<PAGE>
EXHIBIT 4.24
PACIFIC ENERGY RESOURCES LTD.
- and -
COMPUTERSHARE TRUST COMPANY OF CANADA
WARRANT INDENTURE
Dated October 18, 2007
<page>
TABLE OF CONTENTS
ARTICLE ONE
2
SECTION 1.01
DEFINITIONS
SECTION 1.02
NUMBER AND GENDER
3
SECTION 1.03
INTERPRETATION NOT AFFECTED BY HEADINGS
3
SECTION 1.04 DAY
NOT A BUSINESS DAY
3
SECTION 1.05
APPLICABLE LAW
3
SECTION 1.06
REFERENCES TO THIS INDENTURE
4
SECTION 1.07
SCHEDULE
4
4
ARTICLE TWO
4
SECTION 2.01
ISSUE AND FORM OF WARRANTS:
SECTION 2.02
DELIVERY OF WARRANTS:
4
SECTION 2.03
WARRANTHOLDER NOT A STOCKHOLDER:
6
SECTION 2.04
SIGNING OF WARRANT CERTIFICATE:
6
SECTION 2.05
COUNTERSIGNATURE BY THE WARRANT AGENT:
6
SECTION 2.06
REGISTRATION AND TRANSFER OF WARRANTS:
7
SECTION 2.07
OWNERSHIP OF WARRANTS:
7
SECTION 2.08
WARRANTS TO RANK PARI PASSU:
9
9
ARTICLE THREE
9
SECTION 3.01
WARRANT CERTIFICATES:
9
ARTICLE FOUR
9
SECTION 4.01
EXERCISE OF WARRANTS
SECTION 4.02
ISSUE OF SHARE CERTIFICATES
9
SECTION 4.03
SECURITIES RESTRICTIONS; LEGENDS
10
10
ARTICLE FIVE
11
SECTION 5.01
OPTIONAL PURCHASES BY THE CORPORATION
SECTION 5.02
SURRENDER OF WARRANT CERTIFICATES
11
11
ARTICLE SIX
11
SECTION 6.01
WARRANT AGENT'S REMUNERATION AND EXPENSES
11
ARTICLE SEVEN
11
SECTION 7.01
IMMUNITY OF STOCKHOLDERS
SECTION 7.02
LIMITATION OF LIABILITY
11
12
ARTICLE EIGHT
12
SECTION 8.01
RIGHT TO CONVENE MEETING
SECTION 8.02
NOTICE
12
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SECTION 8.03
CHAIRMAN
12
SECTION 8.04
QUORUM
13
SECTION 8.05
POWER TO ADJOURN
13
SECTION 8.06
SHOW OF HANDS
13
SECTION 8.07
POLL
13
SECTION 8.08
VOTING
14
SECTION 8.09
REGULATIONS
14
SECTION 8.10 THE
CORPORATION AND WARRANT AGENT MAY BE REPRESENTED
14
SECTION 8.11
POWER EXERCISABLE EXTRAORDINARY RESOLUTION
15
SECTION 8.12
MEANING OF "EXTRAORDINARY RESOLUTION"
15
SECTION 8.13
POWERS CUMULATIVE
16
SECTION 8.14
MINUTES
17
SECTION 8.15
INSTRUMENTS IN WRITING
17
SECTION 8.16
BINDING EFFECT OF RESOLUTIONS
17
SECTION 8.17
HOLDINGS BY THE CORPORATION AND SUBSIDIARIES DISREGARDED
17
18
ARTICLE NINE
18
SECTION 9.01
PROVISION FOR SUPPLEMENTAL INDENTURES FOR CERTAIN PURPOSES
SECTION 9.02
SUCCESSOR CORPORATION
18
19
ARTICLE TEN
19
SECTION 10.01 TRUST
INDENTURE LEGISLATION
SECTION 10.02 RIGHTS
AND DUTIES OF WARRANT AGENT
19
SECTION 10.03 EVIDENCE
19
SECTION 10.04 EXPERTS
AND ADVISERS
20
SECTION 10.05 WARRANT
AGENT NOT REQUIRED TO GIVE SECURITY
21
SECTION 10.06
PROTECTION OF WARRANT AGENT
21
SECTION 10.07
REPLACEMENT OF WARRANT AGENT, SUCCESSOR BY MERGER
21
SECTION 10.08 CONFLICT
OF INTEREST
23
SECTION 10.09
ACCEPTANCE OF DUTIES AND OBLIGATIONS
24
SECTION 10.10 ACTIONS
BY WARRANT AGENT TO PROTECT INTEREST
24
SECTION 10.11
DOCUMENTS, MONEYS, ETC. HELD BY WARRANT AGENT
24
SECTION 10.12 WARRANT
AGENT NOT TO BE APPOINTED RECEIVER
24
25
ARTICLE ELEVEN
25
SECTION 11.01
NOTICE:
25
ARTICLE TWELVE
25
SECTION 12.01 NOTICE
TO THE CORPORATION AND THE WARRANT AGENT
SECTION 12.02 NOT
BOUND TO ACT
25
SECTION 12.03 THIRD
PARTY INTERESTS
27
SECTION 12.04 PRIVACY
27
SECTION 12.05 TIME OF
THE ESSENCE
27
SECTION 12.06
COUNTERPARTS
28
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SECTION 12.07
SATISFACTION AND DISCHARGE OF INDENTURE
28
PROVISIONS OF INDENTURE AND WARRANT CERTIFICATE
28
FOR THE SOLE BENEFIT OF PARTIES
SECTION 12.08 AND
WARRANTHOLDERS
28
SECTION 12.09 STOCK
EXCHANGE CONSENTS
28
28
SCHEDULE A FORM OF WARRANT
CERTIFICATE
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THIS WARRANT INDENTURE dated the 18th day of October, 2007.
B E T W E E N:
PACIFIC ENERGY RESOURCES LTD., a corporation existing under
the laws of the State of Delaware,
(the "CORPORATION")
OF THE FIRST PART
- and -
COMPUTERSHARE TRUST COMPANY OF CANADA, trust company
incorporated under the laws of Canada and authorized to carry
on business in all provinces of Canada,
(the "WARRANT AGENT"),
OF THE SECOND PART
WHEREAS the Corporation is authorized to issue Five Hundred
Million
(500,000,000) Common Shares (as hereinafter defined);
AND WHEREAS the Corporation proposes to issue up to 34,090,909
units, with each
unit being comprised of one Common Share and one-half of one
Warrant (as
hereinafter defined), and each whole Warrant of which will entitle
the holder
thereof to subscribe for and purchase, subject to adjustment, one
Common Share
at the price and upon the other terms and conditions hereinafter
set forth;
AND WHEREAS the Corporation is authorized under the laws applicable
to it to
create and issue the Warrants as hereinafter provided;
AND WHEREAS the Warrants will be represented by Warrant
Certificates (as
hereinafter defined) issued and countersigned in accordance with
the provisions
hereof;
AND WHEREAS all things necessary have been or will be done and
performed by the
Corporation to make each of the Warrants and the Warrant
Certificates, when
countersigned by the Warrant Agent and issued in accordance with
the provisions
of this Indenture, legal, valid and binding obligations of the
Corporation with
the benefits and subject to the provisions of this Indenture;
AND WHEREAS the foregoing recitals are made as representations by
the
Corporation and not the Warrant Agent;
AND WHEREAS the Warrant Agent has agreed to enter into this
Indenture.
NOW THEREFORE THIS INDENTURE WITNESSETH that for good and valuable
consideration
mutually given and received, the receipt and sufficiency of which
is hereby
acknowledged, it is hereby agreed and declared as follows:
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ARTICLE ONE
DEFINITIONS AND INTERPRETATION
SECTION 1.01
DEFINITIONS:
------------
In this Indenture, unless there is something in the subject matter
or context
inconsistent therewith, the words and terms defined in this section
1.01 shall,
for the purpose of this Indenture and all supplemental indentures
hereto, have
the respective meanings specified in this section 1.01:
(a) "1933 ACT"
means the United States Securities Act of 1933, as
amended;
(b)
"APPLICABLE LEGISLATION" means the provisions, if any, of any
statute of any applicable jurisdiction, and of the regulations
under any such statutes, relating to warrant indentures or to
the rights, duties and obligations of trustees and of
corporations under warrant indentures, to the extent that such
provisions are at the time in force and applicable to this
Indenture;
(c) "BUSINESS
DAY" means a day which is not a Saturday or Sunday
or a civic or statutory holiday in any of the cities where
Warrant Certificates may be surrendered to the Warrant Agent
pursuant to the provisions hereof;
(d) "COMMON
SHARES" means the shares of common stock, US$0.0001
par value, which the Corporation is authorized to issue as
such shares of common stock are constituted at the close of
business on the Effective Date; provided that in the event of
any adjustment, "COMMON SHARES" shall thereafter mean the
shares or other securities or property resulting from such
adjustment;
(e)
"CORPORATION" means Pacific Energy Resources Ltd. and includes
any successor corporation thereto;
(f) "COUNSEL"
means a barrister and solicitor or attorney or a
firm of barristers and solicitors or attorneys;
(g) "DIRECTOR"
means a director of the Corporation for the time
being, and, unless otherwise specified herein, reference to
"ACTION BY THE DIRECTORS" means action by the directors of the
Corporation as a board or, whenever empowered, action by any
committee of the directors of the Corporation;
(h) "EFFECTIVE
DATE" means the date hereof;
(i) "EXERCISE
DATE" with respect to any Warrant means the date on
which such Warrant is surrendered for exercise in accordance
with the provisions of the Warrant Certificates;
(j) "EXERCISE
PRICE" means CAD$2.65 per Common Share, unless such
amount shall have been adjusted pursuant to the provisions of
the Warrant Certificates in which case such term shall mean
the adjusted price in effect at the applicable time;
(k) "EXPIRY
DATE" means 18 months from the date of issue of the
Warrants;
2
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(l) "PERSON"
means an individual, corporation, partnership, trust
or any unincorporated organization;
(m)
"STOCKHOLDER" means a holder of record of one or more Common
Shares;
(n) "TIME OF
EXPIRY" means 5:00 p.m., local time, on the Expiry
Date;
(o) "TRANSFER
AGENT" means the transfer agent for the time being
of the Common Shares;
(p) "WARRANT
AGENT" has the meaning set forth on page 1 hereof or
the successor thereof for the time being of the duties and
obligations hereby created;
(q) "WARRANT
CERTIFICATES" means the certificates representing the
Warrants substantially in the form attached as Schedule "A"
hereto issued and countersigned hereunder and for the time
being outstanding;
(r)
"WARRANTHOLDERS", or "HOLDERS" without reference to Common
Shares, means the persons for the time being who are
registered holders of Warrant Certificates; and
(s) "WARRANTS"
means the warrants issued hereunder, each whole
warrant will entitle the holder thereof to purchase one Common
Share for the Exercise Price at any time up to the Time of
Expiry, subject to adjustment in accordance with article five
hereof.
SECTION 1.02 NUMBER AND
GENDER:
------------------
Unless herein otherwise expressly provided or unless the context
otherwise
requires, words importing the singular include the plural and vice
versa and
words importing the masculine include the feminine and neuter
genders.
SECTION 1.03
INTERPRETATION NOT AFFECTED BY HEADINGS:
----------------------------------------
The division of this Indenture into articles, sections,
subsections, paragraphs
and subparagraphs, the provision of the table of contents and the
insertion of
headings are for convenience of reference only and shall not affect
the
construction or interpretation of this Indenture.
SECTION 1.04 DAY NOT A
BUSINESS DAY:
-----------------------
If the day on or before which any action that would otherwise be
required to be
taken hereunder is not a Business Day in the place where the action
is required
to be taken, that action will be required to be taken on or before
the requisite
time on the next succeeding day that is a Business Day.
3
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SECTION 1.05 APPLICABLE
LAW:
---------------
This Indenture, the Warrant Certificates and the Warrants
represented by the
Warrant Certificates shall be governed by and construed in
accordance with the
laws of the State of California. Nothwithstanding the foregoing,
the performance
or discharge by the Warrant Agent of any of its rights, powers,
duties or
responsibilities under this Agreement shall be construed only in
accordance with
the laws of the Province of British Columbia and the federal laws
of Canada
applicable therein.
SECTION 1.06 REFERENCES
TO THIS INDENTURE:
-----------------------------
The words and phrases "THIS WARRANT INDENTURE", "THIS INDENTURE",
"HEREIN",
"HEREBY", "HEREOF" and similar expressions mean or refer to this
indenture and
any indenture, deed or instrument supplemental hereto and the words
"ARTICLE",
"SECTION", "SUBSECTION", "PARAGRAPH" and "SUBPARAGRAPH" followed by
a number
mean and refer to the specified article, section, subsection,
paragraph or
subparagraphs of this Indenture.
SECTION 1.07
SCHEDULE:
---------
The following schedule is attached to, forms part of and shall be
deemed to be
incorporated into this Indenture.
Schedule "A" - Form of Warrant Certificate, including Form of
Subscription and
Form of Transferor Endorsement
ARTICLE TWO
ISSUE AND FORM OF WARRANTS
SECTION 2.01 ISSUE AND
FORM OF WARRANTS:
---------------------------
(a)
AUTHORIZATION OF WARRANTS: The Corporation hereby creates and
authorizes for issue 17,045,454 Warrants entitling the holders
thereof to subscribe for and purchase up to an aggregate of
17,045,454 Common Shares together with such additional
indeterminate number of Common Shares as may be required to be
issued pursuant to any adjustment required to be made by the
provisions of such Warrants are hereby authorized to be
issued.
(b) FORM OF
WARRANT CERTIFICATE: Upon the issue of the Warrants,
Warrant Certificates shall be executed by the Corporation and
delivered to the Warrant Agent, countersigned by the Warrant
Agent upon the written direction of the Corporation and
delivered by the Warrant Agent to the Corporation or to the
order of the Corporation pursuant to a written direction of
the Corporation, without any further act of or formality on
the part of the Corporation. The Warrant Certificates shall be
substantially in the form of the certificate attached hereto
as Schedule "A", shall be dated as of the date of issue
thereof (including all replacements issued in accordance with
this Indenture) and may bear such distinguishing letters and
numbers as the Corporation may, with the approval of the
Warrant Agent, prescribe. Irrespective of any adjustments
required to be made by the provisions of the Warrants, all
replacement Warrant Certificates shall be dated the date of
initial issuance and continue to express the number of Common
Shares purchasable upon the exercise of the Warrants
represented thereby and the Exercise Price as if such Warrant
Certificates were issued as of the initial date of issue
thereof pursuant hereto.
4
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(c) LEGENDS ON WARRANT CERTIFICATES:
(i)
All Warrant Certificates, including any Warrant
Certificates issued in exchange for or in substitution of
such Warrant Certificates, shall bear the following
legend:
"THE SECURITIES REPRESENTED BY THIS WARRANT HAVE BEEN
ISSUED PURSUANT TO REGULATION S PROMULGATED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
AS SUCH, THE SECURITIES REPRESENTED BY THIS WARRANT
ARE "RESTRICTED SECURITIES" AND MAY NOT BE SOLD,
OFFERED FOR SALE, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED OR DISPOSED OF
OTHER THAN (I) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SHARES REPRESENTED BY THIS
WARRANT UNDER THE ACT, (II) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE ACT, (III) PURSUANT TO RULE 144 UNDER
THE ACT, OR (IV) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
ACT. THE HOLDER HEREOF AGREES THAT (A) ANY HEDGING
TRANSACTION WITH RESPECT TO THE SECURITIES
REPRESENTED BY THIS WARRANT WILL BE CONDUCTED IN
COMPLIANCE WITH THE ACT AND (B) IT WILL DELIVER, OR
CAUSE TO BE DELIVERED, TO EACH PERSON TO WHOM THE
SECURITIES REPRESENTED BY THIS WARRANT ARE
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION" AND "UNITED STATES" HAVE THE RESPECTIVE
MEANINGS ASSIGNED TO THEM IN REGULATION S UNDER THE
ACT."
(ii) All
Warrant Certificates issued to Canadian residents,
including all Warrant Certificates issued to Canadian
residents in exchange for or in substitution of such
Warrant Certificates, prior to [four months and one day
following the date of issue of the Warrants] , shall bear
the following additional legend:
"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE
HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY
BEFORE [four months and one day following the date of
issue of the Warrants] ."
(d) LEGENDS ON COMMON SHARE CERTIFICATES:
(i)
All Common Share certificates issued upon the exercise of
the Warrant Certificates shall bear the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
BEEN ISSUED PURSUANT TO REGULATION S PROMULGATED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"). AS SUCH, THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE "RESTRICTED SECURITIES" AND MAY
NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR
DISPOSED OF OTHER THAN (I) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SHARES REPRESENTED
BY THIS CERTIFICATE UNDER THE ACT, (II) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE ACT, (III)
PURSUANT TO RULE 144 UNDER THE ACT, OR (IV) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT. THE HOLDER HEREOF AGREES
THAT (A) ANY HEDGING TRANSACTION WITH RESPECT TO THE
SECURITIES REPRESENTED BY THIS CERTIFICATE WILL BE
CONDUCTED IN COMPLIANCE WITH THE ACT AND (B) IT WILL
DELIVER, OR CAUSE TO BE DELIVERED, TO EACH PERSON TO
WHOM THE SECURITIES REPRESENTED BY THIS CERTIFICATE
ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION" AND "UNITED STATES" HAVE THE RESPECTIVE
MEANINGS ASSIGNED TO THEM IN REGULATION S UNDER THE
ACT."
5
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and
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
LISTED ON THE TORONTO STOCK EXCHANGE ("TSX").
HOWEVER, PRIOR TO [four months and one day following
the date of issue of the Warrants] THE SAID
SECURITIES CANNOT BE TRADED THROUGH THE FACILITIES OF
TSX SINCE THEY ARE NOT FREELY TRANSFERABLE AND
CONSEQUENTLY ANY CERTIFICATE REPRESENTING SUCH
SECURITIES IS NOT "GOOD DELIVERY" IN SETTLEMENT OF
TRANSACTIONS ON TSX."
(ii) All
Common Share Certificates issued to Canadian residents
upon exercise of the Warrants, including all Common Share
Certificates issued to Canadian residents in exchange for
or in substitution of such Common Share Certificates,
prior to [four months and one day following the date of
issue of the Warrants] , shall bear the following
additional legend:
"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE
HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY
BEFORE [four months and one day following the date of
issue of the Warrants] ."
SECTION 2.02 DELIVERY
OF WARRANT CERTIFICATES:
---------------------------------
Warrant Certificates in definitive form representing the Warrants
shall be
created and executed by the Corporation, shall be countersigned by
the Warrant
Agent and shall be delivered by the Warrant Agent as of the date
hereof as per
written direction of the Corporation.
SECTION 2.03
WARRANTHOLDER NOT A STOCKHOLDER:
--------------------------------
Nothing in this Indenture nor in the holding of a Warrant
represented by a
Warrant Certificate, or otherwise, shall be construed as conferring
upon a
Warrantholder any right or interest whatsoever as a Stockholder
including, but
not limited to, the right to vote at, to receive notice of, or to
attend,
meetings of Stockholders or the right to receive distributions or
other
dividends.
SECTION 2.04 SIGNING OF
WARRANT CERTIFICATE:
-------------------------------
Warrant Certificates shall be signed by an officer or officers of
the
Corporation in accordance with the laws of the Corporation's
jurisdiction of
incorporation. The signatures of such officers may be mechanically
reproduced in
facsimile and Warrant Certificates bearing such facsimile
signatures shall be
binding upon the Corporation as if they had been manually signed by
such
officers. Notwithstanding that any of the persons whose manual or
facsimile
signature appears on any Warrant Certificate as one of such
officers may no
longer hold such office at the date of such Warrant Certificate or
at the date
of the countersigning or delivery thereof, any Warrant Certificate
signed as
aforesaid and countersigned by the Warrant Agent shall be valid and
binding upon
the Corporation.
6
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SECTION 2.05
COUNTERSIGNATURE BY THE WARRANT AGENT:
--------------------------------------
(a)
COUNTERSIGNATURE: No Warrant Certificate shall be issued or,
if issued, shall be valid for any purpose or entitle the
holder to the benefits hereof until it has been countersigned
by the Warrant Agent by means of a manual signature of one or
more of its authorized officers.
(b) NO
REPRESENTATION: The countersignature by the Warrant Agent
on Warrant Certificates issued hereunder shall not be
construed as a representation or warranty by the Warrant Agent
as to the validity of this Indenture or of the Warrant
Certificate (except the due countersignature thereof) or as to
the performance by the
Corporation of its obligations under
this Indenture and the Warrant Agent shall in no respect be
liable or answerable for the use made of the Warrant
Certificates or any of them or of the consideration therefor,
except as otherwise specified herein.
SECTION 2.06
REGISTRATION AND TRANSFER OF WARRANTS:
--------------------------------------
(a) REGISTER:
The Warrant Agent shall keep at its principal
offices in Vancouver, British Columbia, Calgary, Alberta and
Toronto, Ontario:
(i) a register
of holders in which shall be entered the
names and addresses of the holders of Warrants and
particulars of the Warrants held by them; and
(ii)
a register of transfers in which all transfers of
Warrants and the date and other particulars of each
such transfer shall be entered.
(b) VALID
TRANSFERS: No transfer of any Warrant will be valid
unless entered on the appropriate register of transfers
referred to in subsection 2.06(a) hereof, or on any branch
registers maintained pursuant to subsection 2.06(g) hereof,
upon surrender to the Warrant Agent of the Warrant Certificate
representing such Warrant, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the
Warrant Agent executed by the registered holder or his
executors, administrators or other legal representatives or
his or their attorney duly appointed by an instrument in
writing in form and executed satisfactory to the Warrant
Agent, and, upon compliance with such requirements and such
other reasonable requirements as the Warrant Agent may
prescribe, such transfer will be recorded on the appropriate
register of transfers by the Warrant Agent.
7
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(c) REGISTER OF TRANSFERS:
The transferee of any Warrant will,
after surrender to the Warrant Agent of the Warrant
Certificate representing such Warrant as required by
subsection 2.06(b) hereof and upon compliance with all other
conditions in respect thereof required by this Indenture or by
law, be entitled to be entered on the appropriate register of
holders referred to in subsection 2.06(a) hereof, or on any
branch registers of holders maintained pursuant to subsection
2.06(g) hereof, as the owner of such Warrant free from all
equities or rights of set-off or counterclaim between the
Corporation and the transferor or any previous holder of such
Warrant, except in respect of equities of which the
Corporation is required to take notice by statute or by order
of a court of competent jurisdiction.
(d) REFUSAL OF
REGISTRATION: The Corporation will be entitled, and
may direct the Warrant Agent, to refuse to recognize any
transfer, or enter the name of any transferee, of any Warrant
on the registers referred to in subsection 2.06(a) hereof, if
such transfer may constitute a violation of the securities
laws of any jurisdiction or the rules, regulations or policies
of any regulatory authority having jurisdiction. In
particular, none of the Warrants and none of the Common Shares
issuable on the exercise of the Warrants have been registered
under the 1933 Act and such securities may not be offered or
sold absent an exemption from the registration provisions of
the 1933 Act.
(e) NO NOTICE
OF TRUSTS: Subject to applicable law, neither the
Corporation nor the Warrant Agent will be bound to take notice
of or see to the execution of any trust, whether express,
implied or constructive, in respect of any Warrant, and may
transfer any Warrant on the direction of the person registered
as the holder thereof, whether named as trustee or otherwise,
as though that person were the beneficial owner thereof.
(f)
INSPECTION: The registers referred to in subsection 2.06(a)
hereof, and any branch registers maintained pursuant to
subsection 2.06(g) hereof, will during each Business Day and
at all other reasonable times be open for inspection by the
Corporation. The Warrant Agent will from time to time when
requested to do so in writing by the Corporation (upon payment
of the reasonable charges of the Warrant Agent), furnish the
Corporation with a list of the names and addresses of holders
of Warrants entered on such registers and showing the number
of Warrants held by each such holder thereof.
(g) LOCATION
OF REGISTERS: The Corporation may at any time and
from time to time change the place at which the registers
referred to in subsection 2.06(a) hereof are kept, cause
branch registers of holders or transfers to be kept at other
places and close such branch registers or change the place at
which such branch registers are kept, in each case subject to
the approval of the Warrant Agent. Notice of all such changes
or closures shall be given by the Corporation to the Warrant
Agent and to holders of Warrants in accordance with article
twelve hereof.
8
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(h) RELIANCE
BY WARRANT AGENT: The Warrant Agent shall have no
obligation to ensure or verify compliance with any Applicable
Legislation or regulatory requirements of the United States or
any other jurisdiction on the issue, exercise or transfer of
any Warrants or any Common Shares or other securities issued
upon the exercise of any Warrants. The Warrant Agent shall be
entitled to process all preferred transfers and exercises of
Warrants upon the presumption that such transfers or exercises
are permissible pursuant to all Applicable Legislation and any
other regulatory requirements and the terms of the Indenture
and the related Warrant Certificates. The Warrant Agent may
assume for the purposes of this Indenture that the address on
the register of Warrantholders of any Warrantholder is the
actual address of such Warrantholder and is also determinative
of the residency of such Warrantholder and that the address of
any transferee to whom any Warrants or Common Shares or other
securities issuable upon the exercise of any Warrants are to
be registered, as shown on the transfer document, is the
actual address of the transferee and is also determinative of
the residency of the transferee.
(i) Should the
Warrant Agent have any inquiries with respect to
affixing and removing legends on the Warrant Certificates or
Share Certificates, the Warrant Agent shall be entitled to
seek written direction from the Corporation or direction or
opinion from its legal counsel which determination shall be
conclusive, provided that it satisfies the requirements of the
Warrant Agent's legend removal requirements.
SECTION 2.07 OWNERSHIP
OF WARRANTS:
----------------------
(a) OWNER: The
Corporation and the Warrant Agent may deem and
treat the person in whose name any Warrant is registered as
the absolute owner of such Warrant for all purposes, and such
person will for all purposes of this Indenture be and be
deemed to be the absolute owner thereof, and the Corporation
and the Warrant Agent will not be affected by any notice or
knowledge to the contrary except as required by statute or by
order of a court of competent jurisdiction.
(b) RIGHTS OF
REGISTERED HOLDER: The registered holder of any
Warrant will be entitled to the rights evidenced thereby free
from all equities and rights of set-off or counterclaim
between the Corporation and the original or any intermediate
holder thereof and all persons may act accordingly, and the
issue and delivery to any such registered holder of the Common
Shares issuable pursuant thereto will be a good discharge to
the Corporation and the Warrant Agent therefor and neither the
Corporation nor the Warrant Agent will be bound to inquire
into the title of any such registered holder.
SECTION 2.08 WARRANTS
TO RANK PARI PASSU:
----------------------------
All Warrants shall rank PARI PASSU, whatever may be the actual date
of issue of
any Warrants.
ARTICLE THREE
DISTRIBUTION OF WARRANT CERTIFICATES
SECTION 3.01 WARRANT
CERTIFICATES:
---------------------
Warrant Certificates, issuable only in registered form, will be
issued and
mailed or delivered to the holders of Warrants upon the written
order of the
Corporation or upon the exchange thereof in accordance with the
terms thereof.
ARTICLE FOUR
EXERCISE OF WARRANTS
SECTION 4.01 EXERCISE
OF WARRANTS:
---------------------
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(a) ACCOUNTING
TO CORPORATION: The Warrant Agent shall as soon as
practicable account to the Transfer Agent and the Corporation
with respect to Warrants exercised. All such monies, and any
securities or other instruments, from time to time received by
the Warrant Agent shall be received in trust for, and shall be
segregated and kept apart by the Warrant Agent in trust for,
the Corporation. Promptly, and in any event, within five
Business Days of receipt thereof the Warrant Agent shall
forward to the Corporation all monies received through the
exercise of Warrants.
(b) RECORD OF
EXERCISE: The Warrant Agent shall record the
particulars of the Warrants exercised for Common Shares which
particulars shall include the names and addresses of the
persons who become holders of Common Shares, if any, on
exercise, the number of Common Shares issued, the Exercise
Date and the Exercise Price. Promptly, and in any event,
within five Business Days of each Exercise Date, the Warrant
Agent shall provide such particulars in writing to the
Corporation and the Transfer Agent.
SECTION 4.02 ISSUE OF
SHARE CERTIFICATES; REPLACEMENT WARRANT CERTIFICATES:
--------------------------------------------------------------
As soon as practicable, and in any event no later than the fifth
Business Day on
which the transfer books of the Corporation have been opened after
the exercise
of a Warrant as aforesaid, the Corporation shall forthwith (A)
cause to be
mailed to the person or persons in whose name or names the Common
Shares so
subscribed for and purchased are to be issued, as specified in the
subscription
completed on the Warrant Certificate, at the address specified in
such
subscription form, or (B) if specified in such subscription form,
cause to be
mailed to the person or persons in whose name or names the
replacement Warrant
Certificate representing the appropriate number of Warrants to
which the
Warrantholder is entitled and elected to subscribe for and purchase
pursuant to
the Warrant Certificate surrendered to the Warrant Agent.
SECTION 4.03 SECURITIES
RESTRICTIONS; LEGENDS:
---------------------------------
Notwithstanding any provision to the contrary contained in this
Indenture, no
Common Shares will be issued pursuant to the exercise of any
Warrant if the
issuance of such securities would constitute a violation of the
securities laws
of any applicable jurisdiction, and, without limiting the
generality of the
foregoing, the Corporation will legend the certificates
representing the Common
Shares if, in the opinion of counsel to the Corporation such legend
is necessary
in order to avoid a violation of any securities laws of any
applicable
jurisdiction or to comply with the requirements of any stock
exchange or
quotation system on which the Common Shares are listed or traded,
provided that
if, at any time, in the opinion of outside counsel to the
Corporation, acting
reasonably, such legends are no longer necessary in order to avoid
a violation
of any such laws, or the holder of any such legended certificate,
at his
expense, provides the Corporation with evidence satisfactory in
form and
substance to the Corporation (which may include an opinion of
counsel of
recognized standing satisfactory to the Corporation) to the effect
that such
holder is entitled to sell or otherwise transfer such securities in
a
transaction in which such legends are not required, such legended
certificates
may thereafter be surrendered to the Corporation in exchange for a
certificate
which does not bear such legends.
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ARTICLE FIVE
PURCHASES BY THE CORPORATION
SECTION 5.01 OPTIONAL
PURCHASES BY THE CORPORATION:
--------------------------------------
Subject to applicable law, the Corporation may from time to time
purchase
Warrants on any stock exchange, in the open market, by private
agreement or
otherwise. Any such purchase may be made in such manner, from such
persons, at
such prices and on such terms as the Corporation in its sole
discretion may
determine.
SECTION 5.02 SURRENDER
OF WARRANT CERTIFICATES:
----------------------------------
Warrant Certificates representing Warrants purchased pursuant to
section 5.01
hereof shall be surrendered to the Warrant Agent for cancellation
and shall be
accompanied by a direction of the Corporation to cancel the
Warrants represented
thereby.
ARTICLE SIX
COVENANTS OF THE CORPORATION
SECTION 6.01 WARRANT
AGENT'S REMUNERATION AND EXPENSES:
------------------------------------------
The Corporation covenants that it will pay to the Warrant Agent
from time to
time remuneration for its services hereunder in accordance with the
Schedule of
Fees attached hereto and the Corporation will pay or reimburse the
Warrant
Agent, upon presentation of receipts or invoices, disbursements and
advances
incurred or made by the Warrant Agent in the administration or
execution of its
duties hereunder (including the reasonable compensation and the
disbursements of
its counsel and all other advisers not regularly in its employ)
both before any
default hereunder and thereafter until all duties of the Warrant
Agent hereunder
shall be finally and fully performed, except any such expense,
disbursement or
advance as may arise out of or result from the Warrant Agent's own
gross
negligence or fraud.
ARTICLE SEVEN
ENFORCEMENT
SECTION 7.01 IMMUNITY
OF STOCKHOLDERS:
-------------------------
No recourse under or upon any obligation, covenant or agreement
contained in
this Indenture or in the Warrant Certificates shall be had against
any
shareholder, officer or director, past, present or future, of the
Corporation or
of any successor corporation, either directly or through the
Corporation or
otherwise, by any legal or equitable proceeding by virtue of any
statute or
otherwise.
All or any of the rights conferred on any Warr
