ARRANGEMENT AGREEMENT
THIS AGREEMENT made on and as of the 23rd day of October, 1996.
B E T W E E N:
STRUCTURED BIOLOGICALS INC., a corporation amalgamated
under the laws of Ontario (hereinafter referred to as "SBI")
- and -
XXX-XXXXXXX TECHNOLOGIES INC., a corporation incorporated
under the laws of Ontario (hereinafter referred to as "BA
Tech")
WHEREAS SBI and BA Tech wish to amalgamate pursuant a Plan of Arrangement;
AND WHEREAS SBI intends to propose the Arrangement to its shareholders;
AND WHEREAS the parties hereto wish to record their agreements with respect
to the Arrangement;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the
premises and the respective covenants and agreements herein contained, the
parties hereto covenant and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Plan of Arrangement, unless there is something in the subject
matter or context inconsistent therewith:
"ACT" means the Ontario BUSINESS CORPORATIONS ACT, R.S.O. 1990, c. B.16, as
amended;
"AMALCO" means the corporation continuing from the Amalgamation;
"AMALCO CLASS A SHARES" means the Class A special shares in the capital of
Amalco;
"AMALCO CLASS B SHARES" means the Class B special shares in the capital of
Amalco;
"AMALCO CLASS C SHARES" means the Class C special shares in the capital of
Amalco;
"AMALCO SV SHARES" means the subordinate voting shares in the capital of Amalco;
"AMALGAMATION" means the amalgamation of BA Tech, NCI and SBI pursuant to this
Plan of Arrangement;
"ARRANGEMENT" means an arrangement under the provisions of section 182 of the
Act, on the terms and conditions set forth in the Plan of Arrangement;
"BA CLASS A SHARES" means the Class A special shares of BA Tech;
"BA CLASS B SHARES" means the Class B special shares of BA Tech;
"BA CLASS C SHARES" means the Class C special shares of BA Tech;
"BA COMMON SHARES" means the common shares of BA Tech;
"BA SHARES" means the BA Class A Shares, the BA Class B Shares, the Class C
Shares and the BA Common Shares;
"BA TECH" means Xxx-Xxxxxxx Technologies Inc., a corporation, incorporated under
the laws of Ontario;
"BUSINESS DAY" means a day other than a Saturday, Sunday or an Ontario
provincial holiday or any other day when banks in Toronto, Canada, are not open
for business;
"CONTINUANCE" means the continuance of Amalco as a corporation under the laws of
the State of Wyoming;
"COURT" means the Ontario Court (General Division);
"DEPOSITARY" means Montreal Trust Company;
"DIRECTOR" means the Director appointed under section 278 of the Act;
"EFFECTIVE DATE" means the date shown in the certificate of arrangement giving
effect to the Arrangement which is issued under the Act by the Director;
"FINAL ORDER" means the final order of the Court made in connection with
approval of the Arrangement, following the application therefor contemplated in
section 3.3 hereof;
"HOLDER" means a registered holder of SBI Common Shares on the Effective Date;
"INTERIM ORDER" means the interim order of the Court made in connection with
approval of the Arrangement, following the application therefor contemplated in
section 3.3 hereof;
"NCI" means 923934 Ontario Corporation, a corporation incorporated under the
laws of Ontario, and a wholly-owned subsidiary of SBI;
"PLAN OF ARRANGEMENT" means the plan of arrangement which is annexed as Appendix
1 hereto or any amendment or variation thereto made in accordance with Section
5.1 hereof;
"SBI" means Structured Biologicals Inc., a corporation amalgamated under the
laws of Ontario;
"SBI COMMON SHARES" means the common shares of SBI;
"SBI INFORMATION CIRCULAR" means the management information circular of SBI to
be prepared and sent to the registered holders of SBI Common Shares in
connection with the SBI Shareholders Meeting;
"SBI SHAREHOLDERS MEETING" means the annual and special meeting of shareholders
of SBI (including any adjournment thereof) to be held, among other things, to
consider and, if deemed advisable, to approve the Arrangement and the
Continuance;
"THIS AGREEMENT", "HEREOF", "HEREIN", AND "HEREUNDER" and similar expressions
refer to this Arrangement Agreement and the Schedules hereto and not to any
particular article, section or other portion hereof;
"UCLA" means the University of California, Los Angeles.
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The division of this Arrangement Agreement into articles, sections and
other portions and the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation of this Arrangement
Agreement.
1.3 CURRENCY
All sums of money which are referred to in this Plan of Arrangement are
expressed in lawful money of Canada unless otherwise specified.
1.4 NUMBER, ETC.
Unless the context requires the contrary, words importing the singular number
only shall include the plural and vice versa; words importing the use of any
gender shall include all genders; and words importing persons shall include
natural persons, firms, trusts, partnerships and corporations.
1.5 ENTIRE AGREEMENT
This Agreement, together with the exhibits, appendices, schedules, agreements
and other documents herein and therein referred to, constitutes the entire
agreement between the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, between the parties with respect to the subject matter
hereof.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF SBI
SBI represents and warrants to and in favour of BA Tech as follows:
(a) SBI is a corporation duly amalgamated and validly existing under the Act
and is governed by the Act and has the corporate power and authority to
own, operate and lease its property and assets and to carry on its business
as now being conducted by it, and it is duly registered, licensed or
qualified to carry on business in each jurisdiction in which a material
amount of its business is conducted or where the character of its
properties and assets make such registration, licensing or qualification
necessary;
(b) SBI has the corporate power and authority to enter into this Agreement and,
subject to obtaining the requisite approvals contemplated hereby, to
perform its obligations hereunder;
(c) the authorized capital of SBI consists of an unlimited number of preference
shares, issuable in series, and an unlimited number of SBI Common Shares,
of which 26,020,128 SBI Common Shares are issued and outstanding;
(d) no individual, firm, corporation or other person holds any securities
convertible or exchangeable into any shares of SBI or of any of its
subsidiaries or has any agreement, warrant, option or any right capable of
becoming an agreement, warrant or option for the purchase of any unissued
shares of SBI or any of its subsidiaries, except for:
(i) warrants to acquire 9,301,950 SBI Common Shares;
(ii) options to acquire 700,000 SBI Common Shares; and
(iii) agreements to settle claims against SBI by the issuance of an
aggregate of 450,000 SBI Common Shares, subject to regulatory
approval.
(e) the execution and delivery of this Agreement by SBI and the completion of
the transactions contemplated herein:
(i) do not and will not result in a breach of, or violate any term or
provision of the articles or bylaws of SBI or any of the constating
documents of its subsidiaries;
(ii) do not and will not, as of the Effective Date, conflict with, result
in the breach of, constitute a default under, or accelerate or
permit the acceleration of the performance required by, any
agreement, instrument, licence, permit or authority to which SBI or
any of its subsidiaries is a party, or to which any material
property of SBI or any of its subsidiaries is subject, or result in
the creation of any lien, charge or encumbrance upon any of the
material assets of SBI or any of its subsidiaries under any such
agreement, instrument, licence, permit or authority or give to any
person any material interest or right, including rights of purchase,
termination, cancellation or acceleration, under any such agreement,
instrument, licence, permit, or authority;
(iii) do not and will not, as of Effective Date, violate any provision of
law or administrative regulation or any judicial or administrative
award, judgment or decree applicable and known to SBI after due
inquiry, the breach of which would have a material adverse effect on
SBI and its subsidiaries taken as a whole;
(f) the execution and delivery of this Agreement and the completion of the
transactions contemplated herein have been duly approved by the Board of
Directors of SBI and this Agreement has been duly executed and delivered by
SBI and, upon the approval of the holders of the SBI Common Shares given by
a special resolution, will constitute a valid and binding obligation to SBI
enforceable against it in accordance with its terms;
(g) NCI is a wholly-owned subsidiary of SBI;
(h) SBI is a reporting issuer within the meaning of the securities legislation
of Ontario, Alberta and British Columbia and is not in default of any
filings required to be made pursuant thereto or the regulations made
thereunder;
(i) the SBI Common Shares are listed and posted for trading on The Alberta
Stock Exchange and SBI is not in default of any filings required to be made
with respect thereto; and
(j) the information set forth in the SBI In formation Circular and incorporated
therein by reference relating to SBI and its subsidiaries is true, correct
and complete in all material respects does not contain untrue statement of
any material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading
in light of the circumstances in which they are made and discloses the
nature and extent of the interest of each director or officer of SBI in
this Agreement in reasonable detail.
2.2 REPRESENTATIONS AND WARRANTIES OF BA TECH
BA Tech represents and warrants to and in favour of SBI as follows:
(a) BA Tech is a corporation duly incorporated, organized and validly existing
under the Act;
(b) BA Tech has the corporate power and authority to enter into this Agreement
and, subject to obtaining the requisite approvals contemplated hereby, to
perform its obligations hereunder;
(c) immediately prior to the Effective Date, the authorized capital of BA Tech
will consist of an unlimited number of BA Class A Shares, an unlimited
number of BA Class B Shares, an unlimited number of BA Class C Shares and
an unlimited number of BA Common Shares, of which 20,000,000 BA Class A
Shares, 4,150,000 BA Class C Shares and 4,100,000 BA Common Shares are
issued and outstanding;
(d) no individual, firm, corporation or other person holds any securities
convertible or exchangeable into any shares of BA Tech or of any of its
subsidiaries or has any agreement, warrant, option or any right capable of
becoming an agreement, warrant or option for the purchase of any unissued
shares of BA Tech or any of its subsidiaries, except for:
(i) the issued shares described in paragraph 2.2(c); and
(ii) an agreement for BA Tech to issue, and for an investor to subscribe
for an aggregate consideration of U.S. $20,000,000, 10,000,000 BA
Common Shares and warrants to acquire an additional 10,000,000 BA
Common Shares for a period of three years at an exercise price of
U.S. $2.00 per share;
(e) the execution and delivery of this Agreement by BA Tech and the completion
of the transactions contemplated herein:
(i) do not and will not result in a breach of, or violate any term or
provision of, the articles or by-laws of BA Tech;
(ii) do not and will not, as of the Effective Date, conflict with, result
in the breach of, constitute a default under, or accelerate or
permit the acceleration of the performance required by, any
agreement, instrument, licence, permit or authority to which BA Tech
or any of its subsidiaries is a party, or to which any material
property of BA Tech or any of its subsidiaries is subject, or result
in the creation of any lien, charge or encumbrance upon any of the
material assets of BA Tech or any of its subsidiaries under any such
agreement, instrument, licence, permit or authority or give to any
person any material interest or right, including rights of purchase,
termination, cancellation or acceleration, under any such agreement,
instrument, licence, permit, or authority;
(iii) do not and will not, as of Effective Date, violate any provision of
law or administrative regulation or any judicial or administrative
award, judgment or decree applicable and known to BA Tech after due
inquiry, the breach of which would have a material adverse effect on
BA Tech and its subsidiaries taken as a whole;
(f) the execution and delivery of this Agreement and the completion of the
transactions contemplated herein have been duly approved by the Board of
Directors of BA Tech and this Agreement has been duly executed and
delivered by BA Tech and constitutes a valid and binding obligation to BA
Tech enforceable against it in accordance with its terms; and
(g) BA Tech is not engaged in any business nor is it a party to or bound by any
contract, agreement, arrangement, instrument, licence, permit or authority,
other than this Agreement and any transaction or agreement necessary or
incidental to the fulfillment of its obligations under this Agreement, or
is contemplated by the SBI Information Circular, nor does it have any
subsidiaries or liabilities, contingent or otherwise, except as provided in
or permitted by this Agreement.
ARTICLE 3
COVENANTS
3.1 COVENANTS OF SBI
Except as SBI and BA Tech may otherwise agree in writing, SBI hereby
covenants and agrees as follows:
(a) until the Effective Date, SBI shall carry on its business in the ordinary
course and, in particular, make any payments due to UCLA in a timely
fashion;
(b) except as otherwise contemplated in this Agreement, until the Effective
Date, SBI shall not merge into or with, or amalgamate, consolidate or enter
into any other corporate reorganization with, any other corporation or
person, or perform any act or enter into any transaction or negotiation
which reasonably could be expected to, directly or indirectly, interfere or
be inconsistent with the completion of the Arrangement;
(c) SBI shall do all such acts and things as may be necessary or reasonably
required in order to give effect to the Arrangement and, without limiting
the generality of the foregoing, SBI shall use all reasonable efforts to
apply for and obtain:
(i) the Interim Order and the Final Order as provided in Section 3.3.
hereof on terms and conditions satisfactory to SBI and BA Tech;
(ii) the approval of the Alberta Stock Exchange to the Arrangement on
terms and conditions satisfactory to SBI and BA Tech;
(iii) the approval of the holders of the SBI Common Shares to the
Arrangement and to the Continuance; and
(d) SBI shall provide BA Tech with a pledge of the shares of NCI owned by it to
secure the amounts borrowed by SBI from BA Tech and to cause NCI to
guarantee such amounts and to grant a security interest in all of its
assets, including its technology rights with UCLA, in order to secure such
guarantee.
3.2 COVENANTS OF BA TECH
Except as SBI and BA Tech may otherwise agree in writing, BA Tech hereby
covenants and agrees as follows:
(a) except as otherwise contemplated in this Agreement, until the Effective
Date, BA Tech shall not merge into or with, or amalgamate, consolidate or
enter into any other corporate reorganization with, any other corporation
or person, or perform any act or enter into any transaction or negotiation
which reasonably could be expected to, directly or indirectly, interfere or
be inconsistent with the completion of the Arrangement;
(b) BA Tech shall do all such acts and things as may be necessary or reasonably
required in order to give effect to the Arrangement and, without limiting
the generality of the foregoing, BA Tech shall use all reasonable efforts
to:
(i) apply for and obtain the interim Order and the Final Order as
provided in Section 3.3. hereof on terms and conditions satisfactory
to SBI and BA Tech;
(ii) assist SBI in obtaining the approval of the Alberta Stock Exchange
for the Arrangement;
(iii) solicit and obtain the approval of the BA Class A Shares, the BA
Class C Shares and the BA Common Shares to the Arrangement and the
Continuance;
(c) to lend to SBI sufficient funds to enable it to make any payments due to
UCLA and any other payments necessary or desirable to permit SBI to
continue to carry on business in the ordinary course and to carry out all
steps necessary to consummate the Arrangement; the amount outstanding to
bear interest at a rate equal to the prime rate of interest at the bank of
BA Tech and to be due and payable upon demand; and
(d) not to demand repayment of such loan until on or after the earlier of the
Effective Date or the termination of this Agreement.
3.3 INTERIM ORDER AND FINAL ORDER
Each party covenants and agrees that it will, as soon as reasonably
practicable, apply to the Court pursuant to Section 182 of the Act for the
Interim Order providing for, among other things, the calling and holding of the
SBI Shareholders' Meeting for the purpose of, among other matters, considering
and, if deemed advisable, approving the Arrangement; and, if the approvals of
the holders of SBI Common Shares and the BA Shares as set forth in the Interim
Order are obtained by SBI, as soon as practicable thereafter each party will
take the necessary steps to submit the Arrangement to the Court and apply for
the Final Order in such fashion as the Court may direct. As soon as practicable
following the grant of the Final Order, and subject to compliance with the other
conditions provided for in Article 4 hereof, SBI and BA Tech shall send to the
Director pursuant to subsection 183(1) of the Act articles of arrangement to
give effect to the Arrangement.
ARTICLE 4
CONDITIONS
4.1 MUTUAL CONDITIONS PRECEDENT
The respective obligations of each party hereto to complete the
transactions contemplated by this Agreement shall be subject to the satisfaction
on or before the Effective Date, of the following conditions, none of which may
be waived by either party hereto in whole or in part:
(a) the required approval of the shareholders of SBI and BA Tech to the
Arrangement and the Continuance shall have been obtained;
(b) the Final Order shall have been obtained in form and substance
satisfactory to SBI and BA Tech, acting reasonably, and shall be
unamended except with the consent of both parties.
4.2 OTHER MUTUAL CONDITIONS PRECEDENT
The respective obligations of each party hereto to complete the
transactions contemplated by this Agreement shall be further subject to the
satisfaction or waiver by either party of the following conditions on or before
the Effective Date:
(a) the Alberta Stock Exchange shall have accepted notice of the Arrangement
and shall have confirmed, prior to the Effective Date, the listing and
posting for trading of the number of Amalco SV Shares issuable in the
Arrangement, subject to compliance with the listing requirements thereof or
any notice of issuance, as the case may be;
(b) all of the issued and outstanding SBI Preference Shares shall have been
converted into SBI Common shares;
(c) no action shall have been instituted and be continuing on the Effective
Date for an injunction to restrain, a declaratory judgment in respect of or
damages on account of or relating to the Arrangement and no cease trading
or similar order with respect to any securities of SBI or BA Tech shall
have been issued and remain outstanding;
(d) the other party hereto shall have performed each of its covenants contained
herein that are required to be performed on or before the Effective Date
and, except as affected by the transactions contemplated by this Agreement,
the representations and warranties of the other party hereto shall be true
and correct in all material respects as of the Effective Date, with the
same effect as if such representations and warranties had been made at and
as of such time.
4.3 MERGER OF CONDITIONS
The conditions set out in Sections 4.1 and 4.2 shall be conclusively deemed
to have been satisfied, waived or released upon the delivery to the Director
pursuant to subsection 183(1) of the Act of articles of arrangement to give
effect to the Arrangement.
ARTICLE 5
AMENDMENT AND TERMINATION
5.1 AMENDMENT
This Agreement may, at any time and from time to time before and after the
holding of the SBI Shareholder Meeting, be amended by written agreement of the
parties hereto without, subject to applicable law, further notice to or action
on the part of the shareholders of SBI or BA Tech, provided that after the SBI
Shareholder Meeting this Agreement may not be amended in a manner materially
adverse to the interests of the holders of the SBI Common Shares and the holders
of the SBI Preference Shares.
5.2 TERMINATION
This Agreement may, at any time before or after the holding of the SBI
Shareholder Meeting, be terminated by the Board of Directors of SBI or BA Tech
for any reason whatsoever, acting in good faith and in its sole discretion,
without further notice to, or action on the part of, the shareholders of SBI or
BA Tech.
5.3 EFFECT OF TERMINATION
Upon the termination of this Agreement pursuant to Section 5.2 hereof,
neither party shall have any liability or further obligation to the other party
hereto.
ARTICLE 6
GENERAL
6.1 NOTICES
All notices which may or are required to be given pursuant to any provision
of this Agreement shall be given or made in writing and shall be deemed to be
validly given if served personally or by facsimile at the following addresses or
at such other addresses as shall be specified by the parties by like notice:
If to SBI: If to BA Tech:
000 Xxx Xxxxxx 000 Xxx Xxxxxx
Xxxxx 000 Xxxxx 000
Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxxx
X0X 0X0 X0X 0X0
Attention: President Attention: Chairman
The date of receipt of any such notice shall be deemed to be the date of
delivery or facsimile transmission thereof.
6.2 ASSIGNMENT
No party may assign its rights or obligations under this Agreement or the
Arrangement without the prior written consent of the other party hereto.
6.3 BINDING EFFECT
This Agreement and the Arrangement shall be binding upon and shall enure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
6.4 WAIVER
Any waiver or release of any of the provisions of this Agreement, to be
effective, must be in writing executed by the party granting the same.
6.5 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein and
shall be treated in all respects as an Ontario contract.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the year and day first above written.
STRUCTURED BIOLOGICAL-S INC.
By: /s/ Claus X.X. Xxxxxx-Xxxxxx
----------------------------------------
Name: Claus X.X. Xxxxxx-Xxxxxx
Title: President
XXX-XXXXXXX TECHNOLOGIES INC.
By: /s/ Avi Xxx-Xxxxxxx, M.D.
----------------------------------------
Name: Avi Xxx-Xxxxxxx, M.D.
Title: Chairman, President and Chief
Executive Officer
APPENDIX I
PLAN OF ARRAIGNMENT UNDER SECTION 182
OF THE ONTARIO BUSINESS CORPORATIONS ACT
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Plan of Arrangement, unless there is something in the subject
matter or context inconsistent therewith:
"ACT" means the Ontario Business Corporations Act, R.S.O. 1990, c. B.16, as
amended;
"ARRANGEMENT AGREEMENT" means the arrangement agreement made as of October 23,
1996 between BA Technologies, NCI and SBI;
"AMALCO" means the corporation resulting from the Amalgamation;
"AMALCO CLASS A SHARES" means the Class A special shares in the capital of
Amalco;
"AMALCO CLASS B SHARES" means the Class B special shares in the capital of
Amalco;
"AMALCO CLASS C SHARES" means the Class C special shares in the capital of
Amalco;
"AMALCO SV SHARES" means the subordinate voting shares in the capital of Amalco;
"AMALGAMATION" means the amalgamation of BA Technologies, NCI and SBI pursuant
to this Plan of Arrangement;
"ARRANGEMENT" means an arrangement under the provisions of section 182 of the
Act, on the terms and conditions set forth in this Plan of Arrangement, and any
amendment or variation hereto made in accordance with section 5.1 of the
Arrangement Agreement;
"BA CLASS A SHARES" means the Class A special shares of BA Technologies;
"BA CLASS B SHARES" means the Class B special shares of BA Technologies;
"BA CLASS C SHARES" means the Class C special shares of BA Technologies;
"BA COMMON SHARES" means the common shares of BA Technologies;
"BA SHARES" means the BA Class A Shares, the BA Class B Shares, the BA Class C
Shares and the BA Common Shares;
"BA TECH" means Xxx-Xxxxxxx Technologies Inc., a corporation, incorporated under
the laws of Ontario;
"BUSINESS DAY" means a day other than a Saturday, Sunday or an Ontario
provincial holiday or any other day when banks in Toronto, Canada, are not open
for business;
"COURT" means the Ontario Court (General Division);
"DEPOSITARY" means Montreal Trust Company;
"DIRECTOR" means the Director appointed under section 278 of the Act;
"EFFECTIVE DATE" means the date shown in the certificate of arrangement giving
effect to the Arrangement which is issued under the Act by the Director;
"FINAL ORDER" means the final order of the Court made in connection with
approval of the Arrangement, following the application therefor contemplated in
section 3.3 of the Arrangement Agreement;
"HOLDER" means a registered holder of SBI Common Shares or SBI Preference Shares
on the Effective Date;
"INTERIM ORDER" means the interim order of the Court made in connection with
approval of the Arrangement, following the application therefor contemplated in
section 3.3 of the Arrangement Agreement;
"NCI" means 923934 Ontario Corporation, a corporation incorporated under the
laws of Ontario, and a wholly-owned subsidiary of SBI;
"PLAN OF ARRANGEMENT", "hereof", "herein", and "hereunder" and similar
expressions refer to this Plan of Arrangement and the Schedules hereto and not
to any particular article, section or other portion hereof;
"SBI" means Structured Biologicals Inc., a corporation incorporated under the
laws of Ontario;
"SBI COMMON SHARES" means the common shares of SBI;
"SBI INFORMATION CIRCULAR" means the management information circular of SBI to
be prepared and sent to the registered holders of SBI Common Shares in
connection with the SBI Shareholders Meeting;
"SBI SHAREHOLDERS MEETING" means the annual and special meeting of shareholders
of SBI (including any adjournment thereof) to be held, among other things, to
consider and, if deemed advisable, to approve the Arrangement;
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The division of this Plan of Arrangement into articles, sections and other
portions and the insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation of this Plan of Arrangement.
1.3 CURRENCY
All sums of money which are referred to in this Plan of Arrangement are
expressed in lawful money of Canada unless otherwise specified.
1.4 NUMBER, ETC.
Unless the context requires the contrary, words importing the singular
number only shall include the plural and vice versa; words importing the use of
any gender shall include all genders; and words importing persons shall include
natural persons, firms, trusts, partnerships and corporations.
1.5 BUSINESS DAYS
If any date on which any action is required to be taken hereunder by any
person is not a Business Day, such action shall required to be taken on the next
succeeding day which is a Business Day.
ARTICLE 2
ARRANGEMENT AGREEMENT
2.1 ARRANGEMENT AGREEMENT
This Plan of Arrangement is made pursuant to the Arrangement Agreement.
ARTICLE 3
THE AMALGAMATION
3.1 AMALGAMATION OF SBI CANADA AND BA TECH
On the Effective Date, BA Tech, NCI and SBI (sometimes referred to
hereinafter as "predecessor corporations") will amalgamate to form Amalco with
the same effect as if section 179 of the Act were applicable to such
amalgamation and in connection with such amalgamation:
(a) Amalco will possess all of the property, rights, privileges and franchises
of each of the predecessor corporations immediately before the
Amalgamation;
(b) Amalco will be subject to all liabilities, including civil, criminal and
quasi-criminal, and all contracts, disabilities and debts of each of the
predecessor corporations immediately before the Amalgamation;
(c) all convictions against, or rulings, orders or judgments in favour of or
against a predecessor corporation immediately before the Amalgamation may
be enforced by or against Amalco;
(d) the articles of arrangement in respect of the Arrangement shall be deemed
to be the articles of incorporation of Amalco and the certificate of
arrangement in respect of the Arrangement shall be deemed to be the
certificate of incorporation of Amalco;
(e) Amalco shall be deemed to be the party plaintiff or the party defendant, as
the case may be, in any civil action commenced by or against a predecessor
corporation before the Amalgamation.
3.2 CONVERSION OF SHARES
Upon the Amalgamation becoming effective:
(a) the issued and outstanding SBI Common Shares shall be converted into issued
and fully paid Amalco SV Shares on the basis of one Amalco SV Share for
each 3.5 SBI Common Shares;
(b) the issued and outstanding BA Common Shares shall be converted into issued
and fully paid Amalco SV Shares on the basis of one Amalco SV Share for
each BA Common Share;
(c) the issued and outstanding BA Class A Shares shall be converted into issued
and fully paid Amalco Class A Shares on the basis of one Amalco Class A
Share for each BA Class A Share;
(d) the issued and outstanding BA Class B Shares shall be converted into issued
and fully paid Amalco Class B Shares on the basis of one Amalco Class B
Share for each BA Class A Share;
(e) the issued and outstanding BA Class C Shares shall be converted into issued
and fully paid Amalco Class C Shares on the basis of one Amalco Class C
Share for each BA Class C Share;
(f) the issued and outstanding shares of NC! shall be cancelled without any
repayment of capital in respect thereof.
3.3 ARTICLES AND BY-LAWS OF AMALCO
Upon the Amalgamation:
(a) the name of Amalco shall be "Xxx-Xxxxxxx Technologies Inc.;
(b) the registered office of Amalco shall be in the City of Toronto in the
Province of Ontario;
(c) the number of directors of Amalco shall be such number not less than 3 and
not more than 11 as the Board of Directors may from time to time determine;
(d) the directors of Amalco may appoint one or more directors who shall hold
office for a term expiring not later than the close of the next annual
meeting of Amalco, but the total number of directors so appointed may not
exceed one third of the number of directors elected at the previous annual
meeting of Amalco; and
(e) the number of the first directors shall be 3 and the first directors of
Amalco shall be the persons set out below, who shall hold office until the
first annual meeting of Amalco or until their successors are elected or
appointed.
NAME ADDRESS RESIDENT CANADIAN
Dr. Avi Xxx-Xxxxxxx 00 Xxxx 00xx Xxxxxx Xx
Xxxxx 0X
Xxx Xxxx, Xxx Xxxx
X.X.X. 10019
Xxxxx X. Xxx 0000 Xxxxxxxx Xxxxx Xxx
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
A. Xxxxx Xxxx 000 Xxxxx Xxxxxx Xxxx Xxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Dr. Xxxxx X.X. 00 Xxxxxxxxx Xxxxx Xxx
Xxxxxx-Xxxxxx Xxxxxxxxxx, Xxxxxxx
X0X 0X0
(f) there shall be no restrictions on the business which Amalco is authorized
to carry on or on the powers Amalco may exercise;
(g) the authorized capital of Amalco shall consist of an unlimited number of
subordinate voting shares, an unlimited number of Class A special shares,
an unlimited number of Class B special shares, an unlimited number of Class
C special shares and an unlimited number of Preference Shares, issuable in
series;
(h) the rights, privileges, restrictions and conditions attaching to each class
of shares and directors' authority with respect to any class of shares
which may be issued in series are as set out in Exhibit 1 hereto;
(i) without limiting the powers of the Board of Directors as set out in the
Act, the Board of Directors may from time to time on behalf of Amalco:
(i) borrow money upon the credit of Amalco;
(ii) issue, reissue, sell or pledge debt obligations of Amalco;
(iii) to the extent permitted by the Act, give, directly or indirectly,
financial assistance to any person by means of a loan, a guarantee to
secure the performance of an obligation or otherwise; and
(iv) mortgage, hypothecate, pledge or otherwise create a security interest
in all or any property of Amalco owned or subsequently acquired, to
secure any obligation of Amalco.
The Board of Directors may from time to time delegate to such one or more
of the directors and officers of Amalco as may be designated by the Board
of Directors all or any of the powers conferred on the Board of Directors
in relation to the foregoing by this paragraph or by the Act to such extent
and in such manner as the Board of Directors shall determine at the time of
each such delegation. Nothing in this paragraph limits or restricts the
borrowing of money by Amalco on bills of exchange or promissory notes made,
drawn, accepted or endorsed by or on behalf of Amalco;
(j) the by-laws of SBI shall be the by-laws of Amalco until repealed, amended,
altered or added to.
3.4 CONTINUANCE
As the application for continuance of Amalco as a corporation under the
laws of the State of Wyoming has been approved by special resolutions of both
SBI and BA Tech and as NCI is a wholly-owned subsidiary of SBI, the
shareholders of Amalco shall be deemed, for the purposes of section 181 of
the Act, to have authorized an application to the appropriate official or
public body in the State of Wyoming requesting that Amalco be continued as if
it had been incorporated under the laws of the State of Wyoming.
ARTICLE 4
RIGHTS OF DISSENT
4.1 RIGHTS OF DISSENT
Any holder of SBI Common Shares may exercise rights of dissent pursuant to
and in the manner set forth in section 185 of the Act, as such rights may have
been modified by the interim Order or the Final Order, in connection with the
Arrangement, and holders who duly exercise such rights of dissent and who:
(a) are ultimately entitled to be paid fair value for their SBI Common
Shares by Amalco shall have their SBI Common Shares cancelled as of
the Effective Date; or
(b) are ultimately not entitled for any reason to be paid fair value for
their SBI Common Shares or withdraw their dissent in accordance with
section 185 of the Act shall be deemed to have participated in the
Arrangement as of and from the Effective Date on the same basis as any
non-dissenting holder of SBI Common Shares.
In no case shall SBI, BA Tech or Amalco be required to recognize holders of SBI
Common Shares referred to in subsection 4.1(a) as holders of SBI Common Shares
at and after the Effective Date, and the names of such holders of SBI Common
Shares shall be deleted from SBI's register of holders of such shares on the
Effective Date.
ARTICLE 5
RIGHTS TO CERTIFIED AND FRACTIONAL SHARES
5.1 RIGHTS TO RECEIVE NEW CERTIFICATES
Following the Effective Date, certificates for the appropriate number and
class of Amalco Shares will be issued to former holders of SBI Common Shares and
BA Shares, as the case may be, in accordance with the provisions of section 3.2
hereof against deposit of the certificates representing the SBI Common Shares or
the BA Shares with the Depository.
5.2 FRACTIONAL CERTIFICATES
No certificates representing fractional Amalco SV Shares shall be issued to
holders of SBI Common Shares. Each former holder of SBI Common Shares who is
otherwise entitled to a fraction of an Amalco SV Share which is less than .5 of
an Amalco SV Share shall not be entitled to any compensation therefor. Each
former holder of SBI Common shares who is otherwise entitled to a fraction of an
Amalco SV Share which is equal to or greater than .5 of an Amalco SV Share shall
be entitled to one whole Amalco SV Share.
ARTICLE 6
STATED CAPITAL
6.1 STATED CAPITAL OF AMALCO
The amount of the stated capital account for each class of shares of Amalco
shall be:
(a) for the Amalco Class A Shares, the amount of the stated capital account for
the BA Class A Shares as it existed immediately prior to the amalgamation;
(b) for the Amalco Class C Shares, the amount of the stated capital account for
the BA Class C Shares as it existed immediately prior to the amalgamation;
and
(c) for the Amalco SV Shares, the aggregate of $7,084,976 for the SBI Common
Shares and the BA Common Shares as they existed immediately prior to the
amalgamation.
EXHIBIT I
XXX-XXXXXXX TECHNOLOGIES INC. SHARE PROVISIONS
The rights, privileges, restrictions and conditions attaching to each class
of shares and directors authority with respect to any class of shares which may
be issued in series:
A. PREFERENCE SHARES
The rights, privileges, restrictions and conditions attaching to the preference
shares as a class are as follows:
1. DIRECTORS' RIGHT TO ISSUE IN ONE OR MORE SERIES
The preference shares may at any time or from time to time be issued in one
or more series. Before any shares of a particular series are issued, the
directors of the Corporation shall fix the number of shares that will form
such series and shall, subject to the limitations set out herein, by
resolution, determine the designation, rights, privileges, restrictions and
conditions to be attached to the preference shares of such series
including, but without in any way limiting or restricting the generality of
the foregoing, the rate, amount or method of calculation of dividends
thereon, the time and place of payment of dividends, the consideration and
the terms and conditions of any purchase for cancellation, retraction or
redemption thereof, conversion rights and the terms and conditions of any
share purchase plan or sinking fund, the whole subject to the filing with
the Director, as defined in the Business Corporations Act (Ontario), as
amended from time to time (the "Act"), of articles of amendment in the form
prescribed under the Act containing a description of such series including
the designation, rights, privileges, restrictions and conditions as
determined by the directors, and the endorsement thereon of a certificate
of amendment in respect thereof. Notwithstanding the foregoing, the
preference shares of a series shall not be entitled to any voting rights
except as prescribed by law or except if the Corporation has failed to pay
dividends on any series of preference shares.
2. RANKING
The preference shares of each series shall rank on a parity with the
preference shares of every other series with respect to accumulated
dividends and return of capital. The preference shares of the Corporation
shall be entitled to preference over the subordinate voting shares of the
Corporation and over any other shares of the Corporation ranking junior to
the preference shares with respect to priority in the payment of dividends
and 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 purposes of winding up its affairs. If any accumulated dividends
or amounts payable on a return of capital are not paid in full, the
preference shares of all series shall Participate rateably in respect of
such dividends, including accumulations, if any, in accordance with the
sums that would be payable on such shares if all such dividends were
declared and paid in full, and in respect of any repayment of capital if
all sums so payable were paid in full; provided however that in the event
of there being insufficient assets to satisfy in full all such claims, the
claims of the holders of the preference shares with respect to repayment of
capital shall first be applied toward the payment and satisfaction of
claims in respect of dividends.
3. VOTING
Except as hereinafter referred to or as required by law or in accordance
with any voting rights which may from time to time be attached to any
series of preference shares, the holders of the preference shares, as a
class, shall not be entitled as such to receive notice of, to attend or to
vote at any meeting of the shareholders of the Corporation.
Notwithstanding the foregoing, neither the holders of any series of
preference shares, nor the holders of preference shares as a class shall be
entitled to vote, as a series or class, as the case may be, or to dissent
pursuant to subsection 185(2) of the Act in respect of any proposal to
amend the articles of the Corporation as contemplated in clauses (a), (b)
and (e) of subsection 170(1) of the Act.
4. AMENDMENT WITH APPROVAL OF HOLDERS OF PREFERENCE SHARES
The rights, privileges, restrictions and conditions attaching to the
preference shares as a class may be added to, changed or removed but only
with the approval of the holders of the preference shares given as
hereinafter specified.
5. APPROVAL OF HOLDERS OF PREFERENCE SHARES]
The approval of the holders of the preference shares to add to, change or
remove any right, privilege, restriction or condition attaching to the
preference shares as a class or any other matter requiring the consent of
the holders of the preference shares may be given in such manner as may be
required by law, subject to a minimum requirement that such approval be
given by resolution passed by the affirmative vote of at least 2/3 of the
votes cast at a meeting of the holders of the preference shares duly called
for that purpose. Each holder of preference shares entitled to vote at
such meeting shall have one vote in respect of each $1.00 of the issue
price of each preference share held by such person.
B. SUBORDINATE VOTING SHARES, CLASS A SHARES, CLASS B SHARES AND CLASS C
SHARES
The rights, privileges, restrictions and conditions attaching to the
subordinate voting shares, the Class A shares, the Class B shares and the
Class C shares are as follows:
1. DIVIDEND RIGHTS
(a) DIVIDEND RIGHTS OF SUBORDINATE VOTING SHARES
The holders of the subordinate voting shares, shall be entitled to
receive dividends as and when declared by the directors from time to
time out of moneys of the Corporation properly applicable to the
payment of dividends and the amount per share of each such dividend
shall be determined by the directors of the Corporation at the time of
declaration.
(b) DIVIDEND RIGHTS OF CLASS B SHARES
The holders of the Class B shares shall be entitled to receive
dividends as and when declared by the directors from time to time out
of moneys of the Corporation properly applicable to the payment of
dividends and the amount per share of each such dividend shall be
determined by the directors of the Corporation at the time of
declaration, provided that the amount of the dividend per Class B
share in any calendar year shall not exceed the amount of the dividend
per subordinate voting share in such year.
(c) DIVIDEND RIGHTS OF CLASS A AND CLASS C SPECIAL SHARES
The holders of the Class A shares and the Class C shares shall not be
entitled to receive any dividends.
2. VOTING RIGHTS
(a) VOTING OF SUBORDINATE VOTING SHARES
Subject to the provisions of the Business Corporations Act, the
holders of the subordinate voting shares shall be entitled to receive
notice of and to attend all meetings of the shareholders of the
Corporation and shall be entitled to vote at all meetings of
shareholders, except meetings at which only holders of another class
of shares are entitled to vote. Each subordinate voting share shall
entitle the holder thereof to one vote.
(b) VOTING OF CLASS A SHARES
Subject to the provisions of the Business Corporations Act, the
holders of the Class A shares shall be entitled to receive notice of
and to attend all meetings of the shareholders of the Corporation and
shall be entitled to vote at all meetings of the shareholders, except
meetings at which only holders of another class of shares are entitled
to vote. Each Class A share shall entitle the holder thereof to ten
votes.
(c) VOTING OF CLASS B SHARES
Subject to the provisions of the Business Corporations Act, the
holders of the Class B shares shall be entitled to receive notice of
and to attend all meetings of the shareholders of the Corporation and
shall be entitled to vote at all meetings of the shareholders, except
meetings at which only holders of another class of shares are entitled
to vote. Each Class B share shall entitle the holder thereof to ten
votes.
(d) VOTING OF CLASS C SHARES
Subject to the provisions of the Business Corporations Act, the
holders of the Class C shares shall be entitled to receive notice of
and to attend all meetings of the shareholders of the Corporation and
shall be entitled to vote at all meetings of the shareholders, except
meetings at which only holders of another class of shares are entitled
to vote. Each Class C share shall entitle the holder thereof to one
vote.
3. PURCHASE RIGHTS
(a) SUBORDINATE VOTING SHARE PURCHASE RIGHTS OF CLASS A SHARES
A holder of Class A shares shall be entitled, in accordance with the
provisions hereof, to acquire subordinate voting shares of the
Corporation as the same may then be constituted by tendering any of
the Class A shares held and registered in his name together with U.S.
$0.25 per share (the "Subordinate Voting Share Purchase Price") on the
basis of one subordinate voting share for each Class A share and U.S.
$0.25. The purchase right herein provided shall be exercised by
notice in writing given to the Corporation which notice shall specify
the number of Class A shares that the holder desires to have applied
to the purchase price of subordinate voting shares. If any Class A
shares are applied to the purchase of subordinate voting shares
pursuant to this paragraph, the holder of such Class A shares shall
surrender the certificate or certificates representing the Class A
shares so applied to the registered office of the Corporation, or to
the transfer agent of the Corporation at the time of purchase together
with cash or a certified cheque in the amount of U.S. $0.25 per
subordinate voting share being acquired, and the Corporation shall
thereupon issue to such holder certificates representing the number of
subordinate voting shares to which the holder became entitled upon
such purchase.
(b) CLASS B SHARE PURCHASE RIGHTS OF CLASS A SHARES
A holder of Class A shares shall be entitled, in accordance with the
provisions hereof, to acquire, Class B shares of the Corporation as
the same may then be constituted by tendering any of the Class A
shares held and registered in his name
together with U.S. $0.25 (the "Class B Share Purchase Price") per
share on the basis of one Class B share for each Class A share and
U.S. $0.25. The purchase right herein provided shall be exercised by
notice in writing given to the Corporation which notice shall specify
the number of Class A shares that the holder desires to have applied
to the purchase price of Class B shares. If any Class A shares are
applied to the purchase of subordinate voting shares pursuant to this
paragraph, the holder of such Class A shares shall surrender the
certificate or certificates representing the Class A shares so applied
to the registered office of the Corporation, or to the transfer agent
of the Corporation at the time of purchase together with cash or a
certified cheque in the amount of U.S. $0.25 per Class B share being
acquired, and the Corporation shall thereupon issue to such holder
certificates representing the number of Class B shares to which the
holder became entitled upon such purchase.
(c) SUBORDINATE VOTING SHARE PURCHASE RIGHTS OF CLASS C SHARES
A holder of Class C shares shall be entitled, in accordance with the
provisions hereof, to acquire subordinate voting shares of the
Corporation as the same may then be constituted by tendering any of
the Class C shares held and registered in his name together with U.S.
$0.25 per share on the basis of one subordinate voting share for each
Class C share and U.S. $0.25. The purchase right herein provided
shall be exercised by notice in writing given to the Corporation which
notice shall specify the number of Class C shares that the holder
desires to have applied to the purchase price of subordinate voting
shares. If any Class C shares are applied to the purchase of
subordinate voting shares pursuant to this paragraph, the holder of
such Class C shares shall surrender the certificate or certificates
representing the Class C shares so applied to the registered office of
the Corporation, or to the transfer agent of the Corporation at the
time of purchase together with cash or a certified cheque in the
amount of U.S. $0.25 per subordinate voting share being acquired, and
the Corporation shall thereupon issue to such holder certificates
representing the number of subordinate voting shares to which the
holder became entitled upon such purchase.
4. CONVERSION RIGHTS
(a) CONVERSION RIGHTS OF CLASS B SHARES
A holder of Class B shares shall be entitled, in accordance with the
provisions hereof, to have any of the Class B shares held and
registered in his name converted into subordinate voting shares of the
Corporation as the same may be constituted at the time of the
conversion on the basis of one subordinate voting share for each Class
B share converted. The conversion right herein provided shall be
exercised by notice in writing given to the Corporation which notice
shall specify the number of Class B shares that the holder desires to
have converted into subordinate voting shares. If any Class B shares
are converted into subordinate
voting shares pursuant to this paragraph, the holder of such Class B
shares shall surrender the certificate or certificates representing
the Class B shares which were converted to the registered office of
the Corporation, or to the transfer agent of the Corporation at the
time of conversion, and the Corporation shall thereupon issue to such
holder certificates representing the number of subordinate voting
shares to which the holder became entitled upon the conversion.
5. ADJUSTMENT OF PURCHASE RIGHTS AND CONVERSION RIGHTS
(a) SUBORDINATE VOTING SHARES
(i) In case of any reclassification or redesignation of the
subordinate voting shares (hereinafter referred to in this
subsection 5(a) as the "Shares") or change of the Shares into
other shares, or in case of the consolidation, amalgamation or
merger of the Corporation with or into any other body corporate
(other than a consolidation, amalgamation or merger which does
not result in any reclassification or redesignation of the
outstanding Shares or a change of the Shares into other shares),
or in the case of any transfer of the undertaking or assets of
the Corporation as an entirety or substantially as an entirety to
another corporation, the holder of any Class A shares or Class C
shares who thereafter shall exercise his right to purchase Shares
pursuant to section 3 hereof and the holder of any Class B shares
who thereafter shall exercise his right to convert any Class B
shares into Shares pursuant to section 4 hereof shall be
entitled to receive, and shall accept, in lieu of the number of
Shares to which he was theretofore entitled upon such exercise of
such right to purchase or convert, as the case may be, the kind
and amount of shares which such holder would have been entitled
to receive as a result of such reclassification, redesignation,
change, consolidation, amalgamation, merger or transfer if, on
the effective date thereof, he had been the registered holder of
the number of Shares to which he was theretofore entitled upon
exercising his right to purchase or convert, as the case may be.
The subdivision or consolidation of Shares at anytime outstanding
into a greater or lesser number of Shares shall be deemed not to
be a reclassification of the capital of the Corporation for the
purposes of this paragraph 5(a)(i).
(ii) If and whenever the Shares shall be subdivided into a greater or
consolidated into a lesser number of Shares, or the Corporation
shall issue Shares (or securities exchangeable for or convertible
into Shares) to the holders of all or substantially all of the
outstanding Shares by way of a dividend or other distribution of
Shares (or securities exchangeable for or convertible into
Shares), any holder of Class A shares or Class C shares who has
not exercised his right of purchase pursuant to section 3 hereof
and any holder of Class B shares who has not exercised his right
to convert pursuant to section 4 hereof on or prior to the
effective date or
record date, as the case may be, of such subdivision,
consolidation, dividend or other distribution, upon the exercise
of such right thereafter, shall be entitled to receive, and shall
accept, in lieu of the number of Shares to which he was
theretofore entitled upon such exercise of such right to purchase
or convert (and, in the case of a purchase of Shares pursuant to
section 3 hereto, at the Subordinate Voting Share Purchase Price
adjusted in accordance with subsection 6(a) hereof), the
aggregate number of Shares that such holder would have been
entitled to receive as a result of such subdivision,
consolidation, dividend or other distribution as if, on such
record date or effective date, as the case may be, he had been
the registered holder of the number of Shares to which he was
theretofore entitled upon such exercise of such right to purchase
or convert, as the case may be.
(b) CLASS B SHARES
(i) In case of any reclassification or redesignation of the Class B
shares (hereinafter referred to in this subsection 5(b) as the
"Shares") or change of the Shares into other shares, or in case
of the consolidation, amalgamation or merger of the Corporation
with or into any other body corporate (other than a
consolidation, amalgamation or merger which does not result in
any reclassification or redesignation of the outstanding Shares
or a change of the Shares into other shares), or in the case of
any transfer of the undertaking or assets of the Corporation as
an entirety or substantially as an entirety to another
corporation, the holder of any Class A shares who thereafter
shall exercise his right to purchase Shares pursuant to section 3
hereof shall be entitled to receive, and shall accept, in lieu of
the number of Shares to which he was theretofore entitled upon
such exercise of such right to purchase, the kind and amount of
shares which such holder would have been entitled to receive as a
result of such reclassification, redesignation, change,
consolidation, amalgamation, merger or transfer if, on the
effective date thereof, he had been the registered holder of the
number of Shares to which he was theretofore entitled upon
exercising his right to purchase. The subdivision or
consolidation of Shares at any time outstanding into a greater or
lesser number of Shares shall be deemed not to be a
reclassification of the capital of the Corporation for the
purposes of this paragraph 5(b)(i).
(ii) If and whenever the Shares shall be subdivided into a greater or
consolidated into a lesser number of Shares, any holder of Class
A shares who has not exercised his right of purchase on or prior
to the effective date of such subdivision or consolidation upon
the exercise of such right thereafter, shall be entitled to
receive, and shall accept, in lieu of the number of Shares to
which he was theretofore entitled upon such exercise of such
right to purchase (at the Class B Share Purchase Price adjusted
in
accordance with subsection 6(b) hereof) the aggregate number of
Shares that such holder would have been entitled to receive as a
result of such subdivision or consolidation as if, on such the
effective date, he had been the registered holder of the number
of Shares to which he was theretofore entitled upon such exercise
of such right to purchase.
6. ADJUSTMENT OF PURCHASE PRICE
(a) SUBORDINATE VOTING SHARES
If the Corporation shall:
(i) subdivide its outstanding subordinate voting shares (hereinafter
referred to in this paragraph 6(a) as the "Shares") into a
greater number of shares,
(ii) consolidate the outstanding Shares into a lesser number of
shares, or
(iii) issue Shares or securities exchangeable for or convertible into
Shares ("convertible securities") to the holders of all or
substantially all of the outstanding Shares by way of a dividend
or distribution of Shares or securities convertible into Shares
(other than the issue of Shares or convertible securities as
dividends paid in the ordinary course), the Subordinate Voting
Share Purchase Price shall, on the effective date of such
subdivision or consolidation or on the record date of such
dividend or other distribution, as the case may be, be adjusted
by multiplying the Subordinate Voting Share Purchase Price in
effect immediately prior to such subdivision, consolidation,
dividend or other distribution by a fraction, the numerator of
which is the number of outstanding Shares before giving effect
to such subdivision, consolidation or stock dividend and the
denominator of which is the number of outstanding Shares after
giving effect to such subdivision, consolidation, dividend or
other distribution (including in the case where convertible
securities are distributed, the number of Shares that would have
been outstanding had such securities been exchanged for or
converted into Shares on such record date). Such adjustment
shall be made successively whenever any event referred to in
this paragraph 6(a) shall occur.
(b) CLASS B SHARES
If the Corporation shall:
(i) subdivide its outstanding Class B shares (hereinafter referred
to in this paragraph 6(b) as the "Shares") into a greater number
of shares, or
(ii) consolidate the outstanding Shares into a lesser number of
shares, or
the Class B Share Purchase Price shall, on the effective date of
such subdivision or consolidation, be adjusted by multiplying
the Class B Share Purchase Price in effect immediately prior to
such subdivision or consolidation, by a fraction, the numerator
of which is the number of outstanding Shares before giving
effect to such subdivision or consolidation and the denominator
of which is the number of outstanding Shares after giving effect
to such subdivision or consolidation. Such adjustment shall be
made successively whenever any event referred to in this
paragraph 6(b) shall occur.
7. DISTRIBUTION RIGHTS OF ON LIQUIDATION
If the Corporation is liquidated, dissolved or wound-up or its assets are
otherwise distributed among the shareholders by way of repayment of
capital, whether voluntary or involuntary and subject to the rights,
privileges, and conditions attaching to any series of preference shares of
the Corporation:
(a) the holders of the subordinate voting shares shall be entitled
to share, equally share for share, in the distribution of the
remaining assets of the Corporation; and
(b) the holders of the Class A shares, the Class B shares and the
Class C shares shall not be entitled to share in the remaining
assets of the Corporation.
