EX-4.1



 






Exhibit
4.1





 







Tim Hortons Inc.




and




Computershare Investor Services, LLC




as Rights Agent




RIGHTS AGREEMENT




Dated as of February 28, 2006





 







 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 	 	Number	 
	 
	 	 	 	 	 	 
	Section 1.
	 	Definitions.	 	 	1	 
	Section 2.
	 	Appointment of Rights Agent.	 	 	4	 
	Section 3.
	 	Issue of Right Certificates.	 	 	4	 
	Section 4.
	 	Form of Right Certificates.	 	 	7	 
	Section 5.
	 	Countersignature and Registration.	 	 	7	 
	Section 6.
	 	Transfer, Split Up, Combination and Exchange of Right Certificates;	 	 	 	 
	 
	 	Mutilated, Destroyed, Lost or Stolen Right Certificates.	 	 	7	 
	Section 7.
	 	Exercise of Rights; Purchase Price; Expiration Date of  Rights.	 	 	8	 
	Section 8.
	 	Cancellation and Destruction of Right Certificates.	 	 	9	 
	Section 9.
	 	Availability of Preferred Shares.	 	 	9	 
	Section 10.
	 	Preferred Shares Record Date.	 	 	10	 
	Section 11.
	 	Adjustment of Purchase Price, Number of Shares or Number of Rights.	 	 	11	 
	Section 12.
	 	Certificate of Adjusted Purchase Price or Number of Shares.	 	 	16	 
	Section 13.
	 	Consolidation, Merger or Sale or Transfer of Assets or Earning Power.	 	 	16	 
	Section 14.
	 	Fractional Rights and Fractional Shares.	 	 	17	 
	Section 15.
	 	Rights of Action.	 	 	18	 
	Section 16.
	 	Agreement of Right Holders.	 	 	19	 
	Section 17.
	 	Right Certificate Holder Not Deemed a Stockholder.	 	 	19	 
	Section 18.
	 	Concerning the Rights Agent.	 	 	19	 
	Section 19.
	 	Merger or Consolidation or Change of Name of Rights Agent.	 	 	20	 
	Section 20.
	 	Duties of Rights Agent.	 	 	20	 
	Section 21.
	 	Change of Rights Agent.	 	 	22	 
	Section 22.
	 	Issuance of New Right Certificates.	 	 	23	 
	Section 23.
	 	Redemption.	 	 	23	 
	Section 24.
	 	Exchange.	 	 	24	 
	Section 25.
	 	Notice of Certain Events.	 	 	25	 
	Section 26.
	 	Notices.	 	 	25	 
	Section 27.
	 	Supplements and Amendments.	 	 	26	 
	Section 28.
	 	Successors.	 	 	26	 
	Section 29.
	 	Benefits of this Agreement.	 	 	26	 
	Section 30.
	 	Severability.	 	 	27	 
	Section 31.
	 	Determinations and Actions by the Board of Directors, etc.	 	 	27	 
	Section 32.
	 	Governing Law.	 	 	27	 
	Section 33.
	 	Counterparts.	 	 	27	 
	Section 34.
	 	Descriptive Headings.	 	 	27	 
	Section 35.
	 	Force Majeure.	 	 	27	 






 









 





LIST OF EXHIBITS




Exhibit A  —  Form of Certificate of Designations




Exhibit B  —  Form of Right Certificate




Exhibit C  —  Summary of Rights to Purchase Preferred Shares




 









 





RIGHTS AGREEMENT




          RIGHTS AGREEMENT, dated as of February 28, 2006 (this “Agreement”) between Tim Hortons Inc., a
Delaware corporation (the “Company”), and Computershare Investor Services, LLC, a Delaware limited
liability company, as rights agent (the “Rights Agent”).




RECITALS:




          The Board of Directors of the Company has authorized and declared a dividend of one preferred
share purchase right (a “Right”) for each Common Share (as hereinafter defined) of the Company
outstanding on March 10, 2006 (the “Record Date”), each Right representing the right to purchase
one ten-thousandth of a Preferred Share (as hereinafter defined), upon the terms and subject to the
conditions herein set forth, and has further authorized and directed the issuance of one Right with
respect to each Common Share that shall become outstanding between the Record Date and the earliest
of the Distribution Date, the Redemption Date and the Final Expiration Date (as such terms are
hereinafter defined); provided, however, that Rights may be issued with respect to Common Shares
that shall become outstanding after the Distribution Date and prior to the Final Expiration Date in
accordance with Section 22 hereof.




          Accordingly, in consideration of the premises and the mutual agreements herein set forth, the
parties hereby agree as follows:




     Section 1. Definitions. For purposes of this Agreement, the following terms have the
meanings indicated:



          (a) “Acquiring Person” shall mean any Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of 15% or more of the Common Shares of the
Company then outstanding, but shall not include (i) the Company, (ii) any Subsidiary of the
Company, (iii) any employee benefit plan of the Company or any Subsidiary of the Company, (iv) any
entity holding Common Shares for or pursuant to the terms of any such plan or (v) any Exempt
Person. Notwithstanding the foregoing, no Person shall become an “Acquiring Person” as the result
of an acquisition of Common Shares by the Company which, by reducing the number of Common Shares of
the Company outstanding, increases the proportionate number of Common Shares of the Company
beneficially owned by such Person to 15% or more of the Common Shares of the Company then
outstanding; provided, however, that, if a Person shall become the Beneficial Owner of 15% or more
of the Common Shares of the Company then outstanding by reason of share purchases by the Company
and shall, after such share purchases by the Company, become the Beneficial Owner of any additional
Common Shares of the Company, other than in connection with a stock split, stock dividend or other
similar transaction initiated by the Company occurring after the date of this Agreement, then such
Person shall be deemed to be an “Acquiring Person.” Notwithstanding the foregoing, if the Board of
Directors of the Company determines in good faith that a Person who would otherwise be an
“Acquiring Person,” as defined pursuant to the foregoing provisions of this paragraph (a), has
become such inadvertently, and such Person as promptly as practicable (as determined in good faith
by the Board of Directors of the Company) divests a sufficient number of Common Shares so that such
Person would no longer be an “Acquiring Person,” as defined

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pursuant to the foregoing provisions of this paragraph (a), then such Person shall not be
deemed to be an “Acquiring Person” for any purposes of this Agreement.




          (b) “Affiliate” shall have the meaning ascribed to such term in Rule 12b-2 under the Exchange
Act as in effect on the date of this Agreement.




          (c) “Associate” shall have the meaning ascribed to such term in Rule 12b-2 under the Exchange
Act as in effect on the date of this Agreement.




          (d) A Person shall be deemed the “Beneficial Owner” of and shall be deemed to “beneficially
own” and to have “beneficial ownership” of any securities:




          (i) which such Person or any of such Person’s Affiliates or Associates beneficially owns,
directly or indirectly;




          (ii) which such Person or any of such Person’s Affiliates or Associates has (A) the right to
acquire (whether such right is exercisable immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide public offering of securities),
or upon the exercise of conversion rights, exchange rights, rights (other than these Rights),
warrants or options, or otherwise; provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, securities tendered pursuant to a tender or exchange
offer or a take-over bid as defined under Canadian securities laws made by or on behalf of such
Person or any of such Person’s Affiliates or Associates until such tendered securities are accepted
for purchase or exchange; or (B) the right to vote pursuant to any agreement, arrangement or
understanding; provided, however, that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, any security if the agreement, arrangement or understanding to vote such security
(1) arises solely from a revocable proxy or consent given to such Person in response to a public
proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules and
regulations promulgated under the Exchange Act and (2) is not also then reportable on Schedule 13D
under the Exchange Act (or any comparable or successor report); or




          (iii) which are beneficially owned, directly or indirectly, by any other Person with which
such Person or any of such Person’s Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between underwriters and selling group
members with respect to a bona fide public offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by the proviso to Section 1(d)(ii)(B)
hereof) or disposing of any securities of the Company;



provided, however, that nothing in this Section 1(d) shall cause a Person engaged in
business as an underwriter of securities to be the “Beneficial Owner” of, or to “beneficially own,”
any securities acquired through such Person’s participation in good faith in a firm commitment
underwriting until the expiration of forty days after the date of such acquisition, and then only
if such securities continue to be owned by such Person at such expiration of forty days.




          Notwithstanding anything in this definition of Beneficial Ownership to the contrary, the
phrase “then outstanding,” when used with reference to a Person’s Beneficial Ownership of

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securities of the Company, shall mean the number of such securities then issued and
outstanding together with the number of such securities not then actually issued and outstanding
which such Person would be deemed to beneficially own hereunder.




          (e)
“Book-Entry” shall mean an entry in the direct registration system of the Company’s Common
Shares.




          (f) “Business Day” shall mean any day other than a Saturday, a Sunday, or a day on which
banking institutions in Ohio or Canada are authorized or obligated by law or executive order to
close.




          (g) “close of business” on any given date shall mean 5:00 P.M., Chicago, Illinois time, on
such date; provided, however, that, if such date is not a Business Day, it shall mean 5:00 P.M.,
Chicago, Illinois time, on the next succeeding Business Day.




          (h) “Common Shares” when used with reference to the Company shall mean the shares of common
stock, par value $0.001 per share, of the Company. “Common Shares” when used with reference to any
Person other than the Company shall mean the capital stock (or equity interest) with the greatest
voting power of such other Person or, if such other Person is a Subsidiary of another Person, the
Person or Persons which ultimately control such first-mentioned Person.




          (i) “Distribution Date” shall have the meaning set forth in Section 3(a) hereof.




          (j) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.




          (k) “Exchange Ratio” shall have the meaning set forth in Section 24(a) hereof.




          (l) “Exempt Person” shall mean Wendy’s International, Inc. and its respective Affiliates and
Associates.




          (m) “Final Expiration Date” shall have the meaning set forth in Section 7(a) hereof.




          (n) “NASDAQ” shall mean the National Association of Securities Dealers, Inc. Automated
Quotation System.




          (o) “Person” shall mean any individual, firm, partnership, corporation, limited liability
company or other entity, and shall include any successor (by merger or otherwise) of such entity.




          (p) “Preferred Shares” shall mean shares of Series A Junior Participating Preferred Stock, par
value $0.001 per share, of the Company having the rights and preferences set forth in the Form of
Certificate of Designations attached to this Agreement as Exhibit A.




          (q) “Purchase Price” shall have the meaning set forth in Section 4 hereof, as adjusted
in accordance with this Agreement and as in effect from time to time.




          (r) “Record Date” shall have the meaning set forth in the second paragraph hereof.




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          (s) “Redemption Date” shall have the meaning set forth in Section 7(a) hereof.




          (t) “Redemption Price” shall have the meaning set forth in Section 23(a) hereof.




          (u) “Right” shall have the meaning set forth in the second paragraph hereof.




          (v) “Right Certificate” shall have the meaning set forth in Section 3(a) hereof.




          (w) “Rights Notice” shall have the meaning set forth in Section 3(d) hereof.




          (x) “Securities Act” shall mean the Securities Act of 1933, as amended.




          (y) “Shares Acquisition Date” shall mean the first date of public announcement by the Company
or an Acquiring Person that an Acquiring Person has become such.




          (z) “Subsidiary” of any Person shall mean any corporation, partnership or other entity of
which a majority of the voting power of the voting equity securities or equity interest is owned,
directly or indirectly, by such Person.




          (aa)
“Summary of Rights” shall have the meaning
set forth in Section 3(b) hereof.




          (bb)
“Trading Day” shall have the meaning set
forth in Section 11(d) hereof.




     Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent
to act as agent for the Company and the holders of the Rights (who, in accordance with Section
3 hereof, shall, prior to the Distribution Date, also be the holders of the Common Shares of
the Company) in accordance with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time appoint such co-Rights Agents as it
may deem necessary or desirable, upon ten (10) days’ prior written notice to the Rights Agent. The
Rights Agent shall have no duty to supervise, and in no event be liable for, the acts or omissions
of any such co-Rights Agent.



     Section 3. Issue of Right Certificates.



          (a) Until the earlier of (i) the close of business on the tenth day after the Shares
Acquisition Date or (ii) the close of business on the tenth Business Day (or such later date as may
be determined by action of the Board of Directors of the Company prior to such time as any Person
becomes an Acquiring Person) after the date of the commencement by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or any entity holding Common Shares of the Company for or pursuant to the
terms of any such plan) of a tender or exchange offer or a take-over bid as defined under Canadian
securities laws, the consummation of which would result in any Person becoming an Acquiring Person
(including any such date which is after the date of this Agreement and prior to the issuance of the
Rights; the earlier of such dates being herein referred to as the “Distribution Date”), (x) the Rights will be evidenced (subject to the provisions of
Section 3(b) and 3(c) hereof) by Book-Entry or the certificates for Common Shares of the
Company registered in the names of the holders thereof (which certificates, together with a copy of
the Summary of Rights, and Book-Entry, together with a copy of the Summary of Rights or a


4









 





written
statement containing the Rights Notice, shall also be deemed to be Right Certificates) and not by
separate Right Certificates, and (y) the right to receive Right Certificates will be transferable
only in connection with the transfer of Common Shares of the Company. As soon as practicable after
the Distribution Date, the Company will prepare and execute, the Rights Agent will countersign, and
the Company will send or cause to be sent (and the Rights Agent will, if requested, send) by
first-class, insured, postage-prepaid mail, to each record holder of Common Shares of the Company
as of the close of business on the Distribution Date, at the address of such holder shown on the
records of the Company, a Right Certificate, in substantially the form of Exhibit B hereto
(a “Right Certificate”), evidencing one Right for each Common Share so held. As of and after the
Distribution Date, the Rights will be evidenced solely by such Right Certificates. On the Record
Date, or as soon as practicable thereafter, the Company will send a copy of a Summary of Rights to
Purchase Preferred Shares, in substantially the form of Exhibit C hereto (the “Summary of
Rights”), by first-class, postage-prepaid mail, to each record holder of Common Shares as of the
close of business on the Record Date, at the address of such holder shown on the records of the
Company. With respect to certificates or Book-Entries for Common Shares of the Company outstanding
as of the Record Date, until the Distribution Date, the Rights will be evidenced by such
certificates or Book-Entries registered in the names of the holders thereof together with a copy of
the Summary of Rights or, in the case of Book-Entries, together with a written statement containing
the Rights Notice. Until the Distribution Date (or the earlier of the Redemption Date or the Final
Expiration Date), the surrender for transfer of any Common Shares of the Company outstanding on the
Record Date represented by certificates or Book-Entry, with or without a copy of the Summary of
Rights, shall also constitute the transfer of the Rights associated with the Common Shares of the
Company represented thereby.




          (c) Rights shall, without any further action, be issued in respect of all Common Shares which
become outstanding (whether originally issued or delivered from treasury and including, without
limitation, reacquired Common Shares referred to in the last sentence of this paragraph (c)) after
the Record Date but prior to the earliest of the Distribution Date, the Redemption Date or the
Final Expiration Date. Certificates representing Common Shares issued after the Record Date, if
any, shall have impressed on, printed on, written on or otherwise affixed to them the following
legend:





     This certificate also evidences and entitles the holder hereof to certain
rights as set forth in the Rights Agreement between Tim Hortons Inc., a Delaware
corporation (the “Company”), and Computershare Investor Services, LLC, dated as of
February 28, 2006, as it may be amended from time to time (the “Rights Agreement”),
the terms of which are hereby incorporated herein by reference and a copy of which
is on file at the principal executive offices of the Company. Under certain
circumstances, as set forth in the Agreement, such Rights (as defined in the
Agreement) will be evidenced by separate certificates and will no longer be
evidenced by this certificate. The Rights are not exercisable prior to the
occurrence of certain events specified in the Rights Agreement. Under certain
circumstances, as set forth in the Rights Agreement, the securities or property for
which the Rights may be exercised may be adjusted, and the Rights may be redeemed,
may be exchanged, may expire, or may be amended. The Company will mail to the
holder of this certificate a copy of the Rights Agreement without charge after
receipt of a written request therefor. As set forth in the Rights



5









 







Agreement, Rights
beneficially owned by any Person (as defined in the Rights Agreement) who becomes an
Acquiring Person or any Affiliate or Associate thereof (as such terms are defined in
the Rights Agreement) become null and void.


After the Record Date but prior to the earliest of the Distribution Date, the Redemption Date, or
the Final Expiration Date, if new certificate(s) representing Common Shares are issued in
connection with the transfer, split up, combination, or exchange of certificate(s) representing
Common Shares or if new certificate(s) representing Common Shares are issued to replace any
certificate(s) that have been mutilated, destroyed, lost, or stolen, then such new certificate(s)
shall bear the foregoing legend. With respect to all certificates containing the foregoing legend,
until the Distribution Date, the Rights associated with the Common Shares of the Company
represented by such certificates shall be evidenced by such certificates alone, and the surrender
for transfer of any such certificate shall also constitute the transfer of the Rights associated
with the Common Shares of the Company represented thereby. With respect to Rights evidenced by
Book-Entry for Common Shares, until the Distribution Date, the transfer of such Common Shares shall
also constitute the transfer of the Rights associated with such Common Shares, and the Company or
its transfer agent shall, within a reasonable time after such transfer, send to the registered
owner of such Common Shares a copy of a written statement containing the Rights Notice and/or
accompanied by a copy of the Summary of Rights (which may be provided as part of or together with
any notice with respect to the Common Shares that may be required by applicable law). In the event
that the Company purchases or acquires any Common Shares of the Company after the Record Date but
prior to the Distribution Date, any Rights associated with such Common Shares of the Company shall
be deemed cancelled and retired so that the Company shall not be entitled to exercise any Rights
associated with the Common Shares of the Company which are no longer outstanding.




     (d) The “Rights Notice” with respect to Rights evidenced by Book-Entry for Common Shares shall
be in substantially the form of the following legend:



          Preferred share purchase rights are associated with the Common Shares of the Company pursuant
to the Rights Agreement between Tim Hortons Inc., a Delaware corporation (the “Company”), and
Computershare Investor Services LLC, dated as of February 28, 2006, as it may be amended from time
to time (the “Rights Agreement”), the terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal executive offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights (as defined in the Agreement) will
be evidenced by separate certificates and will no longer be associated with and trade together with
the Common Shares of the Company. The rights are not exercisable prior to the occurrence of
certain events specified in the Rights Agreement. Under certain circumstances, as set forth in the
Rights Agreement, the securities or property for which the Rights may be exercised may be adjusted,
and the Rights may be redeemed, may be exchanged, may expire, or may be amended. As set forth in the Rights Agreement, Rights
beneficially owned by any Person (as defined in the Rights Agreement) who becomes an Acquiring
Person or any Affiliate or Associate thereof (as such terms are defined in the Rights Agreement)
become null and void. The Company will mail to the holder of Common Shares of the Company a copy
of the Rights Agreement without charge after receipt of a written request therefor.




6









 





     Section 4. Form of Right Certificates.



          The Right Certificates (and the forms of election to purchase Preferred Shares and of
assignment to be printed on the reverse thereof) shall be substantially in the form set forth in
Exhibit B hereto, and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement, or as may be required to comply with any
applicable law or with any applicable rule or regulation made pursuant thereto or with any
applicable rule or regulation of any stock exchange or the National Association of Securities
Dealers, Inc., or to conform to usage. Subject to the provisions of Section 22 hereof, the
Right Certificates shall entitle the holders thereof to purchase such number of one ten-thousandths
of a Preferred Share as shall be set forth therein at the price per one ten-thousandth of a
Preferred Share set forth therein (the “Purchase Price”), but the number of such one
ten-thousandths of a Preferred Share and the Purchase Price shall be subject to adjustment as
provided herein.




     Section 5. Countersignature and Registration. The Right Certificates shall be
executed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, its
President, any of its Vice Presidents or its Treasurer, either manually or by facsimile signature,
shall have affixed thereto the Company’s seal or a facsimile thereof, and shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually or by facsimile signature. The
Right Certificates shall be manually countersigned by the Rights Agent and shall not be valid for
any purpose unless countersigned. In case any officer of the Company who shall have signed any of
the Right Certificates shall cease to be such officer of the Company before countersignature by the
Rights Agent and issuance and delivery by the Company, such Right Certificates, nevertheless, may
be countersigned by the Rights Agent and issued and delivered by the Company with the same force
and effect as though the individual who signed such Right Certificates had not ceased to be such
officer of the Company; and any Right Certificate may be signed on behalf of the Company by any
individual who, at the actual date of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although at the date of the execution of
this Agreement any such individual was not such an officer.



          Following the Distribution Date, the Rights Agent will keep or cause to be kept, at its
principal office, books for registration and transfer of the Right Certificates issued hereunder.
Such books shall show the names and addresses of the respective holders of the Right Certificates,
the number of Rights evidenced on its face by each of the Right Certificates and the date of each
of the Right Certificates.




     Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates. Subject to the provisions of Section 14
hereof, at any time after the close of business on the Distribution Date, and at or prior to the
close of business on the earlier of the Redemption Date or the Final Expiration Date, any Right
Certificate or Right Certificates (other than Right Certificates representing Rights that have
become void pursuant to Section 11(a)(ii) hereof or that have been exchanged pursuant to
Section 24 hereof) may be transferred, split up, combined or exchanged for another Right
Certificate or Right Certificates entitling the registered holder to purchase a like number of one
ten-thousandths of a Preferred Share as the Right Certificate or Right Certificates surrendered



7









 







then entitled such holder to purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Right Certificate or Right Certificates shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right Certificate or Right Certificates to
be transferred, split up, combined or exchanged at the principal office of the Rights Agent.
Thereupon the Rights Agent shall countersign and deliver to the Person entitled thereto a Right
Certificate or Right Certificates, as the case may be, as so requested. The Company may require
payment of a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Right Certificates.



          Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to them
of the loss, theft, destruction or mutilation of a Right Certificate, and, in case of loss, theft
or destruction, of indemnity or security reasonably satisfactory to them, and, at the Company’s
request, reimbursement to the Company and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancellation of the Right Certificate if
mutilated, the Company will make and deliver a new Right Certificate of like tenor to the Rights
Agent for delivery to the registered holder in lieu of the Right Certificate so lost, stolen,
destroyed or mutilated.




     Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.



          (a) The registered holder of any Right Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein), in whole or in part, at any time after the Distribution
Date, upon surrender of the Right Certificate, with the form of election to purchase on the reverse
side thereof duly executed, to the Rights Agent at the principal office of the Rights Agent,
together with payment of the Purchase Price for each one ten-thousandth of a Preferred Share as to
which the Rights are exercised, at or prior to the earliest of (i) the close of business on
February 23, 2016 (the “Final Expiration Date”), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof (the “Redemption Date”), or (iii) the time at which such
Rights are exchanged as provided in Section 24 hereof.




          (b) The Purchase Price for each one ten-thousandth of a Preferred Share purchasable pursuant
to the exercise of a Right shall initially be Cdn. $150.00, and shall be subject to adjustment from
time to time as provided in Section 11 or 13 hereof, and shall be payable in lawful
money of Canada in accordance with paragraph (c) below.




          (c) Upon receipt of a Right Certificate representing exercisable Rights, with the form of
election to purchase duly executed, accompanied by payment of the Purchase Price for the shares to
be purchased and an amount equal to any applicable transfer tax required to be paid by the holder
of such Right Certificate in accordance with Section 9 hereof by certified check, cashier’s
check or money order payable to the order of the Company, the Rights Agent shall thereupon promptly
(i) (A) requisition from any transfer agent of the Preferred Shares certificates for the number of
Preferred Shares to be purchased and the Company hereby irrevocably authorizes any such transfer
agent to comply with all such requests, or (B) if the Company shall have elected to deposit the
total number of Preferred Shares issuable upon exercise of the Rights with a depositary agent,
requisition from the depositary agent depositary receipts representing such number of one
ten-thousandths of a Preferred Share as are to be purchased (in which case

8









 








certificates for the
Preferred Shares represented by such receipts shall be deposited by the transfer agent of the
Preferred Shares with such depositary agent) and the Company hereby directs such depositary agent
to comply with all such requests; (ii) when appropriate, requisition from the Company the amount of
cash to be paid in lieu of issuance of fractional shares in accordance with Section 14
hereof; (iii) promptly after receipt of such certificates or depositary receipts, cause the same to
be delivered to or upon the order of the registered holder of such Right Certificate, registered in
such name or names as may be designated by such holder; and (iv) when appropriate, after receipt,
promptly deliver such cash to or upon the order of the registered holder of such Right Certificate.




          (d) In case the registered holder of any Right Certificate shall exercise fewer than all the
Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent to registered holder of such Right
Certificate or to such holder’s duly authorized assigns, subject to the provisions of Section
14 hereof.




          (e) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action with respect to a registered holder upon the
occurrence of any purported transfer or exercise of Rights pursuant to Section 6 hereof or
this Section 7 unless such registered holder shall have (i) completed and signed the
certificate and the form of assignment or election to purchase set forth on the reverse side of the
Right Certificate surrendered for such transfer or exercise, and (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company or the Rights Agent shall reasonably request.




     Section 8. Cancellation and Destruction of Right Certificates. All Right Certificates
surrendered for the purpose of exercise, transfer, split up, combination or exchange shall, if
surrendered to the Company or to any of its agents, be delivered to the Rights Agent for
cancellation or in cancelled form, or, if surrendered to the Rights Agent, shall be cancelled by
it, and no Right Certificates shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire, any other Right
Certificate purchased or acquired by the Company otherwise than upon the exercise thereof. The
Rights Agent shall deliver all cancelled Right Certificates to the
Company, or shall, at the written request of the Company, destroy such cancelled Right
Certificates, and, in such case, shall deliver a certificate of destruction thereof to the Company.



     Section 9. Availability of Preferred Shares.



          (a) The Company covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued Preferred Shares or any Preferred Shares held in its treasury the
number of Preferred Shares that will be sufficient to permit the exercise in full of all
outstanding Rights in accordance with Section 7 hereof. The Company covenants and agrees
that it will take all such action as may be necessary to ensure that all Preferred Shares delivered
upon exercise of Rights shall, at the time of delivery of the certificates for such Preferred
Shares (subject to payment of the Purchase Price), be duly authorized, validly issued, fully paid
and nonassessable shares.




9









 





          (b) If then required by law, the Company shall use its best efforts (i) as soon as practicable
following an event described in Section 11(a)(ii) as to which the consideration to be delivered by
the Company upon exercise of the Rights has been determined in accordance with this Agreement, or
as soon as is required by law following the Distribution Date, as the case may be, to file a
registration statement on an appropriate form under the Securities Act with respect to the
securities purchasable upon exercise of the Rights, (ii) to cause such registration statement to
become effective as soon as practicable after such filing, and (iii) to cause such registration
statement to remain effective (with a prospectus at all times meeting the requirements of the
Securities Act) until the earlier of (A) the date as of which Rights are no longer exercisable for
such securities and (B) the Final Expiration Date. If then required by law, the Company shall also
use its best efforts to take such action as may be necessary or appropriate under, or to ensure
compliance with, the requirements of the Securities Act (Ontario) and the securities laws or
comparable legislation of each of the provinces and territories of Canada and the securities or
“blue sky” laws of the various states in connection with the issuance of the Rights and the
issuance of any securities upon exercise of the Rights. The Company may temporarily suspend, for a
period of time not to exceed one hundred and twenty (120) days after the first occurrence of an
event described in Section 11(a)(ii), the exercisability of the Rights in order to prepare
and file such registration statement and permit it to become effective. Upon any such suspension,
the Company shall issue a public announcement (and shall provide written notice to the Rights
Agent) stating that the exercisability of the Rights has been temporarily suspended, as well as a
public announcement, in each case with written notice to the Rights Agent, at such time as the
suspension is no longer in effect. Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any jurisdiction unless the requisite
qualification in such jurisdiction shall have been obtained, the exercise of such Rights is not
permitted under applicable law, or if required by law a registration statement has not been
declared effective.




          (c) The Company further covenants and agrees that it will pay when due and payable any and all
federal, state, provincial and territorial transfer taxes and charges which may be payable in
respect of the issuance or delivery of the Right Certificates or of any Preferred Shares upon the
exercise of Rights. The Company shall not, however, be required to pay any transfer tax which may
be payable in respect of any transfer or delivery of Right Certificates to a Person
other than, or the issuance or delivery of certificates or depositary receipts for the
Preferred Shares in a name other than that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise or to issue or to deliver any certificates or depositary
receipts for Preferred Shares upon the exercise of any Rights until any such tax shall have been
paid (any such tax being payable by the holder of such Right Certificate at the time of surrender)
or until it has been established to the Company’s reasonable satisfaction that no such tax is due.




     Section 10. Preferred Shares Record Date. Each Person in whose name any certificate
for Preferred Shares is issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Shares represented thereby on, and such certificate
shall be dated, the date upon which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable transfer taxes) was made;
provided, however, that, if the date of such surrender and payment is a date upon which the
Preferred Shares transfer books of the Company 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
succeeding Business Day on which the Preferred Shares transfer books of the Company are



10









 







open.
Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not
be entitled to any rights of a holder of Preferred Shares for which the Rights shall be
exercisable, including, without limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice
of any proceedings of the Company, except as provided herein.



     Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights. The
Purchase Price, the number of Preferred Shares covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in this Section 11.



          (a) (i) In the event the Company shall at any time after the date of this Agreement (A)
declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the
outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of
Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the
Preferred Shares (including any such reclassification in connection with a consolidation or merger
in which the Company is the continuing or surviving corporation), except as otherwise provided in
this Section 11(a), the Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision, combination or reclassification, and the
number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted
so that the holder of any Right exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock which, if such Right had been exercised
immediately prior to such date and at a time when the Preferred Shares transfer books of the
Company were open, such holder would have owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, combination or reclassification; provided, however, that in
no event shall the consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company issuable upon exercise of one
Right. If an event occurs which would require an adjustment under both this Section
11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section
11(a)(i) shall be
in addition to, and shall be made prior to, any adjustment required pursuant to Section
11(a)(ii) hereof.




          (ii) Subject to Section 24 hereof, in the event any Person becomes an Acquiring
Person, each holder of a Right shall thereafter have a right to receive, upon exercise thereof at a
price equal to the then current Purchase Price multiplied by the number of one ten-thousandths of a
Preferred Share for which a Right is then exercisable, in accordance with the terms of this
Agreement and in lieu of Preferred Shares, such number of Common Shares of the Company as shall
equal the result obtained by (A) multiplying the then current Purchase Price by the number of one
ten-thousandths of a Preferred Share for which a Right is then exercisable and (B) dividing that
product by 50% of the then current per share market price of the Common Shares of the Company
(determined pursuant to Section 11(d) hereof) on the date of the occurrence of such event.
In the event that any Person shall become an Acquiring Person and the Rights shall then be
outstanding, the Company shall not take any action, except as permitted by this Agreement, which if
at the time such action is or would be taken it is reasonably foreseeable that such action will
diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.




11









 





          From and after the occurrence of such event, any Rights that are or were acquired or
beneficially owned by any Acquiring Person (or any Associate or Affiliate of such Acquiring Person)
shall be void, and any holder of such Rights shall thereafter have no right to exercise such Rights
under any provision of this Agreement. No Right Certificate shall be issued pursuant to
Section 3 hereof that represents Rights beneficially owned by an Acquiring Person whose
Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no
Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring
Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate
thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right
Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be
void pursuant to the preceding sentence shall be cancelled.




          (iii) In the event that there shall not be sufficient Common Shares issued but not outstanding
or authorized but unissued to permit the exercise in full of the Rights in accordance with
subparagraph (ii) above, the Company shall take all such action as may be necessary to authorize
additional Common Shares for issuance upon exercise of the Rights. In the event the Company shall,
after good faith effort, be unable to take all such action as may be necessary to authorize such
additional Common Shares, the Company shall substitute, for each Common Share that would otherwise
be issuable upon exercise of a Right, a number of Preferred Shares or fraction thereof such that
the current per share market price of one Preferred Share multiplied by such number or fraction is
equal to the current per share market price of one Common Share as of the date of issuance of such
Preferred Shares or fraction thereof.




          (b) In case the Company shall fix a record date for the issuance of rights, options or
warrants to all holders of Preferred Shares entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares
having the same rights, privileges and preferences as the Preferred Shares (“equivalent preferred
shares”)) or securities convertible into Preferred Shares or equivalent preferred shares at a price
per Preferred Share or equivalent preferred share (or having a conversion price per share, if a
security convertible into Preferred Shares or equivalent preferred shares) less than the then
current per share market price of the Preferred Shares (as defined in Section 11(d)) on
such record date, the Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of Preferred Shares outstanding on such record date plus the
number of Preferred Shares which the aggregate offering price of the total number of Preferred
Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion
price of the convertible securities so to be offered) would purchase at such current market price
and the denominator of which shall be the number of Preferred Shares outstanding on such record
date plus the number of additional Preferred Shares and/or equivalent preferred shares to be
offered for subscription or purchase (or into which the convertible securities so to be offered are
initially convertible); provided, however, that in no event shall the consideration to be paid upon
the exercise of one Right be less than the aggregate par value of the shares of capital stock of
the Company issuable upon exercise of one Right. In case such subscription price may be paid in a
consideration part or all of which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent and shall be binding on
the Rights Agent and holders of the Rights. Preferred Shares owned by or

12









 








held for the account of
the Company shall not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is fixed; and, in the event that
such rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record date had not been fixed.




          (c) In case the Company shall fix a record date for the making of a distribution to all
holders of the Preferred Shares (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or surviving corporation) of
evidences of indebtedness or assets (other than a regular quarterly cash dividend or a dividend
payable in Preferred Shares) or subscription rights or warrants (excluding those referred to in
Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the then-current per share market price of the Preferred
Shares on such record date, less the fair market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent and holders of the Rights) of the portion of
the assets or evidences of indebtedness so to be distributed or of such subscription rights or
warrants applicable to one Preferred Share and the denominator of which shall be such then-current
per share market price of the Preferred Shares on such record date; provided, however, that in no
event shall the consideration to be paid upon the exercise of one Right be less than the aggregate
par value of the shares of capital stock of the Company to be issued upon exercise of one Right.
Such adjustments shall be made successively whenever such a record date is fixed; and, in the event
that such distribution is not so made, the Purchase Price shall again be adjusted to be the
Purchase Price which would then be in effect if such record date had not been fixed.




          (d) (i) For the purpose of any computation hereunder, the “current per share market price” of
any security (a “Security” for the purpose of this Section 11(d)(i)) on any date shall be
deemed to be the average of the daily closing prices per share of such Security for the 30
consecutive Trading Days immediately prior to such date; provided, however, that, in the event that
the current per share market price of the Security is determined during a period following the
announcement by the issuer of such Security of (A) a dividend or distribution on such Security
payable in shares of such Security or Securities convertible into such shares (other than the
Rights), or (B) any subdivision, combination or reclassification of such Security and prior to the
expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the
record date for such subdivision, combination or reclassification, then, and in each such case, the
current per share market price shall be appropriately adjusted to reflect the current market price
per share equivalent of such Security. The closing price for each day shall be the last sale
price, regular way, reported at or prior to 4:00 P.M. Eastern time or, in case no such sale takes
place on such day, the average of the bid and asked prices, regular way, reported as of 4:00 P.M.
Eastern time, in either case, as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the Toronto Stock Exchange or,
if the Security is not listed or admitted to trading on the Toronto Stock Exchange, as reported in
the principal consolidated transaction reporting system with




13









 




respect to securities listed on the
New York Stock Exchange, or if the Security is not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated transaction reporting system with respect
to securities listed on the principal United States securities exchange on which the Security is
listed or admitted to trading or, if the Security is not listed or admitted to trading on any
United States securities exchange, the last quoted price reported at or prior to 4:00 P.M. Eastern
time or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported as of 4:00 P.M. Eastern time by NASDAQ or such other system then in use, or, if
on any such date the Security is not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market in the Security
selected by the Board of Directors of the Company. The term “Trading Day” shall mean a day on
which the principal national securities exchange on which the Security is listed or admitted to
trading is open for the transaction of business, or, if the Security is not listed or admitted to
trading on any national securities exchange, a Business Day.




          (ii) For the purpose of any computation hereunder, the “current per share market price” of the
Preferred Shares shall be determined in accordance with the method set forth in Section
11(d)(i). If the Preferred Shares are not publicly traded, the “current per share market
price” of the Preferred Shares shall be conclusively deemed to be the current per share market
price of the Common Shares as determined pursuant to Section 11(d)(i) hereof (appropriately
adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date
hereof), multiplied by ten thousand. If neither the Common Shares nor the Preferred Shares are
publicly held or so listed or traded, “current per share market price” shall mean the fair value
per share as determined in good faith by the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights Agent.




          (e) No adjustment in the Purchase Price shall be required unless such adjustment would require
an increase or decrease of at least 1% in the Purchase Price; provided, however, that any
adjustments which by reason of this Section 11(e) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest one one-millionth of a
Preferred Share or one ten-thousandth of any other share or security as the case may be.
Notwithstanding the first sentence of this Section 11(e), any adjustment required by this Section
11 shall be made no later than the earlier of (i) three years from the date of the transaction
which requires such adjustment or (ii) the date of the expiration of the right to exercise any
Rights.




          (f) If, as a result of an adjustment made pursuant to Section 11(a) hereof, the holder
of any Right thereafter exercised shall become entitled to receive any shares of capital stock of
the Company other than Preferred Shares, thereafter the number of such other shares so receivable
upon exercise of any Right shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the Preferred Shares
contained in Section 11(a), (c), (e), (i), (m) and
(n), inclusive, and the provisions of Sections 7, 9, 10, 13 and 14 hereof with
respect to the Preferred Shares shall apply on like terms to any such other shares.




          (g) All Rights originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the
number of one ten-thousandths of a Preferred Share purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as provided herein.




14









 





          (h) Unless the Company shall have exercised its election as provided in Section 11(i)
hereof, upon each adjustment of the Purchase Price as a result of the calculations made in
Section 11(b) and (c) hereof, each Right outstanding immediately prior to the
making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Purchase
Price, that number of one ten-thousandths of a Preferred Share (calculated to the nearest one
one-millionth of a Preferred Share) obtained by (A) multiplying (x) the number of one
ten-thousandths of a share covered by a Right immediately prior to this adjustment by (y) the
Purchase Price in effect immediately prior to such adjustment of the Purchase Price and (B)
dividing the product so obtained by the Purchase Price in effect immediately after such adjustment
of the Purchase Price.




          (i) The Company may elect, on or after the date of any adjustment of the Purchase Price, to
adjust the number of Rights in substitution for any adjustment in the number of one ten-thousandths
of a Preferred Share purchasable upon the exercise of a Right. Each of the Rights outstanding
after such adjustment of the number of Rights shall be exercisable for the number of one
ten-thousandths of a Preferred Share 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 that number of Rights (calculated to the nearest one ten-thousandth) obtained by dividing
the Purchase Price in effect immediately prior to adjustment of the Purchase Price by the Purchase
Price in effect immediately after adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of Rights, 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 Purchase Price is adjusted or any day thereafter, but, if the
Right Certificates have been issued, shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Right Certificates on such record date Right Certificates
evidencing, subject to Section 14 hereof, the additional Rights to which such holders shall
be entitled as a result of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for the Right
Certificates held by such holders prior to the date of adjustment, and upon surrender thereof,
if required by the Company, new Right Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Right Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein, and shall be registered in the names
of the holders of record of Right Certificates on the record date specified in the public
announcement.




          (j) Irrespective of any adjustment or change in the Purchase Price or in the number of one
ten-thousandths of a Preferred Share issuable upon the exercise of the Rights, the Right
Certificates theretofore and thereafter issued may continue to express the Purchase Price and the
number of one ten-thousandths of a Preferred Share which were expressed in the initial Right
Certificates issued hereunder.




          (k) Before taking any action that would cause an adjustment reducing the Purchase Price below
one ten-thousandth of the then par value, if any, of the Preferred Shares issuable upon exercise of
the Rights, the Company shall take any corporate action which may, in the opinion of its counsel,
be necessary in order that the Company may duly authorize and validly issue fully paid and
nonassessable Preferred Shares at such adjusted Purchase Price.





15










 






     (l) In any case in which this Section 11 shall require that an adjustment in the
Purchase Price be made effective as of a record date for a specified event, the Company may elect
to defer until the occurrence of such event the issuing to the holder of any Right exercised after
such record date of the Preferred Shares and other capital stock or securities of the Company, if
any, issuable upon such exercise over and above the Preferred Shares and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price
in effect prior to such adjustment; provided, however, that the Company shall deliver to such
holder a due bill or other appropriate instrument evidencing such holder’s right to receive such
additional shares upon the occurrence of the event requiring such adjustment.



     (m) Anything in this Section 11 to the contrary notwithstanding, the Company shall be
entitled to make such reductions in the Purchase Price, in addition to those adjustments expressly
required by this Section 11, as and to the extent that it, in its sole discretion, shall
determine to be advisable in order that any consolidation or subdivision of the Preferred Shares,
issuance wholly for cash of any Preferred Shares at less than the current market price, issuance
wholly for cash of Preferred Shares or securities which by their terms are convertible into or
exchangeable for Preferred Shares, dividends on Preferred Shares payable in Preferred Shares or
issuance of rights, options or warrants referred to in Section 11(b) hereof, hereafter made
by the Company to holders of the Preferred Shares shall not be taxable to such stockholders.



     (n) In the event that, at any time after the date of this Agreement and prior to the
Distribution Date, the Company shall (i) declare or pay any dividend on the Common Shares payable
in Common Shares, or (ii) effect a subdivision, combination or consolidation of the Common Shares
(by reclassification or otherwise than by payment of dividends in Common Shares) into a greater or
lesser number of Common Shares, then, in any such case, (A) the number of one ten-thousandths of a
Preferred Share purchasable after such event upon proper exercise of each Right shall be determined
by multiplying the number of one ten-thousandths of a Preferred Share so purchasable immediately
prior to such event by a fraction, the numerator of which is the number of Common Shares
outstanding immediately before such event and the denominator of which is the number of Common
Shares outstanding immediately after such event, and (B) each Common Share outstanding immediately
after such event shall have issued with respect to it that number of Rights which each Common Share
outstanding immediately prior to such event had issued with respect to it. The adjustments
provided for in this Section 11(n) shall be made successively whenever such a dividend is
declared or paid or such a subdivision, combination or consolidation is effected.



     Section 12. Certificate of Adjusted Purchase Price or Number of Shares. Whenever an
adjustment is made as provided in Section 11 or 13 hereof, the Company shall
promptly (a) prepare a certificate setting forth such adjustment and a brief statement of the facts
accounting for such adjustment, (b) file with the Rights Agent and with each transfer agent for the
Common Shares or the Preferred Shares a copy of such certificate and (c) if such adjustment occurs
at any time after the Distribution Date, mail a brief summary thereof to each holder of a Right
Certificate in accordance with Section 25 hereof.



     Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power. In
the event, directly or indirectly, at any time after a Person has become an Acquiring Person, (a)
the Company shall consolidate with, or merge with and into, any other Person, (b) any Person



16









 







shall consolidate with the Company, or merge with and into the Company and the Company shall
be the continuing or surviving corporation of such merger and, in connection with such merger, all
or part of the Common Shares shall be changed into or exchanged for stock or other securities of
any other Person (or the Company) or cash or any other property, or (c) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or
more transactions, assets or earning power aggregating 50% or more of the assets or earning power
of the Company and its Subsidiaries (taken as a whole) to any other Person other than the Company
or one or more of its wholly-owned Subsidiaries, then, and in each such case, proper provision
shall be made so that (i) each holder of a Right (except as otherwise provided herein) shall
thereafter have the right to receive, upon the exercise thereof at a price equal to the then
current Purchase Price multiplied by the number of one ten-thousandths of a Preferred Share for
which a Right is then exercisable, in accordance with the terms of this Agreement and in lieu of
Preferred Shares, such number of duly authorized, validly issued, fully paid and nonassessable
Common Shares of such other Person (including the Company as successor thereto or as the surviving
corporation) as shall equal the result obtained by (A) multiplying the then current Purchase Price
by the number of one ten-thousandths of a Preferred Share for which a Right is then exercisable and
(B) dividing that product by 50% of the then current per share market price of the Common Shares of
such other Person (determined pursuant to Section 11(d) hereof) on the date of consummation
of such consolidation, merger, sale or transfer; (ii) the issuer of such Common Shares shall
thereafter be liable for, and shall assume, by virtue of such consolidation, merger, sale or
transfer, all the obligations and duties of the Company pursuant to this Agreement; (iii) the term
“Company” shall thereafter be deemed to refer to such issuer; and (iv) such issuer shall take such
steps (including, but not limited to, the reservation of a sufficient number of its Common Shares
in accordance with Section 9 hereof) in connection with such consummation as may be
necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to its Common Shares thereafter deliverable upon the exercise of the
Rights. The Company shall not consummate any such consolidation, merger, sale or transfer unless,
prior thereto, the Company and such issuer shall have executed and delivered to the Rights Agent a
supplemental agreement so providing.



     Section 14. Fractional Rights and Fractional Shares.



     (a) The Company shall not be required to issue fractions of Rights or to distribute Right
Certificates which evidence fractional Rights. In lieu of such fractional Rights, the Company
shall pay to the registered holders of the Right Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal to the same fraction of the current
market value of a whole Right. For the purposes of this Section 14(a), the current market
value of a whole Right shall be the closing price of the Rights for the Trading Day immediately
prior to the date on which such fractional Rights would have been otherwise issuable. The closing
price for any day shall be the last sale price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices, regular way, in either case, as
reported in the principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the Rights are not listed or
admitted to trading on the New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the Toronto Stock Exchange, or if
the Rights are not listed on the Toronto Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the



17









 







principal United States securities exchange on which the Rights are listed or admitted to
trading or, if the Rights are not listed or admitted to trading on any United States securities
exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by NASDAQ or such other system then in use or,
if on any such date the Rights are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market in the Rights
selected by the Board of Directors of the Company. If on any such date no such market maker is
making a market in the Rights, the fair value of the Rights on such date as determined in good
faith by the Board of Directors of the Company shall be used.



     (b) The Company shall not be required to issue fractions of Preferred Shares (other than
fractions which are integral multiples of one ten-thousandth of a Preferred Share) upon exercise of
the Rights or to distribute certificates which evidence fractional Preferred Shares (other than
fractions which are integral multiples of one ten-thousandth of a Preferred Share). Fractions of
Preferred Shares in integral multiples of one ten-thousandth of a Preferred Share may, at the
election of the Company, be evidenced by depositary receipts, pursuant to an appropriate agreement
between the Company and a depositary selected by it; provided that such agreement shall provide
that the holders of such depositary receipts shall have all the rights, privileges and preferences
to which they are entitled as beneficial owners of the Preferred Shares represented by such
depositary receipts. In lieu of fractional Preferred Shares that are not integral multiples of one
ten-thousandth of a Preferred Share, the Company shall pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein provided an amount in cash equal to
the same fraction of the current market value of one Preferred Share. For the purposes of this
Section 14(b), the current market value of a Preferred Share shall be the closing price of
a Preferred Share (as determined pursuant to the second sentence of Section 11(d)(i)
hereof) for the Trading Day immediately prior to the date of such exercise.



     (c) The holder of a Right, by the acceptance of the Right, expressly waives such holder’s
right to receive any fractional Rights or any fractional shares upon exercise of a Right (except as
provided above).



     Section 15. Rights of Action. All rights of action in respect of this Agreement,
excepting the rights of action given to the Rights Agent under Section 18 hereof, are
vested in the respective registered holders of the Right Certificates (and, prior to the
Distribution Date, the registered holders of the Common Shares); and any registered holder of any
Right Certificate (or, prior to the Distribution Date, of the Common Shares), without the consent
of the Rights Agent or of the holder of any other Right Certificate (or, prior to the Distribution
Date, of the Common Shares), may, in such holder’s own behalf and for such holder’s own benefit,
enforce, and may institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, such holder’s right to exercise the Rights evidenced by
such Right Certificate in the manner provided in such Right Certificate and in this Agreement.
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.



18









 





     Section 16. Agreement of Right Holders. Every holder of a Right, by accepting the
same, consents and agrees with the Company and the Rights Agent and with every other holder of a
Right that:



     (a) prior to the Distribution Date, the Rights will be transferable only in connection with
the transfer of the Common Shares;



     (b) after the Distribution Date, the Right Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the principal office of the Rights Agent, duly endorsed
or accompanied by a proper instrument of transfer and with the appropriate forms and certificates
fully executed;



     (c) the Company and the Rights Agent may deem and treat the person in whose name the Right
Certificate (or, prior to the Distribution Date, the associated Common Shares certificate) is
registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificate or the associated Common Shares
certificate made by anyone other than the Company or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent shall be affected by any notice to the contrary; and



     (d) notwithstanding anything in this Agreement to the contrary, neither the Company nor the
Rights Agent shall have any liability to any holder of a Right or 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; provided, however, the Company must use its
best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as
possible.



     Section 17. Right Certificate Holder Not Deemed a Stockholder. No holder, as such, of
any Right Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of the Preferred Shares or any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby, nor shall anything contained herein or
in any Right Certificate be construed to confer upon the holder of any Right Certificate, as such,
any of the rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 25 hereof), or to receive dividends
or subscription rights, or otherwise, until the Right or Rights evidenced by such Right Certificate
shall have been exercised in accordance with the provisions hereof.



     Section 18. Concerning the Rights Agent. The Company agrees to pay to the Rights
Agent such reasonable compensation as shall be agreed to in writing by the Company and the Rights
Agent for all services rendered by it hereunder, and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the exercise and performance of its duties



19









 







hereunder. The Company also agrees to indemnify the Rights Agent for, and to hold it harmless
against, any loss, liability, 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 the costs and
expenses of defending against any claim of liability in the premises.



     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 Right Certificate or certificate for the Preferred Shares or Common Shares or for
other securities of the Company, 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.



     Section 19. Merger or Consolidation or Change of Name of Rights Agent. Any
corporation into which the Rights Agent or any successor Rights Agent may be merged or with which
it may be consolidated, or any corporation resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a party, or any corporation succeeding to the
stock transfer or corporate trust powers of the Rights Agent or any successor Rights Agent, shall
be the successor to the Rights Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto; provided that such corporation
would be eligible for appointment as a successor Rights Agent under the provisions of Section
21 hereof. In case at the time such successor Rights Agent shall succeed to the agency created
by this Agreement, any of the Right Certificates shall have been countersigned but not delivered,
any such successor Rights Agent may adopt the countersignature of the predecessor Rights Agent and
deliver such Right Certificates so countersigned; and, in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may countersign such
Right 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 Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.



     In case at any time the name of the Rights Agent shall be changed and at such time any of the
Right Certificates shall have been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so countersigned; and, in case
at that time any of the Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed name; and, in all
such cases, such Right Certificates shall have the full force provided in the Right Certificates
and in this Agreement.



     Section 20. 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
Company and the holders of Right Certificates, by their acceptance thereof, shall be bound:



     (a) The Rights Agent may consult with legal counsel (who may be legal counsel for the
Company), and the opinion of such counsel shall be full and complete authorization and



20









 







protection to the Rights Agent as to any action taken or omitted by it in good faith and in
accordance with such opinion.



     (b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem
it necessary or desirable that any fact or matter be proved or established by the Company 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 any one of the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the
Rights Agent; and such certificate shall 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 shall be liable hereunder to the Company and any other Person only for
its own negligence, bad faith or willful misconduct.



     (d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Right Certificates (except its countersignature
thereof) or be required to verify the same, but all such statements and recitals are and shall be
deemed to have been made by the Company only.



     (e) The Rights Agent shall not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due authorization and execution hereof
by the Rights Agent) or in respect of the validity or execution of any Right Certificate (except
its countersignature thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Right Certificate; nor shall it be
responsible for any change in the exercisability of the Rights (including the Rights becoming void
pursuant to Section 11(a)(ii) hereof) or any adjustment in the terms of the Rights
(including the manner, method or amount thereof) provided for in Section 3, 11,
13, 23 or 24 hereof, or the ascertaining of the existence of facts that
would require any such change or adjustment (except with respect to the exercise of Rights
evidenced by Right Certificates after actual notice that such change or adjustment is required);
nor shall it by any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Preferred Shares to be issued pursuant to this Agreement or any
Right Certificate or as to whether any Preferred Shares will, when issued, be duly authorized,
validly issued, fully paid and nonassessable.



     (f) The Company 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 one of the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Secretary or the Treasurer of the
Company, and to apply to such officers 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



21









 







with instructions of any such officer or for any delay in acting while waiting for those
instructions.



     (h) The Rights Agent and any stockholder, director, officer or employee of the Rights Agent
may, to the extent not otherwise prohibited by applicable law, buy, sell or deal in any of the
Rights or other securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the Company or otherwise act
as fully and freely as though it were not Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for the Company or for any other legal
entity.



     (i) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or
transfer, the certificate attached to the form of assignment or form of election to purchase, as
the case may be, has either not been completed or indicates an affirmative response to clause 1
and/or 2 thereof, the Rights Agent shall not take any further action with respect to such requested
exercise or transfer without first consulting with the Company.



     Section 21. Change of Rights Agent. The Rights Agent or any successor Rights Agent
may resign and be discharged from its duties under this Agreement upon 30 days’ notice in writing
mailed to the Company and to each transfer agent of the Common Shares or Preferred Shares by
registered or certified mail, and if such resignation occurs after the Distribution Date, to the
holders of the Right Certificates by first-class mail. In the event the transfer agency
relationship in effect between the Company and the Rights Agent terminates, the Rights Agent will
be deemed to resign automatically on the effective date of such termination, and any required
notice shall be sent by the Company. The Company may remove the Rights Agent or any successor
Rights Agent upon 30 days’ notice in writing, mailed to the Rights Agent or successor Rights Agent,
as the case may be, and to each transfer agent of the Common Shares or Preferred Shares by
registered or certified mail, and to the holders of the Right Certificates by first-class mail. If
the Rights Agent shall resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after giving notice of 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 a Right Certificate (which holder shall, with such notice, submit such
holder’s Right Certificate for inspection by the Company), then the registered holder of any Right
Certificate may apply to any court of competent jurisdiction for the appointment of a new Rights
Agent. Any successor Rights Agent, whether appointed by the Company or by such a court, shall be a
corporation or limited liability company organized and doing business under the laws of the United
States or of the State of Delaware (or of any other state of the United States so long as such
corporation or limited liability company is authorized to do business as a banking institution in
the State of Delaware), in good standing, having an office in the State of Delaware, which is
authorized under such laws to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at least $50 million. After
appointment, the successor Rights Agent shall 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 shall deliver and transfer to the successor Rights Agent any
property at the time held by it hereunder, and execute and deliver



22









 







any further assurance, conveyance, act or deed necessary for the purpose. Not later than the
effective date of any such appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Shares or Preferred Shares, and mail
a notice thereof in writing to the registered holders of the Right Certificates. Failure to give
any notice provided for in this Section 21, 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.



     Section 22. Issuance of New Right Certificates. Notwithstanding any of the provisions
of this Agreement or of the Rights to the contrary, the Company may, at its option, issue new Right
Certificates evidencing Rights in such form as may be approved by the Board of Directors of the
Company to reflect any adjustment or change in the Purchase Price and the number or kind or class
of shares or other securities or property purchasable under the Right Certificates made in
accordance with the provisions of this Agreement. In addition, in connection with the issuance or
sale of Common Shares following the Distribution Date and prior to the earlier of the Redemption
Date and the Final Expiration Date, the Company (i) shall with respect to Common Shares so issued
or sold pursuant to the exercise of stock options or under any employee plan or arrangement,
granted or awarded prior to the Distribution Date, or upon the exercise, conversion or exchange of
securities, notes or debentures issued by the Company prior to the Distribution Date, and (ii) may,
in any other case, if deemed necessary or appropriate by the Board of Directors of the Company,
issue Right Certificates representing the appropriate number of Rights in connection with such
issuance or sale; provided, however, that (i) the Company shall not be obligated to issue any such
Right Certificates if, and to the extent that, the Company shall be advised by counsel that such
issuance would create a significant risk of material adverse tax consequences to the Company or the
Person to whom such Right Certificate would be issued, and (ii) no Right Certificate shall be
issued if, and to the extent that, appropriate adjustment shall otherwise have been made in lieu of
the issuance thereof.



     Section 23. Redemption.



     (a) The Board of Directors of the Company may, at its option, at any time prior to such time
as any Person becomes an Acquiring Person, redeem all but not less than all the then outstanding
Rights at a redemption price of $0.01 per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date hereof (such redemption price being
hereinafter referred to as the “Redemption Price”). The redemption of the Rights by the Board of
Directors of the Company may be made effective at such time, on such basis and with such conditions
as the Board of Directors of the Company, in its sole discretion, may establish.



     (b) Immediately upon the action of the Board of Directors of the Company ordering the
redemption of the Rights pursuant to Section 23(a), and without any further action and
without any notice, the right to exercise the Rights will terminate and the only right thereafter
of the holders of Rights shall be to receive the Redemption Price. The Company shall promptly give
public notice of any such redemption; provided, however, that the failure to give, or any defect
in, any such notice shall not affect the validity of such redemption. Within 10 days after such
action of the Board of Directors of the Company ordering the redemption of the Rights, the Company
shall mail a notice of redemption to all the holders of the then outstanding Rights at



23









 







their last addresses as they appear upon the registry books of the Rights Agent or, prior to
the Distribution Date, on the registry books of the transfer agent for the Common 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.



     Section 24. Exchange.



     (a) The Board of Directors of the Company may, at its option, at any time after any Person
becomes an Acquiring Person, exchange all or part of the then outstanding and exercisable Rights
(which shall not include Rights that have become void pursuant to the provisions of Section
11(a)(ii) hereof) for Common Shares at an exchange ratio of one Common Share per Right,
appropriately adjusted to reflect any adjustment in the number of Rights pursuant to Section
11(i) (such exchange ratio being hereinafter referred to as the “Exchange Ratio”).
Notwithstanding the foregoing, the Board of Directors of the Company shall not be empowered to
effect such exchange at any time after any Person who is an Acquiring Person, together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of 50% or more of the Common
Shares then outstanding.



     (b) Immediately upon the action of the Board of Directors of the Company ordering the exchange
of any Rights pursuant to paragraph (a) of this Section 24 and without any further action
and without any notice, the right to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive that number of Common Shares equal to the
number of such Rights held by such holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; provided, however, that the failure to give, or
any defect in, such notice shall not affect the validity of such exchange. The Company promptly
shall mail a notice of any such exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights Agent. 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 exchange will state the method by which the exchange of the Common Shares for
Rights will be effected, and, in the event of any partial exchange, the number of Rights which will
be exchanged. Any partial exchange shall be effected pro rata based on the number of Rights (other
than Rights which have become void pursuant to the provisions of Section 11(a)(ii) hereof)
held by each holder of Rights.



     (c) In the event that there shall not be sufficient Common Shares issued but not outstanding
or authorized but unissued to permit any exchange of Rights as contemplated in accordance with this
Section 24, the Company shall take all such action as may be necessary to authorize
additional Common Shares for issuance upon exchange of the Rights. In the event the Company shall,
after good faith effort, be unable to take all such action as may be necessary to authorize such
additional Common Shares, the Company shall substitute, for each Common Share that would otherwise
be issuable upon exchange of a Right, a number of Preferred Shares or fraction thereof such that
the current per share market price of one Preferred Share multiplied by such number or fraction is
equal to the current per share market price of one Common Share as of the date of issuance of such
Preferred Shares or fraction thereof.



24









 





     (d) The Company shall not be required to issue fractions of Common Shares or to distribute
certificates which evidence fractional Common Shares. In lieu of such fractional Common Shares,
the Company shall pay to the registered holders of the Right Certificates with regard to which such
fractional Common Shares would otherwise be issuable an amount in cash equal to the same fraction
of the current market value of a whole Common Share. For the purposes of this paragraph (d), the
current market value of a whole Common Share shall be the closing price of a Common Share (as
determined pursuant to the second sentence of Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of exchange pursuant to this Section 24.



     Section 25. Notice of Certain Events.



     (a) In case the Company shall, at any time after the Distribution Date, propose (i) to pay any
dividend payable in stock of any class to the holders of the Preferred Shares or to make any other
distribution to the holders of the Preferred Shares (other than a regular quarterly cash dividend),
(ii) to offer to the holders of the Preferred Shares rights or warrants to subscribe for or to
purchase any additional Preferred Shares or shares of stock of any class or any other securities,
rights or options, (iii) to effect any reclassification of the Preferred Shares (other than a
reclassification involving only the subdivision of outstanding Preferred Shares), (iv) to effect
any consolidation or merger into or with, or to effect any sale or other transfer (or to permit one
or more of its Subsidiaries to effect any sale or other transfer), in one or more transactions, of
50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole)
to, any other Person, (v) to effect the liquidation, dissolution or winding up of the Company, or
(vi) to declare or pay any dividend on the Common Shares payable in Common Shares or to effect a
subdivision, combination or consolidation of the Common Shares (by reclassification or otherwise
than by payment of dividends in Common Shares), then, in each such case, the Company shall give to
each holder of a Right Certificate, in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of such stock dividend, or
distribution of rights or warrants, or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the Common Shares and/or Preferred Shares, if any such date
is to be fixed, and such notice shall be so given in the case of any action covered by clause (i)
or (ii) above at least 10 days prior to the record date for determining holders of the Preferred
Shares for purposes of such action, and, in the case of any such other action, at least 10 days
prior to the date of the taking of such proposed action or the date of participation therein by the
holders of the Common Shares and/or Preferred Shares, whichever shall be the earlier.



     (b) In case the event set forth in Section 11(a)(ii) hereof shall occur, then the
Company shall, as soon as practicable thereafter, give to each holder of a Right Certificate, in
accordance with Section 26 hereof, a notice of the occurrence of such event, which notice
shall describe such event and the consequences of such event to holders of Rights under Section
11(a)(ii) hereof.



     Section 26. Notices. Notices or demands authorized by this Agreement to be given or
made by the Rights Agent or by the holder of any Right Certificate to or on the Company shall




25










 





be sufficiently given or made if sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Rights Agent) as follows:





Tim Hortons Inc.

874 Sinclair Road

Oakville, Ontario L6K 2Y1

Canada

Attention: Corporate Secretary


Subject to the provisions of Section 21 hereof, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Right Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as follows:





Computershare Investor Services, LLC

7530 Lucerne Dr., Suite 100

Cleveland, OH 44130

Attn: Client Services Director


Notices or demands authorized by this Agreement to be given or made by the Company or the Rights
Agent to the holder of any Right Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Company.




     Section 27. Supplements and Amendments. The Company, by action of the Board of
Directors, may from time to time supplement or amend this Agreement without the approval of any
holders of Right Certificates in order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent with any other provisions herein,
to shorten or lengthen any time period hereunder, or to make any other provisions with respect to
the Rights which the Company may deem necessary or desirable, any such supplement or amendment to
be evidenced by a writing signed by the Company and the Rights Agent; provided, however, that, from
and after such time as any Person becomes an Acquiring Person, this Agreement shall not be amended
in any manner which would adversely affect the interests of the holders of Rights (other than
Rights that have become void pursuant to Section 11(a)(ii) hereof).



     Section 28. Successors. All the covenants and provisions of this Agreement by or for
the benefit of the Company or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.



     Section 29. Benefits of this Agreement. Nothing in this Agreement shall be construed
to give to any Person other than the Company, the Rights Agent and the registered holders of the
Right Certificates (and, prior to the Distribution Date, the Common Shares) any legal or equitable
right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company, the Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Common Shares).



26









 





     Section 30. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated.



     Section 31. Determinations and Actions by the Board of Directors, etc. For all
purposes of this Agreement, any calculation of the number of shares of each class of Common Shares
or of any other class of capital stock outstanding at any particular time, including for purposes
of determining the particular percentage of the outstanding voting power or such outstanding shares
of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the
last sentence of Rule 13d-3(d)(1)(i) (as in effect on the date of this Agreement) under the
Exchange Act. The Board of Directors of the Company shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers specifically granted to the Board
of Directors of the Company or to the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right and power to (i)
interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement (including a determination to redeem or not
redeem the Rights or to amend the Agreement). All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board of Directors of the Company in good faith shall (x)
be final, conclusive and binding on the Company, the Rights Agent, the holders of the Rights and
all other parties, and (y) not subject the Board of Directors of the Company, or any of the
directors on the Board of Directors of the Company, to any liability to the holders of the Rights.



     Section 32. Governing Law. This Agreement and each Right Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state.



     Section 33. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to be an original, and
all such counterparts shall together constitute but one and the same instrument.



     Section 34. Descriptive Headings. Descriptive headings of the several Sections of
this Agreement are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.



     Section 35. Force Majeure. Notwithstanding anything to the contrary contained herein,
the Rights Agent shall not be liable for any delays or failures in performance resulting from acts
beyond its reasonable control, including, without limitation, acts of God, terrorist acts, shortage
of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss
of data due to power failures or mechanical difficulties with information storage or retrieval
systems, labor difficulties, war, or civil unrest.



[SIGNATURE PAGE FOLLOWS]




27









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
attested, all as of the day and year first above written.



	 	 	 	 	 	 	 
	Attest:	 	TIM HORTONS INC.
	 
	 	 	 	 	 	 
	By: /s/ Leon M. McCorkle, Jr.	 	By: /s/ Kerrii B. Anderson
	 	 	 
	 

	 	Name: Leon M. McCorkle, Jr.

Title: Secretary
	 	 	 	Name: Kerrii B. Anderson

Title: Vice President






	 	 	 	 	 	 	 
	Attest:	 	COMPUTERSHARE INVESTORS

SERVICES, LLC
	 
	 	 	 	 	 	 
	By: /s/ Carol Mulvey-Eori	 	By: /s/ Dennis Moccia
	 	 	 
	 

	 	Name: Carol Mulvey-Eori

Title: Managing Director
	 	 	 	Name: Dennis Moccia

Title: Managing Director







28









 








Exhibit A




FORM




of




CERTIFICATE OF DESIGNATIONS




of




SERIES A JUNIOR PARTICIPATING PREFERRED STOCK




of




TIM HORTONS INC.




(Pursuant to Section 151 of the

Delaware General Corporation Law)




     Tim Hortons Inc., a corporation organized and existing under the General Corporation Law of
the State of Delaware (hereinafter called the “Corporation”), hereby certifies that the following
resolution was adopted by the Board of Directors of the Corporation as required by Section 151 of
the General Corporation Law at a meeting duly called and held on February 24, 2006:



     RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of
this Corporation (hereinafter called the “Board of Directors” or the “Board”) in accordance with
the provisions of the Certificate of Incorporation, the Board of Directors hereby creates a Series
of Preferred Stock, par value $0.001 per share, of the Corporation (the “Preferred Stock”), and
hereby states the designation and number of shares, and fixes the relative rights, preferences, and
limitations thereof as follows:



     Series A Junior Participating Preferred Stock:



     Section 1. Designation and Amount. The shares of such Series shall be designated as
“Series A Junior Participating Preferred Stock” (the “Series A Preferred Stock”) and the number of
shares constituting the Series A Preferred Stock shall be 100,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided, that no decrease shall
reduce the number of shares of Series A Preferred Stock to a number less than the number of shares
then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Series A Preferred Stock.



     Section 2. Dividends and Distributions.




     (a) Subject to the rights of the holders of any shares of any Series of Preferred Stock
(or any similar stock) ranking prior and superior to the Series A Preferred Stock



A-1









 







with respect to dividends, the holders of shares of Series A Preferred Stock, in
preference to the holders of Common Stock, par value $0.001 per share (the “Common Stock”),
of the Corporation, and of any other junior stock, shall be entitled to receive, when, as
and if declared by the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the first day of March, June, September and December
in each year (each such date being referred to herein as a “Quarterly Dividend Payment
Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of
a share or fraction of a share of Series A Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (i) $100.00 or (ii) subject to the provision
for adjustment hereinafter set forth, 10,000 times the aggregate per share amount of all
cash dividends, and 10,000 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions, other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under clause (ii) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.




     (b) The Corporation shall declare a dividend or distribution on the Series A Preferred
Stock as provided in Section 2(a) immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment
Date.




     (c) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A
Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of
such shares, unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest.



A-2









 






     (d) Dividends paid on the shares of Series A Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the date fixed for the
payment thereof.



     Section 3. Voting Rights. The holders of shares of Series A Preferred Stock shall
have the following voting rights:




     (a) Subject to the provision for adjustment hereinafter set forth, each share of Series
A Preferred Stock shall entitle the holder thereof to 10,000 votes on all matters submitted
to a vote of the stockholders of the Corporation. In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.




     (b) Except as otherwise provided herein, in any other Certificate of Designations
creating a Series of Preferred Stock or any similar stock, or by law, the holders of shares
of Series A Preferred Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote together as one class on
all matters submitted to a vote of stockholders of the Corporation.




     (c) (i) If at any time dividends on any Series A Preferred Stock shall be in arrears in
an amount equal to six quarterly dividends thereon, the occurrence of such contingency shall
mark the beginning of a period (herein called a “default period”) which shall extend until
such time when all accrued and unpaid dividends for all previous quarterly dividend periods
and for the current quarterly dividend period on all shares of Series A Preferred Stock then
outstanding shall have been declared and paid or set apart for payment. During each default
period, all holders of Preferred Stock (including holders of the Series A Preferred Stock)
with dividends in arrears in an amount equal to six quarterly dividends thereon (“Voting
Preferred Stock”) voting together as a single class, irrespective of series, shall have the
right to elect two directors.




     (ii) During any default period, such voting right of the holders of Series A
Preferred Stock may be exercised initially at a special meeting called pursuant to
Section 3(c)(iii) hereof or at any annual meeting of stockholders, and
thereafter at annual meetings of stockholders; provided that neither such voting



A-3









 







right nor the right of the holders of any other series of Voting Preferred
Stock, if any, to increase, in certain cases, the authorized number of directors
shall be exercised unless the holders of 10% in number of shares of Voting Preferred
Stock outstanding shall be present in person or by proxy. The absence of a quorum of
holders of Common Stock shall not affect the exercise by holders of Voting Preferred
Stock of such voting right. At any meeting at which holders of Voting Preferred
Stock shall initially exercise such voting right, they shall have the right, voting
as a class, to elect directors to fill such vacancies, if any, in the Board of
Directors as may then exist up to two directors or, if such right is exercised at an
annual meeting, to elect two directors. If the number which may be so elected at any
special meeting does not amount to the required number, the holders of the Voting
Preferred Stock shall have the right to make such increase in the number of
directors as shall be necessary to permit the election by them of the required
number. After the holders of the Voting Preferred Stock shall have exercised their
right to elect directors in any default period and during the continuance of such
period, the number of directors shall not be increased or decreased except by vote
of the holders of Voting Preferred Stock as herein provided or pursuant to the
rights of any equity securities ranking senior to or pari passu with the Series A
Preferred Stock.




     (iii) Unless the holders of Voting Preferred Stock shall have previously
exercised their right to elect directors during an existing default period, the
Board of Directors may order, or any stockholder or stockholders owning in the
aggregate not less than 10% of the total number of shares of Voting Preferred Stock
outstanding, irrespective of series, may request, the calling of a special meeting
of holders of Voting Preferred Stock, which meeting shall thereupon be called by the
President, a Vice President or the Secretary of the Corporation. Notice of such
meeting and of any annual meeting at which holders of Voting Preferred Stock are
entitled to vote pursuant to this Section 3(c)(iii) shall be given to each
holder of record of Voting Preferred Stock by mailing such notice to the holder at
the address of such holder shown on the registry books of the Corporation. Such
meeting shall be called for a time not earlier than 20 days and not later than 60
days after such order or request or in default of the calling of such meeting within
60 days after such order or request, such meeting may be called on similar notice by
any stockholder or stockholders owning in the aggregate not less than 10% of the
total number of shares of Voting Preferred Stock outstanding, irrespective of
series. Notwithstanding the provisions of this Section 3(c)(iii), no such
special meeting shall be called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of stockholders.




     (iv) In any default period, the holders of Common Stock, and other classes of
stock of the Corporation if applicable, shall continue to be entitled to elect the
whole number of directors until the holders of Voting Preferred Stock shall have
exercised their right to elect two directors voting as a class, after the exercise
of which right (x) the directors so elected by the holders of Voting Preferred Stock
shall continue in office until their successors shall have been



A-4









 







elected by such holders or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as provided in Section
3(c)(ii) hereof) be filled by vote of a majority of the remaining directors
theretofore elected by the holders of the class of stock which elected the director
whose office shall have become vacant. References in this Section 3(c) to
directors elected by the holders of a particular class of stock shall include
directors elected by such directors to fill vacancies as provided in clause (y) of
the foregoing sentence.




     (v) Immediately upon the expiration of a default period, (x) the right of the
holders of Voting Preferred Stock as a class to elect directors shall cease, (y) the
term of any directors elected by the holders of Voting Preferred Stock as a class
shall terminate, and (z) the number of directors shall be such number as may be
provided for in the Certificate of Incorporation or bylaws irrespective of any
increase made pursuant to the provisions of Section 3(c)(ii) (such number
being subject, however, to change thereafter in any manner provided by law or in the
certificate of incorporation or bylaws). Any vacancies in the Board of Directors
effected by the provisions of clauses (y) and (z) in the preceding sentence may be
filled by a majority of the remaining directors.



Section 4. Certain Restrictions.




     (a) Whenever quarterly dividends or other dividends or distributions payable on the
Series A Preferred Stock as provided in Section 2 are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not declared, on shares
of Series A Preferred Stock outstanding shall have been paid in full, the Corporation shall
not:




     (i) declare or pay dividends, or make any other distributions, on any shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock;




     (ii) declare or pay dividends, or make any other distributions, on any shares
of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except dividends paid
ratably on the Series A Preferred Stock and all such parity stock on which dividends
are payable or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled;




     (iii) redeem or purchase or otherwise acquire for consideration shares of any
stock ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the Series A Preferred
Stock; or



A-5









 






     (iv) redeem or purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock, or any shares of stock ranking on a parity with the Series
A Preferred Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the respective
Series and classes, shall determine in good faith will result in fair and equitable
treatment among the respective Series or classes.




     (b) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the
Corporation could, under Section 4(a), purchase or otherwise acquire such shares at
such time and in such manner.



     Section 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of a new Series of
Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations creating a Series of
Preferred Stock or any similar stock or as otherwise required by law.



     Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution
or winding up of the Corporation, no distribution shall be made (a) to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock
shall have received $10,000.00 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment, provided that the
holders of shares of Series A Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to 10,000 times the
aggregate amount to be distributed per share to holders of shares of Common Stock, or (b) to the
holders of shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably on
the Series A Preferred Stock and all such parity stock in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (a) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.



A-6









 





     Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series A Preferred Stock shall at the same time be similarly exchanged
or changed into an amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 10,000 times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.



     Section 8. No Redemption. The shares of Series A Preferred Stock shall not be
redeemable.



     Section 9. Rank. The Series A Preferred Stock shall rank, with respect to the payment
of dividends and the distribution of assets, junior to all series of any other class of the
Corporation’s Preferred Stock.



     Section 10. Amendment. The Certificate of Incorporation of the Corporation shall not
be amended in any manner which would materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote
of the holders of at least two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.



     IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf of the Corporation
by a Vice President and attested by its Secretary this 28th day of February, 2006.



	 	 	 
	 

	 	 
	Attest:

	 	Kerrii B. Anderson

Vice President
	 
	 	 
	 
	 	 
	Secretary
	 	 







A-7










 






Exhibit B




Form of Right Certificate




			
	Certificate No. R-
	 	___Rights






NOT EXERCISABLE AFTER FEBRUARY 23, 2016 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $0.01 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE AGREEMENT.



Right Certificate




Tim Hortons Inc.




     This certifies that                     , or registered assigns, is the registered owner of
the number of Rights set forth above, each of which entitles the owner thereof, subject to the
terms, provisions and conditions of the Rights Agreement, dated as of February 28, 2006 (the
"Agreement”), between Tim Hortons Inc., a Delaware corporation (the “Company”), and Computershare
Investor Services, LLC (the “Rights Agent”), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Agreement) and prior to 5:00 P.M., Chicago,
Illinois time, on February 23, 2016, at the principal office of the Rights Agent, or at the office
of its successor as Rights Agent, one ten-thousandth of a fully paid non-assessable share of Series
A Junior Participating Preferred Stock, par value $0.001 per share, of the Company (the “Preferred
Shares”), at a purchase price of Cdn. $150 per one ten-thousandth of a Preferred Share (the
"Purchase Price”), upon presentation and surrender of this Right Certificate with the Form of
Election to Purchase duly executed. The number of Rights evidenced by this Right Certificate (and
the number of one ten-thousandths of a Preferred Share which may be purchased upon exercise hereof)
set forth above, and the Purchase Price set forth above, are the number and Purchase Price as of
February 28, 2006, based on the Preferred Shares as constituted at such date. As provided in the
Agreement, the Purchase Price and the number of one ten-thousandths of a Preferred Share which may
be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.



     This Right Certificate is subject to all of the terms, provisions and conditions of the
Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and
made a part hereof and to which Agreement reference is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent,
the Company and the holders of the Right Certificates. Copies of the Agreement are on file at the
principal executive offices of the Company and the offices of the Rights Agent.



     This Right Certificate, with or without other Right Certificates, upon surrender at the
principal office of the Rights Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of Preferred Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this Right Certificate



B-1









 







shall be exercised in part, the holder shall be entitled to receive upon surrender hereof
another Right Certificate or Right Certificates for the number of whole Rights not exercised.



     Subject to the provisions of the Agreement, the Rights evidenced by this Right Certificate (i)
may be redeemed by the Company at a redemption price of $0.01 per Right or (ii) may be exchanged in
whole or in part for Preferred Shares or shares of the Company’s Common Stock, par value $0.001 per
share. No fractional Preferred Shares will be issued upon the exercise of any Right or Rights
evidenced hereby (other than fractions which are integral multiples of one ten-thousandth of a
Preferred Share, which may, at the election of the Company, be evidenced by depositary receipts),
but, in lieu thereof, a cash payment will be made, as provided in the Agreement.



     No holder of this Right Certificate shall be entitled to vote or receive dividends or be
deemed for any purpose the holder of the Preferred Shares or of any other securities of the Company
which may at any time be issuable on the exercise hereof, nor shall anything contained in the
Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions affecting stockholders (except as
provided in the Agreement), or to receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by this Right Certificate shall have been exercised as provided in the
Agreement.



     This Right Certificate shall not be valid or obligatory for any purpose until it shall have
been countersigned by the Rights Agent.



     WITNESS the facsimile signature of the proper officers of the Company and its corporate seal.
Dated as of [                    ], [___].



	 	 	 	 	 	 	 
	ATTEST:	 	TIM HORTONS INC.
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 
	 

	 	Name:
	 	 	 	Name:
	 

	 	 
	 	 	 	 
	 

	 	Title:
	 	 	 	Title:
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	Countersigned:	 	 	 	 
	 
	 	 	 	 	 	 
	Computershare Investor Services, LLC
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 


	 

	 	 

	 

	 	Title:	 	 	 	 
	 

	 	 







B-2









 






[Form of Reverse Side of Right Certificate]




FORM OF ASSIGNMENT




(To be executed by the registered holder if such

holder desires to transfer the Right Certificate.)




     FOR
VALUE RECEIVED              
                               hereby sells, assigns
and transfers unto              
                   
             
             
             


 



(Please print name and address of transferee)



this Right Certificate, together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint
                 
                   
                   
                        Attorney, to transfer the within Right
Certificate on the books of the within-named Company, with full power of substitution.




	 	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Signature
	 
	 	 	 	 
	Signature Guaranteed:







B-3









 





CERTIFICATE




          The undersigned hereby certifies by checking the appropriate boxes that:




          (1) the Rights evidenced by this Rights Certificate [  ] are [  ] are not being assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are defined pursuant to the Rights
Agreement); and




          (2) after due inquiry and to the best knowledge of the undersigned, it [  ] did [  ] did not
acquire the Rights evidenced by this Rights Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.




	 	 	 
	Dated:                     ,                     
	 	 
	 

	 	 
	 

	 	Signature
	 
	 	 
	Signature Guaranteed:
	 	 






B-4









 





[Form of Reverse Side of Right Certificate — continued]




FORM OF ELECTION TO PURCHASE




(To be executed if holder desires to exercise

Rights represented by the Right Certificate.)




To: Tim Hortons Inc.




     The undersigned hereby irrevocably elects to exercise                      Rights represented by this
Right Certificate to purchase the Preferred Shares issuable upon the exercise of such Rights and
requests that certificates for such Preferred Shares be issued in the name of:



Please insert social security

or other identifying number



 



(Please print name and address)



 



If such number of Rights shall not be all the Rights evidenced by this Right Certificate, a new
Right Certificate for the balance remaining of such Rights shall be registered in the name of and
delivered to:




Please insert social security

or other identifying number



 



(Please print name and address)




	 	 	 
	Dated:                                         
	 	 
	 
	 	 
	 
	 	 
	 

	 	 
	 

	 	Signature
	 
	 	 
	Signature Guaranteed:
	 	 






B-5









 





[Form of Reverse Side of Right Certificate — continued]




CERTIFICATE




          The undersigned hereby certifies by checking the appropriate boxes that:




          (1) the Rights evidenced by this Rights Certificate [  ] are [  ] are not being exercised by
or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined pursuant to the Rights Agreement); and




          (2) after due inquiry and to the best knowledge of the undersigned, it [  ] did [  ] did not
acquire the Rights evidenced by this Rights Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.




	 	 	 
	Dated:                     ,                     
	 	 
	 

	 	 
	 

	 	Signature
	 
	 	 
	Signature Guaranteed:
	 	 






B-6









 





NOTICE




     The signature in the Form of Assignment and Certificate or Form of Election to Purchase and
Certificate, as the case may be, must conform to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any change whatsoever.



     All Guarantees must be made by a financial institution (such as a bank or broker) which is a
participant in the Securities Transfer Agents Medallion Program (“STAMP”), the New York Stock
Exchange, Inc. Medallion Signature Program (“MSP”), or the Stock Exchanges Medallion Program
(“SEMP”) and must not be dated. Guarantees by a notary public are not acceptable.



     In the event the certification set forth above in the Form of Assignment or the Form of
Election to Purchase, as the case may be, is not completed, the Company and the Rights Agent may
deem the beneficial owner of the Rights evidenced by this Right Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Agreement) and not honor such
Assignment or Election to Purchase.




B-7









 








Exhibit C




SUMMARY OF RIGHTS TO PURCHASE

PREFERRED SHARES




Introduction




     On February 24, 2006, the Board of Directors of our Company, Tim Hortons Inc., a Delaware
corporation, declared a dividend of one preferred share purchase right (a “Right”) for each
outstanding share of common stock, par value $0.001 per share. The dividend is payable to the
stockholders of record on March 10, 2006.



     Our Board has adopted this Rights Agreement to protect stockholders from coercive or otherwise
unfair takeover tactics. In general terms, it works by imposing a significant penalty upon any
person or group which acquires 15% or more of our outstanding common stock without the approval of
our Board. The Rights Agreement should not interfere with any merger or other business combination
approved by our Board. Certain exceptions have been included in the Rights Agreement in order to
ensure that Wendy’s International, Inc., including its affiliates and associates, are not by virtue
of their share ownership deemed to be an Acquiring Person.



     For those interested in the specific terms of the Rights Agreement as made between our Company
and Computershare Investor Services, LLC, as the Rights Agent, on February 28, 2006, we provide the
following summary description. Please note, however, that this description is only a summary and
is not complete, and should be read together with the entire Rights Agreement, which has been filed
with the Securities and Exchange Commission as an Exhibit to Amendment No. 4 to the Registration
Statement on Form S-1 (Registration No. 333-130035) and filed with applicable Canadian regulatory
authorities on the System for Electronic Document Analysis and Retrieval (SEDAR). A copy of the
Rights Agreement is available free of charge from our Company.



The Rights. Our Board authorized the issuance of a Right with respect to each outstanding
share of common stock on March 10, 2006. The Rights will initially trade with, and will be
inseparable from, the common stock. The Rights are evidenced by book-entry or certificates that
represent shares of common stock. New Rights will accompany any new shares of common stock we
issue after March 10, 2006 until the Distribution Date described below.



Exercise Price. Each Right will allow its holder to purchase from our Company one
ten-thousandth of a share of Series A Junior Participating Preferred Stock (“Preferred Share”) for
Cdn. $150, once the Rights become exercisable.



Exercisability. The Rights will not be exercisable until





			
	o     	 	10 days after the public announcement that a person or group has become an
“Acquiring Person” by obtaining beneficial ownership of 15% or more of our outstanding common
stock, or, if earlier,






			
	o     	 	10 business days (or a later date determined by our Board before any person or
group becomes an Acquiring Person) after a person or group begins a tender or exchange offer




C-1









 






			
	 	 	
or a take-over bid as defined under Canadian securities laws which, if completed, would
result in that person or group becoming an Acquiring Person.





     We refer to the date when the Rights become exercisable as the “Distribution Date.” Until that
date, book-entry or the common stock certificates will also evidence the Rights, and any transfer
of shares of common stock will constitute a transfer of Rights. After that date, the Rights will
separate from the common stock and be evidenced by Right certificates that we will mail to all
eligible holders of common stock. Any Rights held by an Acquiring Person are void and may not be
exercised.



Consequences of a Person or Group Becoming an Acquiring Person.





			
	o     	 	Flip In. If a person or group becomes an Acquiring Person, all holders of Rights except
the Acquiring Person may, for Cdn. $150, purchase shares of our common stock with a market
value of Cdn. $300, based on the market price of the common stock prior to such acquisition.






			
	o     	 	 Flip Over. If our Company is acquired in a merger or similar transaction after an
Acquiring Person becomes such, all holders of Rights except the Acquiring Person may, for Cdn.
$150, purchase shares of the acquiring corporation with a market value of Cdn. $300 based on
the market price of the acquiring corporation’s stock, prior to such merger.





Preferred Share Provisions.



Each one ten-thousandth of a Preferred Share, if issued:





			
	o     	 	will not be redeemable.






			
	o     	 	will entitle holders to quarterly dividend payments of $.01 per one ten-thousandth of a
Preferred Share, or an amount equal to the dividend paid on one share of common stock,
whichever is greater.






			
	o     	 	will entitle holders upon liquidation either to receive $1.00 per one ten-thousandth of a
Preferred Share or an amount equal to the payment made on one share of common stock, whichever
is greater.






			
	o     	 	will have the same voting power as one share of common stock.






			
	o     	 	if shares of our common stock are exchanged via merger, consolidation, or a similar
transaction, will entitle holders to a per share payment equal to the payment made on one
share of common stock.




The value of one ten-thousandth interest in a Preferred Share should approximate the value of one
share of common stock.



Expiration. The Rights will expire at 5:00 P.M., Chicago, Illinois time, on February 23,
2016, unless such date is advanced or extended or unless the Rights are earlier redeemed or
exchanged by our Board as described below.




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Redemption. Our Board may redeem the Rights for $0.01 per Right at any time before any
person or group becomes an Acquiring Person. If our Board redeems any Rights, it must redeem all
of the Rights. Once the Rights are redeemed, the only right of the holders of Rights will be to
receive the redemption price of $0.01 per Right. The redemption price will be adjusted if we have
a stock split or stock dividends of our common stock.



Exchange. After a person or group becomes an Acquiring Person, but before an Acquiring
Person owns 50% or more of our outstanding common stock, our Board may extinguish the Rights by
exchanging one share of common stock or an equivalent security for each Right, other than Rights
held by the Acquiring Person.



Anti-Dilution Provisions. Our Board may adjust the purchase price of the Preferred Shares,
the number of Preferred Shares issuable and the number of outstanding Rights to prevent dilution
that may occur from a stock dividend, a stock split, or a reclassification of the Preferred Shares
or common stock. No adjustments to the Exercise Price of less than 1% will be made.



Amendments. The terms of the Rights Agreement may be amended by our Board without the
consent of the holders of the Rights except that after a person or group becomes an Acquiring
Person, our Board may not amend the agreement in a way that adversely affects holders of the
Rights.





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