EXHIBIT 3.1
1
For Ministry Use
Only A l'usage exclusif
du ministere Ontario Corporation
Number Numero de la
[LOGO] Ministry of Ministere des Services aux compagnie en Ontario
Consumer and Ontario consommateurs at aux 1601244
Business services enterprises
CERTIFICATE CERTIFICAT
This is to certify Ceci certifie que les
that these articles presents status entrent
are effective on en vigueur le
Trans Line Comp. Method.
DECEMBER 31 DECEMBRE 2003 Code No. Stat. Type Incorp share
- --------------------------------- [A] [0] [0] [A] [3] [S]
18 20 28 29 30 31
/s/ [ILLEGIBLE]
------------------------
Director/Directrice Notice
Business Corporations Act/ Loi sur les Req'd Jurisdiction
Societes par actions [N] [ONTARIO] [A]
32 33 47 57
ARTICLES OF AMALGAMATION
STATUTS DE FUSION
Form 4 1. The name of the Denomination sociale de
Business amalgamated corporation is: la compagnie issue de la
Corporations fusion:
Act ROGERS CABLE INC.
Formule 4
numero 4
Loi sur 2. The address of the registered Adresse du siege social:
les office is:
compagnies
333 Bloor Street East, 10th Floor
---------------------------------------------------------------------------
(Street & Number or R.R. Number & if Multi-Office Building give Room No.)
(Rue et numero, ou numero de la R.R. et, s'il s'agit
d'un e'difice a bureaux, numero du bureau)
Toronto, Ontario M 4 W 1 G 9
-----------------------------------------------------------------
(Name of Municipality or Post Office) (Postal Code)
(Nom de la muncipalite ou du bureau de poste) (Code Postal)
3. Number (or minimum and Nombre (ou nombres minimal
maximum number) of et maximal)
directors is: d'administrateurs:
Minimum of 1 and maximum of 30
4. The director Administrateur(s):
(s)is/are:
First name, Resident
initials and Address for service, giving Street & Canadian
surname No. or R.R. No., Municipality and State Yes
Prenom, Postal Code. Domicile elu, y compris or No
initiales et la rue et le numero, le numero de la Resident
nom de R.R. ou le nom de la municipalite et Canadien
famille le code postal OuilNon
- ------------- ------------------------------------ ----------
Alan D. Horn 333 Bloor Street East, 10th Floor, Yes
Toronto, Ontario M4W 1G9
Bruce D. Day 333 Bloor Street East, 10th Floor, Yes
Toronto, Ontario M4W 1G9
M. Lorraine 333 Bloor Street East, 10th Floor, Yes
Daly Toronto, Ontario M4W 1G9
David P. 333 Bloor Street East, 10th Floor, Yes
Miller Toronto, Ontario M4W 1G9
2
5. A) The amalgamation agreement A) Les actionnaires de
has been duly adopted by [X] chaque compagnie qui
the shareholders of each fusionne ont dument
of the amalgamating adopte la convention de
corporations as required fusion conformement au
by subsection 176(4) of paragraphe 176(4) de la
the Business Corporations Loi sur les compagnies a
Act on the date set out la date mentionnee
below. ci-dessous.
[Check Cocher]
[A or B A ou B]
B) The amalgamation has been B) Les administrateurs de
approved by the directors [ ] chaque compagnie qui
of each amalgamating fusionne on approuve la
corporation by a resolution fusion par voie de
as required by section 177 resolution conformement a
of the Business Corporations I'article 177 de la Loi
Act on the date set out sur les compagnies a la
below. date mentionnee
The articles of amalgamation ci-dessous. Les statuts
in substance contain the de fusion reprennent
provisions of the articles of essentiellement les
incorporation of dispositions des statuts
constitutifs de
and are more particularly set et sont enonces
out in these articles. textuellement aux
presentes status.
Names of amalgamating
corporations Date of Adoption
Denomination sociale Ontario Corporation /Approval Date
des compagnies qui Number Numero de la d'adoption ou
fusionnent compagnie en Ontario d'approbation
- --------------------- -------------------- -----------------
ROGERS CABLE INC. 1215983 December 31, 2003
1443358 ONTARIO INC. 1443358 December 31, 2003
3
6. Restrictions, if any, on Limites, s'il y a lieu,
business the corporation imposees aux activites
may carry on or on powers commerciales ou aux pouvoirs
the corporation exercises. de la compagnie.
None.
7. The classes and any maximum Categories et nombre maximal,
number of shares that the s'il y a lieu, d'actions que la
corporation is authorized compagnie est autorisee a
to issue. emettre:
The authorized capital of the Corporation shall consist of an
unlimited number of Class A Common shares, an unlimited number
of Class B Common shares, 100,000,000 Class B Preferred shares,
an unlimited number of First Preferred shares, an unlimited
number of Third Preferred shares, an unlimited number of
Fourth Preferred shares, an unlimited number of Fifth Preferred
shares, an unlimited number of Sixth Preferred shares, an
unlimited number of Seventh Preferred shares and an unlimited
number of Eighth Preferred shares.
4
8. Rights, Privileges, Droits, privileges,restrictions
restrictions and conditions et conditions, s'il y a lieu,
(if any) attaching to each rattaches a chaque categorie
class of shares and d'actions et pouvoirs des
directors authority with administrateurs relatifs a
respect to any class of chaque categorie d'actions
shares which may be issued qui peut etre emise en serie:
in series:
See Exhibit I annexed hereto.
4a
EXHIBIT I
CLASS A COMMON SHARES
The Class A Common shares shall have attached thereto, as a class, the following
rights, privileges, restrictions and conditions:
(a) VOTES. The holders of the Class A Common shares shall be
entitled to two (2) votes in respect of each Class A Common
share at all meetings of shareholders of the Corporation,
except meetings at which only holders of a specified class of
shares are entitled to vote;
(b) LIQUIDATION, DISSOLUTION OR WINDING UP. The holders of the
Class A Common shares shall be entitled, subject to the rights
of the holders of the other classes of shares of the
Corporation, to share equally, share for share with the
holders of the Class B Common shares in the remaining property
of the Corporation on the liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary; and
(c) DIVIDENDS. Subject to the rights of the holders of the other
classes of shares of the Corporation, the holders of the Class
A Common shares shall be entitled to receive dividends in the
form of fully paid shares of the Corporation or money as,
when, and at the rate declared in the discretion of the
directors.
CLASS B COMMON SHARES
The Class B Common shares shall have attached thereto, as a class, the following
rights, privileges, restrictions and conditions:
(a) VOTES. The holders of the Class B Common shares shall be
entitled to two (2) votes in respect of each Class B Common
share at all meetings of shareholders of the Corporation,
except meetings at which only holders of a specified class of
shares are entitled to vote;
(b) LIQUIDATION, DISSOLUTION OR WINDING UP. The holders of the
Class B Common shares shall be entitled, subject to section
(d) below and subject to the rights of the holders of the
other classes of shares of the Corporation, to share equally,
share for share with the holders of the Class A Common shares
in the remaining property of the Corporation on the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary;
(c) DIVIDENDS. The holders of the Class B Common shares shall be
entitled to receive, subject to section (d) below and subject
to the rights of the holders of the other classes of shares of
the Corporation, dividends in the form of fully paid shares of
the Corporation or money as, when, and at the rate declared in
the discretion of the directors; and
4b
(d) EXCLUDED SECURITIES. The rights, privileges, restrictions and
conditions attaching to the Class B Common shares shall be
deemed to include and incorporate by reference such provisions
(including, without limitation, the subordination provisions)
as are necessary to constitute the Class B Common shares
"Excluded Securities" for the purposes of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31, 2002, as amended on September 10,
2003, among the Corporation, The Toronto-Dominion
Bank, as Administration Agent and certain lenders
named therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $450,000,000 10%
Series B Senior Secured Second Priority Notes due
2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
(G) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$200,000,000 8.750% Senior (Secured) Second
Priority Debentures due 2032;
(H) Indenture dated as of June 19, 2003 among the
Corporation and JPMorgan Chase Bank re U.S.
$350,000,000 6.25% Senior (Secured) Second Priority
Notes due 2013; and
(I) such other loan agreements, indentures, deeds of
trust or other financing instruments to which the
Corporation (or any successor) is from time to time a
party as contain substantially similar provisions as
the foregoing financing instruments related to
"Excluded Securities",
4c
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Class B Common shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the purchase for cancellation of Class B Common shares or payments made on
the liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, purchase for cancellation or other distribution amount
made in respect of any of the Class B Common shares shall, notwithstanding
anything to the contrary contained herein, be deemed to include and incorporate
by reference such provisions (including, without limitation, the subordination
provisions) as are necessary to constitute such promissory notes Excluded
Securities for the purposes of the Financing Indentures. Until all indebtedness
under the Financing Indentures has been fully paid or the payment thereof has
been duly provided for, such promissory note shall not be assignable or
negotiable by the holder except to the extent and in the manner contemplated by
the applicable provisions contained in the Financing Indentures relating to
Excluded Securities.
4d
CLASS B PREFERRED SHARES
The Class B Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING
The Class B Preferred shares shall rank, with respect to both dividends and in
the event of the dissolution, liquidation or winding-up of the Corporation,
whether voluntary or involuntary, or any distribution of assets of the
Corporation among its shareholders for the purpose of winding-up its affairs,
junior to the First Preferred shares, the Second Preferred shares and the Third
Preferred shares and in priority to the Class A Common shares of the
Corporation, but shall not confer any further right to participate in the
profits or assets of the Corporation.
(b) EXCLUDED SECURITIES
The rights, privileges, restrictions and conditions attaching to the Class B
Preferred shares shall be deemed to include and incorporate by reference such
provisions (including, without limitation, the subordination provisions) as are
necessary to constitute the Class B Preferred shares "Excluded Securities" for
the purposes of the:
(A) Second Amended and Restated Loan Agreement dated as of January
31, 2002, as amended on September 10, 2003, among the
Corporation, The Toronto-Dominion Bank, as Administration
Agent and certain lenders named therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by amalgamation
to the Corporation, Rogers Cable T.V. Limited ("RCTV"), a
predecessor by amalgamation to the Corporation, Rogers Ottawa
Limited/Limitee ("ROL") and Chemical Bank (now JPMorgan Chase
Bank) re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB, various
Restricted Subsidiaries and Chemical Bank (now JPMorgan Chase
Bank) re U.S. $450,000,000 10% Series B Senior Secured Second
Priority Notes due 2005;
(D) Indenture dated as of November 30, 1995 among RCAB, various
Restricted Subsidiaries and Chemical Bank (now JPMorgan Chase
Bank) re U.S. $125,000,000 11% Senior Subordinated Guaranteed
Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the Corporation
and CIBC Mellon Trust Company re Cdn. $450,000,000 7.60%
Senior (Secured) Second Priority Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the Corporation and
JPMorgan Chase Bank re U.S.$350,000,000 7.875% Senior
(Secured) Second Priority Notes due 2012;
4e
(G) Indenture dated as of April 30, 2002 among the Corporation and
JPMorgan Chase Bank re U.S.$200,000,000 8.750% Senior (Secured)
Second Priority Debentures due 2032;
(H) Indenture dated as of June 19, 2003 among the Corporation and
JPMorgan Chase Bank re U.S. $350,000,000 6.25% Senior (Secured)
Second Priority Notes due 2013; and
(I) such other loan agreements, indentures, deeds of trust or other
financing instruments to which the Corporation (or any
successor) is from time to time a party as contain substantially
similar provisions as the foregoing financing instruments
related to "Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Class B Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the redemption of Class B Preferred shares or payments made on the
liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, redemption or other distribution amount made in respect of
any of the Class B Preferred shares shall, notwithstanding anything to the
contrary contained herein, be deemed to include and incorporate by reference
such provisions (including, without limitation, the subordination provisions) as
are necessary to constitute such promissory notes Excluded Securities for the
purposes of the Financing Indentures. Until all indebtedness under the Financing
Indentures has been fully paid or the payment thereof has been duly provided
for, such promissory note shall not be assignable or negotiable by the holder
except to the extent and in the manner contemplated by the applicable provisions
contained in the Financing Indentures relating to Excluded Securities.
(c) REDEMPTION PRIVILEGE
(i) REDEMPTION PRICE
The Redemption Price in respect of each Class B Preferred share shall be equal
to
(A) the portion of the fair market value of all of the
issued shares of the Corporation immediately before
the Certificate of the Director under the Business
Corporations Act (Ontario) in respect of these
Articles of Amendment pursuant to which the Class B
Preferred shares are issued becomes effective (and
such Certificate of the Director shall, for the
purposes hereof, be deemed to become effective at
1:00 p.m. on the date on which such Certificate
becomes effective, or such other time on such date as
is determined by the Vice-President, Treasurer of the
Corporation, as evidenced by a certificate to that
effect filed in the minute book of the Corporation)
that the fair market value, at that time, of all the
shares of
4f
Rogers Telecom Inc. is of the fair market value, at
that time, of all of the net assets of the
Corporation, divided by,
(B) 100,000,000.
(ii) RIGHT TO REDEEM
Subject to the provisions of the Business Corporations Act (Ontario), as amended
from time to time, or any successor legislation (the "Act"), the Corporation
may, upon giving notice as hereinafter provided, redeem the whole or any part of
the Class B Preferred shares on payment for each such share to be redeemed of
the Redemption Price therefor.
(iii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE
The aggregate Redemption Price of all Class B Preferred shares held by a holder
which are redeemed may, at the option of the Corporation, be satisfied by the
issuance to the holder by the Corporation of a promissory note for a principal
sum equal to the aggregate Redemption Price of all Class B Preferred shares held
by the holder which are redeemed, which, save as hereinafter provided, is
payable on demand, and which provides for interest after the date the promissory
note is made on the unpaid principal balance at a rate equal to the rate of
interest expressed as an annual rate quoted by The Toronto-Dominion Bank at its
head office in Toronto, Ontario, from time to time as being its reference rate
of interest (commonly known as its "prime rate") used by it to determine the
rates of interest it will charge for loans made in Canada in Canadian dollars to
its Preferred commercial customers (hereinafter referred to as "Prime"), plus
two percent (Prime + 2%) per annum, calculated and, save as hereinafter
provided, payable monthly, in arrears on the last date of each month. The
promissory note shall provide that the balance of any interest accrued and
unpaid to the date on which the principal amount is paid shall be due and
payable on such date and that any interest not paid on its due date shall itself
bear interest at the above rate, compounded monthly. The Corporation shall have
the right to prepay the whole or any part of the unpaid principal under such
promissory note, upon payment of interest accrued on the unpaid principal
balance to the date of payment. The promissory note shall provide that it is
issued in satisfaction of, and is for a principal amount equal to, the aggregate
Redemption Price of all Class B Preferred shares held by the holder which were
redeemed.
(iv) LIMITATIONS ON PROMISSORY NOTE
Until all indebtedness under the Financing Indentures has been fully paid or the
payment thereof has been duly provided for, such promissory note shall not be
assignable or negotiable by the holder except to the extent and in the manner
contemplated by the applicable provisions contained in the Financing Indentures
relating to Excluded Securities. The obligations of the Corporation under such
promissory note may, however, be fully and finally satisfied by the set-off
thereof against the obligations of Rogers Telecom Holdings Inc. pursuant to a
demand promissory note made by Rogers Telecom Holdings Inc. in favour of the
Corporation on the same date for a principal amount equal to the aggregate
redemption price of the 100,000,000 First Preferred shares in the capital of
Rogers Telecom Holdings Inc., as specified in the articles of incorporation of
Rogers Telecom Holdings Inc., issued in satisfaction of the purchase price of
all of the issued and outstanding shares of Rogers Telecom Inc.
4g
(v) PARTIAL REDEMPTION
In case a part only of then outstanding Class B Preferred shares is at any time
to be redeemed, the shares so to be redeemed shall be selected by lot in such
manner as the directors in their discretion shall decide or, if the directors so
determine, may be redeemed pro rata, disregarding fractions, and the directors
may make such adjustments as may be necessary to avoid the redemption of
fractional parts of shares.
(vi) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS
The Corporation shall, on or before the date specified for redemption, deliver
to each person who at the date of sending 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. Notice may be delivered to
each such shareholder at its address as it appears on the records of the
Corporation or its transfer agent, provided, however, that accidental failure to
deliver any such notice to one or more of such shareholders shall not affect the
validity of the redemption. Such notice shall set out whether the Corporation
elects to satisfy the Redemption Price by the issuance of a promissory note as
provided above and the date of redemption. If notice of any such redemption be
delivered by the Corporation and an amount sufficient to redeem the shares has
been paid to the holder of the Class B Preferred shares to be redeemed or
satisfied by a promissory note, as provided in the notice of redemption, or such
amount or promissory note in satisfaction thereof has been deposited with any
trust company or chartered bank in Canada, as specified in the notice, on or
before the date fixed for redemption, the holders thereof shall thereafter have
no rights against the Corporation in respect thereof except, upon the surrender
of certificates for such shares, to receive payment therefor.
(d) RETRACTION PRIVILEGE
(i) TENDER AND REQUEST
The holders of Class B Preferred shares shall be
entitled to require the Corporation to redeem at any
time and from time to time all or any part of the
Class B Preferred shares registered in the name of
such holder on the books of the Corporation by
tendering to the Corporation at its head office a
share certificate representing the Class B Preferred
shares which the registered holder desires to have
the Corporation redeem together with a request in
writing specifying;
(A) that the registered holder desires to have
the Class B Preferred shares represented by
such certificate redeemed by the
Corporation; and
(B) the business day (in this paragraph referred
to as the "redemption date") on which the
holder desires to have the Corporation
redeem such Class B Preferred shares.
Requests in writing shall specify a
redemption date which shall be not less than
four (4) days after the date on which the
request in writing is given to the
Corporation, unless the Corporation consents
in writing to an earlier redemption
4h
date. The holders of any Class B Preferred
shares may, with the consent of the
Corporation, revoke such request prior to
the redemption date. Subject to receipt of a
share certificate representing the Class B
Preferred shares which the registered holder
desires to have the Corporation redeem
together with such a request, and subject to
the provisions of the Act, the Corporation
shall on the redemption date, redeem such
Class B Preferred shares by paying to such
registered holder an amount equal to the
Redemption Price.
(ii) PAYMENT BY PROMISSORY NOTE
The aggregate Redemption Price of all Class B
Preferred shares held by a holder which are to be
redeemed may, at the option of the Corporation, be
satisfied by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the aggregate Redemption Price of all Class
B Preferred shares held by the holder which are
redeemed on the terms provided in subparagraphs
(c)(iii) and (c)(iv) above.
(iii) RIGHTS OF HOLDERS
From and after the redemption date, the Class B
Preferred shares to be redeemed on such date shall
cease to be entitled to dividends and the holders
thereof shall not be entitled to exercise any of the
rights of holders of Class B Preferred shares in
respect thereof unless the Redemption Price is not
paid or satisfied by a promissory note as above
provided on the redemption date, in which event the
rights of the holders of the said shares shall remain
unaffected.
(e) DISCRETIONARY NON-CUMULATIVE DIVIDENDS
The holders of the Class B Preferred shares shall, in each fiscal year of the
Corporation, as and when declared in the discretion of the directors, and
subject to the payment of dividends on the First, Second and Third Preferred
shares but always in preference and priority to any payment of dividends on the
Class A Common shares for such year, be entitled to receive, subject to the
provisions of the Act, non-cumulative dividends at a rate as declared by the
directors from time to time. The holders of Class B Preferred shares shall not
be entitled to any dividend other than or in excess of the non-cumulative
dividends at the rate declared by the directors. The Corporation shall not
exercise its right to redeem any Class B Preferred shares then outstanding
unless all declared but unpaid dividends on the Class B Preferred shares up to
the date of redemption have been paid.
(f) PURCHASE BY THE CORPORATION
Subject to the Act, the Corporation shall have the right at its option at any
time and from time to time to purchase the whole or any part of the Class B
Preferred shares at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption Price thereof.
4i
(g) SHARES PURCHASED OR REDEEMED TO BE CANCELLED
Class B Preferred shares which are purchased, redeemed, or otherwise acquired by
the Corporation shall be cancelled, and shall not be restored to the status of
authorized but unissued shares.
(h) LIQUIDATION, DISSOLUTION OR WINDING UP
In the event of the liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Class B Preferred shares
shall be entitled to receive, after the holders of the First, Second and Third
Preferred shares shall have received such amounts as they are entitled to
receive in such event for each share held by them, but before any distribution
of any part of the assets of the Corporation among the holders of the Class A
Common shares or any shares of any other class ranking junior to the Class B
Preferred shares with respect to the return of capital, an amount equal to the
Redemption Price for each issued and outstanding Class B Preferred share,
together with an amount-equal to all declared but unpaid dividends thereon.
(i) VOTING RIGHTS
The holders of Class B Preferred shares shall not, as such, have any voting
rights for the election of directors or, subject to any voting rights accorded
them pursuant to the provisions of the Act, for any other purpose; holders of
Class B Preferred shares shall, however, be entitled to notice of meetings of
shareholders called for the purpose of authorizing the dissolution of the
Corporation or the sale, lease or exchange of all or substantially all the
property of the Corporation other than in the ordinary course of business.
4j
FIRST PREFERRED SHARES
The First Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) FIRST PREFERRED SHARES - RANKING. The First Preferred shares
shall rank, with respect to both dividends and return of
capital, in priority to all other shares of the Corporation
but shall not confer any further right to participate in the
profits or assets.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
being waived as hereinafter provided, redeem the
whole or any part of the First Preferred shares on
payment for each such share to be redeemed of the
amount of One Thousand Dollars ($1,000.00) (the
"Redemption Amount"), together with an amount equal
to all unpaid cumulative dividends, whether or not
declared, which shall have accrued thereon and which,
for such purpose shall be treated as accruing up to
the date of such redemption (the Redemption Amount
plus such accrued and unpaid dividends are
hereinafter called the "Redemption Price").
(ii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE. The
Redemption Price may, at the option of the
Corporation, be paid and satisfied in whole or in
part: (1) by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the Redemption Price, or such part thereof
as is to be satisfied by the promissory note, which,
subject to section (a) above, is payable on demand,
provides for interest on the unpaid balance at a rate
equal to the annual rate established by The
Toronto-Dominion Bank at its head office in Toronto,
Ontario from time to time as being its reference rate
of interest used by it to determine the rates of
interest it will charge for loans made in Canada in
Canadian dollars to its preferred commercial
customers (hereinafter referred to as "Prime"), plus
two percent (2%) per annum, calculated and payable
monthly in arrears on the last date of each month,
provided that the balance of any interest accrued and
unpaid to the date on which the principal amount is
paid shall be due and payable on such date and that
any interest not paid on its due date shall itself
bear interest at the above rate, compounded monthly
and, subject to section (a) above, entitles the
Corporation to prepay the whole or any part of the
unpaid principal under such promissory note, upon
payment of interest accrued on the unpaid principal
balance to the date of payment; or (2) by the
assignment or endorsement in favour of the holder of
a promissory note made by an affiliate (as such term
is defined in the Business Corporations Act
(Ontario), as amended from time to time, or any
successor legislation) for
4k
a principal sum or for a portion of the principal sum
equal to the Redemption Price, or such part thereof
as is to be satisfied by the promissory note, which
is payable on demand and which the board of directors
of the Corporation in its discretion has determined
has a value not less than the Redemption Price, or
such part thereof as is to be satisfied by the
promissory note of the affiliate, which might be
issued under clause (1) of this subsection (b)(ii).
(iii) PARTIAL REDEMPTION. In case a part only of the then
outstanding First Preferred shares is at any time to
be redeemed, the shares so to be redeemed shall be
selected by lot in such manner as the directors in
their discretion shall decide or, if the directors so
determine, may be redeemed pro rata, disregarding
fractions, and the directors may make such
adjustments as may be necessary to avoid the
redemption of fractional parts of shares.
(iv) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The
Corporation shall, at least ten (10) days before the
date specified for redemption, send to each person
who at the date of sending is a registered holder of
First Preferred shares to be redeemed a notice in
writing of the intention of the Corporation to redeem
such First Preferred shares, or alternatively, notice
may be waived or the time for sending of the notice
may be waived at any time with the consent in writing
of holders of such First Preferred shares to be
redeemed. Notice may be mailed in a prepaid envelope
addressed to each such shareholder at his address as
it appears on the records of the Corporation or its
transfer agent, or alternatively, such notice may be
delivered personally to such shareholder; provided,
however, that accidental failure to give any such
notice to one or more of such shareholders shall not
affect the validity of the redemption. Such notice
shall set out the Redemption Price and the date of
redemption. If notice of any such redemption be given
by the Corporation or waived in the manner aforesaid
and an amount sufficient to redeem the shares has
been paid to the holder of the First Preferred shares
to be redeemed or deposited with any trust
corporation or chartered bank in Canada, on or before
the date fixed for redemption, the holders thereof
shall thereafter have no rights against the
Corporation in respect thereof except, upon the
surrender of certificates for such shares, to receive
payment therefor.
(c) CUMULATIVE DIVIDENDS. The holders of the First Preferred
shares shall, in each fiscal year of the Corporation, in
preference and priority to any payment of dividends on any
other shares of the Corporation for such year, be entitled to
receive, subject to the provisions of the Business
Corporations Act (Ontario), as amended from time to time, or
any successor legislation, fixed, cumulative cash dividends at
the rate equal to the annual rate established by the
Toronto-Dominion Bank from time to time as a reference rate of
interest to determine the interest it will charge for loans
made in Canada in Canadian dollars to its preferred commercial
customers (hereinafter referred to as "Prime") plus one and
one
4l
quarter percent (Prime + 1 1/4%) per annum of the Redemption
Amount for such shares payable quarterly on the first day
following the last day in the month of each of March, June,
September and December, other than a Saturday or a Sunday, on
which the main branch of The Toronto-Dominion Bank in Toronto,
Ontario is open for business (each an "Established Dividend
Payment Date"). Alternatively, if the directors so determine,
dividends shall be payable on any day (an "Alternate Dividend
Payment Date") following the immediately preceding Established
Dividend Payment Date and before the next Established Dividend
Payment Date. An Established Dividend Payment Date and an
Alternate Dividend Payment Date are each hereinafter referred
to as a "Dividend Payment Date". Dividends on the First
Preferred shares shall accrue and be cumulative from the date
of issue of the First Preferred shares. If on any Dividend
Payment Date the dividend payable on such date is not paid in
full on all of the First Preferred shares then issued and
outstanding, such dividend or the unpaid part thereof shall be
paid on the first date thereafter on which the Corporation
shall have sufficient moneys properly applicable to the
payment of same. The holders of First Preferred shares shall
not be entitled to any dividend other than or in excess of the
cumulative dividends at the rate hereinbefore provided for.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the
right at its option at any time and from time to time to
purchase the whole or any part of the First Preferred shares
at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not at the option of the
Corporation be paid and satisfied in the manner provided for
in subsection (b)(ii) hereof.
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the First
Preferred shares shall be entitled to receive, before any
distribution of any part of the assets of the Corporation
among the holders of any other shares, an amount equal to the
Redemption Price for each issued and outstanding First
Preferred share.
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the First
Preferred shares shall not, as such, have any voting rights
for the election of directors or, subject to any voting rights
accorded them pursuant to the provisions of the Business
Corporations Act (Ontario), as amended from time to time, or
any successor legislation, for any other purpose, nor shall
they be entitled to attend shareholders' meetings except for
the purpose of exercising any voting rights accorded to them
pursuant to the provisions of the Business Corporations Act
(Ontario), as amended from time to time, or any successor
legislation; holders of First Preferred shares shall, however,
be entitled to notice of meetings of shareholders called for
the purpose of authorizing the dissolution of the Corporation
or the sale, lease or exchange of all or substantially all the
property of the Corporation other than in the ordinary course
of business.
4m
THIRD PREFERRED SHARES
The Third Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING. The Third Preferred shares shall rank, with respect
to both dividends and return of capital in the event of the
liquidation, dissolution or winding up of the Corporation,
junior to the First Preferred shares and the Second Preferred
shares and in priority to all other shares of the Corporation,
including without limitation, the common shares of the
Corporation, but shall not confer any further right to
participate in the profits or assets of the Corporation. The
rights, privileges, restrictions and conditions attaching to
the Third Preferred shares shall be deemed to include and
incorporate by reference such provisions (including, without
limitation, the subordination provisions) as are necessary to
constitute the Third Preferred shares "Excluded Securities"
for the purposes of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31, 2002, as amended on September 10,
2003, among the Corporation, The Toronto-Dominion
Bank, as Administration Agent and certain lenders
named therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $450,000,000 10%
Series B Senior Secured Second Priority Notes due
2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
4n
(G) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$200,000,000 8.750% Senior (Secured) Second
Priority Debentures due 2032;
(H) Indenture dated as of June 19, 2003 among the
Corporation and JPMorgan Chase Bank re U.S.
$350,000,000 6.25% Senior (Secured) Second Priority
Notes due 2013; and
(I) such other loan agreements, indentures, deeds of
trust or other financing instruments to which the
Corporation (or any successor) is from time to time a
party as contain substantially similar provisions as
the foregoing financing instruments related to
"Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Third Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the redemption of Third Preferred shares or payments made on the
liquidation dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, redemption or other distribution amount made in respect of
any of the Third Preferred shares shall, notwithstanding anything to the
contrary contained herein, be deemed to include and incorporate by reference
such provisions (including, without limitation, the subordination provisions) as
are necessary to constitute such promissory notes Excluded Securities for the
purposes of the Financing Indentures. Until all indebtedness under the Financing
Indentures has been fully paid or the payment thereof has been duly provided
for, such promissory note shall not be assignable or negotiable by the holder
except to the extent and in the manner contemplated by the applicable provisions
contained in the Financing Indentures relating to Excluded Securities.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
being waived as hereinafter provided, redeem the
whole or any part of the Third Preferred shares on
payment for each such share to be redeemed of the
amount of One Thousand Dollars ($1,000.00) (the
"Redemption Price").
(ii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE. The
Redemption Price may, at the option of the
Corporation, be paid and satisfied in whole or in
part: (1) by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the Redemption Price, or such part thereof
as is to be satisfied by the promissory note, which,
4o
subject to section (a) above, is payable on demand,
provides for interest on the unpaid balance at a rate
equal to the annual rate established by The
Toronto-Dominion Bank at its head office in Toronto,
Ontario from time to time as being its reference rate
of interest used by it to determine the rates of
interest it will charge for loans made in Canada in
Canadian dollars to its preferred commercial
customers (hereinafter referred to as "Prime"), plus
two percent (2%) per annum, calculated and payable
monthly in arrears on the last date of each month,
provided that the balance of any interest accrued and
unpaid to the date on which the principal amount is
paid shall be due and payable on such date and that
any interest not paid on its due date shall itself
bear interest at the above rate, compounded monthly
and, subject to section (a) above, entitles the
Corporation to prepay the whole or any part of the
unpaid principal under such promissory note, upon
payment of interest accrued on the unpaid principal
balance to the date of payment; or (2) by the
assignment or endorsement in favour of the holder of
a promissory note made by an affiliate (as such term
is defined in the Business Corporations Act
(Ontario), as amended from time to time, or any
successor legislation) for a principal sum or for a
portion of the principal sum equal to the Redemption
Price, or such part thereof as is to be satisfied by
the promissory note, which is payable on demand and
which the board of directors of the Corporation in
its discretion has determined has a value not less
than the Redemption Price, or such part thereof as is
to be satisfied by the promissory note of the
affiliate, which might be issued under clause (1) of
this subsection (b)(ii).
(iii) PARTIAL REDEMPTION. In case a part only of the then
outstanding Third Preferred shares is at any time to
be redeemed, the shares so to be redeemed shall be
selected in such manner as the directors in their
discretion shall decide and need not be redeemed pro
rata or selected by lot.
(iv) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The
Corporation shall, at least one (1) day before the
date specified for redemption, send to each person
who at the date of sending is a registered holder of
Third Preferred shares to be redeemed a notice in
writing of the intention of the Corporation to redeem
such Third Preferred shares, or alternatively, notice
may be waived or the time for sending of the notice
may be waived at any time with the consent in writing
of holders of such Third Preferred shares to be
redeemed. Notice may be mailed in a prepaid envelope
addressed to each such shareholder at his address as
it appears on the records of the Corporation or its
transfer agent, or alternatively, such notice may be
delivered personally to such shareholder, provided,
however, that accidental failure to give any such
notice to one or more of such shareholders shall not
affect the validity of the redemption. Such notice
shall set out the Redemption Price and the date of
redemption. If notice of any such redemption be given
by the Corporation or waived in the manner
4p
aforesaid and an amount sufficient to redeem the
shares has been paid (whether in cash or by
promissory note, as above provided) to the holder of
the Third Preferred shares to be redeemed or
deposited with any trust corporation or chartered
bank in Canada, on or before the date fixed for
redemption, the holders thereof shall thereafter have
no rights against the Corporation in respect thereof
except, upon the surrender of certificates for such
shares, to receive payment therefor.
(c) CUMULATIVE DIVIDENDS. The holders of the Third Preferred
shares shall, in each fiscal year of the Corporation, subject
to section (a) hereof and to the payment of all accrued
dividends on the First Preferred shares and Second Preferred
shares, but always in preference and priority to any payment
of dividends on any other shares of the Corporation for such
year, be entitled to receive, subject to the provisions of the
Business Corporations Act (Ontario), as amended from time to
time, or any successor legislation, fixed, cumulative cash
dividends at the rate of nine and five-eighth percent (9.625%)
per annum of the Redemption Price for such shares payable
quarterly on the first day following the last day in the month
of each of March, June, September and December, other than a
Saturday or a Sunday, on which the main branch of The
Toronto-Dominion Bank in Toronto, Ontario is open for business
(each an "Established Dividend Payment Date"). Alternatively,
if the directors so determine, dividends shall be payable on
any day (an "Alternate Dividend Payment Date") following the
immediately preceding Established Dividend Payment Date and
before the next Established Dividend Payment Date. An
Established Dividend Payment Date and an Alternate Dividend
Payment Date are each hereinafter referred to as a "Dividend
Payment Date". Dividends on the Third Preferred shares shall
accrue and be cumulative from the date of issue of the Third
Preferred shares. If on any Dividend Payment Date the dividend
payable on such date is not paid in full on all of the Third
Preferred shares then issued and outstanding, such dividend or
the unpaid part thereof shall be paid on the first date
thereafter on which the Corporation shall have sufficient
moneys properly applicable to the payment of same. The holders
of Third Preferred shares shall not be entitled to any
dividend other than or in excess of the cumulative dividends
at the rate hereinbefore provided for.
The Corporation shall not redeem or purchase for cancellation
any Third Preferred shares then outstanding unless all
dividends accrued on the Third Preferred shares up to the date
of redemption or purchase have been declared and paid.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the
right at its option at any time and from time to time to
purchase the whole or any part of the Third Preferred shares
at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption
Price thereof (the "Purchase Price"). The Purchase Price may,
at the option of the Corporation be paid and satisfied in the
manner provided for in subsection (b)(ii) hereof, subject to
the provisions of section (a) hereof.
4q
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Third
Preferred shares shall be entitled to receive, subject to
section (a) hereof and after the holders of First Preferred
shares and Second Preferred shares shall have received an
amount equal to the redemption price for each First Preferred
share and Second Preferred share held by them, but before any
distribution of any part of the assets of the Corporation
among the holders of any other shares, an amount equal to the
Redemption Price for each issued and outstanding Third
Preferred share, together with an amount equal to all unpaid
cumulative dividends which shall have accrued thereon, whether
or not declared, and which, for such purpose, shall be treated
as accruing up to the date of such distribution.
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the Third
Preferred shares shall not, as such, have any voting rights
for the election of directors or, subject to any voting rights
accorded them pursuant to the provisions of the Business
Corporations Act (Ontario), as amended from time to time, or
any successor legislation, for any other purpose, nor shall
they be entitled to attend shareholders' meetings except for
the purpose of exercising any voting rights accorded to them
pursuant to the provisions of the Business Corporations Act
(Ontario); as amended from time to time, or any successor
legislation; holders of Third Preferred shares shall, however,
be entitled to notice of meetings of shareholders called for
the purpose of authorizing the dissolution of the Corporation
or the sale, lease or exchange of all or substantially all the
property of the Corporation other than in the ordinary course
of business.
4r
FOURTH PREFERRED SHARES
The Fourth Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING. The Fourth Preferred shares shall rank, with respect
to both dividends and return of capital in the event of
liquidation, dissolution or winding up of the Corporation,
junior to the First Preferred shares and the Third Preferred
shares and in priority to all other shares of the Corporation,
including without limitation, the Class A Common and Class B
Common shares, but shall not confer any further right to
participate in the profits or assets of the Corporation. The
rights, privileges, restrictions and conditions attaching to
the Fourth Preferred shares shall be deemed to include and
incorporate by reference such provisions (including, without
limitation, the subordination provisions) as are necessary to
constitute the Fourth Preferred shares "Excluded Securities"
for the purposes of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31, 2002, as amended on September 10,
2003, among the Corporation, The Toronto-Dominion
Bank, as Administration Agent and certain lenders
named therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $450,000,000 10%
Series B Senior Secured Second Priority Notes due
2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
4s
(G) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$200,000,000 8.750% Senior (Secured) Second
Priority Debentures due 2032;
(H) Indenture dated as of June 19, 2003 among the
Corporation and JPMorgan Chase Bank re U.S.
$350,000,000 6.25% Senior (Secured) Second Priority
Notes due 2013; and
(I) such other loan agreements, indentures, deeds of
trust or other financing instruments to which the
Corporation (or any successor) is from time to time a
party as contain substantially similar provisions as
the foregoing financing instruments related to
"Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Fourth Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the purchase for cancellation of Fourth Preferred shares or payments made
on the liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, purchase for cancellation or other distribution amount
made in respect of any of the Fourth Preferred shares shall, notwithstanding
anything to the contrary contained herein, be deemed to include and incorporate
by reference such provisions (including, without limitation, the subordination
provisions) as are necessary to constitute such promissory notes Excluded
Securities for the purposes of the Financing Indentures. Until all indebtedness
under the Financing Indentures has been fully paid or the payment thereof has
been duly provided for, such promissory note shall not be assignable or
negotiable by the holder except to the extent and in the manner contemplated by
the applicable provisions contained in the Financing Indentures relating to
Excluded Securities.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
being waived as hereinafter provided, redeem the
whole or any part of the Fourth Preferred shares on
payment for each such share to be redeemed of the
amount of One Thousand Dollars ($1,000) (the
"Redemption Price").
(ii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE. The
Redemption Price may, at the option of the
Corporation, be paid and satisfied in whole
4t
or in part: (1) by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the Redemption Price, or such part thereof
as is to be satisfied by the promissory note, which,
subject to section (a) above, is payable on demand,
provides for interest on the unpaid balance at a rate
equal to the annual rate established by The
Toronto-Dominion Bank at its head office in Toronto,
Ontario from time to time as being its reference rate
of interest used by it to determine the rates of
interest it will charge for loans made in Canada in
Canadian dollars to its preferred commercial
customers (hereinafter referred to as "Prime"), plus
two percent (2%) per annum, calculated and payable
monthly in arrears on the last date of each month,
provided that the balance of any interest accrued and
unpaid to the date on which the principal amount is
paid shall be due and payable on such date and that
any interest not paid on its due date shall itself
bear interest at the above rate, compounded monthly
and, subject to section (a) above, entitles the
Corporation to prepay the whole or any part of the
unpaid principal under such promissory note, upon
payment of interest accrued on the unpaid principal
balance to the date of payment; or (2) by the
assignment or endorsement in favour of the holder of
a promissory note made by an affiliate (as such term
is defined in the Business Corporations Act
(Ontario), as amended from tune to time, or any
successor legislation) for a principal sum or for a
portion of the principal sum equal to the Redemption
Price, or such part thereof as is to be satisfied by
the promissory note, which is payable on demand and
which the board of directors of the Corporation in
its discretion has determined has a value not less
than the Redemption Price, or such part thereof as is
to be satisfied by the promissory note of the
affiliate, which might be issued under clause (1) of
this subsection (b)(ii).
(iii) PARTIAL REDEMPTION. In case a part only of the then
outstanding Fourth Preferred shares is at any time to
be redeemed, the shares so to be redeemed shall be
selected in such manner as the directors in their
discretion shall decide and need not be redeemed pro
rata or selected by lot and the directors may make
such adjustments as may be necessary to avoid the
redemption of fractional parts of shares.
(iv) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The
Corporation shall, at least one (1) day before the
date specified for redemption, send to each person
who at the date of sending is a registered holder of
Fourth Preferred shares to be redeemed a notice in
writing of the intention of the Corporation to redeem
such Fourth Preferred shares, or alternatively,
notice may be waived or the time for sending of the
notice may be waived at any time with the consent in
writing of holders of such Fourth Preferred shares to
be redeemed. Notice may be mailed in a prepaid
envelope addressed to each such shareholder at his
address as it appears on the records of the
Corporation or its transfer agent, or alternatively,
such notice may be delivered personally to such
shareholder; provided,
4u
however, that accidental failure to give any such
notice to one or more of such shareholders shall not
affect the validity of the redemption. Such notice
shall set out the Redemption Price and the date of
redemption. If notice of any such redemption be given
by the Corporation or waived in the manner aforesaid
and an amount sufficient to redeem the shares has
been paid (whether in cash or by promissory note, as
above provided) to the holder of the Fourth Preferred
shares to be redeemed or deposited with any trust
corporation or chartered bank in Canada, on or before
the date fixed for redemption, the holder thereof
shall thereafter have no rights against the
Corporation in respect thereof except, upon the
surrender of certificates for such shares, to receive
payment therefor and except to receive any dividends
declared and payable on or before the redemption date
but unpaid. If the Fourth Preferred shares are
redeemed on the redemption date then from and after
the redemption date such shares shall cease to be
entitled to dividends, (except for any dividends
declared and payable on or before the redemption
date, but unpaid) and the holders thereof shall not
be entitled to exercise any of the rights of holders
of Fourth Preferred shares in respect thereof unless
payment of the Redemption Price is not made on the
redemption date, in which event the rights of the
holders of the said shares shall remain unaffected.
(c) NON-CUMULATIVE DIVIDENDS. The holders of the Fourth Preferred
shares shall, in each fiscal year of the Corporation, subject
to section (a) hereof and to the payment of all accrued
dividends on the First Preferred shares and the Third
Preferred shares, but always in preference and priority to any
payment of dividends on any other shares of the Corporation
for such year, including without limitation, the Class A
Common and Class B Common shares, be entitled to receive, as
and when declared by the directors, out of the monies of the
Corporation properly applicable to the payment of dividends,
fixed preferential non-cumulative cash dividends at the rate
of nine and sixty-five one hundredths percent (9.65%) per
annum of the Redemption Price for such shares. The directors
shall be entitled from time to time to declare part of the
preferential non-cumulative cash dividend for any fiscal year
notwithstanding that such dividend for such fiscal year shall
not be declared in full. If in any fiscal year of the
Corporation the directors in their discretion shall not
declare the said dividend or any part thereof on the Fourth
Preferred shares for such fiscal year then the rights of the
holders of the Fourth Preferred shares to such dividend or
undeclared part thereof for such fiscal year shall be forever
extinguished. The registered holders of Fourth Preferred
shares shall not be entitled to any dividends other than or in
excess of the preferential non-cumulative cash dividends
hereinbefore provided for. No dividends shall be declared and
paid or set aside for payment on any shares of any other class
of the Corporation ranking junior to the Fourth Preferred
shares in any fiscal year, unless the fixed preferential
non-cumulative cash dividend for such fiscal year on all
Fourth Preferred shares then outstanding has been declared and
paid or set aside for payment. If in any fiscal year, after
the fixed preferential non-cumulative cash dividends on the
Fourth Preferred shares shall have been declared and paid or
set aside for payment, there shall remain any
4v
profits or surplus available for dividends, such profits or
surplus or any part thereof may, in the discretion of the
directors, be applied to dividends on any shares of any other
class of the Corporation ranking junior to the Fourth
Preferred shares. If the Redemption Price is increased or
decreased pursuant to section (g) hereof at any time after any
dividends have been declared and paid or set aside for payment
on the Fourth Preferred shares, the dividend rate applicable
during the period prior to such increase or decrease in the
Redemption Price in respect of which the dividends were paid
or set aside for payment shall be deemed decreased or
increased accordingly, and neither a registered holder of
Fourth Preferred shares nor the Corporation shall have a claim
against the other for either under or overpayment of dividends
resulting from an increase or decrease in the Redemption
Price.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the
right at its option at any time and from time to time to
purchase the whole or any part of the Fourth Preferred shares
at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption
Price thereof (the "Purchase Price"). The Purchase Price may,
at the option of the Corporation be paid and satisfied in the
manner provided for in subsection (b)(ii) hereof, subject to
the provisions of section (a) hereof.
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Fourth
Preferred shares shall be entitled to receive, subject to
section (a) hereof, and after the holders of First Preferred
shares and Third Preferred shares shall have received such
amounts as they are entitled to receive in the event of the
liquidation, dissolution or winding up of the Corporation, but
before any distribution of any part of the assets of the
Corporation among the holders of any other shares of the
Corporation, including without limitation the Class A Common
and Class B Common shares, an amount equal to the Redemption
Price for each issued and outstanding Fourth Preferred share
plus an amount equal to all dividends declared thereon and
unpaid.
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the
Fourth Preferred shares shall not, as such, have any voting
rights for the election of directors or, subject to any voting
rights accorded them pursuant to the provisions of the
Business Corporations Act (Ontario), as the same may from time
to time be amended or any successor legislation, for any other
purpose, nor shall they be entitled to attend shareholders'
meetings except for the purpose of exercising any voting
rights accorded to them pursuant to the provisions of the
Business Corporations Act (Ontario), as amended from time to
time, or any successor legislation; holders of the Fourth
Preferred shares shall, however, be entitled to notice of any
meeting of shareholders called for the purpose of authorizing
the dissolution of the Corporation or the sale, lease or
exchange of all or substantially all of the property of the
Corporation other than in the ordinary course of business.
4w
(g) PRICE ADJUSTMENT. If at any time when any Fourth Preferred
shares are issued and outstanding either: (a) Canada Customs
and Revenue Agency determines and all of the holders of the
issued and outstanding Fourth Preferred shares concur in such
determination; or (b) the Corporation and the holders of the
Fourth Preferred shares determine, that the aggregate fair
market value of all property transferred or sold to the
Corporation in exchange for Fourth Preferred shares (the
"Acquired Property") is greater or less than the aggregate of
the Redemption Price of all Fourth Preferred shares issued in
connection with the acquisition of the Acquired Property, then
the resultant deficiency or excess in the aggregate of the
Redemption Price of all Fourth Preferred shares issued in
connection with the acquisition of the Acquired Property shall
be divided by the aggregate number of Fourth Preferred shares
issued in connection with the acquisition of the Acquired
Property and the Redemption Price shall be increased or
decreased accordingly.
FIFTH PREFERRED SHARES
The Fifth Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING. The Fifth Preferred shares shall rank, with respect
to both dividends and return of capital in the event of
liquidation, dissolution or winding up of the Corporation,
junior to the First Preferred shares, the Third Preferred
shares and the Fourth Preferred shares and in priority to all
other shares of the Corporation, including without limitation,
the Class A Common and Class B Common shares, but shall not
confer any further right to participate in the profits or
assets of the Corporation. The rights, privileges,
restrictions and conditions attaching to the Fifth Preferred
shares shall be deemed to include and incorporate by reference
such provisions (including, without limitation, the
subordination provisions) as are necessary to constitute the
Fifth Preferred shares "Excluded Securities" for the purposes
of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31, 2002, as amended on September 10,
2003, among the Corporation, The Toronto-Dominion
Bank, as Administration Agent and certain lenders
named therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S.
4x
$450,000,000 10% Series B Senior Secured Second
Priority Notes due 2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
(G) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$200,000,000 8.750% Senior (Secured) Second
Priority Debentures due 2032;
(H) Indenture dated as of June 19, 2003 among the
Corporation and JPMorgan Chase Bank re U.S.
$350,000,000 6.25% Senior (Secured) Second Priority
Notes due 2013; and
(I) such other loan agreements, indentures, deeds of
trust or other financing instruments to which the
Corporation (or any successor) is from time to time a
party as contain substantially similar provisions as
the foregoing financing instruments related to
"Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Fifth Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the purchase for cancellation of Fourth Preferred shares or payments made
on the liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, purchase for cancellation or other distribution amount
made in respect of any of the Fifth Preferred shares shall, notwithstanding
anything to the contrary contained herein, be deemed to include and incorporate
by reference such provisions (including, without limitation, the subordination
provisions) as are necessary to constitute such promissory notes Excluded
Securities for the purposes of the Financing Indentures. Until all indebtedness
under the Financing Indentures has been fully paid or the payment thereof has
been duly provided for, such promissory note shall not be assignable or
negotiable by the holder except to the extent and
4y
in the manner contemplated by the applicable provisions contained in the
Financing Indentures relating to Excluded Securities.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
being waived as hereinafter provided, redeem the
whole or any part of the Fifth Preferred shares on
payment for each such share to be redeemed of the
amount of One Thousand Dollars ($1,000) (the
"Redemption Price").
(ii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE. The
Redemption Price may, at the option of the
Corporation, be paid and satisfied in whole or in
part: (1) by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the Redemption Price, or such part thereof
as is to be satisfied by the promissory note, which,
subject to section (a) above, is payable on demand,
provides for interest on the unpaid balance at a rate
equal to the annual rate established by The
Toronto-Dominion Bank at its head office in Toronto,
Ontario from time to time as being its reference rate
of interest used by it to determine the rates of
interest it will charge for loans made in Canada in
Canadian dollars to its preferred commercial
customers (hereinafter referred to as "Prime"), plus
two percent (2%) per annum, calculated and payable
monthly in arrears on the last date of each month,
provided that the balance of any interest accrued and
unpaid to the date on which the principal amount is
paid shall be due and payable on such date and that
any interest not paid on its due date shall itself
bear interest at the above rate, compounded monthly
and, subject to section (a) above, entitles the
Corporation to prepay the whole or any part of the
unpaid principal under such promissory note, upon
payment of interest accrued on the unpaid principal
balance to the date of payment; or (2) by the
assignment or endorsement in favour of the holder of
a promissory note made by an affiliate (as such term
is defined in the Business Corporations Act
(Ontario), as amended from time to time, or any
successor legislation) for a principal sum or for a
portion of the principal sum equal to the Redemption
Price, or such part thereof as is to be satisfied by
the promissory note, which is payable on demand and
which the board of directors of the Corporation in
its discretion has determined has a value not less
than the Redemption Price, or such part thereof as is
to be satisfied by the promissory note of the
affiliate, which might be issued under clause (1) of
this subsection (b)(ii).
(iii) PARTIAL REDEMPTION. In case a part only of the then
outstanding Fifth Preferred shares is at any time to
be redeemed, the shares so to be redeemed shall be
selected in such manner as the directors in their
4z
discretion shall decide and need not be redeemed pro
rata or selected by lot and the directors may make
such adjustments as may be necessary to avoid the
redemption of fractional parts of shares.
(iv) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The
Corporation shall, at least one (1) day before the
date specified for redemption, send to each person
who at the date of sending is a registered holder of
Fifth Preferred shares to be redeemed a notice in
writing of the intention of the Corporation to redeem
such Fifth Preferred shares, or alternatively, notice
may be waived or the time for sending of the notice
may be waived at any time with the consent in writing
of holders of such Fifth Preferred shares to be
redeemed. Notice may be mailed in a prepaid envelope
addressed to each such shareholder at his address as
it appears on the records of the Corporation or its
transfer agent, or alternatively, such notice may be
delivered personally to such shareholder; provided,
however, that accidental failure to give any such
notice to one or more of such shareholders shall not
affect the validity of the redemption. Such notice
shall set out the Redemption Price and the date of
redemption. If notice of any such redemption be given
by the Corporation or waived in the manner aforesaid
and an amount sufficient to redeem the shares has
been paid (whether in cash or by promissory note, as
above provided) to the holder of the Fifth Preferred
shares to be redeemed or deposited with any trust
corporation or chartered bank in Canada, on or before
the date fixed for redemption, the holder thereof
shall thereafter have no rights against the
Corporation in respect thereof except, upon the
surrender of certificates for such shares, to receive
payment therefor and except to receive any dividends
declared and payable on or before the redemption date
but unpaid. If the Fifth Preferred shares are
redeemed on the redemption date then from and after
the redemption date such shares shall cease to be
entitled to dividends, (except for any dividends
declared and payable on or before the redemption
date, but unpaid) and the holders thereof shall not
be entitled to exercise any of the rights of holders
of Fifth Preferred shares in respect thereof unless
payment of the Redemption Price is not made on the
redemption date, in which event the rights of the
holders of the said shares shall remain unaffected.
(c) NON-CUMULATIVE DIVIDENDS. The holders of the Fifth Preferred
shares shall, in each fiscal year of the Corporation, subject
to section (a) hereof and to the payment of all accrued
dividends on the First Preferred shares, the Third Preferred
shares and the Fourth Preferred shares, but always in
preference and priority to any payment of dividends on any
other shares of the Corporation for such year, including
without limitation, the Class A Common and Class B Common
shares, be entitled to receive, as and when declared by the
directors, out of the monies of the Corporation properly
applicable to the payment of dividends, fixed preferential
non-cumulative cash dividends at the rate of nine and seven
tenths percent (9.70%) per annum of the Redemption Price for
such shares. The directors shall be entitled from time to time
to declare part of the preferential non-
4aa
cumulative cash dividend for any fiscal year notwithstanding
that such dividend for such fiscal year shall not be declared
in full. If in any fiscal year of the Corporation the
directors in their discretion shall not declare the said
dividend or any part thereof on the Fifth Preferred shares for
such fiscal year then the rights of the holders of the Fifth
Preferred shares to such dividend or undeclared part thereof
for such fiscal year shall be forever extinguished. The
registered holders of Fifth Preferred shares shall not be
entitled to any dividends other than or in excess of the
preferential non-cumulative cash dividends hereinbefore
provided for. No dividends shall be declared and paid or set
aside for payment on any shares of any other class of the
Corporation ranking junior to the Fifth Preferred shares in
any fiscal year, unless the fixed preferential non-cumulative
cash dividend for such fiscal year on all Fifth Preferred
shares then outstanding has been declared and paid or set
aside for payment. If in any fiscal year, after the fixed
preferential non-cumulative cash dividends on the Fifth
Preferred shares shall have been declared and paid or set
aside for payment, there shall remain any profits or surplus
available for dividends, such profits or surplus or any part
thereof may, in the discretion of the directors, be applied to
dividends on any shares of any other class of the Corporation
ranking junior to the Fifth Preferred shares. If the
Redemption Price is increased or decreased pursuant to section
(g) hereof above at any time after any dividends have been
declared and paid or set aside for payment on the Fifth
Preferred shares, the dividend rate applicable during the
period prior to such increase or decrease in the Redemption
Price in respect of which the dividends were paid or set aside
for payment shall be deemed decreased or increased
accordingly, and neither a registered holder of Fifth
Preferred shares nor the Corporation shall have a claim
against the other for either under or overpayment of dividends
resulting from an increase or decrease in the Redemption
Price.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the
right at its option at any time and from time to time to
purchase the whole or any part of the Fifth Preferred shares
at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption
Price thereof (the "Purchase Price"). The Purchase Price may,
at the option of the Corporation be paid and satisfied in the
manner provided for in subsection (b)(ii) hereof, subject to
the provisions of section (a) hereof.
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Fifth
Preferred shares shall be entitled to receive, subject to
section (a) hereof, and after the holders of First Preferred
shares, Third Preferred shares and Fourth Preferred shares
shall have received such amounts as they are entitled to
receive in the event of the liquidation, dissolution or
winding up of the Corporation, but before any distribution of
any part of the assets of the Corporation among the holders of
any other shares of the Corporation, including without
limitation the Class A Common and Class B Common shares, an
amount equal to the Redemption Price for each issued and
outstanding Fifth Preferred share plus an amount equal to all
dividends declared thereon and unpaid.
4bb
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the Fifth
Preferred shares shall not, as such, have any voting rights
for the election of directors or, subject to any voting rights
accorded them pursuant to the provisions of the Business
Corporations Act (Ontario), as the same may from time to time
be amended or any successor legislation, for any other
purpose, nor shall they be entitled to attend shareholders'
meetings except for the purpose of exercising any voting
rights accorded to them pursuant to the provisions of the
Business Corporations Act (Ontario), as amended from time to
time, or any successor legislation; holders of the Fifth
Preferred shares shall, however, be entitled to notice of any
meeting of shareholders called for the purpose of authorizing
the dissolution of the Corporation or the sale, lease or
exchange of all or substantially all of the property of the
Corporation other than in the ordinary course of business.
(g) PRICE ADJUSTMENT. If at any time when any Fifth Preferred
shares are issued and outstanding either: (a) Canada Customs
and Revenue Agency determines and all of the holders of the
issued and outstanding Fifth Preferred shares concur in such
determination; or (b) the Corporation and the holders of the
Fifth Preferred shares determine, that the aggregate fair
market value of all property transferred or sold to the
Corporation in exchange for Fifth Preferred shares (the
"Acquired Property") is greater or less than the aggregate of
the Redemption Price of all Fifth Preferred shares issued in
connection with the acquisition of the Acquired Property, then
the resultant deficiency or excess in the aggregate of the
Redemption Price of all Fifth Preferred shares issued in
connection with the acquisition of the Acquired Property shall
be divided by the aggregate number of Fifth Preferred shares
issued in connection with the acquisition of the Acquired
Property and the Redemption Price shall be increased or
decreased accordingly.
4cc
SIXTH PREFERRED SHARES
The Sixth Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING. The Sixth Preferred shares shall rank, with respect
to both dividends and return of capital in the event of
liquidation, dissolution or winding up of the Corporation,
junior to the First Preferred shares, the Third Preferred
shares, the Fourth Preferred shares and the Fifth Preferred
shares and in priority to all other shares of the Corporation,
including without limitation, the Class A Common and Class B
Common shares, but shall not confer any further right to
participate in the profits or assets of the Corporation. The
rights, privileges, restrictions and conditions attaching to
the Sixth Preferred shares shall be deemed to include and
incorporate by reference such provisions (including, without
limitation, the subordination provisions) as are necessary to
constitute the Sixth Preferred shares "Excluded Securities"
for the purposes of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31, 2002, as amended on September 10,
2003, among the Corporation, The Toronto-Dominion
Bank, as Administration Agent and certain lenders
named therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $450,000,000 10%
Series B Senior Secured Second Priority Notes due
2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
4dd
(G) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$200,000,000 8.750% Senior (Secured) Second
Priority Debentures due 2032;
(H) Indenture dated as of June 19, 2003 among the
Corporation and JPMorgan Chase Bank re U.S.
$350,000,000 6.25% Senior (Secured) Second Priority
Notes due 2013; and
(I) such other loan agreements, indentures, deeds of
trust or other financing instruments to which the
Corporation (or any successor) is from time to time a
party as contain substantially similar provisions as
the foregoing financing instruments related to
"Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Sixth Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the purchase for cancellation of Sixth Preferred shares or payments made on
the liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, purchase for cancellation or other distribution amount
made in respect of any of the Sixth Preferred shares shall, notwithstanding
anything to the contrary contained herein, be deemed to include and incorporate
by reference such provisions (including, without limitation, the subordination
provisions) as are necessary to constitute such promissory notes Excluded
Securities for the purposes of the Financing Indentures. Until all indebtedness
under the Financing Indentures has been fully paid or the payment thereof has
been duly provided for, such promissory note shall not be assignable or
negotiable by the holder except to the extent and in the manner contemplated by
the applicable provisions contained in the Financing Indentures relating to
Excluded Securities.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
being waived as hereinafter provided, redeem the
whole or any part of the Sixth Preferred shares on
payment for each such share to be redeemed of the
amount of One Thousand Dollars ($1,000) (the
"Redemption Price").
(ii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE. The
Redemption Price may, at the option of the
Corporation, be paid and satisfied in whole or in
part: (1) by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the Redemption Price, or
4ee
such part thereof as is to be satisfied by the
promissory note, which, subject to section (a) above,
is payable on demand, provides for interest on the
unpaid balance at a rate equal to the annual rate
established by The Toronto-Dominion Bank at its head
office in Toronto, Ontario from time to time as being
its reference rate of interest used by it to
determine the rates of interest it will charge for
loans made in Canada in Canadian dollars to its
preferred commercial customers (hereinafter referred
to as "Prime"), plus two percent (2%) per annum,
calculated and payable monthly in arrears on the last
date of each month, provided that the balance of any
interest accrued and unpaid to the date on which the
principal amount is paid shall be due and payable on
such date and that any interest not paid on its due
date shall itself bear interest at the above rate,
compounded monthly and, subject to section (a) above,
entitles the Corporation to prepay the whole or any
part of the unpaid principal under such promissory
note, upon payment of interest accrued on the unpaid
principal balance to the date of payment; or (2) by
the assignment or endorsement in favour of the holder
of a promissory note made by an affiliate (as such
term is defined in the Business Corporations Act
(Ontario), as amended from time to time, or any
successor legislation) for a principal sum or for a
portion of the principal sum equal to the Redemption
Price, or such part thereof as is to be satisfied by
the promissory note, which is payable on demand and
which the board of directors of the Corporation in
its discretion has determined has a value not less
than the Redemption Price, or such part thereof as is
to be satisfied by the promissory note of the
affiliate, which might be issued under clause (1) of
this subsection (b)(ii).
(iii) PARTIAL REDEMPTION. In case a part only of the then
outstanding Sixth Preferred shares is at any time to
be redeemed, the shares so to be redeemed shall be
selected in such manner as the directors in their
discretion shall decide and need not be redeemed pro
rata or selected by lot and the directors may make
such adjustments as may be necessary to avoid the
redemption of fractional parts of shares.
(iv) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The
Corporation shall, at least one (1) day before the
date specified for redemption, send to each person
who at the date of sending is a registered holder of
Sixth Preferred shares to be redeemed a notice in
writing of the intention of the Corporation to redeem
such Sixth Preferred shares, or alternatively, notice
may be waived or the time for sending of the notice
may be waived at any time with the consent in writing
of holders of such Sixth Preferred shares to be
redeemed. Notice may be mailed in a prepaid envelope
addressed to each such shareholder at his address as
it appears on the records of the Corporation or its
transfer agent, or alternatively, such notice may be
delivered personally to such shareholder, provided,
however, that accidental failure to give any such
notice to one or more of such shareholders shall not
affect the validity of the redemption. Such notice
4ff
shall set out the Redemption Price and the date of
redemption. If notice of any such redemption be given
by the Corporation or waived in the manner aforesaid
and an amount sufficient to redeem the shares has
been paid (whether in cash or by promissory note, as
above provided) to the holder of the Sixth Preferred
shares to be redeemed or deposited with any trust
corporation or chartered bank in Canada, on or before
the date fixed for redemption, the holder thereof
shall thereafter have no rights against the
Corporation in respect thereof except, upon the
surrender of certificates for such shares, to receive
payment therefor and except to receive any dividends
declared and payable on or before the redemption date
but unpaid. If the Sixth Preferred shares are
redeemed on the redemption date then from and after
the redemption date such shares shall cease to be
entitled to dividends, (except for any dividends
declared and payable on or before the redemption
date, but unpaid) and the holders thereof shall not
be entitled to exercise any of the rights of holders
of Sixth Preferred shares in respect thereof unless
payment of the Redemption Price is not made on the
redemption date, in which event the rights of the
holders of the said shares shall remain unaffected.
(c) NON-CUMULATIVE DIVIDENDS. The holders of the Sixth Preferred
shares shall, in each fiscal year of the Corporation, subject
to section (a) hereof and to the payment of all accrued
dividends on the First Preferred shares, the Third Preferred
shares, the Fourth Preferred shares and the Fifth Preferred
shares, but always in preference and priority to any payment
of dividends on any other shares of the Corporation for such
year, including without limitation, the Class A Common and
Class B Common shares, be entitled to receive, as and when
declared by the directors, out of the monies of the
Corporation properly applicable to the payment of dividends,
fixed preferential non-cumulative cash dividends at the rate
of nine and seventy-five one hundredths percent (9.75%) per
annum of the Redemption Price for such shares. The directors
shall be entitled from time to time to declare part of the
preferential non-cumulative cash dividend for any fiscal year
notwithstanding that such dividend for such fiscal year shall
not be declared in full. If in any fiscal year of the
Corporation the directors in their discretion shall not
declare the said dividend or any part thereof on the Sixth
Preferred shares for such fiscal year then the rights of the
holders of the Sixth Preferred stares to such dividend or
undeclared part thereof for such fiscal year shall be forever
extinguished. The registered holders of Sixth Preferred shares
shall not be entitled to any dividends other than or in excess
of the preferential non-cumulative cash dividends hereinbefore
provided for. No dividends shall be declared and paid or set
aside for payment on any shares of any other class of the
Corporation ranking junior to the Sixth Preferred shares in
any fiscal year, unless the fixed preferential non-cumulative
cash dividend for such fiscal year on all Sixth Preferred
shares then outstanding has been declared and paid or set
aside for payment. If in any fiscal year, after the fixed
preferential non-cumulative cash dividends on the Sixth
Preferred shares shall have been declared and paid or set
aside for payment, there shall remain any profits or surplus
available for dividends, such profits or surplus or any part
thereof may, in the discretion of the
4gg
directors, be applied to dividends on any shares of any other
class of the Corporation ranking junior to the Sixth Preferred
shares. If the Redemption Price is increased or decreased
pursuant to section (g) hereof above at any time after any
dividends have been declared and paid or set aside for payment
on the Sixth Preferred shares, the dividend rate applicable
during the period prior to such increase or decrease in the
Redemption Price in respect of which the dividends were paid
or set aside for payment shall be deemed decreased or
increased accordingly, and neither a registered holder of
Sixth Preferred shares nor the Corporation shall have a claim
against the other for either under or overpayment of dividends
resulting from an increase or decrease in the Redemption
Price.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the
right at its option at any time and from time to time to
purchase the whole or any part of the Sixth Preferred shares
at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption
Price thereof (the "Purchase Price"). The Purchase Price may,
at the option of the Corporation be paid and satisfied in the
manner provided for in subsection (b)(ii) hereof, subject to
the provisions of section (a) hereof.
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Sixth
Preferred shares shall be entitled to receive, subject to
section (a) hereof, and after the holders of First Preferred
shares, Third Preferred shares, Fourth Preferred shares and
Fifth Preferred shares shall have received such amounts as
they are entitled to receive in the event of the liquidation,
dissolution or winding up of the Corporation, but before any
distribution of any part of the assets of the Corporation
among the holders of any other shares of the Corporation,
including without limitation the Class A Common and Class B
Common shares, an amount equal to the Redemption Price for
each issued and outstanding Sixth Preferred share plus an
amount equal to all dividends declared thereon and unpaid.
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the Sixth
Preferred shares shall not, as such, have any voting rights
for the election of directors or, subject to any voting rights
accorded them pursuant to the provisions of the Business
Corporations Act (Ontario), as the same may from time to time
be amended or any successor legislation, for any other
purpose, nor shall they be entitled to attend shareholders'
meetings except for the purpose of exercising any voting
rights accorded to them pursuant to the provisions of the
Business Corporations Act (Ontario), as amended from time to
time, or any successor legislation; holders of the Sixth
Preferred shares shall, however, be entitled to notice of any
meeting of shareholders called for the purpose of authorizing
the dissolution of the Corporation or the sale, lease or
exchange of all or substantially all of the property of the
Corporation other than in the ordinary course of business.
4hh
(g) PRICE ADJUSTMENT. If at any time when any Sixth Preferred
shares are issued and outstanding either: (a) Canada Customs
and Revenue Agency determines and all of the holders of the
issued and outstanding Sixth Preferred shares concur in such
determination; or (b) the Corporation and the holders of the
Sixth Preferred shares determine, that the aggregate fair
market value of all property transferred or sold to the
Corporation in exchange for Sixth Preferred shares (the
"Acquired Property") is greater or less than the aggregate of
the Redemption Price of all Sixth Preferred shares issued in
connection with the acquisition of the Acquired Property, then
the resultant deficiency or excess in the aggregate of the
Redemption Price of all Sixth Preferred shares issued in
connection with the acquisition of the Acquired Property shall
be divided by the aggregate number of Sixth Preferred shares
issued in connection with the acquisition of the Acquired
Property and the Redemption Price shall be increased or
decreased accordingly.
4ii
SEVENTH PREFERRED SHARES
The Seventh Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING. The Seventh Preferred shares shall rank, with respect
to both dividends and return of capital in the event of
liquidation, dissolution or winding up of the Corporation,
junior to the First Preferred shares, the Third Preferred
shares, the Fourth Preferred shares, the Fifth Preferred
shares and the Sixth Preferred shares and in priority to all
other shares of the Corporation, including without limitation,
the Class A Common and Class B Common shares, but shall not
confer any further right to participate in the profits or
assets of the Corporation. The rights, privileges,
restrictions and conditions attaching to the Seventh Preferred
shares shall be deemed to include and incorporate by reference
such provisions (including, without limitation, the
subordination provisions) as are necessary to constitute the
Seventh Preferred shares "Excluded Securities" for the
purposes of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31, 2002, as amended on September 10,
2003, among the Corporation, The Toronto-Dominion
Bank, as Administration Agent and certain lenders
named therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $450,000,000 10%
Series B Senior Secured Second Priority Notes due
2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
4jj
(G) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$200,000,000 8.750% Senior (Secured) Second
Priority Debentures due 2032;
(H) Indenture dated as of June 19, 2003 among the
Corporation and JPMorgan Chase Bank re U.S.
$350,000,000 6.25% Senior (Secured) Second Priority
Notes due 2013; and
(I) such other loan agreements, indentures, deeds of
trust or other financing instruments to which the
Corporation (or any successor) is from time to time a
party as contain substantially similar provisions as
the foregoing financing instruments related to
"Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Seventh Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the purchase for cancellation of Seventh Preferred shares or payments made
on the liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, purchase for cancellation or other distribution amount
made in respect of any of the Seventh Preferred shares shall, notwithstanding
anything to the contrary contained herein, be deemed to include and incorporate
by reference such provisions (including, without limitation, the subordination
provisions) as are necessary to constitute such promissory notes Excluded
Securities for the purposes of the Financing Indentures. Until all indebtedness
under the Financing Indentures has been fully paid or the payment thereof has
been duly provided for, such promissory note shall not be assignable or
negotiable by the holder except to the extent and in the manner contemplated by
the applicable provisions contained in the Financing Indentures relating to
Excluded Securities.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
being waived as hereinafter provided, redeem the
whole or any part of the Seventh Preferred shares on
payment for each such share to be redeemed of the
amount of One Thousand Dollars ($1,000) as adjusted
in accordance with section (g) hereof (the
"Redemption Price").
(ii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE. The
Redemption Price may, at the option of the
Corporation, be paid and satisfied in whole or in
part: (1) by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the Redemption Price, or
4kk
such part thereof as is to be satisfied by the
promissory note, which, subject to section (a) above,
is payable on demand, provides for interest on the
unpaid balance at a rate equal to the annual rate
established by The Toronto-Dominion Bank at its head
office in Toronto, Ontario from time to time as being
its reference rate of interest used by it to
determine the rates of interest it will charge for
loans made in Canada in Canadian dollars to its
preferred commercial customers (hereinafter referred
to as "Prime"), plus two percent (2%) per annum,
calculated and payable monthly in arrears on the last
date of each month, provided that the balance of any
interest accrued and unpaid to the date on which the
principal amount is paid shall be due and payable on
such date and that any interest not paid on its due
date shall itself bear interest at the above rate,
compounded monthly and, subject to section (a) above,
entitles the Corporation to prepay the whole or any
part of the unpaid principal under such promissory
note, upon payment of interest accrued on the unpaid
principal balance to the date of payment; or (2) by
the assignment or endorsement in favour of the holder
of a promissory note made by an affiliate (as such
term is defined in the Business Corporations Act
(Ontario), as amended from time to time, or any
successor legislation) for a principal sum or for a
portion of the principal sum equal to the Redemption
Price, or such part thereof as is to be satisfied by
the promissory note, which is payable on demand and
which the board of directors of the Corporation in
its discretion has determined has a value not less
than the Redemption Price, or such part thereof as is
to be satisfied by the promissory note of the
affiliate, which might be issued under clause (1) of
this subsection (b)(ii).
(iii) PARTIAL REDEMPTION. In case a part only of the then
outstanding Seventh Preferred shares is at any time
to be redeemed, the shares so to be redeemed shall be
selected in such manner as the directors in their
discretion shall decide and need not be redeemed pro
rata or selected by lot and the directors may make
such adjustments as may be necessary to avoid the
redemption of fractional parts of shares.
(iv) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The
Corporation shall, at least one (1) day before the
date specified for redemption, send to each person
who at the date of sending is a registered holder of
Seventh Preferred shares to be redeemed a notice in
writing of the intention of the Corporation to redeem
such Seventh Preferred shares, or alternatively,
notice may be waived or the time for sending of the
notice may be waived at any time with the consent in
writing of holders of such Seventh Preferred shares
to be redeemed. Notice may be mailed in a prepaid
envelope addressed to each such shareholder at his
address as it appears on the records of the
Corporation or its transfer agent, or alternatively,
such notice may be delivered personally to such
shareholder; provided, however, that accidental
failure to give any such notice to one or more of
such shareholders shall not affect the validity of
the redemption. Such
4ll
notice shall set out the Redemption Price and the
date of redemption. If notice of any such redemption
be given by the Corporation or waived in the manner
aforesaid and an amount sufficient to redeem the
shares has been paid (whether in cash or by
promissory note, as above provided) to the holder of
the Seventh Preferred shares to be redeemed or
deposited with any trust corporation or chartered
bank in Canada, on or before the date fixed for
redemption, the holder thereof shall thereafter have
no rights against the Corporation in respect thereof
except, upon the surrender of certificates for such
shares, to receive payment therefor and except to
receive any dividends declared and payable on or
before the redemption date but unpaid. If the Seventh
Preferred shares are redeemed on the redemption date
then from and after the redemption date such shares
shall cease to be entitled to dividends, (except for
any dividends declared and payable on or before the
redemption date, but unpaid) and the holders thereof
shall not be entitled to exercise any of the rights
of holders of Seventh Preferred shares in respect
thereof unless payment of the Redemption Price is not
made on the redemption date, in which event the
rights of the holders of the said shares shall remain
unaffected.
(c) NON-CUMULATIVE DIVIDENDS. The holders of the Seventh Preferred
shares shall, in each fiscal year of the Corporation, subject
to section (a) hereof and to the payment of all accrued
dividends on the First Preferred shares, the Third Preferred
shares, the Fourth Preferred shares, the Fifth Preferred
shares and Sixth Preferred shares but always in preference and
priority to any payment of dividends on any other shares of
the Corporation for such year, including without limitation,
the Class A Common and Class B Common shares, be entitled to
receive, as and when declared by the directors, out of the
monies of the Corporation properly applicable to the payment
of dividends, fixed preferential non-cumulative cash dividends
at the rate of nine and eighty one hundredths percent (9.80%)
per annum of the Redemption Price for such shares. The
directors shall be entitled from time to time to declare part
of the preferential non-cumulative cash dividend for any
fiscal year notwithstanding that such dividend for such fiscal
year shall not be declared in full. If in any fiscal year of
the Corporation the directors in their discretion shall not
declare the said dividend or any part thereof on the Seventh
Preferred shares for such fiscal year then the rights of the
holders of the Seventh Preferred shares to such dividend or
undeclared part thereof for such fiscal year shall be forever
extinguished. The registered holders of Seventh Preferred
shares shall not be entitled to any dividends other than or in
excess of the preferential non-cumulative cash dividends
hereinbefore provided for. No dividends shall be declared and
paid or set aside for payment on any shares of any other class
of the Corporation ranking junior to the Seventh Preferred
shares in any fiscal year, unless the fixed preferential
non-cumulative cash dividend for such fiscal year on all
Seventh Preferred shares then outstanding has been declared
and paid or set aside for payment. If in any fiscal year,
after the fixed preferential non-cumulative cash dividends on
the Seventh Preferred shares shall have been declared and paid
or set aside for payment, there shall remain any profits or
surplus available for dividends, such profits or surplus or
any part
4mm
thereof may, in the discretion of the directors, be applied to
dividends on any shares of any other class of the Corporation
ranking junior to the Seventh Preferred shares. If the
Redemption Price is increased or decreased pursuant to section
(g) hereof above at any time after any dividends have been
declared and paid or set aside for payment on the Seventh
Preferred shares, the dividend rate applicable during the
period prior to such increase or decrease in the Redemption
Price in respect of which the dividends were paid or set aside
for payment shall be deemed decreased or increased
accordingly, and neither a registered holder of Seventh
Preferred shares nor the Corporation shall have a claim
against the other for either under or overpayment of dividends
resulting from an increase or decrease in the Redemption
Price.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the
right at its option at any time and from time to time to
purchase the whole or any part of the Seventh Preferred shares
at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption
Price thereof (the "Purchase Price"). The Purchase Price may,
at the option of the Corporation be paid and satisfied in the
manner provided for in subsection (b)(ii) hereof, subject to
the provisions of section (a) hereof.
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Seventh
Preferred shares shall be entitled to receive, subject to
section (a) hereof, and after the holders of First Preferred
shares, Third Preferred shares, Fourth Preferred shares, Fifth
Preferred shares and Sixth Preferred shares shall have
received such amounts as they are entitled to receive in the
event of the liquidation, dissolution or winding up of the
Corporation, but before any distribution of any part of the
assets of the Corporation among the holders of any other
shares of the Corporation, including without limitation the
Class A Common and Class B Common shares, an amount equal to
the Redemption Price for each issued and outstanding Seventh
Preferred share plus an amount equal to all dividends declared
thereon and unpaid.
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the
Seventh Preferred shares shall not, as such, have any voting
rights for the election of directors or, subject to any voting
rights accorded them pursuant to the provisions of the
Business Corporations Act (Ontario), as the same may from time
to time be amended or any successor legislation, for any other
purpose, nor shall they be entitled to attend shareholders'
meetings except for the purpose of exercising any voting
rights accorded to them pursuant to the provisions of the
Business Corporations Act (Ontario), as amended from time to
tune, or any successor legislation; holders of the Seventh
Preferred shares shall, however, be entitled to notice of any
meeting of shareholders called for the purpose of authorizing
the dissolution of the Corporation or the sale, lease or
exchange of all or substantially all of the property of the
Corporation other than in the ordinary course of business.
4nn
(g) PRICE ADJUSTMENT.
(i) If at any time and from time to time when any Seventh
Preferred shares are issued and outstanding either:
(a) Canada Customs and Revenue Agency determines and
all of the holders of the issued and outstanding
Seventh Preferred shares concur in such
determination; or (b) the Corporation and the holders
of the Seventh Preferred shares determine; that the
aggregate fair market value of all property
transferred or sold to the Corporation in exchange
for Seventh Preferred shares (the "Acquired
Property") is greater or less than the aggregate of
the Redemption Price of all Seventh Preferred shares
issued in connection with the acquisition of the
Acquired Property (and, for greater certainty, an
adjustment to the purchase price of the Acquired
Property pursuant to the agreement of purchase and
sale between the Corporation and the holders of the
Seventh Preferred shares from which the Corporation
acquired the Acquired Property to the extent pursuant
to the terms of such agreement is to be satisfied in
accordance with this subsection shall constitute such
a determination by the Corporation and the holders of
the Seventh Preferred shares), then the resultant
deficiency or excess in the aggregate of the
Redemption Price of all Seventh Preferred shares
issued in connection with the acquisition of the
Acquired Property shall be divided by the aggregate
number of Seventh Preferred shares issued in
connection with the acquisition of the Acquired
Property and the Redemption Price shall be increased
or decreased accordingly. For greater certainty,
multiple adjustments to the Redemption Price are
permitted under this subsection and all such
adjustments shall be cumulative.
(ii) In the event that none or only some (but not all) of
the Seventh Preferred shares issued in connection
with the acquisition of the Acquired Property are
issued and outstanding and the Redemption Price is
increased or decreased pursuant to subsection
(g)(i) hereof then the amount of the increase or
decrease in the aggregate fair market value of the
Acquired Property, less the aggregate of the
adjustments to the Redemption Price of the Seventh
Preferred shares, if any, then issued and outstanding
arising as a consequence of such determination, shall
be, in the case of an excess, a debt of the
Corporation payable to the holder of such Seventh
Preferred shares and in the case of a deficiency, a
debt of the holder payable to the Corporation, in
either case on demand, bearing interest at Prime plus
two percent (2%) per annum, calculated and payable
monthly in arrears on the last day of each month,
provided that the balance of any interest accrued and
unpaid to the date on which the principal amount is
paid shall be due and payable on such date and that
any interest not paid on its due date shall itself
bear interest at the above rate, compounded monthly.
(iii) Notwithstanding the foregoing, in the event that the
Seventh Preferred shares, or any of them, shall have
been redeemed for a Redemption Price paid by means of
a promissory note issued by the Corporation or
assigned
4oo
and transferred by the Corporation (as provided in
subsection (b)(ii) hereof) containing provisions
adjusting the principal amount thereof downwards by
an amount equal to the amount of such deficiency or
upwards by an amount equal to the amount of such
excess, then in such event, such adjustment provision
shall be deemed to satisfy in full the adjustment of
the applicable purchase price and the debt payable by
the Corporation to the holder or the holder to the
Corporation as the case may be, hereinbefore
provided.
4pp
EIGHTH PREFERRED SHARES
The Eighth Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING. The Eighth Preferred shares shall rank, with respect
to both dividends and return of capital in the event of
liquidation, dissolution or winding up of the Corporation,
junior to the First Preferred shares, the Third Preferred
shares, the Fourth Preferred shares, the Fifth Preferred
shares, the Sixth Preferred shares and the Seventh Preferred
shares and in priority to all other shares of the Corporation,
including without limitation, the Class A Common and Class B
Common shares, but shall not confer any further right to
participate in the profits or assets of the Corporation. The
rights, privileges, restrictions and conditions attaching to
the Eighth Preferred shares shall be deemed to include and
incorporate by reference such provisions (including, without
limitation, the subordination provisions) as are necessary to
constitute the Eighth Preferred shares "Excluded Securities"
for the purposes of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31, 2002, as amended on September 10,
2003, among the Corporation, The Toronto-Dominion
Bank, as Administration Agent and certain lenders
named therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $450,000,000 10%
Series B Senior Secured Second Priority Notes due
2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
4qq
(G) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$200,000,000 8.750% Senior (Secured) Second
Priority Debentures due 2032;
(H) Indenture dated as of June 19, 2003 among the
Corporation and JPMorgan Chase Bank re U.S.
$350,000,000 6.25% Senior (Secured) Second Priority
Notes due 2013; and
(I) such other loan agreements, indentures, deeds of
trust or other financing instruments to which the
Corporation (or any successor) is from time to time a
party as contain substantially similar provisions as
the foregoing financing instruments related to
"Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Eighth Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the purchase for cancellation of Eighth Preferred shares or payments made
on the liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, purchase for cancellation or other distribution amount
made in respect of any of the Eighth Preferred shares shall, notwithstanding
anything to the contrary contained herein, be deemed to include and incorporate
by reference such provisions (including, without limitation, the subordination
provisions) as are necessary to constitute such promissory notes Excluded
Securities for the purposes of the Financing Indentures. Until all indebtedness
under the Financing Indentures has been fully paid or the payment thereof has
been duly provided for, such promissory note shall not be assignable or
negotiable by the holder except to the extent and in the manner contemplated by
the applicable provisions contained in the Financing Indentures relating to
Excluded Securities.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION PRICE. Subject to any adjustment pursuant
to section (g) hereof, the "Redemption Price" in
respect of each Eighth Preferred share shall be an
amount equal to the fair market value of all of the
consideration for which Eighth Preferred shares are
issued as at the time such Eighth Preferred shares
are issued, as determined by the directors of the
Corporation, divided by the number of Eighth
Preferred shares so issued.
(ii) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
being waived as hereinafter provided, redeem the
whole or any part
4rr
of the Eighth Preferred shares on payment for each
such share to be redeemed of the Redemption Price
therefor.
(iii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE OR BY
CLASS B DEPOSIT RECEIPTS OF AT&T CANADA INC. The
aggregate Redemption Price of all Eighth Preferred
shares of a holder which are redeemed may, at the
option of the Corporation, be paid and satisfied in
whole or in part: (1) by the issuance to the holder
by the Corporation of a promissory note for a
principal sum equal to the Redemption Price, or such
part thereof as is to be satisfied by the promissory
note, which, subject to section (a) above, is payable
on demand, provides for interest on the unpaid
balance at a rate equal to the annual rate
established by The Toronto-Dominion Bank at its head
office in Toronto, Ontario from time to time as being
its reference rate of interest used by it to
determine the rates of interest it will charge for
loans made in Canada in Canadian dollars to its
preferred commercial customers (hereinafter referred
to as "Prime"), plus six percent (6%) per annum,
which interest will commence on the day following the
date of issuance of such promissory note and will be
calculated and payable monthly in arrears on the last
date of each month, provided that the balance of any
interest accrued and unpaid to the date on which the
principal amount is paid shall be due and payable on
such date and that any interest not paid on its due
date shall itself bear interest at the above rate,
compounded monthly and, subject to section (a) above,
entitles the Corporation to prepay the whole or any
part of the unpaid principal under such promissory
note, upon payment of interest accrued on the unpaid
principal balance to the date of payment; or (2) by
the assignment or endorsement in favour of the holder
of a promissory note made by an affiliate (as such
term is defined in the Business Corporations Act
(Ontario), as amended from time to time, or any
successor legislation) for a principal sum or for a
portion of the principal sum equal to the aggregate
Redemption Price, or such part thereof as is to be
satisfied by the promissory note, which is payable on
demand and which the board of directors of the
Corporation in its discretion has determined has a
value not less than the aggregate Redemption Price,
or such part thereof as is to be satisfied by the
promissory note of the affiliate, which might be
issued under clause (1) of this subsection (b)(iii);
or (3) by the transfer by the Corporation to the
holder of a portion of the Class B Deposit Receipts
of AT&T Canada Inc. (the "Deposit Receipts")
transferred to the Corporation in connection with the
issuance of Eighth Preferred shares, equal to the
portion of such Eighth Preferred shares which are to
be redeemed.
(iv) PARTIAL REDEMPTION. In case a part only of the then
outstanding Eighth Preferred shares is at any time to
be redeemed, the shares so to be redeemed shall be
selected in such manner as the directors in their
discretion shall decide and need not be redeemed pro
rata or selected by
4ss
lot and the directors may make such adjustments as
may be necessary to avoid the redemption of
fractional parts of shares.
(v) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The
Corporation shall, on or before the date specified
for redemption, send to each person who at the date
of sending is a registered holder of Eighth Preferred
shares to be redeemed a notice in writing of the
intention of the Corporation to redeem such Eighth
Preferred shares, or alternatively, notice may be
waived or the time for sending of the notice may be
waived at any time with the consent in writing of
holders of such Eighth Preferred shares to be
redeemed. Notice may be mailed in a prepaid envelope
addressed to each such shareholder at his address as
it appears on the records of the Corporation or its
transfer agent, or alternatively, such notice may be
delivered personally to such shareholder; provided,
however, that accidental failure to give any such
notice to one or more of such shareholders shall not
affect the validity of the redemption. Such notice
shall set out the amount determined by the directors
of the Corporation as the aggregate Redemption Price
of the Eighth Preferred shares so redeemed and the
date of redemption. If notice of any such redemption
be given by the Corporation or waived in the manner
aforesaid and an amount sufficient to redeem the
shares has been paid (whether in cash or by
promissory note or by the transfer of the Deposit
Receipts as above provided) to the holder of the
Eighth Preferred shares to be redeemed or deposited
with any trust corporation or chartered bank in
Canada, on or before the date fixed for redemption,
the holder thereof shall thereafter have no rights
against the Corporation in respect thereof except,
upon the surrender of certificates for such shares,
to receive payment therefor and except to receive any
dividends declared and payable on or before the
redemption date but unpaid. If the Eighth Preferred
shares are redeemed on the redemption date then from
and after the redemption date such shares shall cease
to be entitled to dividends, (except for any accrued
and unpaid dividends on such shares) and the holders
thereof shall not be entitled to exercise any of the
rights of holders of Eighth Preferred shares in
respect thereof unless payment of the Redemption
Price is not made on the redemption date, in which
event the rights of the holders of the said shares
shall remain unaffected.
(c) CUMULATIVE DIVIDENDS. The holders of the Eighth Preferred
shares shall, in each fiscal year of the Corporation, subject
to section (a) hereof and to the payment of all accrued
dividends on the First Preferred shares, the Third Preferred
shares, the Fourth Preferred shares, the Fifth Preferred
shares, the Sixth Preferred shares and the Seventh Preferred
shares, but always in preference and priority to any payment
of dividends on any other shares of the Corporation for such
year, including without limitation, the Class A Common and
Class B Common shares, be entitled to receive, subject to the
provisions of the Business Corporations Act (Ontario), as
amended from time to time, or any successor legislation,
fixed, cumulative cash dividends at the rate of eight percent
(8%) per annum of the
4tt
Redemption Price for such shares payable quarterly on the
first day following the last day in the month of each of
March, June, September and December, other than a Saturday or
a Sunday, on which the main branch of The Toronto-Dominion
Bank in Toronto, Ontario is open for business (each an
"Established Dividend Payment Date"). Alternatively, if the
directors so determine dividends shall be payable on any day
(an "Alternate Dividend Payment Date") following the
immediately preceding Established Dividend Payment Date and
before the next Established Dividend Payment Date. An
Established Dividend Payment Date and an Alternate Dividend
Payment Date are each hereinafter referred to as a "Dividend
Payment Date". Dividends on the Eighth Preferred shares shall
accrue on a daily basis from the day following the date of
issuance. If on any Dividend Payment Date the dividend payable
on such date is not paid in full on all of the Eighth
Preferred shares then issued and outstanding, such dividend or
the unpaid part thereof shall be paid on the first date
thereafter on which the Corporation shall have sufficient
moneys properly applicable to the payment of same. The holders
of the Eighth Preferred shares shall not be entitled to any
dividend other than or in excess of the cumulative dividends
at the rate hereinbefore provided for. If the Redemption Price
is increased or decreased pursuant to section (g) hereof at
any time after any dividends have been declared and paid or
set aside for payment on the Eighth Preferred shares, the
dividend rate applicable during the period prior to such
increase or decrease in the Redemption Price in respect of
which the dividends were paid or set aside for payment shall
be deemed decreased or increased accordingly, and neither a
registered holder of Eighth Preferred shares nor the
Corporation shall have a claim against the other for either
under or overpayment of dividends resulting from an increase
or decrease in the Redemption Price.
The Corporation shall not redeem or purchase for cancellation
any Eighth Preferred shares then outstanding unless all
dividends accrued on the Eighth Preferred shares up to the
date of redemption or purchase have been paid.
The Corporation shall not call for redemption or redeem or
purchase for cancellation or make any capital distribution in
respect of or otherwise pay off or retire any shares of the
Corporation ranking on a parity with or junior to the Eighth
Preferred shares unless all dividends on the Eighth Preferred
shares up to and including the dividend payable on the
immediately preceding Dividend Payment Date shall have been
declared and paid or set aside for payment at the date of such
call for redemption, redemption, purchase, distribution,
retirement or other payment off.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the
right at its option at any time and from time to time to
purchase the whole or any part of the Eighth Preferred shares
at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption
Price thereof (the "Purchase Price"). The Purchase Price may,
at the option of the Corporation be paid and satisfied in the
manner provided for in subsection (b)(iii) hereof.
4uu
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Eighth
Preferred shares shall be entitled to receive, subject to
section (a) hereof, and after the holders of First Preferred
shares, Third Preferred shares, Fourth Preferred shares, Fifth
Preferred shares, Sixth Preferred shares and Seventh Preferred
shares shall have received such amounts as they are entitled
to receive in the event of the liquidation, dissolution or
winding up of the Corporation, but before any distribution of
any part of the assets of the Corporation among the holders of
any other shares of the Corporation, including without
limitation the Class A Common and Class B Common shares, an
amount equal to the Redemption Price for each issued and
outstanding Eighth Preferred share plus an amount equal to the
accrued and unpaid dividends thereon.
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the
Eighth Preferred shares shall not, as such, have any voting
rights for the election of directors or, subject to any voting
rights accorded them pursuant to the provisions of the
Business Corporations Act (Ontario), as the same may from time
to time be amended or any successor legislation, for any other
purpose, nor shall they be entitled to attend shareholders'
meetings except for the purpose of exercising any voting
rights accorded to them pursuant to the provisions of the
Business Corporations Act (Ontario), as amended from time to
time, or any successor legislation; holders of the Eighth
Preferred shares shall, however, be entitled to notice of any
meeting of shareholders called for the purpose of authorizing
the dissolution of the Corporation or the sale, lease or
exchange of all or substantially all of the property of the
Corporation other than in the ordinary course of business.
(g) PRICE ADJUSTMENT
(i) If at any time and from time to time when any Eighth
Preferred shares are issued and outstanding either:
(a) Canada Customs and Revenue Agency determines and
the directors of the Corporation and all of the
holders of the issued and outstanding Eighth
Preferred shares concur in such determination; or (b)
the Corporation, the directors of the Corporation and
the holders of the Eighth Preferred shares determine;
that the aggregate fair market value of all property
transferred or sold to the Corporation in exchange
for Eighth Preferred shares (the "Acquired Property")
is greater or less than the fair market value of the
Acquired Property as determined by the board of
directors at the time of the acquisition of the
Acquired Property as contemplated by subsection
(b)(i) hereof, or as most recently redetermined under
this section (g) then the resultant excess or
deficiency, as the case may be, shall be divided by
the aggregate number of Eighth Preferred shares
issued in connection with the acquisition of the
Acquired Property and the Redemption Price shall be
increased or decreased accordingly. For greater
certainty, multiple adjustments to the Redemption
Price are permitted under this subsection and all
such adjustments shall be cumulative.
4vv
(ii) In the event that none or only some (but not all) of
the Eighth Preferred shares issued in connection with
the acquisition of the Acquired Property are issued
and outstanding and the Redemption Price is increased
or decreased pursuant to subsection (g)(i) hereof
then the amount of the increase or decrease in the
aggregate fair market value of the Acquired Property,
less the aggregate of the adjustments to the
Redemption Price of the Eighth Preferred shares, if
any, then issued and outstanding arising as a
consequence of such determination, shall be, in the
case of an excess, a debt of the Corporation payable
to the holder of such Eighth Preferred shares and in
the case of a deficiency, a debt of the holder
payable to the Corporation, in either case on demand,
bearing interest at Prime plus six percent (6%) per
annum, calculated and payable monthly in arrears on
the last day of each month, provided that the balance
of any interest accrued and unpaid to the date on
which the principal amount is paid shall be due and
payable on such date and that any interest not paid
on its due date shall itself bear interest at the
above rate, compounded monthly.
(iii) Notwithstanding subsection (g)(ii), in the event that
the Redemption Price for any Eighth Preferred shares
redeemed shall have been satisfied by means of a
promissory note issued by the Corporation or assigned
and transferred by the Corporation (as provided in
subsection (b)(iii) hereof) providing for the
adjustment of the principal amount thereof downwards
by an amount equal to the amount of the deficiency or
upwards by an amount equal to the amount of the
excess, then in such event, the note as adjusted
shall be deemed to satisfy in full the adjustment of
the applicable purchase price and the debt payable by
the Corporation to the holder or the holder to the
Corporation as the case may be, hereinbefore provided
in subsection (g)(ii) hereof.
(iv) Each time a change is made to the Redemption Price
pursuant to this section (g), a certificate of an
officer of the Corporation, stating such new
Redemption Price, shall be prepared and inserted in
the minute book of the Corporation.
5
9. The issue, transfer or ownership Lemission, letransfert ou la propriete
of shares is/is not restricted and dactions estlnest pas restreinte. Les
the restrictions (if any) are as restrictions, sily a lieu, sont les
follows: suivantes:
The right to transfer shares of the Corporation shall be restricted in that
no shareholder shall be entitled to transfer any share or shares of the
Corporation without either:
(a)the express sanction of the holders of more than 50% of the common
shares of the Corporation for the time being outstanding expressed by a
resolution passed at a meeting of the shareholders of the Corporation or by
an instrument or instruments in writing signed by the holders of more than
50% of such shares; or
(b)the express sanction of the directors of the Corporation expressed by a
resolution passed by the votes of a majority of directors of the
Corporation at a meeting of the board of directors or by an instrument or
instruments in writing signed by a majority of the directors.
10. Other provisions, (if any): Autres dispositions, sily a lieu.
(a) The board of directors may from time to time, without authorization of
the shareholders:
(i) borrow money upon the credit of the Corporation;
(ii) issue, reissue, sell or pledge debt obligations of the
Corporation;
(iii) subject to the Business Corporations Act, give a guarantee on
behalf of the Corporation to secure performance of an obligation of any
person; and
(iv) mortgage, hypothecate, pledge or otherwise create a security
interest in all or any property of the Corporation, owned or subsequently
acquired, to secure any obligation of the Corporation.
Nothing in this subparagraph (a) limits or restricts the borrowing of money
by the Corporation on bills of exchange or promissory notes made, drawn,
accepted or endorsed by or on behalf of the Corporation.
The board of directors may from time to time by resolution delegate any or
all of the powers referred to above to a director, a committee of directors
or an officer.
For greater certainty, but without in any way limiting the powers conferred
on the board of directors hereunder, for the purpose of clause (iv) of this
subparagraph (a), "property" shall include and be deemed to include,
without limitation, both movable and immovable property.
(b) The number of shareholders, exclusive of persons who are in the
employment of the Corporation and exclusive of persons who, having been
formerly in the employment of the Corporation, were, while in that
employment, and have continued after termination of that employment to be,
shareholders of the Corporation, is limited to not more than fifty, two or
more persons who are the joint registered owners of one or more shares
being counted as one shareholder.
11. The statements required by Les declarations exigees aux termes du
subsection 178(2) of the Business paragraphe 178(2) de la Loi sur les
Corporations Act are attached as compagnies constituent I'annexe "A".
Schedule "A".
12. A copy of the amalgamation Une copie de la convention de fusion ou
agreement or directors resolutions les resolutions des administrateurs
(as the case may be) is/are (selon le cas) constitue(nt) I'
attached as Scheduled "B". annexe "B".
6
These articles are signed in Les presents statuts sont signes en
duplicate. double exemplaire.
Names of the amalgamating Denomination sociale des compagnies qui
corporations and signatures and fusionnent, signature at fonction de
descriptions of office of their leurs dirigeants regulierement
proper officers. designes.
ROGERS CABLE INC.
Per:/s/ M. Lorraine Daly
-----------------------------
Name: M. Lorraine Daly
Title: V. P. Treasurer
Per:/s/ David P. Miller
-----------------------------
Name: David P. Miller
Title: V. P. General Counsel + Secretary
1443358 ONTARIO INC.
Per:/s/ M. Lorraine Daly
-----------------------------
Name: M. Lorraine Daly
Title: V. P. Treasurer
Per:/s/ David P. Miller
-----------------------------
Name: David P. Miller
Title: V. P. General Counsel + Secretary
SCHEDULE "A" TO ARTICLES OF AMALGAMATION OF
ROGERS CABLE INC.
STATEMENT OF OFFICER
The undersigned, DAVID P. MILLER, the Vice-President, General Counsel and
Secretary of each of ROGERS CABLE INC. and 1443358 ONTARIO INC., the
amalgamating corporations referred to in the Articles of Amalgamation to which
this schedule is attached as Schedule "A", hereby states that:
1. there are reasonable grounds for believing that each of ROGERS CABLE
INC. and 1443358 ONTARIO INC. is, and the amalgamated corporation will be, able
to pay its liabilities as they become due and the realizable value of the
amalgamated corporation's assets will not be less than the aggregate of its
liabilities and stated capital of all classes;
2. there are reasonable grounds for believing that no creditor of ROGERS
CABLE INC. or 1443358 ONTARIO INC. will be prejudiced by the amalgamation;
3. no creditors of ROGERS CABLE INC. or 1443358 ONTARIO INC. have notified
the Corporation that they object to the amalgamation and therefore clause
178(2)(c) of the Business Corporations Act (Ontario) (the "Act") is not
applicable; and
4. with respect to clause 178(2)(d) of the Act this clause is not
applicable in light of the statement made in reference to clause 178(2)(c) of
the Act.
DATED the 31st day of December, 2003.
/s/ DAVID P. MILLER
- -----------------------------
DAVID P. MILLER
SCHEDULE "B"
THIS AMALGAMATION AGREEMENT made as of the 31st day of December, 2003.
BETWEEN:
ROGERS CABLE INC.,
a corporation existing under the laws of the
Province of Ontario
(hereinafter called "Cable")
OF THE FIRST PART;
- and-
1443358 ONTARIO INC.,
a corporation existing under the laws of the
Province of Ontario
(hereinafter called "144")
OF THE SECOND PART.
WHEREAS Cable and 144 were incorporated under the Business Corporations Act
(Ontario) (the "Act"), or predecessors of that legislation and are governed by
the Act;
AND WHEREAS Cable and 144, acting under the authority contained in the Act, have
agreed to amalgamate upon the terms and conditions hereinafter set out;
AND WHEREAS Cable and 144 have each made full disclosure to one another of all
their respective assets and liabilities;
AND WHEREAS:
(a) at 10:00 a.m. on the date hereof Cable sold 1,000,000 Fourth
Preferred shares (the "Ontario Shares") of Rogers Cablesystems
Ontario Limited ("Ontario") to 144 and 144 satisfied the
purchase price therefor by the issuance of 1,000,000 Common
shares to Cable (the "Cable Payment Shares");
(b) at 10:01 a.m. on the date hereof Ontario sold 100,000 Common
shares of Rogers Ottawa Limited/Limitee and 1,000 Common
shares of Rogers Cablesystems Georgian Bay Limited to 144 and
144 satisfied the purchase price therefor by the issuance of 1
First Preferred share to Ontario (the "Ontario Payment
Share");
-2-
(c) at 10:03 a.m. on the date hereof 144 redeemed the Ontario
Payment Share and satisfied the redemption price therefor by
the issuance of a demand promissory note to Ontario (the "144
Note") and Ontario redeemed the Ontario Shares and satisfied
the redemption price therefor by the issuance of a demand
promissory note to 144 (the "Ontario Note");
(d) at 10:04 a.m. on the date hereof 144 and Ontario satisfied
their respective obligations under the 144 Note and the
Ontario Note one against the other;
(e) at 10:30 a.m. on the date hereof Cable sold substantially all
of its property and assets to Rogers Cable Communications
Inc.;
(collectively, the "Transactions")
AND WHEREAS the authorized capital of Cable consists of an unlimited number of
Class A Common shares, an unlimited number of Class B Common shares, 100,000,000
Class B Preferred shares, an unlimited number of First Preferred shares, an
unlimited number of Third Preferred shares, an unlimited number of Fourth
Preferred shares, an unlimited number of Fifth Preferred shares, an unlimited
number of Sixth Preferred shares, an unlimited number of Seventh Preferred
shares and an unlimited number of Eighth Preferred shares of which 100,000,000
Class A Common shares, 118,166,003 Class B Common shares, 306,904 Fourth
Preferred shares and 151,800 Seventh Preferred shares have been issued and are
outstanding as fully paid and nonassessable;
AND WHEREAS the authorized capital of 144 consists of an unlimited number of
common shares and an unlimited number of First Preferred shares, of which
1,000,001 common shares have been issued and are outstanding as fully paid and
non-assessable;
AND WHEREAS Cable is the beneficial owner of record of all of the issued and
outstanding shares in the capital of 144;
AND WHEREAS it is desirable that the Amalgamation should be effected;
NOW THEREFORE THIS AMALGAMATION AGREEMENT WITNESSETH as follows:
1. In this Agreement:
(a) "Act" has the meaning ascribed thereto in the recitals hereto;
(b) "Amalgamated Corporation" or "Corporation" means the
corporation continuing from the amalgamation of the
Amalgamating Corporations;
(c) "Amalgamating Corporations" means Cable and 144, the parties
hereto;
(d) "Amalgamation" has the meaning ascribed thereto in Section 2
hereof;
-3-
(e) "Amalgamation Agreement" or "Agreement" means this
Amalgamation Agreement;
(f) "Certificate of Amalgamation" means the certificate of
amalgamation issued by the Director pursuant to the Act in
respect of the Amalgamation;
(g) "Effective Time" has the meaning as described thereto in
Section 2 hereof.
2. The Amalgamating Corporations and each of them do hereby agree to
amalgamate, following the completion of the Transactions, at 10:55 a.m.
on the 31st day of December (the "Effective Time"), under the
provisions of Section 174 and Section 175 of the Act, and to continue
as one corporation under the terms and conditions of this Agreement
(the "Amalgamation").
3. The name of the Amalgamated Corporation shall be ROGERS CABLE INC.
4. The registered office of the Amalgamated Corporation shall be located
in the City of Toronto, in the Province of Ontario.
5. The address of the registered office of the Amalgamated Corporation
shall be 333 Bloor Street East, 10th Floor, Toronto, Ontario, M4W 1G9.
6. There shall be no restrictions on the business the Amalgamated
Corporation may carry on or the powers the Amalgamated Corporation may
exercise.
7. The authorized capital of the Amalgamated Corporation shall consist of
an unlimited number of Class A Common shares, an unlimited number of
Class B Common shares, 100,000,000 Class B Preferred shares, an
unlimited number of First Preferred shares, an unlimited number of
Third Preferred shares, an unlimited number of Fourth Preferred shares,
an unlimited number of Fifth Preferred shares, an unlimited number of
Sixth Preferred shares, an unlimited number of Seventh Preferred shares
and an unlimited number of Eighth Preferred shares;
8. The rights, privileges, restrictions and conditions attaching to each
class of shares in the capital of the Amalgamated Corporation shall be
as set out on Schedule "A" hereto.
9. The authorized but unissued shares and the issued and outstanding
shares in the capital of each of the Amalgamating Corporations shall be
respectively cancelled or converted into issued and outstanding shares
in the capital of the Amalgamated Corporation as follows:
(a) the 100,000,000 issued and outstanding Class A Common shares,
the 118,166,003 Class B Common shares, the 306,904 Fourth
Preferred shares and the 151,800 Seventh Preferred shares of
Cable shall be converted on a share per share basis
respectively into 100,000,000 Class A Common shares,
118,166,003 Class B Common shares, 306,904 Fourth Preferred
shares and 151,800 Seventh Preferred shares of the Amalgamated
Corporation and the remaining authorized but unissued shares
of Cable shall be cancelled;
-4-
(b) the 1,000,001 issued and outstanding Common shares of 144 held
by Cable shall be cancelled without any repayment of capital
in respect thereof, and shall not be converted into shares of
the Amalgamated Corporation and the remaining authorized but
unissued shares of 144 shall be cancelled;
After the filing of Articles of Amalgamation in respect of this Agreement and
the issue of a Certificate of Amalgamation in respect thereof, the shareholders
of the Amalgamating Corporations when requested by the Amalgamated Corporation
shall surrender the certificates representing the shares held by them in the
Amalgamating Corporations and, subject to the provisions of the Act, in return
shall be entitled to receive certificates for shares of the Amalgamated
Corporation on the basis set out in this Agreement.
10. Effective upon the Amalgamation, the stated capital attributable to the
Class A Common shares, the Class B Common shares, the Fourth Preferred
shares and the Seventh Preferred shares of the Amalgamated Corporation
issued on conversion of the shares of the Amalgamating Corporations
pursuant to Section 9 hereof shall be equal to the stated capital
attributable to the Class A Common shares, the Class B Common shares,
the Fourth Preferred shares and the Seventh Preferred shares of Cable
immediately prior to the Amalgamation.
11. All of the shares of the Amalgamated Corporation issued in accordance
with the provisions of Section 9 shall be deemed to have been issued as
fully-paid and non-assessable and the Amalgamated Corporation shall be
deemed to have received the full consideration for the issue thereof.
12. The board of directors of the Amalgamated Corporation, until otherwise
changed in accordance with the Act, shall consist of a minimum of 1
director and a maximum of 30 directors, and the first directors of the
Amalgamated Corporation shall be:
Name Address Canadian Resident
Alan D. Horn 333 Bloor Street East, 10th Floor Yes
Toronto, Ontario M4W 1G9
Bruce D. Day 333 Bloor Street East, 10th Floor Yes
Toronto, Ontario M4W 1G9
-5-
M. Lorraine Daly 333 Bloor Street East, 10th Floor Yes
Toronto, Ontario M4W 1G9
David P. Miller 333 Bloor Street East, 10th Floor Yes
Toronto, Ontario M4W 1G9
The said first directors shall hold office until the first annual
meeting of the Amalgamated Corporation, or until their successors are elected,
in accordance with the by-laws of the Amalgamated Corporation and the Act. The
affairs and business of the Amalgamated Corporation shall be under the
management of the board of directors from time to time, subject to the
provisions of the Act.
13. The by-laws of Cable shall, so far as applicable, be the by-laws of the
Amalgamated Corporation, until repealed or amended in the normal manner
provided for in the Act.
14. Subject to the provisions of the Act, the following provisions shall
apply to the Amalgamated Corporation:
(a) The right to transfer shares of the Corporation shall be
restricted in that no shareholder shall be entitled to
transfer any share or shares of the Corporation without
either:
(i) the express sanction of the holders of more than 50%
of the common shares of the Corporation for the time
being outstanding expressed by a resolution passed at
a meeting of the shareholders of the Corporation or
by an instrument or instruments in writing signed by
the holders of more than 50% of such shares; or
(ii) the express sanction of the directors of the
Corporation expressed by a resolution passed by the
votes of a majority of directors of the Corporation
at a meeting of the board of directors or by an
instrument or instruments in writing signed by a
majority of the directors.
(b) The board of directors may from time to time, without
authorization of the shareholders:
(i) borrow money upon the credit of the Corporation;
(ii) issue, reissue, sell or pledge debt obligations of
the Corporation;
(iii) subject to the Business Corporations Act (Ontario),
give a guarantee on behalf of the Corporation to
secure performance of an obligation of any person;
and
(iv) mortgage, hypothecate, pledge or otherwise create a
security interest in all or any property of the
Corporation, owned or subsequently acquired, to
secure any obligation of the Corporation.
-6-
Nothing in this subparagraph (b) limits or restricts the borrowing of
money by the Corporation on bills of exchange or promissory notes made,
drawn, accepted or endorsed by or on behalf of the Corporation.
The board of directors may from time to time by resolution delegate any
or all of the powers referred to above to a director, a committee of
directors or an officer.
For greater certainty, but without in any way limiting the powers
conferred on the board of directors hereunder, for the purpose of
clause (iv) of this subparagraph (b), "property" shall include and be
deemed to include, without limitation, both movable and immovable
property.
(c) The number of shareholders, exclusive of persons who are in
the employment of the Corporation and exclusive of persons
who, having been formerly in the employment of the
Corporation, were, while in that employment, and have
continued after termination of that employment to be,
shareholders of the Corporation, is limited to not more than
fifty, two or more persons who are the joint registered owners
of one or more shares being counted as one shareholder.
15. Upon the shareholders of the Amalgamating Corporations respectively
adopting this Agreement in accordance with the requirements of the Act,
and subject to paragraph 17 hereof, Articles of Amalgamation in
prescribed form, together with all supporting documents required by the
Act, shall be sent to the Director under the Act.
16. Upon the endorsement of the Certificate of Amalgamation under the Act:
(a) the Amalgamating Corporations are amalgamated and continue as
one corporation effective the Effective Time under the terms
and conditions prescribed in this Agreement;
(b) the Amalgamated Corporation possesses all the property,
rights, privileges and franchises and is subject to all
liabilities, including civil, criminal and quasi-criminal and
all contracts, disabilities and debts of each of the
Amalgamating Corporations;
(c) a conviction against, or ruling, order or judgment in favour
of or against an Amalgamating Corporation may be enforced by
or against the Amalgamated Corporation;
(d) the Articles of Amalgamation are deemed to be the Articles of
Incorporation of the Amalgamated Corporation and, except for
purposes of Subsection 117(1) of the Act, the Certificate of
Amalgamation, is deemed to be the Certificate of Incorporation
of the Amalgamated Corporation; and
(e) the Amalgamated Corporation shall be deemed to be the party
plaintiff or the party defendant, as the case may be, in any
civil action commenced by or against an Amalgamating
Corporation before the amalgamation has become effective.
-7-
17. This Agreement may be terminated by the respective boards of directors
of the Amalgamating Corporations, notwithstanding the approval of this
Agreement by the shareholders of the Amalgamating Corporations, at any
time prior to the endorsement of the Certificate of Amalgamation.
IN WITNESS WHEREOF this Amalgamation Agreement has been duly executed by the
parties hereto.
ROGERS CABLE INC.
Per: /s/ M. Lorraine Daly
-------------------------------
Name: M. Lorraine Daly
Title: V.P. Treasurer
Per: /s/ Alan D. Horn
-------------------------------
Name: Alan D. Horn
Title: Vice President
1443358 ONTARIO INC.
Per: /s/ M. Lorraine Daly
-------------------------------
Name: M. Lorraine Daly
Title: V.P. Treasurer
Per: /s/ Alan D. Horn
-------------------------------
Name: Alan D. Horn
Title: Vice President
-8-
SCHEDULE "A"
CLASS A COMMON SHARES
The Class A Common shares shall have attached thereto, as a class, the following
rights, privileges, restrictions and conditions:
a) VOTES. The holders of the Class A Common shares shall be
entitled to two (2) votes in respect of each Class A Common
share at all meetings of shareholders of the Corporation,
except meetings at which only holders of a specified class of
shares are entitled to vote;
(b) LIQUIDATION, DISSOLUTION OR WINDING UP. The holders of the
Class A Common shares shall be entitled, subject to the rights
of the holders of the other classes of shares of the
Corporation, to share equally, share for share with the
holders of the Class B Common shares in the remaining property
of the Corporation on the liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary; and
(c) DIVIDENDS. Subject to the rights of the holders of the other
classes of shares of the Corporation, the holders of the Class
A Common shares shall be entitled to receive dividends in the
form of fully paid shares of the Corporation or money as,
when, and at the rate declared in the discretion of the
directors.
CLASS B COMMON SHARES
The Class B Common shares shall have attached thereto, as a class, the following
rights, privileges, restrictions and conditions:
(a) VOTES. The holders of the Class B Common shares shall be
entitled to two (2) votes in respect of each Class B Common
share at all meetings of shareholders of the Corporation,
except meetings at which only holders of a specified class of
shares are entitled to vote;
(b) LIQUIDATION, DISSOLUTION OR WINDING UP. The holders of the
Class B Common shares shall be entitled, subject to section
(d) below and subject to the rights of the holders of the
other classes of shares of the Corporation, to share equally,
share for share with the holders of the Class A Common shares
in the remaining property of the Corporation on the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary;
(c) DIVIDENDS. The holders of the Class B Common shares shall be
entitled to receive, subject to section (d) below and subject
to the rights of the holders of the other classes of shares of
the Corporation, dividends in the form of fully paid shares of
the Corporation or money as, when, and at the rate declared in
the discretion of the directors; and
(d) EXCLUDED SECURITIES. The rights, privileges, restrictions and
conditions attaching to the Class B Common shares shall be
deemed to include and incorporate by reference such provisions
(including, without limitation, the subordination provisions)
as are necessary to constitute the Class B Common shares
"Excluded Securities" for the purposes of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31,2002, as amended on September 10,2003,
among the Corporation, The Toronto-Dominion Bank, as
Administration Agent and certain lenders named
therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $450,000,000 10%
Series B Senior Secured Second Priority Notes due
2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
(G) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$200,000,000 8.750% Senior (Secured) Second
Priority Debentures due 2032;
(H) Indenture dated as of June 19, 2003 among the
Corporation and JPMorgan Chase Bank re U.S.
$350,000,000 6.25% Senior (Secured) Second Priority
Notes due 2013; and
(I) such other loan agreements, indentures, deeds of
trust or other financing instruments to which the
Corporation (or any successor) is from time to time a
party as contain substantially similar provisions as
the foregoing financing instruments related to
"Excluded Securities",
-2-
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Class B Common shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the purchase for cancellation of Class B Common shares or payments made on
the liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, purchase for cancellation or other distribution amount
made in respect of any of the Class B Common shares shall, notwithstanding
anything to the contrary contained herein, be deemed to include and incorporate
by reference such provisions (including, without limitation, the subordination
provisions) as are necessary to constitute such promissory notes Excluded
Securities for the purposes of the Financing Indentures. Until all indebtedness
under the Financing Indentures has been fully paid or the payment thereof has
been duly provided for, such promissory note shall not be assignable or
negotiable by the holder except to the extent and in the manner contemplated by
the applicable provisions contained in the Financing Indentures relating to
Excluded Securities.
3
CLASS B PREFERRED SHARES
The Class B Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING
The Class B Preferred shares shall rank, with respect to both dividends and in
the event of the dissolution, liquidation or winding-up of the Corporation,
whether voluntary or involuntary, or any distribution of assets of the
Corporation among its shareholders for the purpose of winding-up its affairs,
junior to the First Preferred shares, the Second Preferred shares and the Third
Preferred shares and in priority to the Class A Common shares of the
Corporation, but shall not confer any further right to participate in the
profits or assets of the Corporation.
(b) EXCLUDED SECURITIES
The rights, privileges, restrictions and conditions attaching to the Class B
Preferred shares shall be deemed to include and incorporate by reference such
provisions (including, without limitation, the subordination provisions) as are
necessary to constitute the Class B Preferred shares "Excluded Securities" for
the purposes of the:
(A) Second Amended and Restated Loan Agreement dated as of January
31,2002, as amended on September 10,2003, among the
Corporation, The Toronto-Dominion Bank, as Administration
Agent and certain lenders named therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by amalgamation
to the Corporation, Rogers Cable T.V. Limited ("RCTV"), a
predecessor by amalgamation to the Corporation, Rogers Ottawa
Limited/Limitee ("ROL") and Chemical Bank (now JPMorgan Chase
Bank) re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB, various
Restricted Subsidiaries and Chemical Bank (now JPMorgan Chase
Bank) re U.S. $450,000,000 10% Series B Senior Secured Second
Priority Notes due 2005;
(D) Indenture dated as of November 30, 1995 among RCAB, various
Restricted Subsidiaries and Chemical Bank (now JPMorgan Chase
Bank) re U.S. $125,000,000 11% Senior Subordinated Guaranteed
Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the Corporation
and CIBC Mellon Trust Company re Cdn. $450,000,000 7.60%
Senior (Secured) Second Priority Notes due 2007;
(F) Indenture dated as of April 30,2002 among the Corporation and
JPMorgan Chase Bank re U.S.$350,000,000 7.875% Senior
(Secured) Second Priority Notes due 2012;
4
(G) Indenture dated as of April 30,2002 among the Corporation and
JPMorgan Chase Bank re U.S.$ 200,000,000 8.750% Senior (Secured)
Second Priority Debentures due 2032;
(H) Indenture dated as of June 19,2003 among the Corporation and
JPMorgan Chase Bank re U.S. $350,000,000 6.25% Senior (Secured)
Second Priority Notes due 2013;and
(I) such other loan agreements, indentures, deeds of trust or other
financing instruments to which the Corporation (or any
successor) is from time to time a party as contain substantially
similar provisions as the foregoing financing instruments
related to "Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Class B Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the redemption of Class B Preferred shares or payments made on the
liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, redemption or other distribution amount made in respect of
any of the Class B Preferred shares shall, notwithstanding anything to the
contrary contained herein, be deemed to include and incorporate by reference
such provisions (including, without limitation, the subordination provisions) as
are necessary to constitute such promissory notes Excluded Securities for the
purposes of the Financing Indentures. Until all indebtedness under the Financing
Indentures has been fully paid or the payment thereof has been duly provided
for, such promissory note shall not be assignable or negotiable by the holder
except to the extent and in the manner contemplated by the applicable provisions
contained in the Financing Indentures relating to Excluded Securities.
(c) REDEMPTION PRIVILEGE
(i) REDEMPTION PRICE
The Redemption Price in respect of each Class B Preferred share shall be equal
to
(A) the portion of the fair market value of all of the
issued shares of the Corporation immediately before the
Certificate of the Director under the Business
Corporations Act (Ontario) in respect of these Articles
of Amendment pursuant to which the Class B Preferred
shares are issued becomes effective (and such
Certificate of the Director shall, for the purposes
hereof, be deemed to become effective at 1:00 p.m. on
the date on which such Certificate becomes effective,
or such other time on such date as is determined by the
Vice-President, Treasurer of the Corporation, as
evidenced by a certificate to that effect filed in the
minute book of the Corporation) that the fair market
value, at that time, of all the shares of
5
Rogers Telecom Inc. is of the fair market value, at
that time, of all of the net assets of the
Corporation, divided by,
(B) 100,000,000.
(ii) RIGHT TO REDEEM
Subject to the provisions of the Business Corporations Act (Ontario), as amended
from time to time, or any successor legislation (the "Act"), the Corporation
may, upon giving notice as hereinafter provided, redeem the whole or any part of
the Class B Preferred shares on payment for each such share to be redeemed of
the Redemption Price therefor.
(iii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE
The aggregate Redemption Price of all Class B Preferred shares held by a holder
which are redeemed may, at the option of the Corporation, be satisfied by the
issuance to the holder by the Corporation of a promissory note for a principal
sum equal to the aggregate Redemption Price of all Class B Preferred shares held
by the holder which are redeemed, which, save as hereinafter provided, is
payable on demand, and which provides for interest after the date the promissory
note is made on the unpaid principal balance at a rate equal to the rate of
interest expressed as an annual rate quoted by The Toronto-Dominion Bank at its
head office in Toronto, Ontario, from time to time as being its reference rate
of interest (commonly known as its "prime rate") used by it to determine the
rates of interest it will charge for loans made in Canada in Canadian dollars to
its Preferred commercial customers (hereinafter referred to as "Prime"), plus
two percent (Prime + 2%) per annum, calculated and, save as hereinafter
provided, payable monthly, in arrears on the last date of each month. The
promissory note shall provide that the balance of any interest accrued and
unpaid to the date on which the principal amount is paid shall be due and
payable on such date and that any interest not paid on its due date shall itself
bear interest at the above rate, compounded monthly. The Corporation shall have
the right to prepay the whole or any part of the unpaid principal under such
promissory note, upon payment of interest accrued on the unpaid principal
balance to the date of payment. The promissory note shall provide that it is
issued in satisfaction of, and is for a principal amount equal to, the aggregate
Redemption Price of all Class B Preferred shares held by the holder which were
redeemed.
(iv) LIMITATIONS ON PROMISSORY NOTE
Until all indebtedness under the Financing Indentures has been fully paid or the
payment thereof has been duly provided for, such promissory note shall not be
assignable or negotiable by the holder except to the extent and in the manner
contemplated by the applicable provisions contained in the Financing Indentures
relating to Excluded Securities. The obligations of the Corporation under such
promissory note may, however, be fully and finally satisfied by the set-off
thereof against the obligations of Rogers Telecom Holdings Inc. pursuant to a
demand promissory note made by Rogers Telecom Holdings Inc. in favour of the
Corporation on the same date for a principal amount equal to the aggregate
redemption price of the 100,000,000 First Preferred shares in the capital of
Rogers Telecom Holdings Inc., as specified in the articles of incorporation of
Rogers Telecom Holdings Inc., issued in satisfaction of the purchase price of
all of the issued and outstanding shares of Rogers Telecom Inc.
(v) PARTIAL REDEMPTION
In case a part only of then outstanding Class B Preferred shares is at any time
to be redeemed, the shares so to be redeemed shall be selected by lot in such
manner as the directors in their discretion shall decide or, if the directors
so determine, may be redeemed pro rata, disregarding fractions, and the
directors may make such adjustments as may be necessary to avoid the redemption
of fractional parts of shares.
(vi) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS
The Corporation shall, on or before the date specified for redemption,
deliver to each person who at the date of sending 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. Notice may be delivered
to each such shareholder at its address as it appears on the records of the
Corporation or its transfer agent, provided, however, that accidental failure to
deliver any such notice to one or more of such shareholders shall not affect the
validity of the redemption. Such notice shall set out whether the Corporation
elects to satisfy the Redemption Price by the issuance of a promissory note as
provided above and the date of redemption. If notice of any such redemption be
delivered by the Corporation and an amount sufficient to redeem the shares has
been paid to the holder of the Class B Preferred shares to be redeemed or
satisfied by a promissory note, as provided in the notice of redemption, or such
amount or promissory note in satisfaction thereof has been deposited with any
trust company or chartered bank in Canada, as specified in the notice, on or
before the date fixed for redemption, the holders thereof shall thereafter have
no rights against the Corporation in respect thereof except, upon the surrender
of certificates for such shares, to receive payment therefor.
(d) RETRACTION PRIVILEGE
(i) TENDER AND REQUEST
The holders of Class B Preferred shares shall be
entitled to require the Corporation to redeem at any
time and from time to time all or any part of the Class
B Preferred shares registered in the name of such
holder on the books of the Corporation by tendering to
the Corporation at its head office a share certificate
representing the Class B Preferred shares which the
registered holder desires to have the Corporation
redeem together with a request in writing specifying;
(A) that the registered holder desires to have
the Class B Preferred shares represented by
such certificate redeemed by the Corporation;
and
(B) the business day (in this paragraph referred
to as the "redemption date") on which the
holder desires to have the Corporation redeem
such Class B Preferred shares. Requests in
writing shall specify a redemption date which
shall be not less than four (4) days after the
date on which the request in writing is given
to the Corporation, unless the Corporation
consents in writing to an earlier redemption
7
date. The holders of any Class B Preferred
shares may, with the consent of the
Corporation, revoke such request prior to
the redemption date. Subject to receipt of a
share certificate representing the Class B
Preferred shares which the registered holder
desires to have the Corporation redeem
together with such a request, and subject to
the provisions of the Act, the Corporation
shall on the redemption date, redeem such
Class B Preferred shares by paying to such
registered holder an amount equal to the
Redemption Price.
(ii) PAYMENT BY PROMISSORY NOTE
The aggregate Redemption Price of all Class B
Preferred shares held by a holder which are to be
redeemed may, at the option of the Corporation, be
satisfied by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the aggregate Redemption Price of all Class
B Preferred shares held by the holder which are
redeemed on the terms provided in subparagraphs
(c)(iii) and (c)(iv) above.
(iii) RIGHTS OF HOLDERS
From and after the redemption date, the Class B
Preferred shares to be redeemed on such date shall
cease to be entitled to dividends and the holders
thereof shall not be entitled to exercise any of the
rights of holders of Class B Preferred shares in
respect thereof unless the Redemption Price is not
paid or satisfied by a promissory note as above
provided on the redemption date, in which event the
rights of the holders of the said shares shall remain
unaffected.
(e) DISCRETIONARY NON-CUMULATIVE DIVIDENDS
The holders of the Class B Preferred shares shall, in each fiscal year of the
Corporation, as and when declared in the discretion of the directors, and
subject to the payment of dividends on the First, Second and Third Preferred
shares but always in preference and priority to any payment of dividends on the
Class A Common shares for such year, be entitled to receive, subject to the
provisions of the Act, non-cumulative dividends at a rate as declared by the
directors from time to time. The holders of Class B Preferred shares shall not
be entitled to any dividend other than or in excess of the non-cumulative
dividends at the rate declared by the directors. The Corporation shall not
exercise its right to redeem any Class B Preferred shares then outstanding
unless all declared but unpaid dividends on the Class B Preferred shares up to
the date of redemption have been paid.
(f) PURCHASE BY THE CORPORATION
Subject to the Act, the Corporation shall have the right at its option at any
time and from time to time to purchase the whole or any part of the Class B
Preferred shares at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption Price thereof.
8
(g) SHARES PURCHASED OR REDEEMED TO BE CANCELLED
Class B Preferred shares which are purchased, redeemed, or otherwise acquired by
the Corporation shall be cancelled, and shall not be restored to the status of
authorized but unissued shares.
(h) LIQUIDATION, DISSOLUTION OR WINDING UP
In the event of the liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Class B Preferred shares
shall be entitled to receive, after the holders of the First, Second and Third
Preferred shares shall have received such amounts as they are entitled to
receive in such event for each share held by them, but before any distribution
of any part of the assets of the Corporation among the holders of the Class A
Common shares or any shares of any other class ranking junior to the Class B
Preferred shares with respect to the return of capital, an amount equal to the
Redemption Price for each issued and outstanding Class B Preferred share,
together with an amount-equal to all declared but unpaid dividends thereon.
(i) VOTING RIGHTS
The holders of Class B Preferred shares shall not, as such, have any voting
rights for the election of directors or, subject to any voting rights accorded
them pursuant to the provisions of the Act, for any other purpose; holders of
Class B Preferred shares shall, however, be entitled to notice of meetings of
shareholders called for the purpose of authorizing the dissolution of the
Corporation or the sale, lease or exchange of all or substantially all the
property of the Corporation other than in the ordinary course of business.
9
FIRST PREFERRED SHARES
The First Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) FIRST PREFERRED SHARES - RANKING. The First Preferred shares
shall rank, with respect to both dividends and return of
capital, in priority to all other shares of the Corporation
but shall not confer any further right to participate in the
profits or assets.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
being waived as hereinafter provided, redeem the
whole or any part of the First Preferred shares on
payment for each such share to be redeemed of the
amount of One Thousand Dollars ($1,000.00) (the
"Redemption Amount"), together with an amount equal
to all unpaid cumulative dividends, whether or not
declared, which shall have accrued thereon and which,
for such purpose shall be treated as accruing up to
the date of such redemption (the Redemption Amount
plus such accrued and unpaid dividends are
hereinafter called the "Redemption Price").
(ii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE. The
Redemption Price may, at the option of the
Corporation, be paid and satisfied in whole or in
part: (1) by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the Redemption Price, or such part thereof
as is to be satisfied by the promissory note, which,
subject to section (a) above, is payable on demand,
provides for interest on the unpaid balance at a rate
equal to the annual rate established by The
Toronto-Dominion Bank at its head office in Toronto,
Ontario from time to time as being its reference rate
of interest used by it to determine the rates of
interest it will charge for loans made in Canada in
Canadian dollars to its preferred commercial
customers (hereinafter referred to as "Prime"), plus
two percent (2%) per annum, calculated and payable
monthly in arrears on the last date of each month,
provided that the balance of any interest accrued and
unpaid to the date on which the principal amount is
paid shall be due and payable on such date and that
any interest not paid on its due date shall itself
bear interest at the above rate, compounded monthly
and, subject to section (a) above, entitles the
Corporation to prepay the whole or any part of the
unpaid principal under such promissory note, upon
payment of interest accrued on the unpaid principal
balance to the date of payment; or (2) by the
assignment or endorsement in favour of the holder of
a promissory note made by an affiliate (as such term
is defined in the Business Corporations Act
(Ontario), as amended from time to time, or any
successor legislation) for
10
a principal sum or for a portion of the principal sum equal to
the Redemption Price, or such part thereof as is to be
satisfied by the promissory note, which is payable on demand
and which the board of directors of the Corporation in its
discretion has determined has a value not less than the
Redemption Price, or such part thereof as is to be satisfied
by the promissory note of the affiliate, which might be issued
under clause (1) of this subsection (b)(ii).
(iii) PARTIAL REDEMPTION. In case a part only of the then
outstanding First Preferred shares is at any time to be
redeemed, the shares so to be redeemed shall be selected by
lot in such manner as the directors in their discretion shall
decide or, if the directors so determine, may be redeemed pro
rata, disregarding fractions, and the directors may make such
adjustments as may be necessary to avoid the redemption of
fractional parts of shares.
(iv) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The Corporation
shall, at least ten (10) days before the date specified for
redemption, send to each person who at the date of sending is
a registered holder of First Preferred shares to be redeemed a
notice in writing of the intention of the Corporation to
redeem such First Preferred shares, or alternatively, notice
may be waived or the time for sending of the notice may be
waived at any time with the consent in writing of holders of
such First Preferred shares to be redeemed. Notice may be
mailed in a prepaid envelope addressed to each such
shareholder at his address as it appears on the records of the
Corporation or its transfer agent, or alternatively, such
notice may be delivered personally to such shareholder;
provided, however, that accidental failure to give any such
notice to one or more of such shareholders shall not affect
the validity of the redemption. Such notice shall set out the
Redemption Price and the date of redemption. If notice of any
such redemption be given by the Corporation or waived in the
manner aforesaid and an amount sufficient to redeem the shares
has been paid to the holder of the First Preferred shares to
be redeemed or deposited with any trust corporation or
chartered bank in Canada, on or before the date fixed for
redemption, the holders thereof shall thereafter have no
rights against the Corporation in respect thereof except, upon
the surrender of certificates for such shares, to receive
payment therefor.
(c) CUMULATIVE DIVIDENDS. The holders of the First Preferred shares shall,
in each fiscal year of the Corporation, in preference and priority to
any payment of dividends on any other shares of the Corporation for
such year, be entitled to receive, subject to the provisions of the
Business Corporations Act (Ontario), as amended from time to time, or
any successor legislation, fixed, cumulative cash dividends at the rate
equal to the annual rate established by the Toronto-Dominion Bank from
time to time as a reference rate of interest to determine the interest
it will charge for loans made in Canada in Canadian dollars to its
preferred commercial customers (hereinafter referred to as "Prime")
plus one and one
11
quarter percent (Prime + 1 1/4%) per annum of the Redemption Amount for
such shares payable quarterly on the first day following the last day
in the month of each of March, June, September and December, other than
a Saturday or a Sunday, on which the main branch of The
Toronto-Dominion Bank in Toronto, Ontario is open for business (each an
"Established Dividend Payment Date"). Alternatively, if the directors
so determine, dividends shall be payable on any day (an "Alternate
Dividend Payment Date") following the immediately preceding Established
Dividend Payment Date and before the next Established Dividend Payment
Date. An Established Dividend Payment Date and an Alternate Dividend
Payment Date are each hereinafter referred to as a "Dividend Payment
Date". Dividends on the First Preferred shares shall accrue and be
cumulative from the date of issue of the First Preferred shares. If on
any Dividend Payment Date the dividend payable on such date is not paid
in full on all of the First Preferred shares then issued and
outstanding, such dividend or the unpaid part thereof shall be paid on
the first date thereafter on which the Corporation shall have
sufficient moneys properly applicable to the payment of same. The
holders of First Preferred shares shall not be entitled to any dividend
other than or in excess of the cumulative dividends at the rate
hereinbefore provided for.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the right at
its option at any time and from time to time to purchase the whole or
any part of the First Preferred shares at the lowest price at which, in
the opinion of the directors, such shares are obtainable but not at the
option of the Corporation be paid and satisfied in the manner provided
for in subsection (b)(ii) hereof.
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of the First Preferred shares
shall be entitled to receive, before any distribution of any part of
the assets of the Corporation among the holders of any other shares, an
amount equal to the Redemption Price for each issued and outstanding
First Preferred share.
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the First
Preferred shares shall not, as such, have any voting rights for the
election of directors or, subject to any voting rights accorded them
pursuant to the provisions of the Business Corporations Act (Ontario),
as amended from time to time, or any successor legislation, for any
other purpose, nor shall they be entitled to attend shareholders'
meetings except for the purpose of exercising any voting rights
accorded to them pursuant to the provisions of the Business
Corporations Act (Ontario), as amended from time to time, or any
successor legislation; holders of First Preferred shares shall,
however, be entitled to notice of meetings of shareholders called for
the purpose of authorizing the dissolution of the Corporation or the
sale, lease or exchange of all or substantially all the property of the
Corporation other than in the ordinary course of business.
12
THIRD PREFERRED SHARES
The Third Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING. The Third Preferred shares shall rank, with respect
to both dividends and return of capital in the event of the
liquidation, dissolution or winding up of the Corporation,
junior to the First Preferred shares and the Second Preferred
shares and in priority to all other shares of the Corporation,
including without limitation, the common shares of the
Corporation, but shall not confer any further right to
participate in the profits or assets of the Corporation. The
rights, privileges, restrictions and conditions attaching to
the Third Preferred shares shall be deemed to include and
incorporate by reference such provisions (including, without
limitation, the subordination provisions) as are necessary to
constitute the Third Preferred shares "Excluded Securities"
for the purposes of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31,2002, as amended on September 10,2003,
among the Corporation, The Toronto-Dominion Bank, as
Administration Agent and certain lenders named
therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $450,000,000 10%
Series B Senior Secured Second Priority Notes due
2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
13
(G) Indenture dated as of. April 30, 2002 among the
Corporation and JPMorgah Chase Bank re
U.S.$200,000,000 8.750% Senior (Secured) Second
Priority Debentures due 2032;
(H) Indenture dated as of June 19,2003 among the
Corporation and JPMorgan Chase Bank re U.S.
$350,000,000 6.25% Senior (Secured) Second Priority
Notes due 2013; and
(I) such other loan agreements, indentures, deeds of
trust or other financing instruments to which the
Corporation (or any successor) is from time to time a
party as contain substantially similar provisions as
the foregoing financing instruments related to
"Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Third Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the redemption of Third Preferred shares or payments made on the
liquidation dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, redemption or other distribution amount made in respect of
any of the Third Preferred shares shall, notwithstanding anything to the
contrary contained herein, be deemed to include and incorporate by reference
such provisions (including, without limitation, the subordination provisions) as
are necessary to constitute such promissory notes Excluded Securities for the
purposes of the Financing Indentures. Until all indebtedness under the Financing
Indentures has been fully paid or the payment thereof has been duly provided
for, such promissory note shall not be assignable or negotiable by the holder
except to the extent and in the manner contemplated by the applicable provisions
contained in the Financing Indentures relating to Excluded Securities.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
.being waived as hereinafter provided, redeem the
whole or any part of the Third Preferred shares on
payment for each such share to be redeemed of the
amount of One Thousand Dollars ($1,000.00) (the
"Redemption Price").
(ii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE. The
Redemption Price may, at the option of the
Corporation, be paid and satisfied in whole or in
part: (1) by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the Redemption Price, or such part thereof
as is to be satisfied by the promissory note, which,
14
subject to section (a) above, is payable on demand,
provides for interest on the unpaid balance at a rate
equal to the annual rate established by The
Toronto-Dominion Bank at its head office in Toronto,
Ontario from time to time as being its reference rate
of interest used by it to determine the rates of
interest it will charge for loans made in Canada in
Canadian dollars to its preferred commercial
customers (hereinafter referred to as "Prime"), plus
two percent (2%) per annum, calculated and payable
monthly in arrears on the last date of each month,
provided that the balance of any interest accrued and
unpaid to the date on which the principal amount is
paid shall be due and payable on such date and that
any interest not paid on its due date shall itself
bear interest at the above rate, compounded monthly
and, subject to section (a) above, entitles the
Corporation to prepay the whole or any part of the
unpaid principal under such promissory note, upon
payment of interest accrued on the unpaid principal
balance to the date of payment; or (2) by the
assignment or endorsement in favour of the holder of
a promissory note made by an affiliate (as such term
is defined in the Business Corporations Act
(Ontario), as amended from time to time, or any
successor legislation) for a principal sum or for a
portion of the principal sum equal to the Redemption
Price, or such part thereof as is to be satisfied by
the promissory note, which is payable on demand and
which the board of directors of the Corporation in
its discretion has determined has a value not less
than the Redemption Price, or such part thereof as is
to be satisfied by the promissory note of the
affiliate, which might be issued under clause (1) of
this subsection (b)(ii).
(iii) PARTIAL REDEMPTION. In case a part only of the then
outstanding Third Preferred shares is at any time to
be redeemed, the shares so to be redeemed shall be
selected in such manner as the directors in their
discretion shall decide and need not be redeemed pro
rata or selected by lot.
(iv) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The
Corporation shall, at least one (1) day before the
date specified for redemption, send to each person
who at the date of sending is a registered holder of
Third Preferred shares to be redeemed a notice in
writing of the intention of the Corporation to redeem
such Third Preferred shares, or alternatively, notice
may be waived or the time for sending of the notice
may be waived at any time with the consent in writing
of holders of such Third Preferred shares to be
redeemed. Notice may be mailed in a prepaid envelope
addressed to each such shareholder at his address as
it appears on the records of the Corporation or its
transfer agent, or alternatively, such notice may be
delivered personally to such shareholder; provided,
however, that accidental failure to give any such
notice to one or more of such shareholders shall not
affect the validity of the redemption. Such notice
shall set out the Redemption Price and the date of
redemption. If notice of any such redemption be given
by the Corporation or waived in the manner
15
aforesaid and an amount sufficient to redeem the
shares has been paid (whether in cash or by
promissory note, as above provided) to the holder of
the Third Preferred shares to be redeemed or
deposited with any trust corporation or chartered
bank in Canada, on or before the date fixed for
redemption, the holders thereof shall thereafter have
no rights against the Corporation in respect thereof
except, upon the surrender of certificates for such
shares, to receive payment therefor.
(c) CUMULATIVE DIVIDENDS. The holders of the Third Preferred
shares shall, in each fiscal year of the Corporation, subject
to section (a) hereof and to the payment of all accrued
dividends on the First Preferred shares and Second Preferred
shares, but always in preference and priority to any payment
of dividends on any other shares of the Corporation for such
year, be entitled to receive, subject to the provisions of the
Business Corporations Act (Ontario), as amended from time to
time, or any successor legislation, fixed, cumulative cash
dividends at the rate of nine and five-eighth percent (9.625%)
per annum of the Redemption Price for such shares payable
quarterly on the first day following the last day in the month
of each of March, June, September and December, other than a
Saturday or a Sunday, on which the main branch of The
Toronto-Dominion Bank in Toronto, Ontario is open for business
(each an "Established Dividend Payment Date"). Alternatively,
if the directors so determine, dividends shall be payable on
any day (an "Alternate Dividend Payment Date") following the
immediately preceding Established Dividend Payment Date and
before the next Established Dividend Payment Date. An
Established Dividend Payment Date and an Alternate Dividend
Payment Date are each hereinafter referred to as a "Dividend
Payment Date". Dividends on the Third Preferred shares shall
accrue and be cumulative from the date of issue of the Third
Preferred shares. If on any Dividend Payment Date the dividend
payable on such date is not paid in full on all of the Third
Preferred shares then issued and outstanding, such dividend or
the unpaid part thereof shall be paid on the first date
thereafter on which the Corporation shall have sufficient
moneys properly applicable to the payment of same. The holders
of Third Preferred shares shall not be entitled to any
dividend other than or in excess of the cumulative dividends
at the rate hereinbefore provided for.
The Corporation shall not redeem or purchase for cancellation
any Third Preferred shares then outstanding unless all
dividends accrued on the Third Preferred shares up to the date
of redemption or purchase have been declared and paid.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the
right at its option at any time and from time to time to
purchase the whole or any part of the Third Preferred shares
at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption
Price thereof (the "Purchase Price"). The Purchase Price may,
at the option of the Corporation be paid and satisfied in the
manner provided for in subsection (b)(ii) hereof, subject to
the provisions of section (a) hereof.
16
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Third
Preferred shares shall be entitled to receive, subject to
section (a) hereof and after the holders of First Preferred
shares and Second Preferred shares shall have received an
amount equal to the redemption price for each First Preferred
share and Second Preferred share held by them, but before any
distribution of any part of the assets of the Corporation
among the holders of any other shares, an amount equal to the
Redemption Price for each issued and outstanding Third
Preferred share, together with an amount equal to all unpaid
cumulative dividends which shall have accrued thereon, whether
or not declared, and which, for such purpose, shall be treated
as accruing up to the date of such distribution.
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the Third
Preferred shares shall not, as such, have any voting rights
for the election of directors or, subject to any voting rights
accorded them pursuant to the provisions of the Business
Corporations Act (Ontario), as amended from time to time, or
any successor legislation, for any other purpose, nor shall
they be entitled to attend shareholders' meetings except for
the purpose of exercising any voting rights accorded to them
pursuant to the provisions of the Business Corporations Act
(Ontario); as amended from time to time, or any successor
legislation; holders of Third Preferred shares shall, however,
be entitled to notice of meetings of shareholders called for
the purpose of authorizing the dissolution of the Corporation
or the sale, lease or exchange of all or substantially all the
property of the Corporation other than in the ordinary course
of business.
17
FOURTH PREFERRED SHARES
The Fourth Preferred shares, shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING. The Fourth Preferred shares shall rank, with respect
to both dividends and return of capital in the event of
liquidation, dissolution or winding up of the Corporation,
junior to the First Preferred shares and the Third Preferred
shares and in priority to all other shares of the Corporation,
including without limitation, the Class A Common and Class B
Common shares, but shall not confer any further right to
participate in the profits or assets of the Corporation. The
rights, privileges, restrictions and conditions attaching to
the Fourth Preferred shares shall be deemed to include and
incorporate by reference such provisions (including, without
limitation, the subordination provisions) as are necessary to
constitute the Fourth Preferred shares "Excluded Securities"
for the purposes of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31,2002, as amended on September 10,2003,
among the Corporation, The Toronto-Dominion Bank, as
Administration Agent and certain lenders named
therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $450,000,000 10%
Series B Senior Secured Second Priority Notes due
2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures
due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
18
(G) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$200,000,000 8.750% Senior (Secured) Second
Priority Debentures due 2032;
(H) Indenture dated as of June 19, 2003 among the
Corporation and JPMorgan Chase Bank re U.S.
$350,000,000 6.25% Senior (Secured) Second Priority
Notes due 2013; and
(I) such other loan agreements, indentures, deeds of
trust or other financing instruments to which the
Corporation (or any successor) is from time to time a
party as contain substantially similar provisions as
the foregoing financing instruments related to
"Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Fourth Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the purchase for cancellation of Fourth Preferred shares or payments made
on the liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, purchase for cancellation or other distribution amount
made in respect of any of the Fourth Preferred shares shall, notwithstanding
anything to the contrary contained herein, be deemed to include and incorporate
by reference such provisions (including, without limitation, the subordination
provisions) as are necessary to constitute such promissory notes Excluded
Securities for the purposes of the Financing Indentures. Until all indebtedness
under the Financing Indentures has been fully paid or the payment thereof has
been duly provided for, such promissory note shall not be assignable or
negotiable by the holder except to the extent and in the manner contemplated by
the applicable provisions contained in the Financing Indentures relating to
Excluded Securities.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
being waived as hereinafter provided, redeem the
whole or any part of the Fourth Preferred shares on
payment for each such share to be redeemed of the
amount of One Thousand Dollars ($1,000) (the
"Redemption Price").
(ii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE. The
Redemption Price may, at the option of the
Corporation, be paid and satisfied in whole
19
or in part: (1) by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the Redemption Price, or such part thereof
as is to be satisfied by the promissory note, which,
subject to section (a) above, is payable on demand,
provides for interest on the unpaid balance at a rate
equal to the annual rate established by The
Toronto-Dominion Bank at its head office in Toronto,
Ontario from time to time as being its reference rate
of interest used by it to determine the rates of
interest it will charge for loans made in Canada in
Canadian dollars to its preferred commercial
customers (hereinafter referred to as "Prime"), plus
two percent (2%) per annum, calculated and payable
monthly in arrears on the last date of each month,
provided that the balance of any interest accrued and
unpaid to the date on which the principal amount is
paid shall be due and payable on such date and that
any interest not paid on its due date shall itself
bear interest at the above rate, compounded monthly
and, subject to section (a) above, entitles the
Corporation to prepay the whole or any part of the
unpaid principal under such promissory note, upon
payment of interest accrued on the unpaid principal
balance to the date of payment; or (2) by the
assignment or endorsement in favour of the holder of
a promissory note made by an affiliate (as such term
is defined in the Business Corporations Act
(Ontario), as amended from time to time, or any
successor legislation) for a principal sum or for a
portion of the principal sum equal to the Redemption
Price, or such part thereof as is to be satisfied by
the promissory note, which is payable on demand and
which the board of directors of the Corporation in
its discretion has determined has a value not less
than the Redemption Price, or such part thereof as is
to be satisfied by the promissory note of the
affiliate, which might be issued under clause (1) of
this subsection (b)(ii).
(iii) PARTIAL REDEMPTION. In case a part only of the then
outstanding Fourth Preferred shares is at any time to
be redeemed, the shares so to be redeemed shall be
selected in such manner as the directors in their
discretion shall decide and need not be redeemed pro
rata or selected by lot and the directors may make
such adjustments as may be necessary to avoid the
redemption of fractional parts of shares.
(iv) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The
Corporation shall, at least one (1) day before the
date specified for redemption, send to each person
who at the date of sending is a registered holder of
Fourth Preferred shares to be redeemed a notice in
writing of the intention of the Corporation to redeem
such Fourth Preferred shares, or alternatively,
notice may be waived or the time for sending of the
notice may be waived at any time with the consent in
writing of holders of such Fourth Preferred shares to
be redeemed. Notice may be mailed in a prepaid
envelope addressed to each such shareholder at his
address as it appears on the records of the
Corporation or its transfer agent, or alternatively,
such notice may be delivered personally to such
shareholder; provided,
20
however, that accidental failure to give any such
notice to one or more of such shareholders shall not
affect the validity of the redemption. Such notice
shall set out the Redemption Price and the date of
redemption. If notice of any such redemption be given
by the Corporation or waived in the manner aforesaid
and an amount sufficient to redeem the shares has
been paid (whether in cash or by promissory note, as
above provided) to the holder of the Fourth Preferred
shares to be redeemed or deposited with any trust
corporation or chartered bank in Canada, on or before
the date fixed for redemption, the holder thereof
shall thereafter have no rights against the
Corporation in respect thereof except, upon the
surrender of certificates for such shares, to receive
payment therefor and except to receive any dividends
declared and payable on or before the redemption date
but unpaid. If the Fourth Preferred shares are
redeemed on the redemption date then from and after
the redemption date such shares shall cease to be
entitled to dividends, (except for any dividends
declared and payable on or before the redemption
date, but unpaid) and the holders thereof shall not
be entitled to exercise any of the rights of holders
of Fourth Preferred shares in respect thereof unless
payment of the Redemption Price is not made on the
redemption date, in which event the rights of the
holders of the said shares shall remain unaffected.
(c) NON-CUMULATIVE DIVIDENDS. The holders of the Fourth Preferred
shares shall, in each fiscal year of the Corporation, subject
to section (a) hereof and to the payment of all accrued
dividends on the First Preferred shares and the Third
Preferred shares, but always in preference and priority to any
payment of dividends on any other shares of the Corporation
for such year, including without limitation, the Class A
Common and Class B Common shares, be entitled to receive, as
and when declared by the directors, out of the monies of the
Corporation properly applicable to the payment of dividends,
fixed preferential non-cumulative cash dividends at the rate
of nine and sixty-five one hundredths percent (9.65%) per
annum of the Redemption Price for such shares. The directors
shall be entitled from time to time to declare part of the
preferential non-cumulative cash dividend for any fiscal year
notwithstanding that such dividend for such fiscal year shall
not be declared in full. If in any fiscal year of the
Corporation the directors in their discretion shall not
declare the said dividend or any part thereof on the Fourth
Preferred shares for such fiscal year then the rights of the
holders of the Fourth Preferred shares to such dividend or
undeclared part thereof for such fiscal year shall be forever
extinguished. The registered holders of Fourth Preferred
shares shall not be entitled to any dividends other than or in
excess of the preferential non-cumulative cash dividends
hereinbefore provided for. No dividends shall be declared and
paid or set aside for payment on any shares of any other class
of the Corporation ranking junior to the Fourth Preferred
shares in any fiscal year, unless the fixed preferential
non-cumulative cash dividend for such fiscal year on all
Fourth Preferred shares then outstanding has been declared and
paid or set aside for payment. If in any fiscal year, after
the fixed preferential non-cumulative cash dividends on the
Fourth Preferred shares shall have been declared and paid or
set aside for payment, there shall remain any
21
profits or surplus available for dividends, such profits or
surplus or any part thereof may, in the discretion of the
directors, be applied to dividends on any shares of any other
class of the Corporation ranking junior to the Fourth
Preferred shares. If the Redemption Price is increased or
decreased pursuant to section (g) hereof at any time after any
dividends have been declared and paid or set aside for payment
on the Fourth Preferred shares, the dividend rate applicable
during the period prior to such increase or decrease in the
Redemption Price in respect of which the dividends were paid
or set aside for payment shall be deemed decreased or
increased accordingly, and neither a registered holder of
Fourth Preferred shares nor the Corporation shall have a claim
against the other for either under or overpayment of dividends
resulting from an increase or decrease in the Redemption
Price.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the
right at its option at any time and from time to time to
purchase the whole or any part of the Fourth Preferred shares
at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption
Price thereof (the "Purchase Price"). The Purchase Price may,
at the option of the Corporation be paid and satisfied in the
manner provided for in subsection (b)(ii) hereof, subject to
the provisions of section (a) hereof.
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Fourth
Preferred shares shall be entitled to receive, subject to
section (a) hereof, and after the holders of First Preferred
shares and Third Preferred shares shall have received such
amounts as they are entitled to receive in the event of the
liquidation, dissolution or winding up of the Corporation, but
before any distribution of any part of the assets of the
Corporation among the holders of any other shares of the
Corporation, including without limitation the Class A Common
and Class B Common shares, an amount equal to the Redemption
Price for each issued and outstanding Fourth Preferred share
plus an amount equal to all dividends declared thereon and
unpaid.
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the
Fourth Preferred shares shall not, as such, have any voting
rights for the election of directors or, subject to any voting
rights accorded them pursuant to the provisions of the
Business Corporations Act (Ontario), as the same may from time
to time be amended or any successor legislation, for any other
purpose, nor shall they be entitled to attend shareholders'
meetings except for the purpose of exercising any voting
rights accorded to them pursuant to the provisions of the
Business Corporations Act (Ontario), as amended from time to
time, or any successor legislation; holders of the Fourth
Preferred shares shall, however, be entitled to notice of any
meeting of shareholders called for the purpose of authorizing
the dissolution of the Corporation or the sale, lease or
exchange of all or substantially all of the property of the
Corporation other than in the ordinary course of business.
22
(g) PRICE ADJUSTMENT. If at any time when any Fourth Preferred
shares are issued and outstanding either: (a) Canada Customs
and Revenue Agency determines and all of the holders of the
issued and outstanding Fourth Preferred shares concur in such
determination; or (b) the Corporation and the holders of the
Fourth Preferred shares determine, that the aggregate fair
market value of all property transferred or sold to the
Corporation in exchange for Fourth Preferred shares (the
"Acquired Property") is greater or less than the aggregate of
the Redemption Price of all Fourth Preferred shares issued in
connection with the acquisition of the Acquired Property, then
the resultant deficiency or excess in the aggregate of the
Redemption Price of all Fourth Preferred shares issued in
connection with the acquisition of the Acquired Property shall
be divided by the aggregate number of Fourth Preferred shares
issued in connection with the acquisition of the Acquired
Property and the Redemption Price shall be increased or
decreased accordingly.
FIFTH PREFERRED SHARES
The Fifth Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING. The Fifth Preferred shares shall rank, with respect
to both dividends and return of capital in the event of
liquidation, dissolution or winding up of the Corporation,
junior to the First Preferred shares, the Third Preferred
shares and the Fourth Preferred shares and in priority to all
other shares of the Corporation, including without limitation,
the Class A Common and Class B Common shares, but shall not
confer any further right to participate in the profits or
assets of the Corporation. The rights, privileges,
restrictions and conditions attaching to the Fifth Preferred
shares shall be deemed to include and incorporate by reference
such provisions (including, without limitation, the
subordination provisions) as are necessary to constitute the
Fifth Preferred shares "Excluded Securities" for the purposes
of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31,2002, as amended on September 10, 2003,
among the Corporation, The Toronto-Dominion Bank, as
Administration Agent and certain lenders named
therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S.
23
$450,000,000 10% Series B Senior Secured Second
Priority Notes due 2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
(G) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$200,000,000 8.750% Senior (Secured) Second
Priority Debentures due 2032;
(H) Indenture dated as of June 19, 2003 among the
Corporation and JPMorgan Chase Bank re U.S.
$350,000,000 6.25% Senior (Secured) Second Priority
Notes due 2013; and
(I) such other loan agreements, indentures, deeds of
trust or other financing instruments to which the
Corporation (or any successor) is from time to time a
party as contain substantially similar provisions as
the foregoing financing instruments related to
"Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Fifth Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the purchase for cancellation of Fourth Preferred shares or payments made
on the liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, purchase for cancellation or other distribution amount
made in respect of any of the Fifth Preferred shares shall, notwithstanding
anything to the contrary contained herein, be deemed to include and incorporate
by reference such provisions (including, without limitation, the subordination
provisions) as are necessary to constitute such promissory notes Excluded
Securities for the purposes of the Financing Indentures. Until all indebtedness
under the Financing Indentures has been fully paid or the payment thereof has
been duly provided for, such promissory note shall not be assignable or
negotiable by the holder except to the extent and
-24-
in the manner contemplated by the applicable .provisions contained in the
Financing Indentures relating to Excluded Securities.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
being waived as hereinafter provided, redeem the
whole or any part of the Fifth Preferred shares on
payment for each such share to be redeemed of the
amount of One Thousand Dollars ($1,000) (the
"Redemption Price").
(ii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE. The
Redemption Price may, at the option of the
Corporation, be paid and satisfied in whole or in
part: (1) by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the Redemption Price, or such part thereof
as is to be satisfied by the promissory note, which,
subject to section (a) above, is payable on demand,
provides for interest on the unpaid balance at a rate
equal to the annual rate established by The
Toronto-Dominion Bank at its head office in Toronto,
Ontario from time to time as being its reference rate
of interest used by it to determine the rates of
interest it will charge for loans made in Canada in
Canadian dollars to its preferred commercial
customers (hereinafter referred to as "Prime"), plus
two percent (2%) per annum, calculated and payable
monthly in arrears on the last date of each month,
provided that the balance of any interest accrued and
unpaid to the date on which the principal amount is
paid shall be due and payable on such date and that
any interest not paid on its due date shall itself
bear interest at the above rate, compounded monthly
and, subject to section (a) above, entitles the
Corporation to prepay the whole or any part of the
unpaid principal under such promissory note, upon
payment of interest accrued on the unpaid principal
balance to the date of payment; or (2) by the
assignment or endorsement in favour of the holder of
a promissory note made by an affiliate (as such term
is defined in the Business Corporations Act
(Ontario), as amended from time to time, or any
successor legislation) for a principal sum or for a
portion of the principal sum equal to the Redemption
Price, or such part thereof as is to be satisfied by
the promissory note, which is payable on demand and
which the board of directors of the Corporation in
its discretion has determined has a value not less
than the Redemption Price, or such part thereof as is
to be satisfied by the promissory note of the
affiliate, which might be issued under clause (1) of
this subsection (b)(ii).
(iii) PARTIAL REDEMPTION. In case a part only of the then
outstanding Fifth Preferred shares is at any time to
be redeemed, the shares so to be redeemed shall be
selected in such manner as the directors in their
25
discretion shall decide and need not be redeemed pro
rata or selected by lot and the directors may make
such adjustments as may be necessary to avoid the
redemption of fractional parts of shares.
(iv) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The
Corporation shall, at least one (1) day before the
date specified for redemption, send to each person
who at the date of sending is a registered holder of
Fifth Preferred shares to be redeemed a notice in
writing of the intention of the Corporation to redeem
such Fifth Preferred shares, or alternatively, notice
may be waived or the time for sending of the notice
may be waived at any time with the consent in writing
of holders of such Fifth Preferred shares to be
redeemed. Notice may be mailed in a prepaid envelope
addressed to each such shareholder at his address as
it appears on the records of the Corporation or its
transfer agent, or alternatively, such notice may be
delivered personally to such shareholder; provided,
however, that accidental failure to give any such
notice to one or more of such shareholders shall not
affect the validity of the redemption. Such notice
shall set out the Redemption Price and the date of
redemption. If notice of any such redemption be given
by the Corporation or waived in the manner aforesaid
and an amount sufficient to redeem the shares has
been paid (whether in cash or by promissory note, as
above provided) to the holder of the Fifth Preferred
shares to be redeemed or deposited with any trust
corporation or chartered bank in Canada, on or before
the date fixed for redemption, the holder thereof
shall thereafter have no rights against the
Corporation in respect thereof except, upon the
surrender of certificates for such shares, to receive
payment therefor and except to receive any dividends
declared and payable on or before the redemption date
but unpaid. If the Fifth Preferred shares are
redeemed on the redemption date then from and after
the redemption date such shares shall cease to be
entitled to dividends, (except for any dividends
declared and payable on or before the redemption
date, but unpaid) and the holders thereof shall not
be entitled to exercise any of the rights of holders
of Fifth Preferred shares in respect thereof unless
payment of the Redemption Price is not made on the
redemption date, in which event the rights of the
holders of the said shares shall remain unaffected.
(c) NON-CUMULATIVE DIVIDENDS. The holders of the Fifth Preferred
shares shall, in each fiscal year of the Corporation, subject
to section (a) hereof and to the payment of all accrued
dividends on the First Preferred shares, the Third Preferred
shares and the Fourth Preferred shares, but always in
preference and priority to any payment of dividends on any
other shares of the Corporation for such year, including
without limitation, the Class A Common and Class B Common
shares, be entitled to receive, as and when declared by the
directors, out of the monies of the Corporation properly
applicable to the payment of dividends, fixed preferential
non-cumulative cash dividends at the rate of nine and seven
tenths percent (9.70%) per annum of the Redemption Price for
such shares. The directors shall be entitled from time to time
to declare part of the preferential non-
26
cumulative cash dividend for any fiscal year notwithstanding
that such dividend for such fiscal year shall not be declared
in full. If in any fiscal year of the Corporation the
directors in their discretion shall not declare the said
dividend or any part thereof on the Fifth Preferred shares for
such fiscal year then the rights of the holders of the Fifth
Preferred shares to such dividend or undeclared part thereof
for such fiscal year shall be forever extinguished. The
registered holders of Fifth Preferred shares shall not be
entitled to any dividends other than or in excess of the
preferential non-cumulative cash dividends hereinbefore
provided for. No dividends shall be declared and paid or set
aside for payment on any shares of any other class of the
Corporation ranking junior to the Fifth Preferred shares in
any fiscal year, unless the fixed preferential non-cumulative
cash dividend for such fiscal year on all Fifth Preferred
shares then outstanding has been declared and paid or set
aside for payment. If in any fiscal year, after the fixed
preferential non-cumulative cash dividends on the Fifth
Preferred shares shall have been declared and paid or set
aside for payment, there shall remain any profits or surplus
available for dividends, such profits or surplus or any part
thereof may, in the discretion of the directors, be applied to
dividends on any shares of any other class of the Corporation
ranking junior to the Fifth Preferred shares. If the
Redemption Price is increased or decreased pursuant to section
(g) hereof above at any time after any dividends have been
declared and paid or set aside for payment on the Fifth
Preferred shares, the dividend rate applicable during the
period prior to such increase or decrease in the Redemption
Price in respect of which the dividends were paid or set aside
for payment shall be deemed decreased or increased
accordingly, and neither a registered holder of Fifth
Preferred shares nor the Corporation shall have a claim
against the other for either under or overpayment of dividends
resulting from an increase or decrease in the Redemption
Price.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the
right at its option at any time and from time to time to
purchase the whole or any part of the Fifth Preferred shares
at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption
Price thereof (the "Purchase Price"). The Purchase Price may,
at the option of the Corporation be paid and satisfied in the
manner provided for in subsection (b)(ii) hereof, subject to
the provisions of section (a) hereof.
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Fifth
Preferred shares shall be entitled to receive, subject to
section (a) hereof, and after the holders of First Preferred
shares, Third Preferred shares and Fourth Preferred shares
shall have received such amounts as they are entitled to
receive in the event of the liquidation, dissolution or
winding up of the Corporation, but before any distribution of
any part of the assets of the Corporation among the holders of
any other shares of the Corporation, including without
limitation the Class A Common and Class B Common shares, an
amount equal to the Redemption Price for each issued and
outstanding Fifth Preferred share plus an amount equal to all
dividends declared thereon and unpaid.
27
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the Fifth
Preferred shares shall not, as such, have any voting rights
for the election of directors or, subject to any voting rights
accorded them pursuant to the provisions of the Business
Corporations Act (Ontario), as the same may from time to time
be amended or any successor legislation, for any other
purpose, nor shall they be entitled to attend shareholders'
meetings except for the purpose of exercising any voting
rights accorded to them pursuant to the provisions of the
Business Corporations Act (Ontario), as amended from time to
time, or any successor legislation; holders of the Fifth
Preferred shares shall, however, be entitled to notice of any
meeting of shareholders called for the purpose of authorizing
the dissolution of the Corporation or the sale, lease or
exchange of all or substantially all of the property of the
Corporation other than in the ordinary course of business.
(g) PRICE ADJUSTMENT. If at any time when any Fifth Preferred
shares are issued and outstanding either: (a) Canada Customs
and Revenue Agency determines and all of the holders of the
issued and outstanding Fifth Preferred shares concur in such
determination; or (b) the Corporation and the holders of the
Fifth Preferred shares determine, that the aggregate fair
market value of all property transferred or sold to the
Corporation in exchange for Fifth Preferred shares (the
"Acquired Property") is greater or less than the aggregate of
the Redemption Price of all Fifth Preferred shares issued in
connection with the acquisition of the Acquired Property, then
the resultant deficiency or excess in the aggregate of the
Redemption Price of all Fifth Preferred shares issued in
connection with the acquisition of the Acquired Property shall
be divided by the aggregate number of Fifth Preferred shares
issued in connection with the acquisition of the Acquired
Property and the Redemption Price shall be increased or
decreased accordingly.
28
SIXTH PREFERRED SHARES
The Sixth Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING. The Sixth Preferred shares shall rank, with respect
to both dividends and return of capital in the event of
liquidation, dissolution or winding up of the Corporation,
junior to the First Preferred shares, the Third Preferred
shares, the Fourth Preferred shares and the Fifth Preferred
shares and in priority to all other shares of the Corporation,
including without limitation, the Class A Common and Class B
Common shares, but shall not confer any further right to
participate in the profits or assets of the Corporation. The
rights, privileges, restrictions and conditions attaching to
the Sixth Preferred shares shall be deemed to include and
incorporate by reference such provisions (including, without
limitation, the subordination provisions) as are necessary to
constitute the Sixth Preferred shares "Excluded Securities"
for the purposes of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31, 2002, as amended on September 10,2003,
among the Corporation, The Toronto-Dominion Bank, as
Administration Agent and certain lenders named
therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $450,000,000 10%
Series B Senior Secured Second Priority Notes due
2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
29
(G) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$200,000,000 8.750% Senior (Secured) Second
Priority Debentures due 2032;
(H) Indenture dated as of June 19, 2003 among the
Corporation and JPMorgan Chase Bank re U.S.
$350,000,000 6.25% Senior (Secured) Second Priority
Notes due 2013; and
(I) such other loan agreements, indentures, deeds of
trust or other financing instruments to which the
Corporation (or any successor) is from time to time a
party as contain substantially similar provisions as
the foregoing financing instruments related to
"Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Sixth Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the purchase for cancellation of Sixth Preferred shares or payments made on
the liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, purchase for cancellation or other distribution amount
made in respect of any of the Sixth Preferred shares shall, notwithstanding
anything to the contrary contained herein, be deemed to include and incorporate
by reference such provisions (including, without limitation, the subordination
provisions) as are necessary to constitute such promissory notes Excluded
Securities for the purposes of the Financing Indentures. Until all indebtedness
under the Financing Indentures has been fully paid or the payment thereof has
been duly provided for, such promissory note shall not be assignable or
negotiable by the holder except to the extent and in the manner contemplated by
the applicable provisions contained in the Financing Indentures relating to
Excluded Securities.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
being waived as hereinafter provided, redeem the
whole or any part of the Sixth Preferred shares on
payment for each such share to be redeemed of the
amount of One Thousand Dollars ($1,000) (the
"Redemption Price").
(ii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE. The
Redemption Price may, at the option of the
Corporation, be paid and satisfied in whole or in
part: (1) by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the Redemption Price, or
- 30 -
such part thereof as is to be satisfied by the
promissory note, which, subject to section (a) above,
is payable on demand, provides for interest on the
unpaid balance at a rate equal to the annual rate
established by The Toronto-Dominion Bank at its head
office in Toronto, Ontario from time to time as being
its reference rate of interest used by it to
determine the rates of interest it will charge for
loans made in Canada in Canadian dollars to its
preferred commercial customers (hereinafter referred
to as "Prime"), plus two percent (2%) per annum,
calculated and payable monthly in arrears on the last
date of each month, provided that the balance of any
interest accrued and unpaid to the date on which the
principal amount is paid shall be due and payable on
such date and that any interest not paid on its due
date shall itself bear interest at the above rate,
compounded monthly and, subject to section (a) above,
entitles the Corporation to prepay the whole or any
part of the unpaid principal under such promissory
note, upon payment of interest accrued on the unpaid
principal balance to the date of payment; or (2) by
the assignment or endorsement in favour of the holder
of a promissory note made by an affiliate (as such
term is defined in the Business Corporations Act
(Ontario), as amended from time to time, or any
successor legislation) for a principal sum or for a
portion of the principal sum equal to the Redemption
Price, or such part thereof as is to be satisfied by
the promissory note, which is payable on demand and
which the board of directors of the Corporation in
its discretion has determined has a value not less
than the Redemption Price, or such part thereof as is
to be satisfied by the promissory note of the
affiliate, which might be issued under clause (1) of
this subsection (b)(ii).
(iii) PARTIAL REDEMPTION. In case a part only of the then
outstanding Sixth Preferred shares is at any time to
be redeemed, the shares so to be redeemed shall be
selected in such manner as the directors in their
discretion shall decide and need not be redeemed pro
rata or selected by lot and the directors may make
such adjustments as may be necessary to avoid the
redemption of fractional parts of shares.
(iv) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The
Corporation shall, at least one (1) day before the
date specified for redemption, send to each person
who at the date of sending is a registered holder of
Sixth Preferred shares to be redeemed a notice in
writing of the intention of the Corporation to redeem
such Sixth Preferred shares, or alternatively, notice
may be waived or the time for sending of the notice
may be waived at any time with the consent in writing
of holders of such Sixth Preferred shares to be
redeemed. Notice may be mailed in a prepaid envelope
addressed to each such shareholder at his address as
it appears on the records of the Corporation or its
transfer agent, or alternatively, such notice may be
delivered personally to such shareholder; provided,
however, that accidental failure to give any such
notice to one or more of such shareholders shall not
affect the validity of the redemption. Such notice
31
shall set out the Redemption Price and the date of
redemption. If notice of any such redemption be given
by the Corporation or waived in the manner aforesaid
and an amount sufficient to redeem the shares has
been paid (whether in cash or by promissory note, as
above provided) to the holder of the Sixth Preferred
shares to be redeemed or deposited with any trust
corporation or chartered bank in Canada, on or before
the date fixed for redemption, the holder thereof
shall thereafter have no rights against the
Corporation in respect thereof except, upon the
surrender of certificates for such shares, to receive
payment therefor and except to receive any dividends
declared and payable on or before the redemption date
but unpaid. If the Sixth Preferred shares are
redeemed on the redemption date then from and after
the redemption date such shares shall cease to be
entitled to dividends, (except for any dividends
declared and payable on or before the redemption
date, but unpaid) and the holders thereof shall not
be entitled to exercise any of the rights of holders
of Sixth Preferred shares in respect thereof unless
payment of the Redemption Price is not made on the
redemption date, in which event the rights of the
holders of the said shares shall remain unaffected.
(c) NON-CUMULATIVE DIVIDENDS. The holders of the Sixth Preferred
shares shall, in each fiscal year of the Corporation, subject
to section (a) hereof and to the payment of all accrued
dividends on the First Preferred shares, the Third Preferred
shares, the Fourth Preferred shares and the Fifth Preferred
shares, but always in preference and priority to any payment
of dividends on any other shares of the Corporation for such
year, including without limitation, the Class A Common and
Class B Common shares, be entitled to receive, as and when
declared by the directors, out of the monies of the
Corporation properly applicable to the payment of dividends,
fixed preferential non-cumulative cash dividends at the rate
of nine and seventy-five one hundredths percent (9.75%) per
annum of the Redemption Price for such shares. The directors
shall be entitled from time to time to declare part of the
preferential non-cumulative cash dividend for any fiscal year
notwithstanding that such dividend for such fiscal year shall
not be declared in full. If in any fiscal year of the
Corporation the directors in their discretion shall not
declare the said dividend or any part thereof on the Sixth
Preferred shares for such fiscal year then the rights of the
holders of the Sixth Preferred shares to such dividend or
undeclared part thereof for such fiscal year shall be forever
extinguished. The registered holders of Sixth Preferred shares
shall not be entitled to any dividends other than or in excess
of the preferential non-cumulative cash dividends hereinbefore
provided for. No dividends shall be declared and paid or set
aside for payment on any shares of any other class of the
Corporation ranking junior to the Sixth Preferred shares in
any fiscal year, unless the fixed preferential non-cumulative
cash dividend for such fiscal year on all Sixth Preferred
shares then outstanding has been declared and paid or set
aside for payment. If in any fiscal year, after the fixed
preferential non-cumulative cash dividends on the Sixth
Preferred shares shall have been declared and paid or set
aside for payment, there shall remain any profits or surplus
available for dividends, such profits or surplus or any part
thereof may, in the discretion of the
- 32 -
directors, be applied to dividends on any shares of any other
class of the Corporation ranking junior to the Sixth Preferred
shares. If the Redemption Price is increased or decreased
pursuant to section (g) hereof above at any time after any
dividends have been declared and paid or set aside for payment
on the Sixth Preferred shares, the dividend rate applicable
during the period prior to such increase or decrease in the
Redemption Price in respect of which the dividends were paid
or set aside for payment shall be deemed decreased or
increased accordingly, and neither a registered holder of
Sixth Preferred shares nor the Corporation shall have a claim
against the other for either under or overpayment of dividends
resulting from an increase or decrease in the Redemption
Price.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the
right at its option at any time and from time to time to
purchase the whole or any part of the Sixth Preferred shares
at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption
Price thereof (the "Purchase Price"). The Purchase Price may,
at the option of the Corporation be paid and satisfied in the
manner provided for in subsection (b)(ii) hereof, subject to
the provisions of section (a) hereof.
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Sixth
Preferred shares shall be entitled to receive, subject to
section (a) hereof, and after the holders of First Preferred
shares, Third Preferred shares, Fourth Preferred shares and
Fifth Preferred shares shall have received such amounts as
they are entitled to receive in the event of the liquidation,
dissolution or winding up of the Corporation, but before any
distribution of any part of the assets of the Corporation
among the holders of any other shares of the Corporation,
including without limitation the Class A Common and Class B
Common shares, an amount equal to the Redemption Price for
each issued and outstanding Sixth Preferred share plus an
amount equal to all dividends declared thereon and unpaid.
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the Sixth
Preferred shares shall not, as such, have any voting rights
for the election of directors or, subject to any voting rights
accorded them pursuant to the provisions of the Business
Corporations Act (Ontario), as the same may from time to time
be amended or any successor legislation, for any other
purpose, nor shall they be entitled to attend shareholders'
meetings except for the purpose of exercising any voting
rights accorded to them pursuant to the provisions of the
Business Corporations Act (Ontario), as amended from time to
time, or any successor legislation; holders of the Sixth
Preferred shares shall, however, be entitled to notice of any
meeting of shareholders called for the purpose of authorizing
the dissolution of the Corporation or the sale, lease or
exchange of all or substantially all of the property of the
Corporation other than in the ordinary course of business.
- 33 -
(g) PRICE ADJUSTMENT. If at any time when any Sixth Preferred
shares are issued and outstanding either: (a) Canada Customs
and Revenue Agency determines and all of the holders of the
issued and outstanding Sixth Preferred shares concur in such
determination; or (b) the Corporation and the holders of the
Sixth Preferred shares determine, that the aggregate fair
market value of all property transferred or sold to the
Corporation in exchange for Sixth Preferred shares (the
"Acquired Property") is greater or less than the aggregate of
the Redemption Price of all Sixth Preferred shares issued in
connection with the acquisition of the Acquired Property, then
the resultant deficiency or excess in the aggregate of the
Redemption Price of all Sixth Preferred shares issued in
connection with the acquisition of the Acquired Property shall
be divided by the aggregate number of Sixth Preferred shares
issued in connection with the acquisition of the Acquired
Property and the Redemption Price shall be increased or
decreased accordingly.
- 34 -
SEVENTH PREFERRED SHARES
The Seventh Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING. The Seventh Preferred shares shall rank, with respect
to both dividends and return of capital in the event of
liquidation, dissolution or winding up of the Corporation,
junior to the First Preferred shares, the Third Preferred
shares, the Fourth Preferred shares, the Fifth Preferred
shares and the Sixth Preferred shares and in priority to all
other shares of the Corporation, including without limitation,
the Class A Common and Class B Common shares, but shall not
confer any further right to participate in the profits or
assets of the Corporation. The rights, privileges,
restrictions and conditions attaching to the Seventh Preferred
shares shall be deemed to include and incorporate by reference
such provisions (including, without limitation, the
subordination provisions) as are necessary to constitute the
Seventh Preferred shares "Excluded Securities" for the
purposes of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31, 2002, as amended on September 10,
2003, among the Corporation, The Toronto-Dominion
Bank, as Administration Agent and certain lenders
named therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $450,000,000 10%
Series B Senior Secured Second Priority Notes due
2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
35
(G) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re U.S.$200,000,000
8.750% Senior (Secured) Second Priority Debentures due
2032;
(H) Indenture dated as of June 19, 2003 among the Corporation
and JPMorgan Chase Bank re U.S. $350,000,000 6.25% Senior
(Secured) Second Priority Notes due 2013; and
(I) such other loan agreements, indentures, deeds of trust or
other financing instruments to which the Corporation (or
any successor) is from time to time a party as contain
substantially similar provisions as the foregoing
financing instruments related to "Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Seventh Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the purchase for cancellation of Seventh Preferred shares or payments made
on the liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, purchase for cancellation or other distribution amount
made in respect of any of the Seventh Preferred shares shall, notwithstanding
anything to the contrary contained herein, be deemed to include and incorporate
by reference such provisions (including, without limitation, the subordination
provisions) as are necessary to constitute such promissory notes Excluded
Securities for the purposes of the Financing Indentures. Until all indebtedness
under the Financing Indentures has been fully paid or the payment thereof has
been duly provided for, such promissory note shall not be assignable or
negotiable by the holder except to the extent and in the manner contemplated by
the applicable provisions contained in the Financing Indentures relating to
Excluded Securities.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
being waived as hereinafter provided, redeem the
whole or any part of the Seventh Preferred shares on
payment for each such share to be redeemed of the
amount of One Thousand Dollars ($1,000) as adjusted
in accordance with section (g) hereof (the
"Redemption Price").
(ii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE. The
Redemption Price may, at the option of the
Corporation, be paid and satisfied in whole or in
part: (1) by the issuance to the holder by the
Corporation of a promissory note for a principal sum
equal to the Redemption Price, or
36
such part thereof as is to be satisfied by the
promissory note, which, subject to section (a) above,
is payable on demand, provides for interest on the
unpaid balance at a rate equal to the annual rate
established by The Toronto-Dominion Bank at its head
office in Toronto, Ontario from time to time as being
its reference rate of interest used by it to
determine the rates of interest it will charge for
loans made in Canada in Canadian dollars to its
preferred commercial customers (hereinafter referred
to as "Prime"), plus two percent (2%) per annum,
calculated and payable monthly in arrears on the last
date of each month, provided that the balance of any
interest accrued and unpaid to the date on which the
principal amount is paid shall be due and payable on
such date and that any interest not paid on its due
date shall itself bear interest at the above rate,
compounded monthly and, subject to section (a) above,
entitles the Corporation to prepay the whole or any
part of the unpaid principal under such promissory
note, upon payment of interest accrued on the unpaid
principal balance to the date of payment; or (2) by
the assignment or endorsement in favour of the holder
of a promissory note made by an affiliate (as such
term is defined in the Business Corporations Act
(Ontario), as amended from time to time, or any
successor legislation) for a principal sum or for a
portion of the principal sum equal to the Redemption
Price, or such part thereof as is to be satisfied by
the promissory note, which is payable on demand and
which the board of directors of the Corporation in
its discretion has determined has a value not less
than the Redemption Price, or such part thereof as is
to be satisfied by the promissory note of the
affiliate, which might be issued under clause (1) of
this subsection (b)(ii).
(iii) PARTIAL REDEMPTION. In case a part only of the then
outstanding Seventh Preferred shares is at any time
to be redeemed, the shares so to be redeemed shall be
selected in such manner as the directors in their
discretion shall decide and need not be redeemed pro
rata or selected by lot and the directors may make
such adjustments as may be necessary to avoid the
redemption of fractional parts of shares.
(iv) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The
Corporation shall, at least one (1) day before the
date specified for redemption, send to each person
who at the date of sending is a registered holder of
Seventh Preferred shares to be redeemed a notice in
writing of the intention of the Corporation to redeem
such Seventh Preferred shares, or alternatively,
notice may be waived or the time for sending of the
notice may be waived at any time with the consent in
writing of holders of such Seventh Preferred shares
to be redeemed. Notice may be mailed in a prepaid
envelope addressed to each such shareholder at his
address as it appears on the records of the
Corporation or its transfer agent, or alternatively,
such notice may be delivered personally to such
shareholder; provided, however, that accidental
failure to give any such notice to one or more of
such shareholders shall not affect the validity of
the redemption. Such
37
notice shall set out the Redemption Price and the
date of redemption. If notice of any such redemption
be given by the Corporation or waived in the manner
aforesaid and an amount sufficient to redeem the
shares has been paid (whether in cash or by
promissory note, as above provided) to the holder of
the Seventh Preferred shares to be redeemed or
deposited with any trust corporation or chartered
bank in Canada, on or before the date fixed for
redemption, the holder thereof shall thereafter have
no rights against the Corporation in respect thereof
except, upon the surrender of certificates for such
shares, to receive payment therefor and except to
receive any dividends declared and payable on or
before the redemption date but unpaid. If the Seventh
Preferred shares are redeemed on the redemption date
then from and after the redemption date such shares
shall cease to be entitled to dividends, (except for
any dividends declared and payable on or before the
redemption date, but unpaid) and the holders thereof
shall not be entitled to exercise any of the rights
of holders of Seventh Preferred shares in respect
thereof unless payment of the Redemption Price is not
made on the redemption date, in which event the
rights of the holders of the said shares shall remain
unaffected.
(c) NON-CUMULATIVE DIVIDENDS. The holders of the Seventh Preferred
shares shall, in each fiscal year of the Corporation, subject
to section (a) hereof and to the payment of all accrued
dividends on the First Preferred shares, the Third Preferred
shares, the Fourth Preferred shares, the Fifth Preferred
shares and Sixth Preferred shares but always in preference and
priority to any payment of dividends on any other shares of
the Corporation for such year, including without limitation,
the Class A Common and Class B Common shares, be entitled to
receive, as and when declared by the directors, out of the
monies of the Corporation properly applicable to the payment
of dividends, fixed preferential non-cumulative cash dividends
at the rate of nine and eighty one hundredths percent (9.80%)
per annum of the Redemption Price for such shares. The
directors shall be entitled from time to time to declare part
of the preferential non-cumulative cash dividend for any
fiscal year notwithstanding that such dividend for such fiscal
year shall not be declared in full. If in any fiscal year of
the Corporation the directors in their discretion shall not
declare the said dividend or any part thereof on the Seventh
Preferred shares for such fiscal year then the rights of the
holders of the Seventh Preferred shares to such dividend or
undeclared part thereof for such fiscal year shall be forever
extinguished. The registered holders of Seventh Preferred
shares shall not be entitled to any dividends other than or in
excess of the preferential non-cumulative cash dividends
hereinbefore provided for. No dividends shall be declared and
paid or set aside for payment on any shares of any other class
of the Corporation ranking junior to the Seventh Preferred
shares in any fiscal year, unless the fixed preferential
non-cumulative cash dividend for such fiscal year on all
Seventh Preferred shares then outstanding has been declared
and paid or set aside for payment. If in any fiscal year,
after the fixed preferential non-cumulative cash dividends on
the Seventh Preferred shares shall have been declared and paid
or set aside for payment, there shall remain any profits or
surplus available for dividends, such profits or surplus or
any part
38
thereof may, in the discretion of the directors, be applied to
dividends on any shares of any other class of the Corporation
ranking junior to the Seventh Preferred shares. If the
Redemption Price is increased or decreased pursuant to
section (g) hereof above at any time after any dividends have
been declared and paid or set aside for payment on the Seventh
Preferred shares, the dividend rate applicable during the
period prior to such increase or decrease in the Redemption
Price in respect of which the dividends were paid or set aside
for payment shall be deemed decreased or increased
accordingly, and neither a registered holder of Seventh
Preferred shares nor the Corporation shall have a claim
against the other for either under or overpayment of dividends
resulting from an increase or decrease in the Redemption
Price.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the
right at its option at any time and from time to time to
purchase the whole or any part of the Seventh Preferred shares
at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption
Price thereof (the "Purchase Price"). The Purchase Price may,
at the option of the Corporation be paid and satisfied in the
manner provided for in subsection (b)(ii) hereof, subject to
the provisions of section (a) hereof.
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Seventh
Preferred shares shall be entitled to receive, subject to
section (a) hereof, and after the holders of First Preferred
shares, Third Preferred shares, Fourth Preferred shares, Fifth
Preferred shares and Sixth Preferred shares shall have
received such amounts as they are entitled to receive in the
event of the liquidation, dissolution or winding up of the
Corporation, but before any distribution of any part of the
assets of the Corporation among the holders of any other
shares of the Corporation, including without limitation the
Class A Common and Class B Common shares, an amount equal to
the Redemption Price for each issued and outstanding Seventh
Preferred share plus an amount equal to all dividends declared
thereon and unpaid.
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the
Seventh Preferred shares shall not, as such, have any voting
rights for the election of directors or, subject to any voting
rights accorded them pursuant to the provisions of the
Business Corporations Act (Ontario), as the same may from time
to time be amended or any successor legislation, for any other
purpose, nor shall they be entitled to attend shareholders'
meetings except for the purpose of exercising any voting
rights accorded to them pursuant to the provisions of the
Business Corporations Act (Ontario), as amended from time to
time, or any successor legislation; holders of the Seventh
Preferred shares shall, however, be entitled to notice of any
meeting of shareholders called for the purpose of authorizing
the dissolution of the Corporation or the sale, lease or
exchange of all or substantially all of the property of the
Corporation other than in the ordinary course of business.
- 39 -
(g) PRICE ADJUSTMENT.
(i) If at any time and from time to time when any Seventh
Preferred shares are issued and outstanding either:
(a) Canada Customs and Revenue Agency determines and
all of the holders of the issued and outstanding
Seventh Preferred shares concur in such
determination; or (b) the Corporation and the holders
of the Seventh Preferred shares determine; that the
aggregate fair market value of all property
transferred or sold to the Corporation in exchange
for Seventh Preferred shares (the "Acquired
Property") is greater or less than the aggregate of
the Redemption Price of all Seventh Preferred shares
issued in connection with the acquisition of the
Acquired Property (and, for greater certainty, an
adjustment to the purchase price of the Acquired
Property pursuant to the agreement of purchase and
sale between the Corporation and the holders of the
Seventh Preferred shares from which the Corporation
acquired the Acquired Property to the extent pursuant
to the terms of such agreement is to be satisfied in
accordance with this subsection shall constitute such
a determination by the Corporation and the holders of
the Seventh Preferred shares), then the resultant
deficiency or excess in the aggregate of the
Redemption Price of all Seventh Preferred shares
issued in connection with the acquisition of the
Acquired Property shall be divided by the aggregate
number of Seventh Preferred shares issued in
connection with the acquisition of the Acquired
Property and the Redemption Price shall be increased
or decreased accordingly. For greater certainty,
multiple adjustments to the Redemption Price are
permitted under this subsection and all such
adjustments shall be cumulative.
(ii) In the event that none or only some (but not all) of
the Seventh Preferred shares issued in connection
with the acquisition of the Acquired Property are
issued and outstanding and the Redemption Price is
increased or decreased pursuant to subsection (g)(i)
hereof then the amount of the increase or decrease in
the aggregate fair market value of the Acquired
Property, less the aggregate of the adjustments to
the Redemption Price of the Seventh Preferred shares,
if any, then issued and outstanding arising as a
consequence of such determination, shall be, in the
case of an excess, a debt of the Corporation payable
to the holder of such Seventh Preferred shares and in
the case of a deficiency, a debt of the holder
payable to the Corporation, in either case on demand,
bearing interest at Prime plus two percent (2%) per
annum, calculated and payable monthly in arrears on
the last day of each month, provided that the balance
of any interest accrued and unpaid to the date on
which the principal amount is paid shall be due and
payable on such date and that any interest not paid
on its due date shall itself bear interest at the
above rate, compounded monthly.
(iii) Notwithstanding the foregoing, in the event that the
Seventh Preferred shares, or any of them, shall have
been redeemed for a Redemption Price paid by means of
a promissory note issued by the Corporation or
assigned
- 40 -
and transferred by the Corporation (as provided in
subsection (b)(ii) hereof) containing provisions
adjusting the principal amount thereof downwards by an
amount equal to the amount of such deficiency or
upwards by an amount equal to the amount of such
excess, then in such event, such adjustment provision
shall be deemed to satisfy in full the adjustment of
the applicable purchase price and the debt payable by
the Corporation to the holder or the holder to the
Corporation as the case may be, hereinbefore provided.
41
EIGHTH PREFERRED SHARES
The Eighth Preferred shares shall have attached thereto, as a class, the
following rights, privileges, restrictions and conditions:
(a) RANKING. The Eighth Preferred shares shall rank, with respect
to both dividends and return of capital in the event of
liquidation, dissolution or winding up of the Corporation,
junior to the First Preferred shares, the Third Preferred
shares, the Fourth Preferred shares, the Fifth Preferred
shares, the Sixth Preferred shares and the Seventh Preferred
shares and in priority to all other shares of the Corporation,
including without limitation, the Class A Common and Class B
Common shares, but shall not confer any further right to
participate in the profits or assets of the Corporation. The
rights, privileges, restrictions and conditions attaching to
the Eighth Preferred shares shall be deemed to include and
incorporate by reference such provisions (including, without
limitation, the subordination provisions) as are necessary to
constitute the Eighth Preferred shares "Excluded Securities"
for the purposes of the:
(A) Second Amended and Restated Loan Agreement dated as
of January 31, 2002, as amended on September 10,
2003, among the Corporation, The Toronto-Dominion
Bank, as Administration Agent and certain lenders
named therein;
(B) Indenture dated as of January 15, 1994 among Rogers
Cablesystems Limited ("RCAB"), a predecessor by
amalgamation to the Corporation, Rogers Cable T.V.
Limited ("RCTV"), a predecessor by amalgamation to
the Corporation, Rogers Ottawa Limited/Limitee
("ROL") and Chemical Bank (now JPMorgan Chase Bank)
re Cdn. $300,000,000 9.65% Senior Secured Second
Priority Debentures due 2014;
(C) Indenture dated as of March 20, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $450,000,000 10%
Series B Senior Secured Second Priority Notes due
2005;
(D) Indenture dated as of November 30, 1995 among RCAB,
various Restricted Subsidiaries and Chemical Bank
(now JPMorgan Chase Bank) re U.S. $125,000,000 11%
Senior Subordinated Guaranteed Debentures due 2015;
(E) Indenture dated as of February 5, 2002 among the
Corporation and CIBC Mellon Trust Company re Cdn.
$450,000,000 7.60% Senior (Secured) Second Priority
Notes due 2007;
(F) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$350,000,000 7.875% Senior (Secured) Second
Priority Notes due 2012;
- 42 -
(G) Indenture dated as of April 30, 2002 among the
Corporation and JPMorgan Chase Bank re
U.S.$200,000,000 8.750% Senior (Secured) Second
Priority Debentures due 2032;
(H) Indenture dated as of June 19, 2003 among the
Corporation and JPMorgan Chase Bank re U.S.
$350,000,000 6.25% Senior (Secured) Second Priority
Notes due 2013; and
(I) such other loan agreements, indentures, deeds of
trust or other financing instruments to which the
Corporation (or any successor) is from time to time a
party as contain substantially similar provisions as
the foregoing financing instruments related to
"Excluded Securities",
(collectively, all such documents, as they may be amended from time to time, are
hereinafter referred to as the "Financing Indentures").
For greater certainty, no distribution of money or property shall be made on, or
in connection with, the Eighth Preferred shares (including, without limitation,
distributions made by the payment of dividends or payments made in connection
with the purchase for cancellation of Eighth Preferred shares or payments made
on the liquidation, dissolution, or winding up of the Corporation) unless such a
distribution is permitted to be made on or by means of Excluded Securities under
the provisions of the Financing Indentures. Any promissory notes issued to
satisfy any dividend, purchase for cancellation or other distribution amount
made in respect of any of the Eighth Preferred shares shall, notwithstanding
anything to the contrary contained herein, be deemed to include and incorporate
by reference such provisions (including, without limitation, the subordination
provisions) as are necessary to constitute such promissory notes Excluded
Securities for the purposes of the Financing Indentures. Until all indebtedness
under the Financing Indentures has been fully paid or the payment thereof has
been duly provided for, such promissory note shall not be assignable or
negotiable by the holder except to the extent and in the manner contemplated by
the applicable provisions contained in the Financing Indentures relating to
Excluded Securities.
(b) REDEMPTION PRIVILEGE.
(i) REDEMPTION PRICE. Subject to any adjustment pursuant
to section (g) hereof, the "Redemption Price" in
respect of each Eighth Preferred share shall be an
amount equal to the fair market value of all of the
consideration for which Eighth Preferred shares are
issued as at the time such Eighth Preferred shares
are issued, as determined by the directors of the
Corporation, divided by the number of Eighth
Preferred shares so issued.
(ii) REDEMPTION RIGHT. Subject to the provisions of the
Business Corporations Act (Ontario), as amended from
time to time, or any successor legislation, the
Corporation may, upon giving notice or upon notice
being waived as hereinafter provided, redeem the
whole or any part
- 43 -
of the Eighth Preferred shares on payment for each
such share to be redeemed of the Redemption Price
therefor.
(iii) PAYMENT OF REDEMPTION PRICE BY PROMISSORY NOTE OR BY
CLASS B DEPOSIT RECEIPTS OF AT&T CANADA INC. The
aggregate Redemption Price of all Eighth Preferred
shares of a holder which are redeemed may, at the
option of the Corporation, be paid and satisfied in
whole or in part: (1) by the issuance to the holder
by the Corporation of a promissory note for a
principal sum equal to the Redemption Price, or such
part thereof as is to be satisfied by the promissory
note, which, subject to section (a) above, is payable
on demand, provides for interest on the unpaid
balance at a rate equal to the annual rate
established by The Toronto-Dominion Bank at its head
office in Toronto, Ontario from time to time as being
its reference rate of interest used by it to
determine the rates of interest it will charge for
loans made in Canada in Canadian dollars to its
preferred commercial customers (hereinafter referred
to as "Prime"), plus six percent (6%) per annum,
which interest will commence on the day following the
date of issuance of such promissory note and will be
calculated and payable monthly in arrears on the last
date of each month, provided that the balance of any
interest accrued and unpaid to the date on which the
principal amount is paid shall be due and payable on
such date and that any interest not paid on its due
date shall itself bear interest at the above rate,
compounded monthly and, subject to section (a) above,
entitles the Corporation to prepay the whole or any
part of the unpaid principal under such promissory
note, upon payment of interest accrued on the unpaid
principal balance to the date of payment; or (2) by
the assignment or endorsement in favour of the holder
of a promissory note made by an affiliate (as such
term is defined in the Business Corporations Act
(Ontario), as amended from time to time, or any
successor legislation) for a principal sum or for a
portion of the principal sum equal to the aggregate
Redemption Price, or such part thereof as is to be
satisfied by the promissory note, which is payable on
demand and which the board of directors of the
Corporation in its discretion has determined has a
value not less than the aggregate Redemption Price,
or such part thereof as is to be satisfied by the
promissory note of the affiliate, which might be
issued under clause (1) of this subsection (b)(iii);
or (3) by the transfer by the Corporation to the
holder of a portion of the Class B Deposit Receipts
of AT&T Canada Inc. (the "Deposit Receipts")
transferred to the Corporation in connection with the
issuance of Eighth Preferred shares, equal to the
portion of such Eighth Preferred shares which are to
be redeemed.
(iv) PARTIAL REDEMPTION. In case a part only of the then
outstanding Eighth Preferred shares is at any time to
be redeemed, the shares so to be redeemed shall be
selected in such manner as the directors in their
discretion shall decide and need not be redeemed pro
rata or selected by
- 44 -
lot and the directors may make such adjustments as
may be necessary to avoid the redemption of
fractional parts of shares.
(v) NOTICE OF REDEMPTION AND RIGHTS OF HOLDERS. The
Corporation shall, on or before the date specified
for redemption, send to each person who at the date
of sending is a registered holder of Eighth Preferred
shares to be redeemed a notice in writing of the
intention of the Corporation to redeem such Eighth
Preferred shares, or alternatively, notice may be
waived or the time for sending of the notice may be
waived at any time with the consent in writing of
holders of such Eighth Preferred shares to be
redeemed. Notice may be mailed in a prepaid envelope
addressed to each such shareholder at his address as
it appears on the records of the Corporation or its
transfer agent, or alternatively, such notice may be
delivered personally to such shareholder; provided,
however, that accidental failure to give any such
notice to one or more of such shareholders shall not
affect the validity of the redemption. Such notice
shall set out the amount determined by the directors
of the Corporation as the aggregate Redemption Price
of the Eighth Preferred shares so redeemed and the
date of redemption. If notice of any such redemption
be given by the Corporation or waived in the manner
aforesaid and an amount sufficient to redeem the
shares has been paid (whether in cash or by
promissory note or by the transfer of the Deposit
Receipts as above provided) to the holder of the
Eighth Preferred shares to be redeemed or deposited
with any trust corporation or chartered bank in
Canada, on or before the date fixed for redemption,
the holder thereof shall thereafter have no rights
against the Corporation in respect thereof except,
upon the surrender of certificates for such shares,
to receive payment therefor and except to receive any
dividends declared and payable on or before the
redemption date but unpaid. If the Eighth Preferred
shares are redeemed on the redemption date then from
and after the redemption date such shares shall cease
to be entitled to dividends, (except for any accrued
and unpaid dividends on such shares) and the holders
thereof shall not be entitled to exercise any of the
rights of holders of Eighth Preferred shares in
respect thereof unless payment of the Redemption
Price is not made on the redemption date, in which
event the rights of the holders of the said shares
shall remain unaffected.
(c) CUMULATIVE DIVIDENDS. The holders of the Eighth Preferred
shares shall, in each fiscal year of the Corporation, subject
to section (a) hereof and to the payment of all accrued
dividends on the First Preferred shares, the Third Preferred
shares, the Fourth Preferred shares, the Fifth Preferred
shares, the Sixth Preferred shares and the Seventh Preferred
shares, but always in preference and priority to any payment
of dividends on any other shares of the Corporation for such
year, including without limitation, the Class A Common and
Class B Common shares, be entitled to receive, subject to the
provisions of the Business Corporations Act (Ontario), as
amended from time to tune, or any successor legislation,
fixed, cumulative cash dividends at the rate of eight percent
(8%) per annum of the
- 45 -
Redemption Price for such shares payable quarterly on the
first day following the last day in the month of each of
March, June, September and December, other than a Saturday or
a Sunday, on which the main branch of The Toronto-Dominion
Bank in Toronto, Ontario is open for business (each an
"Established Dividend Payment Date"). Alternatively, if the
directors so determine dividends shall be payable on any day
(an "Alternate Dividend Payment Date") following the
immediately preceding Established Dividend Payment Date and
before the next Established Dividend Payment Date. An
Established Dividend Payment Date and an Alternate Dividend
Payment Date are each hereinafter referred to as a "Dividend
Payment Date". Dividends on the Eighth Preferred shares shall
accrue on a daily basis from the day following the date of
issuance. If on any Dividend Payment Date the dividend payable
on such date is not paid in full on all of the Eighth
Preferred shares then issued and outstanding, such dividend or
the unpaid part thereof shall be paid on the first date
thereafter on which the Corporation shall have sufficient
moneys properly applicable to the payment of same. The holders
of the Eighth Preferred shares shall not be entitled to any
dividend other than or in excess of the cumulative dividends
at the rate hereinbefore provided for. If the Redemption Price
is increased or decreased pursuant to section (g) hereof at
any time after any dividends have been declared and paid or
set aside for payment on the Eighth Preferred shares, the
dividend rate applicable during the period prior to such
increase or decrease in the Redemption Price in respect of
which the dividends were paid or set aside for payment shall
be deemed decreased or increased accordingly, and neither a
registered holder of Eighth Preferred shares nor the
Corporation shall have a claim against the other for either
under or overpayment of dividends resulting from an increase
or decrease in the Redemption Price.
The Corporation shall not redeem or purchase for cancellation
any Eighth Preferred shares then outstanding unless all
dividends accrued on the Eighth Preferred shares up to the
date of redemption or purchase have been paid.
The Corporation shall not call for redemption or redeem or
purchase for cancellation or make any capital distribution in
respect of or otherwise pay off or retire any shares of the
Corporation ranking on a parity with or junior to the Eighth
Preferred shares unless all dividends on the Eighth Preferred
shares up to and including the dividend payable on the
immediately preceding Dividend Payment Date shall have been
declared and paid or set aside for payment at the date of such
call for redemption, redemption, purchase, distribution,
retirement or other payment off.
(d) PURCHASE BY THE CORPORATION. The Corporation shall have the
right at its option at any time and from time to time to
purchase the whole or any part of the Eighth Preferred shares
at the lowest price at which, in the opinion of the directors,
such shares are obtainable but not exceeding the Redemption
Price thereof (the "Purchase Price"). The Purchase Price may,
at the option of the Corporation be paid and satisfied in the
manner provided for in subsection (b)(iii) hereof.
- 46 -
(e) LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Eighth
Preferred shares shall be entitled to receive, subject to
section (a) hereof, and after the holders of First Preferred
shares, Third Preferred shares, Fourth Preferred shares, Fifth
Preferred shares, Sixth Preferred shares and Seventh Preferred
shares shall have received such amounts as they are entitled
to receive in the event of the liquidation, dissolution or
winding up of the Corporation, but before any distribution of
any part of the assets of the Corporation among the holders of
any other shares of the Corporation, including without
limitation the Class A Common and Class B Common shares, an
amount equal to the Redemption Price for each issued and
outstanding Eighth Preferred share plus an amount equal to the
accrued and unpaid dividends thereon.
(f) NO VOTING RIGHTS; NOTICE OF MEETINGS. The holders of the
Eighth Preferred shares shall not, as such, have any voting
rights for the election of directors or, subject to any voting
rights accorded them pursuant to the provisions of the
Business Corporations Act (Ontario), as the same may from time
to time be amended or any successor legislation, for any other
purpose, nor shall they be entitled to attend shareholders'
meetings except for the purpose of exercising any voting
rights accorded to them pursuant to the provisions of the
Business Corporations Act (Ontario), as amended from time to
time, or any successor legislation; holders of the Eighth
Preferred shares shall, however, be entitled to notice of any
meeting of shareholders called for the purpose of authorizing
the dissolution of the Corporation or the sale, lease or
exchange of all or substantially all of the property of the
Corporation other than in the ordinary course of business.
(g) PRICE ADJUSTMENT.
(i) If at any time and from time to time when any Eighth
Preferred shares are issued and outstanding either:
(a) Canada Customs and Revenue Agency determines and
the directors of the Corporation and all of the
holders of the issued and outstanding Eighth
Preferred shares concur in such determination; or (b)
the Corporation, the directors of the Corporation and
the holders of the Eighth Preferred shares determine;
that the aggregate fair market value of all property
transferred or sold to the Corporation in exchange
for Eighth Preferred shares (the "Acquired Property")
is greater or less than the fair market value of the
Acquired Property as determined by the board of
directors at the time of the acquisition of the
Acquired Property as contemplated by subsection
(b)(i) hereof, or as most recently redetermined under
this section (g) then the resultant excess or
deficiency, as the case may be, shall be divided by
the aggregate number of Eighth Preferred shares
issued in connection with the acquisition of the
Acquired Property and the Redemption Price shall be
increased or decreased accordingly. For greater
certainty, multiple adjustments to the Redemption
Price are permitted under this subsection and all
such adjustments shall be cumulative.
- 47 -
(ii) In the event that none or only some (but not all) of
the Eighth Preferred shares issued in connection with
the acquisition of the Acquired Property are issued
and outstanding and the Redemption Price is increased
or decreased pursuant to subsection (g)(i) hereof
then the amount of the increase or decrease in the
aggregate fair market value of the Acquired Property,
less the aggregate of the adjustments to the
Redemption Price of the Eighth Preferred shares, if
any, then issued and outstanding arising as a
consequence of such determination, shall be, in the
case of an excess, a debt of the Corporation payable
to the holder of such Eighth Preferred shares and in
the case of a deficiency, a debt of the holder
payable to the Corporation, in either case on demand,
bearing interest at Prime plus six percent (6%) per
annum, calculated and payable monthly in arrears on
the last day of each month, provided that the balance
of any interest accrued and unpaid to the date on
which the principal amount is paid shall be due and
payable on such date and that any interest not paid
on its due date shall itself bear interest at the
above rate, compounded monthly.
(iii) Notwithstanding subsection (g)(ii), in the event that
the Redemption Price for any Eighth Preferred shares
redeemed shall have been satisfied by means of a
promissory note issued by the Corporation or assigned
and transferred by the Corporation (as provided in
subsection (b)(iii) hereof) providing for the
adjustment of the principal amount thereof downwards
by an amount equal to the amount of the deficiency or
upwards by an amount equal to the amount of the
excess, then in such event, the note as adjusted
shall be deemed to satisfy in full the adjustment of
the applicable purchase price and the debt payable by
the Corporation to the holder or the holder to the
Corporation as the case may be, hereinbefore provided
in subsection (g)(ii) hereof.
(iv) Each time a change is made to the Redemption Price
pursuant to this section (g), a certificate of an
officer of the Corporation, stating such new
Redemption Price, shall be prepared and inserted in
the minute book of the Corporation.
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