Exhibit 4.5
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1A
Schedule
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The Articles of the Corporation are amended as follows:
1. to increase the authorized capital of the Corporation by creating an
unlimited number of Exchangeable Shares without nominal or par value.
so that after giving effect to the amendments set out in this paragraph, the
classes and any maximum number of shares that the Corporation is authorized to
issue are:
(a) an unlimited number of Common Shares without nominal or par value; and
(b) an unlimited number of Exchangeable Shares without nominal or par
value.
2. to delete in their entirety the rights, privileges, restrictions and
conditions set out in the Articles of the Corporation and substituting
therefor the rights, privileges, restrictions and conditions attaching to
the Common Shares and Exchangeable Shares as follows:
A. The rights, privileges, restrictions and conditions attaching to the Common
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Shares are as follows:
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(i) Voting
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The holders of Common Shares shall be entitled to notice of, to attend and
to one vote per share held at any meeting of the shareholders of the
Corporation (other than meetings of a class or series of shares of the
Corporation other than the Common Shares as such).
(ii) Dividends
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The holders of Common Shares shall be entitled to receive dividends as and
when declared by Board of Directors of the Corporation on the Common Shares
as a class, subject to prior satisfaction of all preferential rights to
dividends attached to all shares of other classes of shares of the
Corporation ranking in priority to the Common Shares in respect of
dividends; and
(iii) Remaining Property on Dissolution
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The holders of Common Shares shall be entitled in the event of any
liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary, or any other distribution of the assets of the
Corporation among its shareholders for the purpose of winding-up its
affairs, and subject to prior satisfaction of all preferential rights to
return of capital on dissolution attached to all shares of other classes of
shares of the Corporation ranking in priority to the Common Shares in
respect of return of capital on dissolution, to share rateably, together
with the holders of the shares of any other class of shares of the
Corporation ranking equally with the Common Shares in respect of return of
capital on dissolution, in such assets of the Corporation as are available
for distribution.
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B. The rights, privileges, restrictions and conditions attaching to the
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Exchangeable Shares (the "Exchangeable Share Provisions") are as follows:
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ARTICLE 1
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INTERPRETATION
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1.1 For the purposes of these provisions:
(a) "Act" means the Business Corporations Act (Ontario), as amended;
(b) "Affiliate" has the meaning ascribed thereto in the Securities Act
(Ontario);
(c) "Board of Directors" means the Board of Directors of the Corporation;
(d) "Business Day" means any day on which commercial banks are generally
open for business in Toronto, Ontario, other than a Saturday, a Sunday
or a day observed as a holiday in Toronto, Ontario under the laws of
the Province of Ontario or the federal laws of Canada;
(e) "Common Shares" means the common shares in the capital of the
Corporation;
(f) "Corporation" means MG Holdings Inc., a corporation incorporated under
the Act;
(g) "Current Market Price" means, in respect of a Monaco Common Share on
any date, (i) if the Monaco Common Shares are listed on a stock
exchange or automated quotation system, the quotient obtained by
dividing (a) the aggregate of the Daily Value of Trades for each day
during the period of 5 consecutive trading days ending not more than
three trading days before such date; by (b) the aggregate volume of
Monaco Common Shares used to calculate such Daily Value of Trades; and
(ii) if the Monaco Common Shares are not listed on a stock exchange or
automated quotation system, the fair market value of such shares as
determined by the board of directors of Monaco;
(h) "Daily Value of Trades" means, in respect of the Monaco Common Shares
on any trading day, the product of (a) the volume weighted average
price of Monaco Common Shares on such stock exchange or automated
quotation system on which the Monaco Ordinary Shares are listed or
quoted, as the case may be, as may be selected by the board of
directors of Monaco for such purpose on such date, as determined by
Bloomberg L.P. or other reputable, third party information source
selected by the board of directors of Monaco; and (b) the aggregate
volume of Monaco Common Shares traded on such day on such stock
exchange or automated quotation system and used to calculate such
volume weighted average price; provided that any such selections by
the board of directors of Monaco shall be conclusive and binding;
(i) "Dividend Amount" means an amount equal to, and in full satisfaction
of, all declared and unpaid dividends on an Exchangeable Share held by
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a holder on any dividend record date which occurred prior to the date
of purchase of such share by Monaco from such Holder;
(j) "Effective Date" means July 8, 2004 or such other date as may be
designated by the Board of Directors;
(k) "Exchange Agreement" means the agreement made among Monaco, the
Corporation and SVFI and dated as of the Effective Date;
(l) "Exchangeable Shares" mean the non-voting exchangeable shares in the
capital of the Corporation, having the rights, privileges,
restrictions and conditions set forth herein;
(m) "Holder" means, when used with reference to the Exchangeable Shares,
the holders of Exchangeable Shares shown from time to time in the
register maintained by or on behalf of the Corporation in respect of
the Exchangeable Shares;
(n) "Liquidation Amount" has the meaning ascribed thereto in Section 5.1
of these Exchangeable Share Provisions;
(o) "Liquidation Call Purchase Price" has the meaning ascribed thereto in
Section 6.1;
(p) "Liquidation Call Right" has the meaning ascribed thereto in Section
6.1;
(q) "Liquidation Date" has the meaning ascribed thereto in Section 8.1 of
these Exchangeable Share Provisions;
(r) "Monaco" means Monaco Group Inc., a corporation established under the
laws of the State of Delaware;
(s) "Monaco Call Notice" has the meaning ascribed thereto in Section 8.3
of these Exchangeable Share Provisions;
(t) "Monaco Common Shares" means the shares of common stock of Monaco as
constituted on the Effective Date;
(u) "Monaco Dividend Declaration Date" means the date on which the board
of directors of Monaco declares any dividend on the Monaco Common
Shares;
(v) "Monaco Shareholders" means holders of Monaco Common Shares;
(w) "Optional Redemption" has the meaning ascribed thereto in Section 4.1
of these Exchangeable Share Provisions;
(x) "Redemption Call Purchase Price" has the meaning ascribed thereto in
Section 7.1(a);
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(y) "Redemption Call Right" has the meaning ascribed thereto in Section
7.1(a);
(z) "Redemption Date" means any date selected by the Corporation as a date
for the completion of an Optional Redemption of Exchangeable Shares as
set out in Section 4.2;
(aa) "Redemption Price" means US$1.25 per Exchangeable Share;
(bb) "Retracted Shares" has the meaning ascribed thereto in Section 8.1(a)
of these Exchangeable Share Provisions;
(cc) "Retraction Call Right" has the meaning ascribed thereto in Section
8.1(c) of these Exchangeable Share Provisions;
(dd) "Retraction Date" has the meaning ascribed thereto in Section 8.1(b)
of these Exchangeable Share Provisions;
(ee) "Retraction Price" has the meaning ascribed thereto in Section 8.1of
these Exchangeable Share Provisions;
(ff) "Retraction Request" has the meaning ascribed thereto in Section 8.1
of these Exchangeable Share Provisions;
(gg) "Person" includes any individual, firm, partnership, joint venture,
venture capital fund, limited liability company, unlimited liability
company, association, trust, SVFI, executor, administrator, legal
personal representative, estate, group, body corporate, corporation,
unincorporated association or organization, syndicate or other entity,
whether or not having legal status;
(hh) "SVFI" means Sweet Valley Foods Inc., a corporation incorporated
pursuant to the laws of the Province of Ontario; and
(ii) "United States" or "U.S." means the United States of America, its
territories and possessions, any State of the United States and the
District of Columbia.
ARTICLE 2
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AUTHORIZED NUMBER OF EXCHANGEABLE SHARES AND RANKING OF
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EXCHANGEABLE SHARES
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2.1 The Corporation is authorized to issue an unlimited number of Exchangeable
Shares without nominal or par value.
2.2 The Exchangeable Shares shall, subject to the following, be entitled to a
preference over the Common Shares and any other shares ranking junior to
the Exchangeable Shares with respect to the payment of dividends and the
distribution of assets in the event of the liquidation, dissolution or
winding-up of the Corporation, whether voluntary or involuntary, or any
other distribution of the assets of the Corporation among its shareholders
for the purpose of winding up its affairs; provided that notwithstanding
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such ranking the Corporation shall not be restricted in any way from
repaying indebtedness of the Corporation to Monaco from time to time.
ARTICLE 3
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DIVIDENDS
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3.1 A holder of an Exchangeable Share shall be entitled to receive and the
Board of Directors shall, subject to applicable law, on each Monaco
Dividend Declaration Date, declare a dividend on each Exchangeable Share:
(a) in the case of a cash dividend declared on the Monaco Common Shares,
in an amount in cash for each Exchangeable Share equal to the Canadian
Dollar equivalent of the cash dividend declared on each Monaco Common
Share on the Monaco Dividend Declaration Date;
(b) in the case of a stock dividend declared on the Monaco Common Shares
to be paid in Monaco Common Shares, by the issue or transfer by the
Corporation of such number of Exchangeable Shares for each
Exchangeable Share as is equal to the number of Monaco Common Shares
to be paid on each Monaco Common Share unless in lieu of such stock
dividend the Corporation elects to effect a corresponding and
contemporaneous and economically equivalent (as determined by the
Board of Directors) subdivision of the outstanding Exchangeable
Shares; or
(c) in the case of a dividend declared on the Monaco Common Shares in
property other than cash or Monaco Common Shares, in such type and
amount of property for each Exchangeable Share as is the same as or
economically equivalent to (to be determined by the Board of Directors
as contemplated by Section 3.4 hereof) the type and amount of property
declared as a dividend on each Monaco Common Share.
Such dividends shall be paid out of money, assets or property of the
Corporation properly applicable to the payment of dividends, or out of
authorized but unissued shares of the Corporation, as applicable. The
Holders of Exchangeable Shares shall not be entitled to any dividends other
than or in excess of the dividends referred to in this Section 3.1.
3.2 Cheques of the Corporation payable at par at any branch of the bankers of
the Corporation shall be issued in respect of any cash dividends
contemplated by Section 3.1(a) hereof and the sending of such a cheque to
each holder of an Exchangeable Share shall satisfy the cash dividend
represented thereby unless the cheque is not paid on presentation.
Certificates registered in the name of the registered holder of
Exchangeable Shares shall be issued or transferred in respect of any stock
dividends contemplated by Section 3.1 (b) hereof and the sending of such a
certificate to each holder of an Exchangeable Share shall satisfy the stock
dividend represented thereby. Such other type and amount of property in
respect of any dividends contemplated by Section 3.1 (c) hereof shall be
issued, distributed or transferred by the Corporation in such manner as it
shall determine and the issuance, distribution or transfer thereof by the
Corporation to each holder of an Exchangeable Share shall satisfy the
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dividend represented thereby. No holder of an Exchangeable Share shall be
entitled to recover by action or other legal process against the
Corporation any dividend that is represented by a cheque that has not been
duly presented to the Corporation's bankers for payment or that otherwise
remains unclaimed for a period of six years from the date on which such
dividend was payable.
3.3 The record date for the determination of the Holders of Exchangeable Shares
entitled to receive payment of, and the payment date for, any dividend
declared on the Exchangeable Shares under Section 3.1 hereof shall be the
same dates as the record date and payment date, respectively, for the
corresponding dividend declared on the Monaco Common Shares. The record
date for the determination of the Holders of Exchangeable Shares entitled
to receive Exchangeable Shares in connection with any subdivision,
redivision or change of the Exchangeable Shares under Section 3.1(b) hereof
and the effective date of such subdivision shall be the same dates as the
record and payment date, respectively, for the corresponding stock dividend
declared on the Monaco Common Shares.
3.4 If on any payment date for any dividends declared on the Exchangeable
Shares under Section 3.1 hereof the dividends are not paid in full on all
of the Exchangeable Shares then outstanding, any such dividends that remain
unpaid shall be paid on a subsequent date or dates determined by the Board
of Directors on which the Corporation shall have sufficient moneys, assets
or property properly applicable to the payment of such dividends.
3.5 The Board of Directors shall determine, in good faith and in its sole
discretion, economic equivalence for the purposes of Section 3.1 hereof,
and each such determination shall be conclusive and binding on the
Corporation and its shareholders. In making each such determination, the
following factors shall, without excluding other factors determined by the
Board of Directors to be relevant, be considered by the Board of Directors:
(a) in the case of any stock dividend or other distribution payable in
Monaco Common Shares, the number of such shares issued in proportion
to the number of Monaco Common Shares previously outstanding;
(b) in the case of the issuance or distribution of any rights, options or
warrants to subscribe for or purchase Monaco Common Shares (or
securities exchangeable for or convertible into or carrying rights to
acquire Monaco Common Shares), the relationship between the exercise
price of each such right, option or warrant and the Current Market
Price; and
(c) in the case of the issuance or distribution of any other form of
property (including without limitation any shares or securities of
Monaco of any class other than Monaco Common Shares, any rights,
options or warrants other than those referred to in Section 3.5(b)
hereof, any evidences of indebtedness of Monaco or any assets of
Monaco), the relationship between the fair market value (as determined
by the Board of Directors acting reasonably) of such property to be
issued or distributed with respect to each outstanding Monaco Common
Share and the Current Market Price of a Monaco Common Share.
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ARTICLE 4
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REDEMPTION OF EXCHANGEABLE SHARES BY THE CORPORATION
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4.1 Subject to applicable law, and the Redemption Call Right, and upon not less
than 30 days prior notice given to the Holders of the Exchangeable Shares,
the Corporation may redeem some or all of the then outstanding Exchangeable
Shares (such redemption being an "Optional Redemption") on any date
selected by the Board of Directors for an Optional Redemption for the
Redemption Price, and payment of the Redemption Price per Exchangeable
Share shall be satisfied in full in all cases by the Corporation delivering
an amount in cash equal to the Redemption Price, in accordance with Section
4.3 of these Exchangeable Share Provisions. In case only part of the then
outstanding Exchangeable Shares are at any time to be redeemed, the
Exchangeable Shares to be redeemed shall be redeemed pro rata, excluding
fractions, from the holdings of all shareholders of Exchangeable Shares.
4.2 In any case of a redemption of Exchangeable Shares under this Article 4,
the Corporation shall, at least 30 days before the applicable Redemption
Date, send or cause to be sent to each holder of Exchangeable Shares a
notice in writing of the redemption by the Corporation of the Exchangeable
Shares held by such holder (a "Redemption Notice").
4.3 On or within five (5) Business Days following the applicable Redemption
Date, the Corporation shall deliver or cause to be delivered to the Holders
of the Exchangeable Shares to be redeemed the Redemption Price for each
such Exchangeable Share upon presentation and surrender of the certificates
representing such Exchangeable Shares, together with such other documents
and instruments as may be required to effect a transfer of Exchangeable
Shares under the Act and the by-laws of the Corporation and such additional
documents and instruments as the Corporation may reasonably require, at the
registered office of the Corporation or at any office as may be specified
by the Corporation in such notice. On and after the applicable Redemption
Date, the Holders of the Exchangeable Shares called for redemption shall
cease to be Holders of such Exchangeable Shares and shall not be entitled
to exercise any of the rights of Holders in respect thereof, other than the
right to receive Redemption Price, unless payment of the total Redemption
Price for such Exchangeable Shares shall not be made upon presentation and
surrender of certificates in accordance with the foregoing provisions, in
which case the rights of the Holders shall remain unaffected until the
total Redemption Price has been paid in the manner hereinbefore provided.
If only part of the Exchangeable Shares represented by any certificate are
to be redeemed, a new certificate for the balance shall be issued at the
expense of the Corporation.
4.4 Notwithstanding the foregoing provisions of Sections 4.1, 4.2 and 4.3,
Holders of Exchangeable Shares shall have until the 10th day immediately
preceding the Redemption Date referenced in a Redemption Notice to elect,
by written notice to the Corporation to exercise their rights to exchange
the Exchangeable Shares for Monaco Common Shares in accordance with the
Exchange Agreement, failing which the Corporation shall proceed to effect
the redemption of the Exchangeable Shares in accordance with Sections 4.1,
4.2 and 4.3.
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ARTICLE 5
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DISTRIBUTION ON LIQUIDATION
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5.1 In the event of the liquidation, dissolution or winding-up of the
Corporation or any other distribution of the assets of the Corporation
among its shareholders for the purpose of winding up its affairs, a holder
of Exchangeable Shares shall be entitled, subject to applicable law, to
receive from the assets of the Corporation in respect of each Exchangeable
Share held by such holder on the effective date (the "Liquidation Date") of
such liquidation, dissolution, winding-up or other distribution, before any
distribution of any part of the assets of the Corporation among the holders
of the Common Shares or any other shares ranking junior to the Exchangeable
Shares, an amount per share (the "Liquidation Amount") equal to US$1.25,
which shall be satisfied in full by the Corporation delivering or causing
to be delivered to such holder two (2) Monaco Common Shares (the
"Liquidation Amount") plus an amount equal to all declared and unpaid
dividends on each such Exchangeable Share held by such holder on any
dividend record date which occurred prior to the Liquidation.
5.2 On or promptly after the Liquidation Date, the Corporation shall deliver or
cause to be delivered to the Holders of the Exchangeable Shares the
Liquidation Amount for each such Exchangeable Share upon presentation and
surrender of the certificates representing such Exchangeable Shares,
together with such other documents and instruments as may be required to
effect a transfer of Exchangeable Shares under the Act and the by-laws of
the Corporation and such additional documents and instruments as the
Corporation may reasonably require, at the registered office of the
Corporation or at any office as may be specified by the Corporation by
notice to the Holders of the Exchangeable Shares. Payment of the total
Liquidation Amount for such Exchangeable Shares shall be made by delivery
to each holder, at the address of the holder recorded in the register of
Holders of the Exchangeable Shares maintained by or on behalf of the
Corporation or by holding for pick-up by the holder at the registered
office of the Corporation or at any office of the Transfer Agent as may be
specified by the Corporation by notice to the Holders of Exchangeable
Shares, on behalf of the Corporation, of certificates representing Monaco
Common Shares (which securities shall be duly issued as fully paid and
non-assessable and shall be free and clear of any lien, claim or
encumbrance), less any amounts withheld on account of tax required to be
deducted and withheld therefrom. On and after the Liquidation Date, the
Holders of the Exchangeable Shares shall cease to be Holders of such
Exchangeable Shares and shall not be entitled to exercise any of the rights
of Holders in respect thereof, other than: (i) the right to receive their
proportionate part of the total Liquidation Amount, unless payment of the
total Liquidation Amount for such Exchangeable Shares shall not be made
upon presentation and surrender of certificates in accordance with the
foregoing provisions, in which case the rights of the Holders shall remain
unaffected until the total Liquidation Amount has been paid in the manner
hereinbefore provided; and (ii) the right to receive any declared and
unpaid dividends on such Exchangeable Shares.
5.3 After the Corporation has satisfied its obligations to pay the Holders of
the Exchangeable Shares the Liquidation Amount per Exchangeable Share
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pursuant to Section 5.1 of these Exchangeable Share Provisions, such
Holders shall not be entitled to share in any further distribution of the
assets of the Corporation.
ARTICLE 6
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MONACO LIQUIDATION CALL RIGHT
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6.1 Monaco shall have the overriding right (the "Liquidation Call Right"), in
the event of and notwithstanding the proposed liquidation, dissolution or
winding-up of the Corporation or any other distribution of the assets of
the Corporation among its shareholders for the purpose of winding up its
affairs, pursuant to Article 5 of these Exchangeable Share Provisions, to
purchase from all but not less than all of the holders of Exchangeable
Shares (other than any holder of Exchangeable Shares which is Monaco or an
Affiliate of Monaco) on the Liquidation Date all but not less than all of
the Exchangeable Shares held by each such holder on payment by Monaco of an
amount per Exchangeable Share (the "Liquidation Call Purchase Price") equal
to two times the Current Market Price of a Monaco Common Share on the last
Business Day prior to the Liquidation Date, which shall be satisfied in
full by Monaco delivering or causing to be delivered to such holder two
Monaco Common Shares, plus any Dividend Amount. In the event of the
exercise of the Liquidation Call Right by Monaco, each holder shall be
obligated to sell all the Exchangeable Shares held by the holder to Monaco
on the Liquidation Date on payment by Monaco to the holder of the
Liquidation Call Purchase Price for each such share, and the Corporation
shall have no obligation to pay any Liquidation Amount or Dividend Amount
to the holders of such shares so purchased by Monaco.
6.2 To exercise the Liquidation Call Right, Monaco must notify the Corporation
of Monaco's intention to exercise such right at least 45 days before the
Liquidation Date in the case of a voluntary liquidation, dissolution or
winding-up of the Corporation or any other voluntary distribution of the
assets of the Corporation among its shareholders for the purpose of winding
up its affairs, and at least five Business Days before the Liquidation Date
in the case of an involuntary liquidation, dissolution or winding-up of the
Corporation or any other involuntary distribution of the assets of the
Corporation among its shareholders for the purpose of winding up its
affairs. The Corporation will notify the holders of Exchangeable Shares as
to whether or not Monaco has exercised the Liquidation Call Right forthwith
after the expiry of the period during which the same may be exercised by
Monaco. If Monaco exercises the Liquidation Call Right, then on the
Liquidation Date Monaco will purchase and the holders will sell all of the
Exchangeable Shares then outstanding for a price per share equal to the
Liquidation Call Purchase Price.
6.3 For the purposes of completing the purchase of the Exchangeable Shares
pursuant to the Liquidation Call Right, Monaco shall deposit or cause to be
deposited with Corporation on or before the Liquidation Date, certificates
representing the aggregate number of Monaco Common Shares which Monaco
shall deliver or cause to be delivered pursuant to Section 6.1 and a cheque
or cheques of Monaco payable at par at any branch of the bankers of Monaco
representing the aggregate Dividend Amount, if any, in payment of the total
Liquidation Call Purchase Price, in each case less any amounts withheld
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pursuant to section 14.2. Provided that Monaco has complied with the
immediately preceding sentence, on and after the Liquidation Date the
holders of the Exchangeable Shares shall cease to be holders of the
Exchangeable Shares and shall not be entitled to exercise any of the rights
of holders in respect thereof (including, without limitation, any rights
under the Exchange Agreement), other than the right to receive their
proportionate part of the total Liquidation Call Purchase Price, unless
payment of the total Liquidation Call Purchase Price for the Exchangeable
Shares shall not be made upon presentation and surrender of share
certificates in accordance with the following provisions of this Section
6.3, in which case the rights of the holders shall remain unaffected until
the total Liquidation Call Purchase Price has been paid in the manner
herein provided. Upon surrender to the Corporation of a certificate or
certificates representing Exchangeable Shares, together with such other
documents and instruments as may be required to effect a transfer of
Exchangeable Shares under the Act and such additional documents,
instruments and payments as the Corporation may reasonably require, the
holder of such surrendered certificate or certificates shall be entitled to
receive in exchange therefor, and the Corporation on behalf of Monaco shall
transfer to such holder, the Monaco Common Shares to which such holder is
entitled and as soon as reasonably practicable thereafter the Corporation
shall deliver to such holder certificates representing the Monaco Common
Shares to which the holder is entitled and a cheque or cheques of Monaco
payable at par at any branch of the bankers of Monaco representing the
remaining portion, if any, of the total Liquidation Call Purchase Price,
and when received by the Corporation, all dividends and other distributions
with respect to such Monaco Common Shares with a record date after the
Liquidation Date and before the date of the transfer of such Monaco Common
Shares to such holder, less any amounts withheld pursuant to Section 14.2.
If Monaco does not exercise the Liquidation Call Right in the manner
described above, on the Liquidation Date the holders of the Exchangeable
Shares will be entitled to receive in exchange therefor the Liquidation
Amount otherwise payable by the Corporation in connection with the
liquidation, dissolution or winding-up of the Corporation or any
distribution of the assets of the Corporation among its shareholders for
the purpose of winding up its affairs pursuant to Article 5 of these
Exchangeable Share Provisions.
ARTICLE 7
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MONACO REDEMPTION CALL RIGHT
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7.1 In addition to Monaco's rights contained in these Exchangeable Share
Provisions, including, without limitation, the Retraction Call Right,
Monaco shall have the following rights in respect of the Exchangeable
Shares:
(a) Monaco shall have the overriding right (the "Redemption Call Right "),
notwithstanding the proposed redemption of the Exchangeable Shares by
the Corporation pursuant to Article 4, to purchase from all but not
less than all of the holders of Exchangeable Shares (other than any
holder of Exchangeable Shares which is Monaco or an Affiliate of
Monaco) on the Redemption Date all but not less than all of the
Exchangeable Shares held by each such holder which are the subject of
a Redemption Notice on payment by Monaco to each holder of an amount
per Exchangeable Share (the "Redemption Call Purchase Price ") equal
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to two times the Current Market Price of a Monaco Common Share on the
last Business Day prior to the Redemption Date, which shall be
satisfied in full by Monaco delivering or causing to be delivered to
such holder two Monaco Common Shares, plus any Dividend Amount. In the
event of the exercise of the Redemption Call Right by Monaco, each
holder shall be obligated to sell all the Exchangeable Shares held by
the holder to Monaco on the Redemption Date on payment by Monaco to
the holder of the Redemption Call Purchase Price for each such share,
and the Corporation shall have no obligation to redeem, or to pay any
Dividend Amount in respect of, such shares so purchased by Monaco.
(b) To exercise the Redemption Call Right, Monaco must notify the
Corporation of Monaco's intention to exercise such right at least 60
days before the Redemption Date. The Corporation will notify the
holders of the Exchangeable Shares as to whether or not Monaco has
exercised the Redemption Call Right forthwith after the expiry of the
period during which the same may be exercised by Monaco. If Monaco
exercises the Redemption Call Right, on the Redemption Date Monaco
will purchase and the holders will sell all of the Exchangeable Shares
then outstanding for a price per share equal to the Redemption Call
Purchase Price.
(c) For the purposes of completing the purchase of the Exchangeable Shares
pursuant to the Redemption Call Right, Monaco shall deposit or cause
to be deposited with the Corporation on or before the Redemption Date,
certificates representing the aggregate number of Monaco Common Shares
which Monaco shall deliver or cause to be delivered pursuant to
Section 7.1(a) and a cheque or cheques of Monaco payable at par at any
branch of the bankers of Monaco representing the aggregate Dividend
Amount, if any, in payment of the total Redemption Call Purchase
Price, in each case less any amounts withheld pursuant to section
14.2. Provided that Monaco has complied with the immediately preceding
sentence, on and after the Redemption Date the holders of the
Exchangeable Shares shall cease to be holders of the Exchangeable
Shares and shall not be entitled to exercise any of the rights of
holders in respect thereof (including, without limitation, any rights
under the Exchange Agreement), other than the right to receive their
proportionate part of the total Redemption Call Purchase Price, unless
payment of the total Redemption Call Purchase Price for the
Exchangeable Shares shall not be made upon presentation and surrender
of share certificates in accordance with the following provisions of
this Section 7.1(c), in which case the rights of the holders shall
remain unaffected until the total Redemption Call Purchase Price has
been paid in the manner herein provided. Upon surrender to the
Corporation of a certificate or certificates representing Exchangeable
Shares, together with such other documents and instruments as may be
required to effect a transfer of Exchangeable Shares under the Act and
such additional documents, instruments and payments as the Corporation
may reasonably require, the holder of such surrendered certificate or
certificates shall be entitled to receive in exchange therefor, and
the Corporation on behalf of Monaco shall transfer to such holder, the
Monaco Common Shares to which such holder is entitled and as soon as
reasonably practicable thereafter the Corporation shall deliver to
such holder certificates representing the Monaco Common Shares to
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which the holder is entitled and a cheque or cheques of Monaco payable
at par at any branch of the bankers of Monaco representing the
remaining portion, if any, of the total Redemption Call Purchase Price
and when received by the Corporation, all dividends and other
distributions with respect to such Monaco Common Shares with a record
date after the Redemption Date and before the date of the transfer of
such Monaco Common Shares to such holder, less any amounts withheld
pursuant to section 14.2. If Monaco does not exercise the Redemption
Call Right in the manner described above, on the Redemption Date the
holders of the Exchangeable Shares will be entitled to receive in
exchange therefor the redemption price otherwise payable by the
Corporation in connection with the redemption of the Exchangeable
Shares pursuant to Article 4 of these Exchangeable Share Provisions.
ARTICLE 8
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RETRACTION OF EXCHANGEABLE SHARES BY HOLDER
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8.1 A holder of Exchangeable Shares shall be entitled at any time, subject to
the exercise by Monaco of the Retraction Call Right and otherwise upon
compliance with, and subject to, the provisions of this Article 8, to
require the Corporation to redeem any or all of the Exchangeable Shares
registered in the name of such holder for an amount per share equal to two
times the Current Market Price of a Monaco Common Share on the last
Business Day prior to the Retraction Date (the "Retraction Price"), which
shall be satisfied in full by Monaco delivering or causing to be delivered
to such holder two Monaco Common Shares, together with, on the designated
payment date therefor, the full amount of all declared and unpaid dividends
on any such Exchangeable Share held by such holder on any dividend record
date which occurred prior to the Retraction Date. To effect such
redemption, the holder shall present and surrender at the registered office
of the Corporation the certificate or certificates representing the
Exchangeable Shares which the holder desires to have the Corporation
redeem, together with such other documents and instruments as may be
required to effect a transfer of Exchangeable Shares under the Act and such
additional documents, instruments and payments as the Corporation may
reasonably require, and together with a duly executed statement (the
"Retraction Request") in such form as may be acceptable to the Corporation:
(a) specifying that the holder desires to have all or any number specified
therein of the Exchangeable Shares represented by such certificate or
certificates (the "Retracted Shares") redeemed by the Corporation;
(b) stating the Business Day on which the holder desires to have the
Corporation redeem the Retracted Shares (the "Retraction Date"),
provided that the Retraction Date shall be not less than 10 Business
Days nor more than 15 Business Days after the date on which the
Retraction Request is received by the Corporation and further provided
that, in the event that no such Business Day is specified by the
holder in the Retraction Request, the Retraction Date shall be deemed
to be the 15th Business Day after the date on which the Retraction
Request is received by the Corporation and subject also to Section
8.8; and
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(c) acknowledging the overriding right (the "Retraction Call Right") of
Monaco to purchase all but not less than all the Retracted Shares
directly from the holder and that the Retraction Request shall be
deemed to be a revocable offer by the holder to sell the Retracted
Shares to Monaco in accordance with the Retraction Call Right on the
terms and conditions set out in Section 8.3 hereof.
8.2 Provided that Monaco has not exercised the Retraction Call Right, upon
receipt by the Corporation in the manner specified in Section 8.1 of a
certificate or certificates representing the number of Retracted Shares,
together with a Retraction Request, and provided that the Retraction
Request is not revoked by the holder in the manner specified in Section
8.7, the Corporation shall redeem the Retracted Shares effective at the
close of business on the Retraction Date and shall comply with Section 8.4
hereof. If only a part of the Exchangeable Shares represented by any
certificate is redeemed (or purchased by Monaco pursuant to the Retraction
Call Right), a new certificate for the balance of such Exchangeable Shares
shall be issued to the holder at the expense of the Corporation.
8.3 Subject to the provisions of this Article 8, upon receipt by the
Corporation of a Retraction Request, the Corporation shall immediately
notify Monaco thereof and shall provide to Monaco a copy of the Retraction
Request. In order to exercise the Retraction Call Right, Monaco must notify
the Corporation of its determination to do so (the "Monaco Call Notice")
within five Business Days of notification to Monaco by the Corporation of
the receipt by the Corporation of the Retraction Request. If Monaco does
not so notify the Corporation within such five Business Day period, the
Corporation will notify the holder as soon as possible thereafter that
Monaco will not exercise the Retraction Call Right. If Monaco delivers the
Monaco Call Notice within such five Business Day period, and provided that
the Retraction Request is not revoked by the holder in the manner specified
in Section 8.7, the Retraction Request shall thereupon be considered only
to be an offer by the holder to sell the Retracted Shares to Monaco in
accordance with the Retraction Call Right. In such event, the Corporation
shall not redeem the Retracted Shares and Monaco shall purchase from such
holder and such holder shall sell to Monaco on the Retraction Date the
Retracted Shares for a purchase price (the "Purchase Price") per share
equal to the Retraction Price per share, which shall be satisfied in full
by the Corporation delivering or causing to be delivered to such holder two
Monaco Common Shares for each Exchangeable Share presented and surrendered
by the holder plus on the designated payment date therefor, to the extent
not paid by the Corporation on the designated payment date therefor, any
Dividend Amount. To the extent that Monaco pays the Dividend Amount in
respect of the Retracted Shares, the Corporation shall no longer be
obligated to pay any declared and unpaid dividends on such Retracted
Shares. For the purpose of completing a purchase pursuant to the Retraction
Call Right, on the Retraction Date Monaco shall transfer or cause to be
issued or transferred to the holder of the Retracted Shares the Monaco
Common Shares to which such holder is entitled. Provided that Monaco has
complied with the immediately preceding sentence and Section 8.4 hereof,
the closing of the purchase and sale of the Retracted Shares pursuant to
the Retraction Call Right shall be deemed to have occurred as at the close
of business on the Retraction Date and, for greater certainty, no
redemption by the Corporation of such Retracted Shares shall take place on
the Retraction Date. In the event that Monaco does not deliver a Monaco
Call Notice within such five Business Day period, and provided that the
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Retraction Request is not revoked by the holder in the manner specified in
Section 8.7, the Corporation shall redeem the Retracted Shares on the
Retraction Date and in the manner otherwise contemplated in this Article 8.
8.4 The Corporation or Monaco, as the case may be, shall deliver to the
relevant holder, at the address of the holder recorded in the register of
shareholders of the Corporation for the Exchangeable Shares or at the
address specified in the holder's Retraction Request or by holding for
pick-up by the holder at the registered office of the Corporation,
certificates representing the Monaco Common Shares (which shares shall be
fully paid and shall be free and clear of any lien, claim or encumbrance)
registered in the name of the holder or in such other name as the holder
may request, and, if applicable and on or before the payment date therefor,
a cheque payable at par at any branch of the bankers of the Corporation or
Monaco, as applicable, representing the aggregate Dividend Amount, in
payment of the total Purchase Price, in the case of a Retraction Call Right
or a cheque payable at par at any branch of the bankers of the Corporation
or Monaco, as applicable, representing the aggregate Dividend Amount and
Retraction Price, in the case of a Retraction Request, in each case less
any amounts withheld on account of tax required to be deducted and withheld
therefrom, and such delivery of such certificates and cheques on behalf of
the Corporation or by Monaco, as the case may be shall be deemed to be
payment of and shall satisfy and discharge all liability for the total
Retraction Price or total Purchase Price, as the case may be, to the extent
that the same is represented by such share certificates and cheques (plus
any tax deducted and withheld therefrom and remitted to the proper tax
authority).
8.5 On and after the close of business on the Retraction Date, the holder of
the Retracted Shares shall cease to be a holder of such Retracted Shares
and shall not be entitled to exercise any of the rights of a holder in
respect thereof, other than the right to receive its proportionate part of
the total Retraction Price or total Purchase Price, as the case may be,
unless upon presentation and surrender of certificates in accordance with
the foregoing provisions, payment of the total Retraction Price or the
total Purchase Price, as the case may be, shall not be made as provided in
Section 8.4 hereof, in which case the rights of such holder shall remain
unaffected until the total Retraction Price or the total Purchase Price, as
the case may be, has been paid in the manner hereinbefore provided. On and
after the close of business on the Retraction Date, provided that
presentation and surrender of certificates and payment of the total
Retraction Price or the total Purchase Price, as the case may be, has been
made in accordance with the foregoing provisions, the holder of the
Retracted Shares so redeemed by the Corporation or purchased by Monaco
shall thereafter be a holder of the Monaco Common Shares delivered to it.
8.6 Notwithstanding any other provision of this Article 8, the Corporation
shall not be obligated to redeem Retracted Shares specified by a holder in
a Retraction Request to the extent that such redemption of Retracted Shares
would be contrary to solvency requirements or other provisions of
applicable law. If the Corporation believes that on any Retraction Date it
would not be permitted by any of such provisions to redeem the Retracted
Shares tendered for redemption on such date, and provided that Monaco shall
not have exercised the Retraction Call Right with respect to the Retracted
Shares, the Corporation shall only be obligated to redeem Retracted Shares
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specified by a holder in a Retraction Request to the extent of the maximum
number that may be so redeemed (rounded down to a whole number of shares)
as would not be contrary to such provisions and shall notify the holder and
the Trustee at least two Business Days prior to the Retraction Date as to
the number of Retracted Shares which will not be redeemed by the
Corporation. In any case in which the redemption by the Corporation of
Retracted Shares would be contrary to solvency requirements or other
provisions of applicable law, the Corporation shall redeem Retracted Shares
in accordance with Section 8.2 of these Exchangeable Share Provisions on a
pro rata basis and shall issue to each holder of Retracted Shares a new
certificate, at the expense of the Corporation, representing the Retracted
Shares not redeemed by the Corporation pursuant to Section 8.2 hereof. If
the Corporation would otherwise be obligated to redeem the Retracted Shares
pursuant to Section 8.2 of these Exchangeable Share Provisions but is not
obligated to do so as a result of solvency requirements or other provisions
of applicable law, Monaco shall, subject to applicable law, purchase such
Retracted Shares from such holder on the Retraction Date or as soon as
practicable thereafter on payment by Monaco to such holder of the Purchase
Price for each such Retracted Share, all as more specifically provided in
the Exchange Agreement.
8.7 A holder of Retracted Shares may, by notice in writing given by the holder
to the Corporation before the close of business on the Business Day
immediately preceding the Retraction Date, withdraw its Retraction Request,
in which event such Retraction Request shall be null and void and, for
greater certainty, the revocable offer constituted by the Retraction
Request to sell the Retracted Shares to Monaco shall be deemed to have been
revoked.
8.8 Notwithstanding any other provisions of this Article 8, if exercise of the
rights of the holders of the Exchangeable Shares, or any of them, to
require the Corporation to redeem any Exchangeable Shares pursuant to this
Article 8 on any Retraction Date would require the approval of any stock
exchange on which the Monaco Common Shares may then be listed for trading,
that would be required to be delivered to such holders of Exchangeable
Shares in connection with the exercise of such rights; and it would not be
practicable (notwithstanding the reasonable endeavours of Monaco) to obtain
such approvals in time to enable all or any of such Monaco Common Shares to
be admitted to trading by such exchange when so delivered, that Retraction
Date shall, notwithstanding any other date specified or otherwise deemed to
be specified in any relevant Retraction Request, be deemed for all purposes
to be the earlier of (i) the second Business Day immediately following the
date the approvals referred to in this Section 8.8 are obtained, and (ii)
the date which is 30 Business Days after the date on which the relevant
Retraction Request is received by the Corporation, and references in these
Exchangeable Share Provisions to such Retraction Date shall be construed
accordingly.
8.9 Notwithstanding any other provisions of this Article 8, a holder may not
exercise its rights pursuant to this Article 8 to require the Corporation
to redeem any or all of the Exchangeable Shares registered in the name of
such holder to the extent that the issue of Monaco Common Shares resulting
on the exercise of such right would require registration under the United
States Securities Act of 1933, as amended.
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ARTICLE 9
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CERTAIN RESTRICTIONS
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9.1 So long as any of the Exchangeable Shares are outstanding, the Corporation
shall not at any time without, but may at any time with, the approval of
the Holders of the Exchangeable Shares given as specified in Section 12.2
of these Exchangeable Share Provisions:
(a) pay any dividends on the Common Shares or any other shares ranking
junior to the Exchangeable Shares, other than stock dividends payable
in Common Shares or any such other shares ranking junior to the
Exchangeable Shares, as the case may be;
(b) redeem or purchase or make any capital distribution in respect of the
Common Shares or any other shares ranking junior to the Exchangeable
Shares;
(c) redeem or purchase any other shares of the Corporation ranking equally
with the Exchangeable Shares with respect to the payment of dividends
or on any liquidation distribution; or
(d) issue any shares, other than Exchangeable Shares or Common Shares,
which rank superior to the Exchangeable Shares with respect to the
payment of dividends or on any liquidation distribution.
The restrictions in Sections 9.1(a), (b) and (c) above shall only be
applicable if (i) dividends have been declared on the outstanding
Exchangeable Shares in accordance with Section 3 and (ii) such dividends
have not been paid as provided for herein.
ARTICLE 10
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PURCHASE FOR CANCELLATION
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10.1 Subject to applicable law, the Corporation may at any time and from time to
time purchase for cancellation all or any part of the Exchangeable Shares
by private agreement with any holder of Exchangeable Shares for
consideration consisting of cash.
ARTICLE 11
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VOTING RIGHTS
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11.1 Except as required by applicable law and by Article 12 hereof, the Holders
of the Exchangeable Shares shall not be entitled as such to receive notice
of or to attend any meeting of the shareholders of the Corporation or to
vote at any such meeting.
ARTICLE 12
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AMENDMENT AND APPROVAL
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12.1 The rights, privileges, restrictions and conditions attaching to the
Exchangeable Shares may be added to, changed or removed but only with the
approval of the Holders of the Exchangeable Shares given as hereinafter
specified.
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12.2 Any approval given by the Holders of the Exchangeable Shares to add to,
change or remove any right, privilege, restriction or condition attaching
to the Exchangeable Shares or any other matter requiring the approval or
consent of the Holders of the Exchangeable Shares shall be deemed to have
been sufficiently given if it shall have been given in accordance with
applicable law subject to a minimum requirement that such approval be
evidenced by resolution passed by not less than two-thirds of the votes
cast on such resolution at a meeting of Holders of Exchangeable Shares duly
called and held at which the Holders of at least 10% of the outstanding
Exchangeable Shares at that time are present or represented by proxy;
provided that if at any such meeting Holders of at least 10% of such
outstanding Exchangeable Shares at that time are not present or represented
by proxy within one-half hour after the time appointed for such meeting,
then the meeting shall be adjourned to such place and time (not less than
ten days later) as may be designated by the Chairman of such meeting. At
such adjourned meeting the Holders of Exchangeable Shares present or
represented by proxy thereat may transact the business for which the
meeting was originally called and a resolution passed thereat by the
affirmative vote of not less than two-thirds of the votes cast on such
resolution at such meeting shall constitute the approval or consent of the
Holders of the Exchangeable Shares.
ARTICLE 13
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RECIPROCAL CHANGES IN RESPECT OF MONACO COMMON SHARES
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13.1 Each holder of an Exchangeable Share acknowledges that the Exchange
Agreement provides, in part, that the number of Monaco Common Shares for
which the Exchangeable Shares are exchangeable shall be simultaneously
adjusted on an economically equivalent basis if Monaco:
(a) issues or distributes Monaco Common Shares (or securities exchangeable
for or convertible into or carrying rights to acquire Monaco Common
Shares) to the holders of all or substantially all of the then
outstanding Monaco Common Shares by way of stock distribution or other
distribution, other than an issue of Monaco Common Shares (or
securities exchangeable for or convertible into or carrying rights to
acquire Monaco Common Shares) to holders of Monaco Common Shares who
exercise an option to receive distributions in Monaco Common Shares
(or securities exchangeable for or convertible into or carrying rights
to acquire Monaco Common Shares) in lieu of receiving cash
distributions;
(b) issues or distributes rights, options or warrants to the holders of
all or substantially all of the then outstanding Monaco Common Shares
entitling them to subscribe for or to purchase Monaco Common Shares
(or securities exchangeable for or convertible into or carrying rights
to acquire Monaco Common Shares); or
(c) issues or distributes to the holders of all or substantially all of
the then outstanding Monaco Common Shares:
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(i) securities of Monaco of any class other than Monaco Common Shares
(other than securities convertible into or exchangeable for or
carrying rights to acquire Monaco Common Shares);
(ii) rights, options or warrants other than those referred to in
Section 13.1(b) above; or
(iii) evidences of indebtedness of Monaco,
(d) subdivides, redivides or changes the then outstanding Monaco Common
Shares into a greater number of Monaco Common Shares;
(e) reduces, combines, consolidates or changes the then outstanding Monaco
Common Shares into a lesser number of Monaco Common Shares; or
(f) reclassifies or otherwise changes the Monaco Common Shares or effects
an amalgamation, merger, reorganization or other transaction affecting
the Monaco Common Shares.
The Exchange Agreement further provides, in part, that the aforesaid
provisions of the Exchange Agreement shall not be changed without the
approval of the Holders of the Exchangeable Shares given in accordance with
Section 12.2 of these Exchangeable Share Provisions.
ARTICLE 14
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ACTIONS BY THE CORPORATION UNDER exchange AGREEMENT
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14.1 The Corporation shall take all such actions and do all such things as shall
be necessary or advisable to perform and comply with and to ensure
performance and compliance by the Corporation, Monaco and SVFI with all
provisions of the Exchange Agreement applicable to the Corporation, Monaco
and SVFI respectively, in accordance with the terms thereof including,
without limitation, taking all such actions and doing all such things as
shall be necessary or advisable to enforce to the fullest extent possible
for the direct benefit of the Corporation all rights and benefits in favour
of the Corporation under or pursuant to such agreement.
14.2 The Corporation shall not propose, agree to or otherwise give effect to any
amendment to, or waiver or forgiveness of its rights or obligations under,
the Exchange Agreement without the approval of the Holders of the
Exchangeable Shares given in accordance with Section 12.2 of these
Exchangeable Share Provisions other than such amendments, waivers and/or
forgiveness as may be necessary or advisable for the purposes of:
(a) adding to the covenants of the other parties to such agreement for the
protection of the Corporation or the Holders of the Exchangeable
Shares thereunder;
(b) making such provisions or modifications not inconsistent with such
agreement as may be necessary or desirable with respect to matters or
questions arising thereunder which, in the good faith opinion of the
Board of Directors, it may be expedient to make, provided that the
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Board of Directors shall be of the good faith opinion, after
consultation with counsel, that such provisions and modifications
shall not be prejudicial to the interests of the Holders of the
Exchangeable Shares; or
(c) making such changes in or corrections to such agreement which, on the
advice of counsel to the Corporation, are required for the purpose of
curing or correcting any ambiguity or defect or inconsistent provision
or clerical omission or mistake or manifest error contained therein,
provided that the Board of Directors shall be of the good faith
opinion, after consultation with counsel, that such changes or
corrections shall not be prejudicial to the interests of the Holders
of the Exchangeable Shares.
ARTICLE 15
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LEGEND; CALL RIGHTS; WITHHOLDING RIGHTS
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15.1 The certificates evidencing the Exchangeable Shares shall contain or have
affixed thereto a legend in form and on terms approved by the Board of
Directors with respect to the Exchange Agreement, the Retraction Call
Right, the Liquidation Call Right and the Redemption Call Right.
15.2 Each holder of an Exchangeable Share, by virtue of becoming and being such
a holder shall be deemed to acknowledge the Retraction Call Right, the
Liquidation Call Right and the Redemption Call Right in favour of Monaco
and the overriding nature thereof in connection with the liquidation,
dissolution or winding up of the Corporation, or the any retraction or
redemption of Exchangeable Shares, as the case may be, and to be bound
thereby in favour of Monaco.
15.3 The Corporation and Monaco shall be entitled to deduct and withhold from
any dividend or consideration otherwise payable to any holder of
Exchangeable Shares such amounts as the Corporation or Monaco is required
to deduct and withhold with respect to such payment under the Income Tax
Act (Canada) or any provision of provincial, local or foreign tax law, in
each case, as amended. To the extent that amounts are so withheld, such
withheld amounts shall be treated for all purposes hereof as having been
paid to the holder of the Exchangeable Shares in respect of which such
deduction and withholding was made, provided that such withheld amounts are
actually remitted to the appropriate taxing authority. To the extent that
the amount so required or permitted to be deducted or withheld from any
payment to a holder exceeds the cash consideration otherwise, if any,
payable to the holder, the Corporation and Monaco are hereby authorized to
sell or otherwise dispose of such portion of the consideration as is
necessary to provide sufficient funds to the Corporation or Monaco as the
case may be, to enable it to comply with such deduction or withholding
requirement and the Corporation or Monaco shall notify the holder thereof
and remit any unapplied balance of the net proceeds of such sale.
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ARTICLE 16
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SPECIFIED AMOUNT
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16.1 The amount specified in respect of each Exchangeable Share for the purposes
of subsection 191(4) of the Income Tax Act (Canada) shall be an amount
equal to the fair market value of two (2) Monaco Common Shares on the
Effective Date.
ARTICLE 17
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NO FRACTIONAL ENTITLEMENTS
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17.1 Notwithstanding anything contained in this Agreement including, without
limitation, Articles 4 or 5, no holder of an Exchangeable Share shall be
entitled to and neither the Corporation nor Monaco shall deliver fractions
of Monaco Common Shares. Where the application of the provisions of this
Agreement, including, without limitation, Articles 4 and 5 would otherwise
result in a holder of Exchangeable Shares receiving a fraction of a Monaco
Common Share, such holder of Exchangeable Shares shall only be entitled to
receive the nearest whole number of Monaco Common Shares.
ARTICLE 18
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NOTICES
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18.1 Any notice, request or other communication to be given to the Corporation
by a holder of Exchangeable Shares shall be in writing and shall be valid
and effective if given by mail (postage prepaid) or by telecopy or by
delivery to the registered office of the Corporation and addressed to the
attention of the President of the Corporation. Any such notice, request or
other communication, if given by mail, telecopy or delivery, shall only be
deemed to have been given and received upon actual receipt thereof by the
Corporation.
18.2 Any presentation and surrender by a holder of Exchangeable Shares to the
Corporation of certificates representing Exchangeable Shares in connection
with the liquidation, dissolution or winding-up of the Corporation or the
retraction or redemption of Exchangeable Shares shall be made by registered
mail (postage prepaid) or by delivery to the registered office of the
Corporation or to such office as may be specified by the Corporation, in
each case, addressed to the attention of the President of the Corporation.
Any such presentation and surrender of certificates shall only be deemed to
have been made and to be effective upon actual receipt thereof by the
Corporation. Any such presentation and surrender of certificates made by
registered mail shall be at the sole risk of the holder mailing the same.
18.3 Any notice, request or other communication to be given to a holder of
Exchangeable Shares by or on behalf of the Corporation shall be in writing
and shall be valid and effective if given by mail (postage prepaid) or by
delivery to the address of the holder recorded in the register of
shareholders of the Corporation or, in the event of the address of any such
holder not being so recorded, then at the last known address of such
holder. Any such notice, request or other communication, if given by mail,
shall be deemed to have been given and received on the third Business Day
following the date of mailing and, if given by delivery, shall be deemed to
have been given and received on the date of delivery. Accidental failure or
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omission to give any notice, request or other communication to one or more
Holders of Exchangeable Shares shall not invalidate or otherwise alter or
affect any action or proceeding to be taken by the Corporation pursuant
thereto.