EXHIBIT 4.1
4.00 CLASS A SUBORDINATE VOTING SHARES
4.01 The holders of the Class A Subordinate Voting Shares shall be entitled
to receive notice of, to attend and speak at and to vote at, any meeting of
the shareholders of the Corporation, other than a meeting of the holders of
another class as such or the holders of series of shares of another class
as such, and at such meeting shall have one (1) vote for each Class A
Subordinate Voting Share held.
4.02 Subject to any provisions of the Act and to applicable securities laws
and the by-laws, regulations or policies of any stock exchange upon which
the Class A Subordinate Voting Shares may then be listed, all or any part
of the Class A Subordinate Voting Shares which are then outstanding shall
be purchaseable for cancellation by the Corporation at any time, in the
open market, by private contract or otherwise, at the lowest price at
which, in the opinion of the directors, such shares are obtainable.
4.03 The Class A Subordinate Voting Shares shall not be redeemable by the
Corporation.
4.04 If the Act would in effect require in the absence of this clause 4.04
that an amendment to the Articles of the Corporation to delete or vary any
preference, right, condition, restriction, limitation or prohibition
attaching to any of the Class A Subordinate Voting Shares, or to create
special shares ranking in priority to or on a parity with the Class A
Subordinate Voting Shares, be confirmed in writing by the holders of 100%
or any lesser percentage of the then outstanding Class A Subordinate Voting
Shares, then in lieu of such confirmation in writing such confirmation may
be given by at least two-thirds of the votes cast at a meeting of the
holders of the Class A Subordinate Voting Shares duly called for that
purpose, and at such meeting each holder of Class A Subordinate Voting
Shares shall be entitled to one vote for each Class A Subordinate Voting
Share held.
4.05 The holders of the Class A Subordinate Voting Shares shall not have
any right to vote separately upon any proposal to amend the Articles of the
Corporation to:
(a) increase any maximum number of authorized shares of and class or
series having rights or privileges equal or superior to the Class A
Subordinate Voting Shares; or
(b) create a new class of shares equal or superior to the Class A
Subordinate Voting Shares;
except to such extent as may from time to time be required by the Act.
4.06 (a) For the purposes of this clause 4.06:
(i) "affiliate" has the meaning assigned by the Securities Act
(Ontario) as amended from time to time;
(ii) "associate" has the meaning assigned by the Securities Act
(Ontario) as amended from time to time;
(iii) "Conversion Period" means the period of time commencing on
the eighth day after the Offer Date and terminating on the
Expiry Date;
(iv) "Converted Shares" means Class B Shares resulting from the
conversion of Class A Subordinate Voting Shares into Class
B Shares pursuant to paragraph (2) of this clause 4.06;
(v) "Exclusionary Offer" means an offer to purchase Class B
Shares that:
(a) must, by reason of applicable securities legislation
or the requirements of a stock exchange on which the
Class B Shares are listed, be made to all or
substantially all holders of Class B Shares who are in
a province of Canada to which the requirement applies;
and
(b) is not made concurrently with an offer to purchase
Class A Subordinate Voting Shares that is identical to
the offer to purchase Class B Shares in terms of price
per share and percentage of outstanding shares to be
taken up exclusive of shares owned immediately prior
to the offer by the Offeror, and in all other material
respects, and that has no condition attached other
than the right not to take up and pay for shares
tendered if no shares are tendered pursuant to the
offer for Class B Shares,
and for the purposes of this definition, if an offer to
purchase Class B Shares is not an Exclusionary Offer as
defined above but would be an Exclusionary Offer if it were
not for subclause (b), the varying of any term of such
offer shall be deemed to constitute the making of a new
offer unless an identical variation concurrently is made to
the corresponding offer to purchase Class A Subordinate
Voting Shares;
(vi) "Expiry Date" means the last date upon which holders of
Class B Shares may accept an Exclusionary Offer;
(vii) "Offer Date" means the date on which an Exclusionary Offer
is made;
(viii) "Offeror" means a person or company that makes an offer to
purchase Class B Shares (the "bidder"), and includes any
associate or affiliate of the bidder or any person or
company that is disclosed in the offering document to be
acting jointly or in concert with the bidder; and
(ix) "transfer agent" means the transfer agent for the time
being of the Class B Shares.
(b) Subject to subparagraph (e) of this clause 4.06, if an Exclusionary
Offer is made, each outstanding Class A Subordinate Voting Share shall be
convertible into one Class B Share at the option of the holder during the
Conversion Period. The conversion right may be exercised by notice in
writing given to the transfer agent accompanied by the share certificate or
certificates representing the Class A Subordinate Voting Shares which the
holder desires to convert, and such notice shall be executed by such
holder, or by his attorney duly authorized in writing, and shall specify
the number of Class A Subordinate Voting Shares which the holder desires to
have converted. The holder shall pay any governmental or other tax imposed
on or in respect of such conversion. Upon receipt by the transfer agent of
such notice and share certificate or certificates, the Corporation shall
issue a share certificate representing fully paid Class B Shares as above
prescribed and in accordance with paragraph (d) of this clause 4.06. If
less than all of the Class A Subordinate Voting Shares represented by any
share certificate are to be converted, the holder shall be entitled to
receive a new share certificate representing in the aggregate the number of
Class A Subordinate Voting Shares represented by the original share
certificate which are not to be converted.
(c) An election by a holder of Class A Subordinate Voting Shares to
exercise the conversion right provided for in paragraph (b) of this clause
4.06 shall be deemed to also constitute an irrevocable election by such
holder to deposit the Converted Shares pursuant to the Exclusionary Offer
(subject to such holder's right to subsequently withdraw the shares from
the offer) and to exercise the right to convert into Class A Subordinate
Voting Shares all Converted Shares in respect of which such holder
exercises his right of withdrawal from the Exclusionary Offer or which are
not otherwise ultimately taken up under the Exclusionary Offer. Any
conversion into Class A Subordinate Voting Shares, pursuant to such deemed
election, of Converted Shares in respect of which the holder exercises his
right of withdrawal from the Exclusionary Offer shall become effective at
the time such right of withdrawal is exercised. If the right of withdrawal
is not exercised, any conversion into Class A Subordinate Voting Shares
pursuant to such deemed election shall become effective,
(i) in respect of an Exclusionary Offer which is completed,
immediately following the time by which the Offeror is
required by applicable securities legislation to take up
and pay for all shares to be acquired by the Offeror under
the Exclusionary Offer; and
(ii) in respect of an Exclusionary Offer which is abandoned or
withdrawn, at the time at which the Exclusionary Offer is
abandoned or withdrawn.
(d) No share certificates representing Converted Shares shall be delivered
to the holders of the shares before such shares are deposited pursuant to
the Exclusionary Offer; the transfer agent, on behalf of the holders of the
Converted Shares, shall deposit pursuant to the Exclusionary Offer a
certificate or certificates representing the Converted Shares. Upon
completion of the offer, the transfer agent shall deliver to the holders
entitled thereto all consideration paid by the Offeror pursuant to the
offer. If Converted Shares are converted into Class A Subordinate Voting
Shares pursuant to paragraph (c) of this clause 4.06, the transfer agent
shall deliver to the holders entitled thereto share certificates
representing the Class A Subordinate Voting Shares resulting from the
conversion. The Corporation shall make all arrangements with the transfer
agent necessary or desirable to give effect to this subparagraph.
(e) Subject to paragraph (f) of this clause 4.06, the conversion right
provided for in sub-paragraph (b) of this clause 4.06 shall not come into
effect if:
(i) prior to the time at which the Exclusionary Offer is made
there is delivered to the transfer agent and to the
Secretary of the Corporation a certificate or certificates
signed by or on behalf of one or more shareholders of the
Corporation owning in the aggregate, as at the time the
Exclusionary Offer is made, more than 50% of the then
outstanding Class B Shares, exclusive of shares owned
immediately prior to the Exclusionary Offer by the Offeror,
which certificate or certificates shall confirm, in the
case of each such shareholder, that such shareholder shall
not:
(a) accept any Exclusionary Offer without giving the
transfer agent and the Secretary of the Corporation
written notice of such acceptance or intended
acceptance at least seven days prior to the Expiry
Date;
(b) make any Exclusionary Offer;
(c) act jointly or in concert with any person or company
that makes any Exclusionary Offer; or
(d) transfer any Class B Shares, directly or indirectly,
during the time at which any Exclusionary Offer is
outstanding without giving the transfer agent and the
Secretary of the Corporation written notice of such
transfer or intended transfer at least seven days
prior to the Expiry Date, which notice shall state, if
known to the transferor, the names of the transferees
and the number of Class B Shares transferred or to be
transferred to each transferee; or
(ii) within seven days after the Offer Date there is delivered
to the transfer agent and to the Secretary of the
Corporation a certificate or certificates signed by or on
behalf of one or more shareholders of the Corporation
owning in the aggregate more than 50% of the then
outstanding Class B Shares, exclusive of shares owned
immediately prior to the Exclusionary Offer by the Offeror,
which certificate or certificates shall confirm, in the
case of each such shareholder:
(a) the number of Class B Shares owned by the shareholder;
(b) that such shareholder is not making the offer and is
not an associate or affiliate of, or acting jointly or
in concert with, the person or company making the
offer;
(c) that such shareholder shall not accept the offer,
including any varied form of the offer, without giving
the transfer agent and the Secretary of the
Corporation written notice of such acceptance or
intended acceptance at least seven days prior to the
Expiry Date; and
(d) that such shareholder shall not transfer any Class B
Shares, directly or indirectly, prior to the Expiry
Date without giving the transfer agent and the
Secretary of the Corporation written notice of such
transfer or intended transfer at least seven days
prior to the Expiry Date, which notice shall state, if
known to the transferor, the names of the transferees
and the number of Class B Shares transferred or to be
transferred to each transferee if this information is
known to the transferor.
(f) If a notice referred to in sub-clause e (i) (a), e (i) (d), (e) (ii)
(c) or e (ii) (d) of this clause 4.06 is given and the conversion right
provided for in paragraph (b) of this clause 4.06 has not come into effect,
the transfer agent shall either forthwith upon receipt of the notice or
forthwith after the seventh day following the Offer Date, whichever is
later, make a determination as to whether there are subsisting
certifications that comply with either sub-clause e (i) or e (ii) of this
clause 4.06 from shareholders of the Corporation who own in the aggregate
more than 50% of the then outstanding Class B Shares, exclusive of shares
owned immediately prior to the offer by the Offeror. For the purposes of
this determination the transaction that is the subject of such notice shall
be deemed to have taken place at the time of the determination, and the
shares that are the subject of such notice shall be deemed to have been
transferred to a person or company from whom the transfer agent had not
received such a certification unless the transfer agent is otherwise
advised either by such notice or by the transferee in writing. If the
transfer agent determines that there are not such subsisting
certifications, paragraph (e) of this clause 4.06 shall cease to apply and
the conversion right provided for in paragraph (b) of this clause 4.06
shall be in effect for the remainder of the Conversion Period.
(g) As soon as reasonably possible after the seventh day after the Offer
Date, the Corporation shall send to each holder of Class A Subordinate
Voting Shares a notice advising the holders as to whether they are entitled
to convert their Class A Subordinate Voting Shares into Class B Shares and
the reasons therefor. If such notice disclosed that they are not so
entitled but if subsequently determined that they are so entitled by virtue
of paragraph (f) of this clause 4.06 or otherwise, the Corporation shall
forthwith send another notice to them advising them of that fact and the
reasons therefor.
(h) If a notice referred to in paragraph (g) of this clause 4.06 discloses
that the conversion right has come into effect, the notice shall:
(i) include a description of the procedure to be followed to
effect the conversion and to have the Converted Shares
tendered under the offer;
(ii) include the information set out in paragraph (c) of this
clause 4.06; and
(iii) be accompanied by a copy of the offer and all other
material sent to holders of Class B Shares in respect of
the offer, and as soon as reasonably possible after any
additional material, including a notice of variation, is
sent to the holders of Class B Shares in respect of the
offer, the Corporation shall send a copy of such additional
material to each holder of Class A Subordinate Voting
Shares.
(i) prior to or forthwith after sending any notice referred to in paragraph
(g) of this clause 4.06, the Corporation shall cause a press release to be
issued to a Canadian national news ticker service, describing the contents
of the notice.
6.00 DIVIDENDS AND DISTRIBUTION RIGHTS OF THE CLASS
A SUBORDINATE VOTING SHARES AND CLASS B SHARES
6.01 (a) All dividends which are declared in any year in the discretion
of the directors on all of the Class A Subordinate Voting Shares
shall be declared and paid at the same time in an equal or, in the
discretion of the directors, a greater amount per share than those
dividends declared in respect of all of the Class B Shares at the
time outstanding. All dividends which are declared in any year, in
the discretion of the directors, on all of the Class B Shares shall
be declared and paid at the same time in an equal or, in the
discretion of the directors, a lesser amount per share than those
declared in respect of all of the Class A Subordinate Voting Shares
outstanding.
(b) If any stock dividend is declared on Class A Subordinate Voting
Shares, such dividend may be paid in Class A Subordinate Voting
Shares or in Class B Shares, or partly in one class and partly in
the other, if stock dividends in equal or, in the discretion of the
directors, lesser amounts per share are declared at the same time
on the Class B Shares and are payable in either Class A Subordinate
Voting Shares or in Class B Shares, or partly in one class and
partly in the other, regardless of which class the stock dividend
was paid on Class A Subordinate Voting Shares. If any stock
dividend is declared on Class B Shares, such dividend may be paid
in Class A Subordinate Voting Shares or in Class B Shares, or
partly in one class and partly in the other, if stock dividends in
equal or, in the discretion of the directors, greater amounts per
share are paid at the same time on the Class A Subordinate Voting
Shares and are payable in either Class A Subordinate Voting Shares
or in Class B Shares, or partly in one class and partly in the
other, regardless of which class the stock dividend was paid on
Class B Shares.
(c) All distributions other than dividends (including, without
limiting the generality of the foregoing, any distribution of
rights, warrants or options to purchase securities of the
Corporation), and all such distributions which may at any time or
from time to time be authorized or made:
(i) in respect of the Class A Subordinate Voting Shares, shall
be authorized and made at the same time in equal, or in the
discretion of the directors, greater quantities or amounts
per share than on all Class B Shares then outstanding
without preference or distinction; and
(ii) in respect of the Class B Shares, shall be authorized and
made at the same time in equal or in the discretion of the
directors, lesser quantities or amounts per share than on
all Class A Subordinate Voting Shares then outstanding
without preference or distinction.