Exhibit 99.20
(INDUSTRY CANADA LOGO) Industrie Canada
CERTIFICATE OF AMENDMENT CERTIFICAT DE MODIFICATION
CANADA BUSINESS CORPORATIONS ACT LOI CANADIENNE SUR LES SOCIETES
PAR ACTIONS
POINTS INTERNATIONAL LTD. 426791-5
______________________________________________ _______________________________________
Name of corporation-Denomination de la societe Corporation number-Numero de la societe
I hereby certify that the articles of Je certifie que les statuts de la
the above-named corporation were societe susmentionnee ont ete modifies:
amended:
a) under section 13 of the Canada [ ] a) en vertu de l'article 13 de la
Business Corporations Act in Loi canadienne sur les
accordance with the attached societes par actions,
notice; conformement a l'avis
ci-joint;
b) under section 27 of the Canada [ ] b) en vertu de l'article 27 de la
Business Corporations Act as set Loi canadienne sur les
out in the attached articles of societes par actions, tel
amendment designating a series of qu'il est indique dans les
shares; clauses modificatrices
ci-jointes designant une serie
d'actions;
c) under section 179 of the Canada [X] c) en vertu de l'article 179 de
Business Corporations Act as set la Loi canadienne sur les
out in the attached articles of societes par actions, tel
amendment; qu'il est indique dans les
clauses modificatrices
ci-jointes;
d) under section 191 of the Canada [ ] d) en vertu de l'article 191 de
Business Corporations Act as set la Loi canadienne sur les
out in the attached articles of societes par actions, tel
reorganization; qu'il est indique dans les
clauses de reorganisation
ci-jointes;
/s/ Richard G. Shaw MARCH 29, 2005 / LE 29 MARS 2005
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Richard G. Shaw Date of Amendment - Date de modification
Director - Directeur
(CANADA LOGO)
(INDUSTRY CANADA LOGO) Industrie Canada FORM 4 FORMULAIRE 4
ARTICLES OF AMENDMENT CLAUSES MODIFICATRICES
Canada Business Loi canadienne sur les (SECTIONS 27 OR 177) (ARTICLES 27 OU 177)
Corporations Act societes par actions
1 -- Name of the Corporation - Denomination 2 -- Illegible No.- N_ de la societe
sociale de is societe
Points International Ltd. 4267915
3 -- The articles of the above-named corporation are Les status de la societe mentionnee ci-dessus sont
amended as follows: modifies de la facon sulvante:
(a) by creating one series of preference shares consisting of one share
designated as Series Four Preferred Share;
(b) by creating one series of preferred shares consisting of one share
designated as Series Five Preferred Share;
(c) by changing the reference to the authorized capital of the Corporation to
provide that the classes and any maximum number of shares that the Corporation
is authorized to issue shall be as follows:
(i) an unlimited number of shares designated as Common Shares; and
(ii) an unlimited number of shares designated as Preferred Shares, issuable
in series of which:
(1) one (1) consists of a series designated as the Series One
Preferred Share;
(2) one (1) consists of a series designated as the Series Two
Preferred Share;
(3) one (1) consists of a series designated as the Series Three
Preferred Share;
(4) one (1) consists of a series designated as the Series Four
Preferred Share; and
(5) one (1) consists of a series designated as the Series Five
Preferred Share;
(d) by providing that the rights, privileges, restrictions and conditions
attaching to the Series Four Preferred Share and the Series Five Preferred
Share and the directors authority with respect to such classes of shares which
may be issued in series, shall be as set out on the annexed Schedule "A".
/s/ Illegible Printed Name - Nom en lettres 4 -- Capacity of - En 5 -- Tel. No. - N_ de tel.
- -------------------------- moulees qualite de
Signature Stephen M. Yuzpe Corporate Secretary (416) 595-0000
FOR DEPARTMENTAL USE ONLY - AL USAGE DU MINISTERE SEULEMENT
MAR 29 2005
IC 3069 (2003/06) (CANADA LOGO)
SCHEDULE A
SERIES FOUR PREFERRED SHARE
The Series Four Preferred Share shall have the following rights, privileges,
restrictions and conditions:
1. DEFINITIONS
For the purposes of these Series Four Preferred Share provisions:
(a) "ACT" shall mean the Canada Business Corporations Act;
(b) "AFFILIATE" shall be construed such that one person shall be deemed to
be an affiliate of another person if one of them is controlled
(directly or indirectly) by the other or both are controlled (directly
or indirectly) by the same person or group of persons, and for this
purpose "CONTROL" shall be construed such that any combination of a
person, its affiliates and persons acting jointly or in concert with
either of them (the "CONTROL GROUP") shall control another person if
the Control Group is the beneficial owner of securities of such person
sufficient to elect a majority of the board of directors (or, if the
person is not a corporation, any comparable body) of such person;
(c) "AGENCY" shall mean any domestic or foreign court, tribunal, federal,
state, provincial, or local government or governmental agency or
authority or other regulatory authority (include stock exchange and
similar regulatory authorities) or administrative agency or commission
(including the Ontario Securities Commission and the Securities
Exchange Commission) or any elected or appointed public official;
(d) "ASSOCIATE" shall have the meaning attributed to it for the purposes
of the Securities Act (Ontario);
(e) "BUSINESS DAY" shall mean every day except a Saturday, Sunday or a day
that is a statutory holiday in Toronto, Ontario or a federal holiday
in the United States of America;
(f) a "CHANGE OF CONTROL" shall be deemed to have occurred if, before the
expiry of the Warrants any combination of a person (other than the
holder of the Series Four Preferred Share), its affiliates or
associates and persons acting jointly or in concert with any of them
becomes the beneficial owner of shares of the Corporation or any
successor to the Corporation sufficient to elect a majority of the
board of directors;
(g) "CIBC DEBENTURE" shall mean the 11% $6,000,000 convertible debenture,
amended and restated as of February 8, 2002, issued by the Corporation
to CIBC Capital Partners, a division of Canadian Imperial Bank of
Commerce, as the same may be amended, amended and restated and
transferred from time to time;
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(h) "COMMON SHARES" shall mean common shares in the capital of the
Corporation;
(i) "CURRENT MARKET PRICE" shall mean, at any date:
(i) if the Common Shares are listed on any Canadian stock exchange,
the price per share that is equal to the weighted average of the
prices at which the Common Shares have traded in board lots on
the Toronto Stock Exchange for each of the trading days on which
those shares traded falling not more than 20 business days before
that date or, if the common shares are not then listed on the
Toronto Stock Exchange, on the stock exchange on which the Common
Shares are then listed and have traded in the greatest volume
during the relevant period;
(ii) if the Common Shares are not listed on any stock exchange, the
weighted average of the prices at which the Common Shares have
traded in the over-the-counter market for each of the trading
days on which those shares traded falling not more than 20
business days before that date, and
(iii) if the Common Shares are not listed on any stock exchange and
are not traded in the over-the-counter market, $0.767 per Common
Share (as constituted at the date of the issuance of the Series
Four Preferred Share). If, subsequent to the date of the issuance
of the Series Four Preferred Share, the Corporation takes any
action affecting the Common Shares that, in the opinion of the
board of directors of the Corporation or the holder of the Series
Four Preferred Share, would aversely affect the rights of the
holders of the Series Four Preferred Share, the Current Market
Price shall be adjusted as the board of directors, acting in good
faith determines after consultation with an investment dealer or
investment bank approved by the holder of the Series Four
Preferred Share (such approval not to be withheld unreasonably),
but subject in all cases to any necessary regulatory approvals;
(j) "EQUITY SHARES" shall mean any shares of the Corporation (other than
Common Shares) that confer upon the holder the right to participate in
the distribution of assets upon a Liquidation Event and are not
restricted to a fixed sum (or to a fixed sum plus accrued but unpaid
dividends) on that distribution;
(k) "LAWS" means all laws, statutes, by-laws, rules, regulations, orders,
decrees, ordinances, protocols, codes, guidelines, policies, notices,
directions and judgements of any Agency;
(l) "LIQUIDATION ENTITLEMENT" shall mean an amount equal to the greater of
(a) the subscription price of the Series Four Preferred Share plus a
return on that subscription price equal to 7% per annum, calculated on
a daily basis from the date of issue of the Series Four Preferred
Share to the date of the Liquidation Event and (b) the product of the
number of Underlying Shares and the per share amount to be distributed
to the holders of the Common Shares upon the
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Liquidation Event after giving effect to any payments to be paid on
the Series Four Preferred Share and any other shares (other than the
Series Four Preferred Share) ranking prior to the Common Shares upon
the Liquidation Event;
(m) "LIQUIDATION EVENT" shall mean the liquidation, dissolution or
winding-up of the Corporation or other distribution of assets of the
Corporation among its shareholders for the purpose of winding-up its
affairs, whether voluntary or involuntary;
(n) "PARENT" means InterActiveCorp., a corporation incorporated under the
laws of Delaware, and any successors thereto;
(o) "PERSON" shall mean an individual, corporation, partnership, trust,
unincorporated organization, limited liability company, government or
any agency or political subdivision thereof or any other entity that
may be treated as a person under applicable law;
(p) "REDEMPTION AMOUNT" shall mean (a) in the event of redemption on March
31, 2013, an amount equal to the greater of (i) the subscription price
of the Series Four Preferred Share plus a return on that subscription
price equal to 7% per annum, calculated on a daily basis from the date
of issue of the Series Four Preferred Share to the date on which the
Series Four Preferred Share is redeemed in accordance with section 7,
and (ii) the product of the number of Underlying Shares and the
Current Market Price of the Common Shares on March 31, 2013, and (b)
in the event of redemption upon a Change of Control, an amount equal
to the greater of (i) 125% of the amount specified in (a)(i), and (ii)
the product of the number of Underlying Shares and the greater of (A)
the weighted average closing price of the Common Shares on the
principal stock exchange on which the Common Shares then are traded
for the 10 days ending on the trading day immediately prior to public
announcement of the Change of Control, and (B) the fair market value
of the consideration paid per Common Share in the transaction
resulting in the Change of Control;
(q) "SERIES ONE PREFERRED SHARE" shall mean the Series One Preferred Share
in the capital of the Corporation;
(r) "SERIES TWO PREFERRED SHARE" shall mean the Series Two Preferred Share
in the capital of the Corporation;
(s) "SERIES FIVE PREFERRED SHARE" shall mean the Series Five Preferred
Share in the capital of the Corporation;
(t) "TRANSFER" shall mean any direct or indirect sale, gift, transfer,
assignment, pledge, encumbrance, hypothecation or other disposition in
any manner whatsoever;
(u) "UNDERLYING SHARES" shall mean, subject to adjustment in accordance
with section 10, 4,504,069 Common Shares; and
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(v) "WARRANTS" shall mean the warrants represented by the common share
warrant certificate issued by the Corporation pursuant to the
subscription agreement between the Corporation and the Parent dated
March 21, 2003.
2. RANKING
The Series Four Preferred Share shall in all respects (including the
payment of dividends and distribution of assets upon a Liquidation Event)
rank equally with the Series One Preferred Share and the Series Two
Preferred Share. If the Corporation would be unable to make any payment or
distribution in full in accordance with the terms of the Series One
Preferred Share, the Series Two Preferred Share and the Series Four
Preferred Share, that payment or distribution shall be made on a pro rata
basis, calculated by reference to the amounts that would be received by the
holders of the Series One Preferred Share, the Series Two Preferred Share
and the Series Four Preferred Share assuming the payment or distribution of
the full amount to be paid or distributed in respect of those shares in
accordance with their terms and without any such pro ration.
3. LIQUIDATION, DISSOLUTION OR WINDING-UP
In the event of a Liquidation Event, the holder of the Series Four
Preferred Share shall be entitled to receive from the assets of the
Corporation an amount equal to the Liquidation Entitlement.
4. DIVIDENDS
The Corporation shall not declare or pay any dividend on the Common Shares
unless it concurrently declares and pays a dividend on the Series Four
Preferred Share in an amount equal to the product of the number of Common
Shares comprising the Underlying Shares and the dividend declared or paid
per Common Share. Any such dividend shall be paid to the holder of the
Series Four Preferred Share in the same form (cash, shares, other
securities or other property) as it is paid to the holders of the Common
Shares.
5. CONVERSION RIGHT
The holder of the Series Four Preferred Share shall have the right,
exercisable at any time prior to 5:00pm (local time in Toronto) on March
31, 2013 (and thereafter if the Corporation fails to redeem the Series Four
Preferred Share pursuant to section 7) to convert the Series Four Preferred
Share into the Underlying Shares. All of the Underlying Shares shall be
issued as fully paid and non-assessable. This conversion right may be
exercised by the holder of the Series Four Preferred Share delivering to
the Corporation the certificate for the Series Four Preferred Share
together with a notice in writing (the "CONVERSION NOTICE") confirming the
intention of the holder to convert the Series Four Preferred Share and
specifying the date (which shall be at least two business days following
the delivery of the notice) on which that conversion is to be effective
(the "CONVERSION DATE") and the address to which the certificates for the
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Underlying Shares are to be delivered. The Underlying Shares shall be, and
shall be deemed to be, issued to the holder of the Series Four Preferred
Share on the Conversion Date and the holder of the Series Four Preferred
Share shall be deemed to be the registered holder of the Underlying Shares,
and shall be deemed to have ceased to be the registered holder of the
Series Four Preferred Share, for all purposes effective the Conversion
Date. The Corporation shall promptly, and in any event within three
business days after the Conversion Date, deliver to the address specified
by the holder of the Series Four Preferred Share in the Conversion Notice
certificates evidencing the Underlying Shares.
6. AUTOMATIC CONVERSION
The Series Four Preferred Share shall be (and shall be deemed to be)
automatically converted into one Series Five Preferred Share on the date
that the Series Four Preferred Share is Transferred by the holder to a
person that is not an affiliate of the Parent or the holder ceases to be an
affiliate of the Parent. The Series Five Preferred Share shall be, and
shall be deemed to be, issued to the former holder of the Series Four
Preferred Share on the date of automatic conversion, and the former holder
of the Series Four Preferred Share shall be deemed to be the registered
holder of the Series Five Preferred Share and shall be deemed to have
ceased to be the registered holder of the Series Four Preferred Share for
all purposes effective the date of automatic conversion. Notwithstanding
that the holder shall then be deemed to be the holder of the Series Five
Preferred Share, the Corporation and the transfer agent shall not be
required to deliver a certificate representing the Series Five Preferred
Share until three business days following surrender of the certificate
representing the converted Series Four Preferred Share.
7. REDEMPTION
Unless a Conversion Notice has been delivered to the Corporation or the
Series Four Preferred Share has been converted under section 6, the
Corporation shall, subject to subsection 32(2) of the Act, redeem the
Series Four Preferred Share upon the earlier of March 31, 2013 and the
third business day following a Change of Control. If the Corporation is
precluded from redeeming the Series Four Preferred Share on that date as a
result of subsection 32(2) of the Act, it shall redeem the Series Four
Preferred Share as soon as it ceases to be precluded from doing so pursuant
to that subsection. At least three business days before the date specified
for redemption (the "REDEMPTION DATE") of the Series Four Preferred Share,
the Corporation shall deliver to the holder a notice in writing (the
"REDEMPTION NOTICE") of the intention of the Corporation to redeem the
Series Four Preferred Share. The Redemption Notice shall set out the
Redemption Amount, the details of its calculation and the Redemption Date.
On the Redemption Date, the Corporation shall deliver to the holder of the
Series Four Preferred Share at its address on the register maintained by
the Corporation or such other address as the holder of the Series Four
Preferred Share may have notified the Corporation in writing a certified
cheque or bank draft payable to the
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holder in an amount equal to the Redemption Amount. On and after the
Redemption Date, the Series Four Preferred Share shall cease to be entitled
to dividends or any other participation in the assets of the Corporation
and the holder shall cease to be a shareholder in respect of the Series
Four Preferred Share and shall not be entitled to exercise any of the
rights of shareholders in respect of the Series Four Preferred Share,
unless the Redemption Amount is not paid as provided in this section, in
which case the rights of the holder shall remain unaffected. The holder of
the Series Four Preferred Share may, in its sole discretion, waive or
consent to the abridgment of the Redemption Notice
8. VOTING RIGHTS
The holder of the Series Four Preferred Share shall be entitled to receive,
concurrently with its first dissemination, notice of all meetings of
shareholders of the Corporation and to attend all meetings of shareholders
of the Corporation. In addition to the right to vote separately as a series
and as part of a class of shares to the fullest extent permitted under
applicable law and the right provided in section 9, the holder of the
Series Four Preferred Share shall be entitled to Vote, together with the
holders of Common Shares, on all matters at all meetings of holders of
Common Shares. In each case, the holder of the Series Four Preferred Share
shall be entitled to cast that number of votes equal to the number of
Underlying Shares, provided that until Warrants have been exercised, in
whole or in part, that number of votes shall not exceed 19.9% of the total
number of votes that then may be cast at meetings of holders of Common
Shares less that number of votes that may be cast by the holder of the
Series Two Preferred Share and provided further that the number of votes
may not be less than zero.
9. BOARD REPRESENTATION
So long as the Series Four Preferred Share is outstanding, unless otherwise
approved by the holder of the Series Four Preferred Share, voting
separately and as a series, the board of directors of the Corporation shall
include one director (who need not be a "resident Canadian", as defined in
the Act) elected by the holder of the Series Four Preferred Share, voting
separately and as a series.
10. ANTI-DILUTION
(a) If, before the Conversion Date, the Corporation:
(i) issues Common Shares or securities exchangeable for or
convertible into Common Shares to all or substantially all the
holders of the Common Shares as a stock dividend;
(ii) makes a distribution on the Common Shares payable in Common
Shares or securities exchangeable for or convertible into Common
Shares (other than as dividends paid in the ordinary course);
(iii) divides its outstanding Common Shares into a greater number of
shares; or
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(iv) consolidates its outstanding Common Shares into a smaller number
of shares,
(any of these events being a "COMMON SHARE REORGANIZATION"), the
holder of the Series Four Preferred Share shall be entitled to receive
and shall accept in lieu of the Underlying Shares that it would have
received on the Conversion Date, the aggregate number of shares that
it would have been entitled to receive as a result of the Common Share
Reorganization if, on the effective date of the Common Share
Reorganization, the holder the Series Four Preferred Share had been
the holder of the Underlying Shares that it otherwise would have
received on the Conversion Date.
(b) If, before the Conversion Date, the Corporation fixes a record date
for the issue of rights, options or warrants to all or substantially
all of the holders of the Common Shares or to all or substantially all
of the holders of the Common Shares resident in Canada under which
those holders are entitled, during a period expiring not more than
forty-five days after the record date for that issue (the "RIGHTS
PERIOD"), to subscribe for or purchase Common Shares or securities
exchangeable for or convertible into Common Shares at a price per
share (or an exchange or conversion price per share during the Rights
Period in the case of securities exchangeable or convertible into
Common Shares) of less than 95% of the Current Market Price for the
Common Shares on that record date (any of these events being a "RIGHTS
OFFERING"), the number of Underlying Shares shall be adjusted
effective immediately after the end of the Rights Period to a number
determined by multiplying the number of Underlying Shares in effect
immediately prior to the end of the Rights Period by a fraction:
(i) the numerator of which shall be the number of Common Shares
outstanding, or the number of Common Shares that would be
outstanding if the convertible or exchangeable securities issued
in connection with the Rights Offering were converted into or
exchanged for Common Shares during the Rights Period, in both
cases after giving effect to the Rights Offering and including
the number of Common Shares actually issued or subscribed for
during the Rights Period upon exercise of the rights, warrants or
options under the Rights Offering; and
(ii) the denominator of which shall be the aggregate of:
(A) the number of Common Shares outstanding as of the record
date for the Rights Offering; and
(B) a number determined by dividing: (1) either: (a) the product
of the number of Common Shares issued or subscribed for
during the Rights Period upon the exercise of the rights,
warrants, or options under the Rights Offering and the price
at which those Common Shares are offered, or (b) the product
of the exchange or conversion price of the securities
offered and the number of
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Common Shares for or into which the securities offered
pursuant to the Rights Offering could have been exchanged or
converted during the Rights Period; by (2) the Current
Market Price of the Common Shares as of the fifth trading
day preceding the record date for the Rights Offering.
Any Common Shares owned by or held for the account of the Corporation
or any subsidiary of the Corporation shall be deemed not to be
outstanding for the purpose of this computation.
(c) If, before the Conversion Date, the Corporation fixes a record date
for the issue or the distribution to all or substantially all the
holders of the Common Shares or all or substantially all of the
holders of the Common Shares resident in Canada of securities of the
Corporation (including rights, options or warrants to acquire Equity
Shares or securities exchangeable for or convertible into Equity
Shares or property or assets and including evidences of indebtedness)
or any property or other assets (including cash and securities of
other persons) and that issuance or distribution does not constitute a
dividend paid in the ordinary course, a Common Share Reorganization or
a Rights Offering (any of these non-excluded events being a "SPECIAL
DISTRIBUTION"), the number of Underlying Shares shall be adjusted
effective immediately after that record date to a number determined by
multiplying the number of Underlying Shares in effect on that record
date by a fraction:
(i) the numerator of which shall be the number of Common Shares
outstanding on that record date multiplied by the Current Market
Price of the Common Shares on that record date; and
(ii) the denominator of which shall be:
(A) the product of the number of Common Shares outstanding on
that record date and the Current Market Price of the Common
Shares on that record date; less
(B) the fair market value, as determined by the board of
directors of the Corporation after consultation with a
qualified and independent valuator approved by the holder of
the Series Four Preferred Share (such approval not to be
withheld unreasonably), of those securities or property or
other assets issued or distributed in the Special
Distribution to the holders of the Common Shares.
Any Common Shares owned by or held for the account of the Corporation
or any subsidiary of the Corporation shall be deemed not to be
outstanding for the purpose of this computation.
(d) If, before the Conversion Date, the Common Shares are reclassified or
changed into other shares or other securities (other than pursuant to
a Common Share Reorganization), or there is a consolidation,
amalgamation or merger of the
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Corporation with or into any other corporation or other person (other
than a consolidation, amalgamation or merger that does not result in
any reclassification of the outstanding Common Shares or a change of
the Common Shares into other shares), or a transfer of the undertaking
or assets of the Corporation as an entirety or substantially as an
entirety to another corporation or other entity (any of these events
being a "CAPITAL REORGANIZATION"), if the Series Four Preferred Share
is to be converted after the effective date of that Capital
Reorganization, the holder of the Series Four Preferred Share shall be
entitled to receive and shall accept in lieu of the Underlying Shares
to which it otherwise was entitled, the aggregate number of shares,
other securities or other property that it would have been entitled to
receive as a result of that Capital Reorganization if, on the
effective date of that Capital Reorganization, the holder of the
Series Four Preferred Share had been the registered holder of the
number of Common Shares to which the holder otherwise was entitled
upon conversion of the Series Four Preferred Share. If, in the opinion
of the board of directors of the Corporation or the holder of the
Series Four Preferred Share, the rights of the holder of the Series
Four Preferred Share otherwise would be adversely affected, the
appropriate adjustments as determined by the board of directors,
acting in good faith after consultation with an investment dealer or
an investment bank approved by the audit committee of the board of
directors of the Corporation (or, if no audit committee is extant, the
board of directors of the Corporation) and the holder of the Series
Four Preferred Share (such approvals not to be withheld unreasonably)
shall be made in respect of any such Capital Reorganization in the
application of the provisions set out in this section 10 with respect
to the rights and provisions set out in this section with respect to
the rights and interests thereafter of the holder of the Series Four
Preferred Share so that these provisions shall continue to result in
corresponding adjustments, in relation to any shares, other securities
or other property thereafter deliverable upon the conversion of the
Series Four Preferred Share.
(e) If, before the Conversion Date, the Corporation grants or issues (or
agrees to grant or issue) Common Shares (other than Common Shares
issued pursuant to rights granted or issued by the Corporation prior
to March 21, 2003) or securities exchangeable for or convertible into
Common Shares to any holders of securities of any of its subsidiaries
or issues Common Shares on any conversion of the CIBC Debenture (each
such grant or issue being an "ADJUSTING TRANSACTION"), the number of
Underlying Shares shall be adjusted effective immediately after the
time of each such Adjusting Transaction (each such time being A "TIME
OF GRANT") to a number determined by adding to the number of
Underlying Shares immediately prior to the Time of Grant a number of
Underlying Shares equal to (A) the product of (x) the number (the
"AGGREGATE NUMBER") that is the aggregate of (aa) the number of
Underlying Shares in effect immediately prior to the Time of Grant and
(bb) the aggregate number of Common Shares in respect of which
subscription forms and the requisite consideration have been delivered
to the Corporation pursuant to the Warrants prior to the Time of
Grant, and (y) a fraction:
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(A) the numerator of which shall be the number of Common Shares
outstanding after the Time of Grant if the Corporation
issued Common Shares, or the number of Common Shares that
would be outstanding if the convertible or exchangeable
securities granted or issued (or agreed to be granted or
issued) at the Time of Grant were immediately converted into
or exchanged for Common Shares; and
(B) the denominator of which shall be the number of Common
Shares outstanding immediately prior to the Time of Grant,
minus (B) the Aggregate Number.
Any Common Shares owned by or held for the account of the Corporation
or any subsidiary of the Corporation shall be deemed not to be
outstanding for the purpose of this computation.
(f) The adjustments provided for in this section 10 are cumulative and
shall be made successively whenever an event referred to therein shall
occur, subject to the following:
(i) No adjustment shall be required to be made in the number of
Common Shares issuable upon conversion of the Series Four
Preferred Share unless it would result in a change of at least
one share, provided, however, that any adjustments which, except
for the provisions of this paragraph (i) would otherwise have
been required to be made, shall be carried forward and taken into
account in any subsequent adjustment.
(ii) No adjustment in the number of Common Shares issuable upon the
conversion of the Series Four Preferred Share shall be made in
respect of any event described in section 10 (other than the
subdivision or consolidation of Common Shares as part of a Common
Share Reorganization), if the holder of the Series Four Preferred
Share is entitled to participate in that event on the same terms
as it had converted the Series Four Preferred Share prior to or
on the effective date or record date of the event.
(iii) The issue from time to time of Common Shares as dividends paid
in the ordinary course of Common Shares to holders of Common
Shares who exercise an option or election to receive
substantially equivalent dividends in Common Shares in lieu of
receiving a cash dividend, shall not to be a Common Share
Reorganization.
(iv) If there is a dispute with respect to adjustments provided for in
section 10, that dispute shall be conclusively determined by the
Corporation's auditors, or if they are unable or unwilling to
act, by such other firm of independent chartered accountants as
may be approved by the audit committee of the board of directors
of the Corporation (or, if no audit
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committee is extant, the board of directors of the Corporation)
and the holder of the Series Four Preferred Share (such approvals
not to be withheld unreasonably) and the resulting determination
shall be binding upon the Corporation, the holder of the Series
Four Preferred Share and all other shareholders of the
Corporation.
(v) If, before the Conversion date, the Corporation takes any action
affecting the Common Shares that is not contemplated in section
10 and that in the opinion of the board of directors of the
Corporation or the holder of the Series Four Preferred Share
would aversely affect the rights of the holder of the Series Four
Preferred Share, the number of Common Shares issuable upon
conversion shall be adjusted as the board of directors, acting in
good faith determines after consultation with an investment
dealer or investment bank approved by the audit committee of the
board of directors of the Corporation (or, if no audit committee
is extant, the board of directors of the Corporation) and the
holder of the Series Four Preferred Share (such approvals not to
be withheld unreasonably), but subject in all cases to any
necessary regulatory approvals or consents.
(vi) If the Corporation sets a record date to determine the holders of
the Common Shares for the purpose of entitling them to receive
any dividend or distribution or any subscription or purchase
rights and shall, after that date and before the distribution to
those shareholders of any such dividend, distribution or
subscription or purchase rights, legally abandon its plan to pay
or deliver that dividend, distribution or subscription or
purchase rights, no adjustment in the number of Common Shares
issuable upon conversion of the Series Four Preferred Share shall
be required by reason of the setting of such record date.
(vii) In the absence of a resolution of the directors fixing a record
date for a Special Distribution, the Corporation shall be deemed
to have fixed as the record date for that Special Distribution
the date on which it is effected.
At least twenty-one days (or such shorter period as may be agreed in
writing by the holder of the Series Four Preferred Share) prior to the
effective date or record date, as the case may be, of any event that
requires or might require adjustment in any of the rights of the
Series Four Preferred Share (including an adjustment of the number of
Underlying Shares), the Corporation shall give notice to the holder of
the Series Four Preferred Share of the particulars of that event and,
if determinable, the required adjustment.
11. APPROVAL RIGHTS
So long as the Series Four Preferred Share is outstanding, unless otherwise
approved by the holder of the Series Four Preferred Share, voting
separately and as a series, the Corporation shall not, and shall not permit
any of its subsidiaries to:
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(a) create any class or series of securities of the Corporation
(including, without limitation, equity, debt or hybrid securities);
(b) create, incur, assume, or otherwise become directly or indirectly
liable upon or in respect of, or suffer to exist, any indebtedness for
borrowed money, other than in the ordinary course of business;
(c) redeem, repurchase, purchase for cancellation or otherwise acquire for
value any of its outstanding securities;
(d) declare or pay dividends or declare or make other distributions on its
outstanding securities; or
(e) amend the Articles of the Corporation,
provided that no such approval shall be required for the Corporation
to comply with its legal obligations under the terms (as they exist on
the date of issue of the Series Four Preferred Share and as modified
by the CIBC Consent Agreement dated March 21, 2003) of the Series One
Preferred Share and the CIBC Debenture, or for the holder of the
Series One Preferred Share or the CIBC Debenture to exercise their
rights thereunder.
12. ELECTION
The Corporation shall elect, in the manner and within the time provided
under section 191.2 of the Income Tax Act (Canada) or any successor or
replacement provision of similar effect, to pay tax at a rate such that no
holder of a Series Four Preferred Share shall be required to pay tax on
dividends received, or deemed to be received, on the Series Four Preferred
Share under section 187.2 of Part IV.I of such act or any successor or
replacement provision of similar effect.
SERIES FIVE PREFERRED SHARE
The Series Five Preferred Share shall have the following rights, privileges,
restrictions and conditions:
1. DEFINITIONS
For the purposes of these Series Five Preferred Share provisions:
(a) "ACT" shall mean the Canada Business Corporations Act;
(b) "AFFILIATE" shall be construed such that one person shall be deemed to
be an affiliate of another person if one of them is controlled
(directly or indirectly) by the other or both are controlled (directly
or indirectly) by the same person or group of persons, and for this
purpose "CONTROL" shall be construed such that any combination of a
person, its affiliates and persons acting jointly or in concert with
either of them (the "CONTROL GROUP") shall control another person if
the Control Group is the beneficial owner of securities of such person
sufficient to elect a majority of the board of directors (or, if the
person is not a corporation, any comparable body) of such person;
(c) "ASSOCIATE" shall have the meaning attributed to it for the purposes
of the Securities Act (Ontario);
(d) "BUSINESS DAY" shall mean every day except a Saturday, Sunday or a day
that is a statutory holiday in Toronto, Ontario or a federal holiday
in the United States of America;
(e) a "CHANGE OF CONTROL" shall be deemed to have occurred if, before the
expiry of the Warrants any combination of a person (other than the
holder of the Series Five Preferred Share), its affiliates or
associates and persons acting jointly or in concert with any of them
becomes the beneficial owner of shares of the Corporation or any
successor to the Corporation sufficient to elect a majority of the
board of directors;
(f) "LIQUIDATION ENTITLEMENT" shall mean an amount equal to the
subscription price of the Series Four Preferred Share plus a return on
that subscription price equal to 7% per annum, calculated on a daily
basis from the date of issue of the Series Four Preferred Share to the
date of the Liquidation Event;
(g) "LIQUIDATION EVENT" shall mean the liquidation, dissolution or
winding-up of the Corporation or other distribution of assets of the
Corporation among its shareholders for the purpose of winding-up its
affairs, whether voluntary or involuntary;
(h) "PERSON" shall mean an individual, corporation, partnership, trust,
unincorporated organization, limited liability company, government or
any agency or political
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subdivision thereof or any other entity that may be treated as a
person under applicable law;
(i) "REDEMPTION AMOUNT" shall mean (a) in the event of redemption on March
31, 2013, an amount equal to the subscription price of the Series Four
Preferred Share plus a return on that subscription price equal to 7%
per annum, calculated on a daily basis from the date of issue of the
Series Four Preferred Share to the date on which the Series Five
Preferred Share is redeemed in accordance with section 4, and (b) in
the event of redemption upon a Change of Control, an amount equal to
125% of the amount specified in (a);
(j) "SERIES ONE PREFERRED SHARE" shall mean the Series One Preferred Share
in the capital of the Corporation;
(k) "SERIES THREE PREFERRED SHARE" shall mean the Series 3 Preferred Share
in the capital of the Corporation;
(1) "SERIES FOUR PREFERRED SHARE" shall mean the Series Four Preferred
Share in the capital of the Corporation; and
(m) "WARRANTS" shall mean the warrants represented by the common share
warrant certificate issued by the Corporation pursuant to the
subscription agreement between the Corporation and USA Interactive
dated March 21, 2003.
2. RANKING
The Series Five Preferred Share shall in all respects (including the
distribution of assets upon a Liquidation Event) rank equally with the
Series One Preferred Shares and the Series Three Preferred Share. If the
Corporation would be unable to make any payment or distribution in full in
accordance with the terms of the Series One Preferred Shares, Series Three
Preferred Share and the Series Five Preferred Share, that payment or
distribution shall be made on a pro rata basis, calculated by reference the
amounts that would be received by the holders of the Series One Preferred
Shares, Series Three Preferred Share and the Series Five Preferred Share
assuming the payment or distribution of the full amount to be paid or
distributed in respect of those shares in accordance with their terms and
without any such pro ration.
3. LIQUIDATION, DISSOLUTION OR WINDING-UP
In the event of a Liquidation Event, the holder of the Series Five
Preferred Share shall be entitled to receive from the assets of the
Corporation an amount equal to the Liquidation Entitlement.
4. REDEMPTION
The Corporation shall, subject to subsection 32(2) of the Act, redeem the
Series Five Preferred Share upon the earlier of March 31, 2013 and the
third business
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day following a Change of Control. If the Corporation is precluded from
redeeming the Series Five Preferred Share on that date as a result of
subsection 32(2) of the Act, it shall redeem the Series Five Preferred
Share as soon as it ceases to be precluded from doing so pursuant to that
subsection. At least three business days before the date specified for
redemption (the "REDEMPTION DATE") of the Series Five Preferred Share, the
Corporation shall deliver to the holder a notice in writing (the
"REDEMPTION NOTICE") of the intention of the Corporation to redeem the
Series Five Preferred Share. The Redemption Notice shall set out the
Redemption Amount, the details of its calculation and the Redemption Date.
On the Redemption Date, the Corporation shall deliver to the holder of the
Series Five Preferred Share at its address on the register maintained by
the Corporation or such other address as the holder of the Series Five
Preferred Share may have notified the Corporation in writing a certified
cheque or bank draft payable to the holder in an amount equal to the
Redemption Amount. On and after the Redemption Date, the Series Five
Preferred Share shall cease to be entitled to dividends or any other
participation in the assets of the Corporation and the holder shall cease
to be a shareholder in respect of the Series Five Preferred Share and shall
not be entitled to exercise any of the rights of shareholders in respect of
the Series Five Preferred Share, unless the Redemption Amount is not paid
as provided in this section, in which case the rights of the holder shall
remain unaffected. The holder of the Series Five Preferred Share may, in
its sole discretion, waive or consent to the abridgment of the Redemption
Notice
5. VOTING RIGHTS
The holder of the Series Five Preferred Share shall be entitled to vote
separately as a series and as part of a class of shares to the fullest
extent permitted under applicable law.
6. ELECTION
The Corporation shall elect, in the manner and within the time provided
under section 191.2 of the Income Tax Act (Canada) or any successor or
replacement provision of similar effect, to pay tax at a rate such that no
holder of a Series Five Preferred Share shall be required to pay tax on
dividends received, or deemed to be received, on the Series Five Preferred
Share under section 187.2 of Part IV.I of such act or any successor or
replacement provision of similar effect.