AMALGAMATION AGREEMENT
THIS AMALGAMATION AGREEMENT dated as of the 20th of January, 2003.
B E T W E E N:
GENTERRA INVESTMENT CORPORATION, a corporation formed under the laws of the
Province of Ontario, (Ontario), (hereinafter referred to as "Genterra")
OF THE FIRST PART - and -
MIRTRONICS INC., a corporation incorporated under the laws of the Province
of Ontario, (hereinafter referred as "Mirtronics") OF THE SECOND PART
THIS AGREEMENT WITNESSETH as follows:
ARTICLE ONE - DEFINITIONS
1.1 In this Agreement, the following terms shall have the following meanings,
respectively:
(a) "Act" means the Business Corporations Act (Ontario), as amended;
(b) "Agreement" means this Amalgamation Agreement and includes the
schedules attached hereto;
(c) "Amalgamation" means the amalgamation of the Amalgamating Corporations
as contemplated in the Agreement;
(d) "Amalgamating Corporations" means Genterra and Mirtronics;
(e) "Amalgamated Corporation" means the corporation continuing from the
amalgamation of the Amalgamating Corporations;
(f) "Articles of Amalgamation" means the Articles of Amalgamation
contemplated in section 6.1 hereof;
(g) "Certificate of Amalgamation" means the certificate of amalgamation to
be issued to the Amalgamated Corporation pursuant to the Act;
(h) "Effective Date" means the date on which the conditions to the
Amalgamation, and all steps to implement the Amalgamation as set forth
in this Agreement are taken and satisfied;
(i) "Genterra Class A Share" means a Class A subordinate voting
participating share without par value in the capital of Genterra;
(j) "Genterra Class B Share" means a Class B multiple voting participating
share without par value in the capital of Genterra;
(k) "Genterra Class D Series 1 Share" means a non-voting,
non-participating, non-cumulative, redeemable Class D preferred share,
Series 1 in the capital of Genterra;
(l) "Genterra Class D Series 2 Share" means a non-voting,
non-participating, non-cumulative, redeemable Class D preferred share,
Series 2 in the capital of Genterra;
(m) "Genterra Class E Share" means a non-voting, non-participating, $0.14
cumulative, redeemable Class E preferred share in the capital of
Genterra;
(n) "Genterra Class F Series 1 Share" means a non-voting,
non-participating, $0.06 cumulative, redeemable, convertible Class F
preferred share Series 1 in the capital stock of Genterra;
(o) "Genterra Series 1 Share" means a non-voting, non-participating,
$0.0084 cumulative, redeemable Series 1 Preference Share in the
capital stock of Genterra;
(p) "Genterra Special Share" means a voting, non-participating, redeemable
special share without par value in the capital of Genterra;
(q) "Genterra Warrant" means a warrant enabling the holder to purchase one
(1) Genterra Class A Share and 0.7 Genterra Series 1 Share at the
price of $0.28 per share prior to March 26, 2004;
(r) "Mirtronics Common Share" means a Common share without par value in
the capital of Mirtronics; and
(s) "Mirtronics Class B Preference Share" means a non-voting,
non-participating, remeedable, non-cumulative Class B Preference share
in the capital of Mirtronics.
ARTICLE TWO - AMALGAMATION
2.1 Agreement
The Amalgamating Corporations agree to amalgamate pursuant to the
provisions of the Act as of the Effective Date and to continue as one
corporation on the terms and conditions herein described.
2.2 Effective Date of Amalgamation
On the Effective Date that the Amalgamation becomes effective and the
Amalgamating Corporations are amalgamated and continue as one corporation under
the terms and conditions of this Agreement, the Amalgamated Corporation shall
possess all of the property, rights, privileges and franchises and shall be
subject to all of the liabilities, contracts, disabilities and debts of each of
the Amalgamating Corporations.
ARTICLE THREE - AMALGAMATED CORPORATION
3.1 Name
The name of the Amalgamated Corporation shall be Genterra Inc., or such
other name as may be approved.
3.2 Registered Office
The registered office of the Amalgamated Corporation shall be in the
Municipality of Metropolitan Toronto in the Province of Ontario. The address of
the registered office of the Amalgamated Corporation in the Municipality of
Metropolitan Toronto shall be 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X 0X0.
3.3 Directors
(a) Number:
The board of directors of the Amalgamated Corporation shall, until
otherwise changed in accordance with the Act, consist of a minimum of three (3)
and a maximum of fifteen (15) directors;
(b) First Directors:
The first directors of the Amalgamated Corporation shall be the persons
whose names and addresses appear below:
Full Name Residence Address
Xxxx X. Xxxxxx 00 Xxxxxx Xxxxxxxx, Xxxxxxx, Xxxxxxx, X0X 0X0
Xxxxxx Xxxxxx 000 XxXxxxxx Xxxxxxxx, Xxxxxxxxx, Xxxxxxx, X0X 0X0
Xxxxx Xxxxxx 0 Xxxxx Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxx, X0X 0X0
Xxxx Xxxxxxxxxx 00 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx, X0X 0X0
Xxxx Xxxxxxxx 0 Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx, X0X 0X0
Each of the foregoing is a resident Canadian. The said first directors
shall hold office until their successors are elected or appointed. The
election of the subsequent directors shall take place yearly at the annual
meeting of shareholders of the Amalgamated Corporation and shall be by a
show of hands unless a ballot is demanded by a shareholder, in accordance
with s.103 of the Act.
3.4 Business
There shall be no restrictions on the business that the Amalgamated
Corporation may carry on.
3.5 Authorized Capital
(a) The authorized share capital of the Amalgamated Corporation shall
consist of:
(i) an unlimited number of Class A subordinate voting participating
shares without par value (the "Class A Shares");
(ii) an unlimited number of Class B multiple voting participating
shares without par value (the "Class B Shares");
(iii)an unlimited number of preference shares without par value (the
"Class C Preferred Shares");
(iv) an unlimited number of preferred shares without par value
issuable in series (the "Class D Preferred Shares");
(v) an unlimited number of preferred shares without par value (the
"Class E Preferred Shares);
(vi) an unlimited number of preferred shares without par value
issuable in series (the "Class F Preferred Shares);
(vii)an unlimited number of preference shares without par value (the
"Series 1 Preference Shares"); and
(iv) an unlimited number of special shares without par value (the
"Special Shares").
(b) The rights, privileges, restrictions and conditions attaching to the
Class A Shares and the Class B Shares are set out in Exhibit "1"
annexed hereto.
(c) The rights, privileges, restrictions and conditions attaching to the
Class C Preferred Shares (the "Class C Preferred Shares") are set out
in Exhibit "2" annexed hereto.
(d) The rights, privileges, restrictions and conditions attaching to the
Class D Preferred Shares and to the first and second series thereof
(the "Class D Preferred Shares, Series 1", and the "Class D Preferred
Shares, Series 2") are set out in Exhibit "3" annexed hereto.
(e) The rights, privileges, restrictions and conditions attaching to the
Class E Preferred Shares are set out in Exhibit "4" annexed hereto.
(f) The rights, privileges, restrictions and conditions attaching to the
Class F Preferred Shares, and to the first series thereof (the "Class
F Preferred Shares, Series 1") are set out in Exhibit "5" annexed
hereto.
(g) The rights, privileges, restrictions and conditions attaching to the
Series 1 Preference Shares are set out in Exhibit "6" annexed hereto.
(h) The rights, privileges, restrictions and conditions attaching to the
Special Shares are set out in Exhibit "7" annexed hereto.
3.6 Restrictions on Transfer
There shall be no restrictions on the issue, transfer or ownership of
shares of the Amalgamated Corporation.
3.7 By-laws
The by-laws of Genterra shall, to the extent not inconsistent with this
Agreement, be the by-laws of the Amalgamated Corporation. A copy of such by-laws
may be examined at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X 0X0.
ARTICLE FOUR -
ISSUE OF SHARES BY THE AMALGAMATED CORPORATION
4.1 Issue of Shares
The shares in the capital of the Amalgamating Corporations which are issued
and outstanding immediately prior to the date of the issuance of a Certificate
of Amalgamation pursuant to the provisions of the Act shall, on and from such
last mentioned date, be converted into issued and outstanding shares in the
capital of the Amalgamated Corporation as follows:
(a) the 4,865,187 issued and outstanding Genterra Class A Shares shall be
converted into an aggregate of 4,865,187 issued and fully paid Class A
Shares of the Amalgamated Corporation, on a one for one basis;
(b) the 484,012 issued and outstanding Genterra Class B Shares shall be
converted into an aggregate of 484,012 issued and fully paid Class B
Shares of the Amalgamated Corporation, on a one for one basis;
(c) the 2,475,009 issued and outstanding Genterra Class D Series 1 Shares
shall be converted into an aggregate of 2,475,009 issued and fully
paid Class D Preferred Shares Series 1 of the Amalgamated Corporation,
on a one for one basis;
(d) the 810,059 issued and outstanding Genterra Class D Series 2 Shares
shall be converted into an aggregate of 810,059 issued and fully paid
Class D Preferred Shares, Series 2 of the Amalgamated Corporation, on
a one for one basis;
(e) the 115,258 issued and outstanding Genterra Class E Shares shall be
converted into an aggregate of 115,258 issued and fully paid Class E
Preferred Shares of the Amalgamated Corporation, on a one for one
basis;
(f) the 500,000 issued and outstanding Genterra Class F Shares shall be
converted into an aggregate of 610,000 issued and fully paid Class F
Preferred Shares of the Amalgamated Corporation, on the basis of 1.22
Class F Preferred Shares for each one Genterra Class F Share;
(g) the 1,935,292 issued and outstanding Genterra Series 1 Shares shall be
converted into an aggregate of 1,935,292 issued and fully paid Series
1 Preference Shares of the Amalgamated Corporation, on a one for one
basis;
(h) the 500,000 issued and outstanding Genterra Special Shares shall be
converted into an aggregate of 500,000 issued and fully paid Special
Shares of the Amalgamated Corporation, on a one for one basis;
(i) the 712,500 issued and outstanding Genterra Warrants shall be
converted into an aggregate of 712,500 issued warrants of the
Amalgamated Corporation, on a one for one basis;
(j) the 12,867,581 issued and outstanding Mirtronics Common Shares shall
be converted into an aggregate of 16,084,476 issued and fully paid
Class A Shares of the Amalgamated Corporation, on the basis of 1.25
Class A Shares for each one Mirtronics Common Share;
(k) the 1,709,115 issued and outstanding Mirtronics Class B Preferred
Shares shall be converted into an aggregate of 1,709,115 issued and
fully paid Class C Preferred Shares of the Amalgamated Corporation, on
a one for one basis; and
(l) each option granted by Mirtronics to purchase Mirtronics Common Shares
pursuant to the Mirtronics Stock Option Plan, shall be cancelled.
4.2 Stated Capital
The stated capital of the Amalgamated Corporation shall be equal to the
aggregate of the stated capitals of the Amalgamating Corporations immediately
prior to the Amalgamation becoming effective.
4.3 Fractional Shares
No fractional shares of the Amalgamated Corporation will be issued.
Shareholders who are entitled to a fraction of a share will receive a full share
in respect thereof.
ARTICLE FIVE -
CONDITIONS PRECEDENT TO AMALGAMATION
5.1 Conditions Precedent to Amalgamation
Notwithstanding anything to the contrary contained herein, the respective
obligations of Genterra and Mirtronics to complete the transactions contemplated
by this agreement and to file Articles of Amalgamation to give effect to the
Amalgamation shall be subject to the satisfaction of the following conditions:
(a) this Agreement, with or without amendment, shall have been adopted and
approved by special resolutions passed at special meetings of the
shareholders of each of Genterra and Mirtronics, both called and held
in accordance with the provisions of applicable laws, and in addition
by a majority of the votes cast by shareholders other than Xxxx X..
Xxxxxx and his respective associates;
(b) all other consents, orders, regulations and approvals, including
regulatory approvals and orders, required or necessary or desirable
for the completion of the transactions provided for in this agreement
shall have been obtained or received from the persons, authorities or
bodies having jurisdiction in the circumstances;
(c) there shall not be in force any order or decree restraining or
enjoining the consummation of the transactions contemplated by this
agreement; and
(d) none of the consents, orders, regulations or approvals contemplated
herein shall contain terms or conditions or require undertakings or
securities deemed unsatisfactory or unacceptable by the parties
hereto.
ARTICLE SIX -
ARTICLES OF AMALGAMATION
6.1 Filing
Upon the directors and shareholders of each of the Amalgamating
Corporations approving this Agreement by special resolution in accordance with
the Act, and all other conditions to the Amalgamation being satisfied, the
Amalgamating Corporations shall jointly file with the Director under the Act,
Articles of Amalgamation and such other documents as may be required for the
purpose of giving effect to the Amalgamation.
6.2 Termination
This Agreement may, prior to the endorsement of the Certificate of
Amalgamation, be terminated by resolution of the board of directors of either of
the Amalgamating Corporations notwithstanding the approval of this Agreement by
the shareholders of both of the Amalgamating Corporations, at any time prior to
the endorsement of a Certificate of Amalgamation under the Act insofar as this
Agreement relates to the Amalgamating Corporation in question.
6.3 Amendments
This Agreement may, prior to the endorsement of the Certificate of
Amalgamation, be amended by resolution of the board of directors of each of the
Amalgamating Corporations, without further approval of the shareholders of each
of the Amalgamating Corporations.
ARTICLE SEVEN - GENERAL
7.1 Assets and Liabilities
The Amalgamated Corporation shall possess all the property, rights,
privileges and franchises, as they exist immediately before the Amalgamation,
and shall be subject to all the liabilities, including civil, criminal and
quasi-criminal, and all contracts, disabilities and debts of each of the
Amalgamating Corporations, as they exist immediately before the Amalgamation.
7.2 Registrar and Transfer Agent
The registrar and transfer agent for the shares of the Amalgamated
Corporation shall be Computershare Trust Company of Canada, at its principal
office in the City of Toronto.
7.3 Auditors
The auditors of the Amalgamated Corporation shall be Kraft, Xxxxxx Grill,
Xxxxxxxx. Xxxxx & March LLP, Chartered Accountants.
7.4 Fiscal Year End
The fiscal year end of the Amalgamated Corporation shall be September 30,
in each year, commencing September 30, 2003, until changed by resolution of the
board of directors.
7.5 Modifications
Each of the Amalgamating Corporations may, by special resolution (as
defined in the Act) of each of them, assent to any alteration or modification of
this Agreement.
7.6 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario.
7.7 Execution in Counterpart
This Agreement may be executed in counterparts all of which taken together
shall constitute this Agreement.
7.8 Entire Agreement
This Agreement constitutes the entire agreement among the parties relating
to the subject matter hereof and supersedes all prior agreements and
understandings, oral and written between the parties thereto with respect to the
subject matter hereof.
IN WITNESS WHEREOF this Amalgamation Agreement has been executed by the parties
hereto.
GENTERRA INVESTMENT CORPORATION
By: [Signed]
Secretary
MIRTRONICS INC.
By: [Signed]
Secretary
EXHIBIT "1"
CLASS A SUBORDINATE VOTING SHARES AND
CLASS B MULTIPLE VOTING SHARES,
The rights, privileges, restrictions and conditions attaching to the Class
A subordinate voting participating convertible shares without par value (the
"Class A Shares"), and the Class B multiple voting participating convertible
shares without par value (the "Class B Shares")
1. Dividends
Subject as hereinafter provided the holders of the Class A Shares and the
holders of the Class B Shares shall be entitled to receive, and the Corporation
shall pay thereon, such dividends in such amounts per share on each such class
of shares as the directors in their discretion may declare out of the moneys of
the Corporation properly applicable to the payment of dividends; the holders of
the Class A Shares shall be entitled to receive in each fiscal year of the
Corporation, when and as declared by the board of directors, non-cumulative
dividends at the rate of one-half cent (0.5(cent)) per Class A Share, and no
dividends shall be declared and paid or set aside for payment on the Class B
Shares in any fiscal year unless and until dividends at the rate of one-half
cent (0.5(cent)) per share for such year shall have been paid on the Class A
Shares for the time being outstanding or shall have been declared and set aside
for such payment; the said dividends at the rate of one-half cent (0.5(cent))
per Class A Share shall be non-cumulative whether or not earned, and if in any
fiscal year the board of directors in its discretion shall not declare the said
dividends or any part thereof on the Class A Shares, then the right of the
holders of the Class A Shares to such dividends or any greater dividend for such
fiscal year shall be forever extinguished; whenever in any fiscal year of the
Corporation a dividend or dividends aggregating one-half cent (0.5(cent)) a
share shall have been paid or declared and set aside for payment on all the
Class A Shares at the time outstanding, any and all further dividends declared
in such year shall be declared and paid in equal amounts per share and at the
same time on all Class A Shares and all Class B Shares at the time outstanding
without preference or distinction;
2. CHANGE IN NUMBER
No subdivision, redivision, consolidation or other change in the number of
Class A Shares or the number of Class B Shares effected by an amendment to the
Articles of the Corporation shall be made unless contemporaneously therewith the
Class A Shares and the Class B Shares are subdivided, redivided, consolidated or
changed in the same manner.
3. VOTING RIGHTS AND NOTICE
(a) The holders of the Class A Shares shall be entitled to receive notice
of. attend, speak and vote at any meeting of the shareholders of the
Corporation, except for a meeting at which only holders of another class or
series of shares are entitled to vote by separate class vote, and the holders of
the Class A Shares shall be entitled at any such first mentioned meeting to one
(1) vote for each Class A Share held.
(b) The holders of the Class B Shares shall be entitled to receive notice
of, attend and speak at any meeting of the shareholders of the Corporation,
except for a meeting at which only holders of another class or series of shares
are entitled to vote by separate class vote, and the holders of the Class B
Shares shall be entitled at any such meeting to eight (8) votes for each Class B
Share held.
4. DISSOLUTION
Subject to the prior rights of the holders of the preference shares and the
shares of any other class ranking senior to the Class A Shares, and the Class B
Shares and subject to the payment of all dividends which have been declared on
the Class A Shares, and/or the Class B Shares, but remain unpaid, in the event
of the liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, or any other distribution of assets of the Corporation
among its shareholders for the purpose of winding up its affairs, the holders of
the Class A Shares and the Class B Shares shall be entitled to receive the
remaining assets of the Corporation in equal amounts per share, without
preference or distinction.
5. CONVERSION OF CLASS B SHARES
(a) Each holder of a Class B Share shall be entitled at his option, at any
time and from time to time, to have all or any number of the Class B Shares held
by him converted into Class A Shares on the basis of one Class A Share for each
Class B Share in respect of which the conversion right is exercised. Such
conversion right shall be exercised by notice in writing given to Corporation's
transfer agent (the "Transfer Agent") accompanied by the certificate
representing the Class B Shares in respect of which the holder desires to
exercise such right of conversion and such notice shall be executed by the
person registered on the books of the Corporation as the holder of the Class B
Shares or his duly authorized attorney and shall specify the number of Class B
Shares which the holder desires to have converted. The holder shall pay any
governmental or other tax imposed on, or in respect of, such conversion. Upon
receipt by the Transfer Agent of such notice and certificate, the Amalgamated
Corporation shall issue, or cause to be issued, to the holder so exercising the
conversion right in respect of Class B Shares, a certificate representing Class
A Shares on the basis aforesaid and in accordance with the provisions hereof. If
less than all the Class B Shares represented by any certificate are to be
converted, the holder shall be entitled to receive a new certificate
representing the number of Class B Shares represented by the original
certificate which are not to be converted.
6. CONVERSION OF CLASS A SHARES
(a) For the purposes of paragraphs i. to vii.:
(i) "Affiliate" has the meaning assigned by the Securities Act
(Ontario) as amended from time to time;
(ii) "Associate" has the meaning assigned by the Securities Act
(Ontario) as amended from time to time;
(iii)"Conversion Period" means the period of time commencing on the
eighth day after the Offer Date and terminating on the Expiry
Date;
(iv) "Exclusionary Offer" means a General Offer unless an identical
offer, in terms of price per share and percentage of shares to be
taken up exclusive of shares owned immediately prior to the
General Offer by the Offeror, and in all other material respects,
concurrently is made to purchase Class A Shares, which identical
offer has no condition attached other than the right not to take
up and pay for shares tendered if no shares are purchased
pursuant to the General Offer;
(v) "Expiry Date" means the last date upon which holders of Class B
Shares may accept an Exclusionary Offer;
(vi) "General Offer" means an offer to purchase Class B Shares that
must, by reason of applicable securities legislation or the
requirement of a stock exchange on which the Class B Shares are
listed, be made to all or substantially all holders of Class B
Shares who are in a province of Canada to which the requirement
applies;
(v) "Offer Date" means the date on which an Exclusionary Offer is
made;
(vi) "Offeror" means a person or company that makes a General Offer
(the "bidder"), and includes any associate or affiliate of the
bidder or any person or company that is disclosed in the offering
document to be acting jointly or in concert with the bidder; and
(vii)"Transfer Agent" means the transfer agent for the time being of
the Class B Shares.
(b) Subject to paragraph (d), if an Exclusionary Offer is made, each
outstanding Class A Share shall be convertible into one Class B Share
at the option of the holder during the Conversion Period. The
conversion right may be exercised by delivery to the Transfer Agent
during the Conversion Period of the share certificate or certificates
representing the Class A Shares which the holder desires to convert
accompanied by a written notice duly executed by such holder or his
attorney duly authorized in writing, which notice shall specify the
number of Class A Shares which the holder desires to have converted.
The holder shall pay any governmental or other tax imposed on or in
respect of such conversion. Upon receipt by the transfer Agent of such
notice and share certificate or certificates, the Amalgamated
Corporation shall issue a share certificate representing fully-paid
Class B Shares as above prescribed and in accordance with paragraph
(c). If share certificates are to be converted the holder shall be
entitled to receive a new share certificate representing in the
aggregate the number of Class A Shares represented by the original
share certificate which are not to be converted.
(c) An election to exercise the conversion right provided for in paragraph
(b) shall be deemed to also constitute an election to accept the
Exclusionary Offer and to not exercise any right of withdrawal under
the offer unless the holder or his duly authorized attorney instructs
the Transfer Agent to the contrary in writing, in which case the
Transfer Agent shall comply with such instruction and the Amalgamated
Corporation shall issue and the Transfer Agent shall deliver to the
holder a share certificate representing the Class B Shares resulting
from the conversion. Subject to any such instruction to the contrary,
the Transfer Agent, on behalf of the holders of the converted shares,
shall tender under the offer a certificate or certificates
representing the Class B Shares into which the Class A Shares have
been converted. Upon completion of the offer, the Transfer Agent shall
deliver to the holders entitled thereto all consideration paid by the
Offeror pursuant to the offer. If the offer is not completed, or if
less than all converted shares are taken up and paid for pursuant to
the offer, the Amalgamated Corporation shall issue and the Transfer
Agent shall deliver to the holders whose shares have been converted
and tendered share certificates representing the Class B Shares that
have not been taken up and paid for pursuant to the offer. The
Amalgamated Corporation shall make all arrangements with the Transfer
Agent necessary or desirable to give effect to this paragraph (c).
(d) Subject to paragraph (e) the conversion right provided for in
paragraph (b) shall not come into effect if within seven days after
the Offer Date there is delivered to the Transfer Agent and to the
Secretary of the Amalgamated Corporation a certificate or certificates
signed by or on behalf of one or more shareholders of the Amalgamated
Corporation owning in the aggregate more than 50% of the outstanding
Class B Shares, exclusive of shares owned immediately prior to the
Exclusionary Offer by the Offeror, which certificate or certificates
shall, in the case of each such shareholder, confirm:
(i) the number of Class B Shares owned by the shareholder:
(ii) that such shareholder is not making the offer and is not an
associate or affiliate of, or acting jointly or in concert with,
the person or company making the offer;
(iii)that such shareholder shall not accept the offer, including any
varied form of the offer, without giving the transfer Agent and
the Secretary of the Amalgamated Corporation written notice of
such intention at least seven days prior to the Expiry Date; and
(iv) that such shareholder shall not transfer any Class B Shares,
directly or indirectly, prior to the Expiry Date without giving
the Transfer Agent and the Secretary of the Amalgamated
Corporation written notice of such transfer or intended transfer
at least seven days prior to the Expiry Date, which notice shall
state the names of the transferees and the number of Class B
Shares transferred or to be transferred to each transferee.
(e) If a notice referred to in sub-clause d(iii) or d(iv) is given and the
conversion right provided for in paragraph (b) has not come into effect, the
Transfer Agent shall either forthwith upon receipt of the notice or forthwith
after the seventh day following the Offer Date, whichever is later, make a
determination as to whether there are subsisting certificates that comply with
clause (d) from shareholders of the Amalgamated Corporation who own in the
aggregate more than 50% of the outstanding Class B Shares, exclusive of shares
owned immediately prior to the offer by the Offeror, and for the purpose of this
determination the transaction that is the subject of such notice shall be deemed
to have taken place at the time of the determination. If the Transfer Agent
determines that there are not such subsisting certificates, sub-clause (d)(iv)
shall cease to apply and the conversion right provided for in paragraph (b)
shall be in effect for the remainder of the Conversion Period.
(f) As soon as reasonably possible after the seventh day after the Offer
Date, the Amalgamated Corporation shall send to each holder of Class A Shares a
notice advising the holders that they are entitled to convert their Class A
Shares into Class B Shares and the reasons therefor. If such notice discloses
that they are not so entitled but it is subsequently determined that they are so
entitled by virtue of paragraph (e) or otherwise, the Amalgamated Corporation
shall forthwith send another notice to them advising them of the fact and the
reasons therefor.
(g) If a notice referred to in paragraph (f) discloses that the conversion
right has come into effect, the notice shall include a description of the
procedure to be followed to effect the conversion and to have the converted
shares tendered under the offer, and the notice shall be accompanied by a copy
of the offer and all other material sent to holders of Class B Shares in respect
of the Offer; and as soon as reasonably possible after any additional material,
including a notice of variation, is sent to the holders of Class B Shares in
respect of the offer, the Amalgamated Corporation shall send a copy of such
additional material to each holder of Class A Shares.
7. RANK
The Class A Shares and the Class B Shares shall rank junior to the
preference shares.
x x x x x x x x
EXHIBIT "2"
CLASS C PREFERRED SHARES
The shares without par value designated, as a class, Class C Preferred
Shares (the "Class C Preferred Shares") shall have attached thereto, as a class,
the following rights, privileges, restrictions and conditions.
1. The Class C Preferred Shares may at any time and from time to time be issued
in one (1) or more series, each series to consist of such number of shares as
may, before the issue thereof, be fixed by resolution of the board of directors
of the Corporation.
2. The board of directors of the Corporation shall by resolution duly passed
before the issue of any Class C Preferred Shares of any series, determine the
designation, rights, privileges, restrictions and conditions to be attached to
the Class C Preferred Shares of such series, including, but without in any way
limiting or restricting the generality of the foregoing, the rate or amount of
preferential dividends, the date or dates and place or places of payment
thereof, the consideration and the terms and conditions of any purchase for
cancellation or redemption thereof, conversion or exchange rights (if any), the
terms and conditions of any share purchase plan or sinking fund and the
restrictions (if any) respecting payment of dividends on any shares ranking
junior to the Class C Preferred Shares.
3. The Class C Preferred Shares of each series shall, with respect to priority
in payment of dividends and the distribution of assets in the event of
liquidation, dissolution or winding-up of the Corporation, whether voluntary or
involuntary, or any other distribution of the assets of the Corporation among
its shareholders for the purpose of winding-up its affairs be entitled to a
preference over the Class A Subordinate Voting Shares and Class B Shares or any
of them, the Class D Preferred Shares and over any other shares ranking junior
to the Class C Preferred Shares and the Class C Preferred Shares of each series
may also be given such other preferences over the Class A Subordinate Voting
Shares and Class B Shares or any of them, the Class D Preferred Shares and any
other shares ranking junior to the Class C Preferred Shares as may be determined
as to the respective series authorized to be issued.
4. The Class C Preferred Shares of each series shall rank on a parity with the
Class C Preferred Shares of every other series with respect to priority in
payment of dividends and in the distribution of assets in the event of the
liquidation, dissolution or winding-up of the Corporation, whether voluntary or
involuntary, or any other distribution of the assets of the Corporation among
its shareholders for the purpose of winding-up its affairs.
5. The holders of the Class C Preferred Shares of each series shall be entitled
to receive and the Corporation shall pay thereon as and when declared by the
board of directors out of the monies of the Corporation properly applicable to
the payment of dividends, preferential dividends, at such rate and on such date
or dates as the directors may determine or may have determined by the resolution
provided for in clause 2 determining the rights, privileges, restrictions and
conditions attaching to the Class C Preferred Shares of such series, payable
either in cash or in shares, or partly in one and partly in the other. Cheques
of the Corporation payable at par at any branch of the Corporation's banker for
the time being in Canada shall be issued in respect of cash dividends.
6. In the event of the liquidation, dissolution or winding-up of the Corporation
or any other distribution of assets of the Corporation among its shareholders
for the purpose of winding-up its affairs, the holders of the Class C Preferred
Shares of each series shall be entitled to receive for each Class C Share held
by them, respectively, a sum equivalent to the result obtained when the stated
capital account for the Class C Preferred Shares of such series its divided by
the number of issued and outstanding Class C Preferred Shares of such series
together with all dividends (if any) unpaid thereon up to the date of
distribution before any amount shall be paid or any property or assets of the
Corporation distributed to the holders of any Class A Subordinate Voting Shares
and Class B Shares or any of them or the Class D Preferred Shares or shares of
any other class ranking junior to the Class C Preferred Shares. After payment to
holders of the Class C Preferred Shares of each series of the amount so payable
to them they shall not be entitled to share in any further distribution of the
property or assets of the Corporation.
7. Subject to the provisions of clause 6 and subject to the rights, privileges,
restrictions and conditions attaching to the Class C Preferred Shares of any
series, the Corporation may at any time or times purchase (if obtainable) for
cancellation all or any part of the Class C Preferred Shares of any series
outstanding form time to time in the market (including purchase through or from
an investment dealer or firm holding membership on a recognized stock exchange)
or by invitation for tenders addressed to all the holders of record of the Class
C Preferred Shares of such series outstanding at the lowest price or prices at
which, in the opinion of the directors, such shares are obtainable but not
exceeding the price at which, at the date of purchase, such shares are
redeemable as provided in clause 8 without reference to the price payable by the
Corporation pursuant to any compulsory purchase or retirement obligation imposed
upon the Corporation (including accrued and unpaid preferential dividends as
provided in the said clause 8) and costs of purchase. If upon any invitation for
tenders under the provisions of this clause the Corporation receives tenders of
Class C Preferred Shares of such series at the same lowest price which the
Corporation is willing to pay in an aggregate number greater than the number for
which the Corporation is prepared to accept tenders, the Class C Preferred
Shares of such series so tendered which the Corporation determines to purchase
at such price shall be purchased at nearly as may be pro rata (disregarding
fractions) in proportion to the number of Class C Preferred Shares of such
series so tendered by each of the holders of Class C Preferred Shares of such
series who submitted tenders at the said same lowest price.
8. Subject to the rights, privileges, restrictions and conditions attaching to
the Class C Preferred Shares of any series, the Corporation may upon giving
notice as hereinafter provided redeem at any time the whole or from time to time
any part of the then outstanding Class C Preferred Shares of any series on
payment for each shares to be redeemed of a sum equivalent to the result
obtained when the stated capital account for the Class C Preferred Shares of
such series is divided by the number of issued and outstanding shares of such
series together with such premium (if any) as the directors may determine or may
have determined by the resolution provided for in clause 2 determining the
rights, privileges, restrictions and conditions attaching to the shares of such
series together with all declared and unpaid dividends (if any) thereon up to
the date fixed for redemption.
9. In any case of redemption of Class C Preferred Shares of any series under the
provision of clause 8 the Corporation shall, at least ten (10) days before the
date specified for redemption, mail to each person who at the date of mailing is
a registered holder of Class C Preferred Shares of such series to be redeemed, a
notice in writing of the intention of the Corporation to redeem such last
mentioned shares. Such notice shall be mailed in an envelope, postage prepaid,
addressed to each such shareholder at his address as it appears on the books of
the Corporation or in the event of the address of any such shareholder not so
appearing then to the last known address of such shareholder, provided, however,
the accidental failure or omission to give any such notice (1) or more of such
shareholders shall not affect the validity of such redemption. Such notice shall
set out the redemption price and the date of which redemption is to take place
and if part only of the Class C Shares of such series held by the persons to
whom it is addressed is to be redeemed the number thereof so to be redeemed. On
or after the date so specified for redemption the Corporation shall pay or cause
to be paid to or to the order of the registered holders of the Class C Preferred
Shares of such series to be redeemed the redemption price thereof on
presentation and surrender, at the registered office of the Corporation or any
other place within Canada designated in such notice, of the certificates
representing the Class C Preferred Shares of such series so called for
redemption. Such payment shall be made by cheques payable at par at any branch
of the Corporation's bankers for the time being in Canada. If a part only of the
Class C Preferred Shares of such series represented by any certificate shall be
redeemed, a new certificate for the balance shall be issued at the expense of
the Corporation. On the date fixed for redemption, the Class C Preferred Shares
of such series to be redeemed are thereupon redeemed and cancelled as of the
date so fixed for redemption and the holders thereof have no rights whatsoever
against the Corporation in respect of the presentation of certificates
representing the Class C Preferred Shares of such series to be redeemed, payment
of the redemption price therefor without interest.
10. The holders of Class C Preferred Shares shall be entitled to receive copies
of the annual financial statements of the Corporation and the auditors' report
thereon to be submitted to the shareholders of the Corporation at annual
meetings but the holders of Class C Preferred Shares shall not be entitled as
such, except as hereinafter and in the Business Corporations Act specifically
provided, to receive notice of or to attend any meeting of the shareholders of
the Corporation or to vote at any such meeting but shall be entitled to receive
notice of meetings of shareholder of the Corporation called for the purpose of
authorizing the dissolution of the Corporation or the sale of its undertaking or
a substantial part thereof.
11. The approval of the holders of the Class C Preferred Shares to delete or
vary any rights, privilege, restriction or condition attaching to the Class C
Preferred Shares as a class or any other matter requiring the approval or
consent of the holders of Class C Preferred Shares, as a class, may be given by
at least two-thirds (2/3) of the votes cast at a meting of the holders of the
Class C Preferred Shares duly called for the purpose and held upon at least
twenty-one (21) days' notice.
XXXXXXXXXX
CLASS C PREFERRED SHARES, SERIES 1
The first series of Class C Preferred Shares designated as Non-Voting,
Not-Participating, Redeemable, Non-Cumulative, Class C Preferred Shares, Series
1 (the "Class C, Series 1 Shares") shall consist of an unlimited number of
shares without par value, and, in addition to the rights, privileges
restrictions and conditions attached to the Class C Preferred Shares as a class,
shall have attached thereto rights, privileges, restrictions and conditions
substantially as hereinafter set forth, that is to say:
1. DIVIDENDS
1.1 Payment of Dividends
The holders of the Class C, Series 1 Shares shall be entitled to receive
and the Corporation shall pay thereon as and when declared by the Board of
Directors out of the monies of the Corporation properly applicable to the
payment of dividends, fixed preferential non-cumulative cash dividends at the
rate of $0.026 cents per Class C, Series 1 Share, payable annually on dates in
each fiscal year of the Corporation to be fixed from time to time by resolution
of the Board of Directors. The holders of the Class C, Series 1 Shares shall not
be entitled to any dividend other than or in excess of the said dividends herein
provided. The Board of Directors of the Corporation shall be entitled from time
to time to declare part of the said fixed preferential non-cumulative dividend
for any fiscal year notwithstanding that such dividend for such fiscal year
shall not be declared in full. If within (4) months after the expiration of any
fiscal year of the Corporation the Board of Directors in its discretion shall
not have declared the said dividend or any part thereof on the Class C, Series 1
Shares for such fiscal year then the rights of the holders of the Class C,
Series 1 Shares to such dividend or to any undeclared part thereof for such
fiscal year shall be forever extinguished.
1.2 Preferential Non-Cumulative Dividend
No dividends shall at any time be declared or paid on or set aside for the
Class A subordinate voting shares or the Class B multiple voting shares or any
shares of any other class ranking junior to the Class C, Series 1 Shares for any
fiscal year unless all dividends payable for such fiscal year of the Corporation
on the Class C, Series 1 Shares then issued and outstanding shall have been
declared and paid or provided for at the date of such declaration or payment or
setting aside.
2. LIQUIDATION, DISSOLUTION OR WINDING-UP
In the event of liquidation, dissolution or winding-up of the Corporation
among its shareholders for the purpose of winding-up its affairs, the holders of
the Class C, Series 1 Shares shall be entitled to receive for each such share a
sum equivalent to the result obtained when the stated capital account for the
Class C, Series 1 Shares is divided by the number of issued and outstanding
Class C, Series 1 Shares, together with all declared but unpaid dividends,
before any amount shall be paid or any property or assets of the Corporation
distributed to the holders of any Class A subordinate voting shares, the Class B
multiple voting shares, or shares of any other class ranking junior to the Class
C, Series 1 Shares. After payment to the holders of the Class C, Series 1 Shares
of the amount so payable to them as above provided they shall not be entitled to
share in any further distribution of the property or assets of the Corporation.
3. PURCHASE FOR CANCELLATION
The Corporation may at any time or times purchase for cancellation out of
capital pursuant to the provisions of the Business Corporations Act, the whole
or any part of the Class C, Series 1 Shares, at the lowest price at which, in
the opinion of the directors, such shares are obtainable, but not exceeding the
redemption price of the Class C, Series 1 Shares as hereinafter specified.
4. REDEMPTION
The Corporation may, upon giving notice as hereinafter provided, redeem at
any time the whole or part of the outstanding Class C, Series 1 Shares out of
capital pursuant to the Business Corporations Act on payment for each share to
be redeemed of the sum of $0.0833 per share, together with all declared but
unpaid dividends thereon up to the date fixed for redemption. Not less than
thirty day's notice in writing of such redemption shall be given by mailing such
notice to the registered holders of the shares to be redeemed, specifying the
date and place or places of redemption. On or after the dates so specified for
redemption, the Corporation shall pay or cause to be paid to or to the order of
the registered holders of the Class C, Series 1 Shares to be redeemed the
redemption price thereof on presentation and surrender at the head office of the
Corporation or any other place designated in such notice of the certificates
representing the Class C, Series 1 Shares called for redemption. If a part only
of the shares represented by any certificate be redeemed, a new certificate for
the balance shall be issued at the expense of the Corporation. From and after
the date specified for redemption in any such notice, the Class C, Series 1
Shares called for redemption shall cease to be entitled to dividends and the
holders thereof shall not be entitled to exercise any of the rights of
shareholders in respect thereof unless payment of the redemption price shall not
be made upon presentation of certificates in accordance with the foregoing
provisions, in which case the rights of the shareholders shall remain
unaffected. The Corporation shall have the right at any time after the mailing
of notice of its intention to redeem any Class C, Series 1 Shares to deposit the
redemption price of the shares so called for redemption or of such of the said
shares represented by certificates as have not at the date of such deposit been
surrendered by the holders thereof in connection with such redemption to a
special account in any chartered bank or any trust company in Canada, named in
such notice, to be paid without interest to or to the order of the respective
holders of such Class C, Series 1 Shares called for redemption upon presentation
and surrender to such bank or trust company of the certificates representing the
same, and upon such deposit being made or upon the date specified for redemption
in such notice, whichever is the later, the Class C, Series 1 Shares in respect
whereof such deposit shall have been made shall be redeemed and the rights of
the holders thereof after such redemption date, as the case may be, shall be
limited to receiving without interest their proportionate part of the total
redemption price so deposited against presentation and surrender of the said
certificates held by them respectively.
In the event that only part of the Class C, Series 1 Shares is at any time
to be redeemed, the shares so to be redeemed shall be selected pro rata
(disregarding fractions) from among the holders of record thereof as at the date
of the notice of redemption or in such other manner as the board of directors of
the Corporation in its sole discretion may deem equitable.
5. NOTICE AND VOTING
The holders of the Class C, Series 1 Shares shall not be entitled as such
(except as hereinafter specifically provided) to receive notice of or to attend
any meeting of the shareholders of the Corporation and shall not be entitled to
vote at any such meeting. The holders of the Class C, Series 1 Shares shall,
however, be entitled to notice of meetings of the shareholders called for the
purpose of authorizing the dissolution of the Corporation or the sale of its
undertaking or a substantial part thereof.
6. PREFERENTIAL RIGHTS
The Class A subordinate voting shares, the Class B multiple voting shares
and the Special Shares of the Corporation shall rank junior to the Class C,
Series 1 Shares and shall be subject in all respects, to the rights, privileges,
restrictions and limitations attaching to the Class C, Series 1 Shares.
* * * * * * * * * *
EXHIBIT "3"
CLASS D PREFERRED SHARES
The shares without par value designated, as a class, Class D Preferred
Shares (the "Class D Preferred Shares") shall have attached thereto, as a class,
the following rights, privileges, restrictions and conditions.
1. The Class D Preferred Shares may at any time and from time to time be issued
in one (1) or more series, each series to consist of such number of shares as
may, before the issue thereof, be fixed by resolution of the board of directors
of the Corporation.
2. The board of directors of the Corporation shall by resolution duly passed
before the issue of any Class D Preferred Shares of any series, determine the
designation, rights, privileges, restrictions and conditions to be attached to
the Class D Preferred Shares of such series, including, but without in any way
limiting or restricting the generality of the foregoing, the rate or amount of
preferential dividends, the date or dates and place or places of payment
thereof, the consideration and the terms and conditions of any purchase for
cancellation or redemption thereof, conversion or exchange rights (if any), the
terms and conditions of any share purchase plan or sinking fund and the
restrictions (if any) respecting payment of dividends on any shares ranking
junior to the Class D Preferred Shares.
3. The Class D Preferred Shares of each series shall, with respect to priority
in payment of dividends and the distribution of assets in the event of
liquidation, dissolution or winding-up of the Corporation, whether voluntary or
involuntary, or any other distribution of the assets of the Corporation among
its shareholders for the purpose of winding-up its affairs be entitled to a
preference over the Class A Subordinate Voting Shares and Class B Shares or any
of them, and over any other shares ranking junior to the Class D Preferred
Shares and the Class D Preferred Shares of each series may also be given such
other preferences over the Class A Subordinate Voting Shares and Class B Shares
or any of them, and any other shares ranking junior to the Class D Preferred
Shares as may be determined as to the respective series authorized to be issued.
4. The Class D Preferred Shares of each series shall rank on a parity with the
Class D Preferred Shares of every other series with respect to priority in
payment of dividends and in the distribution of assets in the event of the
liquidation, dissolution or winding-up of the Corporation, whether voluntary or
involuntary, or any other distribution of the assets of the Corporation among
its shareholders for the purpose of winding-up its affairs.
5. The holders of the Class D Preferred Shares of each series shall be entitled
to receive and the Corporation shall pay thereon as and when declared by the
board of directors out of the monies of the Corporation properly applicable to
the payment of dividends, preferential dividends, at such rate and on such date
or dates as the directors may determine or may have determined by the resolution
provided for in clause 2 determining the rights, privileges, restrictions and
conditions attaching to the Class D Preferred Shares of such series, payable
either in cash or in shares, or partly in one and partly in the other. Cheques
of the Corporation payable at par at any branch of the Corporation's banker for
the time being in Canada shall be issued in respect of cash dividends.
6. In the event of the liquidation, dissolution or winding-up of the Corporation
or any other distribution of assets of the Corporation among its shareholders
for the purpose of winding-up its affairs, the holders of the Class D Preferred
Shares of each series shall be entitled to receive for each Class D Share held
by them, respectively, a sum equivalent to the result obtained when the stated
capital account for the Class D Preferred Shares of such series its divided by
the number of issued and outstanding Class D Preferred Shares of such series
together with all dividends (if any) unpaid thereon up to the date of
distribution before any amount shall be paid or any property or assets of the
Corporation distributed to the holders of any Class A Subordinate Voting Shares
and Class B Shares or any of them, or shares of any other class ranking junior
to the Class D Preferred Shares. After payment to holders of the Class D
Preferred Shares of each series of the amount so payable to them they shall not
be entitled to share in any further distribution of the property or assets of
the Corporation.
7. Subject to the provisions of clause 6 and subject to the rights, privileges,
restrictions and conditions attaching to the Class D Preferred Shares of any
series, the Corporation may at any time or times purchase (if obtainable) for
cancellation all or any part of the Class D Preferred Shares of any series
outstanding form time to time in the market (including purchase through or from
an investment dealer or firm holding membership on a recognized stock exchange)
or by invitation for tenders addressed to all the holders of record of the Class
D Preferred Shares of such series outstanding at the lowest price or prices at
which, in the opinion of the directors, such shares are obtainable but not
exceeding the price at which, at the date of purchase, such shares are
redeemable as provided in clause 8 without reference to the price payable by the
Corporation pursuant to any compulsory purchase or retirement obligation imposed
upon the Corporation (including accrued and unpaid preferential dividends as
provided in the said clause 8) and costs of purchase. If upon any invitation for
tenders under the provisions of this clause the Corporation receives tenders of
Class D Preferred Shares of such series at the same lowest price which the
Corporation is willing to pay in an aggregate number greater than the number for
which the Corporation is prepared to accept tenders, the Class D Preferred
Shares of such series so tendered which the Corporation determines to purchase
at such price shall be purchased at nearly as may be pro rata (disregarding
fractions) in proportion to the number of Class D Preferred Shares of such
series so tendered by each of the holders of Class D Preferred Shares of such
series who submitted tenders at the said same lowest price.
8. Subject to the rights, privileges, restrictions and conditions attaching to
the Class D Preferred Shares of any series, the Corporation may upon giving
notice as hereinafter provided redeem at any time the whole or from time to time
any part of the then outstanding Class D Preferred Shares of any series on
payment for each shares to be redeemed of a sum equivalent to the result
obtained when the stated capital account for the Class D Preferred Shares of
such series is divided by the number of issued and outstanding shares of such
series together with such premium (if any) as the directors may determine or may
have determined by the resolution provided for in clause 2 determining the
rights, privileges, restrictions and conditions attaching to the shares of such
series together with all declared and unpaid dividends (if any) thereon up to
the date fixed for redemption.
9. In any case of redemption of Class D Preferred Shares of any series under the
provision of clause 8 the Corporation shall, at least ten (10) days before the
date specified for redemption, mail to each person who at the date of mailing is
a registered holder of Class D Preferred Shares of such series to be redeemed, a
notice in writing of the intention of the Corporation to redeem such last
mentioned shares. Such notice shall be mailed in an envelope, postage prepaid,
addressed to each such shareholder at his address as it appears on the books of
the Corporation or in the event of the address of any such shareholder not so
appearing then to the last known address of such shareholder, provided, however,
the accidental failure or omission to give any such notice (1) or more of such
shareholders shall not affect the validity of such redemption. Such notice shall
set out the redemption price and the date of which redemption is to take place
and if part only of the Class D Shares of such series held by the persons to
whom it is addressed is to be redeemed the number thereof so to be redeemed. On
or after the date so specified for redemption the Corporation shall pay or cause
to be paid to or to the order of the registered holders of the Class D Preferred
Shares of such series to be redeemed the redemption price thereof on
presentation and surrender, at the registered office of the Corporation or any
other place within Canada designated in such notice, of the certificates
representing the Class D Preferred Shares of such series so called for
redemption. Such payment shall be made by cheques payable at par at any branch
of the Corporation's bankers for the time being in Canada. If a part only of the
Class D Preferred Shares of such series represented by any certificate shall be
redeemed, a new certificate for the balance shall be issued at the expense of
the Corporation. On the date fixed for redemption, the Class D Preferred Shares
of such series to be redeemed are thereupon redeemed and cancelled as of the
date so fixed for redemption and the holders thereof have no rights whatsoever
against the Corporation in respect of the presentation of certificates
representing the Class D Preferred Shares of such series to be redeemed, payment
of the redemption price therefor without interest.
10. The holders of Class D Preferred Shares shall be entitled to receive copies
of the annual financial statements of the Corporation and the auditors' report
thereon to be submitted to the shareholders of the Corporation at annual
meetings but the holders of Class D Preferred Shares shall not be entitled as
such, except as hereinafter and in the Business Corporations Act specifically
provided, to receive notice of or to attend any meeting of the shareholders of
the Corporation or to vote at any such meeting but shall be entitled to receive
notice of meetings of shareholder of the Corporation called for the purpose of
authorizing the dissolution of the Corporation or the sale of its undertaking or
a substantial part thereof.
11. The approval of the holders of the Class D Preferred Shares to delete or
vary any rights, privilege, restriction or condition attaching to the Class D
Preferred Shares as a class or any other matter requiring the approval or
consent of the holders of Class D Preferred Shares, as a class, may be given by
at least two-thirds (2/3) of the votes cast at a meting of the holders of the
Class D Preferred Shares duly called for the purpose and held upon at least
twenty-one (21) days' notice.
XXXXXXXXXX
CLASS D PREFERRED SHARES, SERIES 1
The first series of Class D Preferred Shares designated as Non-Voting,
Not-Participating, Redeemable, Non-Cumulative, Class D Preferred Shares, Series
1 (the "Class D, Series 1 Shares") shall consist of an unlimited number of
shares without par value, and, in addition to the rights, privileges
restrictions and conditions attached to the Class D Preferred Shares as a class,
shall have attached thereto rights, privileges, restrictions and conditions
substantially as hereinafter set forth, that is to say:
1. DIVIDENDS
1.1 Payment of Dividends
The holders of the Class D, Series 1 Shares shall be entitled to receive
and the Corporation shall pay thereon as and when declared by the Board of
Directors out of the monies of the Corporation properly applicable to the
payment of dividends, fixed preferential non-cumulative cash dividends at the
rate of $0.0023 cents per Class D, Series 1 Share, payable annually on dates in
each fiscal year of the Corporation to be fixed from time to time by resolution
of the Board of Directors. The holders of the Class D, Series 1 Shares shall not
be entitled to any dividend other than or in excess of the said dividends herein
provided. The Board of Directors of the Corporation shall be entitled from time
to time to declare part of the said fixed preferential non-cumulative dividend
for any fiscal year notwithstanding that such dividend for such fiscal year
shall not be declared in full. If within (4) months after the expiration of any
fiscal year of the Corporation the Board of Directors in its discretion shall
not have declared the said dividend or any part thereof on the Class D, Series 1
Shares for such fiscal year then the rights of the holders of the Class D,
Series 1 Shares to such dividend or to any undeclared part thereof for such
fiscal year shall be forever extinguished.
1.2 Preferential Non-Cumulative Dividend
No dividends shall at any time be declared or paid on or set aside for the
Class A subordinate voting shares or the Class B multiple voting shares or any
shares of any other class ranking junior to the Class D, Series 1 Shares for any
fiscal year unless all dividends payable for such fiscal year of the Corporation
on the Class D, Series 1 Shares then issued and outstanding shall have been
declared and paid or provided for at the date of such declaration or payment or
setting aside.
2. LIQUIDATION, DISSOLUTION OR WINDING-UP
In the event of liquidation, dissolution or winding-up of the Corporation
among its shareholders for the purpose of winding-up its affairs, the holders of
the Class D, Series 1 Shares shall be entitled to receive for each such share a
sum equivalent to the result obtained when the stated capital account for the
Class D, Series 1 Shares is divided by the number of issued and outstanding
Class D, Series 1 Shares, together with all declared but unpaid dividends,
before any amount shall be paid or any property or assets of the Corporation
distributed to the holders of any Class A subordinate voting shares, the Class B
multiple voting shares, or shares of any other class ranking junior to the Class
D, Series 1 Shares. After payment to the holders of the Class D, Series 1 Shares
of the amount so payable to them as above provided they shall not be entitled to
share in any further distribution of the property or assets of the Corporation.
3. PURCHASE FOR CANCELLATION
The Corporation may at any time or times purchase for cancellation out of
capital pursuant to the provisions of the Business Corporations Act, the whole
or any part of the Class D, Series 1 Shares, at the lowest price at which, in
the opinion of the directors, such shares are obtainable, but not exceeding the
redemption price of the Class D, Series 1 Shares as hereinafter specified.
4. REDEMPTION
The Corporation may, upon giving notice as hereinafter provided, redeem at
any time the whole or part of the outstanding Class D, Series 1 Shares out of
capital pursuant to the Business Corporations Act on payment for each share to
be redeemed of a sum equivalent to the result obtained when the stated capital
account for the Class D, Series 1 Shares is divided by the number of issued and
outstanding Class D, Series 1 Shares together with all declared but unpaid
dividends thereon up to the date fixed for redemption. Not less than thirty
day's notice in writing of such redemption shall be given by mailing such notice
to the registered holders of the shares to be redeemed, specifying the date and
place or places of redemption. On or after the dates so specified for
redemption, the Corporation shall pay or cause to be paid to or to the order of
the registered holders of the Class D, Series 1 Shares to be redeemed the
redemption price thereof on presentation and surrender at the head office of the
Corporation or any other place designated in such notice of the certificates
representing the Class D, Series 1 Shares called for redemption. If a part only
of the shares represented by any certificate be redeemed, a new certificate for
the balance shall be issued at the expense of the Corporation. From and after
the date specified for redemption in any such notice, the Class D, Series 1
Shares called for redemption shall cease to be entitled to dividends and the
holders thereof shall not be entitled to exercise any of the rights of
shareholders in respect thereof unless payment of the redemption price shall not
be made upon presentation of certificates in accordance with the foregoing
provisions, in which case the rights of the shareholders shall remain
unaffected. The Corporation shall have the right at any time after the mailing
of notice of its intention to redeem any Class D, Series 1 Shares to deposit the
redemption price of the shares so called for redemption or of such of the said
shares represented by certificates as have not at the date of such deposit been
surrendered by the holders thereof in connection with such redemption to a
special account in any chartered bank or any trust company in Canada, named in
such notice, to be paid without interest to or to the order of the respective
holders of such Class D, Series 1 Shares called for redemption upon presentation
and surrender to such bank or trust company of the certificates representing the
same, and upon such deposit being made or upon the date specified for redemption
in such notice, whichever is the later, the Class D, Series 1 Shares in respect
whereof such deposit shall have been made shall be redeemed and the rights of
the holders thereof after such redemption date, as the case may be, shall be
limited to receiving without interest their proportionate part of the total
redemption price so deposited against presentation and surrender of the said
certificates held by them respectively.
In the event that only part of the Class D, Series 1 Shares is at any time
to be redeemed, the shares so to be redeemed shall be selected pro rata
(disregarding fractions) from among the holders of record thereof as at the date
of the notice of redemption or in such other manner as the board of directors of
the Corporation in its sole discretion may deem equitable.
5. NOTICE AND VOTING
The holders of the Class D, Series 1 Shares shall not be entitled as such
(except as hereinafter specifically provided) to receive notice of or to attend
any meeting of the shareholders of the Corporation and shall not be entitled to
vote at any such meeting. The holders of the Class D, Series 1 Shares shall,
however, be entitled to notice of meetings of the shareholders called for the
purpose of authorizing the dissolution of the Corporation or the sale of its
undertaking or a substantial part thereof.
6. PREFERENTIAL RIGHTS
The Class A subordinate voting shares, the Class B multiple voting shares
and the Special Shares of the Corporation shall rank junior to the Class D,
Series 1 Shares and shall be subject in all respects, to the rights, privileges,
restrictions and limitations attaching to the Class D, Series 1 Shares.
* * * * * * * * * *
CLASS D PREFERRED SHARES, SERIES 2
The second series of Class D Preferred Shares designated as Non-Voting,
Not-Participating, Redeemable, Non-Cumulative, Class D Preferred Shares, Series
2 (the "Class D, Series 2 Shares") shall consist of an unlimited number of
shares without par value, and, in addition to the rights, privileges
restrictions and conditions attached to the Class D Preferred Shares as a class,
shall have attached thereto rights, privileges, restrictions and conditions
substantially as hereinafter set forth, that is to say:
1. DIVIDENDS
1.1 Payment of Dividends
The holders of the Class D, Series 2 Shares shall be entitled to receive
and the Corporation shall pay thereon as and when declared by the Board of
Directors out of the monies of the Corporation properly applicable to the
payment of dividends, fixed preferential non-cumulative cash dividends at the
rate of $0.0023 cents per Class D, Series 2 Share, payable annually on dates in
each fiscal year of the Corporation to be fixed from time to time by resolution
of the Board of Directors. The holders of the Class D, Series 2 Shares shall not
be entitled to any dividend other than or in excess of the said dividends herein
provided. The Board of Directors of the Corporation shall be entitled from time
to time to declare part of the said fixed preferential non-cumulative dividend
for any fiscal year notwithstanding that such dividend for such fiscal year
shall not be declared in full. If within (4) months after the expiration of any
fiscal year of the Corporation the Board of Directors in its discretion shall
not have declared the said dividend or any part thereof on the Class D, Series 2
Shares for such fiscal year then the rights of the holders of the Class D,
Series 2 Shares to such dividend or to any undeclared part thereof for such
fiscal year shall be forever extinguished.
1.2 Preferential Non-Cumulative Dividend
No dividends shall at any time be declared or paid on or set aside for the
Class A subordinate voting shares or the Class B multiple voting shares or any
shares of any other class ranking junior to the Class D, Series 2 Shares for any
fiscal year unless all dividends payable for such fiscal year of the Corporation
on the Class D, Series 2 Shares then issued and outstanding shall have been
declared and paid or provided for at the date of such declaration or payment or
setting aside.
2. LIQUIDATION, DISSOLUTION OR WINDING-UP
In the event of liquidation, dissolution or winding-up of the Corporation
among its shareholders for the purpose of winding-up its affairs, the holders of
the Class D, Series 2 Shares shall be entitled to receive for each such share a
sum equivalent to the result obtained when the stated capital account for the
Class D, Series 2 Shares is divided by the number of issued and outstanding
Class D, Series 2 Shares, together with all declared but unpaid dividends,
before any amount shall be paid or any property or assets of the Corporation
distributed to the holders of any Class A subordinate voting shares, the Class B
multiple voting shares, or shares of any other class ranking junior to the Class
D, Series 2 Shares. After payment to the holders of the Class D, Series 2 Shares
of the amount so payable to them as above provided they shall not be entitled to
share in any further distribution of the property or assets of the Corporation.
3. PURCHASE FOR CANCELLATION
The Corporation may at any time or times purchase for cancellation out of
capital pursuant to the provisions of the Business Corporations Act, the whole
or any part of the Class D, Series 2 Shares, at the lowest price at which, in
the opinion of the directors, such shares are obtainable, but not exceeding the
redemption price of the Class D, Series 2 Shares as hereinafter specified.
4. REDEMPTION
The Corporation may, upon giving notice as hereinafter provided, redeem at
any time the whole or part of the outstanding Class D, Series 2 Shares out of
capital pursuant to the Business Corporations Act on payment for each share to
be redeemed of a sum equivalent to the result obtained when the stated capital
account for the Class D, Series 2 Shares is divided by the number of issued and
outstanding Class D, Series 2 Shares together with all declared but unpaid
dividends thereon up to the date fixed for redemption. Not less than thirty
day's notice in writing of such redemption shall be given by mailing such notice
to the registered holders of the shares to be redeemed, specifying the date and
place or places of redemption. On or after the dates so specified for
redemption, the Corporation shall pay or cause to be paid to or to the order of
the registered holders of the Class D, Series 2 Shares to be redeemed the
redemption price thereof on presentation and surrender at the head office of the
Corporation or any other place designated in such notice of the certificates
representing the Class D, Series 2 Shares called for redemption. If a part only
of the shares represented by any certificate be redeemed, a new certificate for
the balance shall be issued at the expense of the Corporation. From and after
the date specified for redemption in any such notice, the Class D, Series 2
Shares called for redemption shall cease to be entitled to dividends and the
holders thereof shall not be entitled to exercise any of the rights of
shareholders in respect thereof unless payment of the redemption price shall not
be made upon presentation of certificates in accordance with the foregoing
provisions, in which case the rights of the shareholders shall remain
unaffected. The Corporation shall have the right at any time after the mailing
of notice of its intention to redeem any Class D, Series 2 Shares to deposit the
redemption price of the shares so called for redemption or of such of the said
shares represented by certificates as have not at the date of such deposit been
surrendered by the holders thereof in connection with such redemption to a
special account in any chartered bank or any trust company in Canada, named in
such notice, to be paid without interest to or to the order of the respective
holders of such Class D, Series 2 Shares called for redemption upon presentation
and surrender to such bank or trust company of the certificates representing the
same, and upon such deposit being made or upon the date specified for redemption
in such notice, whichever is the later, the Class D, Series 2 Shares in respect
whereof such deposit shall have been made shall be redeemed and the rights of
the holders thereof after such redemption date, as the case may be, shall be
limited to receiving without interest their proportionate part of the total
redemption price so deposited against presentation and surrender of the said
certificates held by them respectively.
In the event that only part of the Class D, Series 2 Shares is at any time
to be redeemed, the shares so to be redeemed shall be selected pro rata
(disregarding fractions) from among the holders of record thereof as at the date
of the notice of redemption or in such other manner as the board of directors of
the Corporation in its sole discretion may deem equitable.
5. NOTICE AND VOTING
The holders of the Class D, Series 2 Shares shall not be entitled as such
(except as hereinafter specifically provided) to receive notice of or to attend
any meeting of the shareholders of the Corporation and shall not be entitled to
vote at any such meeting. The holders of the Class D, Series 2 Shares shall,
however, be entitled to notice of meetings of the shareholders called for the
purpose of authorizing the dissolution of the Corporation or the sale of its
undertaking or a substantial part thereof.
6. PREFERENTIAL RIGHTS
The Class A subordinate voting shares, the Class B multiple voting shares
and the Special Shares of the Corporation shall rank junior to the Class D,
Series 2 Shares and shall be subject in all respects, to the rights, privileges,
restrictions and limitations attaching to the Class D, Series 2 Shares.
* * * * * * * * * *
EXHIBIT "4"
CLASS E PREFERRED SHARES
The Class E Preferred Shares designated as Non-Voting, Not-Participating,
Redeemable, Cumulative, Class E Preferred Shares (the "Class E Shares") shall
consist of an unlimited number of shares without par value, shall have attached
thereto rights, privileges, restrictions and conditions substantially as
hereinafter set forth, that is to say:
1. DIVIDENDS
1.1 Payment of Dividends
The holders of the Class E Shares shall be entitled to receive and the
Corporation shall pay thereon as and when declared by the Board of Directors out
of the monies of the Corporation properly applicable to the payment of
dividends, fixed preferential cumulative cash dividends at the rate of $0.14
cents per Class E Share, payable annually on dates in each fiscal year of the
Corporation to be fixed from time to time by resolution of the Board of
Directors. The holders of the Class E Shares shall not be entitled to any
dividend other than or in excess of the said dividends herein provided.
1.2 Preferential Cumulative Dividend
No dividends shall at any time be declared or paid on or set apart for the
Class A subordinate voting shares, the Class B multiple voting shares or any
shares of any other class ranking junior to the Class E Shares for any fiscal
year unless all dividends up to and including the dividend payable for the last
completed fiscal year of the Corporation on the Class E Shares then issued and
outstanding shall have been declared and paid or provided for at the date of
such declaration or payment or setting aside.
2. LIQUIDATION, DISSOLUTION OR WINDING-UP
In the event of liquidation, dissolution or winding-up of the Corporation
among its shareholders for the purpose of winding-up its affairs, the holders of
the Class E Shares shall be entitled to receive for each such share a sum
equivalent to the result obtained when the stated capital account for the Class
E Shares is divided by the number of issued and outstanding Class E Shares,
together with all unpaid cumulative dividends, before any amount shall be paid
or any property or assets of the Corporation distributed to the holders of any
Class A subordinate voting shares, the Class B multiple voting shares, or shares
of any other class ranking junior to the Class E Shares. After payment to the
holders of the Class E Shares of the amount so payable to them as above provided
they shall not be entitled to share in any further distribution of the property
or assets of the Corporation.
3. PURCHASE FOR CANCELLATION
The Corporation may at any time or times purchase for cancellation out of
capital pursuant to the provisions of the Business Corporations Act, the whole
or any part of the Class E Shares, at the lowest price at which, in the opinion
of the directors, such shares are obtainable, but not exceeding the redemption
price of the Class E Shares as hereinafter specified.
4. REDEMPTION
The Corporation may, upon giving notice as hereinafter provided, redeem at
any time the whole or part of the outstanding Class E Shares out of capital
pursuant to the Business Corporations Act on payment for each share to be
redeemed of a sum equivalent to the result obtained when the stated capital
account for the Class E Shares is divided by the number of issued and
outstanding Class E Shares together with all unpaid cumulative dividends
thereon, whether or not declared up to the date fixed for redemption. Not less
than thirty day's notice in writing of such redemption shall be given by mailing
such notice to the registered holders of the shares to be redeemed, specifying
the date and place or places of redemption. On or after the dates so specified
for redemption, the Corporation shall pay or cause to be paid to or to the order
of the registered holders of the Class E Shares to be redeemed the redemption
price thereof on presentation and surrender at the head office of the
Corporation or any other place designated in such notice of the certificates
representing the Class E Shares called for redemption. If a part only of the
shares represented by any certificate be redeemed, a new certificate for the
balance shall be issued at the expense of the Corporation. From and after the
date specified for redemption in any such notice, the Class E Shares called for
redemption shall cease to be entitled to dividends and the holders thereof shall
not be entitled to exercise any of the rights of shareholders in respect thereof
unless payment of the redemption price shall not be made upon presentation of
certificates in accordance with the foregoing provisions, in which case the
rights of the shareholders shall remain unaffected. The Corporation shall have
the right at any time after the mailing of notice of its intention to redeem any
Class E Shares to deposit the redemption price of the shares so called for
redemption or of such of the said shares represented by certificates as have not
at the date of such deposit been surrendered by the holders thereof in
connection with such redemption to a special account in any chartered bank or
any trust company in Canada, named in such notice, to be paid without interest
to or to the order of the respective holders of such Class E Shares called for
redemption upon presentation and surrender to such bank or trust company of the
certificates representing the same, and upon such deposit being made or upon the
date specified for redemption in such notice, whichever is the later, the Class
E Shares in respect whereof such deposit shall have been made shall be redeemed
and the rights of the holders thereof after such redemption date, as the case
may be, shall be limited to receiving without interest their proportionate part
of the total redemption price so deposited against presentation and surrender of
the said certificates held by them respectively.
In the event that only part of the Class E Shares is at any time to be
redeemed, the shares so to be redeemed shall be selected pro rata (disregarding
fractions) from among the holders of record thereof as at the date of the notice
of redemption or in such other manner as the board of directors of the
Corporation in its sole discretion may deem equitable.
5. NOTICE AND VOTING
The holders of the Class E Shares shall not be entitled as such (except as
hereinafter specifically provided) to receive notice of or to attend any meeting
of the shareholders of the Corporation and shall not be entitled to vote at any
such meeting. The approval of the holders of the Class E Preferred Shares to
delete or vary any rights, privilege, restriction or condition attaching to the
Class E Preferred Shares as a class or any other matter requiring the approval
or consent of the holders of the Class E Preferred Shares, as a class, may be
given by at least two-thirds (2/3rds) of the votes cast at a meeting of the
holders of the Class E Preferred Shares duly called for the purpose and held
upon at least twenty-one (21) days' notice.
6. PREFERENTIAL RIGHTS
The Class A subordinate voting shares and the Class B multiple voting
shares of the Corporation shall rank junior to the Class E Shares and shall be
subject in all respects, to the rights, privileges, restrictions and limitations
attaching to the Class E Shares.
* * * * * * * * * *
EXHIBIT "5"
CLASS F PREFERRED SHARES
The shares without par value designated, as a class, Class F Preferred
Shares (the "Class F Preferred Shares") shall have attached thereto, as a class,
the following rights, privileges, restrictions and conditions.
1. The Class F Preferred Shares may at any time and from time to time be issued
in one (1) or more series, each series to consist of such number of shares as
may, before the issue thereof, be fixed by resolution of the board of directors
of the Corporation.
2. The board of directors of the Corporation shall by resolution duly passed
before the issue of any Class F Preferred Shares of any series, determine the
designation, rights, privileges, restrictions and conditions to be attached to
the Class F Preferred Shares of such series, including, but without in any way
limiting or restricting the generality of the foregoing, the rate or amount of
preferential dividends, the date or dates and place or places of payment
thereof, the consideration and the terms and conditions of any purchase for
cancellation or redemption thereof, conversion or exchange rights (if any), the
terms and conditions of any share purchase plan or sinking fund and the
restrictions (if any) respecting payment of dividends on any shares ranking
junior to the Class F Preferred Shares.
3. The Class F Preferred Shares of each series shall, with respect to priority
in payment of dividends and the distribution of assets in the event of
liquidation, dissolution or winding-up of the Corporation, whether voluntary or
involuntary, or any other distribution of the assets of the Corporation among
its shareholders for the purpose of winding-up its affairs be entitled to a
preference over the Class A Subordinate Voting Shares and Class B Shares or any
of them, and over any other shares ranking junior to the Class F Preferred
Shares and the Class F Preferred Shares of each series may also be given such
other preferences over the Class A Subordinate Voting Shares and Class B Shares
or any of them, and any other shares ranking junior to the Class F Preferred
Shares as may be determined as to the respective series authorized to be issued.
4. The Class F Preferred Shares of each series shall rank on a parity with the
Class F Preferred Shares of every other series with respect to priority in
payment of dividends and in the distribution of assets in the event of the
liquidation, dissolution or winding-up of the Corporation, whether voluntary or
involuntary, or any other distribution of the assets of the Corporation among
its shareholders for the purpose of winding-up its affairs.
5. The holders of the Class F Preferred Shares of each series shall be entitled
to receive and the Corporation shall pay thereon as and when declared by the
board of directors out of the monies of the Corporation properly applicable to
the payment of dividends, preferential dividends, at such rate and on such date
or dates as the directors may determine or may have determined by the resolution
provided for in clause 2 determining the rights, privileges, restrictions and
conditions attaching to the Class F Preferred Shares of such series, payable
either in cash or in shares, or partly in one and partly in the other. Cheques
of the Corporation payable at par at any branch of the Corporation's banker for
the time being in Canada shall be issued in respect of cash dividends.
6. In the event of the liquidation, dissolution or winding-up of the Corporation
or any other distribution of assets of the Corporation among its shareholders
for the purpose of winding-up its affairs, the holders of the Class F Preferred
Shares of each series shall be entitled to receive for each Class F Share held
by them, respectively, a sum equivalent to the result obtained when the stated
capital account for the Class F Preferred Shares of such series its divided by
the number of issued and outstanding Class F Preferred Shares of such series
together with all dividends (if any) unpaid thereon up to the date of
distribution before any amount shall be paid or any property or assets of the
Corporation distributed to the holders of any Class A Subordinate Voting Shares
and Class B Shares or any of them, or shares of any other class ranking junior
to the Class F Preferred Shares. After payment to holders of the Class F
Preferred Shares of each series of the amount so payable to them they shall not
be entitled to share in any further distribution of the property or assets of
the Corporation.
7. Subject to the provisions of clause 6 and subject to the rights, privileges,
restrictions and conditions attaching to the Class F Preferred Shares of any
series, the Corporation may at any time or times purchase (if obtainable) for
cancellation all or any part of the Class F Preferred Shares of any series
outstanding form time to time in the market (including purchase through or from
an investment dealer or firm holding membership on a recognized stock exchange)
or by invitation for tenders addressed to all the holders of record of the Class
F Preferred Shares of such series outstanding at the lowest price or prices at
which, in the opinion of the directors, such shares are obtainable but not
exceeding the price at which, at the date of purchase, such shares are
redeemable as provided in clause 8 without reference to the price payable by the
Corporation pursuant to any compulsory purchase or retirement obligation imposed
upon the Corporation (including accrued and unpaid preferential dividends as
provided in the said clause 8) and costs of purchase. If upon any invitation for
tenders under the provisions of this clause the Corporation receives tenders of
Class F Preferred Shares of such series at the same lowest price which the
Corporation is willing to pay in an aggregate number greater than the number for
which the Corporation is prepared to accept tenders, the Class F Preferred
Shares of such series so tendered which the Corporation determines to purchase
at such price shall be purchased at nearly as may be pro rata (disregarding
fractions) in proportion to the number of Class F Preferred Shares of such
series so tendered by each of the holders of Class F Preferred Shares of such
series who submitted tenders at the said same lowest price.
8. Subject to the rights, privileges, restrictions and conditions attaching to
the Class F Preferred Shares of any series, the Corporation may upon giving
notice as hereinafter provided redeem at any time the whole or from time to time
any part of the then outstanding Class F Preferred Shares of any series on
payment for each shares to be redeemed of a sum equivalent to the result
obtained when the stated capital account for the Class F Preferred Shares of
such series is divided by the number of issued and outstanding shares of such
series together with such premium (if any) as the directors may determine or may
have determined by the resolution provided for in clause 2 determining the
rights, privileges, restrictions and conditions attaching to the shares of such
series together with all declared and unpaid dividends (if any) thereon up to
the date fixed for redemption.
9. In any case of redemption of Class F Preferred Shares of any series under the
provision of clause 8 the Corporation shall, at least ten (10) days before the
date specified for redemption, mail to each person who at the date of mailing is
a registered holder of Class F Preferred Shares of such series to be redeemed, a
notice in writing of the intention of the Corporation to redeem such last
mentioned shares. Such notice shall be mailed in an envelope, postage prepaid,
addressed to each such shareholder at his address as it appears on the books of
the Corporation or in the event of the address of any such shareholder not so
appearing then to the lastknown address of such shareholder, provided, however,
the accidental failure or omission to give any such notice (1) or more of such
shareholders shall not affect the validity of such redemption. Such notice shall
set out the redemption price and the date of which redemption is to take place
and if part only of the Class F Shares of such series held by the persons to
whom it is addressed is to be redeemed the number thereof so to be redeemed. On
or after the date so specified for redemption the Corporation shall pay or cause
to be paid to or to the order of the registered holders of the Class F Preferred
Shares of such series to be redeemed the redemption price thereof on
presentation and surrender, at the registered office of the Corporation or any
other place within Canada designated in such notice, of the certificates
representing the Class F Preferred Shares of such series so called for
redemption. Such payment shall be made by cheques payable at par at any branch
of the Corporation's bankers for the time being in Canada. If a part only of the
Class F Preferred Shares of such series represented by any certificate shall be
redeemed, a new certificate for the balance shall be issued at the expense of
the Corporation. On the date fixed for redemption, the Class F Preferred Shares
of such series to be redeemed are thereupon redeemed and cancelled as of the
date so fixed for redemption and the holders thereof have no rights whatsoever
against the Corporation in respect of the presentation of certificates
representing the Class F Preferred Shares of such series to be redeemed, payment
of the redemption price therefor without interest.
10. The holders of Class F Preferred Shares shall be entitled to receive copies
of the annual financial statements of the Corporation and the auditors' report
thereon to be submitted to the shareholders of the Corporation at annual
meetings but the holders of Class F Preferred Shares shall not be entitled as
such, except as hereinafter and in the Business Corporations Act specifically
provided, to receive notice of or to attend any meeting of the shareholders of
the Corporation or to vote at any such meeting but shall be entitled to receive
notice of meetings of shareholder of the Corporation called for the purpose of
authorizing the dissolution of the Corporation or the sale of its undertaking or
a substantial part thereof.
11. The approval of the holders of the Class F Preferred Shares to delete or
vary any rights, privilege, restriction or condition attaching to the Class F
Preferred Shares as a class or any other matter requiring the approval or
consent of the holders of Class F Preferred Shares, as a class, may be given by
at least two-thirds (2/3) of the votes cast at a meting of the holders of the
Class F Preferred Shares duly called for the purpose and held upon at least
twenty-one (21) days' notice.
XXXXXXXXXX
CLASS F PREFERRED SHARES, SERIES 1
The first series of Class F Preferred Shares designated as Non-Voting,
Non-Participating, Redeemable, Convertible, Cumulative, Preferred Shares, Series
1 (the "Class F, Series 1 Shares") shall consist of an unlimited number of
shares with a stated value of $1.00 each, and, in addition to the rights,
privileges, restrictions and conditions attached to the Preferred Shares as a
class, shall have attached thereto rights, privileges, restrictions and
conditions substantially as hereinafter set forth, that is to say:
1. DIVIDENDS
1.1 Payment of Dividends The holders of the Class F, Series 1 Shares shall
be entitled to receive, and the Corporation shall pay thereon, as and when
declared by the Board of Directors of the Corporation out of monies of the
Corporation properly applicable to the payment of dividends, cumulative
preferential cash dividends in lawful money of Canada at the rate of
6(cent) per share, payable annually on dates to be fixed from time to time
by resolution of the Board of Directors, before any dividend is paid on or
set apart for the Class A Subordinate Voting Shares or the Class B Multiple
Voting Shares or any of them or shares of any other class ranking junior to
the Class F, Series 1 Shares.
1.2 Method of Payment Cheques payable in lawful money of Canada at par at
any branch in Canada of the Corporation's bankers for the time being shall
be issued in respect of the dividends on the Class F, Series 1 Shares,
(less any tax required to be withheld by the Corporation). The mailing from
the Corporation's head office of such cheque to a holder of Class F, Series
1 Shares shall be deemed to be payment of the dividends represented by a
cheque which has not been presented to the Corporation's bankers for
payment or that otherwise remain unclaimed for a period of six years from
the date on which they were declared to be payable shall be forfeited to
the Corporation. Notwithstanding the foregoing, the amount of the said
dividends (less any tax required to be withheld by the Corporation) may be
deposited directly into an account with a deposit-taking institution
designated by the holder of Class F, Series 1 Shares, provided that the
Corporation has received a written direction to make such deposit at least
ten days prior to the record date for such dividend, in such form as the
Corporation may prescribe from time to time and provided that such
direction has not been revoked by a subsequent written notice received not
less than ten days prior to the record date for the next dividend payment.
1.3 Cumulative Payment of Dividends If on any dividend payment date the
dividends accrued to such date are not paid in full on all of the Class F,
Series 1 Shares then outstanding, such dividends, or the unpaid part
thereof, shall be paid on a subsequent date or dates determined by the
Board of Directors of the Corporation on which the Corporation shall have
sufficient monies properly applicable to the payment of such dividends. The
holders of the Class F, Series 1 Shares shall not be entitled to any
dividends other than or in excess of the cumulative preferential cash
dividends herein provided for.
2. REDEMPTION
2.1 Redemption Privilege The Corporation may redeem at any time the whole
or from time to time any part of the then outstanding Class F, Series 1
Shares on payment for each share to be redeemed of the sum of $1.00 per
Class F, Series 1 Share together in each case with all cumulative
preferential dividends accrued and unpaid thereon up to the date of
redemption (the "Redemption Price").
2.2 Partial Redemption In case a part only of the Class F, Series 1 Shares
is at any time to be redeemed, the shares so to be redeemed on a pro rata
basis, disregarding fractions, according to the number of Class F, Series 1
Shares held by each of the registered holders thereof. If a part only of
the Class F, Series 1 Shares represented by any certificate shall be
redeemed, a new certificate representing the balance of such shares shall
be issued to the holder thereof at the expense of the Corporation upon
presentation and surrender of the first mentioned certificate.
3. PURCHASE BY THE CORPORATION
3.1 Purchase for Cancellation The Corporation may, at any time or from time
to time, purchase for cancellation all or any part of the outstanding Class
F, Series 1 Shares for a price not exceeding the sum of $1.00 per Class F,
Series 1 Share, together with unpaid accrued cumulative preferential
dividends.
4. CONVERSION PRIVILEGES
4.1 Rights of Conversion The Class F, Series 1 Shares or any of them, may,
upon and subject to the terms and conditions hereinafter set forth, be
converted at any time by the holder or holders thereof into fully paid
shares of the Corporation as the same shall be constituted at the time of
conversion, on the basis of one (1) Class A subordinate Voting Shares and
one (1) Class B Multiple Voting Shares; or two (2) Class A Subordinate
Voting Shares, for each ninety-eight (98) Class F, Series 1 Shares;
provided, however, that, in the event of liquidation, dissolution or
winding-up of the Corporation, such right of conversion shall cease and
expire at noon on the business day next preceding the date of such
liquidation, dissolution or winding-up.
4.2 Conversion Procedure A holder of Class F, Series 1 Shares desiring to
convert his Class F, Series 1 Shares into Class A Subordinate Voting Shares
and/or Class B Multiple Voting Shares in accordance with the foregoing
shall surrender the certificate or certificates representing his Class F,
Series 1 Shares so to be converted to the registered office of the
Corporation or to the transfer agent for the time being of such Class F,
Series 1 Shares accompanied by a request in writing for such conversion
(specifying the class or classes of shares into which he desires his Class
F, Series 1 Shares to be converted) with his signature thereon verified, as
the directors of the Corporation may from time to time require, and
thereupon there shall be issued to such holder by the Corporation, as fully
paid and non-assessable, the number of Class A Subordinate Voting Shares
and/or Class B Multiple Voting Shares to which he shall be entitled upon
such conversion.
4.3 Loss of Dividend Payment in cash or adjustment in respect of unpaid
cumulative dividends on Class F, Series 1 Shares so converted (at the
option of the Corporation) shall be made upon any such conversion.
4.4 Anti-Dilution If the number of outstanding Class F, Series 1 Shares or
Class A Subordinate Voting Shares, or Class B Multiple Voting Shares shall,
prior to the exercise by the holder of any Class F, Series 1 Shares of his
aforesaid conversion right, be subdivided or consolidated, the number of
Class A Subordinate Voting Shares and Class B Multiple Voting Shares into
which such holder may convert his Class F, Series 1 Shares shall be
proportionately increased or reduced, as the case may be.
4.5 Continuing Right to Alter Capital Nothing contained in the foregoing
provisions regarding the conversion of Class F, Series 1 Shares into Class
A Subordinate Voting Shares and Class B Multiple Voting Shares shall be
deemed in any way to limit or restrict the rights of the Corporation from
time to time to take such lawful proceedings as it may deem advisable for
the increase or reduction in its Class F, Series 1 Shares or Class A
Subordinate Voting Shares, or Class B Multiple Voting Shares or otherwise
in any other manner changing or dealing with the capital of the Corporation
or the shares thereof, the rights in respect of such conversions being
exercisable in respect of Class F, Series 1 Shares, and of Class A
Subordinate Voting Shares and Class B Multiple Voting Shares of the
Corporation as they may from time to time be constituted respectively,
subject only to the express provisions hereinbefore contained.
5. LIQUIDATION, DISSOLUTION OR WINDING UP
In the event of any liquidation, dissolution or winding up of the
Corporation, voluntary or involuntary, or in the event of any other distribution
of assets of the Corporation among its shareholders for the purpose of winding
up its affairs, the holders of the Class F, Series 1 Shares shall be entitled to
receive from the property and assets of the Corporation, a sum equal to $1.00
plus an amount equal to all dividends accrued and unpaid thereon to the date of
payment, the whole before any amount shall be paid by the Corporation or any
property or assets of the Corporation shall be distributed to holders of junior
shares. After payment to the holders of the Class F, Series 1 Shares of the
amounts so payable to them, they shall not be entitled to share in any further
distribution of the property or assets of the Corporation.
6. APPROVAL OF MODIFICATION
The approval or consent of the holders of Class F, Series 1 Shares with
respect to any matters referred to herein may be given, and (subject to the
rights of holders of Class FPreferred Shares as a class) the number of Class F,
Series 1 Shares may be changed, and the rights, restrictions, conditions and
limitations attaching to the Class F, Series 1 Shares may be modified, varied,
dealt with or affected, by a resolution passed at a meeting of the holders of
Class F, Series 1 Shares, by not less than 66-2/3% of the votes cast at such
meeting. To call such a meeting, all of the provisions of the by-laws or the
Articles of Incorporation of the Corporation or as may be required by law
relating in any manner to the holding of general meetings of the Corporation or
to proceedings thereat or to the rights of members at or in connection therewith
shall mutatis mutandis apply, except that only holders of Class F, Series 1
Shares shall be entitled to notice of or to vote at such meetings.
7. NOTICE PROVISION
7.1 General In any case where the provisions attached to the Class F,
Series 1 Shares requires notice to be given by the Corporation to the holders of
such shares, accidental failure or omission to give such notice to one or more
holders shall not affect the validity of the action with respect to which the
notice is being given, but upon such failure or omission being discovered notice
shall be given forthwith to such holder or holders and shall have the same force
and effect as if given in due time.
8. INTERPRETATION
In the event that any date on which any dividend on the Class F, Series 1
Shares, is payable by the Corporation, or on or by which any other action is
required to be taken by the Corporation hereunder, is not a business day, then
such dividend shall be payable, or such other action shall be required to be
taken, on or by the next succeeding date that is a Business Day.
* * * * * * * * * *
EXHIBIT "6"
SERIES 1 PREFERENCE SHARES
The Series 1 Preference Shares designated as Non-Voting, Not-Participating,
Redeemable, Cumulative, Series 1 Preference Shares (the "Series 1 Shares") shall
consist of an unlimited number of shares without par value with a stated value
of $0.28, shall have attached thereto rights, privileges, restrictions and
conditions substantially as hereinafter set forth, that is to say:
1. DIVIDENDS
1.1 Payment of Dividends
The holders of the Series 1 Shares shall be entitled to receive and the
Corporation shall pay thereon as and when declared by the Board of Directors out
of the monies of the Corporation properly applicable to the payment of
dividends, fixed preferential cumulative cash dividends at the rate of 3% of the
stated value per Series 1 Share, payable annually on dates in each fiscal year
of the Corporation to be fixed from time to time by resolution of the Board of
Directors. The holders of the Series 1 Shares shall not be entitled to any
dividend other than or in excess of the said dividends herein provided.
1.2 Preferential Cumulative Dividend
No dividends shall at any time be declared or paid on or set apart for the
Class A subordinate voting shares, the Class B multiple voting shares or any
shares of any other class ranking junior to the Series 1 Shares unless all
dividends up to and including the dividend payable for the last completed fiscal
year of the Corporation on the Series 1 Shares then issued and outstanding shall
have been declared and paid or provided for at the date of such declaration or
payment or setting aside.
2. LIQUIDATION, DISSOLUTION OR WINDING-UP
In the event of liquidation, dissolution or winding-up of the Corporation
among its shareholders for the purpose of winding-up its affairs, the holders of
the Series 1 Shares shall be entitled to receive for each such share a sum
equivalent to the result obtained when the stated capital account for the Series
1 Shares is divided by the number of issued and outstanding Series 1 Shares,
together with all unpaid cumulative dividends, before any amount shall be paid
or any property or assets of the Corporation distributed to the holders of any
Class A subordinate voting shares, the Class B multiple voting shares, or shares
of any other class ranking junior to the Series 1 Shares. After payment to the
holders of the Series 1 Shares of the amount so payable to them as above
provided they shall not be entitled to share in any further distribution of the
property or assets of the Corporation.
3. PURCHASE FOR CANCELLATION
The Corporation may at any time or times purchase for cancellation out of
capital pursuant to the provisions of the Business Corporations Act, the whole
or any part of the Series 1 Shares, at the lowest price at which, in the opinion
of the directors, such shares are obtainable, but not exceeding the redemption
price of the Series 1 Shares as hereinafter specified.
4. REDEMPTION
The Corporation may, upon giving notice as hereinafter provided, redeem at
any time the whole or part of the outstanding Series 1 Shares out of capital
pursuant to the Business Corporations Act on payment for each share to be
redeemed of a sum equivalent to the result obtained when the stated capital
account for the Series 1 Shares is divided by the number of issued and
outstanding Series 1 Shares together with all unpaid cumulative dividends
thereon, whether or not declared up to the date fixed for redemption. Not less
than thirty day's notice in writing of such redemption shall be given by mailing
such notice to the registered holders of the shares to be redeemed, specifying
the date and place or places of redemption. On or after the dates so specified
for redemption, the Corporation shall pay or cause to be paid to or to the order
of the registered holders of the Series 1 Shares to be redeemed the redemption
price thereof on presentation and surrender at the head office of the
Corporation or any other place designated in such notice of the certificates
representing the Series 1 Shares called for redemption. If a part only of the
shares represented by any certificate be redeemed, a new certificate for the
balance shall be issued at the expense of the Corporation. From and after the
date specified for redemption in any such notice, the Series 1 Shares called for
redemption shall cease to be entitled to dividends and the holders thereof shall
not be entitled to exercise any of the rights of shareholders in respect thereof
unless payment of the redemption price shall not be made upon presentation of
certificates in accordance with the foregoing provisions, in which case the
rights of the shareholders shall remain unaffected. The Corporation shall have
the right at any time after the mailing of notice of its intention to redeem any
Series 1 Shares to deposit the redemption price of the shares so called for
redemption or of such of the said shares represented by certificates as have not
at the date of such deposit been surrendered by the holders thereof in
connection with such redemption to a special account in any chartered bank or
any trust company in Canada, named in such notice, to be paid without interest
to or to the order of the respective holders of such Series 1 Shares called for
redemption upon presentation and surrender to such bank or trust company of the
certificates representing the same, and upon such deposit being made or upon the
date specified for redemption in such notice, whichever is the later, the Series
1 Shares in respect whereof such deposit shall have been made shall be redeemed
and the rights of the holders thereof after such redemption date, as the case
may be, shall be limited to receiving without interest their proportionate part
of the total redemption price so deposited against presentation and surrender of
the said certificates held by them respectively.
In the event that only part of the Series 1 Shares is at any time to be
redeemed, the shares so to be redeemed shall be selected pro rata (disregarding
fractions) from among the holders of record thereof as at the date of the notice
of redemption or in such other manner as the board of directors of the
Corporation in its sole discretion may deem equitable.
5. NOTICE AND VOTING
The holders of the Series 1 Shares shall not be entitled as such (except as
hereinafter specifically provided) to receive notice of or to attend any meeting
of the shareholders of the Corporation and shall not be entitled to vote at any
such meeting. The holders of the Series 1 Shares shall, however, be entitled to
notice of meetings of the shareholders called for the purpose of authorizing the
dissolution of the Corporation or the sale of its undertaking or a substantial
part thereof.
6. PREFERENTIAL RIGHTS
The Class A subordinate voting shares and the Class B multiple voting
shares of the Corporation shall rank junior to the Series 1 Shares and shall be
subject in all respects, to the rights, privileges, restrictions and limitations
attaching to the Series 1 Shares.
* * * * * * * * * *
EXHIBIT "7"
SPECIAL SHARES
The special shares without par value designated, as a class, Special
Shares, shall have attached thereto as a class the following rights, privileges,
restrictions, and conditions.
1. The Special Shares shall not be entitled to receive any dividends.
2. In the event of the liquidation, dissolution or winding up of the
Corporation or any other distribution of assets of the Corporation among
its shareholders for the purpose of winding-up its affairs, the holders of
the Special Shares shall be entitled to receive for each Special Share held
by them, respectively, a sum equivalent to the result obtained when the
stated capital amount for the Special Shares is divided by the number of
issued and outstanding Special Shares, the whole before any amount shall be
paid or any property or assets of the Corporation distributed to the
holders of any Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares, or Class F Shares. After payment to the holders of
Special Shares of the amount so payable to them they shall not be entitled
to share in any further distribution of the property or assets of the
Corporation.
3. The Special Shares, or any of them, may be redeemed at any time by the
Corporation with the consent of the holders thereof at a sum equivalent to
the result obtained when the stated capital account for the Special Shares
is divided by the number of issued and outstanding Special Shares.
4. The holders of the Special Shares shall be entitled to receive notice of
and to attend at any meeting of shareholders of the Corporation, except
meetings at which only holders of a specified class of shares are entitled
to vote, and shall be entitled to one (1) vote thereat for each Special
Share held.
5. The stated capital of all of the 500,000 Special Shares shall be the
aggregate sum of $1,500.
