EXHIBIT 10.31.1
Amendment of
Agreement Regarding Change in Control
With Mackenzie Investment Management, Inc.
THIS AGREEMENT, dated as of June 12, 2002 (the "Amendment Effective
Date"), by and between Xxx Xxxxxx (the "Executive") and Mackenzie Investment
Management, Inc. (the "Company");
WITNESSETH THAT:
WHEREAS, the Executive and the Company have entered into the Agreement
Regarding Change in Control with Mackenzie Investment Management, Inc. dated
December 18, 2000 (the "Agreement");
WHEREAS, amendment of the Agreement is now desirable;
NOW, THEREFORE, IT IS AGREED by and between the Executive and the
Company that beginning on the Effective Date (as defined in the Agreement) the
term "Company" (as defined in the Agreement) shall mean Mackenzie Investment
Management, Inc. and that the Agreement is hereby amended as of the Amendment
Effective Date in the following particulars:
1. By substituting the following for paragraph 1(b) of the Agreement,
and by adding the following new paragraph 1(c) to the Agreement:
"(b) If a Change in Control shall have occurred during the
Agreement Term (as it may be extended from time to time), the Agreement
Term shall continue for a period of twenty-four calendar months beyond
the calendar month in which such Change in Control occurs and,
following an extension in accordance with this paragraph (b), no
further extensions shall occur under paragraph 1(a). Except as
otherwise provided by paragraph (c) below, the Agreement Term shall end
on the last day of the twenty-fourth calendar month following the
calendar month in which such Change in Control occurs.
(c) If a Change in Control shall have occurred during the
Agreement Term (as is may be extended from time to time), and
thereafter, during the Agreement Term (as it has been extended in
accordance with paragraph (b) above), a Second Change in Control
shall occur, then the Agreement Term shall continue for a period of
twenty-four calendar months beyond the calendar month in which such
Second Change in Control occurs and, following an extension in
accordance with this paragraph (c), no further extensions shall occur
under paragraph 1(a), paragraph 1(b) or this paragraph 1(c). The
Agreement Term shall end on the last day of the twenty-fourth calendar
month following the calendar month in which such Second Change in
Control occurs."
2. By substituting the following for the last paragraph of paragraph 9
of the Agreement:
"For purposes of this Agreement, a "Second Change in Control" shall be
deemed to occur on the date of any of the following events with respect
to either the Company or New Parent (referred to generically as
company):
(a) the acquisition in one or more transactions by any "Person"
(as such term is used for purposes of Section 13(d) or
Section 14(d) of the Act) but excluding, for this purpose,
the Company and New Parent or their Subsidiaries, or any
employee benefit plan of New Parent or the Company or their
Subsidiaries, of "Beneficial Ownership" (within the meaning
of Rule 13d-3 under the Act) of thirty-five percent (35%) or
more of the combined voting power of the company's then
outstanding voting securities;
(b) the individuals who, as of April 1, 2002, constitute the
Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided,
however, that if the election, or nomination for election by
the company's shareholders, of any new director was approved
by a vote of at least a majority of the Incumbent Board, such
new director shall be considered as a member of the Incumbent
Board, and provided further that any reductions in the size
of the Board that are instituted voluntarily by the Incumbent
Board shall not constitute a Change of Control, and after any
such reduction the "Incumbent Board" shall mean the Board as
so reduced;
(c) a merger or consolidation involving the company if the
shareholders of the company, immediately before such merger
or consolidation, do not own, directly or indirectly,
immediately following such merger or consolidation, more than
sixty-five percent (65%) of the combined voting power of the
then outstanding voting securities of the corporation
resulting from such merger or consolidation;
(d) a complete liquidation or dissolution of the company or a
sale or other disposition of all or substantially all of the
assets of the company;
(e) acceptance by shareholders of the company of shares in a
share exchange if the shareholders of the company,
immediately before such share exchange, do not own, directly
or indirectly, immediately following such share exchange,
more than sixty-five percent (65%) of the combined voting
power of the then outstanding voting securities of the
corporation resulting from such share exchange.
For Purposes of this Agreement, a Second Change in Control shall also
be deemed to occur on the date of either of the following events:
(A) New Parent ceases to beneficially own at least 50%
of the voting power of all outstanding capital stock of the
Company.
(B) Either:
(i) substantially all of the business and assets of the
Company; or
(ii) substantially all of the business or assets of the
Company's business unit which is responsible for management and
sales of the mutual funds in the United States or substantially
all of the business or assets of the Company's business unit
which manages mutual funds sold to the Canadian marketplace by
the New Parent or a New Parent Affiliate;
are transferred to a business (or other transferee) other than New
Parent or a New Parent Affiliate.
For purposes of this Agreement the term "New Parent" shall mean Investors
Group Inc. and include any corporation, partnership, joint venture, or
other entity that succeeds to the interest of New Parent by means of a
merger, consolidation, or other restructuring. The term "New Parent
Affiliate" means the New Parent and any of its "affiliates" as that term is
defined in the Exchange Act.
Notwithstanding anything contained in this Agreement to the contrary, if
Executive's employment is terminated prior to a Second Change in Control
and Executive reasonably demonstrates that such termination was at the
request of a third party who has indicated an intention or taken steps
reasonably calculated to effect a Second Change in Control who effectuates
a Second Change in Control, then for all purposes of this Agreement, the
date of a Second Change of Control shall mean the date immediately prior to
the date of such termination of Executive employment."
IN WITNESS THEREOF, the Executive has hereunto set his hand, and the
Company has caused these presents to be executed in its name and on its behalf,
all as of the Amendment Effective Date.
Mackenzie Investment Management, Inc.
/s/ Xxxxx X. Xxxxxxx
------------------------------------
By: Xxxxx X. Xxxxxxx
Its: President & CEO
/s/ Xxx Xxxxxx
----------------------------
Executive: Xxx Xxxxxx
