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Exhibit 4.1
WARRANT INDENTURE
Providing for the Issue of Warrants
Between
WESTLINKS RESOURCES LTD.
- and -
MONTREAL TRUST COMPANY
OF CANADA
Dated as of November o, 2000
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TABLE OF CONTENTS
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Page
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ARTICLE 1
1.1 Definitions................................................................1
1.2 Gender and Number..........................................................4
1.3 Interpretation Not Affected by Headings, Etc...............................4
1.4 Day Not a Business Day.....................................................4
1.5 Time of the Essence........................................................5
1.6 Applicable Law.............................................................5
ARTICLE 2
2.1 Issue of Warrants..........................................................5
2.2 Form and Terms of Warrants.................................................5
2.3 Warrantholder not a Shareholder............................................6
2.4 Warrants to Rank Pari Passu................................................6
2.5 Signing of Warrants........................................................6
2.6 Issue of Warrants..........................................................6
2.7 Certification by the Trustee...............................................6
2.8 Issue in Substitution for Warrants Lost, Etc...............................7
2.9 Exchange of Warrants.......................................................7
2.10 Charges for Exchange.......................................................7
2.11 Ownership and Transfer of Warrants.........................................8
2.12 Evidence of Ownership......................................................8
ARTICLE 3
3.1 Method of Exercise of Warrants.............................................8
3.2 Effect of Exercise of Warrants.............................................9
3.3 Subscription for Less than Entitlement; Fractions..........................9
3.4 Expiration of Warrants....................................................10
3.5 Cancellation of Surrendered Warrants......................................10
3.6 Accounting and Recording..................................................10
ARTICLE 4
4.1 Adjustment of Subscription Rights.........................................11
4.2 Adjustment of Exercise Price..............................................12
4.3 Adjustment Rules..........................................................15
4.4 Proceedings Prior to any Action Requiring Adjustment......................16
4.5 No Adjustment for Certain Transactions....................................16
4.6 Notice of Adjustment of Exercise Price and Subscription Rights............17
4.7 Protection of Trustee.....................................................17
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ARTICLE 5
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5.1 Optional Purchase by the Corporation......................................18
5.2 General Covenants.........................................................18
5.3 Trustee's Remuneration and Expenses.......................................19
5.4 Securities Qualification Requirements.....................................19
5.5 Performance of Covenants by Trustee.......................................19
ARTICLE 6
6.1 Suits by Warrantholders...................................................20
6.2 Immunity of Shareholders..................................................20
6.3 Limitation of Liability...................................................20
6.4 Waiver of Default.........................................................20
ARTICLE 7
7.1 Right to Convene Meetings.................................................21
7.2 Notice....................................................................21
7.3 Chairman..................................................................21
7.4 Quorum....................................................................21
7.5 Power to Adjourn..........................................................22
7.6 Show of Hands.............................................................22
7.7 Poll and Voting...........................................................22
7.8 Regulations...............................................................22
7.9 Corporation and Trustee May be Represented................................23
7.10 Powers Exercisable by Extraordinary Resolution............................23
7.11 Meaning of Extraordinary Resolution.......................................24
7.12 Powers Cumulative.........................................................25
7.13 Minutes...................................................................25
7.14 Instruments in Writing....................................................25
7.15 Binding Effect of Resolutions.............................................25
ARTICLE 8
8.1 Provisions for Supplemental Indentures for Certain Purposes...............26
8.2 Successor Corporations....................................................27
8.3 Regulatory Approvals......................................................27
ARTICLE 9
9.1 Trust Indenture Legislation...............................................27
9.2 Rights and Duties of Trustee..............................................27
9.3 Evidence, Experts and Advisers............................................28
9.4 Documents, Money, etc. Held by Trustee....................................29
9.5 Actions by Trustee to Protect Interest....................................29
9.6 Trustee not Required to Give Security.....................................29
9.7 Protection of Trustee.....................................................29
9.8 Trustee Not Required to Give Notice of Default............................30
9.9 Replacement of Trustee; Successor by Merger...............................30
9.10 Conflict of Interest......................................................31
9.11 Acceptance of Trust.......................................................32
9.12 Trustee Not to be Appointed Receiver......................................32
9.13 Indemnity.................................................................32
ARTICLE 10
10.1 Form of Warrant...........................................................32
ARTICLE 11
11.1 Notice to the Corporation and the Trustee.................................32
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11.2 Notice to Warrantholders..................................................33
11.3 Ownership and Transfer of Warrants........................................34
11.4 Counterparts..............................................................34
11.5 Satisfaction and Discharge of Indenture...................................34
11.6 Provisions of Indenture and Warrants for the Sole Benefit of Parties and
Warrantholders ...........................................................34
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THIS WARRANT INDENTURE made effective as of November o, 2000;
BETWEEN:
WESTLINKS RESOURCES LTD., a corporation incorporated under the
laws of Alberta, with an office in the City of Calgary, in the
Province of Alberta (hereinafter called the "Corporation")
OF THE FIRST PART
- and -
MONTREAL TRUST COMPANY OF CANADA, a trust company incorporated
under the laws of Canada, with an office in the City of Calgary,
in the Province of Alberta (hereinafter called the "Trustee")
OF THE SECOND PART
WHEREAS:
A. The Corporation proposes to issue Warrants included in Units to be
distributed by the Corporation pursuant to a prospectus to be dated on or about
November o, 2000;
B. For such purpose the Corporation wishes to make provision for the
creation and issue of Warrants constituted and issued in the manner hereinafter
provided;
C. All things necessary have been done and performed to make the
Warrants, when certified by the Trustee and issued as in this Indenture
provided, legal, valid and binding upon the Corporation with the benefits and
subject to the terms of this Indenture;
NOW THEREFORE THIS INDENTURE WITNESSES that for good and valuable
consideration mutually given and received, the receipt and sufficiency of which
is hereby acknowledged, it is hereby agreed and declared as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this Indenture, and in all indentures supplemental hereto:
(a) "Adjustment Period" means the period from and including the Issue Date
of the Warrants, up to and including the Time of Expiry;
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(b) "Applicable Legislation" means the provisions of the Business
Corporations Act (Alberta) and any other statute of Alberta, and of
regulations under any such named or other statute, relating to trust
indentures or to the rights, duties and obligations of trustees and of
corporations under trust indentures, to the extent that such
provisions are at the time in force and applicable to this indenture;
(c) "Business Day" means a day which is not Saturday or Sunday or a legal
holiday in any of the cities where Warrant Certificates may be
surrendered to the Trustee or to any Warrant Agency pursuant to the
provisions hereof;
(d) "Common Share" means a Common Share in the capital of the Corporation
as such share existed at the close of business as of the date of this
Indenture;
(e) "Corporation" means Westlinks Resources Ltd. and its lawful successors
from time to time;
(f) "Corporation's auditors" means a firm of chartered accountants duly
appointed as auditors of the Corporation;
(g) "Counsel" means a barrister or solicitor or a firm of barristers and
solicitors (who may be counsel to the Corporation) acceptable to the
Trustee;
(h) "Current Market Price" at any date shall mean the weighted average
trading price per share for Common Shares for any 30 consecutive
Trading Days selected by the Corporation and commencing not more than
45 Trading Days before such date on The Canadian Venture Exchange (the
"CDNX"), or, if the Common Shares are not then listed thereon, on such
stock exchange on which the Common Shares are listed as may be
selected for such purpose by the directors, or if such Common Shares
are not listed on any stock exchange, then on the over-the-counter
market. The weighted average price shall be determined by dividing the
aggregate sale price of all such Common Shares sold on the said
exchange or market, as the case may be, during the said 30 consecutive
Trading Days by the total number of such Common Shares so sold. In the
event the foregoing cannot be determined, then the Current Market
Price shall be established by the board of directors;
(i) "Director" means a director of the Corporation for the time being and,
unless otherwise specified herein, reference to action "by the
Directors" means action by the directors of the Corporation as a board
or, whenever duly empowered, action by any committee of such board;
(j) "Effective Date" means November o, 2000 or such other date as the
Corporation and the Trustee may in writing agree;
(k) "Equity Shares" means the Common Shares and any shares of any other
class or series of the Corporation which may from time to time be
authorized for issue if by their terms such shares confer on the
holders thereof the right to participate in the distribution of assets
upon the voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation beyond a fixed sum plus accrued
dividends;
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(l) "Exercise Date" with respect to any Warrant means the date on which
the Warrant Certificate representing such Warrant is surrendered for
exercise, together with full payment of the Exercise Price, in
accordance with the provisions of Article 3;
(m) "Exercise Price" at any time means the price at which a Common Share
may be purchased by the exercise of a Warrant which is currently $o,
subject to adjustment in accordance with the provisions of Article 4,
in which case it shall mean the adjusted price in effect at such time;
(n) "Extraordinary Resolution" has the meaning attributed thereto in
Section 7.11;
(o) "Issue Date" means the date upon which the Warrants are issued;
(p) "Person" means an individual, body corporate, partnership, trust,
trustee, executor, administrator, legal representative or any
unincorporated organization;
(q) "Shareholder" means a holder of record of one or more Common Shares;
(r) "Shares" means Common Shares provided that, in the event of any
adjustment of subscription rights pursuant to Article 4, then "Shares"
shall thereafter mean the shares or other securities or property
purchasable upon exercise of the Warrants as a result of any such
adjustment;
(s) "this Warrant Indenture", "this Indenture", "herein", "hereby" and
similar expressions mean and refer to this Indenture and any
indenture, deed or instrument supplemental hereto; and the expressions
"Article", "Section" and "subsection" followed by a number again mean
and refer to the specified Article, Section or subsection of the
Indenture;
(t) "Time of Expiry" means, with respect to a Warrant, 4:30 p.m. in the
afternoon, Calgary local time, on May o, 2001;
(u) "Trading Day" with respect to a stock exchange means a day on which
such exchange is open for the transaction of business and with respect
to the over-the-counter market means a day on which the CDNX is open
for the transaction of business;
(v) "Transfer Agent" means the transfer agent for the time being of the
Common Shares;
(w) "Trustee" means Montreal Trust Company of Canada, or its successors
for the time being in the trusts hereby created;
(x) "Unit" means one Common Share and one Warrant;
(y) "Warrant" means a share purchase warrant referred to in Article 2 and
issued and certified hereunder and for the time being outstanding
entitling the holder thereof,
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upon payment of the Exercise Price to purchase on or before the Time
of Expiry (before any adjustment pursuant to Article 4 hereof) one
Common Share;
(z) "Warrant Agency" means the principal office of the Trustee in the City
of Calgary or such other location as may be determined pursuant to
Section 3.1(c);
(aa) "Warrant Certificate" means the definitive certificate evidencing
Warrants;
(bb) "Warrantholders" or "holders" without reference to Common Shares means
the persons for the time being who are bearers of Warrants;
(cc) "Warrantholders' Request" means an instrument signed in one or more
counterparts by Warrantholders entitled to purchase in the aggregate
not less than 10% of the aggregate number of Shares which could be
purchased pursuant to all Warrants then unexercised and outstanding
requesting the Trustee to take some action or proceeding specified
therein; and
(dd) "written order of the Corporation", "written request of the
Corporation", "written consent of the Corporation" and "certificate of
the Corporation" mean, respectively, a written order, request, consent
and certificate signed in the name of the Corporation by its
President, its Secretary or a Director, and may consist of one or more
instruments so executed.
1.2 Gender and Number
Unless herein otherwise expressly provided or unless the context
otherwise requires, words importing the singular include the plural and vice
versa and words importing gender include all genders.
1.3 Interpretation Not Affected by Headings, Etc.
The division of this Indenture into Articles and Sections, the
provision of a table of contents and the insertion of headings are for the
convenience of reference only and shall not affect the construction or
interpretation of this Indenture.
1.4 Day Not a Business Day
In the event that any day on or before which any action is required to
be taken hereunder is not a Business Day, then such action shall be required to
be taken at or before the requisite time on the next succeeding day that is a
Business Day.
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1.5 Time of the Essence
Time shall be of the essence in this Indenture.
1.6 Applicable Law
This Indenture and the Warrant Certificates shall be construed in
accordance with the laws of the Province of Alberta and the laws of Canada
applicable therein and shall be treated in all respects as Alberta contracts.
ARTICLE 2
ISSUE OF WARRANTS
2.1 Issue of Warrants
(a) There are hereby created and authorized to be issued up to 1,150,000
Warrants entitling the holders thereof to purchase up to an aggregate
of 1,150,000 Common Shares (plus such additional indeterminate number
of Shares as may be issued pursuant to the adjustments referred to in
Article 4 hereof), at the times and upon the terms and conditions
herein set forth.
(b) Definitive Warrant Certificates, evidencing whole Warrants authorized
pursuant to Section 2.1(a) above shall forthwith be executed by the
Corporation and delivered to the Trustee and shall thereupon be
certified by or on behalf of the Trustee and shall be delivered by the
Trustee to or upon the written order of the Corporation.
2.2 Form and Terms of Warrants
(a) The Warrants shall be substantially in the form set out in Schedule
"A" hereto, shall bear such distinguishing letters and numbers as the
Corporation may, with the approval of the Trustee, prescribe, and
shall be issuable in any denomination excluding fractions. The
Warrants shall be dated as of the Issue Date (including all
replacements issued in accordance with this Indenture) or such other
date as the Corporation may designate. Notwithstanding any adjustments
pursuant to Article 4 hereof, all Warrants and replacement Warrants
shall express the number of Warrant(s) evidenced thereby and the
Exercise Price thereof as if such Warrant were initially issued as of
the date hereof.
(b) Each Warrant authorized to be issued hereunder shall entitle the
holder at any time after the Issue Date until the Time of Expiry and
upon payment of the Exercise Price thereof to purchase (subject to
adjustment in accordance with Article 4) one Common Share.
(c) No fractional Warrants shall be issued or otherwise provided for and a
holder of any Warrant shall not be entitled to any cash or other
consideration in lieu of any fractional interest in a Warrant or claim
thereto.
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(d) The Exercise Price and the number of Shares which may be purchased
pursuant to the Warrants shall be adjusted in the events and in the
manner specified in Article 4.
2.3 Warrantholder not a Shareholder
Nothing in this Indenture or in the holding of a Warrant itself, or
otherwise, shall confer or be construed as conferring upon a Warrantholder any
right or interest whatsoever as a Shareholder or any other shareholder of the
Corporation, including, but not limited to, the right to vote at, to receive
notice of, or to attend, meetings of shareholders or any other proceedings of
the Corporation, or the right to receive dividends and other distributions.
2.4 Warrants to Rank Pari Passu
All Warrants shall rank pari passu, whatever may be the actual date of
issue of the same.
2.5 Signing of Warrants
The Warrants shall be signed by any one or more of the President, the
Secretary, or any Director of the Corporation. The signatures of such officers
or Directors may be mechanically or photostatically reproduced in facsimile and
Warrant Certificates bearing such facsimile signatures shall be binding upon the
Corporation as if they had been manually signed by such officers.
Notwithstanding that any of the persons whose manual or facsimile signature
appears on any Warrant Certificate as one of such officers or Directors may no
longer hold office at the date of such Warrant Certificate or at the date of
certification or delivery thereof, any Warrant Certificate signed as aforesaid
shall, subject to Sections 2.6 and 2.7, be valid and binding upon the
Corporation and the holder thereof shall be entitled to the benefits of this
Indenture.
2.6 Issue of Warrants
On the Issue Date of the Warrants, the Warrants in definitive form
authorized and created in accordance with Section 2.1 shall be certified by or
on behalf of the Trustee and shall be delivered by the Trustee to or upon the
written order of the Corporation.
2.7 Certification by the Trustee
(a) No Warrant shall be issued or, if issued, shall be valid for any
purpose or entitle the holder to the benefit thereof until it has been
certified by manual signature by or on behalf of the Trustee
substantially in the form of the certificate set out in Article 10 or
in some other form approved by the Corporation and the Trustee, and
such certification by the Trustee upon any Warrant shall be conclusive
evidence as against the Corporation that the Warrant so certified has
been duly issued hereunder and that the holder is entitled to the
benefits hereof.
(b) The certification of the Trustee on Warrants issued hereunder shall
not be construed as a representation or warranty by the Trustee as to
the validity of this Indenture or of the Warrants (except the due
certification thereof) and the Trustee shall in no
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respect be liable or answerable for the use made of the Warrants or
any of them or of the consideration therefor except as otherwise
specified herein.
2.8 Issue in Substitution for Warrants Lost, Etc.
(a) In case any of the Warrants shall become mutilated or be lost,
destroyed or stolen, the Corporation, subject to applicable law, shall
issue and thereupon the Trustee shall certify and deliver, a new
Warrant of like tenor as the one mutilated, lost, destroyed or stolen
in exchange for and in place of and upon cancellation of such
mutilated Warrant, or in lieu of and in substitution for such lost,
destroyed or stolen Warrant, and the substituted Warrant shall be in
the form approved by the Trustee and shall be entitled to the benefits
hereof and shall rank equally in accordance with its terms with all
other Warrants issued or to be issued hereunder.
(b) The applicant for the issue of a new Warrant pursuant to this Section
2.8 shall bear the cost of the issue thereof and in case of loss,
destruction or theft shall, as a condition precedent to the issue
thereof, furnish to the Corporation and to the Trustee such evidence
of ownership and of the loss, destruction or theft of the Warrant so
lost, destroyed or stolen as shall be satisfactory to the Corporation
and to the Trustee in their sole discretion, and such applicant may
also be required to furnish indemnity or security in amount and form
satisfactory to the Corporation and the Trustee in their discretion
and shall pay the reasonable charges of the Corporation and the
Trustee in connection herewith.
2.9 Exchange of Warrants
(a) Warrants to purchase any specified number of Shares may, upon
compliance with the reasonable requirements of the Trustee, be
exchanged for another Warrant or Warrants of like tenor and entitling
the holder thereof to purchase in the aggregate the same number of
Shares as are purchasable under the Warrant or Warrants so exchanged.
(b) Warrants may be exchanged only at any Warrant Agency provided for in
Section 3.1(c) or at any other place that is designated by the
Corporation with the approval of the Trustee. Any Warrant tendered for
exchange shall be cancelled and surrendered by the Warrant Agency to
the Trustee.
2.10 Charges for Exchange
Except as otherwise herein provided, any Warrant Agency shall charge
to the holder requesting an exchange a reasonable sum for each new Warrant
issued, and payment of such charges and reimbursement of the Trustee or the
Corporation for any and all stamp taxes or governmental or other charges
required to be paid shall be made by such holder as a condition precedent to
such exchange.
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2.11 Ownership and Transfer of Warrants
Warrants shall be negotiable and title thereto shall pass by delivery.
The Corporation and the Trustee may deem and treat the holder of any Warrant as
the absolute holder and owner of such Warrant for all purposes and the
Corporation and the Trustee shall not be affected by any notice of knowledge to
the contrary. The holder of any Warrant shall be entitled to the rights
evidenced by such Warrant free from all equities or rights of set-off or
counterclaim between the Corporation and the original or any intermediate holder
thereof and all persons may act accordingly and the receipt of any such holder
for the Shares purchasable pursuant thereto shall be a good discharge to the
Corporation and the Trustee for the same and neither the Corporation nor the
Trustee shall be bound to inquire into the title of any such holder.
2.12 Evidence of Ownership
(a) Upon receipt of a certificate of any bank, trust company or other
depository satisfactory to the Trustee stating that the Warrants
specified therein have been deposited by a named person with such
bank, trust company or other depository and will remain so deposited
until the expiry of the period specified therein, the Corporation and
the Trustee may treat the person so named as the owner, and such
certificate as sufficient evidence of the ownership by such person of
such Warrants during such period for the purpose of any
Warrantholders' Request, requisition, direction, consent, instrument
or other document to be made, signed or given by the holder of the
Warrants so deposited.
(b) The Corporation and the Trustee may accept as sufficient evidence of
the fact and date of the signing of any Warrantholders' Request,
requisition, direction, consent, instrument or other document to be
made, signed or given by any person either the signature as witness of
any officer of any trust company, bank or depository satisfactory to
the Trustee, the certificate of any notary public or other officer
authorized to take acknowledgements of deeds to be recorded at the
place where such certificate is made that the person signing
acknowledged to him the execution thereof, or a statutory declaration
of a witness to such execution.
ARTICLE 3
EXERCISE OF WARRANTS
3.1 Method of Exercise of Warrants
(a) The holder of any Warrant may exercise the right evidenced thereby
conferred on such holder to purchase Shares by surrendering, prior to
the Time of Expiry, to the Warrant Agency:
(a) the Warrant Certificate, with a duly completed and executed
subscription in substantially the form set out in Article 10; and
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(b) cash, certified cheque, bank draft or money order, or such other
method of payment as the Trustee, in its discretion, shall
accept, in lawful money of Canada payable to or to the order of
the Trustee at par in the City of Calgary where such Warrant is
surrendered for the Exercise Price with respect to the Shares
subscribed for.
A Warrant with the duly completed and executed subscription referred
to in Section 3.1(a)(i), together with the payment of the subscription
price of the Shares subscribed for and referred to in Section
3.1(a)(ii), shall be deemed to be surrendered only upon personal
delivery thereof or, if sent by mail or other means of transmission,
upon actual receipt thereof at, in each case, any Warrant Agency
provided for in Section 3.1(c) where surrendered.
(b) Any subscription referred to in Section 3.1(a) shall be signed by the
Warrantholder and shall specify the number of Shares which the holder
desires to purchase (being not more than those which the holder is
entitled to purchase pursuant to the Warrant Certificate(s)
surrendered), the person or persons in whose name or names such Shares
are to be issued, and the mailing address for the Shares to be issued.
If any of the Shares subscribed for are to be issued to a person or
persons other than the Warrantholder, the Warrantholder shall pay to
the Corporation or the Warrant Agency on behalf of the Corporation,
all applicable transfer or similar taxes and the Corporation shall not
be required to issue or deliver certificates evidencing Shares unless
or until such Warrantholder shall have paid to the Corporation or the
Warrant Agency on behalf of the Corporation the amount of such tax or
shall have established to the satisfaction of the Corporation that
such tax has been paid or that no tax is due.
(c) In connection with the exchange of Warrants and the exercise of
Warrants and compliance with such other terms and conditions hereof as
may be required, the Corporation shall provide for the Warrant Agency
in Calgary and at any other place or places which may be designated by
the Corporation (with the approval of the Trustee, acting reasonably)
at which Warrant Certificates may be surrendered for exchange or
Warrants exercised. The Corporation shall give notice to the Trustee
of any change of Warrant Agency.
3.2 Effect of Exercise of Warrants
Upon compliance by the holder of any Warrant Certificate with the
provisions of Section 3.1, and subject to Section 3.4, the Shares subscribed for
pursuant to the exercise of the Warrant shall be issued in accordance with the
terms hereof.
3.3 Subscription for Less than Entitlement; Fractions
The holder of any Warrant may subscribe for and purchase a number of
Shares less than the number which the holder is entitled to purchase pursuant to
the surrendered Warrant provided that, in no event shall fractional Shares be
issued with regard to Warrants exercised. In the event of any purchase of a
number of Shares less than the number which the holder is entitled to purchase,
the holder of the Warrant upon exercise thereof shall, in addition, be entitled
to receive, without charge therefor, a new Warrant Certificate in respect of the
balance of the Shares which such
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holder was entitled to purchase pursuant to the surrendered Warrant
Certificate(s) and which were not then purchased.
3.4 Expiration of Warrants
After the Time of Expiry, all rights under any Warrant in respect of
which the right of subscription and purchase herein and therein provided for
shall not theretofore have been exercised in accordance herewith and therewith
shall wholly cease and terminate and such Warrant shall be void and of no
effect.
3.5 Cancellation of Surrendered Warrants
All Warrants surrendered to Warrant Agencies pursuant to Sections 2.8,
2.9 or 3.1 shall be returned to the Trustee for cancellation and, after the
expiry of any period of retention prescribed by law, destroyed by the Trustee,
and, upon the request of the Corporation, the Trustee shall furnish the
Corporation with a destruction certificate identifying the Warrant Certificates
so destroyed and the number of Warrants evidenced thereby and the number of
Shares which could have been purchased pursuant to each destroyed Warrant
Certificate.
3.6 Accounting and Recording
(a) The Trustee shall promptly notify the Corporation when Warrants are
exercised and forward to the Corporation at the times hereinafter set
forth (or into an account or accounts of the Corporation with the bank
or trust corporation designated by the Corporation for that purpose)
all money received on exercise of Warrants. The Trustee shall hold
money received on the subscription of Shares through the exercise of
Warrants and shall forward such money to the Corporation (or into an
account or accounts of the Corporation with the bank or trust
corporation designated by the Corporation for that purpose) within
five (5) Business Days from the date of receipt thereof. All such
money, and any securities or other instruments, from time to time
received by the Trustee shall be received in trust for, and shall be
segregated and kept apart by the Trustee in trust for, the
Corporation.
(b) The Trustee shall record the particulars of the Warrants exercised
which shall include the names and addresses of the persons who have
subscribed for Shares, the number of Shares subscribed for upon such
exercise, the Exercise Date and the Exercise Price. Upon request of
the Corporation, the Trustee shall provide within five (5) Business
Days such particulars in writing to the Corporation.
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ARTICLE 4
ADJUSTMENT OF SUBSCRIPTION RIGHTS AND EXERCISE PRICE
4.1 Adjustment of Subscription Rights
(a) If at any time after the date hereof and prior to the Time of Expiry
there shall be a reclassification of the Common Shares outstanding at
any time or change of the Common Shares into other shares or
securities, or any other capital reorganization except as described in
Section 4.2, or a consolidation, amalgamation or merger of the
Corporation with or into any other corporation (other than a
consolidation, amalgamation or merger which does not result in any
reclassification of the outstanding Common Shares or a change of the
Common Shares into other shares or securities), or a transfer of the
undertaking or assets of the Corporation as an entirety or
substantially as an entirety to another corporation or other entity
(any of such events being called a "Capital Reorganization"), the
holder of the Warrants who thereafter shall exercise his right to
purchase Shares thereunder shall be entitled to receive, and shall
accept for the same aggregate consideration, in lieu of the number of
Shares to which he was theretofore entitled upon such exercise, the
kind and amount of shares or other securities or property which such
holder would have been entitled to receive as a result of such Capital
Reorganization if, on the effective date thereof, he had been the
registered holder of the Common Shares to which he was theretofore
entitled upon such exercise. If determined appropriate by the Trustee,
appropriate adjustments shall be made as a result of any such Capital
Reorganization in the application of the provisions set forth in this
Article 4 with respect to the rights and interests thereafter of
Warrantholders to the end that the provisions set forth in this
Article 4 shall thereafter correspondingly be made applicable as
nearly as may reasonably be in relation to any shares, other
securities or any other property thereafter deliverable upon the
exercise of any Warrant. Any such adjustments shall be made by and set
forth in an indenture supplemental hereto approved by the Directors
and the Trustee and shall for all purposes be conclusively deemed to
be an appropriate adjustment (subject to the prior written consent of
the CDNX, if applicable).
(b) If at any time during the Adjustment Period any adjustment in the
Exercise Price (per Share) shall occur as a result of:
(a) an event referred to in Section 4.2(a);
(b) the fixing by the Corporation of a record date for an event
referred to in Section 4.2(b); or
(c) the fixing by the Corporation of a record date for an event
referred to in Section 4.2(c) if such event constitutes the issue
or distribution to the holders of all or substantially all of its
outstanding Common Shares of:
(i) Equity Shares; or
<PAGE> 16
12
(ii) securities exchangeable for or convertible into Equity
Shares at an exchange or conversion price per Equity Share
less than the Current Market Price on such record date; or
(iii) rights, options or warrants to acquire Equity Shares at an
exercise, exchange or conversion price per Equity Share
less than the Current Market Price on such record date;
then the number of Shares purchasable upon the subsequent exercise of
each Warrant shall be adjusted by multiplying the number of Shares
purchasable upon the exercise of such Warrant immediately prior to
such adjustment by a fraction which shall be the reciprocal of the
fraction employed in the adjustment of the Exercise Price. To the
extent that any adjustment in subscription rights occurs pursuant to
this Section 4.1(b) as a result of a distribution of exchangeable or
convertible securities other than Equity Shares referred to in Section
4.2(a) or as a result of the fixing by the Corporation of a record
date for the distribution of rights, options or warrants referred to
in Section 4.2(b), the number of Shares purchasable upon exercise of a
Warrant shall be readjusted immediately after the expiration of any
relevant exchange, conversion or exercise right to the number of
Shares which would be purchasable based upon the number of Common
Shares actually issued and remaining issuable immediately after such
expiration, and shall be further readjusted in such manner upon
expiration of any further such right. To the extent that any
adjustment in subscription rights occurs pursuant to this Section
4.1(b) as a result of the fixing by the Corporation of a record date
for the distribution of exchangeable or convertible securities other
than Equity Shares or rights, options or warrants referred to in
Section 4.2(c), the number of Shares purchasable upon exercise of a
Warrant shall be readjusted immediately after the expiration of any
relevant exchange, conversion or exercise right to the number which
would be purchasable pursuant to this Section 4.1(b) if the fair
market value of such securities or such rights, options or warrants
had been determined for purposes of the adjustment pursuant to this
Section 4.1(b) on the basis of the number of Equity Shares issued and
remaining issuable immediately after such expiration, and shall be
further readjusted in such manner upon expiration of any further such
right.
4.2 Adjustment of Exercise Price
The Exercise Price in effect at any date shall be subject to
adjustment from time to time as follows:
(a) if and whenever at any time during the Adjustment Period, the
Corporation shall
(a) subdivide the outstanding Common Shares into a greater number of
Common Shares;
(b) consolidate the outstanding Common Shares into a lesser number of
Common Shares; or
<PAGE> 17
13
(c) make any distribution payable in Common Shares to the holders of
all or substantially all of the outstanding Common Shares
(any of such events being called a "Common Share Reorganization"), the
Exercise Price shall be adjusted effective immediately after the
effective date or record date, as the case may be, on which the
holders of Common Shares are determined for the purpose of the Common
Share Reorganization by multiplying the Exercise Price in effect
immediately prior to such effective date or record date by a fraction,
the numerator of which shall be the number of Common Shares
outstanding on such effective date or record date before giving effect
to such Common Share Reorganization and the denominator of which shall
be the number of Common Shares outstanding immediately after giving
effect to such Common Share Reorganization.
(b) If and whenever at any time during the Adjustment Period, the
Corporation shall fix a record date for the issue of rights, options
or warrants to the holders of all or substantially all the outstanding
Common Shares under which such holders are entitled during a period
expiring not more than forty-five days after the record date for such
issue to subscribe for or purchase Common Shares, or securities
convertible into or exchangeable for Common Shares, at a price per
Common Share or having a conversion or exchange price per Common Share
less than ninety-five percent (95%) of the Current Market Price per
Common Share on such record date, the Exercise Price shall be adjusted
immediately after such record date so that it shall equal the price
determined by multiplying the Exercise Price in effect on such record
date by a fraction of which the numerator shall be the total number of
Common Shares outstanding on such record date plus a number equal to
the number determined by dividing the aggregate price of the total
number of additional Common Shares offered for subscription or
purchase, or the aggregate conversion or exchange price of the
convertible securities so offered, by such Current Market Price per
Common Share, and of which the denominator shall be the total number
of Common Shares outstanding on such record date plus the total number
of additional Common Shares offered for subscription or purchase (or
into which the convertible Securities so offered are convertible or
exchangeable). If by the terms of the rights, options or warrants
referred to in this Section 4.2(b), there is more than one purchase,
conversion or exchange price per Common Share, the aggregate price of
the total number of additional Common Shares offered for subscription
or purchase, or the aggregate conversion or exchange price of the
convertible securities so offered, shall be calculated for purposes of
the adjustment on the basis of the lowest of the purchase, conversion
or exchange price per Common Share, as the case may be. To the extent
that any adjustment in Exercise Price occurs pursuant to this Section
4.2(b) as a result of the fixing by the Corporation of a record date
for the distribution of rights, options or warrants referred to in
this Section 4.2(b), the Exercise Price shall be readjusted
immediately after the expiration of any relevant exchange, conversion
or exercise right to the Exercise Price which would then be in effect
based upon the number of Common Shares actually issued and remaining
issuable after such expiration, and shall be further readjusted in
such manner upon expiration of any further such right.
<PAGE> 18
14
(c) If and whenever at any time during the Adjustment Period the
Corporation shall fix a record date for the issue or distribution to
the holders of all or substantially all the outstanding Common Shares
(other than a dividend paid in the ordinary course) of:
(a) securities of the Corporation including rights, options or
warrants to acquire Equity Shares or securities convertible into
or exchangeable for Equity Shares or property or assets and
including evidences of its indebtedness; or
(b) any property or other assets;
and if such issuance or distribution is not by way of a Common Share
Reorganization or an issuance of rights, options or warrants referred
to in Section 4.2(b) then, in each such case, the Exercise Price shall
be adjusted immediately after such record date so that it shall equal
the price determined by multiplying the Exercise Price in effect on
such date by a fraction, of which the numerator shall be the product
of the number of Common Shares outstanding on such record date and the
Current Market Price on such record date, less the aggregate fair
market value (as determined by the Directors with the acceptance by
the Trustee, which determination shall be conclusive) of such
securities, property or other assets so issued or distributed, and of
which the denominator shall be the product of the number of Common
Shares outstanding on such record date and such Current Market Price.
For the purposes of this Section 4.2(c), "dividend paid in the
ordinary course" means dividends, whether in cash or in shares of the
capital stock of the Corporation, paid in any fiscal year of the
Corporation to the extent that the aggregate fair market value of such
cash and the paid-up capital of such shares does not in such fiscal
year exceed the greater of:
(a) 150% of the aggregate amount of dividends paid by the Corporation
on the Common Shares during the period of 12 consecutive months
ended immediately prior to the first day of such fiscal year; and
(b) 100% of the consolidated net earnings of the Corporation, before
extraordinary items or changes, during the period of 12
consecutive months ended immediately prior to the first day of
such fiscal year (such consolidated net earnings to be as shown
in the audited financial statements of the Corporation for such
period of 12 consecutive months or, if there are no audited
financial statements in respect of such period, computed in
accordance with generally accepted accounting principles
consistent with those applied in the preparation of the most
recent audited consolidated financial statements of the
Corporation);
and for such purpose the amount of any dividend paid in shares shall
be the aggregate paid-up capital of such shares.
<PAGE> 19
15
4.3 Adjustment Rules
(a) In any case in which this Article 4 shall require that an adjustment
shall become effective immediately after a record date for an event
referred to herein, the Corporation may defer until the occurrence of
such event:
(a) issuing to the holder of any Warrant exercised after such record
date and before the occurrence of such event the additional
Shares issuable upon such exercise by reason of the adjustment
required by such event; and
(b) delivering to such holder any distributions declared with respect
to such additional Shares after such Exercise Date and before
such event;
provided, however, that the Corporation shall deliver to such holder
an appropriate instrument evidencing such holder's right, upon the
occurrence of the event requiring the adjustment, to an adjustment in
the Exercise Price and the number of Shares purchasable upon exercise
of any Warrant and to such distributions declared with respect to any
such additional shares issuable on the exercise of any Warrant.
(b) The adjustments provided for in this Article 4 are cumulative; shall
in the case of adjustments to the Exercise Price, be computed to the
nearest one-tenth of one cent; and shall apply (without duplication)
to successive subdivisions, consolidations, distributions, issuances
or other events resulting in any adjustment under the provisions of
this section; provided that, notwithstanding any other provision of
this Article 4, no adjustment of the Exercise Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in the Exercise Price then in effect and no adjustment shall
be made in the number of Shares purchasable on the exercise of a
Warrant unless it would result in a change of at least one-hundredth
of a share (provided, however, that any adjustments which by reason of
this Section 4.3(b) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment).
(c) In the event of any question arising with respect to the adjustments
provided in this Article 4, such questions shall be conclusively
determined by a firm of chartered accountants appointed by the
Corporation and acceptable to the Trustee (who may be the
Corporation's auditors); such accountants shall have access to all
necessary records of the Corporation and such determination shall be
binding upon the Corporation. In the event that any such determination
is made, the Corporation shall deliver a certificate to the Trustee
describing such determination.
(d) No adjustment in the Exercise Price or in the number of Shares
purchasable upon exercise of a Warrant shall be made in respect of any
event described in this Article 4, other than the events referred to
in clauses (i) and (ii) of Section 4.2(a), if Warrantholders are
entitled to participate (such participation being subject to the prior
written consent of the CDNX, if applicable) in such event on the same
terms mutatis mutandis as if Warrantholders had exercised their
Warrants prior to or on the effective date or record date of such
event.
<PAGE> 20
16
(e) In case the Corporation after the date of this Indenture shall take
any action affecting the Common Shares, other than action described in
this Article 4, which in the opinion of the board of directors of the
Corporation would materially affect the rights of Warrantholders, then
the Exercise Price or the number of Shares purchasable upon exercise
of a Warrant shall be adjusted in such manner, if any, and at such
time, by action of the Directors, in their sole discretion as they may
determine to be equitable in the circumstances; provided that any such
action by the Directors shall be taken only with the prior consent of
the stock exchanges on which the Warrants are then listed, if any.
Failure of the directors to make an adjustment in accordance with this
Section 4.3(e) shall be conclusive evidence that the directors have
determined that it is equitable to make no adjustment in the
circumstances. In the event that any such adjustment is made, the
Corporation shall deliver a certificate to the Trustee describing such
adjustment.
(f) If the Corporation shall set a record date to determine the holders of
the Shares for the purpose of entitling them to receive any issue or
distribution or for the issue of any rights, options or warrants and
shall, thereafter and before such distribution or issue to such
shareholders abandon its plan to make such distribution or issue, then
no adjustment in the Exercise Price or the number of Shares
purchasable upon exercise of any Warrants shall be required by reason
of the setting of such record date.
(g) In the absence of a resolution of the directors fixing a record date
for any of the events referred to in Section 4.2(b) or (c), the
Corporation shall be deemed to have fixed as the record date therefor
the date on which any of such events is effected.
4.4 Proceedings Prior to any Action Requiring Adjustment
As a condition precedent to the taking of any action which would
require an adjustment pursuant to Sections 4.1 or 4.2, the Corporation shall
take any action which may, in the opinion of Counsel, be necessary in order that
the Corporation may validly and legally issue as fully paid and nonassessable
all the Shares which the holders of the Warrants are entitled to receive on the
full exercise thereof in accordance with the provisions hereof.
4.5 No Adjustment for Certain Transactions
Anything in this Article 4 to the contrary notwithstanding, no
adjustment shall be made in the acquisition rights attached to the Warrants if
the issue of Common Shares is being made pursuant to:
(a) any stock option or stock purchase plan in force from time to time for
officers or employees of the Corporation;
(b) a public offering to arm's length persons pursuant to a prospectus; or
(c) a private placement to arm's length persons, including without
limiting the foregoing, a private placement in exchange for oil and
natural gas assets.
<PAGE> 21
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4.6 Notice of Adjustment of Exercise Price and Subscription Rights
(a) At least 21 days prior to the effective date or record date, as the
case may be, of any event which requires or might require an
adjustment in any of the subscription rights pursuant to any of the
Warrants, including the Exercise Price and the number of Shares which
are purchasable upon the exercise thereof, the Corporation shall:
(a) file with the Trustee a certificate of the Corporation specifying
the particulars of such event and, if determinable, the required
adjustment and the computation of such adjustment; and
(b) give notice to the Warrantholders of the particulars of such
event and, if determinable, the required adjustment.
(b) In case any adjustment for which a notice in subsection 4.5(a) has
been given is not then determinable, the Corporation shall promptly
after such adjustment is determinable:
(a) file a certificate of the Corporation with the Trustee evidencing
a computation of such adjustment; and
(b) give notice to the Warrantholders of the adjustment.
4.7 Protection of Trustee
Except as provided in Section 9.2, the Trustee:
(a) shall not at any time be under any duty or responsibility to any
Warrantholder to determine whether any facts exist which may require
any adjustment contemplated by this Article 4, or with respect to the
nature or extent of any such adjustment when made, or with respect to
the method employed in making the same;
(b) shall not be accountable with respect to the validity or value (or the
kind or amount) of any Common Shares or of any shares or other
securities or property which may at any time be issued or delivered
upon the exercise of the rights attaching to any Warrant;
(c) shall not be responsible for any failure of the Corporation to issue,
transfer or deliver Common Shares or certificates for the same upon
the surrender of any Warrants for the purpose of the exercise of such
rights or to comply with any of the covenants contained in this
Article 4; and
(d) shall not incur any liability or responsibility whatever or be in any
way responsible for the consequences of any breach on the part of the
Corporation of any of the representations, warranties or covenants
herein contained or of any acts of the agents or servants of the
Corporation.
<PAGE> 22
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ARTICLE 5
COVENANTS OF THE CORPORATION
5.1 Optional Purchase by the Corporation
Subject to compliance with applicable securities legislation, the
Corporation may from time to time purchase by private contract or otherwise any
of the Warrants. Any such purchase shall be made at the lowest price or prices
at which, in the opinion of the directors, such Warrants are then obtainable,
plus reasonable costs of purchase, and may be made in such manner, from such
persons and on such other terms as the Corporation, in its sole discretion, may
determine. Any Warrant Certificate representing the Warrants purchased pursuant
to this Section 5.1 shall forthwith be delivered to and cancelled by the
Trustee. No Warrants shall be issued in replacement thereof.
5.2 General Covenants
The Corporation covenants with the Trustee that so long as any
Warrants remain outstanding:
(a) it will keep available a sufficient number of Shares for the purpose
of enabling it to satisfy its obligations to issue Shares upon the
exercise of the Warrants;
(b) it will cause the Shares and the certificates representing the Shares
from time to time subscribed and paid for pursuant to the exercise of
the Warrants to be duly issued and delivered in accordance with the
Warrant Certificates and the terms hereof;
(c) all Shares which shall be issued upon exercise of the right to
purchase provided for herein shall be issued in accordance with the
subscription form on the back of the Warrant Certificate;
(d) it will use its best efforts to maintain its corporate existence;
(e) it will, if required by the Trustee, file with the Trustee copies of
all financial statements and other material furnished to the holders
of the Common Shares during the term of this Indenture;
(f) at any reasonable time upon the demand of the Trustee, the Corporation
shall furnish the Trustee with a certificate that the Corporation has
complied with all requirements contained in this Indenture that, if
not complied with, would, with the giving of notice, lapse of time or
otherwise, constitute an event of default, or, if there has been a
failure to so comply, giving particulars thereof;
(g) it will not close its transfer registers or take any other action
which might deprive the Warrantholders of the opportunity of
exercising their right of purchase pursuant to the Warrants held by
such persons during the period of 21 days after giving of the notice
required by Section 4.5;
(h) it will use its best efforts to ensure that all Shares outstanding or
issuable from time to time are listed and posted for trading on the
CDNX;
<PAGE> 23
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(i) it will make all requisite filings under applicable Canadian
securities legislation including those necessary to remain a reporting
issuer not in default; and
(j) generally, it will well and truly perform and carry out all of the
acts or things to be done by it as provided in this Indenture.
5.3 Trustee's Remuneration and Expenses
The Corporation covenants that it will pay to the Trustee from time to
time reasonable remuneration for its services hereunder and will pay or
reimburse the Trustee upon its receipt for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in the administration
or execution of the trusts hereby created (including the reasonable compensation
and the disbursements of its counsel and all other advisers and assistants not
regularly in its employ) both before any default hereunder and thereunder until
all duties of the Trustee hereunder shall be finally and fully performed, except
any such expense, disbursement or advance as may arise out of or result from the
Trustee's negligence, wilful misconduct or bad faith.
5.4 Securities Qualification Requirements
(a) If, in the opinion of Counsel, any permission is required to be
obtained from any governmental authority in Canada or any other step
is required under any federal or provincial law of Canada before any
Shares which a Warrantholder is entitled to purchase pursuant to the
exercise of any Warrant may properly and legally be issued upon due
exercise thereof and thereafter traded, without further formality or
restriction, the Corporation covenants that it will take such required
action, provided that the Corporation shall not be required to file
any prospectus or registration statement in connection therewith.
(b) The Corporation or, if required by the Corporation, the Trustee will
give written notice of the issue of Shares pursuant to the exercise of
Warrants, in such detail as may be required, to each securities
commission or similar regulatory authority in each jurisdiction in
Canada in which there is legislation or regulation permitting or
requiring the giving of any such notice in order that such issue of
Shares and the subsequent disposition of the Shares so issued will not
be subject to the prospectus qualification requirements of such
legislation or regulation.
5.5 Performance of Covenants by Trustee
If the Corporation shall fail to perform any of its covenants
contained in this Warrant Indenture, the Trustee may notify the Warrantholders
of such failure on the part of the Corporation or may itself perform any of the
said covenants capable of being performed by it, but shall be under no
obligation to perform said covenants or to notify the Warrantholders of such
performance by it. All sums expended or advanced by the Trustee in so doing
shall be repayable as provided in Section 5.2. No such performance, expenditure
or advance by the Trustee shall relieve the Corporation of any default hereunder
or of its continuing obligations under the covenants herein contained.
<PAGE> 24
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ARTICLE 6
ENFORCEMENT
6.1 Suits by Warrantholders
All or any of the rights conferred upon any Warrantholder by any of the
terms of the Warrants or of the Indenture, or of both, may be enforced by the
Warrantholders by appropriate legal proceedings but without prejudice to the
right which is hereby conferred upon the Trustee to proceed in its own name to
enforce each and all of the provisions herein contained for the benefit of the
Warrantholders.
6.2 Immunity of Shareholders
The Trustee and, by the acceptance of the Warrants and as part of the
consideration for the issue of the Warrants, the Warrantholders hereby waive and
release any right, cause of action or remedy now or hereafter existing in any
jurisdiction against any incorporator or any past, present or future
shareholder, director, officer, employee or agent of the Corporation or any
successor corporation for the issue of the Shares pursuant to any Warrant or on
any covenant, agreement, representation or warranty by the Corporation herein or
in the Warrants contained.
6.3 Limitation of Liability
The obligations hereunder are not personally binding upon, nor shall
resort hereunder be had to, the private property of any of the past, present or
future directors or shareholders of the Corporation or any successor corporation
or any of the past, present or future officers, employees or agents of the
Corporation or any successor corporation, but only the property of the
Corporation or any successor corporation shall be bound in respect hereof.
6.4 Waiver of Default
Upon the happening of any default hereunder:
(a) the holders of not less than sixty-six and two-thirds percent (66 2/3%)
of the Warrants then outstanding shall have power (in addition to the
powers exercisable by extraordinary resolution as provided in Section
7.10) by requisition in writing to instruct the Trustee to waive any
default hereunder. The Trustee shall thereupon waive the default upon
such terms and conditions as shall be prescribed in such requisition;
or
(b) the Trustee shall have power to waive any default hereunder upon such
terms and conditions as the Trustee may deem advisable if, in the
Trustee's opinion, the same shall have been cured or adequate provision
made therefor;
provided that no delay or omission of the Trustee or of the Warrantholders to
exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver of any such default or
acquiescence therein and provided further that no act or omission either
<PAGE> 25
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of the Trustee or of the Warrantholders shall extend to or be taken in any
manner whatsoever to affect any subsequent default hereunder or the rights
resulting therefrom.
ARTICLE 7
MEETINGS OF WARRANTHOLDERS
7.1 Right to Convene Meetings
The Trustee may at any time and from time to time, and shall on receipt
of a written request of the Corporation or of a Warrantholders' Request and upon
being indemnified to its reasonable satisfaction by the Corporation or by the
Warrantholders signing such Warrantholders' Request against the cost which may
be incurred in connection with the calling and holding of such meeting, convene
a meeting of the Warrantholders. In the event of the Trustee failing to call a
meeting within fifteen days after receipt of such written request of the
Corporation or Warrantholders' Request and indemnity given as aforesaid, the
Corporation or such Warrantholders, as the case may be, may call such meeting.
Every such meeting shall be held in the City of Calgary, Alberta, or at such
other place as may be approved or determined by the Trustee.
7.2 Notice
At least twenty-one days prior notice of any meeting of Warrantholders
shall be given to the Warrantholders in the manner provided for in Section 11.2
and a copy of such notice shall be sent by mail to the Trustee (unless the
meeting has been called by the Trustee) and to the Corporation (unless the
meeting has been called by the Corporation). Such notice shall state the time
when and the place where the meeting is to be held, shall state briefly the
general nature of the business to be transacted thereat and shall contain such
information as is reasonably necessary to enable the Warrantholders to make a
reasoned decision on the matter, but it shall not be necessary for any such
notice to set out the terms of any resolution to be proposed or any of the
provisions of this Article 7.
7.3 Chairman
An individual (who need not be a Warrantholder) designated in writing
by the Trustee shall be chairman of the meeting and if no individual is so
designated, or if the individual so designated is not present within fifteen
minutes from the time fixed for the holding of the meeting, the Warrantholders
present in person or by proxy shall choose some individual present to be
chairman.
7.4 Quorum
Subject to the provisions of Section 7.11, at any meeting of the
Warrantholders a quorum shall consist of two (2) Warrantholders present in
person or represented by proxy and entitled to purchase at least twenty-five
percent (25%) of the aggregate number of Common Shares which could be purchased
pursuant to all the then outstanding Warrants. If a quorum of the Warrantholders
shall not be present within thirty minutes from the time fixed for holding any
meeting, the meeting, if summoned by the Warrantholders or on a Warrantholders'
Request, shall be dissolved; but in any other case the meeting shall be
adjourned to the same day in the next week (unless such day is not a Business
Day, in which case it shall be adjourned to the next following Business Day) at
the same time and place and no notice of the adjournment need be given. Any
<PAGE> 26
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business may be brought before or dealt with at any adjourned meeting which
might have been dealt with at the original meeting in accordance with the notice
calling the same. No business shall be transacted at any meeting unless a quorum
be present at the commencement of business. At the adjourned meeting the
Warrantholders present in person or by proxy shall form a quorum and may
transact the business for which the meeting was originally convened,
notwithstanding that they may not be entitled to purchase at least 10% of the
aggregate number of Shares which may be purchased pursuant to all the then
outstanding Warrants.
7.5 Power to Adjourn
The chairman of any meeting at which a quorum of the Warrantholders is
present may, with the consent of the meeting, adjourn any such meeting, and no
notice of such adjournment need be given except such notice, if any, as the
meeting may prescribe.
7.6 Show of Hands
Every question submitted to a meeting shall be decided in the first
place by a majority of the votes given on a show of hands except that votes on
an Extraordinary Resolution shall be given in the manner hereinafter provided.
At any such meeting, unless a poll is duly demanded as herein provided, a
declaration by the chairman that a resolution has been carried or carried
unanimously or by a particular majority or lost or not carried by a particular
majority shall be conclusive evidence of the fact.
7.7 Poll and Voting
On every Extraordinary Resolution, and on any other question submitted
to a meeting and, after every vote by a show of hands, when demanded by the
chairman or by one or more of the Warrantholders acting in person or by proxy
and entitled to purchase in the aggregate at least five percent (5%) of the
aggregate number of Shares which could be purchased pursuant to all the Warrants
then outstanding, a poll shall be taken in such manner as the chairman shall
direct. Questions other than those required to be determined by Extraordinary
Resolution shall be decided by a majority of the votes cast on the poll.
On a show of hands, every person who is present and entitled to vote,
whether as a Warrantholder or as proxy for one or more absent Warrantholders, or
both, shall have one vote. On a poll, each Warrantholder present in person or
represented by a proxy duly appointed by instrument in writing shall be entitled
to one vote in respect of each whole Share which he is entitled to purchase
pursuant to the Warrant or Warrants then held or represented by him. A proxy
need not be a Warrantholder. The chairman of any meeting shall be entitled, both
on a show of hands and on a poll, to vote in respect of the Warrants, if any,
held or represented by him.
7.8 Regulations
The Trustee or the Corporation, with the approval of the Trustee, may
from time to time make and from time to time vary such regulations as it shall
think fit for:
(a) the issue of voting certificates by any bank, trust Corporation or
other depository satisfactory to the Trustee stating that the Warrant
Certificates specified therein have
<PAGE> 27
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been deposited with it by a named person and will remain on deposit
until after the meeting, which voting certificate shall entitle the
persons named therein to be present and vote at any such meeting and at
any adjournment thereof or to appoint a proxy or proxies to represent
them and vote for them at any such meeting and at any adjournment
thereof in the same manner and with the same effect as though the
persons so named in such voting certificates were the actual bearers of
the Warrant Certificates specified therein;
(b) the deposit of voting certificates and instruments appointing proxies
at such place and time as the Trustee, the Corporation or the
Warrantholders convening the meeting, as the case may be, may in the
notice convening the meeting direct;
(c) the deposit of voting certificates and instruments appointing proxies
at some approved place or places other than the place at which the
meeting is to be held and enabling particulars of such instruments
appointing proxies to be mailed, cabled or telegraphed before the
meeting to the Corporation or to the Trustee at the place where the
same is to be held and for the voting of proxies so deposited as though
the instruments themselves were produced at the meeting;
(d) the form of the instrument of proxy; and
(e) generally for the calling of meeting of Warrantholders and the conduct
of business thereat.
Any regulations so made shall be binding and effective and the votes given in
accordance therewith shall be valid and persons who shall be recognized at any
meeting as Warrantholders, or be entitled to vote or be present at the meeting
in respect thereof (subject to Section 7.9), shall be Warrantholders or proxies
of Warrantholders.
7.9 Corporation and Trustee May be Represented
The Corporation and the Trustee, by their respective directors and
officers, and the counsel for the Corporation and for the Trustee may attend any
meeting of the Warrantholders, but shall have no vote as such although, if not
contrary to law, they may vote in their capacity as Warrantholders if they hold
Warrants.
7.10 Powers Exercisable by Extraordinary Resolution
In addition to all other powers conferred upon them by any other
provisions of this Indenture or by law, the Warrantholders at a meeting shall
have the power, exercisable from time to time by Extraordinary Resolution:
(a) to agree to any modification, abrogation, alteration, compromise or
arrangement of the rights of Warrantholders or the Trustee in its
capacity as trustee hereunder or on behalf of the Warrantholders
against the Corporation whether such rights arise under this Indenture
or the Warrants or otherwise;
<PAGE> 28
24
(b) to amend, alter or repeal any Extraordinary Resolution previously
passed or sanctioned by the Warrantholders;
(c) to direct or to authorize the Trustee to enforce any of the covenants
on the part of the Corporation contained in this Indenture or the
Warrants or to enforce any of the rights of the Warrantholders in any
manner specified in such Extraordinary Resolution or to refrain from
enforcing any such covenant or right;
(d) to waive, and to direct the Trustee to waive, any default on the part
of the Corporation in complying with any provisions of this Indenture
or the Warrants either unconditionally or upon any conditions specified
in such Extraordinary Resolution;
(e) to restrain any Warrantholder from taking or instituting any suit,
action or proceeding against the Corporation for the enforcement of any
of the covenants on the part of the Corporation contained in this
Indenture or the Warrants or to enforce any of the rights of the
Warrantholders; and
(f) to direct any Warrantholder who, on behalf of Warrantholders generally,
has brought any suit, action or proceeding to stay or to discontinue or
otherwise to deal with the same upon payment of the costs, charges and
expenses reasonably and properly incurred by such Warrantholder in
connection therewith.
7.11 Meaning of Extraordinary Resolution
(a) The expression "Extraordinary Resolution" when used in this Indenture
means, subject as hereinafter provided in this Section 7.11 and in
Sections 7.14 and 7.15, a resolution proposed at a meeting of
Warrantholders duly convened for that purpose and held in accordance
with the provisions of this Article 7 passed by the affirmative votes
of Warrantholders entitled to purchase not less than sixty-six and
two-thirds percent (66 2/3%) of the aggregate number of Shares which
may be purchased pursuant to all the then outstanding Warrants
represented at the meeting and voted upon such resolution.
(b) If, at any meeting called for the purpose of passing an Extraordinary
Resolution, a quorum of Warrantholders is not present in person or by
proxy within thirty minutes after the time appointed for the meeting,
then the meeting, if convened by Warrantholders or on a Warrantholders'
Request, shall be dissolved; but in any other case it shall stand
adjourned to such day, being not less than fifteen or more than sixty
days later, and to such place and time as may be appointed by the
chairman. Not less than ten days prior notice shall be given of the
time and place of such adjourned meeting in the manner provided for in
Section 11.2. Such notice shall state that at the adjourned meeting the
Warrantholders present in person or by proxy shall form a quorum but it
shall not be necessary to set forth the purposes for which the meeting
was originally called or any other particulars. At the adjourned
meeting the Warrantholders present in person or by proxy shall form a
quorum and may transact the business for which the meeting was
originally convened and a resolution proposed at such adjourned meeting
and passed by the requisite vote as provided in
<PAGE> 29
25
subsection 7.11(a) shall be an Extraordinary Resolution within the
meaning of this Indenture.
(c) Votes on an Extraordinary Resolution shall always be given on a poll
and no demand for a poll on an Extraordinary Resolution shall be
necessary.
7.12 Powers Cumulative
Any one or more of the powers or any combination of the powers in this
Indenture stated to be exercisable by the Warrantholders by Extraordinary
Resolution or otherwise may be exercised from time to time and the exercise of
any one or more of such powers or any combination of powers from time to time
shall not be deemed to exhaust the right of the Warrantholders to exercise such
power or powers or combination of powers then or thereafter from time to time.
7.13 Minutes
Minutes of all resolutions and proceedings at every meeting of
Warrantholders shall be made and duly entered in books to be provided from time
to time for that purpose by the Trustee at the expense of the Corporation, and
any such minutes as aforesaid, if signed by the chairman or the secretary of the
meeting at which such resolutions were passed or proceedings taken, shall be
prima facie evidence of the matters therein stated and, until the contrary is
proved, every such meeting in respect of the proceedings of which minutes shall
have been made shall be deemed to have been duly convened and held, and all
resolutions passed thereat or proceedings taken shall be deemed to have been
duly passed and taken.
7.14 Instruments in Writing
All actions which may be taken and all powers that may be exercised by
the Warrantholders at a meeting held as provided in this Article 7 may also be
taken and exercised by Warrantholders entitled to purchase at least sixty-six
and two-thirds percent (66 2/3%) of the aggregate number of Shares which may be
purchased pursuant to all the then outstanding Warrants by an instrument in
writing signed in one or more counterparts by such Warrantholders in person or
by an attorney duly appointed in writing, and the expression "Extraordinary
Resolution" when used in this Indenture shall include an instrument so signed.
7.15 Binding Effect of Resolutions
Every resolution and every Extraordinary Resolution passed in
accordance with the provisions of this Article 7 at a meeting of Warrantholders
shall be binding upon all the Warrantholders, whether present at or absent from
such meeting, and every instrument in writing signed by Warrantholders in
accordance with Section 7.14 shall be binding upon all the Warrantholders,
whether signatories thereto or not, and each and every Warrantholder and the
Trustee (subject to the provisions for indemnity herein contained) shall be
bound to give effect accordingly to every such resolution and instrument in
writing.
<PAGE> 30
26
ARTICLE 8
SUPPLEMENTAL INDENTURES
8.1 Provisions for Supplemental Indentures for Certain Purposes
From time to time the Corporation (when authorized by the Directors)
and the Trustee may, subject to the provisions hereof, and they shall, when so
directed in accordance with the provisions hereof, execute and deliver by their
proper officers, indentures or instruments supplemental hereto, which thereafter
shall form part hereof, for any one or more or all of the following purposes:
(a) setting forth any adjustments resulting from the application of the
provisions of Article 4;
(b) adding to the provisions hereof such additional covenants and
enforcement provisions as, in the opinion of Counsel, are necessary or
advisable in the premises, provided that the same are not in the
opinion of the Trustee prejudicial to the interests of the
Warrantholders;
(c) giving effect to any Extraordinary Resolution passed as provided in
Article 7;
(d) making such provisions not inconsistent with this Indenture as may be
necessary or desirable with respect to matters or questions arising
hereunder, provided that such provisions are not, in the opinion of the
Trustee, prejudicial to the interests of the Warrantholders;
(e) adding to or altering the provisions hereof in respect of the transfer
of Warrants, making provisions for the exchange of Warrants, and making
any modification in the form of the Warrants which does not affect the
substance thereof;
(f) modifying any of the provisions of this Indenture, or relieving the
Corporation from any of the obligations, conditions or restrictions
herein contained, provided that such modification or relief shall be or
become operative or effective only if, in the opinion of the Trustee,
such modification or relief in no way prejudices any of the rights of
the Warrantholders or of the Trustee, and provided further that the
Trustee may in its sole discretion decline to enter into any such
supplemental indenture which in its opinion may not afford adequate
protection to the Trustee when the same shall become operative,
provided that, notwithstanding any other provision of this Indenture,
an extension of the Expiry Date when requested by the Corporation and
approved by the CDNX shall be deemed not to be prejudicial to the
rights of the Warrantholders and the Trustee may not decline to enter
into any such supplemental warrant indenture which only provides for
such an extension;
<PAGE> 31
27
(g) for any other purpose not inconsistent with the terms of this
Indenture, including the correction or rectification of any
ambiguities, defective or inconsistent provisions, errors, mistakes or
omissions herein, provided that in the opinion of the Trustee the
rights of the Trustee and of the Warrantholders are in no way
prejudiced thereby.
8.2 Successor Corporations
In the case of the consolidation, amalgamation, merger or transfer of
the undertaking or assets of the Corporation as an entirety or substantially as
an entirety to another corporation ("successor corporation"), the successor
corporation resulting from such consolidation, amalgamation, merger or transfer
(if not the Corporation) shall expressly assume, by supplemental indenture
satisfactory in form to the Trustee and executed and delivered to the Trustee,
the due and punctual performance and observance of each and every covenant and
condition of this Indenture to be performed and observed by the Corporation.
8.3 Regulatory Approvals
No supplemental indenture shall be entered into between the Corporation
and the Trustee unless all necessary regulatory approvals, including any
necessary consent required of the CDNX, if applicable, are first obtained.
ARTICLE 9
CONCERNING THE TRUSTEE
9.1 Trust Indenture Legislation
(a) If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with a mandatory requirement of Applicable
Legislation, such mandatory requirement shall prevail.
(b) The Corporation and the Trustee agree that each will at all times in
relation to this Indenture and any action to be taken hereunder observe
and comply with and be entitled to the benefits of Applicable
Legislation.
9.2 Rights and Duties of Trustee
(a) In the exercise of the rights and duties prescribed or conferred by the
terms of this Indenture, the Trustee shall exercise that degree of
care, diligence and skill that a reasonably prudent trustee would
exercise in comparable circumstances. No provision of this Indenture
shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own wilful
misconduct or bad faith.
(b) The obligation of the Trustee to commence or continue any act, action
or proceeding for the purpose of enforcing any rights of the Trustee or
the Warrantholders hereunder shall be conditional upon the
Warrantholders furnishing, when required by notice by the Trustee,
sufficient funds to commence or to continue such act, action or
proceeding and an indemnity reasonably satisfactory to the Trustee to
protect and
<PAGE> 32
28
to hold harmless the Trustee against the costs, charges, expenses and
liabilities to be incurred thereby and any loss and damage it may
suffer by reason thereof. None of the provisions contained in this
Indenture shall require the Trustee to expend or to risk its own funds
or otherwise to incur financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers unless
indemnified as aforesaid.
(c) The Trustee may, before commencing or at any time during the
continuance of any such act, action or proceeding, require the
Warrantholders, at whose instance it is acting, to deposit with the
Trustee the Warrants held by them, for which Warrants the Trustee shall
issue receipts.
(d) Every provision of this Indenture that by its terms relieves the
Trustee of liability or entitles it to rely upon any evidence submitted
to it is subject to the provisions of Applicable Legislation, this
Section 9.2 and Section 9.3.
9.3 Evidence, Experts and Advisers
(a) In addition to the reports, certificates, opinions and other evidence
required by this Indenture, the Corporation shall furnish to the
Trustee such additional evidence of compliance with any provision
hereof, and in such form, as may be prescribed by Applicable
Legislation or as the Trustee may reasonably require by written notice
to the Corporation.
(b) In the exercise of its rights and duties hereunder, the Trustee may, if
it is acting in good faith, rely as to the truth of the statements and
accuracy of the opinions expressed in statutory declarations, opinions,
reports, written requests, consents, or orders of the Corporation,
certificates of the Corporation or other evidence furnished to the
Trustee pursuant to any provision hereof or of Applicable Legislation
or pursuant to a request of the Trustee, provided that the Trustee
examines the same and determines that such evidence complies with the
applicable requirements of this Indenture.
(c) Whenever it is provided in this Indenture or under Applicable
Legislation that the Corporation shall deposit with the Trustee
resolutions, certificates, reports, opinions, requests, orders or other
documents, it is intended that the truth, accuracy and good faith on
the effective date thereof and the facts and opinions stated in all
such documents so deposited shall, in each and every such case, be
conditions precedent to the right of the Corporation to have the
Trustee take the action to be based thereon.
(d) Proof of the execution of an instrument in writing, including a
Warrantholders' Request, by any Warrantholder may be made by the
certificate of a notary public, or other officer with similar powers,
that the person signing such instrument, acknowledged to him the
execution or in any other manner which the Trustee may consider
adequate.
(e) The Trustee may employ or retain such Counsel, accountants, appraisers
or other experts or advisers as it may reasonably require for the
purpose of discharging its
<PAGE> 33
29
duties hereunder and may pay reasonable remuneration for all services
so performed by any of them, without taxation of costs of any Counsel,
and shall not be responsible for any misconduct or negligence on the
part of any such experts or advisers who have been appointed with due
care by the Trustee.
9.4 Documents, Money, etc. Held by Trustee
Any securities, documents of title or other instruments that may at any
time be held by the Trustee subject to the trusts hereof may be placed in the
deposit vaults of the Trustee or of The Royal Bank of Canada, The
Toronto-Dominion Bank, The Bank of Montreal, The Bank of Nova Scotia or the
Canadian Imperial Bank of Commerce (the "Designated Banks") or deposited for
safekeeping with any such Designated Bank. Unless herein otherwise expressly
provided, any money so held pending the application or withdrawal thereof under
any provisions of this Indenture may be deposited in the name of the Trustee in
a Designated Bank at the rate of interest (if any) then current on similar
deposits or, with the consent of the Corporation, may be (i) deposited in the
deposit department of the Trustee or any other loan or trust corporation
authorized to accept deposits under the laws of Canada or a province thereof, or
(ii) invested in securities issued or guaranteed by the Government of Canada or
a province thereof or in obligations maturing not more than one year from the
date of investment, of any Canadian chartered bank or loan or trust corporation.
Unless the Corporation shall be in default hereunder, all interest or other
income received by the Trustee in respect of such deposits and investments shall
belong to the Corporation.
9.5 Actions by Trustee to Protect Interest
The Trustee shall have power to institute and to maintain such actions
and proceedings as it may consider necessary or expedient to preserve, protect
or enforce its interests and the interests of the Warrantholders.
9.6 Trustee not Required to Give Security
The Trustee shall not be required to give any bond or security in
respect of the execution of the trusts and powers of this Indenture or otherwise
in respect of the premises.
9.7 Protection of Trustee
By way of supplement to the provisions of any law for the time being
relating to trustees, it is expressly declared and agreed as follows:
(a) the Trustee shall not be liable for or by reason of any statements of
fact or recitals in this Indenture or in the Warrant Certificates
(except the representation contained in Section 9.10 or in the
certificate of the Trustee on the Warrant Certificates) or be required
to verify the same, but all such statements or recitals are and shall
be deemed to be made by the Corporation;
(b) nothing herein contained shall impose any obligation on the Trustee to
see to or to require evidence of the registration or filing (or renewal
thereof) of this Indenture or any instrument ancillary or supplementary
hereto;
<PAGE> 34
30
(c) the Trustee shall not be bound to give notice to any person or persons
of the execution hereof; and
(d) the Trustee shall not incur any liability or responsibility whatever or
be in any way responsible for the consequence of any breach on the part
of the Corporation of any of the covenants herein contained or of any
acts of any directors, officers, employees, agents or servants of the
Corporation.
9.8 Trustee Not Required to Give Notice of Default
The Trustee shall not be bound to give any notice or do or take any
act, action or proceeding by virtue of the powers conferred on it hereby unless
and until it shall have been required so to do under the terms hereof; nor shall
the Trustee be required to take notice of any default hereunder, unless and
until notified in writing of such default, which notice shall distinctly specify
the default desired to be brought to the attention of the Trustee and in the
absence of any such notice the Trustee may for all purposes of this Indenture
conclusively assume that no default has been made in the observance or
performance of any of the representations, warranties, covenants, agreements or
conditions contained herein. Any such notice shall in no way limit any
discretion herein given to the Trustee to determine whether or not the Trustee
shall take action with respect to any default.
9.9 Replacement of Trustee; Successor by Merger
(a) The parties hereto acknowledge and agree, and any beneficiaries
hereunder are hereby deemed to have acknowledged and agreed:
(a) that effective June 30, 2000, Computershare Investor Services Inc.
("Computershare") purchased the Corporate Trust business of the
Trustee; and
(b) that the Trustee may, without the consent of any other party,
assign all of its rights and duties under this Indenture, and
under any ancillary agreements executed in connection herewith, to
such federal trust company as may result from Computershare being
continued as a trust company pursuant to the terms of the Trust
and Loan Companies Act. Any such assignment shall be effective
without the need for any further notice or advice to, or approval
of, the parties hereto and without any further act or formality
whatsoever.
(b) The Trustee may resign its trust and be discharged from all further
duties and liabilities hereunder and pursuant to the Warrant Indenture,
subject to this Section 9.9(b), by giving to the Corporation not less
than ninety (90) days prior notice in writing or such shorter prior
notice as the Corporation may accept as sufficient. The Warrantholders
by Extraordinary Resolution shall have power at any time to remove the
existing Trustee and to appoint a new trustee. In the event of the
Trustee resigning or being removed as aforesaid or being dissolved,
becoming bankrupt, going into liquidation or otherwise becoming
incapable of acting hereunder, the Corporation shall forthwith appoint
a new trustee unless a new trustee has already been appointed by the
Warrantholders; failing such appointment by the Corporation, the
retiring Trustee or any Warrantholder may apply to a justice of the
<PAGE> 35
31
Court of Queen's Bench of Alberta, on such notice as such justice may
direct, for the appointment of a new trustee; but any new trustee so
appointed by the Corporation or by the Court shall be subject to
removal as aforesaid by the Warrantholders. Any new trustee appointed
under any provision of this Section 9.9 shall be a corporation
authorized to carry on the business of a trust company in the Province
of Alberta and, if required by the Applicable Legislation of any other
province, in such other provinces. On any such appointment, the new
trustee shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as Trustee
without any further assurance, conveyance, act or deed; but there shall
be immediately executed, at the expense of the Corporation, all such
conveyances or other instruments as may, in the opinion of Counsel, be
necessary or advisable for the purpose of assuring the same to the new
trustee, provided that, any resignation or removal of the Trustee and
appointment of a successor trustee shall not become effective until the
successor trustee shall have executed an appropriate instrument
accepting such appointment and, at the request of the Corporation, the
predecessor Trustee shall execute and deliver to the successor trustee
an appropriate instrument transferring to such successor trustee all
rights and powers of the Trustee hereunder.
(c) Upon the appointment of a successor trustee, the Corporation shall
promptly notify the Warrantholders in the manner provided for in
Article 11 hereof.
(d) Any corporation into or with which the Trustee may be merged or
consolidated or amalgamated, or any corporation resulting therefrom to
which the Trustee shall be a party, or any corporation succeeding to
the trust business of the Trustee shall be the successor to the Trustee
hereunder without any further act on its part or any of the parties
hereto, provided that such corporation would be eligible for
appointment as a successor trustee under Section 9.9(b) above.
(e) Any Warrants or Shares certified but not delivered by a predecessor
trustee may be certified by the successor trustee in the name of the
predecessor or successor trustee.
9.10 Conflict of Interest
(a) The Trustee represents to the Corporation that at the time of execution
and delivery hereof no material conflict of interest exists between its
role as a trustee hereunder and its role in any other capacity and
agrees that in the event of a material conflict of interest arising
hereafter it will, within ninety days after ascertaining that it has
such material conflict of interest, either eliminate the same or assign
its trust hereunder to a successor trustee approved by the Corporation
and meeting the requirements set forth in Section 9.9(b).
Notwithstanding the foregoing provisions of this Section 9.10(a), if
any such material conflict of interest exists or hereafter shall exist,
the validity and enforceability of this Indenture and the Warrants
shall not be affected in any manner whatsoever by reason thereof.
(b) Subject to Section 9.10(a), the Trustee, in its personal or any other
capacity, may buy, lend upon and deal in securities of the Corporation
and generally may contract and enter into financial transactions with
the Corporation or any "affiliate" or any
<PAGE> 36
32
"subsidiary", as defined in the Business Corporations Act (Alberta), of
the Corporation without being liable to account for any profit made
thereby.
9.11 Acceptance of Trust
The Trustee hereby accepts the trusts in this Indenture declared and
provided for and agrees to perform the same upon the terms and conditions herein
set forth, and also agrees to act as the Warrant Agency pursuant to Section
3.1(c).
9.12 Trustee Not to be Appointed Receiver
The Trustee and any person related to the Trustee shall not be
appointed a receiver, a receiver and manager or liquidator of all or any part of
the assets or undertaking of the Corporation.
9.13 Indemnity
The Corporation indemnifies and saves harmless the Trustee and its
officers from and against any and all liabilities, losses, costs, claims,
actions, or demands whatsoever which be brought against the Trustee or which it
may suffer or incur as a result of or arising out of the performance of its
duties and obligations under this indenture, save only in the event of the
negligent failure to act, or the wilful misconduct or bad faith of the Trustee.
It is understood and agreed that this indemnification shall survive the
termination or discharge of this Indenture or the resignation of the Trustee.
ARTICLE 10
FORM OF WARRANT
10.1 Form of Warrant
The text of the form of Warrant referred to in Section 2.2 shall be
substantially as set forth in Schedule "A" hereto.
ARTICLE 11
GENERAL
11.1 Notice to the Corporation and the Trustee
(a) Unless herein otherwise expressly provided, any notice to be given
hereunder to the Corporation or the Trustee shall be deemed to be
validly given if delivered or if sent by registered letter, postage
prepaid:
if to the Corporation:
<PAGE> 37
33
Westlinks Resources Ltd.
370, 800 - 6th Avenue S.W.
Calgary, Alberta
T2P 3G3
Fax: 403-261-2704
Attention: President
if to the Trustee:
Montreal Trust Company of Canada
Suite 710, Western Gas Tower
530 - 8th Avenue S.W.
Calgary, Alberta
T2P 3S8
Fax: 403-267-6598
Attention: Manager, Corporate Trust Department
and any such notice delivered in accordance with the foregoing shall be
deemed to have been received on the date of delivery or, if mailed, on
the fifth Business Day following the date of the postmark on such
notice.
(b) The Corporation or the Trustee, as the case may be, may from time to
time notify the other in the manner provided in Section 11.1(a) of a
change of address which, from the effective date of such notice and
until changed by like notice, shall be the address of the Corporation
or the Trustee, as the case may be, for all purposes of this Indenture.
A copy of any notice of change of address given pursuant to Section
11.1(b) shall be sent to each Warrant Agency, where it shall be
available for inspection by Warrantholders during normal business
hours.
(c) If, by reason of a strike, lockout or other work stoppage, actual or
threatened, involving postal employees, any notice to be given to the
Trustee or to the Corporation hereunder could reasonably be considered
unlikely to reach its destination, each notice shall be valid and
effective only if it is delivered to the named officer of the party to
which it is addressed or, if it is delivered to such party at the
appropriate address provided in Section 11.1(a), by telecopier or other
means of prepaid, transmitted and recorded communication.
11.2 Notice to Warrantholders
Unless otherwise expressly provided for herein, any notice to be given
hereunder to Warrantholders shall be deemed to be validly and sufficiently given
if such notice is published once in "The Calgary Herald" or such other
publication in substitution for the foregoing as the Corporation and the Trustee
shall agree upon, provided that, in the case of notice convening a meeting of
Warrantholders, the Trustee may require such additional publication of such
notice, in the same or in other publications or both, as it may deem necessary
for the reasonable protection of the Warrantholders. Any notice so given shall
be deemed to have been given on the day by which
<PAGE> 38
34
it shall have been published in all publications provided for above. In
determining under any provisions hereof whether notice shall have been given the
date of giving notice shall be included and the date of a meeting or other event
shall be excluded.
11.3 Ownership and Transfer of Warrants
The Corporation, the Trustee and any Warrant Agency may deem and treat
the holder of any Warrant as the absolute owner of such Warrant notwithstanding
any notation of ownership or other writing thereon, for all purposes hereof and
thereof and neither the Corporation nor the Trustee nor any Warrant Agency shall
be affected by any notice to the contrary. All actions relating to any
Warrantholder shall be valid and effectual to satisfy and discharge any
liability hereunder and under any Warrants.
11.4 Counterparts
This Indenture may be executed in several counterparts, each of which
when so executed shall be deemed to be an original and such counterparts
together shall constitute one and the same instrument and notwithstanding their
date of execution they shall be deemed to be dated as of the Effective Date.
11.5 Satisfaction and Discharge of Indenture
Upon the earlier of (a) the date by which there shall have been
delivered to the Trustee for exercise or destruction all Warrant Certificates
theretofore certified hereunder or (b) the Time of Expiry, this Indenture shall
cease to be of further effect, except that any provisions in this Indenture
indemnifying the Trustee shall survive from the Time of Expiry, and the Trustee,
on demand of and at the cost and expense of the Corporation and upon the
delivery to the Trustee of a certificate of the Corporation stating that all
conditions precedent to the satisfaction and discharge of this Indenture have
been complied with, shall execute proper instruments acknowledging satisfaction
of and discharging this Indenture.
11.6 Provisions of Indenture and Warrants for the Sole Benefit of Parties
and Warrantholders
Nothing in this Indenture or in the Warrant Certificates, expressed or
implied, shall give or to be construed to give to any person other than the
parties hereto and the Warrantholders, as the case may be, any legal or
equitable right, remedy or claim under this Indenture, or under any covenant or
provisions herein or therein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and the Warrantholders.
IN WITNESS WHEREOF the parties hereto have executed this Indenture
under their respective corporate seals by the hands of their proper officers in
that behalf effective as of the Effective Date.
Per:
---------------------------------------
WESTLINKS RESOURCES LTD.
Per:
---------------------------------------
<PAGE> 39
35
MONTREAL TRUST COMPANY OF CANADA
Per:
---------------------------------------
Per:
---------------------------------------
<PAGE> 40
SCHEDULE "A"
WARRANT CERTIFICATE
THIS WARRANT WILL BE VOID AND OF NO VALUE OR EFFECT UNLESS EXERCISED
PRIOR TO 4:30 P.M. (CALGARY TIME) ON MAY O, 2001.
COMMON SHARE PURCHASE WARRANT
WESTLINKS RESOURCES LTD.
(Incorporated under the laws of the Province of Alberta)
NO. W-O o Warrants representing the Right
to Purchase, subject to adjustment,
o Common Shares at $o per
Common Share.
THIS IS TO CERTIFY that, subject to the terms and conditions of the
Warrant Indenture between Westlinks Resources Ltd. and Montreal Trust Company of
Canada dated November O, 2000 (the "Indenture"), which are incorporated herein
by reference and made a part hereof,
[Name o]
[Address o]
is entitled to purchase, in the manner and subject to adjustment as provided in
the Indenture, at any time and from time to time before 4:30 p.m. (Calgary time)
on May 21, 2001 (the "Expiry Date") at the offices of Montreal Trust Company of
Canada at its principal office at 710, Western Gas Tower, 530 - 8th Avenue S.W.,
Calgary, Alberta T2P 3S8, one fully paid and non-assessable Common Share without
nominal or par value in the capital of the Corporation, as such shares were
constituted on November O, 2000, at the Exercise Price of $o (Canadian funds)
plus one (1) Warrant.
Unless the context otherwise requires, all capitalized words and
phrases have the meaning ascribed thereto in the Indenture.
Such right to purchase Common Shares in the capital of the Corporation
may be exercised, from time to time, prior to the Expiry Time by the holder:
(a) duly completing, in the manner indicated, and executing the
subscription form attached hereto; and
(b) surrendering this Warrant to the Trustee at the office specified above
together with a certified cheque, bank draft, money order or cash, in
lawful money of Canada, payable to or to the order of the Trustee at
par in the City of Calgary in the amount of the aggregate Exercise
Price for the Common Shares subscribed for.
This Warrant and such certified cheque, bank draft, money order or
cash shall be deemed to be so surrendered only upon personal delivery thereof,
or, if sent by post or other means of transmission, upon actual receipt thereof
by the Trustee at the office referred to above.
Upon such surrender, the person or persons in whose names or names the
Common Shares so subscribed for are to be issued shall be deemed for all
purposes to be the holder or holders of record of such Common Shares and the
Corporation covenants that it will, subject to the provisions of the Indenture,
cause a certificate or certificates representing such Common Shares to be
delivered or mailed to such person or persons forthwith at the address or
addresses specified in such subscription form.
The holder of this Warrant may subscribe for and purchase any lesser
number of whole Common Shares than the number of Common Shares purchasable under
this Warrant and, in such event, shall be entitled to
<PAGE> 41
receive a new certificate in respect of the balance of the Warrants represented
by this Warrant certificate and not then exercised. No fractional Common Shares
will be issued.
The Warrants represented by this certificate are issued under and
pursuant to the Indenture. Reference is made to the Indenture and any
instruments supplemental thereto for a full description of the rights of the
holders of the Warrants and the terms and conditions upon which the Warrants
are, or are to be, issued and held, with the same effect as if the provisions of
the Indenture and all instruments supplemental thereto were herein set forth. By
acceptance hereof, the holder assents to all provisions of the Indenture.
The registered holder of this Warrant may, at any time prior to the
Expiry Date of the Warrants, upon surrender hereof to the Trustee as referred to
above and payment of such applicable transfer charges as may be required by the
Trustee from time to time, exchange this Warrant for other Warrants entitling
the holder to subscribe in the aggregate for the same number of Common Shares as
is purchasable under this Warrant.
The holding of this Warrant shall not constitute the holder hereof a
shareholder of the Corporation or entitle such holder to any right or interest
in respect thereof except as expressly provided in the Indenture.
The Indenture provides that all holders of Warrant Certificates shall
be bound by any resolution passed at a meeting duly called and convened of the
holders held in accordance with the provisions of the Indenture and resolutions
signed by the holders of Warrants entitled to acquire a specified majority of
the Common Shares which may be acquired pursuant to all then outstanding Warrant
Certificates.
The Warrants evidenced by this Warrant Certificate may be transferred
on the register kept at the principal office of the Trustee by the registered
holder hereof or its legal representatives or its attorney duly appointed by an
instrument in writing in form and execution satisfactory to the Trustee, only
upon compliance with the conditions prescribed in the Indenture and upon
compliance with such reasonable requirements as the Trustee may prescribe.
This Warrant Certificate shall not be valid for any purpose whatever
unless and until it has been certified by or on behalf of the Trustee.
The parties hereto, including the holder of this Certificate, by his
acceptance thereof, have requested this Certificate and any related documents to
be drafted only in the English language. Les parties aux presentes, y compris le
detenteur de ce certificat par son acceptation de ce certificat, ont exiges que
ce certificat et tout document connexe soient rediges en anglais seulement.
The Trustee may deem and treat the holder of any Warrant as the
absolute owner thereof for all purposes and the Trustee shall not be affected by
any notice to the contrary.
Time shall be of the essence hereof.
IN WITNESS WHEREOF the Corporation has caused this Warrant to be
signed by its duly authorized officer effective as of November _____, 2000.
WESTLINKS RESOURCES LTD.
Per: _______________________
Certified by:
MONTREAL TRUST COMPANY OF CANADA
Trustee, Calgary
By: _____________________________
Authorized Signature
<PAGE> 42
EXERCISE FORM
TO: MONTREAL TRUST COMPANY OF CANADA
The undersigned holder of the within Warrant hereby exercises the
right to purchase ____________________ Common Shares without nominal or par
value in the capital of Westlinks Resources Ltd. (or such number of Common
Shares or other securities or property to which such warrant entitles the
undersigned in lieu thereof or in addition thereto under the provisions of the
within Warrant) at the Exercise Price per Common Share of $ O, subject to
adjustment according to the terms of the within Warrant, and encloses herewith a
certified cheque, bank draft, money order or cash, in lawful money of Canada,
payable to or to the order of Montreal Trust Company of Canada in payment of the
subscription price for the said number of Common Shares.
Such Common Shares (or other securities or property) are to be issued
as follows:
Name (Print Clearly): _______________________________________________________
Address in full: _______________________________________________________
Number of Common Shares: _______________________________________________________
Total exercise price: $______________________________________________________
Further Warrant Certificate required for
balance of Common Shares purchasable: YES[ ] NO [ ]
DATED this _______ day of ______________ , ______ .
_____________________________________________________
Subscriber's Signature
_____________________________________________________
Subscriber's full name (Please Print)
_____________________________________________________
Subscriber's mailing address (Please Print)
_____________________________________________________
City Province Postal Code
INSTRUCTIONS TO PURCHASE TO COMMON SHARE WARRANTHOLDERS
TO EXERCISE: The holder hereof may exercise his right to purchase
Common Shares of the Corporation by completing the above form and surrendering
this Warrant certificate, together with the total exercise price for the Common
Shares subscribed for, to Montreal Trust Company of Canada at its principal
office at 710, Western Gas Tower, 530 - 8th Avenue S.W., Calgary, Alberta T2P
3S8. The rights of the holder hereof cease if this Warrant is not exercised
prior to the Expiry Date.
For your own protection it would be wise to register if forwarding by
mail.
THE RIGHTS OF THE HOLDER HEREOF CEASE IF THIS WARRANT IS NOT EXERCISED
ON OR PRIOR TO THE EXPIRY DATE. TO EXERCISE THIS WARRANT, THE HOLDER MUST
DELIVER TO THE TRUSTEE THE WARRANT, THE SUBSCRIPTION FORM AND SUCH CASH,
CERTIFIED CHEQUE, BANK DRAFT OR MONEY ORDER AT THE OFFICE OF THE TRUSTEE,
REFERRED TO ABOVE, PRIOR TO THE EXPIRY TIME.
<PAGE> 43
TRANSFER OF WARRANTS
NOTE: WARRANTS MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH APPLICABLE LAW.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers to __________________________________ (print name and address of
assignee), Warrants of Westlinks Resources Ltd. registered in the name of the
undersigned on the records of Montreal Trust Company of Canada represented by
the Warrant Certificate attached and irrevocably appoints ______________________
the attorney of the undersigned to transfer the said securities on the books or
register with full power of substitution.
The undersigned certifies that all applicable Canadian and United
States securities laws and requirements of regulatory authorities respecting the
transfer of the said securities have been complied with.
DATED the _______ day of ___________________________ , ___________
________________________ _________________________________________
Signature Guaranteed Signature (Signature of Warrantholder
to be the same as appears on the face of
the Warrant Certificate)
Instructions:
1. If the Transfer Form is signed by a trustee, executor, administrator,
curator, guardian, attorney, officer of a corporation or any person acting
in a fiduciary or representative capacity, the certificate must be
accompanied by evidence of authority to sign satisfactory to the Trustee
and the Corporation.
2. If the Exercise Form indicates that Common Shares are to be issued to a
person or persons other than the registered holder of the Certificate, the
signature of such holder of the Exercise Form MUST be guaranteed by a
Schedule "A" major chartered bank/trust company, or a member of an
acceptable medallion guarantee program. The guarantor must affix a stamp
bearing the actual words "SIGNATURE GUARANTEED".
PLEASE NOTE: Signature guarantees are not accepted from treasury branches
or credit unions unless they are members of the stamp medallion program. In
the USA, signature guarantees must be done by members of the "Medallion
Signature Guarantee Program" only.
3. Warrants shall only be transferable in accordance with applicable laws. The
transfer of Warrants to a purchaser not resident in a Selling Jurisdiction
may result in the Common Shares obtained upon the exercise of the Warrants
(whether after or before obtaining receipts for a final prospectus relating
to the distribution of Common Shares upon exercise of Warrants) not being
freely tradeable in the jurisdiction of the purchaser.
