|
1.
|
Name
and Address of Company
|
|
2.
|
Date
of Material Change
|
|
3.
|
News
Release
|
|
4.
|
Summary
of Material Change
|
|
5.
|
Full
Description of Material Change
|
|
6.
|
Reliance
on subsection 7.1(2) or (3) of National Instrument
51-102
|
|
7.
|
Omitted
Information
|
|
8.
|
Executive
Officer
|
|
Paul
G. Goss
General
Counsel & Corporate Secretary
Ur-Energy
Inc.
10758
W. Centennial Road, Suite 200
Littleton,
Colorado 80127
Telephone:
(720) 981-4588
|
|
9.
|
Date
of Report
|
| FOR FURTHER INFORMATION, PLEASE CONTACT: | |
|
Dani
Wright, Manager, Investor/Public Relations
|
Bill Boberg, CEO and President |
| 1-720-981-4588, ext. 242 | 1-720-981-4588, ext. 223 |
| 1-866-981-4588 | 1-866-981-4588 |
| dani.wright@ur-energyusa.com | bill.boberg@ur-energyusa.com |
|
SHAREHOLDER
RIGHTS PLAN AGREEMENT
|
|
Article 1
INTERPRETATION
|
2
|
|
|
1.1
|
Certain Definitions
|
2
|
|
1.2
|
Currency
|
13
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|
1.3
|
Number and Gender
|
13
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|
1.4
|
Headings
|
14
|
|
1.5
|
Calculation of Beneficial Ownership of Outstanding
Common Shares
|
14
|
|
1.6
|
Acting Jointly and in
Concert
|
14
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|
1.7
|
Convertible Securities
|
14
|
|
Article 2 THE RIGHTS
|
15
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|
|
2.1
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Issuance and Evidence of
Rights
|
15
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|
2.2
|
Initial Exercise Price; Exercise of Rights;
Detachment of Rights
|
15
|
|
2.3
|
Adjustments to Exercise Price; Number of
Rights
|
18
|
|
2.4
|
Date on Which Exercise is
Effective
|
23
|
|
2.5
|
Execution, Authentication, Delivery and Dating of
Rights Certificates
|
23
|
|
2.6
|
Registration, Transfer and
Exchange
|
23
|
|
2.7
|
Mutilated, Destroyed, Lost and Stolen Rights
Certificates
|
24
|
|
2.8
|
Persons Deemed Owners
|
25
|
|
2.9
|
Delivery and Cancellation of
Certificates
|
25
|
|
2.10
|
Agreement of Rights Holders
|
25
|
|
2.11
|
Rights Certificate Holder not Deemed a
Shareholder
|
26
|
|
Article 3 ADJUSTMENTS TO THE
RIGHTS
|
27
|
|
|
3.1
|
Flip-In Event
|
27
|
|
Article 4 THE RIGHTS
AGENT
|
28
|
|
|
4.1
|
General
|
28
|
|
4.2
|
Merger or Amalgamation or Change of Name of Rights
Agent
|
29
|
|
4.3
|
Duties of Rights Agent
|
30
|
|
4.4
|
Change of Rights Agent
|
32
|
|
Article 5
MISCELLANEOUS
|
32
|
|
|
5.1
|
Redemption of Rights
|
32
|
|
5.2
|
Waiver of Flip-In Events
|
33
|
|
5.3
|
Expiration
|
34
|
|
5.4
|
Issuance of New Rights
Certificates
|
34
|
|
5.5
|
Supplements and Amendments
|
34
|
|
5.6
|
Fractional Rights and Fractional Common
Shares
|
36
|
|
5.7
|
Rights of Action
|
37
|
|
5.8
|
Notice of Proposed Actions
|
37
|
|
5.9
|
Notices
|
37
|
|
5.10
|
Declaration as to Non-Canadian
Holders
|
38
|
|
5.11
|
Costs of Enforcement
|
39
|
|
5.12
|
Successors
|
39
|
|
5.13
|
Benefits of this Agreement
|
39
|
|
5.14
|
Governing Law
|
39
|
|
5.15
|
Language
|
39
|
|
5.16
|
Severability
|
40
|
|
5.17
|
Effective Date;
Reconfirmation
|
40
|
|
5.18
|
Determination and Actions by the Board of
Directors
|
40
|
|
5.19
|
Time of the Essence
|
40
|
|
5.20
|
Execution In Counterparts
|
41
|
|
|
(a)
|
authorized
effective as at the close of business (as defined below) on the date of
this Agreement the issuance of one Right (as defined below) in respect of
each Common Share (as defined below) outstanding at the Record Time (as
defined below);
|
|
|
(b)
|
authorized
the issuance of one Right in respect of each Common Share issued after the
Record Time and prior to the earlier of the Separation Time (as defined
below) and the Expiration Time (as defined below);
and
|
|
|
(c)
|
authorized
the issuance of the Rights Certificates (as defined below) to the holders
of Rights pursuant to the terms and subject to the conditions set out in
this Agreement.
|
|
1.1
|
Certain
Definitions
|
|
|
(a)
|
“Acquiring Person” means
any Person who is the Beneficial Owner of 20% or more of the outstanding
Common Shares; provided, however, that the term “Acquiring Person” will
not include:
|
|
|
(i)
|
the
Corporation or any Subsidiary of the
Corporation;
|
|
|
(ii)
|
any
Person who becomes the Beneficial Owner of 20% or more of the outstanding
Common Shares as a result of one or any combination
of:
|
|
|
(A)
|
a
Common Share Reduction,
|
|
|
(B)
|
a
Permitted Bid Acquisition,
|
|
|
(C)
|
an
Exempt Acquisition,
|
|
|
(D)
|
a
Pro Rata Acquisition, or
|
|
|
(E)
|
a
Convertible Security Acquisition;
|
|
|
(iii)
|
for
a period of 10 days after the Disqualification Date (as defined below),
any Person who becomes the Beneficial Owner of 20% or more of the
outstanding Common Shares as a result of that Person becoming disqualified
from relying on Section 0 of the definition of Beneficial Owner solely
because that Person makes or announces a current intention to make a
Take-over Bid, either alone or by acting jointly or in concert with any
other Person. For the purposes of this definition, “Disqualification Date”
means the first date of public announcement that any Person is making or
has announced an intention to make a Take-over Bid;
or
|
|
|
(iv)
|
an
underwriter or member of a banking or selling group that becomes the
Beneficial Owner of 20% or more of the Common Shares in connection with a
distribution of securities pursuant to an agreement with the
Corporation;
|
|
|
(b)
|
“Affiliate” when used to
indicate a relationship with a specified Person, means a Person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, that specified
Person;
|
|
|
(c)
|
“Agreement” means this
shareholder rights plan agreement dated as of November 7, 2008 between the
Corporation and the Rights Agent, as amended or supplemented from time to
time;
|
|
|
(d)
|
“Associate” when used to
indicate a relationship with a specified Person, means any relative of
that specified Person who has the same home as that specified Person, or
any person to whom that specified Person is married, or any person with
whom that specified Person is living in a conjugal relationship outside
marriage, or any relative of that spouse or other person who has the same
home as that specified Person;
|
|
|
(e)
|
A
Person will be deemed the “Beneficial Owner” of,
and to have “Beneficial
Ownership” of, and to “Beneficially
Own”:
|
|
|
(i)
|
any
securities of which that Person or any of that Person’s Affiliates or
Associates is the owner at law or in
equity;
|
|
|
(ii)
|
any
securities which that Person or any of that Person’s Affiliates or
Associates has the right to acquire (where the right is exercisable within
a period of 60 days, whether or not on condition or the happening of any
contingency or the making of any payment) upon the exercise, conversion or
exchange of any Convertible Securities or pursuant to any agreement,
arrangement, pledge or understanding whether or not in writing (other than
(x) the customary agreements with and between underwriters and banking or
selling group members with respect to a distribution of securities and (y)
pledges of securities in the ordinary course of the pledgee’s business);
or
|
|
|
(iii)
|
any
securities which are Beneficially Owned within the meaning of Sections 0
and 0 by any other Person with whom that Person is acting jointly or in
concert;
|
|
|
(iv)
|
because
that security has been deposited or tendered, or the holder of that
security has agreed pursuant to a Lock-Up Agreement to deposit or tender
that security, pursuant to a Take-over Bid made by that Person or any of
that Person’s Affiliates or Associates or any other person acting jointly
or in concert with that Person until the deposited or tendered security is
taken up or paid for, whichever occurs
first;
|
|
|
(v)
|
if
(i) the ordinary business of that Person (the “Investment Manager”)
includes the management of mutual funds or investment funds for others and
the Investment Manager holds that security in the ordinary course of such
business for the account of any other Person, including non-discretionary
accounts held on behalf of a client by a broker or dealer registered under
applicable laws, or (ii) that Person (the “Investment Trust”) is
licensed to carry on the business of a trust under applicable laws and, as
such, acts as trustee or administrator or in a similar capacity in
relation to the estates of deceased or incompetent Persons or in relation
to other accounts and is acting in the ordinary course of those duties for
the estate of the deceased or incompetent Person or for those other
accounts, or (iii) that Person (the “Plan Trustee”) is the
administrator or trustee of one or more pension funds or plans (each, a
“Plan”) registered
under applicable laws or is a Plan and holds that security for the
purposes of its activities as such, or (iv) that Person is established by
statute for purposes that include, and the ordinary business or activity
of that Person (the “Statutory Body”)
includes, the management of investment funds for employee benefit plans,
pension plans, insurance plans of various public bodies, and holds that
security for the purposes of its activities as such, or (v) that Person is
a Crown agent or agency and the ordinary business or activity of that
Person includes the management of investment funds and such security is
held by that Person in the ordinary course of the management of such
investment funds; provided, in any of the above cases, that the Investment
Manager, the Investment Trust, the Plan Trustee, the Plan, the Statutory
Body or the Crown agent or agency, as the case may be, is not making and
has not announced a current intention to make a Take-over Bid, other than
an Offer to Acquire Common Shares or other securities pursuant to a
distribution by the Corporation or by means of ordinary market
transactions (including prearranged trades entered into in the ordinary
course of business of that Person) executed through the facilities of a
stock exchange or organized over-the-counter market, alone or acting
jointly or in concert with any other
Person;
|
|
|
(vi)
|
because
that Person is (i) a client of the same Investment Manager as another
Person on whose account the Investment Manager holds that security, or
(ii) an account of the same Investment Trust as another Person on whose
account the Investment Trust holds that security, or (iii) a Plan and has
a Plan Trustee who is also a Plan Trustee for another Plan on whose
account the Plan Trustee holds that
security;
|
|
|
(vii)
|
because
that Person is (i) a client of an Investment Manager and that security is
owned at law or in equity by the Investment Manager, or (ii) an account of
an Investment Trust and that security is owned at law or in equity by the
Investment Trust, or (iii) a Plan and that security is owned at law or in
equity by the Plan Trustee; or
|
|
|
(viii)
|
because
that Person is the registered holder of securities as a result of carrying
on the business of or acting as a nominee of a securities depositary
agency;
|
|
|
(f)
|
“Board of Directors”
means the board of directors of the Corporation from time to
time;
|
|
|
(g)
|
“Business Day” means any
day other than a Saturday, Sunday or a day on which banking institutions
in Toronto, Ontario are authorized or obligated by law to
close;
|
|
|
(h)
|
“close of business” on
any given date means the time on that date (or, if that date is not a
Business Day, the time on the next succeeding Business Day) at which the
office of the transfer agent for the Common Shares in Toronto, Ontario
(or, after the Separation Time, the office of the Rights Agent in Toronto,
Ontario) is closed to the public;
|
|
|
(i)
|
“Common Share Acquisition
Date” means the date of a public announcement (which, for purposes
of this definition, will include the filing of a report pursuant to the
Securities Act or any other applicable securities laws) by the Corporation
or an Acquiring Person of facts indicating that a Person has become an
Acquiring Person;
|
|
|
(j)
|
“Common Share Acquisition
Time” means the close of business on the Common Share Acquisition
Date;
|
|
|
(k)
|
“Common Share Reduction”
means an acquisition or redemption by the Corporation of Common Shares
which, by reducing the number of Common Shares outstanding, increases the
proportionate number of Common Shares Beneficially Owned by any person to
20% or more of the Common Shares then
outstanding;
|
|
|
(l)
|
“Common Shares” means the
common shares in the capital of the Corporation outstanding at the
relevant time but does not include any Convertible Securities that have
not been converted into or exercised or exchanged for Common Shares at the
relevant time;
|
|
|
(m)
|
“Competing Permitted Bid”
means a Take-over Bid that:
|
|
|
(i)
|
is
made after a Permitted Bid or another Competing Permitted Bid has been
made and prior to the expiry of that Permitted Bid or Competing Permitted
Bid (in this definition, the “Prior
Bid”);
|
|
|
(ii)
|
satisfies
all the provisions of the definition of a Permitted Bid, other than the
requirement set out in Clause (ii)(A) of the definition of Permitted Bid;
and
|
|
|
(iii)
|
contains,
and the take-up and payment for securities tendered or deposited under the
Take-over Bid are subject to, irrevocable and unqualified conditions
that:
|
|
|
(A)
|
no
Common Shares shall be taken up or paid for pursuant to that Take-over Bid
(x) prior to the close of business on a date that is not earlier than the
later of the last day on which the Take-over Bid must be open for
acceptance after the date of that Take-over Bid under applicable Canadian
provincial securities legislation and the earliest date on which Common
Shares may be taken up or paid for under any Prior Bid in existence at the
date of that Take-over Bid, and (y) then only if, at the time that those
Common Shares are first taken up or paid for, more than 50% of the then
outstanding Common Shares held by Independent Shareholders have been
deposited or tendered pursuant to that Take-over Bid and not withdrawn;
and
|
|
|
(B)
|
in
the event that the requirement set out in Subclause (iii)(A)(y) of this
definition is satisfied, the Offeror will make a public announcement of
that fact and the Take-over Bid will remain open for deposits and tenders
of Common Shares for not less than 10 days from the date of that public
announcement,
|
|
|
(n)
|
a
Person is “controlled” by another
Person or two or more Persons acting jointly or in concert
if:
|
|
|
(i)
|
in
the case of a body corporate, securities entitled to vote in the election
of directors of such body corporate carrying more than 50% of the votes
for the election of directors are held, directly or indirectly, by or for
the benefit of the other Person or Persons and the votes carried by such
securities are entitled, if exercised, to elect a majority of the board of
directors of such body corporate;
or
|
|
|
(ii)
|
in
the case of a Person which is not a body corporate, more than 50% of the
voting or equity interests of such entity are held, directly or indirectly
by or for the benefit of the other Person or
Persons,
|
|
|
(o)
|
“Convertible Securities”
means at any time any right to acquire Common Shares or any securities
from time to time (other than the Rights) carrying any exercise,
conversion or exchange right pursuant to which the holder of the right or
securities may acquire Common Shares or other securities carrying any
exercise, conversion or exchange right pursuant to which the holder may
ultimately acquire Common Shares (in each case, provided that right is
then exercisable or exercisable within a period
of
|
|
|
60
days from that time and whether or not on condition or the happening of
any contingency or the making of any
payment);
|
|
|
(p)
|
“Convertible Security
Acquisition” means the acquisition of Common Shares upon the
exercise of Convertible Securities acquired by a Person pursuant to a
Permitted Bid Acquisition, an Exempt Acquisition or a Pro Rata
Acquisition;
|
|
|
(q)
|
“Co-Rights Agents” have
the meaning given to that term in Section
0;
|
|
|
(r)
|
“Corporations Act” means
the Canada Business
Corporations Act, as amended, and the regulations under that Act as
now in effect and as same may from time to time be amended, re-enacted or
replaced;
|
|
|
(s)
|
“Dividend Reinvestment
Plan” means a dividend reinvestment or other plan of the
Corporation made available by the Corporation to holders of its Common
Shares where the plan permits the holder to direct that some or all of
dividends paid in respect of any Common Shares of the Corporation be
applied to the purchase from the Corporation of Common
Shares;
|
|
|
(t)
|
“Election to Exercise”
has the meaning given to that term in Section
0;
|
|
|
(u)
|
“Exempt Acquisition”
means an acquisition of Common Shares or Convertible Securities (i) in
respect of which the Board of Directors has waived the application of
Section 0 pursuant to the provisions of Section 0, or (ii) pursuant to a
distribution of Common Shares or Convertible Securities (and the exercise,
conversion or exchange of those Convertible Securities) made by the
Corporation pursuant to a prospectus or private placement provided that
the Person does not acquire a greater percentage of the securities offered
in the distribution than the percentage of Common Shares Beneficially
Owned by that Person immediately prior to the distribution, or (iii)
pursuant to an amalgamation, merger or other similar procedure requiring
shareholder approval;
|
|
|
(v)
|
“Exercise Price” means,
as of any date, the price at which a holder may purchase the securities
issuable upon exercise of one whole Right which, until adjustment in
accordance with the terms of this Agreement, will be
$100.00;
|
|
|
(w)
|
“Expansion Factor” has
the meaning given to that term in Section
0;
|
|
|
(x)
|
“Expiration Time” means
the close of business on that date which is the earliest of the date of
termination of this Agreement pursuant to Section 0 or, if this Agreement
is ratified and confirmed pursuant to Section 0, the date of termination
of this Agreement pursuant to Section 0 or, if this Agreement is
reconfirmed pursuant to Section 0, the date of the annual meeting of the
Corporation to be held in 2018;
|
|
|
(y)
|
“Flip-In Event” means a
transaction in or pursuant to which any Person becomes an Acquiring
Person;
|
|
|
(z)
|
“holder” has the meaning
given to that term in Section 0;
|
|
|
(aa)
|
“including” means
including without limitation;
|
|
|
(bb)
|
“Independent
Shareholders” means holders of outstanding Common Shares, other
than Common Shares Beneficially Owned by (i) any Acquiring Person, (ii)
any Offeror, (iii) any Person acting jointly or in concert with an
Acquiring Person or an Offeror, (iv) any Associate or Affiliate of an
Acquiring Person or an Offeror, and (v) any employee benefit plan,
deferred profit sharing plan and any similar plan or trust for the benefit
of employees of the Corporation or its Subsidiaries unless the
beneficiaries of the plan or trust direct the manner in which the Common
Shares are to be voted or withheld from voting or direct whether the
Common Shares are to be tendered to a Take-over
Bid;
|
|
|
(cc)
|
“Lock-Up Agreement” means
an agreement between a Person and one or more holders of Common Shares
(each a “Locked-up
Person”) the terms of which are publicly disclosed and a copy of
which is made available to the public (including the Corporation) not
later than (i) the date the Lock-up Bid (as defined below) is publicly
announced or (ii) if the Lock-up Bid has been made prior to the date on
which such agreement is entered into, forthwith and in any event not later
than the date following the date of such agreement, pursuant to which each
Locked-up Person agrees to deposit or tender Common Shares to a Take-over
Bid (the “Lock-up
Bid”) to be made or made by such Person or any of such Person’s
Affiliates or Associates or any other Person referred to in Clause (iii)
of the definition of Beneficial Owner and which agreement
provides:
|
|
|
(i)
|
that
any agreement to deposit or tender to, or to not withdraw Common Shares
and/or other securities agreed to be deposited or tendered from, the
Lock-up Bid is terminable at the option of the Locked-up Person in order
to permit the Locked-up Person to tender or deposit such Common Shares
and/or other securities agreed to be deposited or tendered to another
Take-over Bid or support another
transaction:
|
|
|
(A)
|
where
the price or value per Common Share (and/or other security) offered under
such other Take-over Bid or transaction is higher than the price or value
per Common Share (and/or other security) offered or proposed to be offered
under the Lock-up Bid; or
|
|
|
(B)
|
if:
|
|
|
(1)
|
the
price or value per Common Share (and/or other security) offered under the
other Take-over Bid or transaction exceeds the price or value per Common
Shares (and/or other security) offered or proposed to be offered under the
Lock-up Bid by an amount that is equal to or greater than the lesser of
(x) any amount specified in the agreement and (y) 7%;
or
|
|
|
(2)
|
the
number of Common Shares (and/or other securities) to be purchased under
the other Take-over Bid or transaction exceeds the number of Common Shares
(and/or other securities) offered or proposed to be offered to be
purchased under the Lock-up Bid by an amount that is equal to or greater
than the lesser of (x) any amount specified in the agreement and (y) 7%,
at a price or value per Common Share (and/or other security), as
applicable, that is not less than the price or value per Common Share
(and/or other security) offered or proposed to be offered under the
Lock-up Bid;
|
|
|
(ii)
|
no
“break-up” fees, “top-up” fees, penalties, expenses or other amounts that
exceed in the aggregate the greater
of:
|
|
|
(A)
|
the
cash equivalent of 2.5% of the price or value payable under the Lock-up
Bid to a Locked-up Person; and
|
|
|
(B)
|
50%
of the amount by which the price or value payable under another Take-over
Bid or transaction to a Locked-up Person exceeds the price or value of the
consideration that such Locked-up Person would have received under the
Lock-up Bid;
|
|
|
(dd)
|
“Market Price” of any
securities on any date of determination means the average daily closing
prices per security of those securities (determined as described below) on
each of the 20 consecutive Trading Days through and including the Trading
Day immediately preceding that date; provided, however, that if an event
of a type analogous to any of the events described in Section 0 will have
caused the closing prices used to determine the Market Price on any
Trading Day not to be fully comparable with the closing price on that date
of determination or, if the date of determination is not a Trading Day, on
the immediately preceding Trading Day, each such closing price so used
will be appropriately adjusted in a manner analogous to the applicable
adjustment provided for in Section 0 in order to make it
fully
|
|
|
comparable
with the closing price on the date of determination or, if the date of
determination is not a Trading Day, on the immediately preceding Trading
Day. The closing price of any securities on any date will
be:
|
|
|
(i)
|
the
closing board lot sale price or, if that price is not available, the
average of the closing bid and asked prices, for that security as reported
by the principal Canadian stock exchange on which those securities are
listed or admitted to trading; or
|
|
|
(ii)
|
if
for any reason none of those prices is available on that day or the
securities are not listed or admitted to trading on a Canadian stock
exchange, the last sale price or, if that price is not available, the
average of the closing bid and asked prices, for that security as reported
by any other securities exchange on which those securities are listed or
admitted to trading, or
|
|
|
(iii)
|
if
for any reason none of those prices is available on that day or the
securities are not listed or admitted to trading on a Canadian stock
exchange or other securities exchange, the last sale price, or if no sale
takes place on such day, the average of the high bid and low asked prices
for each such security in the over-the-counter market, as quoted by any
reporting system then in use, or
|
|
|
(iv)
|
if
for any reason none of those prices is available on that day or the
securities are not listed or admitted to trading on a Canadian stock
exchange or the securities are not quoted by any reporting system, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the securities selected in good faith by
the Board of Directors;
|
|
|
(ee)
|
“Nominee” has the meaning
given to that term in Section 0;
|
|
|
(ff)
|
“Offer to Acquire”
includes:
|
|
|
(i)
|
an
offer to purchase or a solicitation of an offer to sell, Common Shares or
Convertible Securities, or a public announcement of an intention to make
such an offer to purchase or offer to sell,
and
|
|
|
(ii)
|
an
acceptance of an offer to sell Common Shares or Convertible Securities,
whether or not that offer to sell has been
solicited,
|
|
|
(hh)
|
“Offeror’s Securities”
means Common Shares Beneficially Owned by an Offeror on the date of the
Offer to Acquire;
|
|
|
(ii)
|
“Permitted Bid” means a
Take-over Bid which is made by an Offeror by means of a take-over bid
circular and which also complies with the following additional
provisions:
|
|
|
(i)
|
the
Take-over Bid is made to all holders of Common Shares, other than the
Offeror; and
|
|
|
(ii)
|
the
Take-over Bid shall contain, and the take-up and payment for securities
tendered or deposited under the Take-over Bid shall be subject to,
irrevocable and unqualified conditions
that:
|
|
|
(A)
|
no
Common Shares shall be taken up or paid for pursuant to the Take-over Bid
(x) prior to the close of business on a date which is not earlier than 60
days following the date the take-over bid circular is sent to shareholders
of the Corporation and (y) then only if, at the close of business on the
date Common Shares are first taken up or paid for under the Take-over Bid,
more than 50% of the then outstanding Common Shares held by Independent
Shareholders have been deposited or tendered pursuant to the Take-over Bid
and not withdrawn;
|
|
|
(B)
|
Common
Shares may be deposited pursuant to the Take-over Bid, unless the
Take-over Bid is withdrawn, at any time prior to the close of business on
the date Common Shares are first taken up or paid for under the Take-over
Bid;
|
|
|
(C)
|
any
Common Shares deposited pursuant to the Take-over Bid may be withdrawn
until taken up and paid for; and
|
|
|
(D)
|
in
the event that the requirement set out in Subclause (ii)(A)(y) of this
definition is satisfied, the Offeror will make a public announcement of
that fact and the Take-over Bid will remain open for deposits and tender
of Common Shares for not less than 10 days from the date of that public
announcement;
|
|
|
(jj)
|
“Permitted Bid
Acquisition” means an acquisition of Common Shares made pursuant to
a Permitted Bid or a Competing Permitted
Bid;
|
|
|
(kk)
|
“Person” means an
individual, body corporate, trust, partnership, limited liability company,
unlimited liability company, syndicate or other form of unincorporated
association, government and its agencies or instrumentalities, entity or
group whether or not having legal personality and any of the foregoing
acting in any derivative, representative or fiduciary
capacity;
|
|
|
(ll)
|
“Pro Rata Acquisition”
means an acquisition by a Person of Common Shares or Convertible
Securities (i) as a result of a stock dividend, a stock split or other
event pursuant to which the Person receives or acquires Common Shares or
Convertible Securities on the same pro rata basis as all other holders of
Common Shares of the same class or series of the Corporation, or (ii)
pursuant to a Dividend Reinvestment Plan, or (iii) pursuant to the receipt
and/or exercise of rights (other than the Rights) issued by the
Corporation to all of the holders of Common Shares on a pro rata basis to
subscribe for or purchase Common Shares or Convertible Securities,
provided that the Person does not acquire a greater percentage of the
securities issuable on exercise of those rights than the percentage of
Common Shares Beneficially Owned by that Person immediately prior to the
commencement of the offering of rights and that those rights are acquired
directly from the Corporation and not from any other
Person;
|
|
|
(mm)
|
“Record Date” means the
date of this Agreement;
|
|
|
(nn)
|
“Record Time” means the
close of business on the Record
Date;
|
|
|
(oo)
|
“Redemption Price” has
the meaning given to that term in Section
0;
|
|
|
(pp)
|
“Right” means a right to
purchase one Common Share, subject to adjustment as set out in this
Agreement, upon the terms and subject to the conditions set out in this
Agreement;
|
|
|
(qq)
|
“Rights Certificate” has
the meaning given to that term and will be substantially in the form
provided in Section 0;
|
|
|
(rr)
|
“Rights Plan” has the
meaning given in the first recital
hereto;
|
|
|
(ss)
|
“Rights Register” has the
meaning given to that term in Section
0;
|
|
|
(tt)
|
“Rights Registrar” has
the meaning given to that term in Section
0;
|
|
|
(uu)
|
“Securities Act” means
the Securities
Act (Ontario), as amended, and the rules and regulations under that
Act as now in effect and as same may from time to time be amended,
re-enacted or replaced;
|
|
|
(vv)
|
“Separation Time” means
the close of business on the tenth Trading Day after the earliest
of:
|
|
|
(i)
|
the
Common Share Acquisition
Date;
|
|
|
(ii)
|
the
date of the commencement of, or first public announcement of the intent of
any Person (other than the Corporation or any Subsidiary of the
Corporation) to commence, a Take-over Bid (other than a Permitted Bid or a
Competing Permitted Bid), provided that, if any Take-over Bid referred to
in this Clause (ii) of this definition expires, is cancelled, terminated
or otherwise withdrawn prior to the Separation Time, the Take-over Bid
will be deemed, for the purposes of this definition, never to have been
made; and
|
|
|
(iii)
|
two
days following the date upon which a Permitted Bid or Competing Permitted
Bid ceases to be a Permitted Bid or Competing Permitted Bid, as the case
may be;
|
|
|
(ww)
|
“Subsidiary” means a
Person which in relation to another
Person:
|
|
|
(i)
|
is
controlled by (A) that other, or (B) that other and one or more Persons,
each of which is controlled by that other, or (C) two or more bodies
Persons, each of which is controlled by that other,
or
|
|
|
(ii)
|
is
a Subsidiary of a Person that is that other’s
Subsidiary;
|
|
|
(xx)
|
“Take-over Bid” means an
Offer to Acquire Common Shares or Convertible Securities, where the Common
Shares subject to the Offer to Acquire, together with the Common Shares
underlying the Convertible Securities subject to the Offer to Acquire,
together with the Offeror’s Securities, constitute in the aggregate 20% or
more of the outstanding Common Shares at the date of the Offer to Acquire;
and
|
|
|
(yy)
|
“Trading Day”, when used
with respect to any securities, means a day on which the principal
Canadian securities exchange on which those securities are listed or
admitted to trading is open for the transaction of business or, if the
securities are not listed or admitted to trading on any Canadian
securities exchange, a Business
Day.
|
|
1.2
|
Currency
|
|
1.3
|
Number
and Gender
|
|
1.5
|
Calculation
of Beneficial Ownership of Outstanding Common
Shares
|
|
A
|
=
|
the
number of votes for the election of all directors generally attaching to
the Common Shares Beneficially Owned by that Person;
and
|
|
B
|
=
|
the
number of votes for the election of all directors generally attaching to
all outstanding Common Shares.
|
|
1.6
|
Acting
Jointly and in Concert
|
|
1.7
|
Convertible
Securities
|
|
2.1
|
Issuance
and Evidence of Rights
|
|
|
(a)
|
One
Right in respect of each Common Share outstanding at the Record Time and
each Common Share which may be issued after the Record Time and prior to
the earlier of the Separation Time and the Expiration Time will be issued
in accordance with the terms of this Agreement. Notwithstanding
the foregoing, one Right in respect of each Common Share issued after the
Record Time upon the exercise of rights pursuant to Convertible Securities
outstanding at the Common Share Acquisition Date may be issued after the
Separation Time but prior to the Expiration
Time.
|
|
|
(b)
|
Certificates
representing Common Shares issued after the Record Time but prior to the
earlier of the Separation Time and the Expiration Time will evidence one
Right for each Common Share represented by that certificate and will have
impressed on, printed on, written on or otherwise affixed to them the
following legend:
|
|
|
(c)
|
Certificates
representing Common Shares that are issued and outstanding at the Record
Time will evidence one Right for each Common Share evidenced by those
certificates, notwithstanding the absence of the foregoing legend, until
the earlier of the Separation Time and Expiration
Time.
|
|
2.2
|
Initial
Exercise Price; Exercise of Rights; Detachment of
Rights
|
|
|
(a)
|
Subject
to adjustment as set out in this Agreement, each Right will entitle the
holder, after the Separation Time and prior to the Expiration Time, to
purchase one Common Share for the Exercise
Price.
|
|
|
(b)
|
Until
the Separation Time,
|
|
|
(i)
|
the
Rights will not be exercisable and no Right may be exercised;
and
|
|
|
(ii)
|
each
Right will be evidenced by the certificate for the associated Common Share
registered in the name of the holder and will be transferable only
together with, and will be transferred by a transfer of, that associated
Common Share.
|
|
|
(c)
|
From
and after the Separation Time and prior to the Expiration
Time,
|
|
|
(i)
|
the
Rights will be exercisable, and
|
|
|
(ii)
|
the
registration and transfer of the Rights will be separate from and
independent of Common Shares.
|
|
|
(d)
|
Promptly
following the Separation Time, the Corporation will prepare and the Rights
Agent will mail to each holder of record of Common Shares as of the
Separation Time or who subsequently becomes a holder of record of Common
Shares upon the exercise of rights attaching to Convertible Securities
outstanding at the Common Share Acquisition Date (other than an Acquiring
Person and any holder of record of Rights which are Beneficially Owned by
that Acquiring Person (a “Nominee”)), at the
holder’s address as shown by the records of the Corporation (the
Corporation agreeing to furnish copies of those records to the Rights
Agent for this purpose),
|
|
|
(i)
|
a
Rights Certificate in substantially the form of Exhibit A or such other
form as the Corporation and the Rights Agent may agree appropriately
completed, representing the number of Rights held by the holder at the
Separation Time and having marks of identification or designation and
legends, summaries or endorsements printed on the certificate as the
Corporation may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any
law, rule, regulation or judicial or administrative order or with any rule
or regulation made pursuant thereto or with any rule or regulation of any
self-regulatory organization, stock exchange or quotation system on which
the Rights may from time to time be listed or traded, or to conform to
usage; and
|
|
|
(ii)
|
a
disclosure statement describing the
Rights.
|
|
|
(e)
|
In
order for the Corporation to determine whether any Person is holding
Common Shares which are Beneficially Owned by another Person, the
Corporation may require the first mentioned Person to furnish all
information and documentation as the Corporation deems
necessary.
|
|
|
(f)
|
Rights
may be exercised in whole or in part on any Business Day after the
Separation Time and prior to the Expiration Time by submitting to the
Rights Agent:
|
|
|
(i)
|
the
Rights Certificate evidencing those
Rights;
|
|
|
(ii)
|
an
election to exercise those Rights (an “Election to Exercise”)
substantially in the form attached to the Rights Certificate duly
completed and executed by the holder or his executors or administrators or
other personal representatives or his or their legal attorney duly
appointed by an instrument in writing in form and executed in a manner
satisfactory to the Rights Agent;
and
|
|
|
(iii)
|
payment
by certified cheque, banker’s draft or money order payable to the order of
the Corporation, of a sum equal to the Exercise Price multiplied by the
number of Rights being exercised and a sum sufficient to cover any
transfer tax or charge which may be payable in respect of any transfer or
delivery of Rights Certificates or the issuance or delivery of
certificates for Common Shares in a name other than that of the holder of
the Rights being exercised.
|
|
|
(g)
|
Upon
receipt of a Rights Certificate, which is accompanied by (1) a completed
Election to Exercise executed in accordance with Section 0 that does not
indicate that the Right is null and void as provided by Section 0 and (2)
payment as set out in Section 0, the Rights Agent (unless otherwise
instructed by the Corporation in the event that the Corporation is of the
opinion that the Rights cannot be exercised in accordance with this
Agreement) will then promptly:
|
|
|
(i)
|
requisition
from the transfer agent for the Common Shares certificates representing
the number of Common Shares to be purchased (the Corporation hereby
irrevocably authorizes its transfer agent to comply with all of those
requisitions);
|
|
|
(ii)
|
when
appropriate, requisition from the Corporation the amount of any funds to
be paid in lieu of issuing fractional Common
Shares;
|
|
|
(iii)
|
after
receipt of those Common Share certificates, deliver them to or upon the
order of the registered holder of the Rights Certificate, registered in
any name or names as may be designated by the
holder;
|
|
|
(iv)
|
when
appropriate, after receipt, deliver the payment referred to in Section 0
by cheque to or to the order of the registered holder of the Rights
Certificate; and
|
|
|
(v)
|
tender
to the Corporation all payments received on exercise of the
Rights.
|
|
|
(h)
|
In
case the holder of any Rights exercises less than all the Rights evidenced
by that holder’s Rights Certificate, a new Rights Certificate evidencing
the Rights remaining unexercised (subject to the provisions of Section 0)
will be issued by the Rights Agent to the holder or to the holder’s duly
authorized assigns.
|
|
|
(i)
|
The
Corporation covenants and agrees that it
will:
|
|
|
(i)
|
take
all action as may be necessary and within its power to ensure that all
securities delivered upon the exercise of Rights will, at the time of
delivery of the certificates for those securities (subject to payment of
the Exercise Price), be duly and validly authorized and issued as fully
paid and non-assessable,
|
|
|
(ii)
|
take
all action as may be necessary and within its power to ensure compliance
with the provisions of Section 0 including all action necessary to comply
with the requirements of the Corporations Act, the Securities Act and any
other applicable law, rule or regulation, applicable to the issuance and
delivery of the Rights Certificates and the issuance of any securities
upon exercise of Rights,
|
|
|
(iii)
|
use
reasonable efforts to cause all securities issued upon the exercise of
Rights to be listed upon issuance on the stock exchanges on which the
Common Shares were traded immediately prior to the Common Share
Acquisition Date,
|
|
|
(iv)
|
pay
when due and payable, if applicable, any and all Canadian and, if
applicable, United States, federal, provincial, municipal and state
transfer taxes and charges (not including any income or capital taxes of
the holder or exercising holder or any liability of the Corporation to
withhold tax) which may be payable in respect of the original issuance or
delivery of the Rights Certificates or certificates for Common Shares to
be issued upon exercise of any Rights, provided that the Corporation will
not be required to pay any transfer tax or charge which may be payable in
respect of any transfer involved in the transfer or delivery of Rights
Certificates or the issuance or delivery of certificates for securities in
a name other than that of the holder of the Rights being transferred or
exercised,
|
|
|
(v)
|
cause
to be reserved and kept available out of its authorized Common Shares the
number of Common Shares that, as provided in this Agreement, will from
time to time be sufficient to permit the exercise in full of all
outstanding Rights, and
|
|
|
(vi)
|
after
the Separation Time, except as permitted by Section 0, not take (or permit
any Subsidiary to take) any action if at the time the action is taken it
is reasonably foreseeable that the action will diminish substantially or
otherwise eliminate the benefits intended to be afforded by the
Rights.
|
|
2.3
|
Adjustments
to Exercise Price; Number of Rights
|
|
|
(a)
|
The
Exercise Price, the number and kind of securities subject to purchase upon
exercise of each Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section
0.
|
|
|
(b)
|
In
the event the Corporation will at any time after the date of this
Agreement and prior to the Expiration
Time,
|
|
|
(i)
|
make
or declare a stock dividend on its Common Shares payable in Common Shares
(or other securities exercisable or exchangeable for or convertible into
or giving a right to acquire Common Shares or other securities of the
Corporation) other than pursuant to any Dividend Reinvestment
Plan;
|
|
|
(ii)
|
subdivide
or change the outstanding Common Shares into a greater number of Common
Shares;
|
|
|
(iii)
|
consolidate
or change the outstanding Common Shares into a smaller number of Common
Shares; or
|
|
|
(iv)
|
issue
any Common Shares (or other securities exercisable or exchangeable for or
convertible into or giving a right to acquire Common Shares or other
securities of the Corporation) in respect of, in lieu of or in exchange
for existing Common Shares except as otherwise provided in this Section
0,
|
|
|
(c)
|
If
the Exercise Price and number of Rights outstanding are to be
adjusted:
|
|
|
(i)
|
the
Exercise Price in effect after the adjustment will be equal to the
Exercise Price in effect immediately prior to the adjustment divided by
the number of Common Shares (the “Expansion Factor”) that
a holder of one Common Share immediately prior to that stock dividend,
subdivision, change, combination or issuance would hold after as a result
of that stock dividend, subdivision, change, combination or issuance;
and
|
|
|
(ii)
|
each
Right held prior to the adjustment will become that number of Rights equal
to the Expansion Factor, and the adjusted number of Rights will be deemed
to be distributed among the Common Shares with respect to which the
original Rights were associated (if they remain outstanding) and the
Common Shares issued in respect of the stock dividend, subdivision,
change, combination or issuance, so that each such Common Share will have
exactly one Right associated with it in effect following the payment or
effective date of the event referred to in Sections 0, 0, 0 or 0, as the
case may be.
|
|
|
(d)
|
In
the event the Corporation at any time after the Record Time and prior to
the Separation Time fixes a record date for the issuance of rights,
options or warrants to all or substantially all holders of Common Shares
entitling them (for a period expiring within 45 calendar days after that
record date) to subscribe for or purchase Common Shares (or securities
convertible into or exchangeable for or carrying a right to purchase
Common Shares) at a price per Common Share (or, if a security convertible
into or exchangeable for or carrying a right to purchase or subscribe for
Common Shares having a conversion, exchange or exercise price, including
the price required to be paid to purchase the convertible or exchangeable
security or right per Common Share) less than the 90% of the Market Price
per Common Share on the record date, the Exercise Price to be in effect
after the record date will be determined by multiplying the Exercise Price
in effect immediately prior to the record date by a fraction, the
numerator of which will be the number of Common Shares outstanding on the
record date, plus the number of Common Shares that the aggregate offering
price of the total number of Common Shares so to be offered (and/or the
aggregate initial conversion, exchange or exercise price of the
convertible or exchangeable securities or rights so to be offered,
including the price required to be paid to purchase such convertible or
exchangeable securities or rights) would purchase at the Market Price per
Common Share, and the denominator of which will be the number of Common
Shares outstanding on the record date, plus the number of additional
Common Shares to be offered for subscription or purchase (or into which
the convertible or exchangeable securities or rights so to be offered are
initially convertible, exchangeable or
exercisable).
|
|
|
(e)
|
In
case a subscription price may be paid by delivery of consideration, part
or all of which may be in a form other than cash, the value of that
consideration will be as determined in good faith by the Board of
Directors, whose determination will be described in a statement filed with
the Rights Agent and will be binding on the Rights Agent and the holders
of the Rights. The adjustment will be made successively
whenever such a record date is fixed, and in the event that the rights or
warrants are not so issued or if issued, are not exercised prior to their
expiration, the Exercise Price will be readjusted to be the Exercise Price
which would then be in effect if the record date had not been fixed, or to
the Exercise Price which would be in effect based on the number of Common
Shares (or securities convertible into or exchangeable or exercisable for
Common Shares) actually issued upon the exercise of those rights, options
or warrants, as the case may be.
|
|
|
(f)
|
For
purposes of this Agreement, the granting of the right to purchase Common
Shares (whether from treasury or otherwise) pursuant to any Dividend
Reinvestment Plan (so long as that right to purchase is in no case
evidenced by the delivery of rights or warrants) will be deemed not to
constitute an issue of rights, options or warrants by the Corporation;
provided, however, that, in all cases, the right
to
|
|
|
purchase
Common Shares is at a price per Common Share of not less than 90% of the
current Market Price per Common Share (determined as provided in those
plans) of the Common Shares.
|
|
|
(g)
|
In
the event the Corporation at any time after the Record Time and prior to
the Separation Time fixes a record date for a distribution to all holders
of Common Shares of evidences of indebtedness, assets (other than cash and
other than a regular periodic cash dividend or a dividend paid in Common
Shares on the liquidation of the Corporation), rights, options or warrants
(excluding those referred to in Section 0), the Exercise Price to be in
effect after that record date will be determined by multiplying the
Exercise Price in effect immediately prior to that record date by a
fraction, the numerator of which will be the Market Price per Common Share
on the record date, less the fair market value (as determined in good
faith by the Board of Directors, whose determination will be described in
a statement filed with the Rights Agent and will be binding on the Rights
Agent and the holders of Rights), on a per Common Share basis, of the
portion of the assets or evidences of indebtedness so to be distributed
and the denominator of which will be the Market Price per Common
Share. Those adjustments will be made successively whenever
such a record date is fixed, and in the event that the distribution is not
so made, the Exercise Price will be adjusted to be the Exercise Price
which would have been in effect if the record date had not been
fixed.
|
|
|
(h)
|
Notwithstanding
anything in this Agreement to the contrary, no adjustment in the Exercise
Price will be required unless the adjustment would require an increase or
decrease of at least one percent in the Exercise Price; provided, however,
that any adjustments which by reason of this Section 0 are not required to
be made will be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 0 will be made
to the nearest cent or to the nearest ten-thousandth of a Common
Share. Notwithstanding the first sentence of this
Section 0, any adjustment required by this Section 0 will be made no
later than the earlier of (i) three years from the date of the transaction
which mandates the adjustment or (ii) the Expiration
Date.
|
|
|
(i)
|
In
the event the Corporation at any time after the Record Time and prior to
the Separation Time issues any securities of the Corporation (other than
the Common Shares), or rights, options or warrants to subscribe for or
purchase any securities of the Corporation, or securities convertible into
or exchangeable for any securities of the Corporation, in a transaction
referred to in Section 0 or 0 above, if the Board of Directors acting in
good faith determines that the adjustments contemplated by Sections 0, 0
and 0 above in connection with the transaction will not appropriately
protect the interests of the holders of Rights, the Board of Directors may
determine what other adjustments to the Exercise Price, number of Rights
and/or securities purchasable upon exercise of Rights would be appropriate
and, notwithstanding Sections 0, 0 and 0 above, that adjustment, rather
than the adjustments contemplated by Sections 0, 0 and 0 above, will be
made. Subject to Section 0 and subject to the approval of each
stock exchange on which
|
|
|
the
Common Shares are listed for trading at the relevant time, the Corporation
will amend this Agreement as appropriate to provide for that
adjustment.
|
|
|
(j)
|
Each
Right originally issued by the Corporation subsequent to any adjustment
made to the Exercise Price under this Agreement will evidence the right to
purchase, at the adjusted Exercise Price, the number of Common Shares
purchasable from time to time under this Agreement upon exercise of a
Right immediately prior to that issue, all subject to further adjustment
as provided in this Agreement.
|
|
|
(k)
|
Irrespective
of any adjustment or change in the Exercise Price or the number of Common
Shares issuable upon the exercise of the Rights, the Rights Certificates
issued before or after any such adjustment or change may continue to
express the Exercise Price per Common Share and the number of Common
Shares which were expressed in the initial Rights Certificates issued
under this Agreement.
|
|
|
(l)
|
In
any case in which this Section 0 requires that any adjustment in the
Exercise Price be made effective as of a record date for a specified
event, the Corporation may elect to defer until the occurrence of that
event the issuance to the holder of any Right exercised after that record
date the number of Common Shares and other securities of the Corporation,
if any, issuable upon that exercise over and above the number of Common
Shares and other securities of the Corporation, if any, issuable upon that
exercise on the basis of the Exercise Price in effect prior to the
adjustment; provided, however, that the Corporation delivers to that
holder an appropriate instrument evidencing that holder’s right to receive
those additional Common Shares (fractional or otherwise) or securities
upon the occurrence of the event requiring the
adjustment.
|
|
|
(m)
|
Notwithstanding
anything in this Section 0 to the contrary, the Corporation will be
entitled to make those reductions in the Exercise Price, in addition to
those adjustments expressly required by this Section 0, as and to the
extent that in their good faith judgment the Board of Directors determines
to be advisable in order that any:
|
|
|
(i)
|
consolidation
or subdivision of the Common
Shares,
|
|
|
(ii)
|
issuance
(wholly or in part for cash) of Common Shares or securities that by their
terms are convertible into or exchangeable for Common
Shares,
|
|
|
(iii)
|
Common
Share dividends, or
|
|
|
(iv)
|
issuance
of rights, options or warrants referred to in this Section
0,
|
|
|
(n)
|
Whenever
an adjustment to the Exercise Price or a change in the securities
purchasable upon exercise of the Rights is made at any time after the
Separation Time pursuant to this Section 0, the Corporation shall
promptly:
|
|
|
(i)
|
file
with the Rights Agent and with the transfer agent for the Common Shares a
certificate specifying the particulars of such adjustment or change;
and
|
|
|
(ii)
|
cause
notice of the particulars of such adjustment or change to be given to the
holders of the Rights; provided that failure to file such certificate or
cause such notice to be given as aforesaid, or any defect therein, shall
not affect the validity of any such adjustment or
change.
|
|
2.4
|
Date
on Which Exercise is Effective
|
|
2.5
|
Execution,
Authentication, Delivery and Dating of Rights
Certificates
|
|
|
(a)
|
The
Rights Certificates will be executed on behalf of the Corporation by any
of the Chief Executive Officer, the President, the Chief Financial Officer
or the Secretary of the Corporation. The signature of any of
these officers on the Rights Certificates may be manual or
facsimile. Rights Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Corporation will bind the Corporation, notwithstanding that those
individuals or any of them have ceased to be officers of the Corporation
either before or after the countersignature and delivery of those Rights
Certificates.
|
|
|
(b)
|
Promptly
after the Corporation learns of the Separation Time, the Corporation will
notify the Rights Agent of the Separation Time and will deliver (i) the
disclosure statement referred to in Section 0 and (ii) Rights Certificates
executed by the Corporation to the Rights Agent for countersignature, and
the Rights Agent will manually countersign those Rights Certificates (in a
manner satisfactory to the Corporation) and send the disclosure statement
and those Rights Certificates to the holders of the Rights pursuant to
Section 0. No Rights Certificate will be valid for any purpose
until countersigned by the Rights Agent as set out
above.
|
|
|
(c)
|
Each
Rights Certificate will be dated the date of countersignature of the
certificate.
|
|
2.6
|
Registration,
Transfer and Exchange
|
|
|
(a)
|
After
the Separation Time, the Corporation will cause to be kept a register (the
“Rights Register”)
in which, subject to all reasonable regulations as it may prescribe, the
Corporation will provide for the registration and transfer of
Rights. The Rights Agent is hereby appointed registrar for the
Rights (the “Rights
Registrar”) for the purpose of maintaining the Rights Register for
the Corporation and registering Rights and transfers of Rights as provided
in this Agreement and the Rights Agent hereby accepts that
appointment. In the event that the Rights Agent ceases to be
the Rights Registrar, the Rights Agent will have the right to examine the
Rights Register at all reasonable
times.
|
|
|
(b)
|
After
the Separation Time and prior to the Expiration Time, upon surrender for
registration of transfer or exchange of any Rights Certificate, and
subject to the provisions of Section 0, the Corporation will execute, and
the Rights Agent will countersign, register and deliver, in the name of
the holder or the designated transferee or transferees, as required
pursuant to the holder’s instructions, one or more new Rights Certificates
evidencing the same aggregate number of Rights as did the Rights
Certificates surrendered.
|
|
|
(c)
|
All
Rights issued upon any registration of transfer or exchange of Rights
Certificates will be the valid obligations of the Corporation, and those
Rights will be entitled to the same benefits under this Agreement as the
Rights surrendered upon the registration of transfer or
exchange.
|
|
|
(d)
|
Every
Rights Certificate surrendered for registration of transfer or exchange
will be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Corporation or the Rights Agent, as
the case may be, duly executed by the holder or that holder’s attorney
duly authorized in writing. As a condition to the issuance of
any new Rights Certificate under this Section 0, the Corporation may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation to the transfer or
exchange and any other expenses (including the reasonable fees and
expenses of the Rights Agent) connected to the transfer or
exchange.
|
|
2.7
|
Mutilated,
Destroyed, Lost and Stolen Rights
Certificates
|
|
|
(a)
|
If
any mutilated Rights Certificate is surrendered to the Rights Agent prior
to the Expiration Time, the Corporation will execute and the Rights Agent
will countersign and deliver in exchange for that certificate a new Rights
Certificate evidencing the same number of Rights as did the Rights
Certificate surrendered.
|
|
|
(b)
|
If
there is delivered to the Corporation and the Rights Agent prior to the
Expiration Time,
|
|
|
(i)
|
evidence
to their reasonable satisfaction of the destruction, loss or theft of any
Rights Certificate; and
|
|
|
(ii)
|
a
surety bond and indemnity as may be reasonably required by them to save
each of them and any of their agents
harmless,
|
|
|
(c)
|
As
a condition to the issuance of any new Rights Certificate under this
Section 0, the Corporation may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
to the issuance and any other expenses (including the reasonable fees and
expenses of the Rights Agent) connected with the
issuance.
|
|
|
(d)
|
Every
new Rights Certificate issued pursuant to this Section 0 in lieu of any
destroyed, lost or stolen Rights Certificate will evidence the contractual
obligation of the Corporation, whether or not the destroyed, lost or
stolen Rights Certificate will be at any time enforceable by anyone, and
will be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Rights duly issued under this
Agreement.
|
|
2.8
|
Persons
Deemed Owners
|
|
2.9
|
Delivery
and Cancellation of Certificates
|
|
2.10
|
Agreement
of Rights Holders
|
|
|
(a)
|
to
be bound by and subject to the provisions of this Agreement, as amended
from time to time in accordance with the terms of this Agreement, in
respect of all Rights held;
|
|
|
(b)
|
that
prior to the Separation Time, each Right will be transferable only
together with, and will be transferred by a transfer of, the associated
Common Share;
|
|
|
(c)
|
that
after the Separation Time, the Rights will be transferable only on the
Rights Register as provided in this
Agreement;
|
|
|
(d)
|
that
prior to due presentment of a Rights Certificate (or, prior to the
Separation Time, the associated Common Share certificate) for registration
of transfer, the Corporation, the Rights Agent and any agent of the
Corporation or the Rights Agent may deem and treat the Person in whose
name the Rights Certificate (or, prior to the Separation Time, the
associated Common Share certificate) is registered as the absolute owner
of the certificate and of the Rights evidenced by the certificate
(notwithstanding any notations of ownership or writing on the Rights
Certificate or the associated Common Share certificate made by anyone
other than the Corporation or the Rights Agent) for all purposes
whatsoever, and neither the Corporation nor the Rights Agent will be
affected by any notice, to the
contrary;
|
|
|
(e)
|
that
such holder of Rights has waived its right to receive any fractional
Common Shares or other securities upon exercise of a Right (except as
provided in this Agreement and as may be permitted by the constating
documents of the Corporation);
|
|
|
(f)
|
that,
subject to the provisions of Section 0, without the approval of any holder
of Rights or Common Shares and upon the sole authority of the Board of
Directors, acting in good faith, this Agreement may be supplemented or
amended from time to time as provided in this Agreement;
and
|
|
|
(g)
|
that
notwithstanding anything in this Agreement to the contrary, neither the
Corporation nor the Rights Agent have any liability to any holder of a
Right or any other Person as a result of its inability to perform any of
its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or executive order
promulgated or enacted by any governmental authority, prohibiting or
otherwise restraining performance of such
obligation.
|
|
2.11
|
Rights
Certificate Holder not Deemed a
Shareholder
|
|
3.1
|
Flip-In
Event
|
|
|
(a)
|
Subject
to Section 0 and Section 0, in the event that prior to the Expiration Time
a Flip-In Event occurs, each Right will constitute, effective on the close
of business on the tenth Trading Day after the Common Share Acquisition
Date (or such longer period as may be required to satisfy the requirements
of the Securities Act and any comparable legislation of any other
applicable jurisdiction), the right to purchase from the Corporation, upon
payment of the Exercise Price and otherwise exercising such Right in
accordance with the terms of this Agreement, that number of Common Shares
having an aggregate Market Price on the date of such Flip-In Event equal
to twice the relevant Exercise Price for an amount in cash equal to the
relevant Exercise Price (such Right to be appropriately adjusted in a
manner analogous to the applicable adjustment provided for in Section 0 in
the event that after the occurrence of such Flip-In Event, an event of a
type analogous to any of the events described in Section 0 will have
occurred).
|
|
|
(b)
|
Notwithstanding
the foregoing or any other provisions of this Agreement, upon the
occurrence of any Flip-In Event, any Rights that are Beneficially Owned on
or after the earlier of the Separation Time and the Common Share
Acquisition Date by:
|
|
|
(i)
|
an
Acquiring Person (or any Affiliate or Associate of an Acquiring Person or
any Person acting jointly or in concert with an Acquiring Person or any
Affiliate or Associate of an Acquiring Person);
or
|
|
|
(ii)
|
a
transferee of Rights, directly or indirectly, from an Acquiring Person (or
of any Affiliate or Associate of an Acquiring Person or of any Person
acting jointly or in concert with an Acquiring Person or any Associate or
Affiliate of an Acquiring Person) in a transfer made after the date of
this Agreement,
|
|
|
whether
or not for consideration, that the Board of Directors acting in good faith
have determined is part of a plan, arrangement or scheme of an Acquiring
Person (or an Affiliate or Associate of an Acquiring Person or of any
Person acting jointly or in concert with an Acquiring Person or an
Associate or Affiliate of an Acquiring Person) that has the purpose or
effect of avoiding of Section 0,
|
|
|
(c)
|
Any
Rights Certificate that represents Rights Beneficially Owned by a Person
described in Section 0 or 0 or transferred to any nominee of any such
Person, and any Rights Certificate issued upon transfer, exchange,
replacement or adjustment of any other Rights Certificate referred to in
this sentence, will contain the following
legend:
|
|
4.1
|
General
|
|
|
(a)
|
The
Corporation by this Agreement appoints the Rights Agent to act as agent
for the Corporation in accordance with the terms and conditions of this
Agreement, and the Rights Agent by this Agreement accepts such
appointment. The Corporation may from time to time appoint such
co-Rights Agents (“Co-Rights Agents”) as it
may deem necessary or desirable, subject to the approval of the Rights
Agent. In the event the Corporation appoints one or more
Co-Rights Agents, the respective duties of the Rights Agent and Co-Rights
Agents will be as the Corporation may determine with the approval of the
Rights Agent and the Co-Rights Agent. The Corporation agrees to
pay to the Rights Agent reasonable compensation for all services
rendered
|
|
|
by
it under this Agreement and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Agreement and the
exercise and performance of its duties under this Agreement (including the
fees and disbursements of any expert or advisor retained by the Rights
Agent with the approval of the Corporation). The Corporation
also agrees to indemnify the Rights Agent and its officers, employees,
agents and directors for and to hold them harmless against any loss,
liability, cost, claim, action, damage, suit or expense incurred without
gross negligence, bad faith or wilful misconduct on the part of the Rights
Agent for anything done or omitted by the Rights Agent in connection with
the acceptance and administration of this Agreement including the costs
and expenses of defending against any claim of liability, which right to
indemnification will survive the termination of this Agreement or the
resignation or removal of the Rights
Agent.
|
|
|
(b)
|
In
no event will the Rights Agent be liable for special, indirect,
consequential or punitive loss or damages of any kind whatsoever
(including but not limited to lost profits), even if the Rights Agent has
been advised of the possibility of such damages. Any liability
of the Rights Agent will be limited in the aggregate to an amount equal to
the annual fee paid by the Corporation pursuant to this
Agreement.
|
|
|
(c)
|
The
Rights Agent will be protected and will incur no liability for or in
respect of any action taken, suffered or omitted by it in connection with
its administration of this Agreement in reliance upon any certificate for
Common Shares or any Rights Certificate or certificate for other
securities of the Corporation, instrument of assignment or transfer, power
of attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be
genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper Person or
Persons.
|
|
|
(d)
|
The
Corporation will inform the Rights Agent in a reasonably timely manner of
events which may materially affect the administration of this Agreement by
the Rights Agent and will, upon written request of the Rights Agent,
provide the Rights Agent with an incumbency certificate with respect to
the then current directors of the Corporation and the officers of the
Corporation.
|
|
4.2
|
Merger
or Amalgamation or Change of Name of Rights
Agent
|
|
|
(a)
|
Any
corporation into which the Rights Agent or any successor Rights Agent may
be merged or amalgamated or with which it may be consolidated, or any
corporation resulting from any merger, amalgamation, statutory arrangement
or consolidation to which the Rights Agent or any successor Rights Agent
is a party, or any corporation succeeding to the stockholder services
business of the Rights Agent or any successor Rights Agent, will be the
successor to the Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section
0. In case at the time such successor Rights Agent succeeds to
the agency created by this Agreement
any
|
|
|
of
the Rights Certificates have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates
have not been countersigned, any successor Rights Agent may countersign
such Rights Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases
such Rights Certificates will have the full force provided in the Rights
Certificates and in this Agreement.
|
|
|
(b)
|
In
case at any time the name of the Rights Agent is changed and at such time
any of the Rights Certificates will have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Rights Certificates so countersigned; and in case at that
time any of the Right Certificates will not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in its prior
name or in its changed name and in all such cases such Right Certificates
will have the full force provided in the Rights Certificates and in this
Agreement.
|
|
4.3
|
Duties
of Rights Agent
|
|
|
(a)
|
the
Rights Agent may retain, at the Corporation’s expense, and consult with
legal counsel (who may be legal counsel for the Corporation) and the
opinion of such counsel will be full and complete authorization and
protection to the Rights Agent as to any action taken or omitted by it in
good faith and in accordance with such opinion and the Rights Agent, at
the Corporation’s expense, may also retain and consult with such other
experts or advisors as the Rights Agent shall consider necessary or
appropriate to properly carry out the duties and obligations imposed under
this Agreement and the Rights Agent will be entitled to act and rely in
good faith on the advice of any such expert or
advisor;
|
|
|
(b)
|
whenever
in the performance of its duties under this Agreement the Rights Agent
deems it necessary or desirable that any fact or matter be proved or
established by the Corporation prior to taking or suffering any action
under this Agreement, that fact or matter (unless other evidence in
respect of that fact or matter be in this Agreement specifically
prescribed) may be deemed to be conclusively proved and established by a
certificate signed by a Person believed by the Rights Agent to be any of
the Chief Executive Officer, the President, the Chief Financial Officer or
the Secretary of the Corporation and delivered to the Rights Agent; and
such certificate will be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such
certificate;
|
|
|
(c)
|
the
Rights Agent will be liable under this Agreement only for its own gross
negligence, bad faith or wilful
misconduct;
|
|
|
(d)
|
the
Rights Agent will not be liable for or by reason of any of the statements
of fact or recitals contained in this Agreement or in the certificates for
Common Shares or the Rights Certificates (except its countersignature of
those certificates) or be required to verify the same, but all such
statements and recitals are and will be deemed to have been made by the
Corporation only;
|
|
|
(e)
|
the
Rights Agent will not be under any responsibility in respect of the
validity of this Agreement or the execution and delivery of this Agreement
(except the due authorization, execution and delivery of this Agreement by
the Rights Agent) or in respect of the validity or execution of any Common
Share certificate or Rights Certificate (except its countersignature of
the certificates); nor will it be responsible for any breach by the
Corporation of any covenant or condition contained in this Agreement or in
any Rights Certificate; nor will it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void pursuant
to Section 0) or any adjustment required under the provisions of Section 0
or responsible for the manner, method or amount of any such adjustment or
the ascertaining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights after receipt of
the certificate contemplated by Section 0 describing any such adjustment);
nor will it by any act under this Agreement be deemed to make any
representation or warranty as to the authorization of any Common Shares to
be issued pursuant to this Agreement or any Rights or as to whether any
Common Shares will, when issued, be duly and validly authorized and issued
as fully paid and non-assessable;
|
|
|
(f)
|
the
Corporation agrees that it will perform, execute, acknowledge and deliver
or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this
Agreement;
|
|
|
(g)
|
the
Rights Agent is by this Agreement authorized and directed to accept
instructions in writing with respect to the performance of its duties
under this Agreement from any Person believed by the Rights Agent to be
the Chief Executive Officer, the President, the Chief Financial Officer or
the Secretary of the Corporation and to apply to such Persons for advice
or instructions in connection with its duties, and it will not be liable
for any action taken, omitted or suffered by it in good faith in
accordance with instructions of any such Person. It is
understood that instructions the Rights Agent shall, except where
circumstances make it impractical or the Rights Agent otherwise agrees, be
given in writing and, where not in writing, such instructions shall be
confirmed in writing as soon as reasonably practicable after the giving of
such instructions;
|
|
|
(h)
|
the
Rights Agent and any shareholder, director, officer or employee of the
Rights Agent may buy, sell or deal in Common Shares, Rights or other
securities of the
|
|
|
Corporation
or become pecuniarily interested in any transaction in which the
Corporation may be interested, or contract with or lend money to the
Corporation or otherwise act as fully and freely as though it were not
Rights Agent under this Agreement. Nothing in this Agreement
will preclude the Rights Agent from acting in any other capacity for the
Corporation or for any other legal entity;
and
|
|
|
(i)
|
the
Rights Agent may execute and exercise any of the rights or powers by this
Agreement vested in it or perform any duty under this Agreement either
itself or by or through its attorneys or agents, and the Rights Agent will
not be answerable or accountable for any act, omission, default, neglect
or misconduct of any such attorneys or agents or for any loss to the
Corporation resulting from any such act, omission, default, neglect or
misconduct, provided reasonable care was exercised in the selection and
continued employment of those attorneys and
agents.
|
|
4.4
|
Change
of Rights Agent
|
|
5.1
|
Redemption
of Rights
|
|
|
(a)
|
Subject
to the prior consent of the holders of Common Shares or Rights obtained as
set forth in Section 0 or 0, as applicable, the Board of Directors, acting
in good faith, may at any time prior to the occurrence of a Flip-in Event,
as to which the application of Section 0 has not been waived pursuant to
Section 0, elect to redeem all but not less than all of the then
outstanding Rights at a redemption price of $0.00001 per Right,
appropriately adjusted in a manner analogous to the applicable adjustment
provided for in Section 0, if an event of the type analogous to any of the
events described in Section 0 has occurred (such redemption price being in
this Agreement referred to as the “Redemption
Price”).
|
|
|
(b)
|
If
a Person acquires, pursuant to a Permitted Bid or a Competing Permitted
Bid or pursuant to an Exempt Acquisition, outstanding Common Shares, the
Board of Directors of the Corporation will, immediately upon such
acquisition and without further formality, be deemed to have elected to
redeem the Rights at the Redemption
Price.
|
|
|
(c)
|
Where
a Take-over Bid that is not a Permitted Bid or Competing Permitted Bid
expires, is withdrawn or otherwise terminated after the Separation Time
has occurred and prior to the occurrence of a Flip-in Event, the Board of
Directors may elect to redeem all of the outstanding Rights at the
Redemption Price.
|
|
|
(d)
|
If
the Board of Directors elects to or is deemed to have elected to redeem
the Rights (i) the right to exercise the Rights will thereupon, without
further action and without notice, terminate and the only right thereafter
of the holders of Rights will be to receive the Redemption Price, and (ii)
subject to Section 0, no further Rights will thereafter be
issued.
|
|
|
(e)
|
Within
10 Business Days of the Board of Directors electing or having been deemed
to have elected to redeem the Rights, the Corporation will give notice of
redemption to the holders of the then outstanding Rights by mailing such
notice to each such holder at his last address as it appears upon the
Rights Register of the Rights Agent, or, prior to the Separation Time, on
the register maintained by the Corporation’s transfer agent or transfer
agents. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be
made.
|
|
|
(f)
|
Upon
the Rights being redeemed pursuant to Section 0, all the provisions of
this Agreement will continue to apply as if the Separation Time had not
occurred and Rights Certificates representing the number of Rights held by
each holder of record of Common Shares as of the Separation Time had not
been mailed to each such holder and for all purposes of this Agreement,
the Separation Time will be deemed not to have occurred and the Rights
shall remain attached to the outstanding Common Shares, subject to and in
accordance with the provisions of this
Agreement.
|
|
5.2
|
Waiver
of Flip-In Events
|
|
|
(a)
|
Subject
to the prior consent of the holders of Common Shares or Rights obtained as
set forth in Section 0 or 0, as applicable, the Board of Directors may, at
any time prior to the occurrence of a Flip-in Event that would occur by
reason of an acquisition of Common Shares otherwise than pursuant to a
Take-over Bid made by means of a take-over bid circular to all holders of
Common Shares or otherwise than in the circumstances set out in Section 0,
waive the application of Section 0 to such Flip-in Event by written notice
delivered to the Rights Agent.
|
|
|
(b)
|
The
Board of Directors may, at any time prior to the occurrence of a Flip-in
Event that would occur as a result of a Take-over Bid made by way of a
take-over bid circular sent to all holders of Common Shares, waive the
application of Section 0 to such Flip-in Event by written notice delivered
to the Rights Agent; provided, however, that if the Board of Directors
waive the application of Section 0 to such a Flip-in Event, the Board of
Directors will be deemed to have waived the application of Section 0 to
any other Flip-in Event occurring by reason of any Take-over Bid which is
made by means of a take-over bid circular to all holders of Common Shares
prior to the expiry of any Take-over Bid in respect of which a waiver is,
or is deemed to have been, granted under this Section
0.
|
|
|
(c)
|
The
Board of Directors may waive the application of Section 0 in respect of
the occurrence of any Flip-in Event if the Board of Directors have
determined that a Person became an Acquiring Person by inadvertence and
without any intention to become, or knowledge that it would become, an
Acquiring Person under this Agreement and, in the event that such a waiver
is granted by the Board of Directors, such Common Share Acquisition Date
will be deemed not to have occurred. Any such waiver pursuant
to this Section 0 must be on the condition that such Person, within 14
days after the foregoing determination by the Board of Directors or such
earlier or later date as the Board of Directors may determine (the “Disposition Date”), has
reduced its Beneficial Ownership of Common Shares such that the Person is
no longer an Acquiring Person. If the Person remains an
Acquiring Person at the close of business on the Disposition Date, the
Disposition Date will be deemed to be the date of occurrence of a further
Common Share Acquisition Date and Section 0 will apply
thereto.
|
|
5.3
|
Expiration
|
|
5.4
|
Issuance
of New Rights Certificates
|
|
5.5
|
Supplements
and Amendments
|
|
|
(a)
|
The
Corporation may from time to time prior to or after the Separation Time
supplement or amend this Agreement without the approval of any holders of
Rights or Common Shares in order to correct any clerical or typographical
error or to maintain the validity and effectiveness of this Agreement as a
result of any change in applicable laws, rules or regulatory
requirements. The Corporation may, prior to the date of the
shareholders meeting referred to in Section 0, supplement or amend this
Agreement without the approval of any holders of Rights or Common Shares
in order to make any changes which the Board of Directors acting in good
faith may deem necessary or desirable. Notwithstanding anything
in this Section 0 to the contrary, no such supplement or amendment will be
made to the provisions of 0 except with the written concurrence of the
Rights Agent to such supplement or
amendment.
|
|
|
(b)
|
Subject
to Section 0, the Corporation may, with the prior consent of the holders
of Common Shares, obtained as set out below, at any time prior to the
Separation Time, amend, vary or rescind any of the provisions of this
Agreement and the Rights (whether or not such action would materially
adversely affect the interest of the holders of Rights generally), in
order to effect any amendments, variations or rescissions of any of the
provisions of this Agreement which the Board of Directors, acting in good
faith, considers necessary or
desirable.
|
|
|
(c)
|
Subject
to Section 0, the Corporation may, with the prior consent of the holders
of Rights obtained as set out below, at any time after the Separation Time
and before the Expiration Time, amend, vary or rescind any of the
provisions of this Agreement and the Rights (whether or not such action
would materially adversely affect the interest of the holders of Rights
generally).
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(d)
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Any
amendments made by the Corporation to this Agreement pursuant to Section 0
which are required to maintain the validity and effectiveness of this
Agreement as a result of any change in any applicable laws, rules or
regulatory requirements will:
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|
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(i)
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if
made before the Separation Time, be submitted to the holders of Common
Shares at the next meeting of holders of Common Shares and the holders of
Common Shares may, voting as set out below, confirm or reject such
amendment; and
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(ii)
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if
made after the Separation Time, be submitted to the holders of Rights
(voting as set out below) for confirmation or
rejection.
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(e)
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Any
approval of the holders of Common Shares required under this Agreement
will be deemed to have been given if the action requiring such approval is
approved by (i) affirmative votes of the holders of Common Shares present
or represented in person or by proxy and entitled to vote at a meeting of
those holders duly held in accordance with applicable laws and the by-laws
of the Corporation and representing a majority of the votes cast in
respect of that action or (ii) a written instrument signed by holders of
over 50% of the outstanding Common Shares that are held by Independent
Shareholders.
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(f)
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Any
approval of the holders of Rights required under this Agreement will be
deemed to have been given if the action requiring such approval is
authorized by the affirmative votes of the holders of Rights present or
represented at and entitled to be voted at a meeting of the holders of
Rights and representing a majority of the votes cast in respect of that
action. For the purposes of this Agreement, each outstanding
Right (other than Rights which are void pursuant to the provisions of this
Agreement) will be entitled to one vote, and the procedures for the
calling, holding and conduct of the meeting will be those, as nearly as
may be, which are provided in the Corporation’s by-laws, the Corporations
Act and any other applicable law, rule or regulation with respect to
meetings of shareholders of the
Corporation.
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(g)
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The
Corporation will give notice in writing to the Rights Agent of any
supplement, amendment, deletion, variation or rescission to this Agreement
pursuant to this Section 0 within five Business Days of the date of any
such supplement, amendment, deletion, variation or rescission, provided
that failure to give such notice, or any defect in that notice, will not
affect the validity of any such supplement, amendment, deletion, variation
or rescission.
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5.6
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Fractional
Rights and Fractional Common Shares
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(a)
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The
Corporation will not be required to issue fractions of Rights or to
distribute Rights Certificates which evidence fractional Rights and no
amount will be paid to the registered holders of the Rights Certificates
with regard to which such fractional Rights would otherwise be
issuable.
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(b)
|
The
Corporation will not be required to issue fractions of Common Shares or
other securities upon exercise of the Rights or to distribute certificates
which evidence fractional Common Shares or other securities. In
lieu of issuing fractional Common Shares or other securities, the
Corporation will, subject to the provisions of the constating documents of
the Corporation, pay to the registered holders of Rights Certificates, at
the time such Rights are exercised as in this Agreement provided, an
amount in cash equal to the fraction of the Market Price of one Common
Share or other security that the fraction of a Common Share or other
security that would otherwise be issuable upon the exercise of such Right
is of one whole Common Share or other security at the date of such
exercise.
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(c)
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The
Rights Agent shall have no obligation to make any payments in lieu of
issuing fractions of Common Shares or other securities pursuant to
paragraph (b) unless and until the Corporation shall have provided to the
Rights Agent the amount of funds to be paid in lieu of issuing such
fractional Common Shares or other
securities.
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5.7
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Rights
of Action
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5.8
|
Notice
of Proposed Actions
|
|
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(a)
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to
waive the application of Section 0 to a particular Flip-In Event;
or
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(b)
|
to
effect the liquidation, dissolution or winding up of the Corporation or
the sale of all or substantially all of the Corporation’s
assets,
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5.9
|
Notices
|
| Ur-Energy Inc. | |
| Suite 200, 10758 West Centennial Road | |
| Littleton CO 80127 | |
| USA | |
| Attention: | Paul Goss, General Counsel |
| Facsimile: | (720) 981-4588 |
| Equity Transfer & Trust Company | |
| 200 University Avenue, Suite 400 | |
| Toronto, ON M5H 4H1 | |
| Attention: | Corporate Trust Services |
| Facsimile: | (416) 361-0470 |
|
5.10
|
Declaration
as to Non-Canadian Holders
|
|
5.11
|
Costs
of Enforcement
|
|
5.12
|
Regulatory
Approvals
|
|
5.13
|
Successors
|
|
5.14
|
Benefits
of this Agreement
|
|
5.15
|
Governing
Law
|
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5.16
|
Language
|
|
5.17
|
Severability
|
|
5.18
|
Effective
Date; Reconfirmation
|
|
|
(a)
|
This
Agreement is effective and in full force and effect in accordance with its
terms from and after the date of this Agreement. If this
Agreement is not ratified and confirmed by resolution passed by a majority
of the votes cast by holders of Common Shares of the Corporation who vote
in respect of the ratification and confirmation of this Agreement at a
meeting of the Corporation’s shareholders to be held on or prior to May 7,
2009 or any adjournment thereof, then this Agreement and all outstanding
Rights will terminate and be void and of no further force and effect on
and from that date which is the earlier of (A) the date of termination of
the meeting called to consider the ratification and confirmation of this
Agreement under this Section 0 and (B) May 7,
2009.
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|
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(b)
|
This
Agreement must be reconfirmed by a resolution passed by a majority of
greater than 50 percent of the votes cast by all holders of Common Shares
who vote in respect of such reconfirmation at the annual meeting of the
Corporation to be held in 2012 and the annual meeting of the Corporation
to be held in 2015. If the Agreement is not so reconfirmed or
is not presented for reconfirmation at each such annual meeting, this
Agreement and all outstanding Rights will terminate and be void and of no
further force and effect on and from the date of termination of such
annual meeting; provided that termination will not occur if a Flip-in
Event has occurred
|
|
|
(other
than a Flip-in Event which has been waived pursuant to Section 0), prior
to the date upon which this Agreement would otherwise terminate pursuant
to this Section 0.
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5.19
|
Determination
and Actions by the Board of
Directors
|
|
5.20
|
Time
of the Essence
|
|
5.21
|
Execution
In Counterparts
|
|
UR-ENERGY
INC.
|
||
| By: |
/s/ W. Willliam
Boberg
|
|
|
EQUITY
TRANSFER & TRUST COMPANY
|
||
| By: |
/s/ Shelley
Martin
|
|
| By: |
/s/ Carol
Mikos
|
|
| Certificate No. ________ |
_______ Rights
|
|
Date:
|
|
|
UR-ENERGY
INC.
|
|
|
By:
Authorized
Signature
|
|
|
Countersigned:
|
|
|
EQUITY
TRANSFER & TRUST COMPANY
|
|
|
By:
Authorized
Signature
|
|
FOR
VALUE RECEIVED the undersigned by this Agreement sells, assigns and
transfers unto
|
|
|
(Please
print name and address of transferee)
|
|
|
this
Rights Certificate, together with all right, title and interest in the
Rights Certificate and does hereby irrevocably constitute and appoint
_____________________ attorney, to transfer the within Rights
Certificate on the books of the Corporation, with full power of
substitution.
|
|
|
Dated: _______________________
|
|
|
Signature
Guaranteed:
|
_____________________________
Signature
(Signature
must correspond to name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement or any
change whatsoever.)
|
| ____________________________ | |
|
Signature
must be Signature Guaranteed by a Canadian Schedule 1 Bank or a member of
a recognized Medallion Guarantee Program.
|
|
|
(To
be completed if true)
|
|
|
The
undersigned by this Agreement represents, for the benefit of all holders
of Rights and Common Shares, that the Rights evidenced by this Rights
Certificate are not, and, to the knowledge of the undersigned, have never
been, Beneficially Owned by an Acquiring Person or an Affiliate or
Associate of an Acquiring Person or by any Person acting jointly or in
concert with any of the foregoing (as defined in the Rights
Agreement).
|
|
|
Dated: ______________________
|
______________________________
Signature
|
|
TO:
|
UR-ENERGY INC. |
|
AND
TO:
|
EQUITY TRANSFER & TRUST COMPANY |
|
(Name)
|
|
(Address)
|
|
(Social
Insurance, Social Security or Other Taxpayer Identification
Number)
|
|
(Name)
|
|
(Address)
|
|
(Social
Insurance, Social Security or Other Taxpayer Identification
Number)
|
|
Dated: __________
|
|
|
Signature
Guaranteed:
______________________________________________________________
|
_____________________________________
Signature
(Signature
must correspond to name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement or any
change whatsoever.)
|
|
Dated: ___________________________
|
____________________________________
Signature
|