PLAN OF ARRANGEMENT
UNDER SECTION 192
OF THE CANADA BUSINESS CORPORATIONS ACT
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this Plan of Arrangement unless there is something
in the subject matter or context inconsistent therewith, the
following terms shall have the respective meanings set out below
and grammatical variations of such terms shall have corresponding
meanings:
(a) "Affiliate" of any person means any other person
directly or indirectly controlling, controlled by, or under
common control with, that person. For the purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlling", "controlled by" and "under common control
with"), as applied to any person, means the possession by another
person, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that first
mentioned person, whether through the ownership of voting
securities, by contract or otherwise;
(b) "Arrangement" means the arrangement under section 192
of the CBCA on the terms and subject to the conditions set out in
this Plan of Arrangement, subject to any amendments thereto made
in accordance with section 6.1 or made at the direction of the
Court in the Final Order;
(c) "Automatic Redemption Date" means November , 2000,
unless such date shall be accelerated at any time to a specified
earlier date by the Board of Directors upon at least 75 days
prior written notice to the registered holders of Exchangeable
Shares, in which case the Automatic Redemption Date shall be such
earlier date; provided, however, that the Board of Directors may
so accelerate the Automatic Redemption Date only at such time as
there are outstanding fewer than 400,000 Exchangeable Shares held
by holders other than Orbital and its Affiliates;
(d) "Average Closing Price" means the average closing sales
price of Orbital Common Shares for the 20 trading days ending on
the date four trading days prior to the Effective Date, as
reported on NASDAQ;
(e) "Board of Directors" means the board of directors of
the Corporation;
(f) "Business Day" means any day other than a Saturday, a
Sunday or a day when banks are not open for business in either or
both of the Commonwealth of Virginia, and Vancouver, British
Columbia;
(g) "Canadian Dollar Equivalent" means in respect of an
amount expressed in a foreign currency (the "Foreign Currency
Amount") at any date the product obtained by multiplying (a) the
Foreign Currency Amount by (b) the noon spot exchange rate on
such date for such foreign currency expressed in Canadian dollars
as reported by the Bank of Canada or, in the event such spot
exchange rate is not available, such exchange rate on such date
for such foreign currency expressed in Canadian dollars as may be
deemed by the Board of Directors to be appropriate for such
purpose;
(h) "Capital Reorganization" has the meaning ascribed
thereto in section 5.7;
(i) "CBCA" means the Canada Business Corporations Act, as
amended from time to time;
(j) "Class B Preferred Shares" means the Class B Preferred
Shares of the Corporation having the rights, privileges,
restrictions and conditions set out in Appendix A annexed hereto.
(k) "Combination Agreement" means the agreement by and
among Orbital, the Corporation and MDA, dated as of August 31,
1995, as the same may be amended and restated, providing for,
among other things, the Arrangement;
(l) "Corporation" means 3173623 Canada Inc., a corporation
existing under the CBCA;
(m) "Court" means the Supreme Court of British Columbia;
(n) "Current Market Price" means, in respect of an Orbital
Common Share on any date, the Canadian Dollar Equivalent of the
closing sale price of Orbital Common Shares on such day (or, if
no trades of Orbital Common Shares occurred on such day, on the
last trading day prior thereto on which such trades occurred)
reported on NASDAQ, or, if the Orbital Common Shares are not then
quoted on NASDAQ, on such other stock exchange or automated
quotation system on which the Orbital Common Shares are listed or
quoted, as the case may be, as may be selected by the Board of
Directors for such purpose; provided, however, that if in the
opinion of the Board of Directors the public distribution or
trading activity of Orbital Common Shares during such period does
not create a market that reflects the fair market value of an
Orbital Common Share, then the Current Market Price of an Orbital
Common Share shall be determined by the Board of Directors based
upon the advice of such qualified independent financial advisors
as the Board of Directors may deem to be appropriate, and
provided further that any such selection, opinion or
determination by the Board of Directors shall be conclusive and
binding;
(o) "Current Orbital Common Share Equivalent" means, on any
date, the equivalent as at such date of one Orbital Common Share
as at the Effective Date, expressed to four decimal places,
determined by applying on a cumulative basis the following
adjustments, to the extent applicable by reason of any
transactions occurring in respect of Orbital Common Shares
between the Effective Date and such date, the Current Orbital
Common Share Equivalent as at the Effective Date being 1.0000:
(i) if Orbital shall (A)
subdivide, redivide or change its then outstanding
Orbital Common Shares into a greater number of
Orbital Common Shares, unless the Corporation is
permitted under applicable law without a vote of
its shareholders to make, and shall simultaneously
make, the same or an economically equivalent
change to the rights of the holders of
Exchangeable Shares, (B) reduce, combine,
consolidate or change its then outstanding Orbital
Common Shares into a lesser number of Orbital
Common Shares, unless the Corporation is permitted
under applicable law without a vote of its
shareholders to make, and shall simultaneously
make, the same or an economically equivalent
change to the rights of the holders of
Exchangeable Shares, or (C) issue Orbital Common
Shares (or securities exchangeable or convertible
into Orbital Common Shares) to the holders of all
or substantially all of its then outstanding
Orbital Common Shares by way of stock dividend or
other distribution (other than to holders of
Orbital Common Shares who exercise an option to
receive stock dividends in lieu of receiving cash
dividends), unless the Corporation is permitted
under applicable law without a vote of its
shareholders to issue or distribute, and shall
simultaneously issue and distribute, equivalent
numbers of Orbital Common Shares or other
securities (adjusted if necessary in accordance
with the Current Orbital Common Share Equivalent),
or the economic equivalent on a per share basis,
to the holders of the Exchangeable Shares (any of
such events being herein called an "Orbital Common
Share Reorganization"), the Current Orbital Common
Share Equivalent shall be adjusted effective
immediately after the record date at which the
holders of Orbital Common Shares are determined
for the purpose of the Orbital Common Share
Reorganization by multiplying the Current Orbital
Common Share Equivalent in effect on such record
date by the quotient obtained when:
(I) the number of Orbital
Common Shares outstanding after the
completion of such Orbital Common Share
Reorganization (but before giving effect to
the issue of any Orbital Common Shares issued
after such record date otherwise than as part
of such Orbital Common Share Reorganization)
including, in the case where securities
exchangeable or convertible into Orbital
Common Shares are distributed, the number of
Orbital Common Shares that would have been
outstanding had such securities been
exchanged for or converted into Orbital
Common Shares on such record date,
is divided by
(II) the number of Orbital
Common Shares outstanding on such record date
before giving effect to the Orbital Common
Share Reorganization;
(ii) if at any time Orbital shall
fix a record date for the issuance of rights,
options or warrants to the holders of all or
substantially all of the Orbital Common Shares
entitling them to subscribe for or to purchase
Orbital Common Shares (or securities of Orbital
convertible into Orbital Common Shares) at a price
per Orbital Common Share (or having a conversion
price per Orbital Common Share) of less than the
Pre-Dilution Market Price on such record date,
unless the Corporation is permitted under
applicable law without a vote of its shareholders
to issue, and shall simultaneously issue,
equivalent numbers of such rights, options or
warrants, adjusted if necessary in accordance with
the Current Orbital Common Share Equivalent at
such record date, or the economic equivalent
thereof on a per share basis, to the holders of
Exchangeable Shares (any such event being herein
referred to as a "Rights Offering"), then the
Current Orbital Common Share Equivalent then in
effect shall be adjusted immediately after such
record date by multiplying the Current Orbital
Common Share Equivalent in effect on such record
date by the quotient obtained when:
(A) the sum of the
number of Orbital Common Shares outstanding
on such record date and the number of
additional Orbital Common Shares offered for
subscription or purchase under the Rights
Offering (or the number of Orbital Common
Shares into which the securities so offered
are convertible)
is divided by
(B) the sum of the
number of Orbital Common Shares outstanding
on such record date and the number determined
by dividing the aggregate price of the total
number of additional Orbital Common Shares
offered for subscription or purchase under
the Rights Offering (or the aggregate
conversion price of the convertible
securities so offered) by the Pre-Dilution
Market Price on such record date.
Any Orbital Common Share owned by or held for the
account of Orbital shall be deemed not to be
outstanding for the purpose of any such computation.
If such rights, options or warrants are not so issued
or if, at the date of expiry of the rights, options or
warrants subject to the Rights Offering, less than all
the rights, options or warrants have been exercised,
then the Current Orbital Common Share Equivalent shall
be readjusted effective immediately after the date of
expiry to the Current Orbital Common Share Equivalent
which would have been in effect if such record date had
not been fixed or to the Current Orbital Common Share
Equivalent which would then be in effect on the date of
expiry if the only rights, options or warrants issued
had been those that were exercised, as the case may be;
(iii) if Orbital shall fix a record
date for the making of a distribution (including a
distribution by way of stock dividend) to the
holders of all or substantially all its
outstanding Orbital Common Shares of
(A) shares of Orbital of
any class other than Orbital Common Shares
(or shares convertible into Orbital Common
Shares referred to in (i) (C) above),
(B) rights, options or
warrants (excluding a Rights Offering),
(C) evidences of its
indebtedness (excluding indebtedness
convertible into Orbital Common Shares
referred to in (i) (C) above) or
(D) any other assets
(other than any of the distributions referred
to in (A), (B) or (C), dividends paid in the
ordinary course or an Orbital Common Share
Reorganization)
unless the
Corporation is permitted under applicable law
without a vote of its shareholders to
distribute, and shall simultaneously
distribute, the same number of shares,
rights, options or warrants, evidences of
indebtedness or other assets, as the case may
be, adjusted if necessary in accordance with
the Current Orbital Common Share Equivalent
as at such record date, or the economic
equivalent thereof on a per share basis, to
the holders of Exchangeable Shares (any such
event being herein referred to as a "Special
Distribution") then, in each such case, the
Current Orbital Common Share Equivalent shall
be adjusted effective immediately after the
record date at which the holders of Orbital
Common Shares are determined for the purposes
of the Special Distribution by multiplying
the Current Orbital Common Share Equivalent
in effect on such record date by the quotient
obtained when:
(I) the product
obtained when the number of Orbital
Common Shares outstanding on the record
date is multiplied by the Pre-Dilution
Market Price on such date,
is divided by
(II) the difference obtained
when the amount by which the aggregate fair
market value (as determined by the Board of
Directors, which determination shall be
conclusive) of the shares, rights, options,
warrants, evidences of indebtedness or
assets, as the case may be, distributed in
the Special Distribution exceeds the fair
market value (as determined by the Board of
Directors, which determination shall be
conclusive) of the consideration, if any,
received therefor by Orbital, is subtracted
from the product obtained when the number of
Orbital Common Shares outstanding on the
record date is multiplied by the Pre-Dilution
Market Price on such date,
provided that no such
adjustment shall be made if the result of such
adjustment would be to decrease the Current
Orbital Common Share Equivalent in effect
immediately before such record date. Any Orbital
Common Share owned by or held for the account of
Orbital shall be deemed not to be outstanding for
the purpose of any such computation. Such
adjustment shall be made successively whenever
such a record date is fixed. To the extent that
such distribution is not so made, the Current
Orbital Common Share Equivalent shall be
readjusted effective immediately to the Current
Orbital Common Share Equivalent which would then
be in effect based upon such shares or rights,
options or warrants or evidences of indebtedness
or assets actually distributed;
(p) "Depositary" means Montreal Trust Company at its
principal offices in Vancouver, British Columbia and Toronto,
Ontario;
(q) "Effective Date" means the date shown on the
certificate of arrangement issued by the Director under the CBCA
giving effect to the Arrangement;
(r) "Effective Time" means 12:01 a.m. on the Effective
Date;
(s) "Exchange Ratio" is equal to U.S. $5.41 divided by the
Average Closing Price, provided that in no event shall it be less
than 0.2705 or greater than 0.3607;
(t) "Exchangeable Share Provisions" means the rights,
privileges, restrictions and conditions attaching to the
Exchangeable Shares, which are set forth in Appendix A hereto;
(u) "Exchangeable Shares" means the Exchangeable Non-Voting
Shares of the Corporation having the rights, privileges,
restrictions and conditions set forth in the Exchangeable Share
Provisions;
(v) "Final Order" means the final order of the Court
approving the Arrangement as such order may be amended by the
Court at any time prior to the Effective Time;
(w) "Lien" means any lien, pledge, adverse claim, security
interest, mortgage, claim, charge or encumbrance;
(x) "Liquidation Call Purchase Price" has the meaning
ascribed thereto in subsection 5.2(a);
(y) "Liquidation Call Right" has the meaning ascribed
thereto in subsection 5.2(a);
(z) "Liquidation Date" has the meaning ascribed thereto in
section 4.1 of the Exchangeable Share Provisions;
(aa) "MDA" means MacDonald, Dettwiler and Associates Ltd., a
corporation existing under the CBCA;
(bb) "MDA Common Shares" means the common shares in the
capital of MDA, including all rights associated therewith,
including without limitation all rights associated with such
common shares pursuant to the Shareholder Protection Rights Plan
Agreement dated as of August 27, 1992 between MDA and Montreal
Trust Company of Canada, as Rights Agent, as amended from time to
time;
(cc) "MDA 1988 Options" has the meaning ascribed thereto in
subsection 2.1(l);
(dd) "Meeting" means the Special Meeting of the shareholders
of MDA (voting together as one class) and the holders of MDA 1988
Options (voting separately from the shareholders of MDA as a
second class) to be held to consider the Arrangement;
(ee) "NASDAQ" means the NASDAQ National Market System;
(ff) "Options" means options, whether vested or unvested,
granted by MDA prior to the Effective Date to purchase MDA Common
Shares pursuant to the 1988 Key Employee Share Option Plan
("KESOP 88"), the 1988 Employee Share Option Plan ("ESOP 88"),
the Key Employee Share Option Plan and the Amended and Restated
Key Employee Share Option Plan;
(gg) "Orbital" means Orbital Sciences Corporation, a
corporation existing under the laws of the State of Delaware;
(hh) "Orbital Call Notice" has the meaning ascribed thereto
in subsection 5.1(b);
(ii) "Orbital Common Share Reorganization" has the meaning
ascribed thereto in subsection 1.1(o);
(jj) "Orbital Common Shares" means the common stock, par
value $.01 per share, of Orbital;
(kk) "Pre-Dilution Market Price" means, in respect of an
Orbital Common Share on any date, the Canadian Dollar Equivalent
of the average of the closing sale prices as reported on NASDAQ
of such shares during a period of 20 consecutive trading days
ending on the fourth trading day prior to such date, or, if the
Orbital Common Shares are not then quoted on NASDAQ, on such
other stock exchange or automated quotation system on which the
Orbital Common Shares are listed or quoted as may be selected by
the Board of Directors for such purpose; provided, however, that
if in the opinion of the Board of Directors the public
distribution or trading activity of Orbital Common Shares during
such period does not create a market that reflects the fair
market value of an Orbital Common Share, then the Pre-Dilution
Market Price of an Orbital Common Share shall be determined by
the Board of Directors based upon the advice of such qualified
independent financial advisors as the Board of Directors may deem
to be appropriate, and provided further that any such selection,
opinion or determination by the Board of Directors shall be
conclusive and binding;
(ll) "Qualifying Holdco" means a corporation that shall have
become a party to this Plan of Arrangement prior to the date of
the Meeting pursuant to subsection 6.1(b) hereof and that is
listed in Appendix B;
(mm) "Redemption Call Purchase Price" has the meaning
ascribed thereto in subsection 5.3(a);
(nn) "Redemption Call Right" has the meaning ascribed
thereto in subsection 5.3(a);
(oo) "Retracted Shares" has the meaning ascribed thereto in
section 5.1 of the Exchangeable Share Provisions;
(pp) "Retraction Call Purchase Price" has the meaning
ascribed thereto in subsection 5.1(a);
(qq) "Retraction Call Right" has the meaning ascribed
thereto in subsection 5.1(a);
(rr) "Retraction Date" has the meaning ascribed thereto in
section 5.2 of the Exchangeable Share Provisions;
(ss) "Retraction Request" has the meaning ascribed thereto
in section 5.1 of the Exchangeable Share Provisions;
(tt) "Revised Exercise Price" of an Option means the
exercise price of such Option in effect immediately prior to the
Effective Time divided by the Exchange Ratio;
(uu) "Transfer Agent" means Montreal Trust Company of Canada
or such other person as may from time to time be the Registrar
and Transfer Agent for the Exchangeable Shares; and
(vv) "Voting and Exchange Trust Agreement" means the Voting
and Exchange Trust Agreement between the Corporation, Orbital and
State Street Bank and Trust Company, made as of the Effective
Date.
1.2 Sections and Headings
The division of this Plan of Arrangement into sections
and the insertion of headings are for reference purposes only and
shall not affect the interpretation of this Plan of Arrangement.
Unless otherwise indicated, any reference in this Plan of
Arrangement to a section or an Appendix refers to the specified
section of or Appendix to this Plan of Arrangement.
1.3 Number, Gender and Persons
In this Plan of Arrangement, unless the context
otherwise requires, words importing the singular number include
the plural and vice versa, words importing any gender include all
genders and words importing persons include individuals,
corporations, partnerships, associations, trusts, unincorporated
organizations, governmental bodies and other legal or business
entities of any kind.
1.4 Withholding Tax
All amounts required to be paid, deposited or delivered
under this Plan of Arrangement shall be paid, deposited or
delivered after deduction of any amount required by applicable
law to be deducted or withheld on account of tax and the
deduction of such amounts and remittance to the applicable tax
authorities shall, to the extent thereof, satisfy such
requirement to pay, deposit or deliver hereunder.
ARTICLE 2
ARRANGEMENT
2.1 Arrangement
At the Effective Time on the Effective Date, the
following shall occur and shall be deemed to occur in the
following order without any further act or formality:
(a) The authorized share capital of the Corporation
shall be amended to authorize an unlimited number of
Exchangeable Shares and 10,000 Class B Preferred
Shares; as a result of such amendment the Corporation
shall have three classes of authorized share capital,
namely, an unlimited number of Common Shares, an
unlimited number of Exchangeable Shares and 10,000
Class B Preferred Shares, the rights, privileges,
restrictions and conditions attaching to each of which
classes shall be as set out in Appendix A.
(b) The Corporation shall issue 10,000 Class B
Preferred Shares to Canadian Imperial Bank of Commerce
in partial consideration for services rendered to the
Corporation in connection with the Arrangement.
(c) The Corporation shall add to its stated capital
account in respect of the Class B Preferred Shares an
amount in respect of the Class B Preferred Shares
issued pursuant to subsection 2.1(b) equal to $10,000.
(d) Schedule A and paragraphs 1 and 2 of Schedule B to
the Articles of the Corporation shall be deleted and
the sentence "The annexed Schedule A is incorporated in
this form." contained in paragraph 4 of the Articles of
the Corporation shall be deleted and replaced with the
words "not applicable".
(e) All of the outstanding MDA Common Shares, except
MDA Common Shares owned beneficially and of record by
the Qualifying Holdcos and MDA Common Shares held by
holders who have exercised their rights of dissent in
accordance with section 3.1 hereof and who are
ultimately entitled to be paid fair value for such
shares (hereinafter, "Dissenters") shall be exchanged
by the holders thereof for Exchangeable Shares, the
number of which shall be the product of such number of
MDA Common Shares being exchanged and the Exchange
Ratio. Each former holder of MDA Common Shares (other
than the Qualifying Holdcos and Dissenters) shall
receive the whole number of Exchangeable Shares
resulting from the exchange of such holder's MDA Common
Shares for the consideration set out in the foregoing
sentence. In lieu of fractional Exchangeable Shares,
each holder of an MDA Common Share who otherwise would
be entitled to receive a fraction of an Exchangeable
Share on the exchange shall be paid an amount
determined as set forth in section 4.3 hereto.
(f) Upon the exchange referred to in subsection 2.1(e)
above, each holder of exchanged MDA Common Shares shall
cease to be such a holder, shall have his name removed
from the register of holders of MDA Common Shares and
shall become a holder of the number of fully paid
Exchangeable Shares to which he is entitled as a result
of such exchange and such holder's name shall be added
to the register of holders of Exchangeable Shares
accordingly.
(g) All of the outstanding shares of each of the
Qualifying Holdcos shall be exchanged by the holders
thereof for Exchangeable Shares, the number of which
shall be the product of the number of MDA Common Shares
owned beneficially and of record by each respective
Qualifying Holdco and the Exchange Ratio. Each former
holder of shares of a Qualifying Holdco shall receive
the whole number of Exchangeable Shares resulting from
the exchange of all such holder's shares of a
Qualifying Holdco for the consideration set out in the
foregoing sentence. In lieu of fractional Exchangeable
Shares, each holder of shares of a Qualifying Holdco
who otherwise would be entitled to receive a fraction
of an Exchangeable Share on the exchange shall be paid
an amount determined as set forth in section 4.3
hereto.
(h) Upon the exchange referred to in subsection 2.1(g)
above, each holder of exchanged Qualifying Holdco
shares shall cease to be such a holder, shall have his
name removed from the register of holders of Qualifying
Holdco shares and shall become a holder of the number
of fully paid Exchangeable Shares to which he is
entitled as a result of such exchange and such holder's
name shall be added to the register of holders of
Exchangeable Shares accordingly.
(i) The Corporation shall add to its stated capital
account in respect of Exchangeable Shares issued
pursuant to subsections 2.1(e) and (g) an amount equal
to the aggregate fair market value of the MDA Common
Shares exchanged pursuant to subsection 2.1(e) and the
shares of Qualifying Holdcos exchanged pursuant to
subsection 2.1(g) and immediately thereafter such
stated capital shall be reduced to an amount equal to
the aggregate of (i) the cost, for purposes of the
Income Tax Act (Canada), to the Corporation of the
shares of the Qualifying Holdcos exchanged pursuant to
subsection (g) and, (ii) the paid-up capital, for
purposes of the Income Tax Act (Canada), of the MDA
Common Shares exchanged pursuant to subsection (e), all
as determined by the Board of Directors of the
Corporation.
(j) Each of the Qualifying Holdcos shall be dissolved
into and its assets distributed to the Corporation and
for the purposes of such dissolution each of the
Qualifying Holdcos is authorized and directed to file
articles of dissolution with the Director under the
CBCA at such time as the board of directors of the
Corporation shall determine. The Corporation, and each
of the Qualifying Holdcos are authorized and directed
to create and deliver all such documents and
instruments as may be necessary or appropriate to
implement the dissolution.
(k) The name of each of the Qualifying Holdcos shall
be removed from the register of holders of MDA Common
Shares and the Corporation shall be registered as the
holder of all of the issued and outstanding MDA Common
Shares.
(l) Except for Options granted pursuant to the KESOP
88 or the ESOP 88 ("MDA 1988 Options") to holders who
have exercised their rights of dissent in accordance
with section 3.1 hereof and who are ultimately entitled
to be paid fair value for the MDA Common Shares subject
to such MDA 1988 Options, each outstanding Option shall
become an option to purchase a number of Orbital Common
Shares equal to the product (rounded to the nearest
whole number) of the Exchange Ratio times the number of
MDA Common Shares subject to such Option and having an
exercise price equal to the Revised Exercise Price and
having the same vesting, expiration and other terms as
in effect immediately prior to the Effective Time,
subject to subsection (m).
(m) The KESOP 88 and the ESOP 88 shall be amended by
deleting the words in subsection 9.1 of the KESOP 88
and the words in subsection 8.1 of the ESOP 88 and
replacing each of them with the words following:
"In the event that the outstanding
Shares of the Company shall be changed into
or exchanged for a different number or of
kind of securities of the Company or of
another corporation, whether through an
arrangement, amalgamation or other similar
statutory procedure, or a share
capitalization, sub-division or
consolidation, then there shall be
substituted for each Share subject to any
such Option, for each share authorized for
issuance pursuant to the Plan but not yet
covered by an Option and for the maximum
number of Shares issuable under the Plan with
respect to any year, the number and kind of
securities into which each outstanding Share
shall be so changed or for which each such
Share shall be exchanged.
In the event that there shall be any
change, other than as specified in this
subsection, in the number or kind of
outstanding Shares of the Company or of any
securities into which such Shares shall have
been changed or for which Shares shall have
been exchanged, then an equitable adjustment
shall be made in the number or kind of Shares
or any such securities theretofore authorized
for issuance pursuant to the Plan but not yet
covered by an Option, of the Shares or any
such securities then subject to an Option or
Options, and the maximum of Shares or any
such securities issuable under the Plan with
respect to any year, such adjustment to be
reasonably determined by the Directors and to
be effective and binding for all purposes.
In the case of any such substitution or
adjustment as provided for in this
subsection, the Option price for each share
option agreement for each Share covered
thereby prior to such substitution or
adjustment will be proportionately and
appropriately varied. Such variation shall
generally require that the number of
securities covered by the Option after the
relevant event multiplied by the revised
Option price shall equal the number of shares
covered by the Option prior to the relevant
event multiplied by the original Option
price. No adjustment or substitution
provided for in this subsection shall require
the Company in any share option agreement to
issue a fractional Share and the total
substitution or adjustment with respect to
each share option agreement shall be limited
accordingly."
(n) The name of the Corporation shall be changed to
"MacDonald Dettwiler Holdings Inc."
ARTICLE 3
RIGHTS OF DISSENT
3.1 Rights of Dissent
Holders of MDA Common Shares or of MDA 1988 Options may
exercise rights of dissent with respect to such MDA Common Shares
or the MDA Common Shares subject to such MDA 1988 Options, as the
case may be ("Dissenters' Shares"). In order to dissent with
respect to MDA 1988 Options, such MDA 1988 Options shall be
deemed to have been exercised for the purpose of exercising such
dissent rights and the exercise price under each such MDA 1988
Option shall be deemed to be satisfied by set-off against the
fair value paid for the Dissenters' Shares subject thereto,
provided that if the holder of any such MDA 1988 Option is
ultimately not entitled to be paid fair value for the Dissenters'
Shares subject thereto, such MDA 1988 Option shall be deemed not
to have been exercised and shall become an option to purchase
Orbital Common Shares in accordance with subsection 2.1(l). All
such rights of dissent shall be exercised pursuant to and in the
manner set forth in section 190 of the CBCA and this section 3.1
(the "Dissent Procedures") in connection with the Arrangement and
holders who duly exercise such rights of dissent and who:
(a) are ultimately entitled to be paid fair value for
their Dissenters' Shares shall be deemed to have
transferred such Dissenters' Shares to MDA for
cancellation on the Effective Date; or
(b) are ultimately not entitled, for any reason, to be
paid fair value for their Dissenters' Shares shall be
deemed to have participated in the Arrangement on the
same basis as any non-dissenting holder of MDA Common
Shares or Options, as the case may be, and shall
receive Exchangeable Shares on the basis determined in
accordance with subsection 2.1(e) or options on the
basis provided in subsection 2.1(l), as the case may
be.
In no case shall MDA be required to recognize such holders as
holders of MDA Common Shares or MDA 1988 Options, as the case may
be, on and after the Effective Date, and the names of such
holders of MDA Common Shares or MDA 1988 Options, as the case may
be, shall be deleted from the register of holders of MDA Common
Shares and all records of Options maintained by the Corporation,
respectively, on the Effective Date.
ARTICLE 4
CERTIFICATES AND FRACTIONAL SHARES
4.1 Issuance of Certificates Representing Exchangeable Shares
At or promptly after the Effective Time, the
Corporation shall deposit with the Depositary, for the benefit of
the holders of MDA Common Shares exchanged pursuant to
subsection 2.1(e) and the holders of shares of the Qualifying
Holdcos exchanged pursuant to subsection 2.1(g), certificates
representing the Exchangeable Shares issued pursuant to
subsections 2.1(f) and (h). Upon surrender to the Depositary for
cancellation of a certificate which immediately prior to the
Effective Time represented outstanding MDA Common Shares
exchanged pursuant to subsection 2.1(e) or outstanding shares of
Qualifying Holdcos exchanged pursuant to subsection 2.1(g), as
the case may be, together with such other documents and
instruments as would have been required to effect the transfer of
the shares formerly represented by such certificate under the
CBCA and the articles and by-laws of MDA or of the relevant
Qualifying Holdco, as the case may be, and such additional
documents and instruments as the Depositary may reasonably
require, the holder of such surrendered certificate shall be
entitled to receive in exchange therefor, and the Depositary
shall deliver to such holder, a certificate representing that
number (rounded down to the nearest whole number) of Exchangeable
Shares which such holder has the right to receive (together with
any dividends or distributions with respect thereto pursuant to
section 4.2 and any cash in lieu of fractional Exchangeable
Shares pursuant to section 4.3), and the certificate so
surrendered shall forthwith be cancelled. In the event of a
transfer of ownership of MDA Common Shares which is not
registered in the transfer records of MDA, a certificate
representing the proper number of Exchangeable Shares may be
issued to a transferee if the certificate representing such MDA
Common Shares is presented to the Depositary, accompanied by all
documents required to evidence and effect such transfer. Until
surrendered as contemplated by this section 4.1, each certificate
which immediately prior to the Effective Time represented
outstanding MDA Common Shares or outstanding shares of Qualifying
Holdcos, as the case may be, that were purchased for
consideration consisting of Exchangeable Shares shall be deemed
at any time after the Effective Time to represent only the right
to receive upon such surrender (i) the certificate representing
Exchangeable Shares as contemplated by this section 4.1, (ii) a
cash payment in lieu of any fractional Exchangeable Shares as
contemplated by section 4.3 and (iii) any dividends or
distributions with a record date after the Effective Time
theretofore paid or payable with respect to Exchangeable Shares
as contemplated by section 4.2.
4.2 Distributions with Respect to Unsurrendered Certificates
No dividends or other distributions declared or made
after the Effective Time with respect to Exchangeable Shares with
a record date after the Effective Time shall be paid to the
holder of any unsurrendered certificate which, immediately prior
to the Effective Time, represented outstanding MDA Common Shares
or shares of Qualifying Holdcos that were exchanged pursuant to
section 2.1, and no cash payment in lieu of fractional shares
shall be paid to any such holder pursuant to section 4.3, unless
and until such certificate shall be surrendered in accordance
with section 4.1. Subject to applicable law and to section 4.5,
at the time of such surrender of any such certificate (or, in the
case of clause (iii) below, at the appropriate payment date),
there shall be paid to the record holder of the certificate
representing whole Exchangeable Shares into which the shares
represented by the surrendered certificate were exchanged,
without interest, (i) the amount of any cash payable in lieu of a
fractional Exchangeable Share to which such holder is entitled
pursuant to section 4.3, (ii) the amount of dividends or other
distributions with a record date after the Effective Time
theretofore paid with respect to such whole Exchangeable Shares,
and (iii) the amount of dividends or other distributions with a
record date after the Effective Time but prior to surrender and a
payment date subsequent to surrender payable with respect to such
whole Exchangeable Shares.
4.3 No Fractional Shares
No certificates or scrip representing fractional
Exchangeable Shares shall be issued upon the surrender for
exchange of certificates pursuant to section 4.1 and no dividend,
stock split or other change in the capital structure of the
Corporation shall relate to any such fractional security and such
fractional interests shall not entitle the owner thereof to vote
or to exercise any rights as a security holder of the
Corporation. In lieu of any such fractional securities, each
person entitled to a fractional interest in an Exchangeable Share
will receive an amount of cash (rounded to the nearest whole
cent), without interest, equal to the Canadian Dollar Equivalent
as of the Effective Date of the product of (i) such fraction,
multiplied by (ii) the Average Closing Price.
4.4 Lost Certificates
If any certificate that immediately prior to the
Effective Time represented outstanding MDA Common Shares that
were exchanged pursuant to section 2.1 has been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the
person claiming such certificate to be lost, stolen or destroyed,
the Depositary will issue in exchange for such lost, stolen or
destroyed certificate, certificates representing Exchangeable
Shares (and any dividends or distributions with respect thereto
and any cash pursuant to section 4.3) deliverable in respect
thereof as determined in accordance with section 2.1. When
authorizing such payment in exchange for any lost, stolen or
destroyed certificate, the person to whom certificates
representing Exchangeable Shares are to be issued shall, as a
condition precedent to the issuance thereof, give a bond
satisfactory to MDA or the Corporation, as the case may be, in
such sum as MDA or the Corporation may direct or otherwise
indemnify MDA or the Corporation in a manner satisfactory to the
Corporation and MDA against any claim that may be made against
MDA or the Corporation with respect to the certificate alleged to
have been lost, stolen or destroyed.
4.5 Extinguishment of Rights
Any certificate that immediately prior to the Effective
Time represented outstanding MDA Common Shares or outstanding
shares of a Qualifying Holdco that were purchased pursuant to
section 2.1 and not deposited, with all other instruments
required by section 4.1, on or prior to the sixth anniversary of
the Effective Date shall cease to represent a claim or interest
of any kind or nature as a shareholder of MDA, the relevant
Qualifying Holdco or the Corporation. On such date, the
Exchangeable Shares to which the former registered holder of the
certificate referred to in the preceding sentence was ultimately
entitled shall be deemed to have been surrendered to the
Corporation together with all entitlements to dividends,
distributions and interests thereon held for such former
registered holder for no consideration.
ARTICLE 5
CERTAIN RIGHTS OF ORBITAL TO ACQUIRE EXCHANGEABLE SHARES
5.1 Orbital Retraction Call Right
(a) Orbital shall have the overriding right (the
"Retraction Call Right"), notwithstanding the proposed redemption
of Retracted Shares by the Corporation on a Retraction Date, to
purchase from the holder of the Retracted Shares on the
Retraction Date the Retracted Shares upon payment by Orbital to
the holder of an amount per share equal to (a) the Current Market
Price multiplied by the Current Orbital Common Share Equivalent,
in each case determined on the Retraction Date, which shall be
satisfied in full in respect of the Retracted Shares by causing
to be delivered to such holder such whole number of Orbital
Common Shares as is equal to the product obtained by multiplying
the number of Retracted Shares by the Current Orbital Common
Share Equivalent (together with an amount in lieu of any
fractional Orbital Common Share resulting from such calculation
payable in accordance with section 5.5), plus (b) the aggregate
of all dividends declared and unpaid on such Retracted Share
(collectively the "Retraction Call Purchase Price"). In the
event of the exercise of the Retraction Call Right by Orbital,
the holder of the Retracted Shares shall be obligated to sell to
Orbital, and Orbital shall be obligated to purchase, the
Retracted Shares on the Retraction Date upon payment by Orbital
to such holder of the Retraction Call Purchase Price for each
Retracted Share.
(b) In order to exercise the Retraction Call Right, Orbital
must notify the Transfer Agent in writing of its determination to
do so (the "Orbital Call Notice") prior to the expiry of the
third Business Day after the receipt by the Transfer Agent of the
Retraction Request. If Orbital does not so notify the Transfer
Agent, the Transfer Agent will notify the holder as soon as
possible thereafter that Orbital will not exercise the Retraction
Call Right. If Orbital delivers the Orbital Call Notice before
the end of such three Business Day period, the Retraction Request
shall thereupon be considered only to be an offer by the holder
to sell the Retracted Shares to Orbital in accordance with the
Retraction Call Right. In such event, the Corporation shall not
redeem the Retracted Shares and Orbital shall purchase from such
holder and such holder shall sell to Orbital on the Retraction
Date the Retracted Shares for the Retraction Call Purchase Price
for each Retracted Share.
(c) For the purposes of completing a purchase of the
Retracted Shares pursuant to the Retraction Call Right, Orbital
shall deposit with the Transfer Agent, on or before the
Retraction Date, certificates representing the Orbital Common
Shares to be delivered to the holder of the Retracted Shares in
payment of the total Retraction Call Purchase Price for the
Retracted Shares (or the portion thereof payable in Orbital
Common Shares, as the case may be) and a cheque in the amount of
the remaining portion, if any, of the total Retraction Call
Purchase Price (or, if any part of the Retraction Call Purchase
Price consists of dividends payable in property, such property or
property that is the same as or economically equivalent to such
property). Provided that such total Retraction Call Purchase
Price has been so deposited with the Transfer Agent, the closing
of the purchase and sale of the Retracted Shares pursuant to the
Retraction Call Right shall be deemed to have occurred as of the
close of business on the Retraction Date and, for greater
certainty, no redemption by the Corporation of such Retracted
Shares shall take place on the Retraction Date. Orbital shall
cause the Transfer Agent to deliver to the holder of the
Retracted Shares, at the address of such holder recorded in the
securities register of the Corporation for the Exchangeable
Shares or at the address specified in the holder's Retraction
Request or by holding for pick-up by the holder at the office of
the Transfer Agent to which the Retraction Request was delivered,
in payment of such total Retraction Call Purchase Price,
certificates representing the Orbital Common Shares to be
delivered in respect of such payment (which shares shall be duly
issued as fully paid and non-assessable and shall be free and
clear of any Liens) registered in the name of the holder or in
such other name as the holder may request in payment of such and,
if applicable, a cheque of Orbital payable at par and in Canadian
dollars at any branch of the bankers of Orbital or the
Corporation in Canada (or, if any part of the Retraction Call
Purchase Price consists of dividends payable in property, such
property or property that is the same as or economically
equivalent to such property), and such delivery of such
certificates and cheque (and property, if any) to the holder on
behalf of Orbital by the Transfer Agent shall be deemed to be
payment of and shall satisfy and discharge all liability for the
total Retraction Call Purchase Price to the extent that the same
is represented by such share certificates and cheque (and
property, if any), unless such cheque is not paid on due
presentation. On and after the close of business on the
Retraction Date, the holder of the Retracted Shares shall cease
to be a holder of such Retracted Shares and shall not be entitled
to exercise any of the rights of a holder in respect thereof,
other than the right to receive the Retraction Call Purchase
Price, unless upon presentation and surrender of certificates in
accordance with the foregoing provisions, payment of the total
Retraction Call Purchase Price shall not be made, in which case
the rights of such holder shall remain unaffected until the total
Retraction Call Purchase Price has been paid in the manner
hereinbefore provided. On and after the close of business on the
Retraction Date, provided that presentation and surrender of
certificates and payment of the total Retraction Call Purchase
Price has been made in accordance with the foregoing provisions,
the holder of the Retracted Shares so purchased by Orbital shall
thereafter be considered and deemed for all purposes to be a
holder of the Orbital Common Shares delivered to such holder.
5.2 Orbital Liquidation Call Right
(a) Orbital shall have the overriding right (the
"Liquidation Call Right"), in the event of and notwithstanding
the proposed liquidation, dissolution or winding-up of the
Corporation, to purchase from all but not less than all of the
holders (other than Orbital and its Affiliates) of Exchangeable
Shares on the Liquidation Date all but not less than all of the
Exchangeable Shares held by each such holder on payment by
Orbital of an amount per share equal to (a) the Current Market
Price multiplied by the Current Orbital Common Share Equivalent,
in each case determined on the Liquidation Date, which shall be
satisfied in full in respect of all of the Exchangeable Shares
held by such holder by Orbital causing to be delivered to such
holder such whole number of Orbital Common Shares as is equal to
the product obtained by multiplying the number of such
Exchangeable Shares by the Current Orbital Common Share
Equivalent (together with an amount in lieu of any fractional
Orbital Common Share resulting from such calculation payable in
accordance with section 5.5), plus (b) the aggregate of all
dividends declared and unpaid on such Exchangeable Share up to
the Liquidation Date (collectively the "Liquidation Call Purchase
Price"). In the event of the exercise of the Liquidation Call
Right by Orbital, each holder shall be obligated to sell all the
Exchangeable Shares held by the holder to Orbital on the
Liquidation Date on payment by Orbital to the holder of the
Liquidation Call Purchase Price for each such share.
(b) To exercise the Liquidation Call Right, Orbital must
notify the Transfer Agent and the Corporation of Orbital's
intention to exercise such right at least 30 days before the
Liquidation Date in the case of a voluntary liquidation,
dissolution or winding up of the Corporation and at least five
Business Days before the Liquidation Date in the case of an
involuntary liquidation, dissolution or winding up of the
Corporation. The Transfer Agent will notify the holders of
Exchangeable Shares as to whether or not Orbital has exercised
the Liquidation Call Right forthwith after the expiry of the date
by which the same may be exercised by Orbital. If Orbital
exercises the Liquidation Call Right, on the Liquidation Date
Orbital will purchase and the holders will sell all of the
Exchangeable Shares then outstanding for a price per share equal
to the Liquidation Call Purchase Price.
(c) For the purposes of completing the purchase of the
Exchangeable Shares pursuant to the Liquidation Call Right,
Orbital shall deposit with the Transfer Agent, on or before the
Liquidation Date, certificates representing the aggregate number
of Orbital Common Shares deliverable by Orbital (which shares
shall be duly issued as fully paid and non-assessable and shall
be free and clear of any Liens) in payment of the total
Liquidation Call Purchase Price (or the portion thereof payable
in Orbital Common Shares, as the case may be) and a cheque or
cheques in the amount of the remaining portion, if any, of the
total Liquidation Call Purchase Price (or, if any part of the
Liquidation Call Purchase Price consists of dividends payable in
property, such property or property that is the same as or
economically equivalent to such property). Provided that such
total Liquidation Call Purchase Price has been so deposited with
the Transfer Agent, on and after the Liquidation Date the rights
of each holder of Exchangeable Shares will be limited to
receiving such holder's proportionate part of the total
Liquidation Call Purchase Price payable by Orbital upon
presentation and surrender by the holder of certificates
representing the Exchangeable Shares held by such holder and the
holder shall on and after the Liquidation Date be considered and
deemed for all purposes to be the holder of the Orbital Common
Shares delivered to it. Upon surrender to the Transfer Agent of
a certificate or certificates representing Exchangeable Shares,
together with such other documents and instruments as may be
required to effect a transfer of Exchangeable Shares under the
CBCA and the articles and by-laws of the Corporation and such
additional documents and instruments as the Transfer Agent may
reasonably require, the holder of such surrendered certificate or
certificates shall be entitled to receive in exchange therefor,
and the Transfer Agent on behalf of Orbital shall deliver to such
holder, certificates representing the Orbital Common Shares to
which the holder is entitled and a cheque or cheques of Orbital
payable at par and in Canadian dollars at any branch of the
bankers of Orbital or of the Corporation in Canada in payment of
the remaining portion, if any, of the total Liquidation Call
Purchase Price (or, if any part of the Liquidation Call Purchase
Price consists of dividends payable in property, such property or
property that is the same as or economically equivalent to such
property). If Orbital does not exercise the Liquidation Call
Right in the manner described above, on the Liquidation Date the
holders of the Exchangeable Shares will be entitled to receive in
exchange therefor the Liquidation Amount otherwise payable by the
Corporation in connection with the liquidation, dissolution or
winding-up of the Corporation pursuant to sections 4.1 to 4.3 of
the Exchangeable Share Provisions.
5.3 Orbital Redemption Call Right
(a) Orbital shall have the overriding right (the
"Redemption Call Right"), notwithstanding the proposed redemption
of the Exchangeable Shares by the Corporation on the Automatic
Redemption Date, to purchase from all but not less than all of
the holders (other than Orbital or its Affiliates) of
Exchangeable Shares on the Automatic Redemption Date all but not
less than all of the Exchangeable Shares held by each such holder
on payment by Orbital to the holder of an amount per share equal
to (a) the Current Market Price multiplied by the Current Orbital
Common Share Equivalent, in each case determined on the Automatic
Redemption Date, which shall be satisfied in full in respect of
all of the Exchangeable Shares held by such holder by causing to
be delivered to such holder such number of Orbital Common Shares
as is equal to the product obtained by multiplying the number of
such Exchangeable Shares by the Current Orbital Common Share
Equivalent (together with an amount in lieu of any fractional
Orbital Common Share resulting from such calculation payable in
accordance with section 5.5), plus (b) the aggregate of all
dividends declared and unpaid on such Exchangeable Share
(collectively the "Redemption Call Purchase Price"). In the
event of the exercise of the Redemption Call Right by Orbital,
each holder shall be obligated to sell to Orbital, and Orbital
shall be obligated to purchase, all the Exchangeable Shares held
by the holder on the Automatic Redemption Date on payment by
Orbital to the holder of the Redemption Call Purchase Price for
each such share.
(b) To exercise the Redemption Call Right, Orbital must
notify the Transfer Agent, as agent for the holders of the
Exchangeable Shares, and the Corporation of Orbital's intention
to exercise such right at least 75 days before the Automatic
Redemption Date. The Transfer Agent will notify the holders of
the Exchangeable Shares as to whether or not Orbital has
exercised the Redemption Call Right forthwith after the date by
which the same may be exercised by Orbital. If Orbital exercises
the Redemption Call Right, on the Automatic Redemption Date
Orbital will purchase and the holders will sell all of the
Exchangeable Shares then outstanding for a price per share equal
to the Redemption Call Purchase Price.
(c) For the purposes of completing the purchase of the
Exchangeable Shares pursuant to the Redemption Call Right,
Orbital shall deposit with the Transfer Agent, on or before the
Automatic Redemption Date, certificates representing the
aggregate number of Orbital Common Shares deliverable by Orbital
(which shares shall be duly issued as fully paid and
non-assessable and shall be free and clear of any Liens) in
payment of the total Redemption Call Purchase Price (or the
portion thereof payable in Orbital Common Shares, as the case may
be) and a cheque or cheques in the amount of the remaining
portion, if any, of the total Redemption Call Purchase Price (or,
if part of the Redemption Call Purchase Price consists of
dividends payable in property, such property or property the same
as or economically equivalent to such property). Provided that
such total Redemption Call Purchase Price has been so deposited
with the Transfer Agent, on and after the Automatic Redemption
Date the rights of each holder of Exchangeable Shares will be
limited to receiving such holder's proportionate part of the
total Redemption Call Purchase Price payable by Orbital upon
presentation and surrender by the holder of certificates
representing the Exchangeable Shares held by such holder and the
holder shall on and after the Automatic Redemption Date be
considered and deemed for all purposes to be the holder of the
Orbital Common Shares delivered to such holder. Upon surrender
to the Transfer Agent of a certificate or certificates
representing Exchangeable Shares, together with such other
documents and instruments as may be required to effect a transfer
of Exchangeable Shares under the CBCA and the articles and
by-laws of the Corporation and such additional documents and
instruments as the Transfer Agent may reasonably require, the
holder of such surrendered certificate or certificates shall be
entitled to receive in exchange therefor, and the Transfer Agent
on behalf of Orbital shall deliver to such holder, certificates
representing the Orbital Common Shares to which the holder is
entitled and a cheque or cheques of Orbital payable at par and in
Canadian dollars at any branch of the bankers of Orbital or of
the Corporation in Canada in payment of the remaining portion, if
any, of the total Redemption Call Purchase Price (or, if part of
the Redemption Call Purchase Price consists of dividends payable
in property, such property or property the same as or
economically equivalent to such property). If Orbital does not
exercise the Redemption Call Right in the manner described above,
on the Automatic Redemption Date the holders of the Exchangeable
Shares will be entitled to receive in exchange therefor the
redemption price otherwise payable by the Corporation in
connection with the redemption of the Exchangeable Shares
pursuant to sections 6.1 and 6.2 of the Exchangeable Share
Provisions.
5.4 Consideration for Call Rights of Orbital
The Retraction Call Right, the Liquidation Call Right
and the Redemption Call Right are granted to Orbital by the
holders of Exchangeable Shares in consideration of the grant by
Orbital of the Voting Rights, Automatic Exchange Rights and
Exchange Right (as such terms are respectively defined in the
Voting and Exchange Trust Agreement) to the Trustee (as defined
in the Exchangeable Share Provisions) for the benefit of the
holders of Exchangeable Shares.
5.5 Fractional Orbital Common Shares
No certificates or scrip representing fractional
Orbital Common Shares shall be delivered to holders of
Exchangeable Shares pursuant to the provisions hereof. In lieu
of any such fractional security, each person entitled to a
fractional interest in an Orbital Common Share will receive an
amount of cash (rounded to the nearest whole cent), without
interest, equal to the Canadian Dollar Equivalent as of the
fourth Business Day prior to the relevant date of delivery of
certificates representing Orbital Common Shares (the "Fractional
Share Calculation Date") of the product of (i) such fraction,
multiplied by (ii) the closing sale price of Orbital Common
Shares as reported on NASDAQ on the Fractional Share Calculation
Date.
5.6 Economic Equivalence
The Board of Directors shall determine, in good faith
and in its sole discretion (with the assistance of such reputable
and qualified independent financial advisors and/or other experts
as the Board of Directors may require) economic equivalence for
the purposes of any provision herein that requires such a
determination and each such determination shall be conclusive and
binding on Orbital and the holders of Exchangeable Shares, where
applicable.
5.7 Capital Reorganization of Orbital
If at any time there is a capital reorganization of
Orbital that is not provided for in subsection 1.1(o) or a
consolidation, merger, arrangement or amalgamation (statutory or
otherwise) of Orbital with or into another entity (any such event
being called a "Capital Reorganization"), any holder of
Exchangeable Shares whose Exchangeable Shares have not been
exchanged for Orbital Common Shares in accordance with the
provisions hereof prior to the record date for such Capital
Reorganization shall be entitled to receive and shall accept,
upon any such exchange occurring pursuant to the provisions
hereof at any time after the record date for such Capital
Reorganization, in lieu of the Orbital Common Shares that he
would otherwise have been entitled to receive pursuant to the
provisions hereof, the number of shares or other securities of
Orbital or of the body corporate resulting, surviving or
continuing from the Capital Reorganization, or other property,
that such holder would have been entitled to receive as a result
of such Capital Reorganization if, on the record date, he had
been the registered holder of the number of Orbital Common Shares
to which he was then entitled upon any exchange of his
Exchangeable Shares into Orbital Common Shares in accordance with
the provisions hereof, subject to adjustment thereafter in the
same manner, as nearly as may be possible, as is provided for in
subsection 1.1(o); provided that no such Capital Reorganization
shall be carried into effect unless all necessary steps shall
have been taken so that each holder of Exchangeable Shares shall
thereafter be entitled to receive, upon any exchange of his
Exchangeable Shares pursuant to the provisions hereof, such
number of shares or other securities of Orbital or of the body
corporate resulting, surviving or continuing from the Capital
Reorganization, or other property.
5.8 Other Change in Orbital Common Shares
In the case of any reclassification of, or other change
in, the outstanding Orbital Common Shares other than a Common
Share Reorganization or a Capital Reorganization, such changes
shall be made in the rights attaching to the Exchangeable Shares,
without any action on the part of the Corporation or the holders
of the Exchangeable Shares to the extent permitted by applicable
law, effective immediately following the record date for such
reclassification or other change, to the extent necessary to
ensure that holders of Exchangeable Shares shall be entitled to
receive, upon the occurrence at any time after such record date
of any event whereby they would receive Orbital Common Shares
pursuant to the provisions hereof, such shares, securities or
rights as they would have received if their Exchangeable Shares
had been exchanged for Orbital Common Shares pursuant to the
provisions hereof immediately prior to such record date, subject
to adjustment thereafter in the same manner, as nearly as may be
possible, as is provided for in subsection 1.1(o).
ARTICLE 6
AMENDMENT
6.1 Plan of Arrangement Amendment
(a) By instrument in writing the Corporation and MDA may
amend, modify and/or supplement this Plan of Arrangement at any
time and from time to time provided that any such amendment,
modification, or supplement must be (i) agreed to by Orbital,
(ii) filed with the Court and, if made following the Meeting,
approved by the Court and (iii) communicated to holders of MDA
Common Shares and Options in the manner required by the Court (if
so required).
(b) Notwithstanding subsection 6.1(a), by instrument in
writing the Corporation and MDA may modify this Plan up to, but
not after, the termination of the Meeting to add as Qualifying
Holdcos any corporations that, in the sole judgment of the
Corporation, meet the requirements of Section 2.1.2 of the
Combination Agreement, such modification to be evidenced by
adding the name of each such Qualifying Holdco to Appendix B
hereto.
(c) Any amendment, modification or supplement to this Plan
of Arrangement that is approved by the Court following the
Meeting shall be effective only if (i) it is consented to by each
of the Corporation, MDA and Orbital and (ii) it is consented to
by the holders of the MDA Common Shares, the holders of the MDA
1988 Options and the holders of the shares of any Qualifying
Holdcos, in each case to the extent so required by the Court.
APPENDIX A TO PLAN OF ARRANGEMENT
PROVISIONS ATTACHING TO THE EXCHANGEABLE SHARES
The Exchangeable Shares in the capital of the
Corporation shall have the following rights, privileges,
restrictions and conditions.
ARTICLE 1
INTERPRETATION
1.1 For the purposes of these share provisions:
(a) "Affiliate" of any person means any other person
directly or indirectly controlling, controlled by, or
under common control with, that person. For the
purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as
applied to any person, means the possession by another
person, directly or indirectly, of the power to direct
or cause the direction of the management and policies
of that first mentioned person, whether through the
ownership of voting securities, by contract or
otherwise.
(b) "Automatic Redemption Date" means November ,
2000, unless such date shall be accelerated at any time
to a specified earlier date by the Board of Directors
upon at least 75 days prior written notice to the
registered holders of Exchangeable Shares, in which
case the Automatic Redemption Date shall be such
earlier date; provided, however, that the Board of
Directors may so accelerate the Automatic Redemption
Date only at such time as there are outstanding fewer
than 400,000 Exchangeable Shares held by holders other
than Orbital and its Affiliates.
(c) "Board of Directors" means the board of directors
of the Corporation.
(d) "Business Day" means any day other than a
Saturday, a Sunday or a day when banks are not open for
business in one or both of the Commonwealth of Virginia
and Vancouver, British Columbia.
(e) "Canadian Dollar Equivalent" means in respect of
an amount expressed in a foreign currency (the "Foreign
Currency Amount") at any date the product obtained by
multiplying (a) the Foreign Currency Amount by (b) the
noon spot exchange rate on such date for such foreign
currency expressed in Canadian dollars as reported by
the Bank of Canada or, in the event such spot exchange
rate is not available, such exchange rate on such date
for such foreign currency expressed in Canadian dollars
as may be deemed by the Board of Directors to be
appropriate for such purpose.
(f) "Capital Reorganization" has the meaning ascribed
thereto in section 9.2 of these share provisions.
(g) "CBCA" means the Canada Business Corporations Act,
as amended from time to time.
(h) "Corporation" means MacDonald Dettwiler Holdings
Inc. (formerly known as 3173623 Canada Inc.), a
corporation incorporated under the CBCA.
(i) "Current Market Price" means, in respect of an
Orbital Common Share on any date, the Canadian Dollar
Equivalent of the closing sale price of Orbital Common
Shares on such day (or, if no trades of Orbital Common
Shares occurred on such day, on the last trading day
prior thereto on which such trades occurred) reported
on NASDAQ, or, if the Orbital Common Shares are not
then quoted on NASDAQ, on such other stock exchange or
automated quotation system on which the Orbital Common
Shares are listed or quoted, as the case may be, as may
be selected by the Board of Directors for such purpose;
provided, however, that if in the opinion of the Board
of Directors the public distribution or trading
activity of Orbital Common Shares during such period
does not create a market that reflects the fair market
value of an Orbital Common Share, then the Current
Market Price of an Orbital Common Share shall be
determined by the Board of Directors based upon the
advice of such qualified independent financial advisors
as the Board of Directors may deem to be appropriate,
and provided further that any such selection, opinion
or determination by the Board of Directors shall be
conclusive and binding.
(j) "Current Orbital Common Share Equivalent" means,
on any date, the equivalent as at such date of one
Orbital Common Share as at the Effective Date,
expressed to four decimal places, determined by
applying on a cumulative basis the following
adjustments, to the extent applicable by reason of any
transactions occurring in respect of Orbital Common
Shares between the Effective Date and such date, the
Current Orbital Common Share Equivalent as at the
Effective Date being 1.0000:
(i) if Orbital shall (A)
subdivide, redivide or change its then outstanding
Orbital Common Shares into a greater number of
Orbital Common Shares, unless the Corporation is
permitted under applicable law without a vote of
its shareholders to make, and shall simultaneously
make, the same or an economically equivalent
change to the rights of the holders of
Exchangeable Shares, (B) reduce, combine,
consolidate or change its then outstanding Orbital
Common Shares into a lesser number of Orbital
Common Shares, unless the Corporation is permitted
under applicable law without a vote of its
shareholders to make, and shall simultaneously
make, the same or an economically equivalent
change to the rights of the holders of
Exchangeable Shares, or (C) issue Orbital Common
Shares (or securities exchangeable or convertible
into Orbital Common Shares) to the holders of all
or substantially all of its then outstanding
Orbital Common Shares by way of stock dividend or
other distribution (other than to holders of
Orbital Common Shares who exercise an option to
receive stock dividends in lieu of receiving cash
dividends), unless the Corporation is permitted
under applicable law without a vote of its
shareholders to issue or distribute, and shall
simultaneously issue and distribute, equivalent
numbers of Orbital Common Shares or other
securities (adjusted if necessary in accordance
with the Current Orbital Common Share Equivalent),
or the economic equivalent on a per share basis,
to the holders of the Exchangeable Shares (any of
such events being herein called an "Orbital Common
Share Reorganization"), the Current Orbital Common
Share Equivalent shall be adjusted effective
immediately after the record date at which the
holders of Orbital Common Shares are determined
for the purpose of the Orbital Common Share
Reorganization by multiplying the Current Orbital
Common Share Equivalent in effect on such record
date by the quotient obtained when:
(I) the number of
Orbital Common Shares outstanding after the
completion of such Orbital Common Share
Reorganization (but before giving effect to
the issue of any Orbital Common Shares issued
after such record date otherwise than as part
of such Orbital Common Share Reorganization)
including, in the case where securities
exchangeable or convertible into Orbital
Common Shares are distributed, the number of
Orbital Common Shares that would have been
outstanding had such securities been
exchanged for or converted into Orbital
Common Shares on such record date,
is divided by
(II) the number of
Orbital Common Shares outstanding on such
record date before giving effect to the
Orbital Common Share Reorganization;
(ii) if at any time Orbital shall
fix a record date for the issuance of rights,
options or warrants to the holders of all or
substantially all of the Orbital Common Shares
entitling them to subscribe for or to purchase
Orbital Common Shares (or securities of Orbital
convertible into Orbital Common Shares) at a price
per Orbital Common Share (or having a conversion
price per Orbital Common Share) of less than the
Pre-Dilution Market Price on such record date,
unless the Corporation is permitted under
applicable law without a vote of its shareholders
to issue, and shall simultaneously issue,
equivalent numbers of such rights, options or
warrants, adjusted if necessary in accordance with
the Current Orbital Common Share Equivalent at
such record date, or the economic equivalent
thereof on a per share basis, to the holders of
Exchangeable Shares (any such event being herein
referred to as a "Rights Offering"), then the
Current Orbital Common Share Equivalent then in
effect shall be adjusted immediately after such
record date by multiplying the Current Orbital
Common Share Equivalent in effect on such record
date by the quotient obtained when:
(A) the sum of the
number of Orbital Common Shares outstanding
on such record date and the number of
additional Orbital Common Shares offered for
subscription or purchase under the Rights
Offering (or the number of Orbital Common
Shares into which the securities so offered
are convertible)
is divided by
(B) the sum of the
number of Orbital Common Shares outstanding
on such record date and the number determined
by dividing the aggregate price of the total
number of additional Orbital Common Shares
offered for subscription or purchase under
the Rights Offering (or the aggregate
conversion price of the convertible
securities so offered) by the Pre-Dilution
Market Price on such record date.
Any Orbital Common Share owned
by or held for the account of Orbital shall be
deemed not to be outstanding for the purpose of
any such computation. If such rights, options or
warrants are not so issued or if, at the date of
expiry of the rights, options or warrants subject
to the Rights Offering, less than all the rights,
options or warrants have been exercised, then the
Current Orbital Common Share Equivalent shall be
readjusted effective immediately after the date of
expiry to the Current Orbital Common Share
Equivalent which would have been in effect if such
record date had not been fixed or to the Current
Orbital Common Share Equivalent which would then
be in effect on the date of expiry if the only
rights, options or warrants issued had been those
that were exercised, as the case may be;
(iii) if Orbital shall fix a record
date for the making of a distribution (including a
distribution by way of stock dividend) to the
holders of all or substantially all its
outstanding Orbital Common Shares of
(A) shares of Orbital of
any class other than Orbital Common Shares
(or shares convertible into Orbital Common
Shares referred to in (i) (C) above),
(B) rights, options or
warrants (excluding a Rights Offering),
(C) evidences of its
indebtedness (excluding indebtedness
convertible into Orbital Common Shares
referred to in (i) (C) above) or
(D) any other assets
(other than any of the distributions referred
to in (A), (B) or (C), dividends paid in the
ordinary course or an Orbital Common Share
Reorganization)
unless the Corporation is
permitted under applicable law without a vote of
its shareholders to distribute, and shall
simultaneously distribute, the same number of
shares, rights, options or warrants, evidences of
indebtedness or other assets, as the case may be,
adjusted if necessary in accordance with the
Current Orbital Common Share Equivalent as at such
record date, or the economic equivalent thereof on
a per share basis, to the holders of Exchangeable
Shares (any such event being herein referred to as
a "Special Distribution") then, in each such case,
the Current Orbital Common Share Equivalent shall
be adjusted effective immediately after the record
date at which the holders of Orbital Common Shares
are determined for the purposes of the Special
Distribution by multiplying the Current Orbital
Common Share Equivalent in effect on such record
date by the quotient obtained when:
(I) the product obtained
when the number of Orbital Common Shares
outstanding on the record date is multiplied
by the Pre-Dilution Market Price on such
date,
is divided by
(II) the difference
obtained when the amount by which the
aggregate fair market value (as determined by
the Board of Directors, which determination
shall be conclusive) of the shares, rights,
options, warrants, evidences of indebtedness
or assets, as the case may be, distributed in
the Special Distribution exceeds the fair
market value (as determined by the Board of
Directors, which determination shall be
conclusive) of the consideration, if any,
received therefor by Orbital, is subtracted
from the product obtained when the number of
Orbital Common Shares outstanding on the
record date is multiplied by the Pre-Dilution
Market Price on such date,
provided that no such adjustment shall be made if
the result of such adjustment would be to decrease the
Current Orbital Common Share Equivalent in effect
immediately before such record date. Any Orbital
Common Share owned by or held for the account of
Orbital shall be deemed not to be outstanding for the
purpose of any such computation. Such adjustment shall
be made successively whenever such a record date is
fixed. To the extent that such distribution is not so
made, the Current Orbital Common Share Equivalent shall
be readjusted effective immediately to the Current
Orbital Common Share Equivalent which would then be in
effect based upon such shares or rights, options or
warrants or evidences of indebtedness or assets
actually distributed.
(k) "Effective Date" has the meaning ascribed thereto
in the Plan of Arrangement.
(l) "Exchangeable Shares" mean the Exchangeable
Non-Voting Shares of the Corporation having the rights,
privileges, restrictions and conditions set forth
herein.
(m) "Lien" has the meaning ascribed thereto in the
Plan of Arrangement.
(n) "Liquidation Amount" has the meaning ascribed
thereto in section 4.1 of these share provisions.
(o) "Liquidation Call Right" has the meaning ascribed
thereto in section 5.2 of the Plan of Arrangement.
(p) "NASDAQ" means the NASDAQ National Market System;
(q) "Liquidation Date" has the meaning ascribed
thereto in section 4.1 of these share provisions.
(r) "Orbital" means Orbital Sciences Corporation, a
corporation organized and existing under the laws of
the State of Delaware, and any successor corporation.
(s) "Orbital Call Notice" has the meaning ascribed
thereto in subsection 5.1(b) of the Plan of
Arrangement.
(t) "Orbital Common Share Reorganization" has the
meaning ascribed thereto in subsection 1.1(j) of these
share provisions.
(u) "Orbital Common Shares" mean the shares of common
stock of Orbital, with a par value of U.S.$.01 per
share and having one vote per share, and any other
securities into which such shares may be changed.
(v) "Orbital Dividend Declaration Date" means the date
on which the Board of Directors of Orbital declares any
dividend on the Orbital Common Shares.
(w) "Orbital Special Share" means the one share of
Special Voting Preferred Stock of Orbital with a par
value of U.S.$.01 and having voting rights at meetings
of holders of Orbital Common Shares equal to the number
of Exchangeable Shares outstanding from time to time
(other than Exchangeable Shares held by Orbital and its
Affiliates) to be issued to, and voted by, the Trustee
pursuant to the Voting Trust and Exchange Agreement.
(x) "Plan of Arrangement" means the plan of
arrangement relating to the arrangement of the
Corporation under section 192 of the CBCA, to which
plan these share provisions are attached.
(y) "Pre-Dilution Market Price" means, in respect of
an Orbital Common Share on any date, the Canadian
Dollar Equivalent of the average of the closing sale
prices as reported on NASDAQ of such shares during a
period of 20 consecutive trading days ending on the
fourth trading day prior to such date, or, if the
Orbital Common Shares are not then quoted on NASDAQ, on
such other stock exchange or automated quotation system
on which the Orbital Common Shares are listed or quoted
as may be selected by the Board of Directors for such
purpose; provided, however, that if in the opinion of
the Board of Directors the public distribution or
trading activity of Orbital Common Shares during such
period does not create a market that reflects the fair
market value of an Orbital Common Share, then the Pre-
Dilution Market Price of an Orbital Common Share shall
be determined by the Board of Directors based upon the
advice of such qualified independent financial advisors
as the Board of Directors may deem to be appropriate,
and provided further that any such selection, opinion
or determination by the Board of Directors shall be
conclusive and binding;
(z) "Redemption Call Right" has the meaning ascribed
thereto in section 5.3 of the Plan of Arrangement.
(aa) "Redemption Price" has the meaning ascribed
thereto in section 6.1 of these share provisions.
(bb) "Retracted Shares" has the meaning ascribed
thereto in section 5.1 of these share provisions.
(cc) "Retraction Call Right" has the meaning ascribed
thereto in section 5.1 of the Plan of Arrangement.
(dd) "Retraction Date" has the meaning ascribed thereto
in section 5.2 of these share provisions.
(ee) "Retraction Price" has the meaning ascribed
thereto in section 5.1 of these share provisions.
(ff) "Retraction Request" has the meaning ascribed
thereto in section 5.1 of these share provisions.
(gg) "Rights Offering" has the meaning ascribed thereto
in subsection 1.1(j) of these share provisions.
(hh) "Special Distribution" has the meaning ascribed
thereto in subsection 1.1(j) of these share provisions.
(ii) "Support Agreement" means the Support Agreement
between Orbital and the Corporation, made as of the
Effective Date.
(jj) "Transfer Agent" means Montreal Trust Company of
Canada or such other person as may from time to time be
the registrar and transfer agent for the Exchangeable
Shares.
(kk) "Trustee" means State Street Bank and Trust
Company, and any successor trustee appointed under the
Voting and Exchange Trust Agreement.
(ll) "Voting and Exchange Trust Agreement" means the
Voting and Exchange Trust Agreement between the
Corporation, Orbital and the Trustee, made as of the
Effective Date.
1.2 All amounts required to be paid, deposited or delivered
hereunder shall be paid, deposited or delivered after deduction
of any amount required by applicable law to be deducted or
withheld on account of tax and the deduction of such amounts and
remittance to the applicable tax authorities shall, to the extent
thereof, satisfy such requirement to pay, deposit or deliver
hereunder.
ARTICLE 2
RANKING OF EXCHANGEABLE SHARES
2.1 The Exchangeable Shares shall rank senior to the
Class B Preferred Shares and the Common Shares and any other
shares ranking junior to the Exchangeable Shares, with respect to
the payment of dividends and the distribution of assets in the
event of the liquidation, dissolution or winding-up of the
Corporation, whether voluntary or involuntary, or any other
distribution of the assets of the Corporation among its
shareholders for the purpose of winding up its affairs.
ARTICLE 3
DIVIDENDS
3.1 A holder of an Exchangeable Share shall be entitled to
receive and the Board of Directors shall, subject to applicable
law, declare a dividend on each Exchangeable Share (a) in the
case of a cash dividend declared on the Orbital Common Shares, in
an amount in cash for each Exchangeable Share equal to the
Canadian Dollar Equivalent on the Orbital Dividend Declaration
Date of the cash dividend declared on such number of Orbital
Common Shares as is equal to the Current Orbital Common Share
Equivalent on the Orbital Dividend Declaration Date or (b) in the
case of a stock dividend declared on the Orbital Common Shares to
be paid in Orbital Common Shares, in such whole number of
Exchangeable Shares for the Exchangeable Shares held by each
holder as is equal to the number of Orbital Common Shares to be
paid as a dividend per Orbital Common Shares (if such calculation
results in a fraction of an Exchangeable Share, the holder shall
receive in lieu of such fraction an amount in cash equal to the
product obtained by multiplying the amount that would be payable
in respect of an equal fraction of an Orbital Common Share as at
the Orbital Dividend Declaration Date, calculated in accordance
with section 9.4, by the Current Orbital Common Share Equivalent
as at such date) or (c) in the case of a dividend declared on the
Orbital Common Shares to be paid in property other than cash or
Orbital Common Shares (including without limitation other
securities of Orbital), in such type and amount of property for
each Exchangeable Share as is the same as or economically
equivalent (as determined by the Board of Directors in accordance
with section 9.1) to the type and amount of property to be paid
as a dividend on such number of Orbital Common Shares as is equal
to the Current Orbital Common Share Equivalent on the Orbital
Dividend Declaration Date. Such dividends shall be paid out of
money, assets or property of the Corporation properly applicable
to the payment of dividends, or out of authorized but unissued
Exchangeable Shares.
3.2 Cheques of the Corporation payable at par at any branch
of the bankers of the Corporation shall be issued in respect of
any cash dividends contemplated by subsection 3.1(a) hereof or in
respect of any cash amount payable in lieu of a fractional
Exchangeable Share in connection with any stock dividends
contemplated by subsection 3.1(b) hereof and the sending of such
a cheque to each holder of an Exchangeable Share shall satisfy
the cash dividend represented thereby unless the cheque is not
paid on presentation. Certificates registered in the name of the
registered holder of Exchangeable Shares shall be issued or
transferred in respect of any stock dividends contemplated by
subsection 3.1(b) hereof and the sending of such a certificate to
each holder of an Exchangeable Share shall satisfy the stock
dividend represented thereby. Such other type and amount of
property in respect of any dividends contemplated by
subsection 3.1(c) hereof shall be issued, distributed or
transferred by the Corporation in such manner as it shall
determine and the issuance, distribution or transfer thereof by
the Corporation to each holder of an Exchangeable Share shall
satisfy the dividend represented thereby. No holder of an
Exchangeable Share shall be entitled to recover by action or
other legal process against the Corporation any dividend that is
represented by a cheque that has not been duly presented to the
Corporation's bankers for payment or that otherwise remains
unclaimed for a period of six years from the date on which such
dividend was payable.
3.3 The record date for the determination of the holders of
Exchangeable Shares entitled to receive payment of, and the
payment date for, any dividend declared on the Exchangeable
Shares under section 3.1 hereof shall be the same dates as the
record date and payment date, respectively, for the corresponding
dividend declared on the Orbital Common Shares.
3.4 If on any payment date for any dividends declared on
the Exchangeable Shares under section 3.1 hereof the dividends
are not paid in full on all of the Exchangeable Shares then
outstanding, any such dividends that remain unpaid shall be paid
on a subsequent date or dates determined by the Board of
Directors on which the Corporation shall have sufficient moneys,
assets or property properly applicable to the payment of such
dividends.
3.5 So long as any of the Exchangeable Shares are
outstanding, the Corporation shall not at any time without, but
may at any time with, the approval of the holders of the
Exchangeable Shares given as specified in section 8.2 of these
share provisions:
(a) pay any dividends on the Class B Preferred Shares
or the Common Shares, or any other shares ranking
junior to the Exchangeable Shares, other than stock
dividends payable in Common Shares or any such other
shares ranking junior to the Exchangeable Shares, as
the case may be;
(b) redeem or purchase or make any capital
distribution in respect of Class B Preferred Shares or
Common Shares or any other shares ranking junior to the
Exchangeable Shares;
(c) redeem or purchase any other shares of the
Corporation ranking equally with the Exchangeable
Shares with respect to the payment of dividends or on
any liquidation distribution;
(d) issue any Exchangeable Shares other than (i) by
way of stock dividends to the holders of such
Exchangeable Shares, (ii) otherwise pro rata to holders
of Exchangeable Shares, (iii) as contemplated by the
Support Agreement or (iv) pursuant to any agreements or
rights in existence at the Effective Date; or
(e) issue any other shares of the Corporation ranking
equally with or senior to the Exchangeable Shares;
provided that the restrictions in subsections 3.5(a), 3.5(b) and
3.5(c) shall not apply if all dividends on the outstanding
Exchangeable Shares corresponding to dividends declared to date
on the Orbital Common Shares shall have been declared on the
Exchangeable Shares and paid in full.
ARTICLE 4
DISTRIBUTION ON LIQUIDATION
4.1 In the event of the liquidation, dissolution or
winding-up of the Corporation or any other distribution of the
assets of the Corporation among its shareholders for the purpose
of winding up its affairs, a holder of Exchangeable Shares shall
be entitled, subject to applicable law, to receive from the
assets of the Corporation in respect of each Exchangeable Share
held by such holder on the effective date (the "Liquidation
Date") of such liquidation, dissolution or winding-up, before any
distribution of any part of the assets of the Corporation among
the holders of the Class B Preferred Shares, the Common Shares or
any other shares ranking junior to the Exchangeable Shares, an
amount per share equal to (a) the Current Market Price multiplied
by the Current Orbital Common Share Equivalent, in each case
determined on the Liquidation Date, which shall be satisfied in
full in respect of all of the Exchangeable Shares held by such
holder by the Corporation causing to be delivered to such holder
such whole number of Orbital Common Shares as is equal to the
product obtained by multiplying the number of such Exchangeable
Shares by the Current Orbital Common Share Equivalent (together
with an amount in lieu of any fractional Orbital Common Share
resulting from such calculation payable in accordance with
section 9.4), plus (b) the aggregate of all declared and unpaid
dividends on each such Exchangeable Share up to the Liquidation
Date (collectively the "Liquidation Amount").
4.2 On or promptly after the Liquidation Date, and subject
to the exercise by Orbital of the Liquidation Call Right, the
Corporation shall cause to be delivered to the holders of the
Exchangeable Shares the Liquidation Amount for each such
Exchangeable Share upon presentation and surrender of the
certificates representing such Exchangeable Shares, together with
such other documents and instruments as may be required to effect
a transfer of Exchangeable Shares under the CBCA and the by-laws
of the Corporation and such additional documents and instruments
as the Transfer Agent may reasonably require, at the registered
office of the Corporation or at any office of the Transfer Agent
as may be specified by the Corporation by notice to the holders
of the Exchangeable Shares. Payment of the total Liquidation
Amount for such Exchangeable Shares shall be made by delivery to
each holder, at the address of the holder recorded in the
securities register of the Corporation for the Exchangeable
Shares or by holding for pick-up by the holder at the registered
office of the Corporation or at any office of the Transfer Agent
as may be specified by the Corporation by notice to the holders
of Exchangeable Shares, on behalf of the Corporation of
certificates representing the Orbital Common Shares to be
delivered in payment thereof (which shares shall be duly issued
as fully paid and non-assessable and shall be free and clear of
any Liens) and a cheque of the Corporation payable at par at any
branch of the bankers of the Corporation in respect of any
fractional Orbital Common Share and all declared and unpaid
dividends comprising part of the total Liquidation Amount (or, if
any of such dividends were payable in property, such property or
property that is the same as or economically equivalent to such
property). On and after the Liquidation Date, the holders of the
Exchangeable Shares shall cease to be holders of such
Exchangeable Shares and shall not be entitled to exercise any of
the rights of holders in respect thereof, other than the right to
receive the total Liquidation Amount in respect of their
Exchangeable Shares, unless payment of the total Liquidation
Amount for such Exchangeable Shares shall not be made upon
presentation and surrender of share certificates in accordance
with the foregoing provisions, in which case the rights of the
holders shall remain unaffected until the total Liquidation
Amount has been paid in the manner hereinbefore provided. The
Corporation shall have the right at any time on or after the
Liquidation Date to deposit or cause to be deposited the total
Liquidation Amount in respect of the Exchangeable Shares
represented by certificates that have not at the Liquidation Date
been surrendered by the holders thereof in a custodial account
with any chartered bank or trust company in Canada. Upon such
deposit being made, the rights of the holders of Exchangeable
Shares after such deposit shall be limited to receiving the total
Liquidation Amount (without interest) for such Exchangeable
Shares so deposited, against presentation and surrender of the
said certificates held by them, respectively, in accordance with
the foregoing provisions. Upon such payment or deposit of the
total Liquidation Amount, the holders of the Exchangeable Shares
shall thereafter be considered and deemed for all purposes to be
the holders of the Orbital Common Shares delivered to them.
4.3 After the Corporation has satisfied its obligations to
pay the holders of the Exchangeable Shares the Liquidation Amount
per Exchangeable Share pursuant to section 4.1 of these share
provisions, such holders shall not be entitled to share in any
further distribution of the assets of the Corporation.
ARTICLE 5
RETRACTION OF EXCHANGEABLE SHARES BY HOLDER
5.1 A holder of Exchangeable Shares shall be entitled at
any time, subject to the exercise by Orbital of the Retraction
Call Right and otherwise upon compliance with the provisions of
this Article 5, to require the Corporation to redeem any or all
of the Exchangeable Shares registered in the name of such holder
(the "Retracted Shares") for an amount for each Retracted Share
equal to (a) the Current Market Price multiplied by the Current
Orbital Common Share Equivalent, in each case determined on the
Retraction Date, which shall be satisfied in full in respect of
the Retracted Shares by the Corporation causing to be delivered
to such holder such whole number of Orbital Common Shares as is
equal to the product obtained by multiplying the number of
Retracted Shares by the Current Orbital Common Share Equivalent
(together with an amount in lieu of any fractional Orbital Common
Share resulting from such calculation payable in accordance with
section 9.4), plus (b) the aggregate of all dividends declared
and unpaid on each Retracted Share up to the Retraction Date
(collectively the "Retraction Price", provided that if the record
date for any such declared and unpaid dividend occurs on or after
the Retraction Date the Retraction Price shall not include such
declared and unpaid dividends). To effect such redemption, the
holder shall present and surrender at any office of the Transfer
Agent listed on Schedule A hereto the certificate or certificates
representing the Exchangeable Shares which the holder desires to
have the Corporation redeem, together with such other documents
and instruments as may be required to effect a transfer of
Exchangeable Shares under the CBCA and the by-laws of the
Corporation and such additional documents and instruments as the
Transfer Agent may reasonably require, and together with a duly
executed statement (the "Retraction Request") in the form of
Schedule A hereto or in such other form as may be acceptable to
the Transfer Agent:
(a) specifying that the holder desires to have the
Retracted Shares represented by such certificate or
certificates redeemed by the Corporation; and
(b) acknowledging the Retraction Call Right of Orbital
to purchase all but not less than all the Retracted
Shares directly from the holder and that the Retraction
Request shall be deemed to be an irrevocable offer by
the holder to sell the Retracted Shares to Orbital in
accordance with the Retraction Call Right.
5.2 Subject to the exercise by Orbital of the Retraction
Call Right, upon receipt by the Transfer Agent in the manner
specified in section 5.1 hereof of a certificate or certificates
representing the number of Exchangeable Shares which the holder
desires to have the Corporation redeem, together with such other
documents and instruments as may be required pursuant to
section 5.1 and a Retraction Request, the Corporation shall
redeem the Retracted Shares effective at the close of business on
the sixth Business Day after the Retraction Request is received
(the "Retraction Date") and shall cause to be delivered to such
holder the total Retraction Price with respect to such shares.
If only a part of the Exchangeable Shares represented by any
certificate are redeemed (or purchased by Orbital pursuant to the
Retraction Call Right), a new certificate for the balance of such
Exchangeable Shares shall be issued to the holder at the expense
of the Corporation.
5.3 Upon receipt by the Transfer Agent of a Retraction
Request, the Transfer Agent shall forthwith notify Orbital
thereof. In order to exercise the Retraction Call Right, Orbital
must deliver an Orbital Call Notice to the Transfer Agent prior
to the expiry of the third Business Day after the receipt by the
Transfer Agent of the Retraction Request. If Orbital does not so
notify the Transfer Agent, the Transfer Agent will notify the
holder as soon as possible thereafter that Orbital will not
exercise the Retraction Call Right. If Orbital delivers the
Orbital Call Notice before the end of such three Business Day
period, the Retraction Request shall thereupon be considered only
to be an offer by the holder to sell the Retracted Shares to
Orbital in accordance with the Retraction Call Right. In such
event, the Corporation shall not redeem the Retracted Shares and
Orbital shall purchase from such holder and such holder shall
sell to Orbital on the Retraction Date the Retracted Shares
pursuant to the Retraction Call Right.
5.4 If a Retraction Request is received by the Transfer
Agent pursuant to section 5.1 and Orbital has not exercised the
Retraction Call Right, the Corporation shall cause the Transfer
Agent to deliver to the holder of the Retracted Shares, at the
address of the holder recorded in the securities register of the
Corporation for the Exchangeable Shares or at the address
specified in the holder's Retraction Request or by holding for
pick-up by the holder at the office of the Transfer Agent to
which the Retraction Request was delivered, certificates
representing the Orbital Common Shares to be delivered to the
holder in payment of the total Retraction Price for the Retracted
Shares (or the portion thereof payable in Orbital Common Shares,
as the case may be) (which shares shall be duly issued as fully
paid and non-assessable and shall be free and clear of any Liens)
registered in the name of the holder or in such other name as the
holder may request and a cheque of the Corporation payable at par
at any branch of the bankers of the Corporation in payment of the
remaining portion, if any, of the total Retraction Price (or, if
any part of the Retraction Price consists of dividends payable in
property, such property or property that is the same as or
economically equivalent to such property), and such delivery of
such certificates and cheque (and property, if any) on behalf of
the Corporation by the Transfer Agent shall be deemed to be
payment of and shall satisfy and discharge all liability for the
total Retraction Price, to the extent that the same is
represented by such share certificates and cheque (and property,
if any), unless such cheque is not paid on due presentation.
5.5 On and after the close of business on the Retraction
Date, the holder of the Retracted Shares shall cease to be a
holder of such Retracted Shares and shall not be entitled to
exercise any of the rights of a holder in respect thereof, other
than the right to receive his proportionate part of the total
Retraction Price, unless upon presentation and surrender of
certificates in accordance with the foregoing provisions, payment
of the total Retraction Price shall not be made, in which case
the rights of such holder shall remain unaffected until the total
Retraction Price has been paid in the manner hereinbefore
provided. On and after the close of business on the Retraction
Date, provided that presentation and surrender of certificates
and payment of the total Retraction Price has been made in
accordance with the foregoing provisions, the holder of the
Retracted Shares so redeemed by the Corporation shall thereafter
be considered and deemed for all purposes to be a holder of the
Orbital Common Shares delivered to it.
5.6 Notwithstanding any other provision of this Article 5,
the Corporation shall not be obligated to redeem Retracted Shares
specified by a holder in a Retraction Request to the extent that
such redemption of Retracted Shares would be contrary to solvency
requirements or other provisions of applicable law. If the
Corporation believes that on any Retraction Date it would not be
permitted by any of such provisions to redeem the Retracted
Shares tendered for redemption on such date, and provided that
Orbital shall not have exercised the Retraction Call Right with
respect to the Retracted Shares, the Corporation shall be
obligated to redeem Retracted Shares specified by a holder in a
Retraction Request only to the extent of the maximum number that
may be so redeemed (rounded down to a whole number of shares) as
would not be contrary to such provisions on a pro rata basis and
shall notify the holder at least two Business Days prior to the
Retraction Date as to the number of Retracted Shares which will
not be redeemed by the Corporation and the Corporation shall
issue to each holder of Retracted Shares a new certificate, at
the expense of the Corporation, representing the Retracted Shares
not redeemed by the Corporation pursuant to section 5.2 hereof.
The holder of any such Retracted Shares not redeemed by the
Corporation pursuant to section 5.2 of these share provisions as
a result of solvency requirements of applicable law shall be
deemed by giving the Retraction Request to require Orbital to
purchase such Retracted Shares from such holder pursuant to the
Exchange Right (as defined in the Voting and Exchange Trust
Agreement).
ARTICLE 6
REDEMPTION OF EXCHANGEABLE SHARES
6.1 Subject to applicable law and if Orbital does not
exercise the Redemption Call Right, the Corporation shall on the
Automatic Redemption Date redeem the whole of the then
outstanding Exchangeable Shares for an amount per share equal to
(a) the Current Market Price multiplied by the Current Orbital
Common Share Equivalent, in each case determined on the Automatic
Redemption Date, which shall be satisfied in full in respect of
all of the Exchangeable Shares held by each holder of
Exchangeable Shares by the Corporation causing to be delivered to
such holder such whole number of Orbital Common Shares as is
equal to the product obtained by multiplying the number of such
Exchangeable Shares by the Current Orbital Common Share
Equivalent (together with an amount in lieu of any fractional
Orbital Common Share resulting from such calculation payable in
accordance with section 9.4), plus (b) the aggregate of all
declared and unpaid dividends thereon up to the Automatic
Redemption Date (collectively the "Redemption Price").
6.2 On or after the Automatic Redemption Date and subject
to the exercise by Orbital of the Redemption Call Right, the
Corporation shall cause to be delivered to the holders of the
Exchangeable Shares the Redemption Price for each such
Exchangeable Share upon presentation and surrender at any office
of the Transfer Agent of the certificates representing such
Exchangeable Shares, together with such other documents and
instruments as may be required to effect a transfer of
Exchangeable Shares under the CBCA and the by-laws of the
Corporation and such additional documents and instruments as the
Transfer Agent may reasonably require. Payment of the total
Redemption Price for such Exchangeable Shares shall be made by
delivery to each holder, at the address of the holder recorded in
the securities register of the Corporation or by holding for pick
up by the holder at the registered office of the Corporation or
at any office of the Transfer Agent as may be specified by the
Corporation in such notice, on behalf of the Corporation of
certificates representing the Orbital Common Shares to be
delivered to the holder in payment of the Redemption Price (or
the portion thereof payable in Orbital Common Shares, as the case
may be) (which shares shall be duly issued as fully paid and
non-assessable and shall be free and clear of any Liens) and a
cheque of the Corporation payable at par at any branch of the
bankers of the Corporation in respect of any fractional Orbital
Common Share and all declared and unpaid dividends comprising
part of the total Redemption Price (or, if any of such dividends
are payable in property, such property). On and after the
Automatic Redemption Date, the holders of the Exchangeable Shares
called for redemption shall cease to be holders of such
Exchangeable Shares and shall not be entitled to exercise any of
the rights of holders in respect thereof, other than the right to
receive the total Redemption Price for their Exchangeable Shares,
unless payment of the total Redemption Price for such
Exchangeable Shares shall not be made upon presentation and
surrender of certificates in accordance with the foregoing
provisions, in which case the rights of the holders shall remain
unaffected until the total Redemption Price has been paid in the
manner hereinbefore provided. The Corporation shall have the
right at any time to deposit or cause to be deposited the total
Redemption Price of the Exchangeable Shares so called for
redemption, or of such of the said Exchangeable Shares
represented by certificates that have not at the date of such
deposit been surrendered by the holders thereof in connection
with such redemption, in a custodial account with any chartered
bank or trust company in Canada named in such notice. Upon the
later of such deposit being made and the Automatic Redemption
Date, the Exchangeable Shares in respect whereof such deposit
shall have been made shall be redeemed and the rights of the
holders thereof after such deposit or Automatic Redemption Date,
as the case may be, shall be limited to receiving the total
Redemption Price for such Exchangeable Shares so deposited,
against presentation and surrender of the said certificates held
by them, respectively, in accordance with the foregoing
provisions. Upon such payment or deposit of the total Redemption
Price, the holders of the Exchangeable Shares shall thereafter be
considered and deemed for all purposes to be holders of the
Orbital Common Shares delivered to them.
ARTICLE 7
VOTING RIGHTS
7.1 Except as required by applicable law and the provisions
of sections 3.5, 8.1 and 10.2, the holders of the Exchangeable
Shares shall not be entitled as such to receive notice of or to
attend any meeting of the shareholders of the Corporation or to
vote at any such meeting.
ARTICLE 8
AMENDMENT AND APPROVAL
8.1 The rights, privileges, restrictions and conditions
attaching to the Exchangeable Shares may be added to, changed or
removed but only with the approval of the holders of the
Exchangeable Shares given as hereinafter specified.
8.2 Any approval given by the holders of the Exchangeable
Shares to add to, change or remove any right, privilege,
restriction or condition attaching to the Exchangeable Shares or
any other matter requiring the approval or consent of the holders
of the Exchangeable Shares shall be deemed to have been
sufficiently given if it shall have been given in accordance with
applicable law subject to a minimum requirement that such
approval be evidenced by resolution passed by not less than
two-thirds of the votes cast on such resolution at a meeting of
holders of Exchangeable Shares duly called and held at which the
holders of at least 50% of the outstanding Exchangeable Shares at
that time are present or represented by proxy. If at any such
meeting the holders of at least 50% of the outstanding
Exchangeable Shares at that time are not present or represented
by proxy within one-half hour after the time appointed for such
meeting then the meeting shall be adjourned to such date not less
than 10 days thereafter and to such time and place as may be
designated by the Chairman of such meeting. At such adjourned
meeting the holders of Exchangeable Shares present or represented
by proxy thereat may transact the business for which the meeting
was originally called and a resolution passed thereat by the
affirmative vote of not less than two thirds of the votes cast on
such resolution at such meeting shall constitute the approval or
consent of the holders of the Exchangeable Shares.
ARTICLE 9
ECONOMIC EQUIVALENCE; CHANGES RELATING TO ORBITAL
9.1 The Board of Directors shall determine, in good faith
and in its sole discretion (with the assistance of such reputable
and qualified independent financial advisors and/or other experts
as the Board of Directors may require) economic equivalence for
the purposes of any provision herein that requires such a
determination and each such determination shall be conclusive and
binding on Orbital, where applicable.
9.2 If at any time there is a capital reorganization of
Orbital that is not provided for in subsection 1.1(j) or a
consolidation, merger, arrangement or amalgamation (statutory or
otherwise) of Orbital with or into another entity (any such event
being called a "Capital Reorganization"), any holder of
Exchangeable Shares whose Exchangeable Shares have not been
exchanged for Orbital Common Shares in accordance with the
provisions hereof prior to the record date for such Capital
Reorganization shall be entitled to receive and shall accept,
upon any such exchange occurring pursuant to the provisions
hereof at any time after the record date for such Capital
Reorganization, in lieu of the Orbital Common Shares that he
would otherwise have been entitled to receive pursuant to the
provisions hereof, the number of shares or other securities of
Orbital or of the body corporate resulting, surviving or
continuing from the Capital Reorganization, or other property,
that such holder would have been entitled to receive as a result
of such Capital Reorganization if, on the record date, he had
been the registered holder of the number of Orbital Common Shares
to which he was then entitled upon any exchange of his
Exchangeable Shares into Orbital Common Shares in accordance with
the provisions hereof, subject to adjustment thereafter in the
same manner, as nearly as may be possible, as is provided for in
subsection 1.1(j); provided that no such Capital Reorganization
shall be carried into effect unless all necessary steps shall
have been taken so that each holder of Exchangeable Shares shall
thereafter be entitled to receive, upon any exchange of his
Exchangeable Shares pursuant to the provisions hereof, such
number of shares or other securities of Orbital or of the body
corporate resulting, surviving or continuing from the Capital
Reorganization, or other property.
9.3 In the case of any reclassification of, or other change
in, the outstanding Orbital Common Shares other than a Common
Share Reorganization or a Capital Reorganization, such changes
shall be made in the rights attaching to the Exchangeable Shares,
without any action on the part of the Corporation or the holders
of the Exchangeable Shares to the extent permitted by applicable
law, effective immediately following the record date for such
reclassification or other change, to the extent necessary to
ensure that holders of Exchangeable Shares shall be entitled to
receive, upon the occurrence at any time after such record date
of any event whereby they would receive Orbital Common Shares
pursuant to the provisions hereof, such shares, securities or
rights as they would have received if their Exchangeable Shares
had been exchanged for Orbital Common Shares pursuant to the
provisions hereof immediately prior to such record date, subject
to adjustment thereafter in the same manner, as nearly as may be
possible, as is provided for in subsection 1.1(j).
9.4 No certificates or scrip representing fractional
Orbital Common Shares shall be delivered to holders of
Exchangeable Shares pursuant to the provisions hereof. In lieu
of any such fractional security, each person entitled to a
fractional interest in an Orbital Common Share will receive an
amount of cash (rounded to the nearest whole cent), without
interest, equal to the Canadian Dollar Equivalent as of the
fourth Business Day prior to the relevant date of delivery of
certificates representing Orbital Common Shares (the "Fractional
Share Calculation Date") of the product of (i) such fraction,
multiplied by (ii) the closing sale price of Orbital Common
Shares as reported on NASDAQ on the Fractional Share Calculation
Date.
ARTICLE 10
ACTIONS BY THE CORPORATION UNDER SUPPORT AGREEMENT
10.1 The Corporation will take all such actions and do all
such things as shall be necessary or advisable to perform and
comply with and to ensure performance and compliance by Orbital
with all provisions of the Support Agreement and the Voting and
Exchange Trust Agreement applicable to the Corporation and
Orbital, respectively, in accordance with the terms thereof
including, without limitation, taking all such actions and doing
all such things as shall be necessary or advisable to enforce to
the fullest extent possible for the direct benefit of the
Corporation and the holders of Exchangeable Shares all rights and
benefits in favour of the Corporation under or pursuant to such
agreements.
10.2 The Corporation shall not propose, agree to or
otherwise give effect to any amendment to, or waiver or
forgiveness of its rights or obligations under, the Support
Agreement and the Voting and Exchange Trust Agreement without the
approval of the holders of the Exchangeable Shares given in
accordance with section 8.2 of these share provisions other than
such amendments, waivers and/or forgiveness as may be necessary
or advisable for the purposes of:
(a) adding to the covenants of the other party or
parties to such agreement for the protection of the
Corporation or the holders of Exchangeable Shares; or
(b) making such provisions or modifications not
inconsistent with such agreements as may be necessary
or desirable with respect to matters or questions
arising thereunder which, in the opinion of the Board
of Directors, it may be expedient to make, provided
that the Board of Directors shall be of the opinion,
after consultation with counsel, that such provisions
and modifications will not be prejudicial to the
interests of the holders of the Exchangeable Shares; or
(c) making such changes in or corrections to such
agreements which, on the advice of counsel to the
Corporation, are required for the purpose of curing or
correcting any ambiguity or defect or inconsistent
provision or clerical omission or mistake or manifest
error contained therein, provided that the Board of
Directors shall be of the opinion, after consultation
with counsel, that such changes or corrections will not
be prejudicial to the interests of the holders of the
Exchangeable Shares.
ARTICLE 11
LEGEND
11.1 The certificates evidencing the Exchangeable Shares
shall contain or have affixed thereto a legend, in form and on
terms approved by the Board of Directors, with respect to the
Support Agreement, the provisions of the Plan of Arrangement
relating to the Retraction Call Right, the Liquidation Call Right
and the Redemption Call Right, and the Voting and Exchange Trust
Agreement (including the provisions with respect to the voting
rights, exchange right and automatic exchange thereunder).
ARTICLE 12
NOTICES
12.1 Any notice, request or other communication to be given
to the Corporation by a holder of Exchangeable Shares shall be in
writing and shall be valid and effective if given by mail
(postage prepaid) or by telecopy or by delivery to the registered
office of the Corporation and addressed to the attention of the
President. Any such notice, request or other communication, if
given by mail, telecopy or delivery, shall only be deemed to have
been given and received upon actual receipt thereof by the
Corporation.
12.2 Any presentation and surrender by a holder of
Exchangeable Shares to the Corporation or the Transfer Agent of
certificates representing Exchangeable Shares in connection with
the liquidation, dissolution or winding up of the Corporation or
the retraction or redemption of Exchangeable Shares shall be made
by registered mail (postage prepaid) or by delivery to the
registered office of the Corporation or to such office of the
Transfer Agent as may be specified by the Corporation, in each
case addressed to the attention of the President of the
Corporation. Any such presentation and surrender of certificates
shall only be deemed to have been made and to be effective upon
actual receipt thereof by the Corporation or the Transfer Agent,
as the case may be. Any such presentation and surrender of
certificates made by registered mail shall be at the sole risk of
the holder mailing the same.
12.3 Any notice, request or other communication to be given
to a holder of Exchangeable Shares by or on behalf of the
Corporation shall be in writing and shall be valid and effective
if given by mail (postage prepaid) or by delivery to the address
of the holder recorded in the securities register of the
Corporation or, in the event of the address of any such holder
not being so recorded, then at the last known address of such
holder. Any such notice, request or other communication, if
given by mail, shall be deemed to have been given and received on
the fifth Business Day following the date of mailing and, if
given by delivery, shall be deemed to have been given and
received on the date of delivery. Accidental failure or omission
to give any notice, request or other communication to one or more
holders of Exchangeable Shares shall not invalidate or otherwise
alter or affect any action or proceeding to be taken by the
Corporation pursuant thereto.
PROVISIONS ATTACHING TO THE CLASS B PREFERRED SHARES
The Class B Preferred Shares in the capital of the
Corporation shall have attached thereto the following rights,
privileges, restrictions and conditions:
Dividends
Subject to the prior rights of the holders of the
Exchangeable Shares and any other shares ranking senior to the
Class B Preferred Shares with respect to priority in the payment
of dividends, the holders of Class B Preferred Shares shall be
entitled to receive dividends and the Corporation shall pay
dividends thereon, as and when declared by the Board of
Directors, in the amount of $0.10 per share per annum payable
quarterly on March 31, June 30, September 30 and December 31 in
each year (each a "Dividend Payment Date") in arrears. Such
dividends shall be cumulative dividends and shall accrue from the
date of issue, or from the most recent Dividend Payment Date on
which dividends were paid, to and including the date to which the
computation of dividends is to be made. A cheque for the amount
of the dividend less any required deduction shall be mailed by
first class mail to the addresses of the registered holders
thereof.
Redemption by the Corporation
The Corporation may, upon giving notice as hereinafter
provided, redeem at any time the whole, but not a part only, of
the then outstanding Class B Preferred Shares on payment for each
share to be redeemed of a sum of $1.00 together with all accrued
unpaid preferential cumulative cash dividends thereon whether or
not declared (the "Redemption Amount").
In the case of redemption of Class B Preferred Shares
under the provisions of the foregoing paragraph hereof, the
Corporation shall at least 20 days before the date specified for
redemption mail to each person who at the date of mailing is a
registered holder of Class B Preferred Shares to be redeemed a
notice in writing of the intention of the Corporation to redeem
such Class B Preferred Shares. Such notice shall be mailed by
letter, postage prepaid, addressed to each such shareholder at
his address as it appears on the records of the Corporation;
provided, however, that accidental failure to give any such
notice to one or more of such shareholders 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. On or after the date so specified for redemption, the
Corporation shall pay or cause to be paid to or to the order of
the registered holders of the Class B Preferred Shares to be
redeemed the Redemption Amount thereof on presentation and
surrender of the certificates representing the Class B Preferred
Shares called for redemption at the registered office of the
Corporation, or any other place or places designated in the
notice of redemption. On and after the date specified for
redemption in any such notice the Class B Preferred Shares called
for redemption shall cease to be entitled to dividends and the
holders thereof shall not be entitled to exercise any of the
rights of shareholders in respect thereof unless payment of the
Redemption Amount shall not be made upon presentation of
certificates in accordance with the foregoing provisions, in
which case the rights of the shareholders shall remain
unaffected.
The Corporation shall have the right at any time after
the mailing of notice of its intention to redeem any Class B
Preferred Shares as aforesaid to deposit the Redemption Amount
for the shares so called for redemption or for 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 a
specified chartered bank in Canada, named in such notice of
redemption, 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 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 deemed to be
redeemed and the rights of the holders thereof shall be limited
to receiving without interest their proportionate part of the
total Redemption Amount so deposited against presentation and
surrender of the said certificates held by them respectively.
Any interest allowed on any such deposit shall belong to the
Corporation. Redemption moneys that are represented by a cheque
which has not been presented to the Corporation's bankers for
payment or that otherwise remain unclaimed (including moneys held
on deposit to a special account as provided for above) for a
period of 6 years from the date specified for redemption shall be
forfeited to the Corporation.
Redemption at the Option of the Holders of the Class B Preferred
Shares
Every registered holder of Class B Preferred Shares
may, at his option and in the manner hereinafter provided,
require the Corporation to redeem at any time after the fifth
anniversary of the Effective Date all, but not part only, of the
Class B Preferred Shares held by such holder upon payment for
each share to be redeemed of the Redemption Amount.
In the case of the redemption of Class B Preferred
Shares under the provisions of this paragraph, the holder thereof
shall surrender the certificate or certificates representing such
Class B Preferred Shares at the registered office of the
Corporation accompanied by a notice in writing (hereinafter
called a "redemption notice") signed by such holder requiring the
Corporation to redeem all, but not part only, of the Class B
Preferred Shares represented thereby. As soon as is practicable
following receipt of a redemption notice, the Corporation shall
pay or cause to be paid to or to the order of the registered
holder of the Class B Preferred Shares to be redeemed the
Redemption Amount thereof.
Dissolution
In the event of the dissolution, liquidation or
winding-up of the Corporation, whether voluntary or involuntary,
or any other distribution of assets of the Corporation among its
shareholders for the purpose of winding up its affairs, subject
to the prior rights of the holders of the Exchangeable Shares and
any other shares ranking senior to the Class B Preferred Shares
with respect to priority in the distribution of assets upon
dissolution, liquidation or winding-up, the holders of the Class
B Preferred Shares shall be entitled to receive an amount equal
to the Redemption Amount in respect of the Class B Preferred
Shares and any cumulative dividends remaining unpaid, whether or
not declared. After payment to the holders of the Class B
Preferred Shares of such amounts, such holders shall not be
entitled to share in any further distribution of the assets of
the Corporation.
Voting Rights
Except where specifically provided by the Canada
Business Corporations Act, the holders of the Class B Preferred
Shares shall not be entitled to receive notice of or to attend
meetings of the shareholders of the Corporation and shall not be
entitled to vote at any meeting of shareholders of the
Corporation.
PROVISIONS ATTACHING TO THE COMMON SHARES OF THE CORPORATION
The common shares in the capital of the Corporation
shall have attached thereto the following rights, privileges,
restrictions and conditions:
Dividends
Subject to the prior rights of the holders of the
Exchangeable Shares, the Class B Preferred Shares and any other
shares ranking senior to the common shares with respect to
priority in the payment of dividends, the holders of common
shares shall be entitled to receive dividends and the Corporation
shall pay dividends thereon, as and when declared by the Board of
Directors out of moneys properly applicable to the payment of
dividends, in such amount and in such form as the Board of
Directors may from time to time determine and all dividends which
the Board of Directors may declare on the common shares shall be
declared and paid in equal amounts per share on all common shares
at the time outstanding.
Dissolution
In the event of the dissolution, liquidation or
winding-up of the Corporation, whether voluntary or involuntary,
or any other distribution of assets of the Corporation among its
shareholders for the purpose of winding up its affairs, subject
to the prior rights of the holders of the Exchangeable Shares,
the Class B Preferred Shares and any other shares ranking senior
to the common shares with respect to priority in the distribution
of assets upon dissolution, liquidation or winding-up, the
holders of the common shares shall be entitled to receive the
remaining property and assets of the Corporation.
Voting Rights
The holders of the common shares shall be entitled to
receive notice of and to attend all meetings of the shareholders
of the Corporation and shall have one vote for each common share
held at all meetings of the shareholders of the Corporation,
except for meetings at which only holders of another specified
class or series of shares of the Corporation are entitled to vote
separately as a class or series.
SCHEDULE A
NOTICE OF RETRACTION
To MacDonald Dettwiler Holdings Inc. (the "Corporation") and
Orbital Sciences Corporation ("Orbital")
This notice is given pursuant to Article 5 of the
provisions (the "Share Provisions") attaching to the share(s)
represented by this certificate and all capitalized words and
expressions used in this notice that are defined in the Share
Provisions have the meanings ascribed to such words and
expressions in such Share Provisions.
The undersigned hereby notifies the Corporation that,
subject to the Retraction Call Right referred to below, the
undersigned desires to have the Corporation redeem in accordance
with Article 5 of the Share Provisions:
all share(s) represented by this certificate; or
_______________________ share(s) only.
The undersigned acknowledges the Retraction Call Right
of Orbital to purchase all but not less than all the Retracted
Shares from the undersigned and that this notice shall be deemed
to be an irrevocable offer (subject as hereinafter provided) by
the undersigned to sell the Retracted Shares to Orbital in
accordance with the Retraction Call Right on the Retraction Date
for the Retraction Call Purchase Price and on the other terms and
conditions set out in section 5.1 of the Plan of Arrangement. If
Orbital determines not to exercise the Retraction Call Right, the
Corporation will notify the undersigned of such fact as soon as
possible.
The undersigned acknowledges that if, as a result of
solvency provisions of applicable law or otherwise, the
Corporation fails to redeem all Retracted Shares, the undersigned
will be deemed to have exercised the Exchange Right (as defined
in the Voting and Exchange Trust Agreement) so as to require
Orbital to purchase the unredeemed Retracted Shares.
The undersigned hereby represents and warrants to the
Corporation and Orbital:
(i) that the undersigned has good title to, and
owns, the share(s) represented by this certificate to
be acquired by the Corporation or Orbital, as the case
may be, free and clear of all Liens; AND
(ii) either
the undersigned is a
resident of Canada for purposes of
the Income Tax Act (Canada); OR
the undersigned is
not a resident of Canada for
purposes of the Income Tax Act
(Canada).
The undersigned hereby acknowledges that, if the undersigned is
not a resident of Canada, and has not submitted with this notice
a certificate issued by Revenue Canada under section 116 of the
Income Tax Act (Canada) in respect of the Retracted Shares, the
amount of any securities or cash resulting from the retraction or
the purchase of the Retracted Shares will be reduced by the
amount of withholdings required under the Income Tax Act
(Canada).
____________________ ____________________ ____________________
____ ______ ____
(Date) (Signature of Share (Guarantee of Signat
holder) ure)
Please check box if the securities and any cheque(s)
resulting from the retraction or purchase of the Retracted
Shares are to be held for pick-up by the shareholder at the
principal transfer office of Montreal Trust Company of
Canada (the "Transfer Agent") at 510 Burrard Street,
Vancouver, British Columbia, V6C 3B9 failing which the
securities and any cheque(s) will be mailed to the last
address of the shareholder as it appears on the register.
NOTE: This panel must be completed and this certificate,
together with such additional documents as the Transfer
Agent may require, must be deposited with the Transfer Agent
at its principal transfer office in Vancouver. The
securities and any cheque(s) resulting from the retraction
or purchase of the Retracted Shares will be issued and
registered in, and made payable to, respectively, the name
of the shareholder as it appears on the register of the
Corporation and the securities and cheque(s) resulting from
such retraction or purchase will be delivered to such
shareholder as indicated above, unless the form appearing
immediately below is duly completed.
________________________________________ ______________________
________ _____
Name of Person in Whose Name Securities Date
or
Cheque(s) Are To Be Registered, Issued
or
Delivered (please print)
________________________________________ ______________________
________ _____
Street Address or P.O. Box Signature of
Shareholder
________________________________________ ______________________
________ _____
City-Province Signature Guaranteed
by
NOTE: If the notice of retraction is for less than all of the
share(s) represented by this certificate, a certificate
representing the remaining shares of the Corporation will be
issued and registered in the name of the shareholder as it
appears on the register of the Corporation, unless the Share
Transfer Power on the share certificate is duly completed in
respect of such shares.