPANY OF CANADA
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By:
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By:
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Authorized
Officer
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Authorized
Officer
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The
following legends shall be added to the above mentioned text of the form of
warrant in the case of Warrants issued to a U.S. person or a person within
the
United States:
"THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF, BY
PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH
SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION
S UNDER THE 1933 ACT, (C) WITHIN THE UNITED STATES IN ACCORDANCE WITH THE
EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY RULES 144 THEREUNDER,
IF APPLICABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS,
OR
(D) IN COMPLIANCE WITH CERTAIN OTHER PROCEDURES SATISFACTORY TO THE COMPANY.
DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE "GOOD DELIVERY" IN SETTLEMENT
OF
TRANSACTIONS ON STOCK EXCHANGES IN CANADA. A NEW CERTIFICATE BEARING NO LEGEND
MAY BE OBTAINED FROM COMPUTERSHARE TRUST COMPANY OF CANADA, AS REGISTRAR AND
TRANSFER AGENT OF THE COMPANY, UPON DELIVERY OF THIS CERTIFICATE AND A DULY
EXECUTED DECLARATION, IN A FORM SATISFACTORY TO COMPUTERSHARE TRUST COMPANY
OF
CANADA AND THE COMPANY, TO THE EFFECT THAT SUCH SALE IS BEING MADE IN ACCORDANCE
WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT."
SUBSCRIPTION
FORM FOR WARRANT
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TO:
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IAMGOLD
CORPORATION
c/o
Computershare Trust Company of Canada
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The
undersigned holder hereby subscribes for Common Shares ("Shares") of IAMGOLD
Corporation (or such number of Shares or other securities or property to which
such subscription entitles the undersigned in lieu thereof or in addition
thereto under the provisions of the Warrant Indenture mentioned in the within
Warrant Certificate) on the basis that one (1) Warrant plus $3.75 (or the
adjusted dollar amount at which the undersigned is entitled to purchase such
Share under the provisions of the Warrant Indenture) entitles the holder to
0.42
of one Common Share on the terms specified in the said Warrant Certificate
and Warrant Indenture and encloses herewith a certified cheque, bank draft
or
money order, in lawful money of Canada, payable to or to the order of
Computershare Trust Company of Canada in payment of the subscription price
for
the said number of Shares.
NOTE: ONE (1)
WARRANT PLUS $3.75 (IN CANADIAN FUNDS) ENTITLES THE HOLDER TO PURCHASE 0.42
OF
ONE COMMON SHARE
The
undersigned hereby irrevocably directs that the Shares, when issued in
accordance with the Warrant Indenture, are to be registered as
follows:
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Name(s)
in full
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Address(es)
(Including
Postal Code)
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Number(s)
of Shares
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Social
Insurance Number
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TOTAL:
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(Please
print full name in which share certificates are to be issued. If any of the
Shares are to be issued to a person or persons other than the Warrantholder,
the
Warrantholder must pay to the Warrant Trustee all requisite fees.)
DATED
this
_____ day of __________________, ______.
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(Signature
of Subscriber)
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(Print
Name of Subscriber)
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(Address,
including Postal Code)
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WARRANTS
WILL EXPIRE AT 5:00 P.M., TORONTO
TIME, ON AUGUST 12, 2008 AND MUST BE EXERCISED BEFORE THAT TIME,
OTHERWISE SAME WILL BE NULL AND VOID AND OF NO EFFECT.
TRANSFER
FORM FOR WARRANT
FOR
VALUE RECEIVED
the
undersigned hereby sells, assigns and transfers unto
(Please
print or typewrite name and address of transferee)
_______________________________________________________
Warrant(s)
represented
by the within certificate, and do(es) hereby irrevocably constitute and
appoint
the
attorney of the undersigned to transfer the said ▇▇▇▇▇▇▇(s) on the register
of
Warrants maintained by the Warrant Trustee with full power of substitution
hereunder.
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DATED
this ____ day of ____________,____.
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In
the presence of :
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(Signature
Guarantee)
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(Signature
of Warrantholder)
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(Name
of Warrantholder)
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Notice:
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The signature of the Warrantholder to this transfer form must correspond exactly with the name of the Warrantholder as set forth on the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatsoever, and the signature must be signature guaranteed by a Schedule I Canadian chartered bank or by a major Canadian trust company or by a member of a recognized Medallion Guarantee Program. |
| The signature on the Transfer Form must be guaranteed by a Schedule A chartered bank or a member of an acceptable Medallion Guarantee Program. The guarantor must affix a stamp bearing the actual words “Signature Guaranteed” or “Medallion Guaranteed”. Please note signature guarantees are not accepted from Treasury Branches or Credit Unions unless they are members of the Stamp Medallion Program. Please note that in the United States, signatures guarantees must be done by members of the Medallion Signature Guarantee Program only. |
SCHEDULE
B
FORM
OF DECLARATION FOR REMOVAL OF LEGEND
| TO: | Computershare Trust Company of Canada |
| as registrar and transfer agent | |
| for Common Shares and Warrants of | |
| IAMGOLD Corporation | |
| c/o Computershare Trust Company of Canada | |
| ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Suite 900 | |
| Toronto, ON M5J 2Y1 | |
| Attention: Manager, Corporate Trust |
The
undersigned (a) acknowledges that the sale of the securities of IAMGOLD
Corporation (the "Company") to which this declaration relates is being made
in
reliance on Rule 904 of Regulation S under the United States Securities Act
of
1933, as amended (the "1933 Act") and (b) certifies that (1) the undersigned
is
not an affiliate of the Company (as that term is defined in Rule 405 under
the
1933 Act), (2) the offer of such securities was not made to a person in the
United States and either (A) at the time the buy order was originated, the
buyer
was outside the United States, or the seller and any person acting on its behalf
reasonably believed that the buyer was outside the United States, or (B) the
transaction was executed in, on or through the facilities of a "Designated
Offshore Securities Market" as defined in Rule 902 of Regulation S under the
1933 Act and neither the seller nor any person acting on its behalf knows that
the transaction has been prearranged with a buyer in the United States, (3)
neither the seller nor any affiliate of the seller nor any person acting on
any
of their behalf has engaged or will engage in any directed selling efforts
in
the United States in connection with the offer and sale of such securities,
(4)
the sale is bona fide and not for the purpose of "washing off" the resale
restrictions imposed because the securities are "restricted securities" (as
such
term is defined in Rule 144(a)(3) under the 1933 Act), and (5) the contemplated
sale is not a transaction, or part of a series of transactions which, although
in technical compliance with Regulation S, is part of a plan or scheme to evade
the registration provisions of the 1933 Act. Terms used herein have the meanings
given to them by Regulation S.
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Dated:
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Name
of Seller
|
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By:
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Name:
|
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Title:
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