Exhibit 4.47
AMALGAMATION AGREEMENT
THIS AMALGAMATION AGREEMENT is made as of September 1st, 2001.
BETWEEN:
GLOBAL COMMUNICATIONS LIMITED, a corporation continued
under the laws of Manitoba
("GCL")
-and-
CANWEST BROADCASTING (2001) LTD., a corporation
amalgamated under the laws of Manitoba
("CBL")
- and -
CANWEST TELEVISION INC., a corporation continued under the
laws of Manitoba
("CTI")
- and -
CANWEST PROPERTIES LIMITED, a corporation incorporated
under the laws of Manitoba
("PROPERTIES")
- and -
4434129 MANITOBA LTD., FORMERLY 3649091 CANADA LTD., a
corporation continued under the laws of Manitoba
("CJNT CO.")
RECITALS:
WHEREAS GCL, CBL, CTI, Properties and CJNT Co. have agreed to
amalgamate and continue as one corporation under the name Global Communications
Limited pursuant to The Corporations Act (Manitoba) and upon and subject to the
terms and conditions set forth in this agreement;
AND WHEREAS the authorized capital of GCL consists of an
unlimited number of Class A common shares, an unlimited number of Class B common
shares, an unlimited number of Class C common shares, an unlimited number of
Class A preferred shares, an unlimited number of Class B preferred shares, an
unlimited number of Class C preferred shares and an unlimited number of Class D
preferred shares of which 892,804 Class A common shares, 173,901 Class B common
shares, 100 Class C common shares, 1 Class A preferred share and 1 Class B
preferred share are issued and outstanding.
AND WHEREAS the authorized capital of CBL consists of 100,000
Common Shares and 900,000 Preferred Shares of which 52,477 Common Shares are
issued and outstanding;
AND WHEREAS the authorized capital of CTI consists of an
unlimited number of Class A Common shares, an unlimited number of Class B Common
shares, an unlimited number of Class A Preference shares and an unlimited number
of Class B Preference shares of which one hundred (100) Class B Common shares
and 36,793,544 Class A Preference shares are issued and outstanding;
AND WHEREAS the authorized capital of Properties consists of
an unlimited number of Class A Common shares, an unlimited number of Class B
Common shares, an unlimited number of Class A Preference shares, an unlimited
number of Class B Preference shares, an unlimited number of Class C Preference
shares, an unlimited number of Class D
Preference shares, an unlimited number of Class E Preference shares and an
unlimited number of Class F Preference shares of which 1 Class A Common share,
92,000 Class A Preference shares, 1,322,833 Class E Preference shares and
1,340,000 Class F Preference shares are issued and outstanding;
AND WHEREAS the authorized capital of CJNT Co. consists of an
unlimited number of Class A common shares, an unlimited number of Class B common
shares, an unlimited number of Class C common shares, an unlimited number of
Class D common shares, an unlimited number of Class A preference shares, an
unlimited number of Class B preference shares, an unlimited number of Class C
preference shares, an unlimited number of Class D preference shares, an
unlimited number of Class E preference shares and an unlimited number of Class F
preference shares of which one hundred (100) Class A common shares are issued
and outstanding;
AND WHEREAS upon the Amalgamation the issued and outstanding
shares of each of CTI, CBL, Properties and CJNT Co. will be cancelled;
AND WHEREAS upon the Amalgamation:
(a) each issued Class A common share of GCL will be converted into
one issued and outstanding Class A common share of the
Amalgamated Corporation;
(b) each issued Class B common share of GCL will be converted into
one issued and outstanding Class B common share of the
Amalgamated Corporation;
(c) each issued Class C common share of GCL will be converted into
one issued and outstanding Class C common share of the
Amalgamated Corporation;
(d) each issued Class A preferred share of GCL will be converted
into one Class A preferred share of the Amalgamated
Corporation; and
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(e) each issued Class B preferred share of GCL will be converted
into one Class B preferred share of the Amalgamated
Corporation.
AND WHEREAS it is desirable that the Amalgamation should be
effected;
NOW THEREFORE in consideration of the mutual covenants and
agreements contained in this Agreement and other good and valuable consideration
(the receipt and sufficiency of which are acknowledged) the parties agree as
follows:
1. INTERPRETATION
In this Agreement, the terms set out below shall have the
meanings set out below unless the context otherwise requires:
1.1. "ACT" means The Corporations Act (Manitoba);
1.2. "AGREEMENT" means this amalgamation agreement and all schedules
attached to this agreement;
1.3. "AMALGAMATED CORPORATION" means the corporation continuing from the
amalgamation of the Amalgamating Corporations;
1.4. "AMALGAMATING CORPORATIONS" means GCL, CTI, CBL, Properties and CJNT
Co. and "Amalgamating Corporation" means any one of them;
1.5. "AMALGAMATION" means the amalgamation of the Amalgamating Corporations
as contemplated in this Agreement;
1.6. "EFFECTIVE DATE" means the date when the Amalgamation becomes effective
as set forth in the certificate of amalgamation issued pursuant to the
Act in respect of the Amalgamation and determined in accordance with
section 2 of this Agreement;
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Words and phrases used but not defined in this Agreement and
defined in the Act shall have the same meaning in this Agreement as in the Act
unless the context or subject matter otherwise requires.
2. AMALGAMATION
(a) Subject to this section 2, the Amalgamating Corporations
do hereby agree to amalgamate pursuant to section 177 of the
Act at and as of the Effective Date and to continue as one
corporation under the Act and under the terms and conditions
set out in this Agreement.
(b) The Effective Date shall be on the 1st day of September, 2001.
3. NAME
The name of the Amalgamated Corporation will be Global
Communications Limited.
4. REGISTERED OFFICE
The registered office of the Amalgamated Corporation will be
in the City of Winnipeg, in the Province of Manitoba and shall be located
therein at the 00xx Xxxxx, XX Xxxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx X0X
0X0.
5. AUTHORIZED CAPITAL
The Amalgamated Corporation is authorized to issue an
unlimited number of Class A common shares, an unlimited number of Class B common
shares, an unlimited number of Class C common shares, an unlimited number of
Class A preferred shares, an unlimited number of Class B preferred shares, an
unlimited number of Class C preferred shares and an unlimited number of Class D
preferred shares.
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The rights, privileges, restrictions and conditions attaching
to such classes of shares are set out in Schedule A to this Agreement.
6. BUSINESS
There will be no restrictions on the business which the
Amalgamated Corporation may carry on or on the powers it may exercise.
7. PRIVATE COMPANY RESTRICTIONS
(a) The right to transfer shares of the Amalgamated Corporation
shall be restricted in that no share in the capital of the
Amalgamated Corporation shall be transferred without the
consent of the directors expressed by the votes of a majority
of the directors at a meeting of directors or by an instrument
or instruments in writing signed by a majority of the
directors.
(b) The number of shareholders of the Amalgamated Corporation,
shall be limited to fifty (50), not including persons who are
in its employment and exclusive of persons who, having been
formerly in the employment of the Amalgamated Corporation,
were, while in that employment, and have continued after the
termination of that employment to be shareholders of the
Amalgamated Corporation, two or more persons holding one (1)
or more shares being counted as a single shareholder.
(c) Any invitation to the public to subscribe for securities of
the Amalgamated Corporation is prohibited.
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8. NUMBER OF DIRECTORS
(a) The board of directors of the Amalgamated Corporation will,
until otherwise changed in accordance with the Act, consist of
a minimum number of one and a maximum number of ten directors.
(b) The number of directors of the Amalgamated Corporation will
initially be four (4) and the actual number of directors of
the Amalgamated Corporation within the minimum and maximum
number may be determined from time to time by resolution of
the directors. Any vacancy among the directors resulting from
an increase in the number of directors as so determined may be
filled by resolution of the directors.
9. FIRST DIRECTORS
The first directors of the Amalgamated Corporation will
be the persons whose names and municipalities of residence are identified in
Schedule B to this Agreement. Such directors will hold office until the next
annual meeting of shareholders of the Amalgamated Corporation or until their
successors are elected or appointed.
10. BY-LAWS
The by-laws of the Amalgamated Corporation, until
repealed, amended or altered, will be the by-laws of GCL.
11. AMALGAMATION
On the Effective Date:
11.1. each issued and outstanding share of CBL will be cancelled;
11.2. each issued and outstanding share of CTI will be cancelled;
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11.3. each issued and outstanding share of Properties will be
cancelled;
11.4. each issued and outstanding share of CJNT Co. will be
cancelled;
11.5. each issued and outstanding Class A common share of GCL will
be converted into one issued and outstanding Class A common
share of the Amalgamated Corporation;
11.6. each issued and outstanding Class B common share of GCL will
be converted into one issued and outstanding Class B common
share of the Amalgamated Corporation;
11.7. each issued and outstanding Class C common share of GCL will
be converted into one issued and outstanding Class C common
share of the Amalgamated Corporation;
11.8. each issued and outstanding Class A preferred share of GCL
will be converted into one issued and outstanding Class A
preferred share of the Amalgamated Corporation; and
11.9. each issued and outstanding Class B preferred share of GCL
will be converted into one issued and outstanding Class B
preferred share of the Amalgamated Corporation.
12. STATED CAPITAL
The stated capital attributable to each class of shares of
the Amalgamated Corporation issued pursuant to Section 11 on the conversion of
shares of the Amalgamating Corporations shall be the aggregate of the stated
capital attributable to the shares so converted into that class.
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13. TERMINATION
At any time prior to the Effective Date, this Agreement
may be terminated by the board of directors of each Amalgamating Corporation,
notwithstanding the approval of this Agreement by the shareholders of the
Amalgamating Corporations.
14. FILING OF DOCUMENTS
Subject to section 13, the Amalgamating Corporations will
jointly file with the Director under the Act articles of amalgamation and any
other documents required to be filed under the Act in order to effect the
Amalgamation.
15. GOVERNING LAW
This Agreement will be governed by and construed in
accordance with the laws of the Province of Manitoba and the federal laws of
Canada applicable therein.
16. FURTHER ASSURANCES
Each of the parties to this Agreement agrees to execute and
deliver such further instruments and to do such further reasonable acts and
things as may be necessary or appropriate to carry out the intent of this
Agreement.
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17. COUNTERPARTS
This Agreement may be signed in counterparts and each
counterpart will constitute an original document and the counterparts, taken
together, will constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement.
GLOBAL COMMUNICATIONS LIMITED
by: /S/ P. A. XXXXXX
----------------
CANWEST BROADCASTING (2001) LTD.
by: /S/ P. A. XXXXXX
----------------
CANWEST TELEVISION INC.
by: /S/ P. A. XXXXXX
----------------
CANWEST PROPERTIES LIMITED
by: /S/ P. A. XXXXXX
----------------
4434129 MANITOBA LTD. (FORMERLY 3649091 CANADA LTD.)
by: /S/ P. A. XXXXXX
----------------
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SCHEDULE A
The Class A common shares, the Class B common shares, the
Class C common shares, the Class A preferred shares, the Class B preferred
shares, the Class C preferred shares and the Class D preferred shares shall have
attached thereto the rights, privileges, restrictions and conditions hereinafter
set forth:
ARTICLE 1. - CLASS A COMMON SHARES
1.1. VOTING RIGHTS - The holders of the Class A common shares (1) shall
have full voting rights for the election of directors and for all other purposes
whatsoever, (2) shall have one such vote for each Class A common share held and
(3) shall be entitled to be given or to receive notice of and to attend all
meetings of the shareholders of the Corporation.
1.2. DIVIDEND RIGHTS - The holders of the Class A common shares shall be
entitled to receive dividends if, as and when declared by the board of directors
of the Corporation out of the assets of the Corporation properly applicable to
the payment of dividends in such amounts and payable in such manner as the board
of directors may from time to time determine. Subject to the rights of the
holders of any other class of shares of the Corporation entitled to receive
dividends in priority to or rateably with the holders of the Class A common
shares, the board of directors may in their sole discretion declare dividends on
the Class A common shares to the exclusion of any other class of shares of the
Corporation.
1.3. PARTICIPATION UPON LIQUIDATION, DISSOLUTION OR WINDING-UP - In the
event of the liquidation, dissolution or winding-up of the Corporation or other
distribution of assets of the Corporation among its shareholders for the purpose
of winding-up its affairs, the holders of the Class A common shares shall,
subject to the rights of the holders of any other class of shares of the
Corporation entitled to receive the assets of the Corporation upon such a
distribution in
priority to or rateable with the holders of the Class A common shares, be
entitled to participate rateably with the. holders of the Class B common shares
and the Class C common shares in any distribution of the assets of the
Corporation.
ARTICLE 2. - CLASS B COMMON SHARES
2.1. VOTING RIGHTS - The holders of the Class B common shares, as
such, shall not be entitled to receive notice of or to attend or vote at any
meeting or meetings of the shareholders of the corporation.
2.2. DIVIDEND RIGHTS - The holders of the Class B common shares shall be
entitled to receive dividends if, as and when declared by the board of directors
of the Corporation out of the assets of the Corporation properly applicable to
the payment of dividends in such amounts and payable in such manner as the board
of directors may from time to time determine. Subject to the rights of the
holders of any other class of shares of the Corporation entitled to receive
dividends in priority to or rateably with the holders of the Class B common
shares, the board of directors may in their sole discretion declare dividends on
the Class B common shares to the exclusion of any other class of shares of the
Corporation.
2.3. PARTICIPATION UPON LIQUIDATION, DISSOLUTION OR WINDING-UP - In the
event of the liquidation, dissolution or winding-up of the Corporation or other
distribution of assets of the Corporation among its shareholders for the purpose
of winding-up its affairs, the holders of the Class B common shares shall,
subject to the rights of the holders of any other class of shares of the
Corporation entitled to receive the assets of the Corporation upon such a
distribution in priority to or rateably with the holders of the Class B common
shares, be entitled to participate rateably with the holders of the Class A
common shares and the Class C common shares in any distribution of the assets of
the Corporation.
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ARTICLE 3. - CLASS C COMMON SHARES
3.1. VOTING RIGHTS - The holders of the Class C common shares (1) shall
have full voting rights for the election of directors and for all other purposes
whatsoever, (2) shall have two such votes for each Class C common share held;
and (3) shall be entitled to be given or to receive notice of and to attend all
meetings of the shareholders of the Corporation.
3.2. DIVIDEND RIGHTS - The holders of the Class C common shares shall be
entitled to receive dividends if, as and when declared by the board of directors
of the Corporation out of the assets of the Corporation properly applicable to
the payment of dividends in such amounts and payable in such manner as the board
of directors may from time to time determine. Subject to the rights of the
holders of any other class of shares of the Corporation entitled to receive
dividends in priority to or rateably with the holders of the Class C common
shares, the board of directors may in their sole discretion declare dividends on
the Class C common shares to the exclusion of any other class of shares of the
Corporation.
3.3. PARTICIPATION UPON LIQUIDATION, DISSOLUTION OR WINDING-UP - In the
event of the liquidation, dissolution or winding-up of the Corporation or other
distribution of assets of the Corporation among its shareholders for the purpose
of winding-up its affairs, the holders of the Class C common shares shall,
subject, to the rights of the holders of any other class of shares of the
Corporation entitled to receive the assets of the Corporation upon such a
distribution in priority to or rateably with the holders of the Class C common
shares, be entitled to participate rateably with the holders of the Class A
common shares and the Class B common shares in any distribution of the assets of
the Corporation.
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ARTICLE 4. - CLASS A PREFERRED SHARES
4.1. VOTING RIGHTS - The holders of the Class A preferred shares, as
such, shall not be entitled to receive notice of or to attend or vote at any
meeting or meetings of the shareholders of the Corporation.
4.2. DIVIDEND RIGHTS - The holders of the Class A preferred shares shall
be entitled to receive dividends if, as and when declared by the board of
directors of the Corporation out of the assets of the Corporation properly
applicable to the payment of dividends in such amounts and payable in such
manner as the board of directors may from time to time determine. Subject to the
rights of the holders of any other class of shares of the Corporation entitled
to receive dividends in priority to or rateably with the holders of the Class A
preferred shares, the board of directors may in their sole discretion declare
dividends on the Class A preferred shares to the exclusion of any other class of
shares of the Corporation.
4.3. PARTICIPATION UPON LIQUIDATION, DISSOLUTION OR WINDING-UP - In the
event of the liquidation, dissolution or winding-up of the Corporation or other
distribution of assets of the Corporation among its shareholders for the purpose
of winding-up its affairs, the holders of the Class A preferred shares shall be
entitled to receive from the assets of the Corporation a sum equivalent to the
aggregate Redemption Amount (as hereinafter defined) of all Class A preferred
shares held by them respectively before any amount shall be paid or any assets
of the Corporation distributed to the holders of any Class A common shares,
Class B common shares, Class C common shares or Class B preferred shares or
shares of any other class ranking junior to the Class A preferred shares. After
payment to the holders of the Class A preferred shares of the amount so payable
to them as above provided they shall not be entitled to share in any further
distribution of the assets of the Corporation.
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4.4. REDEMPTION AT OPTION OF HOLDER - A holder of Class A preferred
shares shall be entitled to require the Corporation to redeem, subject to the
requirements of The Corporations Act (Manitoba) as now enacted or as the same
may from time to time be amended, re-enacted or replaced, at anytime or times
all or any of the Class A preferred shares held by such holder by tendering to
the Corporation at its registered office a share certificate or certificates
representing the Class A preferred shares which the holder desires to have the
Corporation redeem together with a request in writing specifying (i) that the
holder desires to have the Class A preferred shares represented by such
certificate or certificates redeemed by the Corporation and, if only part of the
shares represented by such certificate or certificates is to be redeemed, the
number thereof so to be redeemed and (ii) the business day (herein referred to
in this Article 4 as the "Redemption Date") on which the holder desires to have
the Corporation redeem such Class A preferred shares. The Redemption Date shall
be not less than 30 days (or such shorter period to which the Corporation may
consent) after the day on which the request in writing is given to the
Corporation. Upon receipt of a share certificate or certificates representing
the Class A preferred shares which the holder desires to have the Corporation
redeem together with such a request the Corporation shall on the Redemption Date
redeem such Class A preferred shares by paying to such holder the Redemption
Amount (as hereinafter defined) for each such Class A preferred share being
redeemed. Such payment shall be made by cheque payable at par at any branch of
the Corporation's bankers for the time being in Canada (or, with the consent of
the holder, by any other means of immediately available funds or, with the
consent of the holder, by the issuance to the holder of a promissory note of the
Corporation payable upon demand without interest or, if all of the holders of
the Class A preferred shares consent, by the distribution of assets of the
Corporation or by any other means). If a part only of the shares represented by
any
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certificate are redeemed a new certificate for the balance shall be issued at
the expense of the Corporation. The said Class A preferred shares shall be
redeemed on the Redemption Date and from and after the Redemption Date the
holder of such shares shall cease to be entitled to dividends and shall not be
exercise any of the rights of a holder of Class A preferred shares in respect
thereof unless payment of the Redemption Amount is not made on the Redemption
Date, in which event the rights of the holder of the said Class A preferred
shares shall remain unaffected.
4.5. REDEMPTION BY CORPORATION - 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 A preferred shares on payment of an amount
for each share to be redeemed equal to the quotient of the fair market value of
such consideration, including any transfer of assets to the Corporation, as is
received by the Corporation for the issuance of the Class A preferred shares
divided by the number of Class A preferred shares so issued, such quotient being
herein referred to in this Article 4 as the "Redemption Price", plus all
declared and unpaid dividends thereon, the whole constituting and being herein
referred to in this Article 4 as the "Redemption Amount". Such fair market value
shall be determined by the board of directors of the Corporation in accordance
with generally accepted valuation principles.
4.6. IDEM - In the case of redemption of Class A preferred shares under
the provisions of clause 4.5 hereof, the Corporation shall at least 21 days (or,
if all of the holders of the Class A preferred shares consent, such shorter
period to which they may consent) before the date specified for redemption mail
(or, with the consent of any particular holder, otherwise deliver) to each
person who at the date of mailing (or delivery, as the case may be) is a holder
of Class A preferred shares to be redeemed a notice in writing of the intention
of the Corporation to redeem
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such Class A preferred shares. Such notice shall (subject to the consent of any
particular holder referred to above) be mailed by letter, postage prepaid,
addressed to each such holder at his address as it appears on the records of the
Corporation or in the event of the address of any such holder not so appearing
then to the last known address of such holder, provided, however, that
accidental failure to give any such notice to one or more of such holders shall
not affect the validity of such redemption. Such notice shall set out the
Redemption Amount and the date on which redemption is to take place and if part
only of the shares held by the person 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 holders of the Class A preferred shares to be redeemed the Redemption Amount
thereof on presentation and surrender at the registered office of the
Corporation or any other place designated in such notice of the certificates
representing the Class A preferred shares called for redemption. Such payment
shall be made by certified cheque payable at par at any branch of the
Corporation's bankers in Canada (or, with the consent of any particular holder,
by any other means of immediately available funds or, with the consent of any
particular holder, by the issuance to such holder of a promissory note of the
Corporation payable upon demand without interest or, if all of the holders of
the Class A preferred shares consent, by the distribution of assets of the
Corporation or by any other means). If a part only of the shares represented by
any certificate are 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 holders of the Class A preferred shares called
for redemption shall cease to be entitled to dividends and shall not be entitled
to exercise any of the rights of holders of Class A preferred shares in respect
thereof unless payment of the Redemption Amount is not made upon presentation of
certificates
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in accordance with the foregoing provisions, in which case the rights of the
holders of the said Class A preferred shares shall remain unaffected. The
Corporation shall have the right at any time after the mailing (or delivery, as
the case may be) of notice of its intention to redeem any Class A preferred
shares to deposit the Redemption Amount 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 in 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 A preferred 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
A preferred shares in respect whereof such deposit shall have been made shall be
redeemed and the rights of the holders thereof after such deposit or such
redemption date, as the case may be, shall be limited to receiving, subject as
hereinafter provided, without interest their proportionate part of the total
Redemption Amount so deposited against presentation and surrender of the said
certificates held by them respectively and any interest allowed on such deposit
shall belong to the Corporation.
4.7. IDEM - If any taxing authority having jurisdiction alleges that
the Redemption Price per Class A preferred share is not the amount as determined
by the board of directors of the Corporation pursuant to the provisions of
clause 4.5 or proposes to make an assessment of tax on the basis that any gift
benefit or advantage is or has been conferred on any person by reason of the
issue of or of the redemption or purchase for cancellation or otherwise of any
Class A preferred share, the board of directors of the Corporation, after
consultation with such taxing authority, may adjust the Redemption Price per
Class A preferred share to such other amount as
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may be determined by the board of directors of the Corporation after such
consultation and thereafter the Redemption Price per Class A preferred share
shall mean the amount as determined by the board of directors of the Corporation
after such consultation.
4.8. IDEM - In the event that the Redemption Price per Class A preferred
share is increased pursuant to clause 4.7 hereof following a redemption or
purchase for cancellation or otherwise of a Class A preferred share, the
Corporation shall pay to each holder of Class A preferred shares whose shares
were redeemed or purchased for cancellation or otherwise, by way of an increase
in the Redemption Price of such Class A preferred shares, an amount equal to the
product of the increase per Class A preferred share determined pursuant to
clause 4.7 hereof multiplied by the number of shares of such holder so redeemed
or purchased for cancellation or otherwise and an amount equal to 8% per annum
of such increase, compounded annually, computed from the date of the redemption
or purchase for cancellation or otherwise up to and including the date of such
payment by the Corporation.
4.9. IDEM - In the event that the Redemption Price per Class A preferred
share is decreased pursuant to clause 4.7 hereof following a redemption or
purchase for cancellation or otherwise of a Class A preferred share, each person
whose Class A preferred share was redeemed or purchased for cancellation or
otherwise shall be liable to pay to the Corporation, by way of a reduction of
the Redemption Price of such Class A preferred shares, an amount equal to the
product of the decrease per Class A preferred share determined pursuant to
clause 4.7 hereof multiplied by the number of shares of such holder so redeemed
or purchased for cancellation or otherwise and an amount equal to 8% per annum
of such decrease, compounded annually computed from the date of the redemption
or purchase for cancellation or otherwise up to and including the date of such
payment by each such person.
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ARTICLE 5. - CLASS B PREFERRED SHARES
5.1. VOTING RIGHTS -The holders of the Class B preferred shares, as
such, shall not be entitled to receive notice of or to attend or vote at any
meeting or meetings or the shareholders of the Corporation.
5.2. DIVIDEND RIGHTS - The holders of the Class B preferred shares shall
be entitled to receive dividends if, as and when declared by the board of
directors of the Corporation out of the assets of the Corporation properly
applicable to the payment of dividends in such amounts and payable in such
manner as the board of directors may from time to time determine. Subject to the
rights of the holders of any other class of shares of the Corporation entitled
to receive dividends in priority to or rateably with the holders of the Class B
preferred shares, the board of directors may in their sole discretion declare
dividends on the Class B preferred shares to the exclusion of any other class of
shares of the Corporation.
5.3. PARTICIPATION UPON LIQUIDATION, DISSOLUTION OR WINDING-UP - In the
event of the liquidation, dissolution or winding-up of the Corporation or other
distribution of assets of the Corporation among its shareholders for the purpose
of winding-up its affairs, the holders of the Class B preferred shares shall be
entitled to receive from the assets of the Corporation a sum equivalent to the
aggregate Redemption Amount (as hereinafter defined) of all Class B preferred
shares held by them respectively before any amount shall be paid or any assets
of the Corporation distributed to the holders of any Class A common shares,
Class B common shares, Class C common shares or shares of any other class
ranking junior to the Class B preferred shares. After payment to the holders of
the Class B preferred shares of the amount so payable to them as above provided
they shall not be entitled to share in any further distribution of the assets of
the Corporation.
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5.4. REDEMPTION AT OPTION OF HOLDER - A holder of Class B preferred
shares shall be entitled to require the Corporation to redeem, subject to the
requirements of The Corporations Act (Manitoba) as now enacted or as the same
may from time to time be amended, re-enacted or replaced, at any time or times
all or any of the Class B preferred shares held by such holder by tendering to
the Corporation at its registered office a share certificate or certificates
representing the Class B preferred shares which the holder desires to have the
Corporation redeem together with a request in writing specifying (i) that the
holder desires to have the Class B preferred shares represented by such
certificate or certificates redeemed by the Corporation, if part only of the
shares represented by such certificate or certificates is to be redeemed, the
number thereof so to be redeemed and (ii) the business day (herein referred to
in this Article 5 as the "Redemption Date") on which the holder desires to have
the Corporation redeem such Class B preferred shares. The Redemption Date shall
be not less than 30 days (or such shorter period to which the Corporation may
consent) after the day on which the request in writing is given to the
Corporation. Upon receipt of a share certificate or certificates representing
the Class B preferred shares which the holder desires to have the Corporation
redeem together with such a request the Corporation shall on the Redemption Date
redeem such Class B preferred shares by paying to such holder the Redemption
Amount (as hereinafter defined) for each such Class B preferred share being
redeemed. Such payment shall be made by cheque payable at par at any branch of
the Corporation's bankers for the time being in Canada (or, with the consent of
the holder, by any other means of immediately available funds or, with the
consent of the holder, by the issuance to the holder of a promissory note of the
Corporation payable upon demand without interest or, if all of the holders of
the Class B preferred shares consent, by the distribution of assets of the
Corporation or by any other means). If a part only of the shares represented by
any
21
certificate are redeemed a new certificate for the balance shall be issued at
the expense of the Corporation. The said Class B preferred shares shall be
redeemed on the Redemption Date and from and after the Redemption Date the
holder of such shares shall cease to be entitled to dividends and shall not be
entitled to exercise any of the rights of a holder of Class B preferred shares
in respect thereof unless payment of the Redemption Amount is not made on the
Redemption Date, in which event the rights of the holder of the said Class B
preferred shares shall remain unaffected.
5.5. REDEMPTION BY CORPORATION - 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 B preferred shares on payment of an amount
for each share to be redeemed equal to the quotient of the fair market value of
such consideration, including any transfer of assets to the Corporation, as is
received by the Corporation for the issuance of the Class B preferred shares
divided by the number of Class B preferred shares so issued, such quotient being
herein referred to in this Article 5 as the "Redemption Price", plus all
declared and unpaid dividends thereon, the whole constituting and being herein
referred to in this Article 5 as the "Redemption Amount". Such fair market value
shall be determined by the board of directors of the Corporation in accordance
with generally accepted valuation principles.
5.6. IDEM - In the case of redemption of Class B preferred shares under
the provisions of clause 5.5 hereof, the Corporation shall at least 21 days (or,
if all of the holders of the Class B preferred shares consent, such shorter
period to which they may consent) before the date specified for redemption mail
(or with the consent of any particular holder, otherwise deliver) to each person
who at the date of mailing (or delivery, as the case may be) is a holder of
Class B preferred shares to be redeemed a notice in writing of the intention of
the Corporation to redeem
22
such Class B preferred shares. Such notice shall (subject to the consent of any
particular holder referred to above) be mailed by letter, postage prepaid,
addressed to each such holder at his address as it appears on the records of the
Corporation or in the event of the address of any such holder not so appearing
then to the last known address of such holder; provided, however, that accident
failure to give any such notice to one or more of such holders shall not affect
the validity of such redemption. Such notice shall set out the Redemption Amount
and the date on which redemption is to take place and if part only of the shares
held by the person 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 holders of
the Class B preferred shares to be redeemed the Redemption Amount thereof on
presentation and surrender at the registered office of Corporation or any other
place designated in such notice of the certificates representing the Class B
preferred shares called for redemption. Such payment shall be made by certified
cheque payable at par at any branch of the Corporation's bankers in Canada (or,
with the consent of any particular holder, by any other means of immediately
available funds or, with the consent of any particular holder, by the issuance
to such holder of a promissory note of the Corporation payable upon demand
without interest or, if all of the holders of the Class B preferred shares
consent, by the distribution of assets of the Corporation or by any other
means). If a part only of the shares represented by any certificate are 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 holders of the Class B preferred shares called for redemption shall cease to
be entitled to dividends and shall not be entitled to exercise any of the rights
of holders of Class B preferred shares in respect thereof unless payment of the
Redemption Amount is not made upon presentation of certificates
23
in accordance with the foregoing provisions, in which case the rights of the
holders of the said Class B preferred shares shall remain unaffected. The
Corporation shall have the right at any time after the mailing (or delivery, as
the case may be) of notice of its intention to redeem any Class B preferred
shares to deposit the Redemption Amount 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 in 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 B preferred 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
B preferred shares in respect whereof such deposit shall have been made shall be
redeemed and the rights of the holders thereof after such deposit or such
redemption date, as the case may be, shall be limited to receiving, subject as
hereinafter provided, without interest their proportionate part of the total
Redemption Amount so deposited against presentation and surrender of the said
certificates held by them respectively and any interest allowed on such deposit
shall belong to the Corporation.
5.7. IDEM - If any taxing authority having jurisdiction alleges that the
Redemption Price per Class B preferred share is not the amount as determined by
the board of directors of the Corporation pursuant to the provision of clause
5.5 or proposes to make an assessment of tax on the basis that any gift, benefit
or advantage is or has been conferred on any person by reason of the issue of or
of the redemption or purchase for cancellation or otherwise of any Class B
preferred share, the board of directors of the Corporation, after consultation
with such taxing authority, may adjust the Redemption Price per Class B
preferred share to such other amount as
24
may be determined by the board of directors of the Corporation after such
consultation and thereafter the Redemption Price per Class B preferred share
shall mean the amount as determined by the board of directors of the Corporation
after such consultation.
5.8. IDEM - In the event that the Redemption Price per Class B preferred
share is increased pursuant to clause 5.7 hereof following a redemption or
purchase for cancellation or otherwise of a Class B preferred share, the
Corporation shall pay to each holder of Class B preferred shares whose shares
were redeemed or purchased for cancellation or otherwise, by way of an increase
in the Redemption Price of such Class B preferred shares, an amount equal to the
product of the increase per Class B preferred share determined pursuant to
clause 5.7 hereof multiplied by the number of shares of such a holder so
redeemed or purchased for cancellation or otherwise and an amount equal to 8%
per annum of such increase, compounded annually, computed from the date of the
redemption or purchase for cancellation or otherwise up to and including the
date of such payment by the Corporation.
5.9. IDEM - In the event that the Redemption Price per Class B preferred
share is decreased pursuant to clause 5.7 hereof following a redemption or
purchase for cancellation or otherwise of a Class B preferred share, each person
whose Class B preferred share was redeemed or purchased for cancellation or
otherwise shall be liable to pay to the Corporation, by way of a reduction of
the Redemption Price of such Class B preferred shares, an amount equal to the
product of the decrease per Class B preferred share determined pursuant to
clause 5.7 hereof multiplied by the number of shares of such holder so redeemed
or purchased for cancellation or otherwise and an amount equal to 8% per annum
of such decrease, compounded annually, computed from the date of the redemption
or purchase for cancellation or otherwise up to and including the date of such
payment by such person.
25
ARTICLE 6. - CLASS C PREFERRED SHARES
6.1. VOTING RIGHTS - The holders of the Class C preferred shares, as
such, shall not be entitled to receive notice of or to attend or vote at any
meeting or meetings of the shareholders of the Corporation.
6.2. DIVIDEND RIGHTS - The holders of Class C preferred shares shall be
entitled to receive, in respect of each fiscal year of the Corporation, out of
the assets of the Corporation properly applicable to the payment of dividends,
only if as and when declared by, and in the discretion of, the directors of the
Corporation, non-cumulative dividends in an amount or amounts determined by, and
in the discretion of, the directors but not to exceed for any fiscal year, in
the aggregate, ten percent (10%) of the Class C Preferred Amount per Share (as
defined in clause 6.6 hereof) for each such Class C preferred share held. If
within four months after the expiration of any fiscal year of the Corporation,
the directors of the Corporation shall not have declared the said maximum
permitted non-cumulative dividends in respect of that fiscal year on the Class C
preferred shares, then the right of the holders thereof to such dividends or to
any undeclared part thereof in respect of any such fiscal year shall be forever
extinguished. The holders of the Class C preferred shares shall not be entitled
to any dividends in respect thereof other than or in excess of the dividends
provided for in this clause 6.2, and, subject to clause 6.3 hereof, shall not
otherwise be entitled to share in the profits or assets of the Corporation.
6.3. RETURN OF CAPITAL - Upon the liquidation, dissolution or winding-up of
the Corporation, whether voluntary or otherwise, or other distribution of the
assets of the Corporation or repayment of capital to its shareholders for the
purpose of winding-up its affair (the liquidation, dissolution or winding-up of
the Corporation, whether voluntary or otherwise, or other distribution of the
assets of the Corporation or repayment of capital to its shareholders for the
26
purpose of winding-up its affairs, for purposes of this clause 6.3, hereinafter
collectively referred to as the "Winding-Up of the Corporation") the holders of
the Class C preferred shares shall be entitled to receive, in priority to the
holders of the Class A common shares, the Class B common shares and the Class C
common shares, subordinate to the holders of the Class A preferred shares and
the Class B preferred shares but rateably with the holders of the Class D
preferred shares, an amount out of the property and assets of the Corporation
equal to the Class C Preferred Amount per share for each such Class C preferred
share held, together with all declared but unpaid dividends thereon. After
payment to the holders of the Class C preferred shares of the Class C Preferred
Amount per Share together with all declared but unpaid dividends thereon as
aforesaid, the holders of the Class C preferred shares shall have no right or
claim to any of the remaining property and assets of the Corporation. If the
property and assets distributable on such Winding-Up of the Corporation shall,
after distribution has been made to the holders of the Class A preferred shares
and the Class B preferred shares of the amounts distributable to each,
respectively, be insufficient to permit the payment to the holders of all of the
Class C preferred shares of the full amount payable to them upon such Winding-Up
of the Corporation, then the remaining property and assets, or the proceeds
thereof, shall be distributed among the holders of the Class C preferred shares,
rateably with the holders of the Class D preferred shares, in the proportion to
the respective amounts the holders of the Class C preferred shares and the Class
D preferred shares would be entitled to receive upon such Winding-Up of the
Corporation. For greater certainty, it is hereby declared that upon the
Winding-Up of the Corporation, the holders of the Class C preferred shares then
outstanding shall be entitled to receive the Class C Preferred Amount per share
together with all declared but unpaid dividends thereon in full before any
27
payment or distribution of assets shall be made to the holders of the Class A
common shares, the Class B common shares or the Class C common shares.
6.4. RETRACTION PRIVILEGE - Any holder of Class C preferred shares be
entitled to require the Corporation to redeem, subject to the provision of The
Corporations Act (Manitoba) existing from time to time, at anytime or from time
to time all or any part of the Class C preferred shares registered in the name
of such holder on the books of the Corporation, by tendering to the Corporation,
at its registered office, the share certificate or certificates representing the
Class C preferred shares which the registered holder thereof desires to have the
Corporation redeem (in this Article 6, the "Retracted Shares"), together with a
request in writing (in this Article 6, the "Holder's Request") specifying (1)
that the registered holder desires to have the Retracted Shares (whether
represented by all or a portion of the share certificate or certificates so
tendered) redeemed by the Corporation and (2) the business day (in this Article
6, the "Retraction Date") on which such holder desires to have the Corporation
redeem the Retracted Shares. Upon the receipt of a share certificate or
certificates representing the Retracted Shares together with the Holder's
Request, on the Retraction Date the Corporation shall redeem the Retracted
Shares by paying the registered holder thereof, in the manner herein provided
for, the Class C Preferred Amount per share for each such share to be redeemed
together with all declared but unpaid dividends thereon to and including the
Retraction Date (in this Article 6, collectively, the "Retraction Price").
Payment of the Retraction Price may be made by cheque payable at par at any
branch of the Corporation's banker for the time being in Canada or, with the
consent of the registered holder thereof, the Corporation may deliver a note
evidencing the obligation of the Corporation to the registered holder in the
amount of the Retraction Price payable on demand with interest after demand only
at a variable rate of interest equal to the Prime Rate (as
28
hereinafter defined) plus 2% per annum (in this Article 6, the "Demand Interest
Rate") or, with the consent of the registered holder thereof by any other means.
The term "Prime Rate" as used in this Article 6 means the variable rate of
interest expressed as a percentage per annum determined, announced and adjusted
by The Bank of Nova Scotia from time to time as a reference rate for commercial
loans made in Canada in Canadian dollars. The Retracted Shares shall be redeemed
on the Retraction Date, and from and after the Retraction Date such shares shall
cease to be entitled to exercise any of the rights of holders of Class C
preferred shares in respect thereof unless payment of the Retraction Price, in
the manner herein provided for, is not made on the Retraction Date. In the event
that the Corporation shall not have made payment of the Retraction Price, in the
manner herein provided for, on or before the Redemption Date, the holder of the
Retracted Shares shall have the option to rescind the redemption, in which event
the rights of the holder of the Retracted Shares shall remain unaffected, or to
otherwise require the Corporation to redeem the Retracted Shares and pay the
Retraction Price as aforesaid. If a part only of the Retracted Shares
represented by any share certificate is redeemed a new share certificate for the
balance thereof shall be issued at the expense of the Corporation. Retraction
proceeds that are represented by a cheque which has not been presented to the
Corporation's banker for payment or that otherwise remain unclaimed for a period
of six years from the Retraction Date shall be forfeited to the Corporation.
6.5. REDEMPTION - The Corporation may, upon giving notice as hereinafter
provided, redeem, at any time or from time to time, the whole or any part of the
then outstanding Class C preferred shares, on payment for each share to be
redeemed of the Class C Preferred Amount per Share together with all declared
but unpaid dividends thereon (in this Article 6 collectively, the "Redemption
Price"). In the event of a redemption or part only of the then outstanding
Class C
29
preferred shares, such redemption shall be effected pro rata among the holders
thereof, provided, that, with the prior written consent of all the holders
thereof, such redemption may be effected selectively among the holders thereof
such that, for greater certainty, the Class C preferred shares of one or more
holders thereof may be redeemed without the Class C preferred shares or other
holders thereof being redeemed concurrently therewith or at all. In the case of
such redemption of Class C preferred shares, the Corporation shall communicate
to each person (whose or part of whose Class C preferred shares are to be
redeemed) who at the date of such communication is a registered owner of the
Class C preferred shares to be redeemed, a notice in writing (in this Article 6,
the "Redemption Notice") of the intention of the Corporation to redeem such
Class C preferred shares, and the date specified for redemption (in this Article
6, the "Redemption Date"). The Redemption Notice shall be communicated to each
such person at such person's address as the same appears on the books of the
Corporation, in the manner provided for in clause 8.2 hereof. Accidental failure
or omission to communicate the Redemption Notice to one or more holders shall
not affect the validity of such redemption but upon such failure or omission
being discovered, the Redemption Notice shall be forthwith communicated to such
holder or holders and shall have the same force and effect as if given in due
time. The Redemption Notice shall set out the Redemption Price and the
Redemption Date and, if part only of the Class C preferred shares held by the
person to whom such Redemption Notice is addressed is to be redeemed, the number
thereof so to be redeemed. On or after the Redemption Date, the Corporation
shall pay or cause to be paid, in the manner herein provided for, to or to the
order of the registered holders of the Class C preferred shares so to be
redeemed, the Redemption Price in respect thereof, on presentation and surrender
at the registered office of the Corporation, or any other place designated in
the Redemption Notice, of the share certificate or certificates
30
representing the Class C preferred shares so called for redemption. Such payment
may be made by cheque or draft of the Corporation payable at par at any branch
of the Corporation's banker for the time being in Canada or, with the consent of
the registered holder thereof, the Corporation may deliver a note evidencing the
obligation of the Corporation to the registered holder in the amount of the
Redemption Price payable on demand, with interest after demand only at the
Demand Interest Rate or, with the consent of the registered holder thereof, by
any other means. If a part only of the shares represented by any share
certificate is redeemed a new share certificate for the balance thereof shall be
issued at the expense of the Corporation. The Corporation shall have the right,
at any time after the communication of the Redemption Notice, to deposit the
aggregate Redemption Price for the Class C preferred shares so called for
redemption, or of such of the Class C preferred shares which are represented by
certificates which 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 the Redemption
Notice, to be paid on or after the Redemption Date without interest to or to the
order of the respective holders of the Class C preferred shares called for
redemption upon presentation and surrender to such bank or trust company of the
share certificate or certificates representing such shares. Upon such deposit
being made or upon the Redemption Date, whichever is the later, the Class C
preferred shares in respect of which such deposit shall have been made shall be
deemed to be redeemed and the rights of the holders thereof shall be limited to
receiving, without interest, their proportionate part of the aggregate
Redemption Price so deposited upon presentation and surrender of the said share
certificate or certificates held by them respectively. Any interest allowed on
any such deposits shall belong to the Corporation. From and after the date
specified for redemption in the Redemption Note, the
31
Class C preferred shares called for redemption shall cease to be entitled to
exercise any of the rights of shareholders in respect of such shares unless
payment of the Redemption Price in respect thereof shall not be made, in the
manner herein provided for, upon presentation and surrender of the share
certificate or certificates in accordance with the foregoing provisions, in
which case the rights of the holders thereof shall remain unaffected. Redemption
proceeds that are represented by a cheque which has not been presented to the
Corporation's banker for payment or that otherwise remain unclaimed (including
money held on deposit in a special account as hereinbefore provided) for a
period of six years from the date specified for redemption shall be forfeited to
the Corporation.
6.6. CLASS C PREFERRED AMOUNT PER SHARE -
(a) In this Article 6, the term "Aggregate Class C Preferred Amount" shall
mean and be interpreted to be a fixed amount equal to the fair market
value (the "Class C Consideration Value") at the time of the first
issuance of any Class C preferred shares (the "Valuation Date") of the
consideration described in clause 6.6(d) hereof (the "Class C
Consideration") and the term "Class C Preferred Amount per Share" in
respect of each issued Class C preferred share shall mean and be
interpreted to be a fixed amount equal to the quotient obtained when:
(i) the Aggregate Class C Preferred Amount is divided by
(ii) the number of Class C preferred shares issued at the Valuation
Date;
(b) Subject to, and unless adjusted by virtue of, the operation of clause
6.6(c) hereof, the Class C Consideration Value and the resulting Class
C Preferred Amount per Share shall
32
be calculated and determined as at the Valuation Date, which
determination shall be made and recorded by the directors in the
records of the Corporation and which Class C Preferred Amount per Share
so recorded may be referred to in this clause and clause 6.6(c) as the
"Determined Amount"; and subject only to clause 6.6(c) hereof, a
determination and recording of the Determined Amount by the directors
shall be conclusive and binding upon the Corporation and its
shareholders;
(c) Provided always that in the event that, at any time, the Department of
National Revenue, Taxation or other competent taxing authority having
jurisdiction (the "Department" shall rule or otherwise determine (or so
advise that it considers):
(i) the Class C Consideration Value to be greater, or less, than
the amount determined by the directors pursuant to clause
6.6(b) hereof,
and if such ruling, determination or advice, or any notice of
assessment or reassessment issued or other action or thing done by the
Department, which relates to the said Class C Consideration Value or
the resulting Class C Preferred Amount per Share shall:
(ii) be accepted and agreed to by the Corporation and all affected
shareholders, or
(iii) if there be no such acceptance, in the event of any appeal
therefrom,
then the Class C Consideration Value and the resulting Class C
Preferred Amount per Share shall be the amount determined for such
purpose which either:
(iv) the Department and the Corporation and all affected
shareholders by agreement, or
33
(v) the highest judicial authority to which any such assessment or
reassessment or other action shall have been appealed and from
which no further appeal may or shall be taken,
as the case may be, shall have determined to be the appropriate amount
such that the Aggregate Class C Preferred Amount shall have been equal
to the Class C Consideration Value on the Valuation Date, which
determination shall be deemed to have been made and effective nunc pro
tunc, retroactive to the Valuation Date, and all necessary adjustments,
payments or repayments or other calculations, acts or things (which may
include further Articles of Amendment), as may be required in order to
give effect to the said retroactive change, shall be made and attended
to forthwith and shall be deemed to have been effective, and to have
been binding upon the Corporation and its shareholders, nunc pro tunc,
retroactive to the Valuation Date. Without limitation upon the
foregoing, if the Class C Preferred Amount per Share shall be greater
than the Determined Amount, the Corporation shall pay the excess to any
person whose Class C preferred shares shall have been redeemed, and if
the Class C Preferred Amount per Share shall be less than the
Determined Amount, the Corporation shall be reimbursed the shortfall by
any person whose Class C preferred shares shall have been redeemed; and
if any amount shall have been purported to have been paid as dividends
by the Corporation on any Class C preferred shares in respect of any
fiscal year at a rate in excess of ten percent (10%) of the Class C
Preferred Amount per Share as finally determined, then the holders of
such Class C Preferred Shares shall reimburse the Corporation the
amount of such excess, which excess shall be deemed to have been paid
as a loan by the Corporation to any such shareholder.
34
(d) The consideration which is referred to in clause 6.6(a) for the
purposes of this Article is the consideration received by the
Corporation as consideration for the Class C preferred shares first
issued by the Corporation at the Valuation Date.
ARTICLE 7. - CLASS D PREFERRED SHARES
7.1. VOTING RIGHTS - The holders of the Class D preferred shares, as such,
shall not be entitled to receive notice of or to attend or vote at any meeting
or meetings of the shareholders of the Corporation.
7.2. DIVIDEND RIGHTS - The holders of the Class D preferred shares shall be
entitled to receive, in respect of each fiscal year of the Corporation, out of
the assets of the Corporation properly applicable to the payment of dividends,
only if, as and when declared by, and in the discretion of, the directors of the
Corporation, non-cumulative dividends in an amount or amounts determined by, and
in the discretion of, the directors but not to exceed for any fiscal year, in
the aggregate, ten percent (10%) of the Class D Preferred Amount per Share (as
defined in clause 7.6 hereof) for each such Class D preferred share held. If
within four months after the expiration of any fiscal year of the Corporation,
the directors of the Corporation shall not have declared the said maximum
permitted non-cumulative dividends in respect of that fiscal year on the Class D
preferred shares, then the right of the holders thereof to such dividends or to
any undeclared part thereof in respect of any such fiscal year shall be forever
extinguished. The holders of the Class D preferred shares shall not be entitled
to any dividends in respect thereof other than or in excess of the dividends
provided for in this clause 7.2, and, subject to clause 7.3 hereof, shall not
otherwise be entitled to share in the profits or assets of the Corporation.
7.3. RETURN OF CAPITAL - Upon the liquidation, dissolution or winding-up of
the Corporation, whether voluntary or otherwise, or other distribution of the
assets of the Corporation or
35
repayment of capital to its shareholders for the purpose of winding-up its
affairs (the liquidation, dissolution or winding-up of the Corporation, whether
voluntary or otherwise, or other distribution of the assets of the Corporation
or repayment of capital to its shareholders for the purpose of winding-up its
affairs, for purposes of this clause 7.3, hereinafter collectively referred to
as the "Winding-Up of the Corporation") the holders of the Class D preferred
shares shall be entitled to receive, in priority to the holders of the Class A
common shares, the Class B common shares and the Class C common shares,
subordinate to the holders of the Class A preferred shares and the Class B
preferred shares but ratably with the holders of the Class C preferred shares,
an amount out of the property and assets of the Corporation equal to the Class D
Preferred Amount per Share for each such Class D preferred share held, together
will all declared but unpaid dividends thereon. After payment to the holders of
the Class D preferred shares of the Class D Preferred Amount per Share together
with all declared but unpaid dividends thereon as aforesaid, the holders of the
Class D preferred shares shall have no right or claim to any of the remaining
property and assets of the Corporation. If the property and assets distributable
on such Winding-Up of the Corporation shall, after distribution has been made to
the holders of the Class A preferred shares and the Class B preferred shares of
the amounts distributable to each, respectively, be insufficient to permit the
payment to the holders of all of the Class D preferred shares of the full amount
payable to them upon such Winding-Up of the Corporation, then such property and
assets, or the proceeds thereof, shall be distributed among the holders of the
Class D preferred shares, rateably with the holders of the Class C preferred
shares, in proportion to the respective amounts the holders of the Class C
preferred shares and the Class D preferred shares would be entitled to receive
upon such Winding-Up of the Corporation. For greater certainty, it is hereby
declared that upon the Winding-Up of the Corporation, the holders of the Class D
36
preferred shares then outstanding shall be entitled to receive the Class D
Preferred Amount per Share together with all declared but unpaid dividends
thereon in full before any payment or distribution of assets shall be made to
the holders of the Class A common shares, the Class B common shares or the Class
C common shares.
7.4. RETRACTION PRIVILEGE - Any holder of Class D preferred shares shall be
entitled to require the Corporation to redeem, subject to the provisions of The
Corporations Act (Manitoba) existing from time to time, at any time or from time
to time, all or any part of the Class D preferred shares registered in the name
of such holder on the books of the Corporation, by tendering to the Corporation,
at its registered office, the share certificate or certificates representing the
Class D preferred shares which the registered holder thereof desires to have the
Corporation redeem (in this Article 7, the "`Retracted Shares"), together with a
request in writing (in this Article 7, the "Holder's Request"), specifying (1)
that the registered holder desires to have the Retracted Shares (whether
represented by all or a portion of the share certificate or certificates so
tendered) redeemed by the Corporation and (2) the business day (in this Article
7, the "Retraction Date") on which such holder desires to have the Corporation
redeem the Retracted Shares. Upon the receipt of a share certificate or
certificates representing the Retracted Shares together with the Holder's
Request, on the Retraction Date the Corporation shall redeem the Retracted
Shares by paying the registered holder thereof in the manner herein provided
for, the Class D Preferred Amount per share for each such share to be redeemed
together with all declared but unpaid dividends thereon to and including the
Retraction Date (in this Article 7, collectively, the "Retraction Price").
Payment of the Retraction Price may be made by cheque payable at par at any
branch of the Corporation's banker for the time being in Canada or, with the
consent of the registered holder thereof, the Corporation may deliver a note
evidencing the obligation of the
37
Corporation to the registered holder in the amount of the Retraction Price
payable on demand with interest after demand only at a variable rate of interest
equal to the Prime Rate (as hereinafter defined) plus 2% per annum (in this
Article 7, the "Demand Interest Rate") or, with the consent of the registered
holder thereof, by any other means. The term "Prime Rate" as used in this
Article 7 means the variable rate of interest expressed as a percentage per
annum determined, announced and adjusted by The Bank of Nova Scotia from time to
time as a reference rate for commercial loans made in Canada in Canadian
dollars. The Retracted Shares shall be redeemed on the Retraction Date, and from
and after the Retraction Date such shares shall cease to be entitled to exercise
any of the rights of holders of Class D preferred shares in respect thereof
unless payment of the Retraction Price, in the manner herein provided for, is
not made on the Retraction Date. In the event that the Corporation shall not
have made payment of the Retraction Price, in the manner herein provided for, on
or before the Redemption Date, the holder of the Retracted Shares shall have the
option to rescind the redemption, in which event the rights of the holder of the
Retracted Shares shall remain unaffected, or to otherwise require the
Corporation to redeem the Retracted Shares and pay the Retraction Price as
aforesaid. If a part only of the Retracted Shares represented by any share
certificate is redeemed a new share certificate for the balance thereof shall be
issued at the expense of the Corporation. Retraction proceeds that are
represented by a cheque which has not been presented to the Corporation's banker
for payment or that otherwise remain unclaimed for a period of six years from
the Retraction Date shall be forfeited to the Corporation.
7.5. REDEMPTION - The Corporation may, upon giving notice as hereinafter
provided, redeem, at any time or from time to time, the whole or any part of the
then outstanding Class D preferred shares, on payment for each share to be
redeemed of the Class D Preferred Amount per Share
38
together with all declared but unpaid dividends thereon (in this Article 7
collectively, the "Redemption Price"). In the event of a redemption or part only
of the then outstanding Class D preferred shares, such redemption shall be
effected pro rata among the holders thereof provided, that, with the prior
written consent of all the holders thereof, such redemption may be effected
selectively among the holders thereof such that, for greater certainty, the
Class D preferred shares, of one or more holders thereof may be redeemed without
the Class D preferred shares of other holders thereof being redeemed
concurrently therewith or at all. In the case of such redemption of Class D
preferred shares, the Corporation shall communicate to each person (whose or
part of whose Class D preferred shares are to be redeemed) who at the date of
such communication is a registered owner of the Class D preferred shares to be
redeemed, a notice in writing (in this Article 7, the "Redemption Notice") of
the intention of the Corporation to redeem such Class D preferred shares, and
the date specified for redemption (in this Article 7, the "Redemption Date").
The Redemption Notice shall be communicated to each such person at such person's
address as the same appears on the books of the Corporation, in the manner
provided for in clause 8.2 hereof. Accidental failure or omission to communicate
the Redemption Notice to one or more holders shall not affect the validity of
such redemption but upon such failure or omission being discovered, the
Redemption Notice shall be forthwith communicated to such holder or holders and
shall have the same force and effect as if given in due time. The Redemption
Notice shall set out the Redemption Price and the Redemption Date and, if part
only of the Class D preferred shares held by the person to whom such Redemption
Notice is addressed is to be redeemed, the number thereof so to be redeemed. On
or after the Redemption Date, the Corporation shall pay or cause to be paid, in
the manner herein provided for, to or to the order of the registered holders of
the Class D preferred shares so to be redeemed,
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the Redemption Price in respect thereof, on presentation and surrender at the
registered office of the Corporation, or any other place designated in the
Redemption Notice, of the share certificate or certificates representing the
Class D preferred shares so called for redemption. Such payment may be made by
cheque or draft of the Corporation payable at par at any branch of the
Corporation's banker for the time being in Canada or, with the consent of the
registered holder thereof, the Corporation may deliver a note evidencing the
obligation of the Corporation to the registered holder in the amount of the
Redemption Price payable on demand, with interest after demand only at the
Demand Interest Rate or, with the consent of the registered holder thereof, by
any other means. If a part only of the shares represented by any share
certificate is redeemed a new share certificate for the balance thereof shall be
issued at the expense of the Corporation. The Corporation shall have the right,
at any time after the communication of the Redemption Notice, to deposit the
aggregate Redemption Price for the Class D preferred shares so called for
redemption, or of such of the Class D preferred shares which are represented by
certificates which 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 the Redemption
Notice, to be paid on or after the Redemption Date without interest to or to the
order of the respective holders of the Class D preferred shares called for
redemption upon presentation and surrender to such bank or trust company of the
share certificate or certificates representing such shares. Upon such deposit
being made or upon the Redemption Date, whichever is the later, the Class D
preferred shares in respect of which such deposit shall have been made shall be
deemed to be redeemed and the rights of the holders thereof shall be limited to
receiving, without interest, their proportionate part of the aggregate
Redemption Price so deposited upon presentation and surrender of the said share
certificate or
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certificates held by them respectively. Any interest allowed on any such
deposits shall belong to the Corporation. From and after the date specified for
redemption in the Redemption Notice, the Class D preferred shares called for
redemption shall cease to be entitled to exercise any of the rights of
shareholders in respect of such shares unless payment of the Redemption Price in
respect thereof shall not be made, in the manner herein provided for, upon
presentation and surrender of the share certificate or certificates in
accordance with the foregoing provisions, in which case the rights of the
holders thereof shall remain unaffected. Redemption proceeds that are
represented by a cheque which has not been presented to the Corporation's banker
for payment or that otherwise remain unclaimed (including money held on deposit
in a special account as hereinbefore provided) for a period of six years from
the. date specified for redemption shall be forfeited to the Corporation.
7.6. CLASS D PREFERRED AMOUNT PER SHARE -
(a) In this Article 7, the term "Aggregate Class D Preferred Amount" shall
mean and be interpreted to be a fixed amount equal to the fair market
value (the "Class D Consideration Value") at the time of the first
issuance of any Class D preferred shares (the "Valuation Date" of the
consideration described in clause 7.6(d) hereof (the "Class D
Consideration") and the term "Class Preferred Amount per Share" in
respect of each issued Class D preferred share shall mean and be
interpreted to be a fixed amount equal to the quotient obtained when:
(i) the Aggregate Class D Referred Amount is divided by
(ii) the number of Class D preferred shares issued at the Valuation
Date;
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(b) Subject to, and unless adjusted by virtue of, the operation of clause
7.6(c) hereof, the Class D Consideration Value and the resulting Class
D Preferred Amount per Share shall be calculated and determined as at
the Valuation Date, which determination shall be made and recorded by
the directors in the records of the Corporation and which Class D
Preferred Amount per Share so recorded may be referred to in this
clause and clause 7.6(c) as the "Determined Amount"; and subject only
to clause 7.6(c) hereof, a determination and recording of the
Determined Amount by the directors shall be conclusive and binding upon
the Corporation and its shareholders;
(c) Provided always that in the event that, at any time, the Department
shall rule or otherwise determine (or so advise that it considers):
(i) the Class D Consideration Value to be greater, or less, than
the amount determined by the directors pursuant to clause
7.6(b) hereof,
and if such ruling, determination or advice, or any notice of
assessment or reassessment issued or other action or thing done by the
Department, which relates to the said Class D Consideration Value or
the resulting Class D Preferred Amount per Share shall:
(ii) be accepted and agreed to by the Corporation and all affected
shareholders, or
(iii) if there be no such acceptance, in the event of any appeal
therefrom,
then the Class D Consideration Value and the resulting Class D
Preferred Amount per Share shall be the amount determined for such
purpose which either:
(iv) the Department and the Corporation and all affected
shareholders by agreement, or
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(v) the highest judicial authority to which any such assessment or
reassessment or other action shall have been appealed and from
which no further appeal may or shall be taken,
as the case may be, shall have determined to be the appropriate amount
such that the Aggregate Class D Preferred Amount shall have been equal
to the Class D Consideration Value on the Valuation Date, which
determination shall be deemed to have been made and effective nunc pro
tunc, retroactive to the Valuation Date, and all necessary adjustments,
payments or repayments or other calculations, acts or things (which may
include further Articles of Amendment), as may be required in order to
give effect to the said retroactive change, shall be made and attended
to forthwith and shall be deemed to have been effective, and to have
been binding upon the Corporation and its shareholders, nunc pro tunc,
retroactive to the Valuation Date. Without limitation upon the
foregoing, if the Class D Preferred Amount per Share shall be greater
than Determined Amount, the Corporation shall pay the excess to any
person whose Class D preferred shares shall have been redeemed, and if
the Class D Preferred Amount per Share shall be less than the
Determined Amount, the Corporation shall be reimbursed the shortfall by
any person whose Class D preferred shares shall have been redeemed; and
if any amount shall have been purported to have been paid as dividends
by the Corporation on any Class D preferred shares in respect of any
fiscal year at a rate in excess of ten percent (10%) of the Class D
Preferred Amount per Share as finally determined, then the holders of
such Class D preferred shares shall reimburse the Corporation the
amount of such excess, which excess shall be deemed to have been paid
as a loan by the Corporation to any such shareholder.
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(d) The consideration which is referred to in clause 7.6(a) for the
purposes of this Article is the consideration received by the
Corporation as consideration for the Class D preferred shares first
issued by the Corporation at the Valuation Date.
ARTICLE 8. - MISCELLANEOUS
8.1. PURCHASE OF SHARES - Subject 'to the rights attaching to the Class A
preferred shares, the Class B preferred shares, the Class C preferred shares and
the Class D preferred shares the Corporation may, at any time or from time to
time, purchase for cancellation the whole or any part of the outstanding shares
of any class or classes of the Corporation (1) by invitation for tenders
addressed to all of the holders of record of the class or classes of shares
which the Corporation so desires to purchase for cancellation or (2) by private
contract with any holder or holders of shares of any class or classes of the
Corporation with the consent of all the holders of the shares of such class or
classes, the lowest price or prices which, in the opinion of the directors, such
shares are then obtainable. If, in response to an invitation for tenders as
hereinbefore provided, more shares of the particular class or classes are
tendered at a price or prices acceptable to the Corporation than the Corporation
is prepared to purchase, the Corporation shall accept, to the extent required,
the tenders submitted at the lowest price and then, if and so required, and so
on and so forth, the tenders submitted at progressively higher prices and, if
more shares are tendered at any such price than the Corporation is prepared to
purchase, the shares tendered at such price than the Corporation is prepared to
purchase shall be purchased as nearly as may be pro rata (disregarding
fractions) according to the number of such shares of such class or classes so
tendered by each of the holders of such shares who submitted tenders at that
price.
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NOTICES - Any cheque or notice or other communication (which, whether or not
expressly stipulated herein, shall be in writing) from the Corporation to a
holder of shares of the Corporation or from a holder of shares of the
Corporation to the Corporation may be (1) delivered personally by leaving it
with the party to whom it is to be so communicated, (2) communicated by
facsimile transmission to the party to whom it is to be communicated or (3)
mailed by prepaid registered mail (with acknowledgment of receipt requested) to
the party to whom it is to be communicated. Any such communication to the
Corporation may be so communicated to the Corporation at its registered office
or to any director of the Corporation. If such a communication is delivered to
the party to whom it is to be communicated, it shall be deemed to have been
validly communicated to, and received by, such party on the business day of
delivery. If such a communication is communicated by facsimile transmission, it
shall be deemed to have been validly communicated to, and received by, the party
to whom it was to be communicated on the expiry of eight hours after it was
transmitted or 9:00 a.m. (local time) on the first business day next following
its transmission, whichever is the later. If such a communication is
communicated by mail, it shall be deemed to have been validly communicated to,
and received by the party to whom it was to be communicated, on the third
business day next following the mailing thereof in Canada or the United States
of America, provided that no party shall mail any such communication during any
period during which Canadian postal workers or the United States Postal Service,
whether in the whole of Canada or the United States of America, or in any region
thereof from which such communication is to be sent or where such a
communication is to be so communicated, are on strike, are withholding their
services for any reason whatsoever (whether lawfully or otherwise) or are locked
out, or if any such strike, withholding of services or lock-out is threatened or
has only been terminated so that, in the
45
result, it may be reasonably anticipated that the normal delivery of mail will
be adversely affected.
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SCHEDULE B
FIRST DIRECTORS OF GLOBAL COMMUNICATIONS LIMITED
The names and municipalities of residence of the first
directors of the Corporation are as follows:
NAME MUNICIPALITY OF RESIDENCE RESIDENT CANADIAN
---------------- ------------------------- ------------------
Xxxxxxx Xxxxx Winnipeg, Manitoba Yes
Xxxxxx X. Strike Winnipeg, Manitoba Yes
Xxxxx X. Xxxxx Toronto, Ontario Yes
Xxxxxx X. Xxxxx Toronto, Ontario Yes
