FORM 6-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REPORT OF FOREIGN ISSUER
Pursuant to Rule 13a-16 or 15d-16 of
the Securities Exchange Act of 1934
For the month of March 2007
AETERNA ZENTARIS INC.
1405, Parc-Technologique Blvd
Quebec, Quebec
Canada, G1P 4P5
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports
under cover of Form 20-F or Form 40-F.
Form 20-F |_| Form 40-F |X|
Indicate by check mark whether the registrant by furnishing the information
contained in this Form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934
Yes |_| No |X|
If "Yes" is marked, indicate below the file number assigned to the registrant in
connection with Rule 12g3-2(b): 82-____
DOCUMENTS INDEX
DOCUMENTS DESCRIPTION
1. Shareholders Rights Plan dated March 5, 2007.
AMENDED AND RESTATED
SHAREHOLDER RIGHTS PLAN AGREEMENT
BETWEEN
AETERNA ZENTARIS INC.
- AND -
COMPUTERSHARE TRUST COMPANY OF CANADA,
AS RIGHTS AGENT
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DATED AS OF MARCH 5, 2007
(AMENDING AND RESTATING THE SHAREHOLDER RIGHTS PLAN AGREEMENT
MADE AS OF MARCH 29, 2004)
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TABLE OF CONTENTS
ARTICLE 1 INTERPRETATION 3
1.1 Certain Definitions 3
1.2 Currency 14
1.3 Number and Gender 14
1.4 Sections and Headings 14
1.5 Statutory References 14
1.6 Determination of Percentage Ownership 15
1.7 Acting Jointly or in Concert 15
ARTICLE 2 THE RIGHTS 15
2.1 Legend on Share Certificates 15
2.2 Initial Exercise Price; Exercise of Rights; Detachment of Rights 16
2.3 Adjustments to Exercise Price; Number of Rights 19
2.4 Date on which Exercise is Effective 25
2.5 Execution, Authentication, Delivery and Dating of Rights Certificates 25
2.6 Registration, Transfer and Exchange 25
2.7 Mutilated, Lost, Stolen and Destroyed Rights Certificates 26
2.8 Persons Deemed Owners 27
2.9 Delivery and Cancellation of Certificates 27
2.10 Agreement of Rights Holders 27
ARTICLE 3 ADJUSTMENTS TO THE RIGHTS 28
3.1 Flip-in Event 28
3.2 Fiduciary Duties of the Board of Directors of the Corporation 30
ARTICLE 4 THE RIGHTS AGENT 30
4.1 General 30
4.2 Merger, Amalgamation, Consolidation or Change of Name of Rights Agent 31
4.3 Duties of Rights Agent 31
4.4 Change of Rights Agent 33
ARTICLE 5 MISCELLANEOUS 34
5.1 Redemption, Waiver and Termination 34
5.2 Expiration 36
5.3 Issuance of New Rights Certificates 36
5.4 Supplements and Amendments 36
5.5 Fractional Rights and Fractional Shares 38
5.6 Rights of Action 38
5.7 Holder of Rights Not Deemed a Shareholder 39
5.8 Notice of Proposed Actions 39
5.9 Notices 39
5.10 Costs of Enforcement 40
5.11 Regulatory Approvals 40
5.12 Declaration as to Non-Canadian and Non-U.S. Holders 40
5.13 Successors 41
5.14 Benefits of this Agreement 41
5.15 Determination and Actions by the Board of Directors 41
5.16 Governing Law 41
5.17 Language 41
5.18 Counterparts 41
5.19 Severability 41
5.20 Effective Date 42
5.21 Time of the Essence 42
AMENDED AND RESTATED SHAREHOLDER RIGHTS PLAN AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDER RIGHTS PLAN AGREEMENT is made as of the
fifth (5th) day of March, 2007 (amending and restating the Shareholder Rights
Plan Agreement dated as of March 29, 2004).
BETWEEN: AETERNA ZENTARIS INC., 1405, boulevard du Parc-Technologique, Quebec
City, QC G1P 4P5
(the "CORPORATION")
AND: COMPUTERSHARE TRUST COMPANY OF CANADA, 1500 University, Suite 700,
Montreal, QC H3A 3S8
(the "RIGHTS AGENT")
WHEREAS:
A. The Board of Directors has determined that it is advisable to adopt a
shareholder rights plan (the "RIGHTS PLAN") to ensure, to the extent
possible, that all shareholders of the Corporation are treated fairly in
connection with any take-over offer or other acquisition of control of the
Corporation.
B. The Corporation and National Bank Trust Inc. entered into a shareholder
rights plan agreement dated as of March 29, 2004 in order to adopt the
Rights Plan (the "ORIGINAL AGREEMENT").
C. On May 1, 2006, Computershare Trust Company of Canada acquired, INTER
ALIA, certain assets and operations from National Bank Trust Inc.,
including the latter's transfer agency and registrar services and
operations.
D. In connection with the transfer of assets and operation described in the
preceding paragraph, Computershare Trust Company of Canada succeeded to
National Bank Trust Inc. as Rights Agent under the Original Agreement.
E. In order to implement the Rights Plan, the Board of Directors:
(a) authorized and declared a distribution of one right (a "RIGHT") in
respect of each Share outstanding at the Record Time;
(b) authorized the issuance of one Right in respect of each Share
issued after the Record Time and prior to the earlier of the
Separation Time and the Expiration Time; and
(c) authorized the issuance of Rights Certificates to holders of Rights
pursuant to the terms and subject to the conditions set forth
herein.
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F. Each Right entitles the holder thereof, after the Separation Time, to
purchase securities of the Corporation pursuant to the terms and subject
to the conditions set forth herein.
G. In connection with the ratification of the continued existence of the
Rights Plan at the Corporation's 2007 annual meeting of shareholders
pursuant to Section 5.15 of the Original Agreement, the Board of
Directors, acting in good faith, wishes to make certain amendments to the
Original Agreement, which amendments will require the approval of the
Independent Shareholders in accordance with Section 5.4 of the Original
Agreement.
H. The Corporation and the Rights Agent wish to amend and restate the
Original Agreement by entering into this Agreement, which amendment and
restatement shall become effective upon the Independent Shareholders
approving the continued existence of the Original Agreement, as amended
hereby.
I. The Corporation desires to confirm its appointment of Computershare Trust
Company of Canada as the Rights Agent to act on behalf of the Corporation,
and the Rights Agent is willing to continue to so act, in connection with
the issuance, transfer, exchange and replacement of Rights Certificates,
the exercise of Rights and other matters referred to herein.
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NOW THEREFORE in consideration of the premises and respective agreements set
forth herein, the parties hereby agree as follows:
ARTICLE 1
INTERPRETATION
1.1 CERTAIN DEFINITIONS
For the purposes of this agreement (the "AGREEMENT"), including the recitals
hereto, the following terms have the meanings indicated:
a) "ACQUIRING PERSON" shall mean any Person who is at any time after the
Effective Date the Beneficial Owner of 20% or more of the outstanding
Voting Shares of the Corporation; provided, however, that the term
"ACQUIRING PERSON" shall not include:
(i) the Corporation or any corporation controlled by the Corporation;
(ii) any Person who becomes the Beneficial Owner of 20% or more of the
outstanding Voting Shares as a result of one or any combination of:
(A) a Voting Share Reduction;
(B) a Permitted Bid Acquisition;
(C) an Exempt Acquisition; or
(D) a Pro Rata Acquisition;
provided, however, that if a Person shall become the Beneficial
Owner of 20% or more of the outstanding Voting Shares by reason of
one or any combination of a Voting Share Reduction, a Permitted Bid
Acquisition, an Exempt Acquisition or a Pro Rata Acquisition, and
thereafter becomes the Beneficial Owner of an additional one
percent of the Voting Shares then outstanding (otherwise than
pursuant to a Voting Share Reduction, a Permitted Bid Acquisition,
an Exempt Acquisition or a Pro Rata Acquisition or any combination
thereof), then, as of the date that such Person becomes a
Beneficial Owner of such additional Voting Shares, such Person
shall become an "ACQUIRING PERSON"; or
(iii) an underwriter or member of a banking or selling group acting in
such capacity that becomes the Beneficial Owner of 20% or more of
the Voting Shares in connection with a distribution of securities;
or
(iv) a Person (a "GRANDFATHERED PERSON") who is the Beneficial Owner of
20% or more of the outstanding Voting Shares determined as of the
Record Time, provided, however, that this exemption shall not be,
and shall cease to be, applicable to a Grandfathered Person in the
event that such Grandfathered Person shall, after the Record Time,
become the Beneficial Owner of additional Voting Shares that
increases its Beneficial Ownership of Voting Shares by more than
one
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percent of the number of Voting Shares outstanding as at the Record
Time, other than through one or any combination of a Voting Share
Reduction, a Permitted Bid Acquisition, an Exempt Acquisition or a
Pro Rata Acquisition.
b) "AFFILIATE" shall mean, when used to indicate a relationship with a
specified body corporate, a Person that directly or indirectly through one
or more intermediaries controls, or is a body corporate controlled by, or
under common control with, such specified body corporate.
c) "AMENDMENT DATE" means the date upon which this Agreement amends, restates
and supersedes the Original Agreement in accordance with Section 5.20
hereof.
d) "ASSOCIATE" shall mean, when used to indicate a relationship with a
specified Person, (i) a spouse of that Person, (ii) any Person of the same
or opposite sex with whom that Person is living in a conjugal relationship
outside marriage, (iii) any relative of that Person if that relative has
the same residence as that Person or (iv) any relative of such spouse or
other Person referred to in the immediately preceding clauses (i), (ii) or
(iii) above, if that relative has the same residence as the specified
Person.
e) A Person shall be deemed the "BENEFICIAL OWNER" of, and to have
"BENEFICIAL OWNERSHIP" of, and to "BENEFICIALLY OWN":
(i) any securities of which such Person or any of such Person's
Affiliates or Associates is owner at law or in equity;
(ii) any securities which the Person or any of such Person's Affiliates
or Associates has the right to acquire within 60 days (where such
right is exercisable within a period of 60 days whether or not upon
the occurrence of a contingency or the making of a payment)
pursuant to any Convertible Security, agreement, arrangement,
pledge or understanding, whether or not in writing (other than (A)
customary agreements with and between underwriters and/or banking
group and/or selling group members with respect to a distribution
of securities or (B) pledges of securities in the ordinary course
of the pledgee's business); and
(iii) any securities that are Beneficially Owned within the meaning of
clause (i) or (ii) of this Subsection 1.1e) by any other Person
with which such Person is acting jointly or in concert;
provided, however, that a Person shall not be deemed the "BENEFICIAL
OWNER" of, or to have "BENEFICIAL OWNERSHIP" of, or to "BENEFICIALLY OWN",
any security;
(iv) because such security has been deposited or tendered pursuant to a
Take-over Bid made by such Person or any of such Person's
Affiliates or Associates or any other Person acting jointly or in
concert with such Person until such deposited or tendered security
is taken up or paid for, whichever shall first occur;
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(v) because such security has been agreed to be deposited or tendered
pursuant to a Lock-up Agreement until such deposited or tendered
security is taken up or paid for, whichever shall first occur;
(vi) because such Person or any of the Affiliates or Associates of such
Person or any other Person referred to in clause 1.1e)(iii) above
holds such security provided that: (A) the ordinary business of any
such Person (the "FUND Manager") includes the management of
pension, mutual, pooled or investment funds for others and such
security is held by the Fund Manager in the ordinary course of such
business in the performance of such Fund Manager's duties for the
account of any other Person (a "CLIENT"), including
non-discretionary accounts held on behalf of a Client by a broker
or dealer registered under applicable laws; (B) such Person (the
"TRUST COMPANY") is licensed to carry on the business of a trust
company under applicable laws and, as such, acts as trustee or
administrator or in a similar capacity in relation to the estates
of deceased or incompetent Persons (each an "ESTATE ACCOUNT") or in
relation to other accounts (each an "OTHER ACCOUNT") and holds such
security in the ordinary course of such duties for such Estate
Accounts or for such Other Accounts; (C) such Person (the "PLAN
ADMINISTRATOR") is the administrator or the trustee of one or more
pension funds or plans (a "PLAN") registered under the laws of
Canada or any province thereof or the laws of the United States of
America or any state thereof and such security is held by the Plan
Administrator or the Plan in the ordinary course of such Plan
Administrator's or Plan's activities; (D) such Person (the
"STATUTORY BODY") is established by statute for purposes that
include, and the ordinary business or activity of such Person
includes, the management of investment funds for employee benefit
plans, pension plans or insurance plans of various public bodies
and such security is held by the Statutory Body in the ordinary
course of the management of such investment funds; (E) such Person
(the "CROWN AGENT") is acting as an agent of the Crown for purposes
that include, and the ordinary business or activity of such Person
includes, the management of public assets and such security is held
by the Crown Agent in the ordinary course of the management of such
public assets; or (F) such Person is a Plan and such security is
held by the Plan in the ordinary course of such Plan's activities;
provided, however, that in any of the foregoing cases the Fund
Manager, the Trust Company, the Plan Administrator, the Statutory
Body, the Crown Agent or the Plan, as the case may be, is not then
making or has not then announced a current intention to make a
Take-over Bid, alone or by acting jointly or in concert with any
other Person, other than an Offer to Acquire Voting Shares or other
securities (x) pursuant to a distribution by the Corporation or (y)
by means of a Permitted Bid or (z) by means of market transactions
made in the ordinary course of business of such Person (including
pre-arranged trades entered into in the ordinary course of business
of such Person) executed through the facilities of a stock exchange
or organized over-the-counter-market;
(vii) because such Person is a Client of the same Fund Manager as another
Person on whose account the Fund Manager holds such security, or
because such Person is an Estate Account or an Other Account of the
same Trust Company as another
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Person on whose account the Trust Company holds such security, or
because such Person is a Plan with the same Plan Administrator as
another Plan on whose account the Plan Administrator holds such
security;
(viii) because such Person is a Client of a Fund Manager and such security
is owned at law or in equity by the Fund Manager, or because such
Person is an Estate Account or an Other Account of a Trust Company
and such security is owned at law or in equity by the Trust
Company, or because such Person is a Plan and such security is
owned at law or in equity by the Plan Administrator; or
(ix) because such Person is the registered holder of securities as a
result of carrying on the business of, or acting as, a nominee of a
securities depositary.
For purposes of this Agreement, in determining the percentage of the
outstanding Voting Shares with respect to which a Person is, or is deemed
to be, the Beneficial Owner, any unissued Voting Shares as to which such
Person is deemed the Beneficial Owner pursuant to this Subsection 1.1(d)
shall be deemed outstanding.
f) "BOARD OF DIRECTORS" shall mean the board of directors of the Corporation
or any duly constituted and empowered committee thereof.
g) "BUSINESS DAY" shall mean any day, other than a Saturday or Sunday or a
day on which banking institutions in Montreal, Quebec are authorized or
obligated by law to close.
h) "CANADA BUSINESS CORPORATIONS ACT" shall mean the CANADA BUSINESS
CORPORATIONS ACT (Canada), R.S.C. 1985, c. C-44, as amended and the
regulations thereunder, as from time to time in effect.
i) "CANADIAN DOLLAR EQUIVALENT" of any amount which is expressed in United
States dollars shall mean on any date the Canadian dollar equivalent of
such amount determined by reference to the U.S. - Canadian Exchange Rate
in effect on such date.
j) "CLOSE OF BUSINESS" on any given date shall mean the time on such date
(or, if such date is not a Business Day, the time on the next Business
Day) at which the principal office of the transfer agent for the Shares in
Montreal, Quebec (or after the Separation Time, the principal office of
the Rights Agent in Montreal, Quebec) is closed to the public.
k) "CLOSING PRICE" per security of any securities on any date of
determination shall mean:
(i) the closing board lot sale price or, if such price is not
available, the average of the closing bid and asked prices, for
such securities on such date as reported by the stock exchange or
national securities quotation system on which such securities are
listed or admitted to trading (provided that, if at the date of
determination such securities are listed or admitted to trading on
more than one stock exchange or national securities quotation
system, such price or prices shall be determined based on the stock
exchange or quotation system on which such securities are then
listed or admitted to trading on which the largest number of such
securities were traded during the most recently completed calendar
year or, if a calendar year has
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not been completed prior to the date of determination, during such
shorter period as the Board of Directors acting in good faith
determines to be appropriate); or
(ii) if for any reason none of such prices is available on such date or
the securities are not listed or admitted to trading on a stock
exchange or a national securities quotation system on such date,
the last sale price, or in case no sale takes place on such date,
the average of the high bid and low asked prices for each of such
securities in the over-the-counter market;
provided, however, that (A) if for any reason none of such prices is
available on such date, the "CLOSING PRICE" per security of such
securities on such date shall mean the fair value per security of the
securities on such date as determined at the request of the Board of
Directors by a nationally or internationally recognized investment dealer
or investment banker; and (B) if the Closing Price so determined is
expressed in United States dollars, such amount shall be converted to the
Canadian Dollar Equivalent.
l) "COMPETING PERMITTED BID" means a Take-over Bid that:
(i) is made after a Permitted Bid has been made and prior to the expiry
of the Permitted Bid;
(ii) satisfies all components of the definition of a Permitted Bid other
than the requirement in subclause (ii)(A)(x) thereof; and
(iii) contains, and the take-up and payment for securities tendered or
deposited thereunder is subject to, irrevocable and unqualified
conditions that no Voting Shares shall be taken up or paid for
pursuant to the Take-over Bid prior to the Close of Business on a
date that is earlier than the later of (A) 35 days (or such longer
minimum period of days that a Take-over Bid must remain open for
acceptance under the Securities Act) after the date of the
Take-over Bid; and (B) the 60th day after the earliest date on
which any other Permitted Bid that is then in existence was made.
m) "CONTROLLED": a body corporate is "controlled" by another Person or two or
more Persons acting jointly or in concert if and only if:
(i) securities entitled to vote in the election of directors carrying
more than 50% of the votes for the election of directors are held,
directly or indirectly, by or for the benefit of the other Person
or two or more Persons acting jointly or in concert; and
(ii) the votes carried by such securities are entitled, if exercised, to
elect a majority of the board of directors of such body corporate;
and "CONTROLS", "CONTROLLING" "UNDER COMMON CONTROL WITH" shall be
interpreted accordingly.
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n) "CONVERTIBLE SECURITY" means, with respect to any security, a security
convertible into or exercisable or exchangeable for the first-mentioned
security including, without limitation, share purchase rights, exchange
rights, options and warrants.
o) "CO-RIGHTS AGENTS" shall have the meaning ascribed thereto in Subsection
4.1(a).
p) "DISPOSITION DATE" shall have the meaning ascribed thereto in Subsection
5.1(b).
q) "EFFECTIVE DATE" shall mean the Close of Business on March 29, 2004, being
the date upon which the Toronto Stock Exchange accepted notice for filing
of the Original Agreement.
r) "ELECTION TO EXERCISE" shall have the meaning ascribed thereto in
Subsection 2.2(d).
s) "EXEMPT ACQUISITION" means a share acquisition (i) in respect of which the
Board of Directors has waived the application of Section 3.1 pursuant to
Subsection 5.1(b), 5.1(d) or 5.1(e) or (ii) pursuant to an amalgamation,
merger or other statutory procedure requiring shareholder approval.
t) "EXERCISE PRICE" shall mean, as of any date from and after the Separation
Time, the price at which a holder of a Right may purchase the securities
issuable upon exercise of one whole Right which, subject to adjustment in
accordance with the terms hereof, shall be an aggregate dollar amount
equal to the Market Price per Share (determined as at the Separation Time)
multiplied by five (5).
u) "EXPIRATION TIME" shall mean the earlier of: (i) the Termination Time; and
(ii) the Close of Business on the date on which the first annual meeting
of shareholders of the Corporation following March 29, 2007 (being the
third anniversary of the date of the Original Agreement) is held;
provided, however, that if the resolution referred to in Section 5.20 is
approved by the Independent Shareholders in accordance with Section 5.20
at or prior to such annual meeting, "EXPIRATION TIME" shall mean the
earlier of (A) the Termination Time; and (B) the Close of Business on
March 29, 2010, being the sixth anniversary of the date of the Original
Agreement.
v) "FIDUCIARY" shall mean, when acting in that capacity, a trust company
registered under the trust company legislation of Canada or any province
thereof, a trust company organized under the laws of any state of the
United States, a portfolio manager registered under the securities
legislation of one or more provinces of Canada or an investment adviser
registered under the United States Investment Advisers Act of 1940 or any
other securities legislation of the United States or any state of the
United States.
w) "FLIP-IN EVENT" shall mean a transaction or event in or pursuant to which
any Person becomes an Acquiring Person.
x) "HOLDER" shall have the meaning ascribed thereto in Section 2.8.
y) "INDEPENDENT SHAREHOLDERS" shall mean holders of outstanding Voting
Shares, other than Voting Shares Beneficially Owned by (i) any Acquiring
Person or Offeror other than
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a Person who is deemed not to Beneficially Own such Voting Shares by
reason of clause 1.1e)(vi) hereof; (ii) any Person acting jointly or in
concert with such Acquiring Person or Offeror; (iii) any Associate or
Affiliate of such Acquiring Person or Offeror; and (iv) any employee
benefit plan, stock purchase plan, deferred profit sharing plan and any
similar plan or trust for the benefit of employees of the Corporation or a
corporation controlled by the Corporation, unless the beneficiaries of the
plan or trust direct the manner in which the Voting Shares are to be voted
or withheld from voting or direct whether the Voting Shares are to be
tendered to a Take-over Bid.
z) "LOCK-UP AGREEMENT" means an agreement between an Offeror or any Affiliate
or Associate of an Offeror and one or more holders of Voting Shares (each
such holder herein referred to as a "LOCKED-UP PERSON") who are not
Affiliates or Associates of the Offeror and who are not, other than by
virtue of entering into such agreement, acting jointly or in concert with
the Offeror, the terms of which are publicly disclosed and a copy of which
is made available to the public (including the Corporation) not later than
the date of the Lock-up Bid (as hereinafter defined) or, if the Lock-up
Bid has been made prior to the date of the Lock-up Agreement, not later
than the Business Day following the date the Lock-up Agreement was entered
into, pursuant to which each Locked-up Person agrees to deposit or tender
the Voting Shares held by such holder to a Take-over Bid (the "LOCK-UP
BID") made by the Offeror or any Affiliates or Associates of the Offeror
or any other Person acting jointly or in concert with the Offeror provided
that:
(i) the Lock-up Agreement permits the Locked-up Person to withdraw its
Voting Shares from the Lock-up Agreement and the Lock-up Bid in
order to deposit or tender the Voting Shares to another Take-over
Bid or to support another transaction prior to the Voting Shares
being taken up and paid for under the Lock-up Bid:
(A) at a price or value per Voting Share that exceeds the price or
value per Voting Share offered under the Lock-up Bid; or
(B) for a number of Voting Shares that exceeds by as much as or
more than a number specified in the Lock-up Agreement (the
"SPECIFIED NUMBER") the number of Voting Shares that the
Offeror has offered to purchase under the Lock-up Bid at a
price or value per Voting Share that is not less than the
price or value per Voting Share offered under the Lock-up Bid,
provided that the Specified Number is not greater than 7% of
the number of Voting Shares offered to be purchased under the
Lock-up Bid; or
(C) at such price or value that exceeds by as much as or more than
an amount specified in the Lock-up Agreement (the "SPECIFIED
AMOUNT") the offering price for each Voting Share contained in
or proposed to be contained in the Lock-up Bid, provided that
the Specified Amount is not greater than 7% of the offering
price contained in or proposed to be contained in the Lock-up
Bid;
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for greater certainty, the Lock-up Agreement may contain a right of
first refusal or require a period of delay to give the Person who
made the Lock-up Bid an opportunity to match a higher price in
another Take-over Bid or transaction or other similar limitation on
a Locked-up Person's right to withdraw Voting Shares from the
agreement, so long as the limitation does not preclude the exercise
by the Locked-up Person of the right to withdraw Voting Shares
during the period of the other Take-over Bid or transaction; and
(ii) no "break-up" fees, "topping" fees, penalties, expenses or other
amounts that exceed in aggregate the greater of:
(A) 2 1/2% of the price or value of the aggregate consideration
payable under the Lock-up Bid to a Locked-up Person; and
(B) 50% of the amount by which the price or value of the
consideration received by a Locked-up Person under another
Take-over Bid or transaction exceeds the price or value of the
consideration that the Locked-up Person would have received
under the Lock-up Bid;
shall be payable by such Locked-up Person if the Locked-up Person
fails to deposit or tender Voting Shares to the Lock-up Bid, or
withdraws Voting Shares previously tendered thereto, in order to
deposit or tender such Voting Shares to another Take-over Bid or
support another transaction.
aa) "MARKET PRICE" per security of any securities on any date of determination
shall mean the average of the daily Closing Prices per security of such
securities on each of the 20 consecutive Trading Days through and
including the Trading Day immediately preceding such date of
determination; provided, however, that if an event of a type analogous to
any of the events described in Section 2.3 hereof shall have caused any
Closing Price used to determine the Market Price on any Trading Day not to
be fully comparable with the Closing Price on the Trading Day immediately
preceding such date of determination, each such Closing Price so used
shall be appropriately adjusted in a manner analogous to the applicable
adjustment provided for in Section 2.3 hereof (as determined by the Board
of Directors acting in good faith) in order to make it fully comparable
with the Closing Price on the Trading Day immediately preceding such date
of determination.
bb) "NOMINEE" shall have the meaning ascribed thereto in Subsection 2.2(c).
cc) "OFFER TO ACQUIRE" shall include:
(i) an offer to purchase or a solicitation of an offer to sell Voting
Shares, or a public announcement of an intention to make such an
offer or solicitation; and
(ii) an acceptance of an offer to sell Voting Shares, whether or not
such offer to sell has been solicited;
or any combination thereof, and the Person accepting an offer to sell
shall be deemed to be making an Offer to Acquire to the Person that made
the offer to sell.
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dd) "OFFEROR" shall mean a Person who has announced a current intention to
make, or who is making, a Take-over Bid.
ee) "OFFEROR'S SECURITIES" shall mean the Voting Shares Beneficially Owned on
the date of a Take-over Bid by an Offeror.
ff) "ORIGINAL AGREEMENT" has the meaning ascribed thereto in recital B to this
Agreement.
gg) "PERMITTED BID" means a Take-over Bid made by way of a take-over bid
circular which also complies with the following additional provisions:
(i) the Take-over Bid is made to all holders of record of Voting
Shares, other than the Offeror;
(ii) the Take-over Bid contains, and the take-up and payment for
securities tendered or deposited thereunder is subject to,
irrevocable and unqualified conditions that:
(A) no Voting Shares shall be taken up or paid for pursuant to the
Take-over Bid (x) prior to the Close of Business on a date
which is not less than 60 days following the date of the
Take-over Bid and (y) unless, at the Close of Business on that
date, the Voting Shares deposited or tendered pursuant to the
Take-over Bid and not withdrawn constitute more than 50% of
the Voting Shares outstanding which are held by Independent
Shareholders;
(B) unless the Take-over Bid is withdrawn, Voting Shares may be
deposited pursuant to such Take-over Bid at any time prior to
the Close of Business on the date of the first take-up of or
payment for Voting Shares;
(C) any Voting Shares deposited pursuant to the Take-over Bid may
be withdrawn until taken up and paid for; and
(D) in the event that the requirement set forth in subclause
(A)(y) of this clause 1.1gg)(ii) is satisfied, the Offeror
will make a public announcement of that fact and the Take-over
Bid will remain open for deposits and tenders of Voting Shares
for not less than 10 Business Days from the date of such
public announcement.
For purposes of this Agreement, the term "PERMITTED BID" shall include a
Competing Permitted Bid.
hh) "PERMITTED BID ACQUISITION" means an acquisition of Voting Shares made
pursuant to a Permitted Bid.
ii) "PERSON" includes any individual, firm, partnership, association, trust,
trustee, executor, administrator, legal personal representative,
government, governmental body or authority, corporation, or other
incorporated or unincorporated organization, syndicate or other entity.
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jj) "PRO RATA ACQUISITION" means an acquisition by a Person of Voting Shares
pursuant to (i) any dividend reinvestment plan, such purchase plan or
other plan of the Corporation made available to all holders of Voting
Shares (other than holders resident in any jurisdiction where
participation in such plan is restricted or impractical as a result of
applicable law); (ii) a stock dividend, a stock split or other event
pursuant to which such Person becomes the Beneficial Owner of Voting
Shares on the same pro rata basis as all other holders of Voting Shares of
the same class or series; (iii) the acquisition or exercise of rights to
purchase Voting Shares distributed to all holders of Voting Shares (other
than holders resident in any jurisdiction where such distribution or
exercise is restricted or impractical as a result of applicable law) by
the Corporation pursuant to a rights offering (but only if such rights are
acquired directly from the Corporation); or (iv) a distribution of Voting
Shares or Convertible Securities in respect thereof offered pursuant to a
prospectus or by way of a private placement by the Corporation or a
conversion or exchange of any such Convertible Security, provided that, in
the cases of (iii) and (iv) above, such Person does not thereby acquire a
greater percentage of Voting Shares or Convertible Securities so offered
than the Person's percentage of Voting Shares Beneficially Owned
immediately prior to such acquisition.
kk) "RECORD TIME" means on the Close of Business on the Effective Date.
ll) "REDEMPTION PRICE" shall have the meaning attributed thereto in Subsection
5.1(a).
mm) "REGULAR CASH DIVIDEND" means cash dividends paid on the Shares in any
fiscal year of the Corporation to the extent that such cash dividends do
not exceed in the aggregate in any fiscal year the greatest of:
(i) 200% of the aggregate amount of cash dividends declared payable by
the Corporation on its Shares in its immediately preceding fiscal
year;
(ii) 300% of the arithmetic mean of the aggregate amounts of cash
dividends declared payable by the Corporation on its Shares in its
three immediately preceding fiscal years; and
(iii) 100% of the aggregate consolidated net income of the Corporation,
before extraordinary items, for its immediately preceding fiscal
year.
nn) "RIGHT" shall mean the rights described herein to purchase securities
pursuant to the terms and subject to the conditions set forth herein.
oo) "RIGHTS CERTIFICATE" shall mean the certificates representing the Rights
after the Separation Time which shall be substantially in the form
attached hereto as Exhibit A.
pp) "RIGHTS REGISTER" and "RIGHTS REGISTRAR" shall have the respective
meanings ascribed thereto in Subsection 2.6(a).
qq) "SECURITIES ACT" shall mean the SECURITIES Act, R.S.Q., c. V-1.1, as
amended and the regulations, rules and policy statements made thereunder,
as from time to time in effect.
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rr) "SEPARATION TIME" means the Close of Business on the eighth Trading Day
after the earlier of:
(i) the Stock Acquisition Date; and
(ii) the date of the commencement of, or first public announcement or
disclosure of the intent of any Person (other than the Corporation
or any corporation controlled by the Corporation) to commence, a
Take-over Bid (other than a Permitted Bid, so long as such
Take-over Bid continues to satisfy the requirements of a Permitted
Bid);
or such later Business Day as may be determined at any time or from time
to time by the Board of Directors provided, however, that if any such
Take-over Bid expires, is cancelled, is terminated or is otherwise
withdrawn prior to the Separation Time, without securities deposited
thereunder being taken up and paid for, such Take-over Bid shall be
deemed, for purposes of this Subsection 1.1(pp), never to have been made,
and, provided further, that if the Board of Directors determines, pursuant
to Section 5.1, to waive the application of Section 3.1 to a Flip-in
Event, the Separation Time in respect of such Flip-in Event shall be
deemed never to have occurred.
ss) "SHARES" means the common shares in the share capital of the Corporation,
as such shares may be subdivided, consolidated, reclassified or otherwise
changed from time to time.
tt) "STOCK ACQUISITION DATE" shall mean the first date of public announcement
or disclosure by the Corporation or an Acquiring Person of facts
indicating that a Person has become an Acquiring Person (which, for the
purposes of this definition, shall include, without limitation, a report
filed pursuant to Section 147.11 of the Securities Act or Section 13(d) of
the U.S. Exchange Act disclosing such information).
uu) "TAKE-OVER BID" means an Offer to Acquire Voting Shares of any class, or
Convertible Securities with respect thereto, where the Voting Shares
subject to the Offer to Acquire, together with the Voting Shares into or
for which the securities subject to the Offer to Acquire are convertible
or exchangeable and the Offeror's Securities constitute in the aggregate
20% or more of the outstanding Voting Shares at the date of the Offer to
Acquire.
vv) "TERMINATION TIME" means the time at which the right to exercise Rights
shall terminate pursuant to Section 5.1 hereof.
ww) "TRADING DAY" when used with respect to any securities, means the day on
which the principal Canadian or United States securities exchange (as
determined by the Board of Directors acting in good faith) on which such
securities are listed or admitted to trading is open for the transaction
of business or, if the securities are not listed or admitted to trading on
any Canadian or United States securities exchange, a Business Day.
xx) "U.S. - CANADIAN EXCHANGE RATE" on any date shall mean:
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(i) if on such date the Bank of Canada sets an average noon spot rate
of exchange for the conversion of one United States dollar into
Canadian dollars, such rate; and
(ii) in any other case, the rate for such date for the conversion of one
United States dollar into Canadian dollars which is calculated in
the manner which shall be determined by the Board of Directors from
time to time acting in good faith;
yy) "U.S. EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder as from time to
time in effect.
zz) "VOTING SHARE REDUCTION" means an acquisition or redemption by the
Corporation or any corporation controlled by the Corporation of Voting
Shares which, by reducing the number of Voting Shares outstanding,
increases the percentage of Voting Shares Beneficially Owned by any Person
to 20% or more of the Voting Shares then outstanding.
aaa) "VOTING SHARES" means the Shares and any other securities the holders of
which are entitled to vote generally on the election of directors of the
Corporation, and "VOTING SHARES", when used with reference to any Person
other than the Corporation, means common shares of such other Person and
any other securities the holders of which are entitled to vote generally
on the election of the directors of such other Person.
1.2 CURRENCY
All sums of money which are referred to in this Agreement are expressed in
lawful money of Canada, unless otherwise specified.
1.3 NUMBER AND GENDER
Wherever the context will require, terms (including defined terms) used herein
importing the singular number only shall include the plural and vice versa and
words importing any one gender shall include all others.
1.4 SECTIONS AND HEADINGS
The division of this Agreement into Articles, Sections, Subsections, clauses and
subclauses and the insertion of headings are for convenience of reference only
and shall not affect the construction or interpretation of this Agreement. The
terms this "AGREEMENT", "HEREUNDER", "HEREOF" and similar expressions refer to
this Agreement as amended or supplemented from time to time and not to any
particular Article, Section or other portion hereof and include any agreement or
instrument supplemental or ancillary hereto. Unless something in the subject
matter or context is inconsistent therewith, references herein to Articles,
Sections, Subsections, clauses and subclauses are to Articles, Sections,
Subsections, clauses and subclauses of this Agreement.
1.5 STATUTORY REFERENCES
Unless the context otherwise requires, any reference to a specific Section,
Subsection, clause or Rule of any statute or regulation shall be deemed to refer
to the same as it may be amended,
15
reenacted or replaced or, if repealed and there shall be no replacement
therefor, to the same as it is in effect on the date of this Agreement.
1.6 DETERMINATION OF PERCENTAGE OWNERSHIP
The percentage of Voting Shares Beneficially Owned by any Person, shall, for the
purposes of this Agreement, be and be deemed to be the product determined by the
formula:
100 x A/B
where:
A = the aggregate number of votes for the election of all directors
generally attaching to the Voting Shares Beneficially Owned by
such Person; and
B = the aggregate number of votes for the election of all directors
generally attaching to all outstanding Voting Shares.
Where any Person is deemed to Beneficially Own unissued Voting Shares pursuant
to Subsection 1.1e), such Voting Shares shall be deemed to be outstanding for
the purpose of both A and B in the formula above.
1.7 ACTING JOINTLY OR IN CONCERT
For the purposes of this Agreement, a Person is acting jointly or in concert
with every Person who is a party to an agreement, commitment or understanding,
whether formal or informal and whether or not in writing, with the first Person,
to acquire or to Offer to Acquire Voting Shares or Convertible Securities in
respect thereof (other than customary agreements with and between underwriters
and banking group or selling group members with respect to a distribution of
securities or pursuant to a pledge of securities in the ordinary course of the
pledgee's business).
ARTICLE 2
THE RIGHTS
2.1 LEGEND ON SHARE CERTIFICATES
a) Certificates representing the Shares, including without limitation Shares
issued upon the conversion of Convertible Securities, issued after the
Record Time but prior to the Close of Business on the earlier of the
Separation Time and the Expiration Time shall also evidence one Right for
each Share represented thereby and shall have impressed on, printed on,
written on or otherwise affixed to them the legend set forth in the
Original Agreement (which legend shall be deemed for all purposes to be
amended to read the same as set forth below), but Share certificates
issued after the Amendment Date but prior to the Close of Business on the
earlier of the Separation Time and the Expiration Time shall have
impressed on, printed on, written on or otherwise affixed to them the
following legend:
16
"Until the Separation Time (as defined in the Rights Agreement referred to
below), this certificate also evidences and entitles the holder hereof to
certain Rights as set forth in an Amended and Restated Shareholder Rights
Plan Agreement, dated as of March 5, 2007 (the "Rights Agreement"),
between the Corporation and Computershare Trust Company of Canada, as
rights agent, as the same may be amended or supplemented from time to time
in accordance with the terms thereof, the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
registered office of the Corporation. Under certain circumstances, as set
forth in the Rights Agreement, such Rights may be amended or redeemed, may
expire, may become void (if, in certain cases, they are "Beneficially
Owned" by an "Acquiring Person", as such terms are defined in the Rights
Agreement, whether currently held by or on behalf of such Person or any
subsequent holder) or may be evidenced by separate certificates and may no
longer be evidenced by this certificate. The Corporation will mail or
arrange for the mailing of a copy of the Rights Agreement to the holder of
this certificate without charge as soon as practicable after the receipt
of a written request therefor.
Jusqu'a l'heure de separation (definie dans la convention visant les
Droits mentionnee ci-dessous), le present certificat atteste egalement que
son porteur jouit de certains Droits stipules dans une convention visant
un regime de droits de souscription des actionnaires modifiee et mise a
jour intervenue en date du 5 mars 2007 (< < convention visant les Droits
>>) entre la Societe et Societe de fiducie Computershare du Canada, a
titre d'agent des Droits, en sa version pouvant etre modifiee ou completee
de temps a autre conformement aux modalites des presentes, convention dont
les conditions sont integrees dans les presentes par renvoi et dont une
copie se trouve dans les dossiers tenus au siege social de la Societe.
Dans certaines circonstances stipulees dans la convention visant les
Droits, ces Droits peuvent etre modifies ou rachetes ou peuvent expirer ou
devenir nuls (si, dans certains cas, ils sont < < detenus a titre de
veritable proprietaire >> par une < < personne faisant une acquisition >>,
selon la definition de ces termes dans la convention visant les Droits,
qu'ils soient detenus actuellement par cette personne ou un porteur
ulterieur ou pour le compte de ceux-ci). Les Droits peuvent aussi etre
attestes par des certificats distincts et peuvent ne plus etre attestes
par le present certificat. La Societe postera ou fera poster sans frais
une copie de la convention visant les Droits au porteur du present
certificat des que possible apres la reception d'une demande ecrite a cet
effet."
b) Certificates representing Shares that have been issued prior to, and
remain outstanding at, the Record Time or the Amendment Date, as the case
may be, shall evidence one Right for each Share evidenced thereby until
the earlier of the Separation Time and the Expiration Time notwithstanding
the absence of the legend required by Subsection 2.1a).
2.2 INITIAL EXERCISE PRICE; EXERCISE OF RIGHTS; DETACHMENT OF RIGHTS
a) Subject to adjustment as herein set forth, including without limitation as
set forth in Article 3, each Right will entitle the holder thereof, from
and after the Separation Time and prior to the Expiration Time, to
purchase one Share for the Exercise Price (which Exercise Price and number
of Shares are subject to adjustment as set forth below). Notwithstanding
any other provision of this Agreement, any Rights held by the Corporation
or any of its subsidiaries shall be void.
17
b) Until the Separation Time, (i) the Rights shall not be exercisable and no
Right may be exercised; and (ii) for administrative purposes, each Right
will be evidenced by the certificate for the associated Shares registered
in the name of the holder thereof (which certificate shall be deemed to
represent a Rights Certificate) and will be transferable only together
with, and will be transferred by a transfer of, such associated Shares.
c) From and after the Separation Time and prior to the Expiration Time, the
Rights may be exercised, and the registration and transfer of the Rights
shall be separate from and independent of Shares. Promptly following the
Separation Time, the Corporation will prepare or cause to be prepared and
the Rights Agent will mail to each holder of record of Shares as of the
Separation Time and, in respect of each Convertible Security converted
into Shares after the Separation Time and prior to the Expiration Time,
promptly after such conversion, the Corporation will prepare or cause to
be prepared and the Rights Agent will mail to the holder so converting
(other than in each case an Acquiring Person and, in respect of any Rights
Beneficially Owned by such Acquiring Person which are not held of record
by such Acquiring Person, the holder of record of such rights (a
"NOMINEE")) at such holder's address as shown by the records of the
Corporation (the Corporation hereby agreeing to furnish copies of such
record to the Rights Agent for this purpose):
(i) a Rights Certificate in substantially the form of Exhibit A hereto
appropriately completed, representing the number of Rights held by
such holder at the Separation Time and having such marks of
identification or designation and such legends, summaries or
endorsements printed thereon as the Corporation may deem
appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law, rule or
regulation or judicial or administrative order, or with any
article, requirement or regulation of any stock exchange or
quotation system on which the Rights may from time to time be
listed or traded, or to conform to usage; and
(ii) a disclosure statement prepared by the Corporation describing the
Rights;
provided that a Nominee shall be sent the materials provided for in (i)
and (ii) only in respect of all Shares held of record by it which are not
Beneficially Owned by an Acquiring Person and the Corporation may require
any Nominee or suspected Nominee to provide such information and
documentation as the Corporation may reasonably require for such purpose.
d) Rights may be exercised in whole or in part on any Business Day after the
Separation Time and prior to the Expiration Time by submitting to the
Rights Agent at its principal office in Montreal, Quebec, or any other
office of the Rights Agent designated for that purpose from time to time
by the Corporation:
(i) the Rights Certificate evidencing such Rights;
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(ii) an election to exercise (an "ELECTION TO EXERCISE") substantially
in the form attached to the Rights Certificate duly completed and
executed in a manner acceptable to the Rights Agent; and
(iii) payment by certified cheque, banker's draft or money order payable
to the order of the Rights Agent, or by wire transfer to an account
designated by the Rights Agent, of a sum equal to the Exercise
Price multiplied by the number of Rights being exercised and a sum
sufficient to cover any transfer tax or charge which may be payable
in respect of any transfer involved in the transfer or delivery of
Rights Certificates or the issuance or delivery of certificates for
Shares in a name other than that of the holder of the Rights being
exercised.
e) Upon receipt of a Rights Certificate, which is accompanied by an
appropriately completed and duly executed Election to Exercise (which does
not indicate that such Right is null and void as provided by Subsection
3.1(b)) and payment as set forth in Subsection 2.2(d), the Rights Agent
(unless otherwise instructed by the Corporation) will thereupon promptly:
(i) requisition from the transfer agent of the Shares certificates
representing the number of Shares to be purchased (the Corporation
hereby irrevocably authorizing its transfer agent to comply with
all such requisitions);
(ii) after receipt of such share certificates, deliver such certificates
to, or to the order of, the registered holder of such Rights
Certificate, registered in such name or names as may be designated
by such holder;
(iii) when appropriate, requisition from the Corporation the amount of
cash, if any, to be paid in lieu of issuing fractional Shares;
(iv) when appropriate, after receipt of such cash, deliver such cash to,
or to the order of, the registered holder of the Rights
Certificate; and
(v) tender to the Corporation all payments received on exercise of the
Rights.
f) If the holder of any Rights shall exercise less than all of the Rights
evidenced by such holder's Rights Certificate, a new Rights Certificate
evidencing the Rights remaining unexercised will be issued by the Rights
Agent to such holder or to such holder's duly authorized assigns.
g) The Corporation shall:
(i) take all such action as may be necessary and within its power to
ensure that all Shares delivered upon the exercise of Rights shall,
at the time of delivery of the certificates for such Shares
(subject to payment of the Exercise Price), be duly and validly
authorized, executed, issued and delivered as fully paid and
non-assessable;
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(ii) take all such action as may reasonably be considered to be
necessary and within its power to comply with any applicable
requirements of the Canada Business Corporations Act, the
Securities Act, the U.S. Exchange Act, the United States Securities
Act of 1933, as amended, and applicable comparable legislation of
each of the provinces and territories of Canada and states of the
United States of America, or the rules and regulations thereunder
or any other applicable law, rule or regulation, in connection with
the issuance and delivery of the Rights, the Rights Certificates
and the issuance of any Shares upon exercise of the Rights;
(iii) use reasonable efforts to cause all Shares issued upon exercise of
the Rights to be listed on the stock exchanges on which the Shares
are listed at that time;
(iv) cause to be reserved and kept available out of its authorized and
unissued Shares, the number of Shares that, as provided in this
Agreement, will from time to time be sufficient to permit the
exercise in full of all outstanding Rights;
(v) pay when due and payable, if applicable, any and all federal,
provincial, state and municipal taxes (not in the nature of income,
capital gains or withholding taxes) and charges which may be
payable in respect of the original issuance or delivery of the
Rights Certificates or certificates for Shares issued upon the
exercise of Rights, provided that the Corporation shall not be
required to pay any transfer tax or charge which may be payable in
respect of any transfer of Rights or the issuance or delivery of
certificates for Shares issued upon the exercise of Rights, in a
name other than that of the holder of the Rights being transferred
or exercised; and
(vi) after the Separation Time, except as permitted by Section 5.1 or
Section 5.4, not take (or permit any corporation it controls to
take) any action if at the time such action is taken it is
reasonably foreseeable that such action will diminish substantially
or otherwise eliminate the benefits intended to be afforded by the
Rights.
2.3 ADJUSTMENTS TO EXERCISE PRICE; NUMBER OF RIGHTS
a) The Exercise Price, the number and kind of securities subject to purchase
upon exercise of each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this Section 2.3
and in Article 3. Fractional interests in securities resulting from such
adjustments are subject to Section 5.5.
b) In the event that the Corporation shall at any time after the Record Time
and prior to the Expiration Time:
(i) declare or pay a dividend on the Shares payable in Voting Shares or
Convertible Securities in respect thereof other than pursuant to
any dividend reinvestment plan or program;
(ii) subdivide or change the then outstanding Shares into a greater
number of Shares;
20
(iii) consolidate, combine or change the then outstanding Shares into a
smaller number of Shares; or
(iv) issue any Voting Shares (or Convertible Securities in respect
thereof) in respect of, in lieu of, or in exchange for existing
Shares, whether in a reclassification, amalgamation, statutory
arrangement, consolidation or otherwise;
the Exercise Price and the number of Rights outstanding (or, if the
payment or effective date therefor shall occur after the Separation Time,
the securities purchasable upon the exercise of Rights) shall be adjusted
as follows:
(A) If the Exercise Price and number of Rights outstanding are to
be adjusted:
(x) the Exercise Price in effect after such adjustment will
be equal to the Exercise Price in effect immediately
prior to such adjustment divided by the number of Shares
(or other securities of the Corporation) that a holder of
one Shares immediately prior to such dividend,
subdivision, change, consolidation or issuance would hold
thereafter as a result thereof; and
(y) each Right held prior to such adjustment will become that
number of Rights equal to that number that is equal to
the number of Shares (or other securities of the
Corporation) that a holder of one Shares immediately
prior to such dividend, subdivision, change,
consolidation or issuance would hold immediately
thereafter as a result thereof, and the adjusted number
of Rights will be deemed to be allocated among the Shares
with respect to which the original Rights were associated
(if they remain outstanding) and the securities of the
Corporation issued in respect of such dividend,
subdivision, change, consolidation or issuance, so that
each such Shares (or other security of the Corporation)
will have exactly one Right associated with it.
(B) If the securities purchasable upon exercise of Rights are to
be adjusted, the securities purchasable upon exercise of each
Right after such adjustment will be the securities that a
holder of the securities purchasable upon exercise of one
Right immediately prior to such dividend, subdivision, change,
consolidation or issuance would hold thereafter as a result
thereof.
c) Adjustments pursuant to Subsection 2.3(b) shall be made successively,
whenever an event referred to in Subsection 2.3(b) occurs.
d) If an event occurs which would require an adjustment under both this
Section 2.3 and Section 3.1 hereof, the adjustment provided for in this
Section 2.3 shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 3.1 hereof.
e) In the event the Corporation shall at any time after the Record Time and
prior to the Expiration Time issue any Shares otherwise than in a
transaction referred to in
21
Subsection 2.3(b), each such Share so issued shall automatically have one
new Right associated with it, which Right shall be evidenced by the
certificate representing such Shares.
f) In the event the Corporation shall, at any time after the Record Time and
prior to the Expiration Time, fix a record date for the making of a
distribution to all holders of Shares of rights or warrants entitling them
(for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Shares (or Convertible Securities in respect of
Shares) at a price per Share (or, in the case of such a Convertible
Security, having a conversion, exchange or exercise price per share
(including the price required to be paid to purchase such Convertible
Security)) less than 90% of the Market Price per Share on such record
date, the Exercise Price in effect after such record date will equal the
Exercise Price in effect immediately prior to such record date multiplied
by a fraction;
(i) of which the numerator shall be the number of Shares outstanding on
such record date plus the number of Shares which the aggregate
offering price of the total number of Shares so to be offered
(and/or the aggregate initial conversion, exchange or exercise
price of the Convertible Securities so to be offered (including the
price required to be paid to purchase such Convertible Securities))
would purchase at such Market Price per Share; and
(ii) of which the denominator shall be the number of Shares outstanding
on such record date plus the number of additional Shares to be
offered for subscription or purchase (or into which the Convertible
Securities so to be offered are initially convertible, exchangeable
or exercisable).
In case such subscription price is satisfied, in whole or in part, by
consideration other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors. Such adjustment shall
be made successively whenever such a record date is fixed. To the extent
that such rights or warrants are not exercised prior to the expiration
thereof, the Exercise Price shall be readjusted in the manner contemplated
above based on the number of Shares (or securities convertible into or
exchangeable for Shares) actually issued on the exercise of such rights or
warrants.
For purposes of this Agreement, the granting of the right to purchase
Shares (whether from treasury or otherwise) pursuant to any dividend or
interest reinvestment plan or program or any share purchase plan or
program providing for the reinvestment of dividends or interest payable on
securities of the Corporation or the investment of periodic optional
payments or employee benefit or similar plans (so long as such right to
purchase is in no case evidenced by the delivery of rights or warrants by
the Corporation) shall not be deemed to constitute an issue of rights or
warrants by the Corporation; provided, however, that in the case of any
dividend or interest reinvestment or share purchase plan or program, the
right to purchase Shares is at a price per share of not less than 90% of
the current Market Price per share (determined as provided in such plans)
of the Shares.
22
g) In the event the Corporation shall, at any time after the Record Time and
prior to the Expiration Time, fix a record date for the making of a
distribution to all holders of Shares of (i) evidences of indebtedness or
assets (other than a Regular Cash Dividend or a dividend paid in Shares,
but including any dividend payable in securities other than Shares), (ii)
rights or warrants entitling them to subscribe for or purchase Voting
Shares (or Convertible Securities in respect of Voting Shares), at a price
per Voting Share (or, in the case of a Convertible Security in respect of
Voting Shares, having a conversion, exchange or exercise price per share
(including the price required to be paid to purchase such Convertible
Security)) less than 90% of the Market Price per Share on such record date
(excluding rights or warrants referred to in Subsection 2.3(f)) or (iii)
other securities of the Corporation, the Exercise Price in effect after
such record date shall be equal to the Exercise Price in effect
immediately prior to such record date less the fair market value (as
determined in good faith by the Board of Directors) of the portion of the
assets, evidences of indebtedness, rights or warrants or other securities
so to be distributed applicable to each of the securities purchasable upon
exercise of one Right. Such adjustment shall be made successively whenever
such a record date is fixed.
h) Each adjustment made pursuant to Section 2.3 shall be made as of
(i) the payment or effective date for the applicable dividend,
subdivision, change, consolidation or issuance, in the case of an
adjustment made pursuant to Subsection 2.3(b) above; and
(ii) the record date for the applicable dividend or distribution, in the
case of an adjustment made pursuant to Subsections 2.3(f) or 2.3(g)
above, subject to readjustment to reverse the same if such
distribution shall not be made.
i) In the event the Corporation shall, at any time after the Record Time and
prior to the Expiration Time, issue any shares (other than Shares), or
rights or warrants to subscribe for or purchase any such shares, or
Convertible Securities in respect of any such shares, in a transaction
referred to in any of clauses 2.3(b)(i) to (iv), Subsection 2.3(f) or
Subsection 2.3(g) above, if the Board of Directors acting in good faith
determines that the adjustments contemplated by Subsections 2.3(b), 2.3(f)
and 2.3(g) above in connection with such transaction would not
appropriately protect the interests of the holders of Rights, the Board of
Directors may from time to time acting in good faith determine what other
adjustments, if any, to the Exercise Price, number of Rights or securities
purchasable upon exercise of Rights would be appropriate in the
circumstances, if any, and such other adjustments (if any) shall be made
upon the Board of Directors providing written certification thereof to the
Rights Agent pursuant to Subsection 2.3(q) and no adjustments contemplated
by Subsections 2.3(b), 2.3(f) or 2.3(g) shall be made notwithstanding the
terms thereof. The Corporation and the Rights Agent shall amend this
Agreement in accordance with Section 5.4 to provide for any such other
adjustments contemplated by this Subsection 2.3(i).
j) Notwithstanding anything herein to the contrary, no adjustment of the
Exercise Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in such Exercise Price; provided,
however, that any adjustments which by reason of
23
this Subsection 2.3(j) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
adjustments to the Exercise Price made pursuant to this Section 2.3 shall
be calculated to the nearest cent.
k) All Rights originally issued by the Corporation subsequent to any
adjustment made to the Exercise Price hereunder shall evidence the right
to purchase, at the adjusted Exercise Price, the number of Shares
purchasable from time to time hereunder upon exercise of the Rights, all
subject to further adjustment as provided herein.
l) Unless the Corporation shall have exercised its election as provided in
Subsection 2.3(m) to adjust the number of Rights in lieu of any adjustment
in the number of Shares purchasable upon the exercise of a Right, upon
each adjustment of the Exercise Price as a result of the calculations made
in Subsections 2.3(f) and 2.3(g), each Right outstanding immediately prior
to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Exercise Price, that number of Shares obtained
by:
(i) multiplying (A) the number of Shares covered by a Right immediately
prior to such adjustment, by (B) the Exercise Price in effect
immediately prior to such adjustment; and
(ii) dividing the product so obtained by the Exercise Price in effect
immediately after such adjustment.
m) The Corporation may elect on or after the date of any adjustment of the
Exercise Price to adjust the number of Rights, in lieu of any adjustment
in the number of Shares purchasable upon the exercise of a Right. Each of
the Rights outstanding after the adjustment in the number of Rights shall
be exercisable for the number of Shares for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record prior to
such adjustment of the number of Rights shall become the number of Rights
obtained by dividing the relevant Exercise Price in effect immediately
prior to adjustment of the relevant Exercise Price by the relevant
Exercise Price in effect immediately after adjustment of the relevant
Exercise Price. The Corporation shall make a public announcement of its
election to adjust the number of Rights pursuant to this Subsection
2.3(m), indicating the record date for the adjustment; and, if known at
the time, the amount of the adjustment to be made. This record date may be
the date on which the relevant Exercise Price is adjusted or any day
thereafter, but, if the Rights Certificates have been issued, shall be at
least 10 calendar days later than the date of the public announcement. If
Rights Certificates have been issued, upon each adjustment of the number
of Rights pursuant to this Subsection 2.3(m), the Corporation shall, as
promptly as practicable, cause to be distributed to holders of record of
Rights Certificates on such record date, Rights Certificates evidencing,
subject to Section 5.5, the additional Rights to which such holders shall
be entitled as a result of such adjustment, or, at the option of the
Corporation, shall cause to be distributed to such holders of record in
substitution and replacement for the Rights Certificates held by such
holders prior to the date of adjustment, and upon surrender thereof, if
required by the Corporation, new Rights Certificates evidencing all the
Rights to which such holders shall be entitled after such adjustment.
Rights Certificates so to be distributed shall be issued, executed and
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countersigned in the manner provided for herein and may bear, at the
option of the Corporation, the relevant adjusted Exercise Price and shall
be registered in the names of holders of record of Rights Certificates on
the record date specified in the public announcement.
n) In any case in which this Section 2.3 shall require that an adjustment in
an Exercise Price be made effective as of a record date for a specified
event, the Corporation may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised after such record
date of the number of Shares and other securities of the Corporation, if
any, issuable upon such exercise over and above the number of Shares and
other securities of the Corporation, if any, issuable upon such exercise
on the basis of the relevant Exercise Price in effect prior to such
adjustment; provided, however, that the Corporation shall deliver to such
holder an appropriate instrument evidencing such holder's right to receive
such additional Shares (fractional or otherwise) or other securities upon
the occurrence of the event requiring such adjustment.
o) Notwithstanding anything in this Section 2.3 to the contrary, the
Corporation shall be entitled to make such adjustments in the Exercise
Price, in addition to those adjustments expressly required by this Section
2.3, as and to the extent that in its good faith judgment the Board of
Directors shall determine to be advisable in order that any (i)
subdivision or consolidation of the Shares, (ii) issuance wholly for cash
of any Shares at less than the applicable Market Price, (iii) issuance
wholly for cash of any Shares or securities that by their terms are
exchangeable for or convertible into or give a right to acquire Shares,
(iv) stock dividends, or (v) issuance of rights, options or warrants
referred to in this Section 2.3, hereafter made by the Corporation to
holders of its Shares, shall not be taxable to such shareholders.
p) Irrespective of any adjustment or change in the securities purchasable
upon exercise of the Rights, the Rights Certificates theretofore and
thereafter issued may continue to represent the securities so purchasable
which were represented in the initial Rights Certificates issued
hereunder.
q) Whenever an adjustment to the Exercise Price is made pursuant to this
Section 2.3, the Corporation shall
(i) promptly prepare a certificate setting forth such adjustment and a
brief statement of the facts accounting for such adjustment; and
(ii) promptly file with the Rights Agent and with each transfer agent
for the Shares a copy of such certificate and mail a brief summary
thereof to each holder of Rights who requests a copy.
Failure to file such certificate or to cause such notice to be given as
aforesaid, or any defect therein, shall not affect the validity of any
such adjustment or change.
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2.4 DATE ON WHICH EXERCISE IS EFFECTIVE
Each Person in whose name any certificate for Shares is issued upon the exercise
of Rights shall for all purposes be deemed to have become the holder of record
of the Shares represented thereby on, and such certificate shall be dated, the
date upon which the Rights Certificate evidencing such Rights was duly
surrendered (together with a duly completed Election to Exercise) and payment of
the Exercise Price for such Rights (and any applicable transfer taxes and other
governmental charges payable by the exercising Person hereunder) was made;
provided, however, that if the date of such surrender and payment is a date upon
which the transfer books of the Corporation's Shares are closed, such Person
shall be deemed to have become the record holder of such shares on, and such
certificate shall be dated, the next Business Day on which the Shares transfer
books of the Corporation are open.
2.5 EXECUTION, AUTHENTICATION, DELIVERY AND DATING OF RIGHTS CERTIFICATES
a) The Rights Certificates shall be executed on behalf of the Corporation by
any two officers of the Corporation. The signature of any of these
officers on the Rights Certificates may be manual or facsimile. Rights
Certificates bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Corporation shall bind the
Corporation, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the countersignature and delivery of
such Rights Certificates.
b) Promptly following the Separation Time, the Corporation will notify the
Rights Agent of such Separation Time and will deliver Rights Certificates
executed by the Corporation to the Rights Agent for countersignature and a
statement describing the Rights, and the Rights Agent shall countersign
manually (or by facsimile signature in a manner satisfactory to the
Corporation) and deliver such Rights Certificates and statement to the
holders of the Rights pursuant to Section 2.2 hereof. No Rights
Certificate shall be valid for any purpose until countersigned by the
Rights Agent as aforesaid.
c) Each Rights Certificate shall be dated the date of countersignature
thereof.
2.6 REGISTRATION, TRANSFER AND EXCHANGE
a) After the Separation Time, the Corporation shall cause to be kept a
register (the "RIGHTS REGISTER") in which, subject to such reasonable
regulations as it may prescribe, the Corporation will provide for the
registration and transfer of Rights. The Rights Agent is hereby appointed
"RIGHTS REGISTRAR" for the purpose of maintaining the Rights Register for
the Corporation and registering Rights and transfers of Rights as herein
provided and the Rights Agent hereby accepts such appointment. In the
event that the Rights Agent shall cease to be the Rights Registrar, the
Rights Agent will have the right to examine the Rights Register at all
reasonable times.
b) After the Separation Time and prior to the Expiration Time, upon surrender
for registration of transfer or exchange of any Rights Certificate, and
subject to the provisions of Subsections 2.6(d) and 3.1(b) below, the
Corporation will execute, and the Rights Agent will countersign, deliver
and register, in the name of the holder or the designated transferee or
transferees, as required pursuant to the holder's instructions, one
26
or more new Rights Certificates evidencing the same aggregate number of
Rights as did the Rights Certificates so surrendered.
c) All Rights issued upon any registration of transfer or exchange of Rights
Certificates shall be valid obligations of the Corporation, and such
Rights shall be entitled to the same benefits under this Agreement as the
Rights surrendered upon such registration of transfer or exchange.
d) Every Rights Certificate surrendered for registration of transfer or
exchange shall be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Corporation or the Rights Agent,
as the case may be, duly executed by the holder thereof or such holder's
attorney duly authorized in writing. As a condition to the issuance of any
new Rights Certificate under this Section 2.6, the Corporation may require
the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Rights Agent) in connection
therewith.
2.7 MUTILATED, LOST, STOLEN AND DESTROYED RIGHTS CERTIFICATES
a) If any mutilated Rights Certificate is surrendered to the Rights Agent
prior to the Expiration Time, the Corporation shall execute and the Rights
Agent shall countersign and deliver in exchange therefor a new Rights
Certificate evidencing the same number of Rights as did the Rights
Certificate so surrendered.
b) If there shall be delivered to the Corporation and the Rights Agent prior
to the Expiration Time: (i) evidence to their reasonable satisfaction of
the destruction, loss or theft of any Rights Certificate; and (ii) such
security or indemnity as may be reasonably required by them to save each
of them and any of their agents harmless, then, in the absence of notice
to the Corporation or the Rights Agent that such Rights Certificate has
been acquired by a bona fide purchaser, the Corporation shall execute and,
upon the Corporation's request the Rights Agent shall countersign and
deliver, in lieu of any such destroyed, lost or stolen Rights Certificate,
a new Rights Certificate evidencing the same number of Rights as did the
Rights Certificate so destroyed, lost or stolen.
c) As a condition to the issuance of any new Rights Certificate under this
Section 2.7, the Corporation may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses
of the Rights Agent) connected therewith.
d) Every new Rights Certificate issued pursuant to this Section 2.7 in lieu
of any destroyed, lost or stolen Rights Certificate shall evidence a
contractual obligation of the Corporation, whether or not the destroyed,
lost or stolen Rights Certificate shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Agreement
equally and proportionately with any and all other Rights duly issued
hereunder.
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2.8 PERSONS DEEMED OWNERS
The Corporation, the Rights Agent and any agent of the Corporation or the Rights
Agent may deem and treat the Person in whose name a Rights Certificate (or,
prior to the Separation Time, the associated share certificate representing the
Shares) is registered as the absolute owner thereof and of the Rights evidenced
thereby for all purposes whatsoever. As used in this Agreement, unless the
context otherwise requires, the term "HOLDER" of any Rights shall mean the
registered holder of such Rights (or, prior to the Separation Time, the
associated Shares).
2.9 DELIVERY AND CANCELLATION OF CERTIFICATES
All Rights Certificates surrendered upon exercise or for redemption, for
registration of transfer or for exchange shall, if surrendered to any Person
other than the Rights Agent, be delivered to the Rights Agent and, in any case,
shall be promptly cancelled by the Rights Agent. The Corporation may at any time
deliver to the Rights Agent for cancellation any Rights Certificates previously
countersigned and delivered hereunder which the Corporation may have acquired in
any manner whatsoever, and all Rights Certificates so delivered shall be
promptly cancelled by the Rights Agent. No Rights Certificate shall be
countersigned in lieu of or in exchange for any Rights Certificates cancelled as
provided in this Section 2.9 except as expressly permitted by this Agreement.
The Rights Agent shall, subject to applicable law, destroy all cancelled Rights
Certificates and deliver a certificate of destruction to the Corporation.
2.10 AGREEMENT OF RIGHTS HOLDERS
Every holder of Rights, by accepting such Rights, consents and agrees with the
Corporation and the Rights Agent and with every other holder of Rights:
a) to be bound by and subject to the provisions of this Agreement, as amended
from time to time in accordance with the terms hereof, in respect of all
Rights held;
b) that, prior to the Separation Time, each Right will be transferable only
together with, and will be transferred by a transfer of, the associated
Shares;
c) that, after the Separation Time, the Rights will be transferable only on
the Rights Register as provided herein;
d) that prior to due presentment of a Rights Certificate (or, prior to the
Separation Time, the associated share certificate representing the Shares)
for registration of transfer, the Corporation, the Rights Agent and any
agent of the Corporation or the Rights Agent may deem and treat the Person
in whose name the Rights Certificate (or, prior to the Separation Time,
the associated Shares certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations
of ownership or writing on such Rights Certificate or the associated share
certificate made by anyone other than the Corporation or the Rights Agent)
for all purposes whatsoever, and neither the Corporation nor the Rights
Agent shall be affected by any notice to the contrary;
e) that such holder of Rights has waived its right to receive any fractional
Rights or any fractional Shares or other securities upon exercise of a
Right (except as provided herein);
28
f) that, subject to the provisions of Section 5.4, without the approval of
any holder of Rights or Voting Shares and upon the sole authority of the
Board of Directors acting in good faith, this Agreement may be
supplemented or amended from time to time as provided herein; and
g) that notwithstanding anything in this Agreement to the contrary, neither
the Corporation nor the Rights Agent shall have any liability to any
holder of a Right or any other Person as a result of its inability to
perform any of its obligations under this Agreement by reason of any
preliminary or permanent injunction or other order, decree or ruling
issued by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of such
obligation.
ARTICLE 3
ADJUSTMENTS TO THE RIGHTS
3.1 FLIP-IN EVENT
a) Subject to Sections 3.1(b) and 5.1, in the event that prior to the
Expiration Time a Flip-in Event occurs, each Right shall thereafter
constitute the right to purchase from the Corporation, upon exercise
thereof in accordance with the terms hereof, that number of Shares as have
an aggregate Market Price on the date of consummation or occurrence of
such Flip-in Event equal to twice the Exercise Price for an amount in cash
equal to the Exercise Price (such Right to be appropriately adjusted in a
manner analogous to the applicable adjustment provided for in Section 2.3
in the event that, after such date of consummation or occurrence, an event
of a type analogous to any of the events described in Section 2.3 shall
have occurred with respect to such Shares).
b) Notwithstanding anything in this Agreement to the contrary, upon the
occurrence of any Flip-in Event, any Rights that are or were Beneficially
Owned on or after the earlier of the Separation Time and the Stock
Acquisition Date, or which may thereafter be Beneficially Owned, by:
(i) an Acquiring Person (or any Affiliate or Associate of an Acquiring
Person or any other Person acting jointly or in concert with an
Acquiring Person or any Associate or Affiliate of such other
Person); or
(ii) a transferee of Rights, direct or indirect, from an Acquiring
Person (or from any Affiliate or Associate of an Acquiring Person
or any Person acting jointly or in concert with an Acquiring Person
or any Associate or Affiliate thereof) where such a transferee
becomes a transferee concurrently with or subsequent to the
Acquiring Person becoming such in a transfer that the Board of
Directors, acting in good faith, has determined is part of a plan,
arrangement or scheme of an Acquiring Person (or of any Person
acting jointly or in concert with an Acquiring Person or any
Associate or Affiliate of an Acquiring Person), that has the
purpose or effect of avoiding clause 3.1(b)(i);
29
shall become null and void without any further action and any holder of
such Rights (including any transferee of, or other successor entitled to,
such Rights, whether directly or indirectly) shall thereafter have no
right to exercise such Rights under any provisions of this Agreement and
further shall thereafter not have any rights whatsoever with respect to
such Rights, whether under any provision of this Agreement or otherwise.
The holder of any Rights represented by a Rights Certificate which is
submitted to the Rights Agent upon exercise or for registration of
transfer or exchange which does not contain the necessary certifications
set forth in the Rights Certificate establishing that such Rights are not
void under this Subsection 3.1(b) shall be deemed to be an Acquiring
Person for the purposes of this Subsection 3.1(b) and such Rights shall
become null and void.
c) Any Rights Certificate that represents Rights Beneficially Owned by a
Person described in either of clauses 3.1b)(i) or 3.1b)(ii) or transferred
to any Nominee of any such Person, and any Rights Certificate issued upon
transfer, exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain or will be deemed
to contain the following legend:
"The Rights represented by this Rights Certificate were issued to a
Person who was an Acquiring Person or an Affiliate or an Associate
of an Acquiring Person (as such terms are defined in the Rights
Agreement) or to a Person acting jointly or in concert with any of
them. This Rights Certificate and the Rights represented hereby
shall be void in the circumstances specified in Subsection 3.1(b)
of the Rights Agreement.
Les Droits representes par le present certificat de Droits ont ete
emis a une personne qui etait une personne faisant une acquisition
ou un membre du meme groupe qu'elle ou une personne avec qui elle
avait des liens (selon la definition de ces termes dans la
convention visant les Droits) ou a une personne agissant
conjointement ou de concert avec l'un de ceux-ci. Le present
certificat de Droits et les Droits representes par celui-ci seront
nuls dans les circonstances precisees a l'alinea 3.1(b) de la
convention visant les Droits."
The Rights Agent shall not be under any responsibility to ascertain the
existence of facts that would require the imposition of such legend but
shall be required to impose such legend only if instructed to do so in
writing by the Corporation or if a holder fails to certify upon transfer
or exchange in the space provided to do so that such holder is not a
Person described in such legend.
d) After the Separation Time, the Corporation shall do all such acts and
things necessary and within its power to ensure compliance with the
provisions of this Section 3.1 including, without limitation, all such
acts and things as may be required to satisfy the requirements of the
Canada Business Corporations Act, the Securities Act and the securities
laws or comparable legislation in each of the provinces of Canada and in
any other jurisdiction where the Corporation is subject to such laws and
the rules of the stock exchanges or quotation systems where the Shares are
listed or quoted at such time in respect of the issue of Shares upon the
exercise of Rights in accordance with this Agreement.
30
3.2 FIDUCIARY DUTIES OF THE BOARD OF DIRECTORS OF THE CORPORATION
For clarification, it is understood that nothing contained in this Article 3
shall be considered to affect the obligations of the Board of Directors to
exercise its fiduciary duties. Without limiting the generality of the foregoing,
nothing contained herein shall be construed to suggest or imply that the Board
of Directors shall not be entitled to recommend that holders of the Voting
Shares reject or accept any Take-over Bid or take any other action including,
without limitation, the commencement, prosecution, defence or settlement of any
litigation and the submission of additional or alternative Take-over Bids or
other proposals to the shareholders of the Corporation with respect to any
Take-over Bid or otherwise that the Board of Directors believes is necessary or
appropriate in the exercise of its fiduciary duties.
ARTICLE 4
THE RIGHTS AGENT
4.1 GENERAL
a) The Corporation hereby appoints the Rights Agent to act as agent for the
Corporation and the holders of the Rights in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment.
The Corporation may from time to time appoint such co-rights agents
("CO-RIGHTS AGENTS") as it may deem necessary or desirable subject to the
prior written approval of the Rights Agent. In the event the Corporation
appoints one or more Co-Rights Agents, the respective duties of the Rights
Agent and Co-Rights Agents shall be as the Corporation may determine with
the written approval of the Rights Agent. The Corporation agrees to pay to
the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent, its
reasonable expenses and other disbursements reasonably incurred in the
administration and execution of this Agreement and the exercise and
performance of its duties hereunder, including the reasonable fees and
disbursements of counsel and other experts consulted by the Rights Agent
pursuant to Subsection 4.3(a). The Corporation also agrees to indemnify
the Rights Agent, its officers, directors, employees and agents for, and
to hold it harmless against any loss, liability, cost, claim, action,
damage, suit or expense, incurred without negligence, bad faith or willful
misconduct on the part of the Rights Agent for anything done or omitted by
the Rights Agent in connection with the acceptance and administration of
this Agreement including its reasonable legal costs and expenses, which
right to indemnification will survive the termination of this Agreement or
the removal or resignation of the Rights Agent.
b) The Rights Agent shall be protected and shall incur no liability for or in
respect of any action taken, suffered or omitted by it in connection with
its administration of this Agreement in reliance upon any certificate for
Shares, Rights Certificate, certificate for other securities of the
Corporation, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to
be signed, executed and, where necessary, verified or acknowledged, by the
proper Person or Persons.
31
c) The Corporation shall inform the Rights Agent in a reasonably timely
manner of events which may materially affect the administration of this
Agreement by the Rights Agent and, at any time upon request, shall provide
to the Rights Agent an incumbency certificate certifying the then current
officers of the Corporation.
4.2 MERGER, AMALGAMATION, CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT
a) Any corporation into which the Rights Agent or any successor Rights Agent
may be merged or amalgamated or with which it may be consolidated, or any
corporation resulting from any merger, amalgamation or consolidation to
which the Rights Agent or any successor Rights Agent is a party, or any
corporation succeeding to the shareholder services business of the Rights
Agent or any successor Rights Agent, will be the successor to the Rights
Agent under this Agreement without the execution or filing of any document
or any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor Rights
Agent under the provisions of Section 4.4 hereof. In case at the time such
successor Rights Agent succeeds to the agency created by this Agreement
any of the Rights Certificates have been countersigned but not delivered,
any such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates
have not been countersigned, any successor Rights Agent may countersign
such Rights Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases
such Rights Certificates will have the full force provided in the Rights
Certificates and in this Agreement.
b) In case at any time the name of the Rights Agent is changed and at such
time any of the Rights Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Rights Certificates so countersigned; and in case at that
time any of the Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in its prior
name or in its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates
and in this Agreement.
4.3 DUTIES OF RIGHTS AGENT
The Rights Agent undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the Corporation and the
holders of Rights Certificates, by their acceptance thereof, shall be bound:
a) The Rights Agent may retain and consult with legal counsel (who may be
legal counsel for the Corporation) or such other experts that the Rights
Agent considers necessary to carry out its duties under this Agreement and
the opinion of such counsel or other expert will be full and complete
authorization and protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such opinion; the
Rights Agent may also, with the approval of the Corporation (such approval
not to be unreasonably withheld), consult with such other experts (at the
expense of the Corporation) as the Rights Agent shall consider necessary
or appropriate to properly carry
32
out the duties and obligations imposed under this Agreement and the Rights
Agent shall be entitled to act and rely in good faith on the advice of any
such expert.
b) Whenever in the performance of its duties under this Agreement the Rights
Agent deems it necessary or desirable that any fact or matter be proved or
established by the Corporation prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof
be herein specifically prescribed) may be deemed to be conclusively proved
and established by a certificate signed by a person believed by the Rights
Agent to be a senior officer of the Corporation and delivered to the
Rights Agent; and such certificate will be full authorization to the
Rights Agent for any action taken or suffered in good faith by it under
the provisions of this Agreement in reliance upon such certificate.
c) The Rights agent will be liable hereunder only for its own negligence, bad
faith or wilful misconduct.
d) The Rights Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the
certificates for Shares, or the Rights Certificates (except its
countersignature thereof) or be required to verify the same, and all such
statements and recitals are and will be deemed to have been made by the
Corporation only.
e) The Rights Agent will not be under any responsibility in respect of the
validity of this Agreement or the execution and delivery hereof (except
the due authorization, execution and delivery hereof by the Rights Agent)
or in respect of the validity or execution of any share certificate, or
Rights Certificate (except its countersignature thereon) nor will it be
responsible for any breach by the Corporation of any covenant or condition
contained in this Agreement or in any Rights Certificate; nor will it be
responsible for any change in the exercisability of the Rights (including
the Rights becoming void pursuant to Subsection 3.1(b) hereof or any
adjustment required under the provisions of Section 2.3) hereof or
responsible for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights after receipt of
the certificate contemplated by Section 2.3 describing any such adjustment
or any written notice from the Corporation or any holder that a Person has
become an Acquiring Person); nor will it by any act hereunder be deemed to
make any representation or warranty as to the authorization of any Shares
to be issued pursuant to this Agreement or any Rights or as to any Shares,
when issued, being duly and validly authorized, issued and delivered as
fully paid and non-assessable.
f) The Corporation agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
g) The Rights Agent is hereby authorized and directed to accept instructions
with respect to the performance of its duties hereunder from any person
designated in writing by the
33
Corporation, and to apply to such individuals for advice or instructions
in connection with its duties, and it shall not be liable for any action
taken or suffered by it in good faith in accordance with instructions of
any such individual. It is understood that instructions to the Rights
Agent shall, except where circumstances make it impractical or the Rights
Agent otherwise agrees, be given in writing and, where not in writing,
such instructions shall be confirmed in writing as soon as reasonably
practicable after the giving of such instructions.
h) Subject to applicable law, the Rights Agent and any shareholder or
director, officer or employee of the Rights Agent may buy, sell or deal in
Shares, Rights or other securities of the Corporation or become
pecuniarily interested in any transaction in which the Corporation may be
interested, or contract with or lend money to the Corporation or otherwise
act as fully and freely as though it were not the Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent from acting in
any other capacity for the Corporation or for any other legal entity.
i) The Rights Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent will not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Corporation resulting
from any such act, default, neglect or misconduct, provided reasonable
care was exercised in the selection and continued employment of such
attorneys and agents.
4.4 CHANGE OF RIGHTS AGENT
The Rights Agent may resign and be discharged from its duties under this
Agreement by giving 60 days' prior written notice (or such lesser notice as is
acceptable to the Corporation) thereof to the Corporation, to each transfer
agent of Shares and to the holders of the Rights, all in accordance with Section
5.9 and at the expense of the Corporation. The Corporation may remove the Rights
Agent by giving 30 days' prior written notice thereof to the Rights Agent, to
each transfer agent of the Shares and to the holders of the Rights in accordance
with Section 5.9. If the Rights Agent should resign or be removed or otherwise
become incapable of acting, the Corporation will appoint a successor to the
Rights Agent. If the Corporation fails to make such appointment within a period
of 30 days after such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent or by
the holder of any Rights (which holder shall, with such notice, submit such
holder's Rights Certificate for inspection of the Corporation), then the holder
of any Rights or the Rights Agent may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent at the Corporation's
expense. Any successor Rights Agent, whether appointed by the Corporation or by
such a court, must be a corporation incorporated under the laws of Canada or a
province thereof and authorized to carry on the business of a trust company in
the Province of Quebec. After appointment, the successor Rights Agent will be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent, upon receipt of any outstanding fees and expenses then
owing, shall deliver and transfer to the successor Rights Agent any property at
the time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment, the Corporation will file
34
notice thereof in writing with the predecessor Rights Agent and each transfer
agent of the Shares and mail a notice thereof in writing to the holders of the
Rights in accordance with Section 5.9. Failure to give any notice provided for
in this Section 4.4, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
ARTICLE 5
MISCELLANEOUS
5.1 REDEMPTION, WAIVER AND TERMINATION
a) Subject to the prior consent of the holders of the Voting Shares or the
Rights obtained as set forth herein, the Board of Directors acting in good
faith may, at any time prior to a Flip-in Event as to which the
application of Section 3.1 has not been waived pursuant to this Section
5.1, elect to redeem all but not less than all of the then outstanding
Rights at a redemption price of $0.00001 per Right (appropriately adjusted
in a manner analogous to the applicable adjustments provided for in
Section 2.3 in the event that an event of the type analogous to any of the
events described in Section 2.3 shall have occurred (such redemption price
being herein referred to as the "REDEMPTION PRICE")).
b) The Board of Directors shall waive the application of Section 3.1 in
respect of the occurrence of any Flip-in Event if the Board of Directors
has determined, following the Stock Acquisition Date and prior to the
Separation Time, that a Person became an Acquiring Person by inadvertence
and without any intention to become, or knowledge that it would become, an
Acquiring Person under this Agreement and, in the event that such a waiver
is granted by the Board of Directors, such Stock Acquisition Date shall be
deemed not to have occurred. Any such waiver pursuant to this Subsection
5.1(b) may only be given on the condition that such Person, within 10 days
after the foregoing determination by the Board of Directors or such later
date as the Board of Directors may determine (the "DISPOSITION DATE"), has
reduced its Beneficial Ownership of Voting Shares such that the Person is
no longer an Acquiring Person. If the Person remains an Acquiring Person
at the Close of Business on the Disposition Date, the Disposition Date
shall be deemed to be the date of occurrence of a further Stock
Acquisition Date and Section 3.1 shall apply thereto.
c) In the event that a Person acquires Voting Shares pursuant to a Permitted
Bid or an Exempt Acquisition referred to in Subsection 5.l(d), then the
Board of Directors of the Corporation shall, immediately upon the
consummation of such acquisition and without further formality, be deemed
to have elected to redeem the Rights at the Redemption Price.
d) The Board of Directors acting in good faith may, prior to the occurrence
of the relevant Flip-in Event, upon prior written notice delivered to the
Rights Agent, determine to waive the application of Section 3.1 to a
Flip-in Event that may occur by reason of a Take-over Bid made by means of
a take-over bid circular to all holders of record of Voting Shares,
provided that if the Board of Directors waives the application of Section
3.1 in respect of a Take-over Bid pursuant to this Subsection 5.1(d), the
Board of Directors shall also be
35
deemed to have waived the application of Section 3.1 in respect of any
other Take-over Bid made by means of a take-over bid circular to all
holders of record of Voting Shares prior to the expiry of any Take-over
Bid (as the same may be extended from time to time) in respect of which a
waiver is, or is deemed to have been, granted under this Subsection
5.1(d).
e) The Board of Directors acting in good faith may with the prior consent of
the holders of Voting Shares obtained as set forth herein, prior to the
occurrence of the relevant Flip-in Event, upon prior written notice
delivered to the Rights Agent, determine to waive the application of
Section 3.1 to a Flip-in Event that may occur by reason of an acquisition
of Voting Shares other than pursuant to a Take-over Bid made by means of a
take-over bid circular to all holders of record of Voting Shares and other
than in the circumstances set out in Subsection 5.1(b). In the event that
the Board of Directors proposes such a waiver, the Board of Directors
shall extend the Separation Time to a time and date subsequent to and not
more than 10 Business Days following the meeting of shareholders held to
approve such waiver.
f) Where a Take-over Bid that is not a Permitted Bid is withdrawn or
otherwise terminated after the Separation Time has occurred and prior to
the occurrence of a Flip-in Event, the Board of Directors may elect to
redeem all the outstanding Rights at the Redemption Price without the
consent of the holders of the Voting Shares or the Rights and reissue
Rights under this Agreement to holders of record of Voting Shares
immediately following such redemption. Upon the Rights being redeemed and
reissued pursuant to this Subsection 5.1(f), all the provisions of this
Agreement shall continue to apply as if the Separation Time had not
occurred and Rights Certificates representing the number of Rights held by
each holder of record of Shares at the Separation Time had not been mailed
to each such holder, and for all purposes of this Agreement the Separation
Time shall be deemed not to have occurred and the Corporation shall be
deemed to have issued replacement Rights to the holders of its then
outstanding Shares.
g) If the Board of Directors is deemed under Subsection 5.1(c) to have
elected or elects under Subsection 5.1(a) to redeem the Rights, the right
to exercise the Rights will thereupon, without further action and without
notice, terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price.
h) Within 10 days after the Board of Directors is deemed under Subsection
5.1(c) to have elected or elects under Subsection 5.1(a) or (f) to redeem
the Rights, the Corporation shall give notice of redemption to the holders
of the then outstanding Rights by mailing such notice to each such holder
at his last address as it appears upon the registry books of the Rights
Agent or, prior to the Separation Time, on the registry books of the
transfer agent for the Voting Shares. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state the method
by which the payment of the Redemption Price will be made.
i) If a redemption of Rights pursuant to Subsection 5.1(a) or a waiver of a
Flip-in Event pursuant to Subsection 5.1(e) is proposed at any time prior
to the Separation Time, such
36
redemption or waiver shall be submitted for approval to the holders of
Voting Shares. Such approval shall be deemed to have been given if the
redemption or waiver is approved by the affirmative vote of a majority of
the votes cast by Independent Shareholders represented in person or by
proxy at a meeting of such holders duly held in accordance with applicable
laws and the Corporation's by-laws.
j) If a redemption of Rights pursuant to Subsection 5.1(a) or a waiver of a
Flip-in Event pursuant to Subsection 5.1(e) is proposed at any time after
the Separation Time, such redemption or waiver shall be submitted for
approval to the holders of Rights. Such approval shall be deemed to have
been given if the redemption or waiver is approved by holders of Rights as
set forth in Subsection 5.4(d).
5.2 EXPIRATION
No Person will have any rights pursuant to this Agreement or in respect of any
Right after the Expiration Time, except in respect of any right to receive cash,
securities or other property which has accrued at the Expiration Time and except
as specified in Subsections 4.1(a) and 4.1(b) hereof.
5.3 ISSUANCE OF NEW RIGHTS CERTIFICATES
Notwithstanding any of the provisions of this Agreement or of the Rights to the
contrary, the Corporation may, at its option, issue new Rights Certificates
evidencing Rights in such form as may be approved by its Board of Directors to
reflect any adjustment or change in the number or kind or class of shares
purchasable upon exercise of Rights made in accordance with the provisions of
this Agreement.
5.4 SUPPLEMENTS AND AMENDMENTS
a) Subject to Subsections 5.4(b) and (c) and this Subsection 5.4(a), the
Corporation may from time to time amend, vary or delete any of the
provisions of this Agreement and the Rights provided that no amendment,
variation or deletion made on or after the date of the meeting of
shareholders at which the resolution referred to in Section 5.20 is to be
considered shall be made without the prior consent of the holders of the
Rights, given as provided in Subsection 5.4(b) below, except that
amendments, variations or deletions made for any of the following purposes
shall not require such prior approval but shall be subject to subsequent
ratification in accordance with Subsection 5.4(b):
(i) in order to make such changes as are necessary in order to maintain
the validity of this Agreement and the Rights as a result of any
change in any applicable legislation, regulations or rules; or
(ii) in order to make such changes as are necessary in order to cure any
clerical or typographical error.
b) Any amendment, variation or deletion to or from this Agreement made by the
Board of Directors pursuant to Subsection 5.4(a) shall:
37
(i) if made prior to the Separation Time, be submitted to the
shareholders of the Corporation at the next meeting of shareholders
and the shareholders may, by resolution passed by a majority of the
votes cast by Independent Shareholders who vote in respect of such
amendment, variation or deletion, confirm or reject such amendment
or supplement; or
(ii) if made after the Separation Time, be submitted to the holders of
Rights at a meeting to be held on a date not later than the date of
the next meeting of shareholders of the Corporation and the holders
of Rights may, by resolution passed by a majority of the votes cast
by the holders of Rights which have not become void pursuant to
Subsection 3.1(b) who vote in respect of such amendment, variation
or deletion, confirm or reject such amendment or supplement.
Any amendment, variation or deletion pursuant to Subsection 5.4(a) shall
be effective only when so consented to by the holders of Voting Shares or
Rights, as applicable (except in the case of an amendment, variation or
deletion referred to in any of clauses 5.4(a)(i) or (ii), which shall be
effective from the date of the resolution of the Board of Directors
adopting such amendment, variation or deletion and shall continue in
effect until it ceases to be effective (as in this paragraph described)
and, where such amendment, variation or deletion is confirmed, it shall
continue in effect in the form so confirmed). If an amendment, variation
or deletion pursuant to clause 5.4(a)(i) or (ii) is rejected by the
shareholders or the holders of Rights or is not submitted to the
shareholders or holders of Rights as required, then such amendment,
variation or deletion shall cease to be effective from and after the
termination of the meeting at which it was rejected or to which it should
have been but was not submitted or from and after the date of the meeting
of holders of Rights that should have been but was not held, and no
subsequent resolution of the Board of Directors to amend, vary or delete
any provision of this Agreement to substantially the same effect shall be
effective until confirmed by the shareholders or holders of Rights, as the
case may be.
c) For greater certainty and notwithstanding anything herein contained, (i)
the Corporation, at or prior to the meeting of shareholders referred to in
Section 5.20 or any adjournment or postponement thereof, may supplement or
amend this Agreement without the approval of any holders of Rights or
Voting Shares in order to make any changes that the Board of Directors
acting in good faith may deem necessary or desirable, (ii) no amendment,
variation or deletion to the provisions of Article 4 shall be made except
with the concurrence of the Rights Agent thereto, and (iii) neither the
exercise by the Board of Directors of any power or discretion conferred on
it hereunder nor the making by the Board of Directors of any determination
or the granting of any waiver it is permitted to make or give hereunder
shall constitute an amendment, variation or deletion of the provisions of
this Agreement or the Rights, for purposes of this Section 5.4 or
otherwise.
d) The approval, confirmation or consent of the holders of Rights with
respect to any matter arising hereunder shall be deemed to have been given
if the action requiring such approval, confirmation or consent is
authorized by the affirmative votes of the holders of Rights present or
represented at and entitled to be voted at a meeting of the holders of
38
Rights and representing a majority of the votes cast in respect thereof.
For the purposes hereof, each outstanding Right (other than Rights which
are void pursuant to the provisions hereof or which, prior to the
Separation Time, are held otherwise than by Independent Shareholders)
shall be entitled to one vote, and the procedures for the calling, holding
and conduct of the meeting shall be those, as nearly as may be, which are
provided in the Corporation's by-laws and the Canada Business Corporations
Act with respect to meetings of shareholders of the Corporation.
e) The Corporation shall be required to provide the Rights Agent with notice
in writing of any such amendment, variation or deletion to this Agreement
as referred to in this Section 5.4 within 5 days of effecting such
amendment, variation or deletion.
f) Any supplement or amendment to this Agreement pursuant to Subsections 5.4
(b) through (e) shall be subject to the receipt of any requisite approval
or consent from any governmental or regulatory authority having
jurisdiction over the Corporation, including without limitation any
requisite approval of stock exchanges on which the Shares are listed.
5.5 FRACTIONAL RIGHTS AND FRACTIONAL SHARES
a) The Corporation will not be required to issue fractions of Rights or to
distribute Rights Certificates which evidence fractional Rights. After the
Separation Time there shall be paid, in lieu of such fractional Rights, to
the registered holders of the Rights Certificates with regard to which
fractional Rights would otherwise be issuable, an amount in cash equal to
the same fraction of the Market Price of a whole Right. The Rights Agent
shall have no obligation to make any payments in lieu of fractional Rights
unless the Corporation shall have provided the Rights Agent with the
necessary funds to pay in full all amounts payable in accordance with
Subsection 2.2(e).
b) The Corporation shall not be required to issue fractional Shares upon
exercise of the Rights or to distribute certificates that evidence
fractional Shares. In lieu of issuing fractional Shares, the Corporation
shall pay to the registered holder of Rights Certificates at the time such
Rights are exercised as herein provided, an amount in cash equal to the
same fraction of the Market Price of one Share at the date of such
exercise. The Rights Agent shall have no obligation to make any payments
in lieu of fractional Shares unless the Corporation shall have provided
the Rights Agent with the necessary funds to pay in full all amounts
payable in accordance with Subsection 2.2(e).
5.6 RIGHTS OF ACTION
Subject to the terms of this Agreement, rights of action in respect of this
Agreement, other than rights of action vested solely in the Rights Agent, are
vested in the respective holders of the Rights; and any holder of any Rights,
without the consent of the Rights Agent or of the holder of any other Rights
may, on such holder's own behalf and for such holder's own benefit and the
benefit of other holders of Rights, enforce, and may institute and maintain any
suit, action or proceeding against the Corporation to enforce, or otherwise act
in respect of, such holder's right to exercise such holder's Rights in the
manner provided in this Agreement and in such holder's
39
Rights Certificate. Without limiting the foregoing or any remedies available to
the holders of Rights, it is specifically acknowledged that the holders of
Rights would not have an adequate remedy at law for any breach of this Agreement
and will be entitled to specific performance of the obligations under, and
injunctive relief against actual or threatened violations of, the obligations of
any Person subject to this Agreement.
5.7 HOLDER OF RIGHTS NOT DEEMED A SHAREHOLDER
No holder, as such, of any Rights or Rights Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of Shares or any
other securities which may at any time be issuable on the exercise of Rights,
nor shall anything contained herein or in any Rights Certificate be construed to
confer upon the holder of any Rights, as such, any of the rights of a
shareholder of the Corporation or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as provided in Section
5.8 hereof) or to receive dividends or subscription rights or otherwise, until
such Rights shall have been exercised in accordance with the provisions hereof.
5.8 NOTICE OF PROPOSED ACTIONS
In case the Corporation proposes after the Separation Time and prior to the
Expiration Time to effect the liquidation, dissolution or winding up of the
Corporation or the sale of all or substantially all of the Corporation's assets,
then, in each such case, the Corporation shall give to each holder of a Right,
in accordance with Section 5.9 hereof, a notice of such proposed action, which
shall specify the date on which such liquidation, dissolution, winding-up or
sale is to take place, and such notice shall be so given at least 20 Business
Days prior to the date of the taking of such proposed action by the Corporation.
5.9 NOTICES
Notices or demands authorized or required by this Agreement to be given or made
to or by the Rights Agent, the holder of any Rights or the Corporation will be
sufficiently given or made and shall be deemed to be received if delivered or
sent by first-class mail, postage prepaid, or by fax machine or other means of
printed telecommunication, charges prepaid and confirmed in writing by mail or
delivery, addressed (until another address is filed in writing with the Rights
Agent or the Corporation, as applicable), as follows:
(a) if to the Corporation:
AEterna Zentaris Inc.
1405, boulevard du Parc-Technologique
Quebec, QC G1P 4P5
Attention: Corporate Secretary
Facsimile No. (418) 652-0881
40
(b) if to the Rights Agent:
Computershare Trust Company of Canada
1500 University
Suite 700
Montreal, QC H3A 3S8
Attention: Manager, Investor Services
Facsimile No. (514) 982-7580
(c) if to the holder of any Rights, to the address of such
holder as it appears on the registry books of the
Rights Agent or, prior to the Separation Time, on the
registry books of the Corporation for the Shares.
5.10 COSTS OF ENFORCEMENT
The Corporation agrees that if the Corporation or any other Person the
securities of which are purchasable upon exercise of Rights fails to fulfil any
of its obligations pursuant to this Agreement, then the Corporation or such
Person will reimburse the holder of any Rights for the costs and expenses
(including legal fees) incurred by such holder in actions to enforce his rights
pursuant to any Rights or this Agreement.
5.11 REGULATORY APPROVALS
Any obligation of the Corporation or action or event contemplated by this
Agreement shall be subject to applicable law and to the receipt of any requisite
approval or consent from any governmental or regulatory authority. Without
limiting the generality of the foregoing, any issuance or delivery of debt or
equity securities (other than non-convertible debt securities) of the
Corporation upon the exercise of Rights and any amendment to this Agreement
shall be subject to any required prior consent of the stock exchange(s) on which
the Corporation is from time to time listed or has been listed during the six
months prior to such amendment.
5.12 DECLARATION AS TO NON-CANADIAN AND NON-U.S. HOLDERS
If in the opinion of the Board of Directors (who may rely upon the advice of
counsel), any action or event contemplated by this Agreement would require
compliance with the securities laws or comparable legislation of a jurisdiction
outside Canada and the United States of America, its territories and
possessions, the Board of Directors acting in good faith may take such actions
as it may deem appropriate to ensure that such compliance is not required,
including without limitation establishing procedures for the issuance to a
Canadian resident Fiduciary of Rights or securities issuable on exercise of
Rights, the holding thereof in trust for the Persons entitled thereto (but
reserving to the Fiduciary or to the Fiduciary and the Corporation, as the
Corporation may determine, absolute discretion with respect thereto) and the
sale thereof and remittance of the proceeds of such sale, if any, to the Persons
entitled thereto. In no event shall the Corporation or the Rights Agent be
required to issue or deliver Rights or securities issuable on exercise of Rights
to Persons who are citizens, residents or nationals of any jurisdiction other
than Canada and a province or territory thereof and the United States of America
and any state
41
thereof in which such issue or delivery would be unlawful without registration
of the relevant Persons or securities for such purposes.
5.13 SUCCESSORS
All the covenants and provisions of this Agreement by or for the benefit of the
Corporation or the Rights Agent shall bind and enure to the benefit of their
respective successors and assigns hereunder.
5.14 BENEFITS OF THIS AGREEMENT
Nothing in this Agreement shall be construed to give to any Person other than
the Corporation, the Rights Agent and the holders of the Rights any legal or
equitable right, remedy or claim under this Agreement; this Agreement shall be
for the sole and exclusive benefit of the Corporation, the Rights Agent and the
holders of the Rights.
5.15 DETERMINATION AND ACTIONS BY THE BOARD OF DIRECTORS
All actions, calculations, interpretations and determinations (including all
omissions with respect to the foregoing) which are done or made by the Board of
Directors pursuant to this Agreement, in good faith, (i) may be relied on by the
Rights Agent, and (ii) shall not subject the Board of Directors to any liability
to the holders of the Rights or to any other parties.
5.16 GOVERNING LAW
This Agreement and the Rights issued hereunder shall be deemed to be a contract
made under the laws of the Province of Quebec and the laws of Canada applicable
therein and for all purposes will be governed by and construed in accordance
with the laws of such province applicable to contracts to be made and performed
entirely within such province.
5.17 LANGUAGE
Les parties aux presentes ont exige que la presente convention ainsi que tous
les documents et avis qui s'y rattachent ou qui en decoulent soient rediges en
langue anglaise. The parties hereto have required that this Agreement and all
documents and notices related thereto or resulting therefrom be drawn up in
English.
5.18 COUNTERPARTS
This Agreement may be executed in any number of counterparts and each of such
counterparts will for all purposes be deemed to be an original, and all such
counterparts shall together constitute one and the same instrument.
5.19 SEVERABILITY
If any term or provision hereof or the application thereof to any circumstance
is, in any jurisdiction and to any extent, invalid or unenforceable, such term
or provision will be ineffective only to the extent of such invalidity or
unenforceability in such jurisdiction without invalidating
42
or rendering unenforceable the remaining terms and provisions hereof or the
enforceability thereof in any other jurisdiction or the application of such term
or provision to circumstances other than those as to which it is held invalid or
unenforceable.
5.20 EFFECTIVE DATE
The Original Agreement is effective and in full force and effect from and after
the Effective Date. If a majority of the votes cast by the Independent
Shareholders who vote in respect of a resolution to ratify and approve the
continued existence of the Original Agreement and the amendment and restatement
thereof as provided herein at the annual meeting of shareholders of the
Corporation to be held in 2007 are voted in favour of such resolution, this
Agreement shall, upon such approval of such resolution, amend, restate and
supersede the Original Agreement and shall be deemed to be effective from and
after the Effective Date. If such resolution is not then so approved by the
aforesaid Independent Shareholders, this Agreement shall have no force or
effect. For greater certainty, unless a majority of the votes cast by
Independent Shareholders who vote in respect of such resolution are voted in
favour of such resolution, the Board of Directors shall, immediately upon the
confirmation by the Chairman of such shareholders' meeting of the result of the
vote on such resolution and without further formality, be deemed to have elected
to redeem the Rights at the Redemption Price in accordance with the terms of the
Original Agreement.
5.21 TIME OF THE ESSENCE
Time shall be of the essence hereof.
43
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of March 5, 2007.
AETERNA ZENTARIS INC.
By: /s/ Mario Paradis
------------------------------------
Name: Mario Paradis
Title: Corporate Secretary
COMPUTERSHARE TRUST COMPANY OF CANADA
By: /s/ Martine Gauthier
------------------------------------
Name: Martine Gauthier
Title: Relationship Manager,
Client Services
By: /s/ Julien Lavalliere
------------------------------------
Name: Julien Lavalliere
Title: Relationship Manager,
Client Services
EXHIBIT A
Form of Rights Certificate
Certificate No. Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE CORPORATION, ON THE
TERMS SET FORTH IN THE SHAREHOLDER RIGHTS PLAN AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES (SPECIFIED IN SUBSECTION 3.1(b) OF SUCH AGREEMENT), RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON, CERTAIN RELATED PARTIES OF AN
ACQUIRING PERSON OR A TRANSFEREE OF AN ACQUIRING PERSON OR ANY SUCH RELATED
PARTIES WILL BECOME VOID WITHOUT FURTHER ACTION.
RIGHTS CERTIFICATE
This certifies that - is the registered holder of the number of Rights set
forth above, each of which entitles the registered holder thereof, subject to
the terms, provisions and conditions of the Amended and Restated Shareholder
Rights Plan Agreement made as of March 5, 2007 between AEterna Zentaris Inc., a
corporation existing under the laws of Canada (the "CORPORATION") and
Computershare Trust Company of Canada, a trust company incorporated under the
laws of Canada, as Rights Agent (the "RIGHTS AGENT"), which term shall include
any successor Rights Agent under the Rights Agreement, as such agreement may
from time to time be amended, varied, restated or replaced (the "RIGHTS
AGREEMENT"), to purchase from the Corporation, at any time after the Separation
Time and prior to the Expiration Time (as such terms are defined in the Rights
Agreement), one fully paid Share (as defined in the Rights Agreement) at the
Exercise Price referred to below, upon presentation and surrender of this Rights
Certificate, together with the Form of Election to Exercise appropriately
completed and duly executed, to the Rights Agent at its principal office in
Montreal. Until adjustment thereof in certain events as provided in the Rights
Agreement, the Exercise Price per Right shall be an aggregate dollar amount
equal to the Market Price (as defined in the Rights Agreement) per Share
(determined as at the Separation Time) multiplied by five (5) (payable by
certified cheque, banker's draft or money order payable to the order of the
Rights Agent or by wire transfer to an account designated by the Rights Agent).
The number of Shares which may be purchased for the Exercise Price is subject to
adjustment as set forth in the Rights Agreement.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Rights Agent, the Corporation and the holders of the Rights Certificates. Copies
of the Rights Agreement are on file at the registered office of the Corporation
and are available upon written request.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the principal office of the Rights Agent in Montreal, may be
exchanged for another Rights Certificate or
2
Rights Certificates of like tenor evidencing an aggregate number of Rights equal
to the aggregate number of Rights evidenced by the Rights Certificate or Rights
Certificates surrendered. If this Rights Certificate shall be exercised in part,
the registered holder shall be entitled to receive, upon surrender hereof,
another Rights Certificate or Rights Certificates for the number of whole Rights
not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by this
Rights Certificate may be redeemed by the Corporation at a redemption price of
$0.00001 per Right subject to adjustment in certain events.
No fractional Shares will be issued upon the exercise of any Right or Rights
evidenced hereby, but in lieu thereof a cash payment will be made, as provided
in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of Shares or any other
securities which may at any time be issuable upon the exercise hereof, nor shall
anything contained in the Rights Agreement or herein be construed to confer upon
the holder hereof, as such, any of the rights of a shareholder of the
Corporation or any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of any meeting or other
actions affecting shareholders (except as provided in the Rights Agreement), or
to receive dividends or subscription rights or otherwise, until the Rights
evidenced by this Rights Certificate shall have been exercised as provided in
the Rights Agreement.
This Rights Certificate shall not be valid for any purpose until it shall have
been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Corporation.
Date:
AETERNA ZENTARIS INC.
Per: ___________________________________
Per: ___________________________________
Countersigned:
COMPUTERSHARE TRUST COMPANY OF
CANADA, in the City of Montreal
Per: ___________________________________
FORM OF ELECTION TO EXERCISE
The undersigned hereby irrevocably elects to exercise _________________________
whole Rights represented by this Rights Certificate to purchase the Shares
issuable upon the exercise of such Rights and requests that certificates for
such Shares be issued in the name of and delivered to:
_________________________________________
Name
_________________________________________
Address
_________________________________________
City and Province
_________________________________________
Social Insurance No. or other taxpayer
identification number
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
_________________________________________
Name
_________________________________________
Address
_________________________________________
City and Province
_________________________________________
Social Insurance No. or other taxpayer
identification number
2
Date:
------------------------------- ----------------------------------------
Signature
(Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular, without
------------------------------------- alteration or enlargement or any change
Signature Guaranteed whatsoever)
Signature must be signature guaranteed by a Schedule 1 Canadian chartered bank,
a Canadian major trust company or a member firm of a recognized Medallion
Signature Guarantee Program.
(TO BE COMPLETED BY THE HOLDER IF TRUE)
The undersigned hereby certifies and represents, for the benefit of the
Corporation and all holders of Rights and Shares, that the Rights evidenced by
this Rights Certificate are not and, to the knowledge of the undersigned, have
never been, Beneficially Owned by an Acquiring Person or by an Affiliate or
Associate of an Acquiring Person or any other Person acting jointly or in
concert with any of the foregoing (as such terms are defined in the Rights
Agreement).
----------------------------------------
Signature
----------------------------------------
(Please print name below signature)
NOTICE
IN THE EVENT THAT THE CERTIFICATION SET FORTH ABOVE IN THE FORM OF ELECTION TO
EXERCISE IS NOT COMPLETED, THE CORPORATION SHALL DEEM THE BENEFICIAL OWNER OF
THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE TO BE AN ACQUIRING PERSON (AS
DEFINED IN THE RIGHTS AGREEMENT) AND, ACCORDINGLY, SUCH RIGHTS SHALL BE NULL AND
VOID.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(please print name and address of transferee) the Rights represented by this
Rights Certificate, together with all right, title and interest therein.
Date:
------------------------------- ----------------------------------------
Signature
-------------------------------------
Signature Guaranteed (Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular, without
alteration or enlargement or any change
whatsoever)
Signature must be signature guaranteed by a Schedule 1 Canadian chartered bank,
a Canadian major trust company or a member firm of a recognized Medallion
Signature Guarantee Program.
(TO BE COMPLETED BY THE ASSIGNOR IF TRUE)
The undersigned hereby certifies and represents, for the benefit of the
Corporation and all holders of Rights and Shares, that the Rights evidenced by
this Rights Certificate are not and, to the knowledge of the undersigned, have
never been, Beneficially Owned by an Acquiring Person or by an Affiliate or
Associate of an Acquiring Person or any other Person acting jointly or in
concert with any of the foregoing (as such terms are defined in the Rights
Agreement).
----------------------------------------
Signature
----------------------------------------
(Please print name below signature)
NOTICE
IN THE EVENT THAT THE CERTIFICATION SET FORTH ABOVE IN THE FORM OF ASSIGNMENT IS
NOT COMPLETED, THE CORPORATION SHALL DEEM THE BENEFICIAL OWNER OF THE RIGHTS
REPRESENTED BY THIS RIGHTS CERTIFICATE TO BE AN ACQUIRING PERSON (AS DEFINED IN
THE RIGHTS AGREEMENT) AND, ACCORDINGLY, SUCH RIGHTS SHALL BE NULL AND VOID.
Certificat n DEG. Droits
LES DROITS PEUVENT ETRE RACHETES, AU GRE DE LA SOCIETE, SELON LES MODALITES
INDIQUEES DANS LA CONVENTION VISANT UN REGIME DE DROITS DE SOUSCRIPTION DES
ACTIONNAIRES. DANS CERTAINES CIRCONSTANCES (PRECISEES A L'ALINEA 3.1(b) DE CETTE
CONVENTION), LES DROITS DETENUS EN PROPRIETE EFFECTIVE PAR UNE PERSONNE FAISANT
UNE ACQUISITION, CERTAINES PARTIES APPARENTEES A UNE PERSONNE FAISANT UNE
ACQUISITION OU LE CESSIONNAIRE D'UNE PERSONNE FAISANT UNE ACQUISITION OU D'UNE
DE CES PARTIES APPARENTEES DEVIENDRONT NULS SANS AUTRE FORMALITE.
CERTIFICAT DE DROITS
Les presentes attestent que - est le porteur inscrit du nombre de Droits indique
ci-dessus, dont chacun permet au porteur inscrit des Droits, sous reserve des
modalites, dispositions et conditions de la convention visant un regime de
droits de souscription des actionnaires modifiee et mise a jour qui a ete passee
en date du 5 mars 2007 entre AEterna Zentaris Inc., une societe existant en
vertu des lois du Canada ("SOCIETE") et la Societe de fiducie Computershare du
Canada, societe de fiducie constituee en vertu des lois du Canada, en qualite
d'agent des Droits ("AGENT DES DROITS"), terme qui comprend tout successeur de
l'agent des Droits conformement a la convention visant les Droits, comme cette
convention peut de temps a autre etre modifiee, mise a jour ou remplacee (< <
CONVENTION VISANT LES DROITS >>), d'acheter aupres de la Societe, en tout temps
apres l'heure de separation et avant l'heure d'expiration (selon la definition
de ces termes dans la convention visant les Droits) une action (selon la
definition de ce terme dans la convention visant les Droits) entierement liberee
au prix d'exercice indique ci-dessous, sur presentation et remise du present
certificat de Droits, accompagne du formulaire de choix d'exercice adequatement
rempli et dument signe, a l'agent des Droits a son bureau principal de Montreal.
Tant qu'il ne sera pas ajuste dans certaines circonstances prevues dans la
convention visant les Droits, le prix d'exercice pour chaque Droit sera un
montant total en dollars egal au cours du marche (selon la definition de ce
terme dans la convention visant les Droits) par action (determine a l'heure de
separation) multiplie par cinq (5) (payable par cheque certifie, traite bancaire
ou mandat-poste etabli a l'ordre de l'agent des Droits ou par virement
electronique a un compte designe par l'agent des Droits). Le nombre d'actions
pouvant etre achete pour le prix d'exercice peut faire l'objet d'ajustements
comme le stipule la convention visant les Droits.
Le present certificat de Droits est assujetti a toutes les modalites,
dispositions et conditions de la convention visant les Droits, lesquelles sont
integrees dans les presentes par renvoi et en font partie integrante, convention
a laquelle il est fait renvoi par les presentes pour la description complete des
droits, restrictions des droits, obligations, fonctions et immunites qu'elle
confere a l'agent des Droits, a la Societe et aux porteurs des certificats de
Droits. Des copies de la convention visant les Droits sont conservees au siege
social de la Societe et peuvent etre obtenues sur demande ecrite.
Le present certificat de Droits, avec ou sans autres certificats de Droits,
peut, sur remise au bureau principal de l'agent des Droits a Montreal, etre
echange contre un ou plusieurs autres certificats de Droits de la meme teneur
attestant un nombre global de Droits egal au nombre
2
global des Droits attestes par le ou les certificats de Droits remis. Si le
present certificat de Droits est exerce en partie, le porteur inscrit aura le
droit de recevoir, sur remise de celui-ci, un ou plusieurs autres certificats de
Droits representant le nombre de Droits entiers qui n'auront pas ete exerces.
Sous reserve des dispositions de la convention visant les Droits, les Droits
attestes par le present certificat de Droits peuvent etre rachetes par la
Societe au prix de rachat de 0,00001 $ par Droit, sous reserve d'ajustements
dans certaines circonstances.
Aucune fraction d'action ne sera emise au moment de l'exercice d'un ou de
plusieurs Droits attestes par les presentes mais, en remplacement de celle-ci,
un paiement comptant sera effectue comme le prevoit la convention visant les
Droits.
Aucun porteur du present certificat de Droits, en tant que tel, ne sera habile a
voter ou a recevoir des dividendes ni ne sera repute a quelque fin que ce soit
etre le porteur d'actions ou d'autres titres pouvant etre emissibles a un moment
quelconque au moment de l'exercice du present certificat, et aucune disposition
de la convention visant les Droits ou du present certificat ne devra etre
interpretee comme conferant au porteur du present certificat, en tant que tel,
l'un quelconque des droits d'un actionnaire de la Societe ni le droit de voter
en vue de l'election d'administrateurs ou a l'egard de toute question soumise
aux actionnaires a une assemblee de ceux-ci, ni le droit d'approuver ou de
s'abstenir d'approuver toute mesure prise par la Societe, ni le droit de
recevoir l'avis de convocation a quelque assemblee des actionnaires que ce soit
ou un avis des autres mesures visant les actionnaires de la Societe (sauf comme
le prevoit la convention visant les Droits), ni le droit de recevoir des
dividendes ou des droits de souscription ni quelque autre droit, et ce, tant que
les Droits attestes par le present certificat de Droits n'auront pas ete exerces
comme le prevoit la convention visant les Droits.
Le present certificat de Droits n'est pas valide a quelque fin que ce soit tant
qu'il n'a pas ete contresigne par l'agent des Droits.
EN FOI DE QUOI le fac-simile de la signature des dirigeants appropries de la
Societe a ete appose sur le present certificat de Droits.
Date:
AETERNA ZENTARIS INC.
Par: ___________________________________
Par: ___________________________________
Contresignature:
SOCIETE DE FIDUCIE COMPUTERSHARE DU
CANADA dans la ville de Montreal
Par: ___________________________________
FORMULAIRE DE CHOIX D'EXERCICE
Par les presentes, le soussigne choisit irrevocablement d'exercer
_____________________ Droits entiers attestes par le present certificat de
Droits en vue de l'achat des actions emissibles au moment de l'exercice de ces
Droits et demande que les certificats attestant ces actions soient emis au nom
de la personne suivante et lui soient livres:
_____________________________________
Nom
_____________________________________
Adresse
_____________________________________
Ville et province
_____________________________________
Numero d'assurance sociale ou autre
numero d'identification du contribuable
Si ce nombre de Droits ne constitue pas la totalite des Droits attestes par le
present certificat de Droits, un nouveau certificat de Droits attestant le reste
de ces Droits sera immatricule au nom de la personne suivante et lui sera livre
:
_____________________________________
Nom
_____________________________________
Adresse
_____________________________________
Ville et province
_____________________________________
Numero d'assurance sociale ou autre
numero d'identification du contribuable
Date:
------------------------------- ----------------------------------------
Signature
-------------------------------------
(Signature avalisee) (La signature doit correspondre en tous
points au nom apparaissant au recto du
present certificat de Droits, sans
modification, ajout ni changement
d'aucune sorte.)
2
La signature doit etre avalisee par une banque a charte canadienne de l'annexe
1, une grande societe de fiducie canadienne ou une firme membre d'un programme
Medallion Signature Guarantee reconnu.
(ATTESTATION DEVANT ETRE SIGNEE PAR LE PORTEUR SI ELLE EST EXACTE)
Le soussigne atteste et declare par les presentes, au profit de la Societe et de
tous les porteurs de Droits et d'actions, que les Droits attestes par le present
certificat de Droits ne sont pas et, a la connaissance du soussigne, n'ont
jamais ete detenus en propriete effective par une personne faisant une
acquisition ou un membre du meme groupe qu'elle ou une personne avec qui elle a
des liens ou une autre personne agissant conjointement ou de concert avec l'un
de ceux-ci (selon la definition de ces termes dans la convention visant les
Droits).
----------------------------------------
Signature
----------------------------------------
(Veuillez ecrire le nom en lettres
moulees sous la signature)
AVIS
SI L'ATTESTATION FIGURANT CI-DESSUS DANS LE FORMULAIRE DE CHOIX D'EXERCICE N'EST
PAS SIGNEE, LA SOCIETE CONSIDERERA LE VERITABLE PROPRIETAIRE DES DROITS
REPRESENTES PAR LE PRESENT CERTIFICAT DE DROITS COMME UNE PERSONNE FAISANT UNE
ACQUISITION (SELON LA DEFINITION DONNEE DANS LA CONVENTION VISANT LES DROITS)
ET, PAR CONSEQUENT, CES DROITS SERONT NULS ET NON AVENUS.
FORMULAIRE DE CESSION
CONTRE VALEUR RECUE, le soussigne vend, cede et transfere par les presentes a
________________________________________________________________________________
(veuillez ecrire le nom et l'adresse du cessionnaire en lettres moulees) les
Droits representes par le present certificat de Droits, de meme que tous les
droits, titres et interets s'y attachant.
Date: ----------------------------------------
------------------------------ Signature
------------------------------------- (La signature doit correspondre en tous
(Signature avalisee) points au nom apparaissant au recto du
present certificat de Droits, sans
modification, ajout ni changement
d'aucune sorte.)
La signature doit etre avalisee par une banque a charte canadienne de l'annexe
1, une grande societe de fiducie canadienne ou une firme membre d'un programme
Medallion Signature Guarantee reconnu.
(ATTESTATION DEVANT ETRE SIGNEE PAR LE CEDANT SI ELLE EST EXACTE)
Le soussigne atteste et declare par les presentes, au profit de la Societe et de
tous les porteurs de Droits et d'actions, que les Droits attestes par le present
certificat de Droits ne sont pas et, a la connaissance du soussigne, n'ont
jamais ete detenus en propriete effective par une personne faisant une
acquisition ou un membre du meme groupe qu'elle ou une personne avec qui elle a
des liens ou une autre personne agissant conjointement ou de concert avec l'un
de ceux-ci (selon la definition de ces termes dans la convention visant les
Droits).
----------------------------------------
Signature
----------------------------------------
(Veuillez ecrire le nom en lettres
moulees sous la signature)
AVIS
SI L'ATTESTATION FIGURANT CI-DESSUS DANS LE FORMULAIRE DE CESSION N'EST PAS
SIGNEE, LA SOCIETE CONSIDERERA LE VERITABLE PROPRIETAIRE DES DROITS REPRESENTES
PAR LE PRESENT CERTIFICAT DE DROITS COMME UNE PERSONNE FAISANT UNE ACQUISITION
(SELON LA DEFINITION DONNEE DANS LA CONVENTION VISANT LES DROITS) ET, PAR
CONSEQUENT, CES DROITS SERONT NULS ET NON AVENUS.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
AETERNA ZENTARIS INC.
Date: March 29, 2007 By: /s/ Mario Paradis
------------------------------------
Mario Paradis
Vice President, Finance &
Administration and Corporate
Secretary