EXHIBIT 37.1
Amendment of
Agreement Regarding Change in Control
With Mackenzie Investment Management, Inc.
THIS AGREEMENT, dated as of May 22, 2002 (the "Amendment Effective
Date"), by and between Xxxxxxx Xxxxxxxxx (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 15, 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 it 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:
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(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
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By: Xxxxx X. Xxxxxxx
Its: President & CEO
/s/ XXXXXXX XXXXXXXXX
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Executive: Xxxxxxx Xxxxxxxxx
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