THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS EXEMPTED COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
MERCER PARK OPPORTUNITIES CORP.
(ADOPTED BY SPECIAL RESOLUTION DATED JULY 16, 2024
AND EFFECTIVE ON JULY 16, 2024)
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THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS EXEMPTED COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM OF ASSOCIATION
OF
MERCER PARK OPPORTUNITIES CORP.
(ADOPTED BY SPECIAL RESOLUTION DATED JULY 16, 2024
AND EFFECTIVE ON JULY 16, 2024)
The name of the Company is Mercer Park Opportunities Corp. The Registered Office of the Company shall be at the offices of CO Services Cayman Limited,
Willow House, Cricket Square, Grand Cayman KY1 1001, Cayman Islands, or at such other
place within the Cayman Islands as the Directors may decide.
The objects for which the Company is established are unrestricted and the Company shall
have full power and authority to carry out any object not prohibited by the laws of the Cayman
Islands.
The liability of each Member is limited to the amount unpaid on such Member's shares.
The share capital of the Company is US$50,000 divided into 100,000,000 Class A Restricted
Voting Shares of a par value of US$0.0001 each, 100,000,000 Class B shares of a par value
of US$0.0001 each, 250,000,000 Subordinate Voting Shares of a par value of US$0.0001
each, 10,000,000 Multiple Voting Shares of a par value of US$0.0001 each, and 40,000,000
Preference Shares, issuable in series, of a par value of US$0.0001 each.
The Company has power to register by way of continuation as a body corporate limited by
shares under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in
the Cayman Islands.
Capitalized terms that are not defined in this Amended and Restated Memorandum of
Association bear the respective meanings given to them in the Amended and Restated Articles
of Association of the Company.
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THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS EXEMPTED COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
MERCER PARK OPPORTUNITIES CORP.
(ADOPTED BY SPECIAL RESOLUTION DATED JULY 16, 2024
AND EFFECTIVE ON JULY 16, 2024)
1
Interpretation
1.1
In the Articles Table A in the First Schedule to the Statute does not apply and, unless there is something in the subject or context inconsistent therewith:
“Affiliate
”
“Applicable Law
”
“Articles
”
“Audit Committee
”
“Auditor
”
“Business Day
”
in respect of a person, means any other person that, directly or
indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, such person, and (a) in the case
of a natural person, shall include, without limitation, such person's
spouse, parents, children, siblings, mother-in-law and father-in-law
and brothers and sisters-in-law, whether by blood, marriage or
adoption or anyone residing in such person's home, a trust for the
benefit of any of the foregoing, a company, partnership or any natural
person or entity wholly or jointly owned by any of the foregoing and (b)
in the case of an entity, shall include a partnership, a corporation or
any natural person or entity which directly, or indirectly through one or
more intermediaries, controls, is controlled by, or is under common
control with, such entity.
means, with respect to any person, all provisions of laws, statutes,
ordinances, rules, regulations, permits, certificates, judgments,
decisions, decrees or orders of any governmental authority applicable
to such person.
means these amended and restated articles of association of the
Company.
means the audit committee of the board of Directors of the Company
established pursuant to the Articles, or any successor committee.
means the person for the time being performing the duties of auditor
of the Company (if any).
means any day, other than a Saturday or a Sunday, that is neither a
legal holiday nor a day on which major banking institutions are
generally closed in either the City of Toronto or in the Cayman Islands.
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“Change of Control”
“Clearing House”
“Class A Restricted Voting Share”
“Class B Share”
“Company” “Company's Website”
“Compensation Committee”
“Designated Stock Exchange”
“Directors”
“Dividend”
means an amalgamation, merger, arrangement, recapitalization, business combination or similar transaction of the Company, other than an amalgamation, merger, arrangement, recapitalization, business combination or similar transaction that would result in (i) the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the continuing or surviving entity or its direct or indirect parent) more than fifty percent (50%) of the total voting power of the voting securities of the Company, the continuing or surviving entity or its direct or indirect parent, and more than fifty percent (50%) of the total number of outstanding shares of the Company, the continuing or surviving entity or its direct or indirect parent, in each case as outstanding immediately after such transaction, and (ii) the Members of the Company immediately prior to the transaction owning voting securities of the Company, the continuing or surviving entity or its direct or indirect parent immediately following the transaction in substantially the same proportions (vis-a- vis each other) as such Members owned the voting securities of the Company immediately prior to the transaction (provided that in neither event shall the exercise of any exchangeable shares of a subsidiary of the Company that are exchangeable into shares of the Company be taken into account in such determination).
means a clearing house recognized by the laws of the jurisdiction in
which the Shares (or depositary receipts therefor) are listed or quoted
on a stock exchange or interdealer quotation system in such
jurisdiction and includes the Canadian Depository for Securities
Limited or its nominees.
means a Class A restricted voting share of a par value of US$0.0001
in the share capital of the Company.
means a Class B share of a par value of US$0.0001 in the share
capital of the Company.
means the above-named company.
means the website of the Company and/or its web-address or domain
name (if any).
means the compensation committee of the board of Directors of the
Company established pursuant to the Articles, or any successor
committee, if any.
means any stock exchange on which the securities of the Company
are listed for trading, including the Toronto Stock Exchange.
means the directors for the time being of the Company.
means any dividend (whether interim or final) resolved to be paid on
Shares pursuant to the Articles.
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“Electronic Communication”
“Electronic Record” “Electronic Transactions
Act”
“Equity-linked
Securities”
“Escrow Account”
“Founders” “Independent Director”
“IPO” “Member” “Memorandum”
“Multiple Voting Share”
“Nominating Committee”
“Officer” “Ordinary Resolution”
means a communication sent by electronic means, including electronic posting to the Company's website, transmission to any number, address or internet website (including www.sedarplus.ca) or other electronic delivery methods as otherwise decided and approved by the Directors.
has the same meaning as in the Electronic Transactions Act.
means the Electronic Transactions Act (as revised) of the Cayman
Islands.
means any debt or equity securities that are convertible, exercisable
or exchangeable for Shares issued in a financing transaction in
connection with a Qualifying Acquisition, including but not limited to a
private placement of equity or debt.
means the escrow account established by the Company upon the
consummation of its IPO and into which an amount equal to the gross
proceeds of the sale of Units in the IPO will be deposited.
means all Members immediately prior to the consummation of the IPO.
has the same meaning as in the Canadian Securities Administrators
National Instrument 52-110 - Audit Committees, as amended from time
to time.
means the Company's initial public offering of securities.
has the same meaning as in the Statute.
means the amended and restated memorandum of association of the
Company.
means a multiple voting share of a par value of US$0.0001 in the share
capital of the Company.
means the nominating committee of the board of Directors of the
Company established pursuant to the Articles, or any successor
committee.
means a person appointed to hold an office in the Company.
means a resolution passed by a simple majority of the Members as,
being entitled to do so, vote in person or, where proxies are allowed,
by proxy at a general meeting, and includes a unanimous written
resolution. In computing the majority when a poll is demanded regard
shall be had to the number of votes to which each Member is entitled
by the Articles.
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“Over-Allotment Option”
“Preference Share”
“Qualifying Acquisition”
“Redemption Notice”
“Register of Members”
“Registered Office” “Right”
“Seal”
“Securities Act”
“Share”
“Special Resolution”
means the option of the Underwriter to purchase up to an additional 15 per cent of the Units issued in the IPO at a price equal to US$10 per Unit, less underwriting discounts and commissions.
means a preference share of a par value of US$0.0001 in the share
capital of the Company.
means the acquisition of one or more businesses or assets, by way of
a merger, amalgamation, arrangement, share exchange, asset
acquisition, share purchase, reorganization, or any other similar
business combination involving the Company, which must have a
minimum aggregate fair market value, as determined by our board of
directors, equal to 80% of the assets held in the Escrow Account then
on deposit (excluding any deferred underwriting commissions and
applicable taxes payable on interest and other amounts earned in the
Escrow Account), and which is intended to be consummated by the
Company within the Permitted Timeline (as defined in Article 14.2(k))
and in accordance with applicable law.
means a notice in a form approved by the Company by which a holder
of Class A Restricted Voting Shares is entitled to require the Company
to redeem its Class A Restricted Voting Shares, subject to any
conditions contained therein.
means the register of Members maintained in accordance with the
Statute and includes (except where otherwise stated) any branch or
duplicate register of Members.
means the registered office for the time being of the Company.
means the rights to be issued in connection with the IPO, each entitling
the holder thereof to receive, for no additional consideration, one-tenth
(1/10) of one Class A Restricted Voting Share following the closing of
the Qualifying Acquisition (which at that time would become a right to
acquire the same fraction of a Subordinate Voting Share).
means the common seal of the Company and includes every duplicate
seal.
means the Securities Act (Ontario), as amended, or any similar
Canadian statute, and the rules and regulations thereunder, all as the
same shall be in effect at the time.
means a Class A Restricted Voting Share, a Class B Share, a
Share, and includes a fraction of a share in the Company.
subject to Articles 14, 15, 29.4, and 47.2 has the same meaning as in
the Statute, and includes a unanimous written resolution.
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“Sponsor
”
“Statute
”
“Subordinate Voting
”
Shares
“Treasury Share
”
“Underwriter
”
“Units
”
“Warrant
”
means Mercer Park III, L.P., a Delaware limited partnership, and its successors or assigns.
means the Companies Act (as revised) of the Cayman Islands.
means a subordinate voting share of a par value of US$0.0001 in the
share capital of the Company.
means a Share held in the name of the Company as a treasury share
in accordance with the Statute.
means an underwriter of the IPO from time to time and any successor
underwriter.
means the units to be sold to the public in the IPO, each consisting of
one Class A Restricted Voting Share, one Warrant and one Right.
means the share purchase warrants to be issued in connection with
the IPO.
1.2
In the Articles:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
words importing the singular number include the plural number and vice-versa;
words importing the masculine gender include the feminine gender;
words importing persons include corporations as well as any other legal or natural
person;
“written” and “in writing” include all modes of representing or reproducing words in
visible form, including in the form of an Electronic Record;
“shall” shall be construed as imperative and “may” shall be construed as permissive;
references to provisions of any law or regulation shall be construed as references to
those provisions as amended, modified, re-enacted or replaced;
any phrase introduced by the terms “including”, “include”, “in particular” or any similar
expression shall be construed as illustrative and shall not limit the sense of the words
preceding those terms;
the term “and/or” is used herein to mean both “and” as well as “or.” The use of” and/or”
in certain contexts in no respects qualifies or modifies the use of the terms “and” or
“or” in others. The term “or” shall not be interpreted to be exclusive and the term “and”
shall not be interpreted to require the conjunctive (in each case, unless the context
otherwise requires);
headings are inserted for reference only and shall be ignored in construing the Articles;
any requirements as to delivery under the Articles include delivery in the form of an
Electronic Record;
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2
2.1
2.2
3
3.1
3.2
(11)
(12) (13)
(14)
(15)
any requirements as to execution or signature under the Articles including the execution of the Articles themselves can be satisfied in the form of an electronic signature as defined in the Electronic Transactions Act;
sections 8 and 19(3) of the Electronic Transactions Act shall not apply;
the term “clear days” in relation to the period of a notice means that period excluding
the day when the notice is received or deemed to be received and the day for which it
is given or on which it is to take effect;
references to $ or dollars are to U.S. dollars, unless the context otherwise requires;
and
the term “holder” or “shareholder” in relation to a Share means a person whose name
is entered in the Register of Members as the holder of such Share.
Commencement of Business
The business of the Company may be commenced as soon after incorporation of the Company as the Directors shall see fit.
The Directors may pay, out of the capital or any other monies of the Company other than the
funds in the Escrow Account, all expenses incurred in or about the formation and
establishment of the Company, including the expenses of registration.
Issue of Shares and other Securities
Subject to the provisions, if any, in the Memorandum (and to any direction that may be given by the Company in general meeting), the Articles and, where applicable, the rules and regulations of the Designated Stock Exchange, the Ontario Securities Commission and/or any other competent regulatory authority or otherwise under Applicable Law, and without prejudice to any rights attached to any existing Shares:
(1)
(2)
(3)
the Directors may allot, issue, grant options over or otherwise dispose of Shares
(including fractions of a Share) with or without preferred, deferred or other rights or
restrictions, whether in regard to Dividends or other distributions, voting, return of
capital or otherwise and to such persons, at such times and on such other terms as
they think proper, and may also (subject to the Statute and the Articles) vary such
rights;
the Company may issue rights, options, warrants or convertible securities or securities
of similar nature conferring the right upon the holders thereof to subscribe for,
purchase or receive any class of Shares or other securities in the Company on such
terms as the Directors may from time to time determine; and
the Company may issue units of securities in the Company, which may be comprised
of whole or fractional Shares, rights, options, warrants or convertible securities or
securities of similar nature conferring the right upon the holders thereof to subscribe
for, purchase or receive any class of Shares or other securities in the Company, upon
such terms as the Directors may from time to time determine.
The Company shall not issue Shares to bearer.
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4
4.1
4.2
4.3
5
5.1
5.2
5.3
6
6.1
Register of Members
The Company shall maintain or cause to be maintained the Register of Members in accordance with the Statute.
The Directors may determine that the Company shall maintain one or more branch registers
of Members in accordance with the Statute. The Directors may also determine which register
of Members shall constitute the principal register and which shall constitute the branch register
or registers, and to vary such determination from time to time.
Notwithstanding anything to the contrary contained in the Statute, Members shall have the
same rights to access the Register of Members that they would be entitled to were the
Company a corporation governed by the Canada Business Corporations Act, with necessary
changes.
Closing Register of Members or Fixing Record Date
For the purpose of determining Members entitled to notice of, or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Members for any other purpose, the Directors may, after notice has been given by advertisement in an appointed newspaper or any other newspaper or by any other means in accordance with the rules and regulations of the Designated Stock Exchange, the Ontario Securities Commission and/or any other competent regulatory authority or otherwise under Applicable Law, provide that the Register of Members shall be closed for transfers for a stated period which shall not in any case exceed forty days.
In lieu of, or apart from, closing the Register of Members, the Directors may fix in advance or
arrears a date as the record date for any such determination of Members entitled to notice of,
or to vote at any meeting of the Members or any adjournment thereof, or for the purpose of
determining the Members entitled to receive payment of any Dividend or other distribution, or
in order to make a determination of Members for any other purpose.
If the Register of Members is not so closed and no record date is fixed for the determination
of Members entitled to notice of, or to vote at, a meeting of Members or Members entitled to
receive payment of a Dividend or other distribution, the date on which notice of the meeting is
sent or the date on which the resolution of the Directors resolving to pay such Dividend or
other distribution is passed, as the case may be, shall be the record date for such
determination of Members. When a determination of Members entitled to vote at any meeting
of Members has been made as provided in this Article, such determination shall apply to any
adjournment thereof.
Certificates for Shares
A Member shall only be entitled to a share certificate if the Directors resolve that share certificates shall be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine. Share certificates shall be signed by one or more Directors or other person authorized by the Directors. The Directors may authorize certificates to be issued with the authorized signature(s) affixed by mechanical process. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. All certificates surrendered to the Company for transfer shall be cancelled and, subject to the Articles, no new certificate shall be issued until the former certificate
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6.2
6.3
6.4
7
7.1
7.2
8 8.1
8.2
representing a like number of relevant Shares shall have been surrendered and cancelled. In lieu of any or all share certificates, the Directors may cause direct registration system advices to be issued.
The Company shall not be bound to issue more than one certificate for Shares held jointly by
more than one person and delivery of a certificate to one joint holder shall be a sufficient
delivery to all of them.
If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms
(if any) as to evidence and indemnity and on the payment of such expenses reasonably
incurred by the Company in investigating evidence, as the Directors may prescribe, and (in
the case of defacement or wearing out) upon delivery of the old certificate.
Every share certificate sent in accordance with the Articles will be sent at the risk of the
Member or other person entitled to the certificate. The Company will not be responsible for
any share certificate lost or delayed in the course of delivery.
Transfer of Shares
Subject to the terms of the Articles, any Member may transfer all or any of his Shares by an instrument of transfer provided that such transfer complies with the rules and regulations of the Designated Stock Exchange, the Ontario Securities Commission and/or any other competent regulatory authority or otherwise under Applicable Law. If the Shares in question were issued in conjunction with rights, options or warrants issued pursuant to the Articles on terms that one cannot be transferred without the other, the Directors shall refuse to register the transfer of any such Share without evidence satisfactory to them of the like transfer of such option or warrant.
The instrument of transfer of any Share shall be in writing in the usual or common form or in a
form prescribed by the rules and regulations of the Designated Stock Exchange, the Ontario
Securities Commission and/or any other competent regulatory authority or otherwise under
Applicable Law or in any other form approved by the Directors and shall be executed by or on
behalf of the transferor (and if the Directors so require, signed by or on behalf of the transferee)
and may be under hand or, if the transferor or transferee is a Clearing House or its nominee(s),
by hand or by machine imprinted signature or by such other manner of execution as the
Directors may approve from time to time. The transferor shall be deemed to remain the holder
of a Share until the name of the transferee is entered in the Register of Members.
Redemption, Repurchase and Surrender of Shares
Subject to the provisions of the Statute and, where applicable, the rules and regulations of the Designated Stock Exchange, the Ontario Securities Commission and/or any other competent regulatory authority or otherwise under Applicable Law, the Company may issue Shares that are to be redeemed or are liable to be redeemed at the option of the Member or the Company. The redemption of such Shares, except Class A Restricted Voting Shares and Preference Shares, shall be effected in such manner and upon such other terms as the Company may, by Special Resolution, determine before the issue of such Shares. The redemption of Class A Restricted Voting Shares and Preference Shares shall be effected in such manner and upon such other terms as set forth in these Articles.
Subject to the provisions of the Statute, and, where applicable, the rules and regulations of the
Designated Stock Exchange, the Ontario Securities Commission and/or any other competent
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8.3
8.4
9
9.1
9.2
10
10.1
10.2
10.3
11
regulatory authority or otherwise under Applicable Law, the Company may purchase its own Shares (including any redeemable Shares) in such manner and on such other terms as the Directors may agree with the relevant Member. For the avoidance of doubt, redemptions, repurchases and surrenders of Shares in the circumstances described in the Article above shall not require further approval of the Members.
The Company may make a payment in respect of the redemption or purchase of its own
Shares in any manner permitted by the Statute, including out of capital.
The Directors may accept the surrender for no consideration of any fully paid Share.
Treasury Shares
The Directors may, prior to the purchase, redemption or surrender of any Share, determine that such Share shall be held as a Treasury Share.
The Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such
terms as they think proper (including, without limitation, for nil consideration).
Variation of Rights of Shares
Subject to Article 3.1, if at any time the share capital of the Company is divided into different classes of Shares, all or any of the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that class) may, whether or not the Company is being wound up, be varied without the consent of the holders of the issued Shares of that class where such variation is considered by the Directors not to have a material adverse effect upon such rights; otherwise, any such variation shall be made only with the consent in writing of the holders of not less than two thirds of the issued Shares of that class, or with the approval of a resolution passed by a majority of not less than two thirds of the votes cast at a separate meeting of the holders of the Shares of that class. For the avoidance of doubt, the Directors reserve the right, notwithstanding that any such variation may not have a material adverse effect, to obtain consent from the holders of Shares of the relevant class. To any such meeting all the provisions of the Articles relating to general meetings shall apply mutatis mutandis, except that the necessary quorum shall be one person holding or representing by proxy at least one third of the issued Shares of the class and that any holder of Shares of the class present in person or by proxy may demand a poll.
For the purposes of a separate class meeting, the Directors may treat two or more or all the
classes of Shares as forming one class of Shares if the Directors consider that such classes
of Shares would be affected in the same way by the proposals under consideration, but in any
other case shall treat them as separate classes of Shares.
The rights conferred upon the holders of the Shares of any class issued with preferred or other
rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of
that class, be deemed to be varied by the creation or issue of further Shares ranking pari passu
therewith or Shares issued with preferred or other rights.
Commission on Sale of Shares
The Company may, in so far as the Statute permits, pay a commission to any person in consideration of his subscribing or agreeing to subscribe (whether absolutely or conditionally) or procuring or agreeing to procure subscriptions (whether absolutely or conditionally) for any
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13.1
Shares. Such commissions may be satisfied by the payment of cash and/or the issue of fully paid-up Shares. The Company may also on any issue of Shares pay such brokerage as may be lawful.
Non-Recognition of Trusts
The Company shall not be bound by or compelled to recognize in any way (even when notified) any equitable, contingent, future or partial interest in any Share, or (except only as is otherwise provided by the Articles or the Statute) any other rights in respect of any Share other than an absolute right to the entirety thereof in the holder.
Terms of the Subordinate Voting Shares
The Subordinate Voting Shares shall consist of 250,000,000 shares designated as “Subordinate Voting Shares”. The special rights and restrictions attached to the Subordinate Voting Shares are as follows.
(1)
(a)
(b)
(c)
(d)
Voting Rights and Dissent Rights.
Holders of Subordinate Voting Shares shall be entitled to notice of and to attend (if
applicable, virtually) any meeting of the Members of the Company. Holders of
Subordinate Voting Shares shall be entitled to vote at any meeting of the Members of
the Company, and at each such meeting, shall be entitled to one (1) vote in respect of
each Subordinate Voting Share held, except for a meeting of which only holders of
another particular class or series of Shares of the Company shall have the right to
vote. Each fraction of a Subordinate Voting Share shall be entitled to the corresponding
fraction of one (1) vote.
Except as otherwise provided in these Articles or except as provided in the Statute,
Subordinate Voting Shares and Multiple Voting Shares are equal in all respects and
shall vote together as if they were shares of a single class.
In connection with any Change of Control Transaction requiring approval of the holders
of Multiple Voting Shares and Subordinate Voting Shares, holders of each such class
of Shares shall be treated equally and identically, on a per share basis, unless different
treatment of the shares of each such class is approved by a majority of the votes cast
by the holders of outstanding Subordinate Voting Shares in respect of a resolution
approving such Change of Control Transaction, voting separately as a class at a
meeting of the holders of that class called and held for such purpose or in writing by
the holders of a majority of outstanding Subordinate Voting Shares and subject to the
provisions of Article 16.1(1)(c).
Notwithstanding the provisions of Article 13.1(1)(b), the holders of Subordinate Voting
Shares shall be entitled to vote as a separate class, in addition to any other vote of
Members that may be required, in respect of any alteration, repeal or amendment of
these Articles which would: (i) adversely affect the rights or special rights of the holders
of Subordinate Voting Shares (including an amendment to the terms of these Articles
which provide that any Multiple Voting Shares sold or transferred to a Person that is
not a Permitted Holder shall be automatically converted into Subordinate Voting
Shares); (ii) affect the holders of Subordinate Voting Shares and Multiple Voting
Shares differently, on a per share basis; or (iii) except as already set forth herein or
except for the Preference Shares, create any class or series of shares ranking senior
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(e)
(2)
to the Subordinate Voting Shares; and in each case such alteration, repeal or amendment shall not be effective unless a resolution in respect thereof is approved by a majority of the votes cast by holders of outstanding Subordinate Voting Shares or in writing by the holders of a majority of outstanding Subordinate Voting Shares.
Registered holders of the Subordinate Voting Shares shall be entitled to the same
dissent rights that they would be entitled to were the Company a corporation governed
by the Canada Business Corporations Act, with necessary changes, unless dissent
rights are available under the Statute for the matter in question, in which case the
dissent rights available under the Statute shall apply in lieu of those provided for in this
Article 13.1(1)(e). In particular, the applicable court shall be determined in accordance
with Article 49.2 hereof.
Dividends.
Holders of Subordinate Voting Shares shall be entitled to receive, as and when declared by
the Directors, dividends in cash or property of the Company. No dividend will be declared or
paid on the Multiple Voting Shares unless the Company simultaneously declares or pays, as
applicable, equivalent dividends (on a per share basis) on the Subordinate Voting Shares. The
Subordinate Voting Shares shall rank equally with the Multiple Voting Shares as to dividends
on a share-for-share basis, without preference or distinction. In the event of the payment of a
dividend in the form of shares, holders of Subordinate Voting Shares shall receive Subordinate
Voting Shares, unless otherwise determined by the Directors, provided an equal number (on
a per share basis) of Multiple Voting Shares is declared as a dividend or distribution on then
outstanding Multiple Voting Shares. Each fraction of a Subordinate Voting Share shall be
entitled to the corresponding fraction of a dividend.
(3)
Liquidation, Dissolution or Winding-Up
In the event of the liquidation, dissolution or winding-up of the Company, whether voluntary or
involuntary, or in the event of any other distribution of assets of the Company among its
Members for the purpose of winding up its affairs, the holders of Subordinate Voting Shares
shall, subject to the prior rights of the holders of any shares of the Company ranking in priority
to the Subordinate Voting Shares, be entitled to participate ratably in the remaining property
of the Company along with all holders of the Multiple Voting Shares (on a per share basis).
Each fraction of a Subordinate Voting Share shall be entitled to the corresponding fraction of
any distribution paid on a Subordinate Voting Share.
(4)
Rights to Subscribe; Pre-emptive Rights
The holders of Subordinate Voting Shares are not entitled to a right of first refusal to subscribe
for, purchase or receive any part of any issue of shares, or bonds, debentures or other
securities of the Company now or in the future.
(5)
Subdivision or Consolidation
No subdivision or consolidation of the Subordinate Voting Shares shall occur unless,
simultaneously, the Multiple Voting Shares are subdivided or consolidated or otherwise
adjusted so as to maintain and preserve the relative rights of the holders of the shares of each
of the said classes. The Subordinate Voting Shares cannot be converted into any other class
of shares.
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13.2
(6)
Share Superior to Subordinate Voting Shares
Except for the Preference Shares and the Multiple Voting Shares (but only as it relates to
voting rights as set out in these Articles), the Company may take no action which would
authorize or create shares of any class or series having preferences superior to the
Subordinate Voting Shares without the approval of a majority of the votes cast by the holders
of outstanding Subordinate Voting Shares at a meeting called and held for such purpose or in
writing by the holders of a majority of outstanding Subordinate Voting Shares.
(7)
Renaming as Common Shares
At the effective time that no Multiple Voting Shares remain issued and outstanding following
the closing of the Qualifying Acquisition (including, without limitation, by the conversion of all
Multiple Voting Shares, in accordance with these Articles, into Subordinate Voting Shares), no
further Multiple Voting Shares shall be issued and the Subordinate Voting Shares may in the
discretion of the Directors henceforward be named “Common Shares”, and in such case all
references in these Articles to “Subordinate Voting Share” shall thereinafter refer to “Common
Share”.
In the event of a transaction or change proposed in Article 14.3(4), with the approval of a
Special Resolution of the holders of the Class B Shares and any approval by the holders of
Class A Restricted Voting Shares required under applicable Canadian securities laws, the
Subordinate Voting Shares may be made convertible into one or more other classes of shares
with similar economic rights but different voting rights related to directors, including without
limitation restricted or limited voting shares with special rights and restrictions of the nature in
place in the authorized share capital of Ayr Wellness Inc., a British Columbia company, on
March 31, 2024.
14
14.1
14.2
Terms of the Class A Restricted Voting Shares
The Class A Restricted Voting Shares of the Company shall consist of 100,000,000 shares designated as “Class A Restricted Voting Shares”. The special rights and restrictions attaching to the Class A Restricted Voting Shares are as follows.
Definitions
(a)
(b)
(c)
In this Article 14:
“Class A Automatic Redemption Price” means an amount per Class A Restricted
Voting Share, payable in cash, equal to the pro-rata portion of: (A) the escrowed funds
available in the Escrow Account, including any interest and other amounts earned
thereon, less (B) an amount equal to the total of (i) any applicable taxes payable by
the Company on such interest and other amounts earned in the Escrow Account, and
(ii) up to a maximum of $50,000 of interest and other amounts earned in the Escrow
Account to pay actual and expected Winding-Up expenses and certain other related
costs, each as reasonably determined by the Company;
“Class A Extension Redemption Price” means an amount per Class A Restricted
Voting Share, payable in cash, equal to the pro-rata portion of: (A) the escrowed funds
available in the Escrow Account at the time of the meeting of the Members of the
Company at which an Extension is approved, including any interest and other amounts
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(d)
(e)
(f)
(g)
(h)
(i)
(j) (k)
earned thereon, less (B) an amount equal to the total of (i) any applicable taxes payable by the Company on such interest and other amounts earned in the Escrow Account, and (ii) actual and expected expenses directly related to the redemption, each as reasonably determined by the Company. For greater certainty, such amount will not be reduced by the deferred underwriting commission per Class A Restricted Voting Share held in the Escrow Account;
“Class A Qualifying Acquisition Redemption Price” means an amount per Class A
Restricted Voting Share, payable in cash, equal to the pro-rata portion of: (A) the
escrowed funds available in the Escrow Account at the time immediately prior to the
redemption deposit deadline, including interest and other amounts earned thereon,
less (B) an amount equal to the total of (i) applicable taxes payable by the Company
on such interest and other amounts earned in the Escrow Account, and (ii) actual and
expected expenses directly related to the redemption, each as reasonably determined
by the Company. For greater certainty, such amount will not be reduced by the
deferred underwriting commission per Class A Restricted Voting Share held in the
Escrow Account;
“Escrow Agreement” means the escrow agreement entered into on or before the IPO
Closing Date among the Company, the Underwriter and the Escrow Agent as it may
be amended, restated and/or assigned;
“Exchange” means any stock exchange on which the securities of the Company are
listed for trading from time to time, including the Toronto Stock Exchange;
“Extension” means one or more extensions to the Permitted Timeline, up to a
maximum of 36 months from the IPO Closing Date, that has been approved by ordinary
resolution of the holders of the Class A Restricted Voting Shares and that is also
approved by the Directors (and with the consent of the Exchange, if required), in which
case the redemption rights in Article 14.5(2) shall apply;
“Extraordinary Dividend” means any dividend, together with all other dividends
payable in the same calendar year, that has an aggregate absolute dollar value which
is greater than $0.25 per share, with the adjustment to the applicable price (as the
context may require) being a reduction equal to the amount of the excess;
“IPO” means the Company’s initial public offering of its Class A restricted voting units,
each Class A restricted voting unit consisting of one Class A Restricted Voting Share,
one Warrant and one Right of the Company;
“IPO Closing Date” means the closing date of the IPO;
“Permitted Timeline” means the allowable time period within which the Company
must consummate its Qualifying Acquisition, being 18 months from the IPO Closing
Date (or 21 months from the IPO Closing Date if the Company has executed a
definitive agreement for a Qualifying Acquisition within 18 months from the IPO Closing
Date but has not completed the Qualifying Acquisition within such 18-month period),
as it may be extended pursuant to an Extension, and provided that, with 10 days’
advance notice by way of a news release, as it may be shortened with the approval of
the Directors, following the IPO Closing Date;
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14.3 (1)
(2)
(3)
(4)
(l)
(m)
(n)
“Redemption Limitation” means an aggregate of 15% of the Class A Restricted Voting Shares issued and outstanding immediately following the closing of the IPO (including, if applicable, following the closing of the IPO over-allotment option granted by the Company to the Underwriter);
“Sponsor” means Mercer Park III, L.P., a limited partnership formed under the laws of
the State of Delaware; and
“Winding-Up” means the liquidation and cessation of the business of the Company
and includes the related automatic redemption of Class A Restricted Voting Shares,
its applications to cease to be a reporting issuer and/or its winding-up and/or
dissolution.
Voting
Subject to Articles 14.3(4) and 14.3(5) below, the holders of the Class A Restricted Voting
Shares shall be entitled to receive notice of, and to attend and vote at all meetings of, the
Members of the Company (except where solely the holders of another specified class of shares
(other than the Class A Restricted Voting Shares) shall be entitled to vote at a meeting, in
which case, only such holders shall be entitled to receive notice of, and attend and vote at,
such meeting), including, for greater certainty, for an Extension, which shall be voted upon, by
Ordinary Resolution, by only the holders of Class A Restricted Voting Shares.
The holders of the Class A Restricted Voting Shares shall vote together with the holders of the
Class B Shares (as if a single class of shares) upon all matters submitted to a vote of Members,
excluding those matters required to be submitted solely to the holders of Class A Restricted
Voting Shares or the Class B Shares and those matters required to be submitted to a class
vote pursuant to the Statute or other Applicable Law. Subject to the foregoing sentence and
Articles 14.3(4) and 14.3(5) below, each Class A Restricted Voting Share shall confer the right
to one vote.
Subject to the Statute, the holders of the Class A Restricted Voting Shares shall not be entitled
to vote separately as a class or to dissent upon a proposal to amend the articles of the
Company to effect an exchange, reclassification or cancellation of Class A Restricted Voting
Shares carried out in connection with a Qualifying Acquisition that affects both the Class A
Restricted Voting Shares and the Class B Shares and that preserves economically the
redemption rights in respect of a Qualifying Acquisition of, and the conversion features of, the
Class A Restricted Voting Shares.
Notwithstanding the foregoing, prior to the completion of a Qualifying Acquisition, unless
otherwise required by the Statute or by the terms of such Qualifying Acquisition, and subject
to Article 13.2, the holders of Class A Restricted Voting Shares shall not be entitled to vote at,
or receive notice of or attend, meetings held only to consider:
(a)
(b)
(c)
(d)
a Qualifying Acquisition;
a change in the Company’s name;
a continuation under the laws of any other jurisdiction and de-registration under Part
XII of the Statute;
a merger or consolidation under Part XVI of the Statute; or
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(e)
a voluntary winding-up and/or dissolution under Part V of the Statute.
(5)
(6)
14.4
Notwithstanding the foregoing, prior to the completion of a Qualifying Acquisition, the holders
of Class A Restricted Voting Shares shall not be entitled to vote at, or receive notice of or
attend, meetings held only to consider the election and/or removal of Directors and/or Auditors
of the Company.
For greater certainty, notice shall not be required to be provided to the holders of Class A
Restricted Voting Shares in the event a written resolution of all the holders of Class B Shares
in lieu of a meeting of Members of the Company is approved.
Dividends
The holders of the Class A Restricted Voting Shares shall be entitled to receive, and the Company
shall pay in equal amounts per share on all Class A Restricted Voting Shares and Class B Shares at
the time outstanding, without preference or distinction, such non-cumulative dividends as the directors
of the Company may from time to time declare in their absolute discretion.
14.5
(1)
(2)
(3)
Redemption
In seeking to complete a Qualifying Acquisition on or before the expiration of the Permitted
Timeline, and subject to Article 14.5(3), Article 14.5(4) and Article 14.5(5), each of the holders
of Class A Restricted Voting Shares, will be provided the opportunity to redeem all or a portion
of their Class A Restricted Voting Shares, provided that they deposit (and do not validly
withdraw) their Class A Restricted Voting Shares for redemption prior to the deadline specified
by the Company, following public disclosure of the details of the Qualifying Acquisition and
prior to the closing of the Qualifying Acquisition, of which prior notice had been provided to the
holders of the Class A Restricted Voting Shares by any means permitted by the Exchange,
not less than 21 days nor more than 60 days in advance of such deadline, in each case, with
effect, subject to applicable law, immediately prior to the closing of the Qualifying Acquisition
for the Class A Qualifying Acquisition Redemption Price per Class A Restricted Voting Share
redeemed in accordance with the procedures set forth in this Article 14.5.
In the event that the Permitted Timeline is extended by way of an Extension then, subject to
Article 14.5(3), Article 14.5(4) and Article 14.5(5), each of the holders of Class A Restricted
Voting Shares, irrespective of whether such holders voted for or against, or did not vote on,
the Extension, will be entitled, provided that they deposit (and do not validly withdraw) their
Class A Restricted Voting Shares (or share certificate(s), as applicable) for redemption prior
to 5:00 p.m. (Toronto time) on the fifth Business Day before the meeting of holders of Class A
Restricted Voting Shares to consider the Extension, to require the Company, effective
immediately prior to the effective date of the Extension, to redeem all or a portion of such
holder’s Class A Restricted Voting Shares for the Class A Extension Redemption Price per
Class A Restricted Voting Share redeemed in accordance with the procedures set forth in this
Article 14.5.
Subject to Article 14.5(4) and Article 14.5(5) below, a holder of Class A Restricted Voting
Shares that is entitled, in accordance with Article 14.5(1) or Article 14.5(2) above, to require
the Company to redeem any or all of such holder’s Class A Restricted Voting Shares, may do
so by depositing such holder’s shares (or share certificate(s), as applicable), as provided in
Article 14.5(1) or Article 14.5(2) above, as applicable, in respect of all or any number of the
Class A Restricted Voting Shares registered in the name of such holder on the register of
members the Company. A holder of Class A Restricted Voting Shares electing to have the
119495761 v5
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(4)
(5)
(6)
14.6 (1)
Company redeem his, her or its Class A Restricted Voting Shares shall, at the time of deposit, give notice to the Company, in a form acceptable to the Company, of the number of the holder’s Class A Restricted Voting Shares to be redeemed (failing which, all of the holder’s Class A Restricted Voting Shares deposited shall be deemed to have been deposited to be redeemed). The holder of any Class A Restricted Voting Shares may, with the consent of the Company, revoke any such notices or deposits, as applicable, prior to the redemption date (being immediately prior to the closing of the Qualifying Acquisition or immediately prior to the effective date of the Extension, as applicable). Upon payment in cash of the Class A Qualifying Acquisition Redemption Price or the Class A Extension Redemption Price, as applicable, in respect of the Class A Restricted Voting Shares to be redeemed by the Company, the rights of the holders in respect of such Class A Restricted Voting Shares being redeemed, as Members, shall be extinguished in their entirety (including, but not limited to, the right to receive dividends), subject to Applicable Law.
If the redemption by the Company pursuant to this Article 14.5 of all of the Class A Restricted
Voting Shares to be redeemed would be contrary to any provisions of the Statute, these
Articles or any other Applicable Law, the Company shall be obligated to redeem only the
maximum number of Class A Restricted Voting Shares which the Company determines it is
then permitted to redeem, such redemptions to be made pro-rata (disregarding fractions of
shares) according to the number of Class A Restricted Voting Shares required by each such
holder to be redeemed by the Company, and the Company shall either issue new certificates
representing the Class A Restricted Voting Shares not redeemed by the Company, or shall
otherwise confirm such shares as issued and deposited in book-entry form.
Notwithstanding anything to the contrary in these share provisions including this Article 14.5,
no registered or beneficial holder of Class A Restricted Voting Shares (other than CDS
Clearing and Depositary Services Inc.) that, together with any affiliate thereof or any person
acting jointly or in concert therewith (within the meaning of Article 1.9 of National Instrument
62-104 – Takeover Bids and Issuer Bids as in effect on the IPO Closing Date), shall be entitled
to require the Company to redeem Class A Restricted Voting Shares in excess of the
Redemption Limitation, and such excess Class A Restricted Voting Shares shall be deemed
not to have been required to be redeemed. For greater certainty, the Redemption Limitation
shall not affect the voting rights of the holders of Class A Restricted Voting Shares and shall
not apply in the event of an Extension or the winding-up or dissolution of the Company or the
application of Article 14.6 hereof.
In the event a holder deposits his, her or its Class A Restricted Voting Shares (or share
certificate(s), as applicable) for redemption in accordance with Article 14.5(1) or Article 14.5(2),
and the Qualifying Acquisition is not approved or completed, or the Extension to the Permitted
Timeline is not approved or proceeded with, then such shares (or share certificate(s), as
applicable) so deposited will be returned to their respective registered holders (or re-deposited
with CDS Clearing and Depositary Services Inc., as applicable), and the rights of the holders
of the Class A Restricted Voting Shares so deposited, for the avoidance of doubt, shall
continue in accordance with the provisions herein.
Automatic Redemption
In the event that a Qualifying Acquisition is not completed within the Permitted Timeline, then
all of the then issued and outstanding Class A Restricted Voting Shares will, on an automatic
redemption date specified by the Company (such date to be within 10 days following the last
day of the Permitted Timeline), be automatically redeemed for the Class A Automatic
Redemption Price per Class A Restricted Voting Share. On such automatic redemption date,
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(2)
(3)
14.7 (1)
(2)
the Company shall pay or cause to be paid such amount to the holders of the Class A Restricted Voting Shares to be redeemed, on deposit of the certificates for the shares so redeemed and the certificates (if any) for such shares shall thereupon be cancelled, or on presentation of evidence of a book-entry deposit thereof, and the shares represented thereby shall thereupon be redeemed, as applicable. From and after the automatic redemption date, the rights of the holders of the Class A Restricted Voting Shares so redeemed shall be extinguished in their entirety (including, but not limited to, the right to receive further dividends), subject to Applicable Law, except the right to receive the Class A Automatic Redemption Price for each Class A Restricted Voting Share so redeemed, in cash, unless payment of the Class A Automatic Redemption Price shall not be made by the Company in accordance with the foregoing provisions, in which case the rights of the holders of such Class A Restricted Voting Shares shall remain unimpaired.
On or before the automatic redemption date, the Company shall have the right to deposit the
Class A Automatic Redemption Price of any Class A Restricted Voting Share(s) called for
redemption in a special account with any chartered bank or trust company in Canada, such
amount to be paid to, or to the order of, the respective holders of such shares called for
redemption upon deposit of the certificates representing the same, or upon evidence of a book-
entry deposit thereof (or other documents reasonably requested by the Company or the
Company’s transfer agent for the Class A Restricted Voting Shares properly completed), and,
upon such deposit being made, the Class A Restricted Voting Shares in respect of which such
deposit shall have been made shall be redeemed and the rights of the several holders thereof,
after such deposit, shall be limited to receiving, out of the moneys so deposited, without
interest on such deposited moneys, the Class A Automatic Redemption Price applicable to
their respective Class A Restricted Voting Shares against deposit of the certificates
representing such Class A Restricted Voting Shares (or via a book-entry) transfer and other
documents reasonably requested by the Company or the Company’s transfer agent for the
Class A Restricted Voting Shares, properly completed.
If the redemption by the Company pursuant to this Article 14.6 of all of the Class A Restricted
Voting Shares to be redeemed would be contrary to any provisions of the Statute or any other
Applicable Law, the Company shall be obligated to redeem only the maximum number of Class
A Restricted Voting Shares which the Company determines it is then permitted to redeem,
such redemptions to be made pro-rata (disregarding fractions of shares) according to the
number of Class A Restricted Voting Shares to be redeemed by the Company, and the
Company shall issue new certificates representing the Class A Restricted Voting Shares not
redeemed by the Company, or otherwise confirm such shares as issued and deposited in
book-entry form.
Winding-Up or Dissolution
In the event of the winding-up or dissolution of the Company, whether voluntary or involuntary,
and whether prior to or following the Permitted Timeline, the holders of the Class A Restricted
Voting Shares shall be entitled to receive, before any distribution of any part of the assets of
the Company among the holders of any other shares, for each Class A Restricted Voting Share
then outstanding, if any, an amount equal to the Class A Automatic Redemption Price, and no
more.
Payments to holders of Class A Restricted Voting Shares shall be made as provided in Article
14.6, mutatis mutandis.
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14.8
Anti-Dilution
In the event that the Class B Shares are at any time sub-divided, consolidated or changed into a
greater or lesser number of shares of the same or another class, or a stock dividend or Extraordinary
Dividend is paid on the Class B Shares, an appropriate adjustment, as determined by the Directors in
good faith, acting reasonably, shall be made in the rights and conditions attached to the Class A
Restricted Voting Shares so as to maintain the relative rights of the holders of those shares.
14.9
(1)
(2)
15
Conversion
Any Class A Restricted Voting Shares not required to be redeemed in accordance with this
Article 14.9 (and any unredeemed Class A Restricted Voting Shares) will be automatically
converted upon the closing of the Qualifying Acquisition into Subordinate Voting Shares on
the basis of one Subordinate Voting Share for each Class A Restricted Voting Share
converted.
This shall not prevent the Subordinate Voting Shares from being further affected under the
terms of a Qualifying Acquisition. Subordinate Voting Shares may be subject to forfeiture
and/or transfer restrictions as agreed to by the holders thereof.
Terms of Class B Shares
15.1
15.2
The Class B Shares of the Company shall consist of 100,000,000 shares designated as “Class B Shares”. The special rights and restrictions attaching to the Class B Shares are as follows.
Definitions
15.3
Voting
(a)
(b)
(c)
The holders of the Class B Shares shall be entitled to receive notice of, and to attend
and vote at, all meetings of the Members of the Company (except where solely the
holders of another specified class of shares (other than the Class B Shares) shall be
entitled to vote at a meeting, in which case, only such holders shall be entitled to
receive notice of, and attend and vote at, such meeting, including, for greater certainty,
for an Extension, which shall be voted upon, by Ordinary Resolution, by only the
holders of Class A Restricted Voting Shares).
The holders of the Class B Shares shall vote together with the holders of the Class A
Restricted Voting Shares (as if a single class of shares) upon all matters submitted to
a vote of Members, excluding those matters required to be submitted solely to the
holders of Class A Restricted Voting Shares, those matters that the Class A Restricted
Voting Shares are not entitled to vote on, and those matters required to be submitted
to a class vote pursuant to the Statute or other Applicable Law. Subject to the foregoing
sentence, each Class B Share shall confer the right to one vote.
Notwithstanding the above restrictions, conditions or prohibitions on the right to vote,
the holders of the Class B Shares shall be entitled to notice of meetings of Members
called for the purpose of considering:
(i)
the approval of a Qualifying Acquisition;
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15.4
15.5
15.6
15.7
(1)
(2)
(ii) (iii)
(iv)
(v)
a change in the Company’s name; a continuation under the laws of any other jurisdiction and de-registration under
Part XII of the Statute;
a merger or consolidation under Part XVI of the Statute; or
a voluntary winding-up and/or dissolution under Part V of the Statute.
Dividends
The holders of the Class B Shares shall be entitled to receive, and the Company shall pay in
equal amounts per share on all Class B Shares and Class A Restricted Voting Shares at the
time outstanding, without preference or distinction, such non-cumulative dividends as the
Directors may from time to time declare in their absolute discretion.
Winding-Up
Subject to the prior rights of the holders of the Class A Restricted Voting Shares and Applicable
Law, in the event of the winding-up or dissolution of the Company, whether voluntary or
involuntary, and whether prior to or following the Permitted Timeline, the holders of the Class
B Shares shall be entitled to receive the remaining property of the Company pro-rata, which
for greater certainty shall not include the escrowed funds available in the Escrow Account,
including any interest and other amounts earned thereon.
Anti-Dilution
In the event that the Class A Restricted Voting Shares are at any time sub-divided,
consolidated or changed into a greater or lesser number of shares of the same or another
class, or a stock dividend or Extraordinary Dividend is paid on the Class A Restricted Voting
Shares, an appropriate adjustment, as determined by the Directors in good faith, acting
reasonably, shall be made in the rights and conditions attached to the Class B Shares so as
to maintain the relative rights of the holders of those shares.
Conversion
Subject to clause (2) below, Class B Shares will be automatically converted upon the closing
of the Qualifying Acquisition into Multiple Voting Shares on the basis of one Multiple Voting
Share for each Class B Share converted.
The issuance of Multiple Voting Shares upon the conversion of Class B Shares upon the
closing of the Qualifying Acquisition is subject to either (a) minority shareholder approval under
OSC Rule 56-501, or (b) obtaining an exemption from such requirement. If neither (a) nor (b)
is received, then:
(a)
(b)
the Class B Shares will instead convert upon the closing of the Qualifying Acquisition
into Subordinate Voting Shares on the basis of one Subordinate Voting Share for each
Class B Share converted;
no further Multiple Voting Shares shall be issued; and
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(3)
16
16.1
(c)
Article 13.1(6) hereof may be used to change the name of the Subordinate Voting Shares into Common Shares.
This shall not prevent the Multiple Voting Shares or Subordinate Voting Shares from being
further affected under the terms of a Qualifying Acquisition. Multiple Voting Shares or
Subordinate Voting Shares may be subject to forfeiture and/or transfer restrictions as agreed
to by the holders thereof.
Terms of the Multiple Voting Shares
The Multiple Voting Shares shall consist of 10,000,000 shares designated as “Multiple Voting Shares”. The special rights and restrictions attaching to the Multiple Voting Shares are as follows:
(1)
(a)
Voting and Dissent Rights.
Holders of Multiple Voting Shares shall be entitled to notice of and to attend (if
applicable, virtually) any meeting of the Members of the Company. Holders of Multiple
Voting Shares shall be entitled to vote at any meeting of the Members of the Company,
and at each such meeting, shall be entitled to twenty-five (25) votes in respect of each
Multiple Voting Share held, except for a meeting of which only holders of another
particular class or series of Shares of the Company shall have the right to vote. Each
fraction of a Multiple Voting Share shall be entitled to the corresponding fraction of
twenty-five (25) votes.
Except as otherwise provided in these Articles or except as provided in the Statute,
Multiple Voting Shares and Subordinate Voting Shares are equal in all respects and
shall vote together as if they were shares of a single class.
In connection with any Change of Control Transaction requiring approval of the holders
of Multiple Voting Shares and Subordinate Voting Shares, holders of each such class
of Shares shall be treated equally and identically, on a per share basis, unless different
treatment of the shares of each such class is approved by a majority of the votes cast
by the holders of outstanding Multiple Voting Shares in respect of a resolution
approving such Change of Control Transaction, voting separately as a class at a
meeting of the holders of that class called and held for such purpose or in writing by
the holders of a majority of outstanding Multiple Voting Shares. and subject to the
provisions of Article 13.1(1)(c)
Notwithstanding the provisions of Article 16.1(1)(b), the holders of Multiple Voting
Shares shall be entitled to vote as a separate class, in addition to any other vote of
Members that may be required, in respect of any alteration, repeal or amendment of
these Articles which would: (i) adversely affect the rights or special rights of the holders
of Multiple Voting Shares (including an amendment to the terms of these Articles which
provide that any Multiple Voting Shares sold or transferred to a Person that is not a
Permitted Holder shall be automatically converted into Subordinate Voting Shares); or
(ii) affect the holders of Subordinate Voting Shares and Multiple Voting Shares
differently, on a per share basis; or (iii) except as already set forth herein or except for
the Preference Shares, create any class or series of shares ranking senior to the
Multiple Voting Shares; and in each case such alteration, repeal or amendment shall
not be effective unless a resolution in respect thereof is approved by a majority of the
(b)
(c)
(d)
119495761 v5
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(e)
(2)
(3)
(4)
(5)
votes cast by holders of outstanding Multiple Voting Shares or in writing by the holders of a majority of outstanding Multiple Voting Shares.
Registered holders of the Multiple Voting Shares shall be entitled to the same dissent
rights that they would be entitled to were the Company a corporation governed by the
Canada Business Corporations Act, with necessary changes unless dissent rights are
available under the Statute for the matter in question, in which case the dissent rights
available under the Statute shall apply in lieu of those provided for in this Article
16.1(1)(e). In particular, the applicable court shall be determined in accordance with
Article 49.2 hereof.
Dividends
Holders of Multiple Voting Shares shall be entitled to receive, as and when declared
by the Directors, dividends in cash or property of the Company. No dividend will be
declared or paid on the Subordinate Voting Shares unless the Company
simultaneously declares or pays, as applicable, equivalent dividends (on a per share
basis) on the Multiple Voting Shares. The Multiple Voting Shares shall rank equally
with the Subordinate Voting Shares as to dividends on a share-for-share basis, without
preference or distinction. In the event of the payment of a dividend in the form of
shares, holders of Multiple Voting Shares shall receive Multiple Voting Shares, unless
otherwise determined by the Directors, provided an equal number (on a per share
basis) of Subordinate Voting Shares is declared as a dividend or distribution on then
outstanding Subordinate Voting Shares. Each fraction of a Multiple Voting Share shall
be entitled to the corresponding fraction of a dividend.
Liquidation, Dissolution or Winding-Up
In the event of the liquidation, dissolution or winding-up of the Company, whether
voluntary or involuntary, or in the event of any other distribution of assets of the
Company among its Members for the purpose of winding up its affairs, the holders of
Multiple Voting Shares shall, subject to the prior rights of the holders of any shares of
the Company ranking in priority to the Multiple Voting Shares, be entitled to participate
ratably in the remaining property of the Company along with all the holders of
Subordinate Voting Shares (on a per share basis). Each fraction of a Multiple Voting
Share shall be entitled to the corresponding fraction of any distribution paid on a
Multiple Voting Share.
Rights to Subscribe; Pre-Emptive Rights
The holders of Multiple Voting Shares are not entitled to a right of first refusal to
subscribe for, purchase or receive any part of any issue of shares, or bonds,
debentures or other securities of the Company now or in the future.
Subdivision or Consolidation
No subdivision or consolidation of the Multiple Voting Shares shall occur unless,
simultaneously, the Subordinate Voting Shares are subdivided or consolidated or
otherwise adjusted so as to maintain and preserve the relative rights of the holders of
the shares of each of the said classes. Subject to Article 16.1(6), the Multiple Voting
Shares cannot be converted into any other class of shares.
119495761 v5
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(6)
(a)
(b)
Conversion of Multiple Voting Shares Holders of Multiple Voting Shares shall have conversion rights as follows: Right to Convert Each Multiple Voting Share shall be convertible, at the option of the holder thereof, at
any time after the date of issuance of such share at the office of the Company or any
transfer agent for such shares, on a one-for-one basis, into fully paid and non-
assessable Subordinate Voting Shares.
Automatic Conversion
(i)
(ii)
(iii)
(iv)
(v)
Upon the date that is 60 months from the date of first issuance of a Multiple
Voting Share, each Multiple Voting Share shall be automatically converted,
without any action on the part of the holder, into one fully paid and non-
assessable Subordinate Voting Share.
Upon the first date that any Multiple Voting Share shall be held by a Person
other than by a Permitted Holder, the Permitted Holder which held such
Multiple Voting Share until such date, without any further action, shall
automatically be deemed to have exercised his, her or its rights under Article
16.1(6)(a) to convert such Multiple Voting Share into one fully paid and non-
assessable Subordinate Voting Share.
Upon the first date that the aggregate number of Multiple Voting Shares held
by all Permitted Holders is reduced to a number which is less than 33 1/3% of
the aggregate number of Multiple Voting Shares held by all Permitted Holders
on the date of first issuance of the Multiple Voting Shares, each Permitted
Holder shall automatically be deemed, without further action, to have exercised
his, her or its rights under Article 16.1(6)(a) to convert all Multiple Voting
Shares held by such Permitted Holder into an equal number of fully paid and
non-assessable Subordinate Voting Shares.
A Multiple Voting Share that is converted into a Subordinate Voting Share or a
Class A Restricted Voting Share, in each case as applicable and as provided
for in Article 16.1(6)(b)(i), (ii) or (iii), will automatically be cancelled.
For the purposes hereof:
(A)
“Members of the Immediate Family” means with respect to any
individual, each parent (whether by birth or adoption), spouse or child
(including any step-child) or other descendants (whether by birth or
adoption) of such individual, each spouse of any of the aforementioned
Persons, each trust created solely for the benefit of such individual
and/or one or more of the aforementioned Persons, and each legal
representative of such individual or of any aforementioned Persons
(including without limitation a tutor, curator, mandatary due to
incapacity, custodian, guardian or testamentary executor), acting in
such capacity under the authority of the law, an order from a competent
tribunal, a will or a mandate in case of incapacity or similar instrument.
For the purposes of this definition, a Person shall be considered the
119495761 v5
25
(c)
(B)
(C)
spouse of an individual if such Person is legally married to such individual, lives in a civil union with such individual or is the common law partner of such individual. A Person who was the spouse of an individual within the meaning of this paragraph immediately before the death of such individual shall continue to be considered a spouse of such individual after the death of such individual;
“Permitted Holders” means (I) Jonathan Sandelman, Stephen
Andersons, Mina Mawani or Bernard Sucher and any Members of the
Immediate Family of any of them, (II) Mercer Park L.P., (III) Mercer
Park III, L.P., (IV) any investor in one or more of the Persons referred
to in clause (II) or (III) above, and (IV) any Person controlled, directly
or indirectly by one or more of the Persons referred to in clause (I), (II)
or (III) above; and
“Person” has the meaning assigned by the Securities Act and includes
a company or other body corporate wherever or however incorporated.
Mechanics of Conversion
Before any holder of Multiple Voting Shares shall be entitled to convert Multiple
Voting Shares into Subordinate Voting Shares, the holder thereof shall surrender
the certificate or certificates therefor, duly endorsed, at the office of the Company
or of any transfer agent for Subordinate Voting Shares, or the equivalent in any
non-certificated inventory system (such as, for example, a direct registration
system or electronic position) administered by any applicable depository or transfer
agent of the Company, and shall give written notice to the Company at its head
office, of the election to convert the same and the Subordinate Voting Shares
resulting therefrom shall be registered in the name of the registered holder of the
Multiple Voting Shares converted or, subject to payment by the registered holder
of any share transfer or applicable taxes and compliance with any other reasonable
requirements of the Company in respect of such transfer, in such name or names
as such registered holder may direct in writing. Upon receipt of such notice and
certificate or certificates and, as applicable, compliance with such other
requirements, the Company shall (or shall cause its transfer agent to), at its
expense, as soon as practicable thereafter, remove or cause the removal of such
holder from the register of members in respect of the Multiple Voting Shares for
which the conversion right is being exercised, add the holder (or any Person or
Persons in whose name or names such converting holder shall have directed the
resulting Subordinate Voting Shares to be registered) to the register of members
in respect of the resulting Subordinate Voting Shares, cancel or cause the
cancellation of the certificate or certificates representing such Multiple Voting
Shares and issue and deliver at such office to such holder, or to the nominee or
nominees of such holder, a certificate or certificates or the equivalent in any
noncertificated inventory system (such as, for example, a direct registration system
or electronic position) administered by any applicable depository or transfer agent
of the Company, representing the Subordinate Voting Shares issued upon the
conversion of such Multiple Voting Shares. Such conversion shall be deemed to
have been made immediately prior to the close of business on the date of such
surrender of the Multiple Voting Shares to be converted, and the Person or
Persons entitled to receive the Subordinate Voting Shares issuable upon such
conversion shall be treated for all purposes as the record holder or holders of such
119495761 v5
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17
17.1
Subordinate Voting Shares as of such date. If less than all of the Multiple Voting Shares represented by any certificate are to be converted, the holder shall be entitled to receive a new certificate representing the Multiple Voting Shares represented by the original certificate which are not to be converted. A Multiple Voting Share that is converted into a Subordinate Voting Share as provided for in this Article 16.1(f)(iii) will automatically be cancelled.
(d)
(7)
(8) (a)
(b)
Effect of Conversion
All Multiple Voting Shares which shall have been surrendered for conversion as herein
provided shall no longer be deemed to be outstanding and all rights with respect to
such shares shall immediately cease and terminate at the time of conversion, except
only the right of the holders thereof to receive Subordinate Voting Shares in exchange
therefor.
Transfer of Multiple Voting Shares
Except in accordance with the provisions of any coattail agreement dated the same
date as the Multiple Voting Shares are first issued or as expressly provided herein,
and except for transfers to Permitted Holders or conversion into Subordinate Voting
Shares, no Multiple Voting Share may be sold, transferred, assigned, pledged or
otherwise disposed of without the written consent of the Directors, and the Directors
are not required to give any reason for refusing to consent to any such sale, transfer
of disposition.
Share Superior to Multiple Voting Shares
Except for the Preference Shares, the Company may take no action which would
authorize or create shares of any class or series having preferences superior to the
Multiple Voting Shares without the approval of a majority of the votes cast by the
holders of outstanding Multiple Voting Shares at a meeting called and held for such
purpose or in writing by the holders of a majority of outstanding Multiple Voting Shares.
At any meeting of holders of Multiple Voting Shares called to consider such matter,
each Multiple Voting Share will entitle the holder to one (1) vote and each fraction of a
Multiple Voting Share shall entitle the holder to the corresponding fraction of one (1)
vote.
Terms of the Preference Shares
The Directors are authorized to provide for the issuance of 40,000,000 Preference Shares in one or more series, and to establish from time to time the number of shares to be included in each such series, and to fix the terms, including designation, powers, preferences, rights, qualifications, limitations and restrictions of the shares of each such series (and, for the avoidance of doubt, such matters and the issuance of such Preference Shares shall not, subject to the terms of any other series of Preference Shares, be deemed to vary the rights attached to any other class of Shares or any other series of Preference Shares). The authority of the Directors with respect to each series shall include, but not be limited to, determination of the following:
(1)
the number of shares constituting that series and the distinctive designation of that
series;
119495761 v5
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17.2
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
the dividend rate on the shares of that series, whether dividends shall be cumulative and, if so, from which date or dates, and the relative rights of priority, if any, of the payment of dividends on shares of that series;
whether the series shall have voting rights, in addition to the voting rights provided by
law and, if so, the terms of such voting rights;
whether the series shall have conversion or exchange privileges (including, without
limitation, conversion into Subordinate Voting Shares) and, if so, the terms and
conditions of such conversion or exchange, including provision for adjustment of the
conversion or exchange rate in such events as the Directors shall determine;
whether or not the shares of that series shall be redeemable or repurchaseable and, if
so, the terms and conditions of such redemption or repurchase, including the manner
of selecting shares for redemption or repurchase if less than all shares are to be
redeemed or repurchased, the date or dates upon or after which they shall be
redeemable or repurchaseable, and the amount per share payable in case of
redemption or repurchase, which amount may vary under different conditions and at
different redemption or repurchase dates;
whether that series shall have a sinking fund for the redemption or repurchase of
shares of that series and, if so, the terms and amount of such sinking fund;
the right of the shares of that series to the benefit of conditions and restrictions upon
the creation of indebtedness of the Company or any subsidiary, upon the issue of any
additional shares (including additional shares of such series or any other series) and
upon the payment of dividends or the making of other distributions on, and the
purchase, redemption or other acquisition by the Company or any subsidiary of any
issued shares of the Company;
the rights of the shares of that series in the event of voluntary or involuntary liquidation,
dissolution or winding up of the Company, and the relative rights of priority, if any, of
payment in respect of shares of that series;
the rights of holders of that series to elect or appoint directors, if any; and
any other relative participating, optional or other special rights, qualifications,
limitations or restrictions of that series.
Any Preference Shares of any series which have been redeemed (whether through the
operation of a sinking fund or otherwise) or which, if convertible or exchangeable, have been
converted into or exchanged for shares of any other class or classes shall have the status of
authorized and unissued Preference Shares of the same series and may be reissued as a part
of the series of which they were originally a part or may be reclassified and reissued as part of
a new series of Preference Shares to be created by resolution or resolutions of the Directors
or as part of any other series of Preference Shares, all subject to the conditions and the
restrictions on issuance set forth in the resolution or resolutions adopted by the Directors
providing for the issue of any series of Preference Shares.
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18
18.1
18.2
18.3
19
19.1
Transmission of Shares
If a Member dies, the survivor or survivors (where he was a joint holder), or his legal personal representatives (where he was a sole holder), shall be the only persons recognized by the Company as having any title to his Shares. The estate of a deceased Member is not thereby released from any liability in respect of any Share, for which he was a joint or sole holder.
Any person becoming entitled to a Share in consequence of the death or bankruptcy or
liquidation or dissolution of a Member (or in any other way than by transfer) may, upon such
evidence being produced as may be required by the Directors, elect, by a notice in writing sent
by him to the Company, either to become the holder of such Share or to have some person
nominated by him registered as the holder of such Share. If he elects to have another person
registered as the holder of such Share he shall sign an instrument of transfer of that Share to
that person. The Directors shall, in either case, have the same right to decline or suspend
registration as they would have had in the case of a transfer of the Share by the relevant
Member before his death or bankruptcy or liquidation or dissolution, as the case may be.
A person becoming entitled to a Share by reason of the death or bankruptcy or liquidation or
dissolution of a Member (or in any other case than by transfer) shall be entitled to the same
Dividends, other distributions and other advantages to which he would be entitled if he were
the holder of such Share. However, he shall not, before becoming a Member in respect of a
Share, be entitled in respect of it to exercise any right conferred by membership in relation to
general meetings of the Company and the Directors may at any time give notice requiring any
such person to elect either to be registered himself or to have some person nominated by him
be registered as the holder of the Share (but the Directors shall, in either case, have the same
right to decline or suspend registration as they would have had in the case of a transfer of the
Share by the relevant Member before his death or bankruptcy or liquidation or dissolution or
any other case than by transfer, as the case may be). If the notice is not complied with within
ninety days of being received or deemed to be received (as determined pursuant to the
Articles), the Directors may thereafter withhold payment of all Dividends, other distributions,
bonuses or other monies payable in respect of the Share until the requirements of the notice
have been complied with.
Amendments of Memorandum and Articles of Association and Alteration of Capital
The Company may by Ordinary Resolution:
(1)
(2)
(3)
(4)
increase its share capital by such sum as the Ordinary Resolution shall prescribe and
with such rights, priorities and privileges annexed thereto, as the Company in general
meeting may determine;
consolidate and divide all or any of its share capital into Shares of larger amount than
its existing Shares;
convert all or any of its paid-up Shares into stock, and reconvert that stock into paid-
up Shares of any denomination;
by subdivision of its existing Shares or any of them divide the whole or any part of its
share capital into Shares of smaller amount than is fixed by the Memorandum or into
Shares without par value; and
119495761 v5
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19.2
19.3
19.4
20
20.1
20.2
20.3
20.4
(5)
cancel any Shares that at the date of the passing of the Ordinary Resolution have not been taken or agreed to be taken by any person and diminish the amount of its share capital by the amount of the Shares so cancelled.
All new Shares created in accordance with the provisions of the preceding Article shall be
subject to the same provisions of the Articles with reference to the payment of calls, liens,
transfer, transmission, forfeiture and otherwise as the Shares in the original share capital.
Subject to the provisions of the Statute, the provisions of the Articles as regards the matters
to be dealt with by Ordinary Resolution and Articles 14, 15, 29.4 and 47.2, the Company may
by Special Resolution:
(1)
(2)
(3)
(4)
change its name;
alter or add to the Articles;
alter or add to the Memorandum with respect to any objects, powers or other matters
specified therein; and
reduce its share capital or any capital redemption reserve fund.
Notwithstanding anything to the contrary in these Articles, for as long as Shares of the
Company are listed on the Toronto Stock Exchange, no Article may be rescinded, altered or
amended and no new Article may be added without the written approval of The Toronto Stock
Exchange and the concurrence of the Ontario Securities Commission.
General Meetings
All general meetings other than annual general meetings shall be called extraordinary general meetings.
The Company may but, shall not (unless required by the Statute) be obliged to, in each year
hold a general meeting as its annual general meeting, and shall specify the meeting as such
in the notices calling it. Any annual general meeting shall be held at such time and place as
the Directors shall appoint; provided that no such meeting shall be held in Canada or the
United States. At these meetings the report of the Directors (if any) shall be presented.
The Directors, the chief executive officer or the chairperson of the board of Directors may call
general meetings, and, for the avoidance of doubt, Members shall not have the ability to call
general meetings.
Members seeking to bring business before the annual general meeting (other than to nominate
candidates for appointment as Directors at the annual general meeting) must deliver notice to
the principal executive offices of the Company not less than 120 calendar days before the date
of the Company's proxy statement released to Members in connection with the previous year's
annual general meeting or, if the Company did not hold an annual general meeting the
previous year, or if the date of the current year's annual general meeting has been changed
by more than 30 days from the date of the previous year's annual general meeting, then the
deadline shall be set by the board of Directors with such deadline being a reasonable time
before the Company begins to print and send its related proxy materials.
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21
21.1
21.2
21.3
22
22.1
22.2
22.3
22.4
22.5
Notice of General Meetings
At least 21clear days' notice shall be given of any general meeting. Every notice shall specify
the place, the day and the hour of the meeting and the general nature of the business to be conducted at the general meeting and shall be given in the manner hereinafter mentioned or in such other manner if any as may be prescribed by the Company, provided that a general meeting of the Company shall, whether or not the notice specified in this Article has been given and whether or not the provisions of the Articles regarding general meetings have been complied with, be deemed to have been duly convened if it is so agreed:
(1)
(2)
in the case of an annual general meeting, by all of the Members entitled to attend and
vote thereat; and
in the case of an extraordinary general meeting, by a majority in number of the
Members having a right to attend and vote at the meeting, together holding not less
than ninety-five per cent in par value of the Shares giving that right.
The accidental omission to give notice of a general meeting to, or the non-receipt of notice of
a general meeting by, any person entitled to receive such notice shall not invalidate the
proceedings of that general meeting.
The Directors may set a record date for purposes of determining Members entitled to receive
notice of and/or vote at general meetings.
Proceedings at General Meetings
No business shall be transacted at any general meeting unless a quorum is present. The holders of 25% of the Shares being individuals present in person or by proxy or if a corporation or other non-natural person by its duly authorized representative or proxy shall be a quorum.
A person may participate at a general meeting by conference telephone or other
communications equipment by means of which all the persons participating in the meeting can
communicate with each other. Participation by a person in a general meeting in this manner is
treated as presence in person at that meeting.
A resolution (including a Special Resolution) in writing (in one or more counterparts) signed by
or on behalf of all of the Members for the time being entitled to receive notice of and to attend
and vote at general meetings (or, being corporations or other non-natural persons, signed by
their duly authorized representatives) shall be as valid and effective as if the resolution had
been passed at a general meeting of the Company duly convened and held.
If a quorum is not present within half an hour from the time appointed for the meeting to
commence, the meeting shall stand adjourned to the same day in the next week at the same
time and/or place or to such other day, time and/or place (other than a location within Canada
or the United States) as the Directors may determine, and if at the adjourned meeting a quorum
is not present within half an hour from the time appointed for the meeting to commence, the
Members present shall be a quorum.
The Directors may, at any time prior to the time appointed for the meeting to commence,
appoint any person to act as chairperson of a general meeting of the Company or, if the
Directors do not make any such appointment, the chairperson, if any, of the board of Directors
shall preside as chairperson at such general meeting. If there is no such chairperson, or if he
119495761 v5
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22.6
22.7
22.8
22.9
shall not be present within fifteen minutes after the time appointed for the meeting to commence, or is unwilling to act, the Directors present shall elect one of their number to be chairperson of the meeting.
If no Director is willing to act as chairperson or if no Director is present within fifteen minutes
after the time appointed for the meeting to commence, the Members present shall choose one
of their number to be chairperson of the meeting.
The chairperson may, with the consent of a meeting at which a quorum is present (and shall if
so directed by the meeting) adjourn the meeting from time to time and from place to place
(other than to a location within Canada or the United States), but no business shall be
transacted at any adjourned meeting other than the business left unfinished at the meeting
from which the adjournment took place.
When a general meeting is adjourned for thirty days or more, notice of the adjourned meeting
shall be given as in the case of an original meeting. Otherwise, it shall not be necessary to
give any such notice of an adjourned meeting.
If a notice is issued in respect of a general meeting and the Directors, in their absolute
discretion, consider that it is impractical or undesirable for any reason to hold that general
meeting at the place, the day and the hour specified in the notice calling such general meeting,
the Directors may postpone the general meeting to another place, day and/or hour provided
that notice of the place, the day and the hour of the rearranged general meeting is promptly
given to all Members. No business shall be transacted at any postponed meeting other than
the business specified in the notice of the original meeting.
22.10When a general meeting is postponed for thirty days or more, notice of the postponed meeting
shall be given as in the case of an original meeting. Otherwise, it shall not be necessary to
give any such notice of a postponed meeting. All proxy forms submitted for the original general
meeting shall remain valid for the postponed meeting. The Directors may postpone a general
meeting which has already been postponed.
A resolution put to the vote of the meeting shall be decided on a poll.
A poll shall be taken as the chairperson directs, and the result of the poll shall be deemed to
be the resolution of the general meeting at which the poll was demanded.
A poll demanded on the election of a chairperson or on a question of adjournment shall be
taken forthwith. A poll demanded on any other question shall be taken at such date, time and
place (other than at a location within Canada or the United States) as the chairperson of the
general meeting directs, and any business other than that upon which a poll has been
demanded or is contingent thereon may proceed pending the taking of the poll.
In the case of an equality of votes the chairperson shall not be entitled to a second or casting
vote.
Votes of Members
22.11
22.12
22.13
22.14
23
23.1
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23.2
23.3
23.4
23.5
23.6
23.7
24
24.1
24.2
In the case of joint holders the vote of the senior holder who tenders a vote, whether in person or by proxy (or, in the case of a corporation or other non-natural person, by its duly authorized representative or proxy), shall be accepted to the exclusion of the votes of the other joint holders, and seniority shall be determined by the order in which the names of the holders stand in the Register of Members.
A Member of unsound mind, or in respect of whom an order has been made by any court,
having jurisdiction in lunacy, may vote by his committee, receiver, curator bonis, or other
person on such Member's behalf appointed by that court, and any such committee, receiver,
curator bonis or other person may vote by proxy.
No person shall be entitled to vote at any general meeting unless he is registered as a Member
on the record date for such meeting nor unless all calls or other monies then payable by him
in respect of Shares have been paid.
No objection shall be raised as to the qualification of any voter except at the general meeting
or adjourned general meeting at which the vote objected to is given or tendered and every
vote not disallowed at the meeting shall be valid. Any objection made in due time in accordance
with this Article shall be referred to the chairperson whose decision shall be final and
conclusive.
Votes may be cast either personally or by proxy (or in the case of a corporation or other non-
natural person by its duly authorized representative or proxy). A Member may appoint more
than one proxy or the same proxy under one or more instruments to attend and vote at a
meeting. Where a Member appoints more than one proxy the instrument of proxy shall specify
the number of Shares in respect of which each proxy is entitled to exercise the related votes.
A Member holding more than one Share need not cast the votes in respect of his Shares in
the same way on any resolution and therefore may vote a Share or some or all such Shares
either for or against a resolution and/or abstain from voting a Share or some or all of the Shares
and, subject to the terms of the instrument appointing him, a proxy appointed under one or
more instruments may vote a Share or some or all of the Shares in respect of which he is
appointed either for or against a resolution and/or abstain from voting a Share or some or all
of the Shares in respect of which he is appointed.
Proxies
The instrument appointing a proxy shall be in writing and shall be executed under the hand of the appointor or of his attorney duly authorized in writing, or, if the appointor is a corporation or other non-natural person, under the hand of its duly authorized representative. A proxy need not be a Member.
The Directors may, in the notice convening any meeting or adjourned meeting, or in an
instrument of proxy sent out by the Company, specify the manner by which the instrument
appointing a proxy shall be deposited and the place and the time (being not later than the time
appointed for the commencement of the meeting or adjourned meeting to which the proxy
relates) at which the instrument appointing a proxy shall be deposited. In the absence of any
such direction from the Directors in the notice convening any meeting or adjourned meeting or
in an instrument of proxy sent out by the Company, the instrument appointing a proxy shall be
deposited physically at the Registered Office not less than 48 hours before the time appointed
for the meeting or adjourned meeting to commence at which the person named in the
instrument proposes to vote.
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24.3
24.4
24.5
25
25.1
25.2
26
27
27.1
The chairperson may in any event at his discretion declare that an instrument of proxy shall be deemed to have been duly deposited. An instrument of proxy that is not deposited in the manner permitted, or which has not been declared to have been duly deposited by the chairperson, shall be invalid.
The instrument appointing a proxy may be in any usual or common form (or such other form
as the Directors may approve) and may be expressed to be for a particular meeting or any
adjournment thereof or generally until revoked. An instrument appointing a proxy shall be
deemed to include the power to demand or join or concur in demanding a poll.
Votes given in accordance with the terms of an instrument of proxy shall be valid
notwithstanding the previous death or insanity of the principal or revocation of the proxy or of
the authority under which the proxy was executed, or the transfer of the Share in respect of
which the proxy is given unless notice in writing of such death, insanity, revocation or transfer
was received by the Company at the Registered Office before the commencement of the
general meeting, or adjourned meeting at which it is sought to use the proxy.
Corporate Members
Any corporation or other non-natural person which is a Member may in accordance with its constitutional documents, or in the absence of such provision by resolution of its directors or other governing body, authorize such person as it thinks fit to act as its representative at any meeting of the Company or of any class of Members, and the person so authorized shall be entitled to exercise the same powers on behalf of the corporation which he represents as the corporation could exercise if it were an individual Member.
If a Clearing House (or its nominee(s)), being a corporation, is a Member, it may authorize
such persons as it sees fit to act as its representative at any meeting of the Company or at
any meeting of any class of Members provided that the authorization shall specify the number
and class of Shares in respect of which each such representative is so authorized. Each
person so authorized under the provisions of this Article shall be deemed to have been duly
authorized without further evidence of the facts and be entitled to exercise the same rights and
powers on behalf of the Clearing House (or its nominee(s)) as if such person was the registered
holder of such Shares held by the Clearing House (or its nominee(s)).
Shares that May Not be Voted
Shares in the Company that are beneficially owned by the Company shall not be voted, directly or indirectly, at any meeting and shall not be counted in determining the total number of outstanding Shares at any given time.
Directors
There shall be a board of Directors consisting of such number of Directors being not less than three (3) Directors and not more than (15) Directors as the Directors may by resolution from time to time determine, provided always that: (a) at no time may a majority of Directors be residents of Canada for tax purposes and no person may be appointed a Director where that appointment would cause a majority of Directors to be resident of Canada for tax purposes; and (b) at no time may a majority of Directors be residents of the United States for tax purposes and no person may be appointed a Director where that appointment would cause a majority of Directors to be resident of the United States for tax purposes.
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27.2
28
28.1
28.2
28.3
28.4
29
29.1
29.2
Except as the Statute or other Applicable Law may otherwise require, in the interim between annual general meetings or extraordinary general meetings called for the appointment of Directors and/or the removal of one or more Directors and the filling of any vacancy in that connection, additional Directors and any vacancies in the board of Directors, including unfilled vacancies resulting from the removal of Directors for cause, may be filled by the vote of a majority of the remaining Directors then in office, although less than a quorum (as defined in the Articles), or by the sole remaining Director. All Directors shall hold office until the expiration of their respective terms of office and until their successors shall have been appointed and qualified. A Director appointed to fill a vacancy resulting from the death, resignation or removal of a Director shall serve for the remainder of the full term of the Director whose death, resignation or removal shall have created such vacancy and until his successor shall have been appointed and qualified.
Powers of Directors
Subject to the provisions of the Statute, the Memorandum and the Articles and to any directions given by Special Resolution, the business of the Company shall be managed by the Directors who may exercise all the powers of the Company. No alteration of the Memorandum or Articles and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given. A duly convened meeting of Directors at which a quorum is present may exercise all powers exercisable by the Directors.
All cheques, promissory notes, drafts, bills of exchange and other negotiable or transferable
instruments and all receipts for monies paid to the Company shall be signed, drawn, accepted,
endorsed or otherwise executed as the case may be in such manner as the Directors shall
determine by resolution.
The Directors on behalf of the Company may pay a gratuity or pension or allowance on
retirement to any Director who has held any other salaried office or place of profit with the
Company or to his widow or dependents and may make contributions to any fund and pay
premiums for the purchase or provision of any such gratuity, pension or allowance.
The Directors may exercise all the powers of the Company to borrow money and to mortgage
or charge its undertaking, property and assets (present and future) and uncalled capital or any
part thereof and to issue debentures, debenture stock, mortgages, bonds and other such
securities whether outright or as security for any debt, liability or obligation of the Company or
of any third party.
Appointment and Removal of Directors
Prior to the closing of a Qualifying Acquisition, the Company may by Ordinary Resolution of the holders of the Class B Shares appoint any person to be a Director or may by Ordinary Resolution of the holders of the Class B Shares remove any Director. For the avoidance of doubt, prior to the closing of a Qualifying Acquisition, holders of Class A Restricted Voting Shares shall have no right to vote on the appointment or removal of any Director.
The Directors may appoint any person to be a Director, either to fill a vacancy or as an
additional Director provided that the appointment does not cause the number of Directors to
exceed any number fixed by or in accordance with the Articles as the maximum number of
Directors, but following the closing of a Qualifying Acquisition the total number of Directors so
119495761 v5
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29.3
29.4
30
appointed may not exceed one-third of the number of directors elected at the previous annual meeting of Members.
After the closing of a Qualifying Acquisition, the Company may by Ordinary Resolution appoint
any person to be a Director or may by Ordinary Resolution remove any Director.
Prior to the closing of a Qualifying Acquisition, Article 29.1 may only be amended by a Special
Resolution passed by at least two-thirds of Members (which shall include a majority of the
holders of the Class B Shares) as, being entitled to do so, vote in person or, where proxies
are allowed, by proxy at a general meeting of which notice specifying the intention to propose
the resolution as a special resolution has been given, or by way of unanimous written
resolution.
Vacation of Office of Director
The office of a Director shall be vacated if:
(a) (b)
(c)
(d)
(e)
the Director gives notice in writing to the Company that he resigns the office of Director; the Director absents himself (for the avoidance of doubt, without being represented by
proxy) from three consecutive meetings of the board of Directors without special leave
of absence from the Directors, and the Directors pass a resolution that he has by
reason of such absence vacated office;
the Director dies, becomes bankrupt or makes any arrangement or composition with
his creditors generally;
the Director is found to be or becomes of unsound mind; or
all of the other Directors (being not less than two in number) determine that he should
be removed as a Director, either by a resolution passed by all of the other Directors at
a meeting of the Directors duly convened and held in accordance with the Articles or
by a resolution in writing signed by all of the other Directors.
31
Proceedings of Directors
31.1
31.2
31.3
31.4
The quorum for the transaction of the business of the Directors may be fixed by the Directors, and unless so fixed shall be a majority of the Directors then in office.
Subject to the provisions of the Articles, the Directors may regulate their proceedings as they
think fit. Questions arising at any meeting shall be decided by a majority of votes. In the case
of an equality of votes, the chairperson shall not have a second or casting vote.
A person may participate in a meeting of the Directors or any committee of Directors by
conference telephone or other communications equipment by means of which all the persons
participating in the meeting can communicate with each other at the same time. Participation
by a person in a meeting in this manner is treated as presence in person at that meeting.
A resolution in writing (in one or more counterparts) signed by all the Directors or all the
members of a committee of the Directors or, in the case of a resolution in writing relating to
the removal of any Director or the vacation of office by any Director, all of the Directors other
than the Director who is the subject of such resolution shall be as valid and effectual as if it
119495761 v5
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31.5
31.6
31.7
31.8
31.9
31.10
32
33
33.1
had been passed at a meeting of the Directors, or committee of Directors as the case may be, duly convened and held.
A Director may, or other Officer on the direction of a Director shall, call a meeting of the
Directors by at least two days' notice in writing to every Director which notice shall set forth the
general nature of the business to be considered unless notice is waived by all the Directors
either at, before or after the meeting is held. To any such notice of a meeting of the Directors
all the provisions of the Articles relating to the giving of notices by the Company to the
Members shall apply mutatis mutandis.
The continuing Directors (or a sole continuing Director, as the case may be) may act
notwithstanding any vacancy in their body, but if and so long as their number is reduced below
the number fixed by or pursuant to the Articles as the necessary quorum of Directors the
continuing Directors or Director may act for the purpose of increasing the number of Directors
to be equal to such fixed number, or of summoning a general meeting of the Company, but for
no other purpose.
The Directors may elect a chairperson of their board and determine the period for which he is
to hold office; but if no such chairperson is elected, or if at any meeting the chairperson is not
present within five minutes after the time appointed for the meeting to commence, the Directors
present may choose one of their number to be chairperson of the meeting.
All acts done by any meeting of the Directors or of a committee of the Directors shall,
notwithstanding that it is afterwards discovered that there was some defect in the appointment
of any Director, and/or that they or any of them were disqualified, and/or had vacated their
office and/or were not entitled to vote, be as valid as if every such person had been duly
appointed and/or not disqualified to be a Director and/or had not vacated their office and/or
had been entitled to vote, as the case may be.
A Director may be represented at any meetings of the board of Directors by a proxy appointed
in writing by him. The proxy shall count towards the quorum and the vote of the proxy shall for
all purposes be deemed to be that of the appointing Director.
All Directors shall have the same voting rights.
Presumption of Assent
A Director who is present at a meeting of the board of Directors at which action on any Company matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent from such action with the person acting as the chairperson or secretary of the meeting before the adjournment thereof or shall forward such dissent by registered post to such person immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted in favour of such action.
Directors' Interests
A Director may hold any other office or place of profit under the Company (other than the office of Auditor) in conjunction with his office of Director for such period and on such terms as to remuneration and otherwise as the Directors may determine.
119495761 v5
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33.2
33.3
33.4
33.5
34
35
35.1
35.2
A Director may act by himself or by, through or on behalf of his firm in a professional capacity for the Company and he or his firm shall be entitled to remuneration for professional services as if he were not a Director.
A Director may be or become a director or other officer of or otherwise interested in any
company promoted by the Company or in which the Company may be interested as a
shareholder, a contracting party or otherwise, and no such Director shall be accountable to
the Company for any remuneration or other benefits received by him as a director or officer of,
or from his interest in, such other company.
No person shall be disqualified from the office of Director or prevented by such office from
contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such
contract or any contract or transaction entered into by or on behalf of the Company in which
any Director shall be in any way interested be or be liable to be avoided, nor shall any Director
so contracting or being so interested be liable to account to the Company for any profit realized
by or arising in connection with any such contract or transaction by reason of such Director
holding office or of the fiduciary relationship thereby established. A Director shall not vote in
respect of any contract or transaction in which he is interested (other than a contract or
transaction that relates primarily to his or her remuneration, or that relates to an indemnity or
insurance or is with an affiliate) and the nature of the interest of any Director in any such
contract or transaction shall be disclosed by him at or prior to its consideration and any vote
thereon.
A general notice that a Director is a shareholder, director, officer or employee of any specified
firm or company and is to be regarded as interested in any contract or transaction with such
firm or company shall be sufficient disclosure for the purposes of disclosing an interest in
relation to the contract or transaction, and after such general notice it shall not be necessary
to give special notice relating to any particular contract or transaction.
Minutes
The Directors shall cause minutes to be made in books kept for the purpose of recording all appointments of Officers made by the Directors, all proceedings at meetings of the Company or the holders of any class of Shares and of the Directors, and of committees of the Directors, including the names of the Directors present at each meeting.
Delegation of Directors' Powers
The Directors may delegate any of their powers, authorities and discretions, including the power to sub-delegate, to any committee consisting of one or more Directors (including, without limitation, the Audit Committee, the Compensation Committee and the Nominating Committee). Any such delegation may be made subject to any conditions the Directors may impose and either collaterally with or to the exclusion of their own powers and any such delegation may be revoked or altered by the Directors. Subject to any such conditions, the proceedings of a committee of Directors shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying.
The Directors may establish any committees, local boards or agencies or appoint any person
to be a manager or agent for managing the affairs of the Company and may appoint any person
to be a member of such committees, local boards or agencies. Any such appointment may be
made subject to any conditions the Directors may impose, and either collaterally with or to the
exclusion of their own powers and any such appointment may be revoked or altered by the
119495761 v5
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35.3
35.4
35.5
35.6
36
Directors. Subject to any such conditions, the proceedings of any such committee, local board or agency shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying.
The Directors may adopt formal written charters for committees and, if so adopted, shall review
and assess the adequacy of such formal written charters on an annual basis. Each of these
committees shall be empowered to do all things necessary to exercise the rights of such
committee set forth in the Articles and shall have such powers as the Directors may delegate
pursuant to the Articles and as required by the rules and regulations of the Designated Stock
Exchange, the Ontario Securities Commission and/or any other competent regulatory authority
or otherwise under Applicable Law. Each of the Audit Committee, the Compensation
Committee and the Nominating Committee, if established, shall consist of such number of
Directors as the Directors shall from time to time determine (or such minimum number as may
be required from time to time by the rules and regulations of the Designated Stock Exchange,
the Ontario Securities Commission and/or any other competent regulatory authority or
otherwise under Applicable Law). For so long as any class of Shares is listed on the
Designated Stock Exchange, the Audit Committee shall be made up of such number of
Independent Directors as is required from time to time by the rules and regulations of the
Designated Stock Exchange, the Ontario Securities Commission and/or any other competent
regulatory authority or otherwise under Applicable Law.
The Directors may by power of attorney or otherwise appoint any person to be the agent of
the Company on such conditions as the Directors may determine, provided that the delegation
is not to the exclusion of their own powers and may be revoked by the Directors at any time.
For greater certainty, the Directors shall appoint a transfer agent in Toronto, Ontario for as
long as Shares of the Company are listed on the Toronto Stock Exchange.
The Directors may by power of attorney or otherwise appoint any company, firm, person or
body of persons, whether nominated directly or indirectly by the Directors, to be the attorney
or authorized signatory of the Company for such purpose and with such powers, authorities
and discretions (not exceeding those vested in or exercisable by the Directors under the
Articles) and for such period and subject to such conditions as they may think fit, and any such
powers of attorney or other appointment may contain such provisions for the protection and
convenience of persons dealing with any such attorneys or authorized signatories as the
Directors may think fit and may also authorize any such attorney or authorized signatory to
delegate all or any of the powers, authorities and discretions vested in him.
The Directors may appoint such Officers as they consider necessary on such terms, at such
remuneration and to perform such duties, and subject to such provisions as to disqualification
and removal as the Directors may think fit. Unless otherwise specified in the terms of his
appointment an Officer may be removed by resolution of the Directors or Members. An Officer
may vacate his office at any time if he gives notice in writing to the Company that he resigns
his office.
No Minimum Shareholding
The Company in general meeting may fix a minimum shareholding required to be held by a Director, but unless and until such a shareholding qualification is fixed a Director is not required to hold Shares.
119495761 v5
39
37
37.1
37.2
38
38.1
38.2
38.3
39
39.1
39.2
Remuneration of Directors
The remuneration to be paid to the Directors, if any, shall be such remuneration as the Directors shall determine. The Directors shall also be entitled to be paid all travelling, hotel and other expenses properly incurred by them in connection with their attendance at meetings of Directors or committees of Directors, or general meetings of the Company, or separate meetings of the holders of any class of Shares or debentures of the Company, or otherwise in connection with the business of the Company or the discharge of their duties as a Director, or to receive a fixed allowance in respect thereof as may be determined by the Directors, or a combination partly of one such method and partly the other.
The Directors may by resolution approve additional remuneration to any Director for any
services which in the opinion of the Directors go beyond his ordinary routine work as a Director.
Any fees paid to a Director who is also counsel, attorney or solicitor to the Company, or
otherwise serves it in a professional capacity shall be in addition to his remuneration as a
Director.
Seal
The Company may, if the Directors so determine, have a Seal. The Seal shall only be used by the authority of the Directors or of a committee of the Directors authorized by the Directors. Every instrument to which the Seal has been affixed shall be signed by at least one person who shall be either a Director or some Officer or other person appointed by the Directors for the purpose.
The Company may have for use in any place or places outside the Cayman Islands a duplicate
Seal or Seals each of which shall be a facsimile of the common Seal of the Company and, if
the Directors so determine, with the addition on its face of the name of every place where it is
to be used.
A Director or Officer, representative or attorney of the Company may without further authority
of the Directors affix the Seal over his signature alone to any document of the Company
required to be authenticated by him under seal or to be filed with the Registrar of Companies
in the Cayman Islands or elsewhere wheresoever.
Dividends, Distributions and Reserve
Subject to the Statute and this Article and except as otherwise provided by the rights attached to any Shares, the Directors may resolve to pay Dividends and other distributions on Shares in issue and authorize payment of the Dividends or other distributions out of the funds of the Company lawfully available therefor. A Dividend shall be deemed to be an interim Dividend unless the terms of the resolution pursuant to which the Directors resolve to pay such Dividend specifically state that such Dividend shall be a final Dividend. No Dividend or other distribution shall be paid except out of the realized or unrealized profits of the Company, out of the share premium account or as otherwise permitted by law.
Except as otherwise provided by the rights attached to any Shares, all Dividends and other
distributions shall be paid according to the par value of the Shares that a Member holds. If any
Share is issued on terms providing that it shall rank for Dividend as from a particular date, that
Share shall rank for Dividend accordingly.
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40
39.3
39.4
39.5
39.6
39.7
39.8 39.9
40
The Directors may deduct from any Dividend or other distribution payable to any Member all sums of money (if any) then payable by him to the Company.
The Directors may resolve that any Dividend or other distribution be paid wholly or partly by
the distribution of specific assets and in particular (but without limitation) by the distribution of
shares, debentures, or securities of any other company or in any one or more of such ways
and where any difficulty arises in regard to such distribution, the Directors may settle the same
as they think expedient and in particular may issue fractional Shares and may fix the value for
distribution of such specific assets or any part thereof and may determine that cash payments
shall be made to any Members upon the basis of the value so fixed in order to adjust the rights
of all Members and may vest any such specific assets in trustees in such manner as may seem
expedient to the Directors.
Except as otherwise provided by the rights attached to any Shares, Dividends and other
distributions may be paid in any currency. The Directors may determine the basis of conversion
for any currency conversions that may be required and how any costs involved are to be met.
The Directors may, before resolving to pay any Dividend or other distribution, set aside such
sums as they think proper as a reserve or reserves which shall, at the discretion of the
Directors, be applicable for any purpose of the Company and pending such application may,
at the discretion of the Directors, be employed in the business of the Company.
Any Dividend, other distribution, interest or other monies payable in cash in respect of Shares
may be paid by wire transfer to the holder or by cheque or warrant sent through the post
directed to the registered address of the holder or, in the case of joint holders, to the registered
address of the holder who is first named on the Register of Members or to such person and to
such address as such holder or joint holders may in writing direct. Every such cheque or
warrant shall be made payable to the order of the person to whom it is sent. Any one of two or
more joint holders may give effectual receipts for any Dividends, other distributions, bonuses,
or other monies payable in respect of the Share held by them as joint holders.
No Dividend or other distribution shall bear interest against the Company.
Any Dividend or other distribution which cannot be paid to a Member and/or which remains
unclaimed after six months from the date on which such Dividend or other distribution becomes
payable may, in the discretion of the Directors, be paid into a separate account in the
Company's name, provided that the Company shall not be constituted as a trustee in respect
of that account and the Dividend or other distribution shall remain as a debt due to the Member.
Any Dividend or other distribution which remains unclaimed after a period of two years from
the date on which such Dividend or other distribution becomes payable shall be forfeited and
shall revert to the Company.
Capitalization
The Directors may at any time capitalize any sum standing to the credit of any of the Company's reserve accounts or funds (including the share premium account and capital redemption reserve fund) or any sum standing to the credit of the profit and loss account or otherwise available for distribution; appropriate such sum to Members in the proportions in which such sum would have been divisible amongst such Members had the same been a distribution of profits by way of Dividend or other distribution; and apply such sum on their behalf in paying up in full unissued Shares for allotment and distribution credited as fully paid- up to and amongst them in the proportion aforesaid. In such event the Directors shall do all
119495761 v5
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41
41.1
41.2
41.3
42
42.1
42.2
42.3 42.4
acts and things required to give effect to such capitalization, with full power given to the Directors to make such provisions as they think fit in the case of Shares becoming distributable in fractions (including provisions whereby the benefit of fractional entitlements accrue to the Company rather than to the Members concerned). The Directors may authorize any person to enter on behalf of all of the Members interested into an agreement with the Company providing for such capitalization and matters incidental or relating thereto and any agreement made under such authority shall be effective and binding on all such Members and the Company.
Books of Account
The Directors shall cause proper books of account (including, where applicable, material underlying documentation including contracts and invoices) to be kept with respect to all sums of money received and expended by the Company and the matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities of the Company. Such books of account must be retained for a minimum period of five years from the date on which they are prepared. Proper books shall not be deemed to be kept if there are not kept such books of account as are necessary to give a true and fair view of the state of the Company's affairs and to explain its transactions.
The Directors shall determine whether and to what extent and at what times and places and
under what conditions or regulations the accounts and books of the Company or any of them
shall be open to the inspection of Members not being Directors and no Member (not being a
Director) shall have any right of inspecting any account or book or document of the Company
except as conferred by Statute or authorized by the Directors or by the Company in general
meeting.
The Directors may cause to be prepared and to be laid before the Company in general meeting
profit and loss accounts, balance sheets, group accounts (if any) and such other reports and
accounts as may be required by law.
Audit
The Directors may appoint an Auditor of the Company who shall hold office on such terms as the Directors determine.
Without prejudice to the freedom of the Directors to establish any other committee, if the
Shares are listed or quoted on the Designated Stock Exchange, and if required by the rules
and regulations of the Designated Stock Exchange, the Ontario Securities Commission and/or
any other competent regulatory authority or otherwise under Applicable Law, the Directors
shall establish and maintain an Audit Committee as a committee of the Directors and shall
adopt a formal written Audit Committee charter and review and assess the adequacy of the
formal written charter on an annual basis. The composition and responsibilities of the Audit
Committee shall comply with the rules and regulations of the Designated Stock Exchange, the
Ontario Securities Commission and/or any other competent regulatory authority or otherwise
under Applicable Law. The Audit Committee shall meet at least once every financial quarter,
or more frequently as circumstances dictate.
The remuneration of the Auditor shall be fixed by the Audit Committee (if one exists).
If the office of Auditor becomes vacant by resignation or death of the Auditor, or by his
becoming incapable of acting by reason of illness or other disability at a time when his services
119495761 v5
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42.5
42.6
42.7
43
43.1
43.2
are required, the Directors shall fill the vacancy and determine the remuneration of such Auditor.
Every Auditor of the Company shall have a right of access at all times to the books and
accounts and vouchers of the Company and shall be entitled to require from the Directors and
Officers such information and explanation as may be necessary for the performance of the
duties of the Auditor.
Auditors shall, if so required by the Directors, make a report on the accounts of the Company
during their tenure of office at the next annual general meeting following their appointment in
the case of a company which is registered with the Registrar of Companies as an ordinary
company, and at the next extraordinary general meeting following their appointment in the
case of a company which is registered with the Registrar of Companies as an exempted
company, and at any other time during their term of office, upon request of the Directors or
any general meeting of the Members.
Any payment made to members of the Audit Committee (if one exists) shall require the review
and approval of the Directors, with any Director interested in such payment abstaining from
such review and approval.
Notices
Notices shall be in writing and may be given by the Company to any Member either personally or by sending it by courier, post, cable, telex, fax or e-mail to him or to his address as shown in the Register of Members (or where the notice is given by e-mail by sending it to the e-mail address provided by such Member). Notice may also be served by Electronic Communication in accordance with the rules and regulations of the Designated Stock Exchange, the Ontario Securities Commission and/or any other competent regulatory authority or by placing it on the Company's Website.
Where a notice is sent by:
(1)
(2)
(3)
(4)
courier; service of the notice shall be deemed to be effected by delivery of the notice
to a courier company, and shall be deemed to have been received on the third day
(not including Saturdays or Sundays or public holidays) following the day on which the
notice was delivered to the courier;
post; service of the notice shall be deemed to be effected by properly addressing, pre
paying and posting a letter containing the notice, and shall be deemed to have been
received on the fifth Business Day following the day on which the notice was posted;
cable, telex or fax; service of the notice shall be deemed to be effected by properly
addressing and sending such notice and shall be deemed to have been received on
the same day that it was transmitted;
e-mail or other Electronic Communication; service of the notice shall be deemed to be
effected by transmitting the e-mail to the e-mail address provided by the intended
recipient and shall be deemed to have been received on the same day that it was sent,
and it shall not be necessary for the receipt of the e-mail to be acknowledged by the
recipient; and
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43.3
43.4
44
44.1
44.2
(5)
placing it on the Company's Website; service of the notice shall be deemed to have been effected one hour after the notice or document was placed on the Company's Website.
A notice may be given by the Company to the person or persons which the Company has been
advised are entitled to a Share or Shares in consequence of the death or bankruptcy of a
Member in the same manner as other notices which are required to be given under the Articles
and shall be addressed to them by name, or by the title of representatives of the deceased, or
trustee of the bankrupt, or by any like description at the address supplied for that purpose by
the persons claiming to be so entitled, or at the option of the Company by giving the notice in
any manner in which the same might have been given if the death or bankruptcy had not
occurred.
Notice of every general meeting shall be given in any manner authorized by the Articles to
every holder of Shares carrying an entitlement to receive such notice on the record date for
such meeting except that in the case of joint holders the notice shall be sufficient if given to
the joint holder first named in the Register of Members and every person upon whom the
ownership of a Share devolves by reason of his being a legal personal representative or a
trustee in bankruptcy of a Member where the Member but for his death or bankruptcy would
be entitled to receive notice of the meeting, and no other person shall be entitled to receive
notices of general meetings.
Winding Up
If the Company shall be wound up, the liquidator shall apply the assets of the Company in satisfaction of creditors' claims in such manner and order as such liquidator thinks fit. Subject to the rights attaching to any Shares (including rights of holders of Class A Subordinated Voting Shares to the escrowed funds in the Escrow Account), in a winding up:
(1)
(2)
if the assets available for distribution amongst the Members shall be insufficient to
repay the whole of the Company's issued share capital, such assets shall be
distributed so that, as nearly as may be, the losses shall be borne by the Members in
proportion to the par value of the Shares held by them; or
if the assets available for distribution amongst the Members shall be more than
sufficient to repay the whole of the Company's issued share capital at the
commencement of the winding up, the surplus shall be distributed amongst the
Members in proportion to the par value of the Shares held by them at the
commencement of the winding up subject to a deduction from those Shares in respect
of which there are monies due, of all monies payable to the Company for unpaid calls
or otherwise.
If the Company shall be wound up the liquidator may, subject to the rights attaching to any
Shares (including rights of holders of Class A Subordinated Voting Shares to the escrowed
funds in the Escrow Account) and with the approval of a Special Resolution of the Company
and any other approval required by the Statute, divide amongst the Members in kind the whole
or any part of the assets of the Company (whether such assets shall consist of property of the
same kind or not) and may for that purpose value any assets and determine how the division
shall be carried out as between the Members or different classes of Members. The liquidator
may, with the like approval, vest the whole or any part of such assets in trustees upon such
trusts for the benefit of the Members as the liquidator, with the like approval, shall think fit, but
so that no Member shall be compelled to accept any asset upon which there is a liability.
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45
45.1
45.2
45.3
46
47
47.1
47.2
Indemnity and Insurance
Every Director and Officer (which for the avoidance of doubt, shall not include auditors of the Company), together with every former Director and former Officer (each an “Indemnified Person”) shall be indemnified out of the assets of the Company against any liability, action, proceeding, claim, demand, costs, damages or expenses, including legal expenses, whatsoever which they or any of them may incur as a result of any act or failure to act in carrying out their functions other than such liability (if any) that they may incur by reason of their own actual fraud, willful neglect or willful default. No Indemnified Person shall be liable to the Company for any loss or damage incurred by the Company as a result (whether direct or indirect) of the carrying out of their functions unless that liability arises through the actual fraud, willful neglect or willful default of such Indemnified Person. No person shall be found to have committed actual fraud, willful neglect or willful default under this Article unless or until a court of competent jurisdiction shall have made a finding to that effect. For greater certainty, the escrowed funds in the Escrow Account will not be accessible to cover any of the foregoing indemnities under this Article 45.
The Company shall advance to each Indemnified Person reasonable attorneys' fees and other
costs and expenses incurred in connection with the defence of any action, suit, proceeding or
investigation involving such Indemnified Person for which indemnity will or could be sought. In
connection with any advance of any expenses hereunder, the Indemnified Person shall
execute an undertaking to repay the advanced amount to the Company if it shall be determined
by final judgment or other final adjudication that such Indemnified Person was not entitled to
indemnification pursuant to this Article. If it shall be determined by a final judgment or other
final adjudication that such Indemnified Person was not entitled to indemnification with respect
to such judgment, costs or expenses, then such party shall not be indemnified with respect to
such judgment, costs or expenses and any advancement shall be returned to the Company
(without interest) by the Indemnified Person.
The Directors, on behalf of the Company, may purchase and maintain insurance for the benefit
of any Director or Officer against any liability which, by virtue of any rule of law, would otherwise
attach to such person in respect of any negligence, default, breach of duty or breach of trust
of which such person may be guilty in relation to the Company.
Financial Year
Unless the Directors otherwise prescribe, the financial year of the Company shall end on 31st March in each year and, following the year of incorporation, shall begin on 1st April in each year.
Transfer by Way of Continuation
If the Company is exempted as defined in the Statute, it shall, subject to the provisions of the Statute and with the approval of a Special Resolution, have the power to register by way of continuation as a body corporate under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands.
Prior to the closing a Qualifying Acquisition, Article 47.1 may only be amended by a Special
Resolution which shall include the affirmative vote of a simple majority of the Class B Shares.
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48
49
49.1
Mergers and Consolidations
The Company shall have the power to merge or consolidate with one or more other constituent companies (as defined in the Statute) upon such terms as the Directors may determine and (to the extent required by the Statute) with the approval of a Special Resolution.
Advance Notice Provisions
Nomination of Directors
(1)
(a)
(b)
Subject only to the Statute and these Articles, only persons who are nominated in
accordance with the procedures set out in this Article 49 shall be eligible for election
as Directors. Nominations of persons for election as Directors may only be made at an
annual meeting of Members, or at an extraordinary general meeting of Members called
for any purpose at which the election of Directors is a matter specified in the notice of
meeting, as follows:
by or at the direction of the Directors or an authorized officer of the Company, including
pursuant to a notice of meeting; or
by any person entitled to vote at such meeting (a “Nominating Shareholder”), who:
(i)
(ii)
is, at the close of business on the date of giving notice provided for in this
Article 49 and on the record date for notice of such meeting, either entered in
the register of members the Company as a holder of one or more shares
carrying the right to vote at such meeting or who beneficially owns shares that
are entitled to be voted at such meeting and provides evidence of such
beneficial ownership to the Company; and
has given timely notice in proper written form as set forth in this Article 49.
(2)
Exclusive Means
For the avoidance of doubt, this Article 49 shall be the exclusive means for any person to bring
nominations for election of the Directors before any annual general meeting or extraordinary
general meeting of Members of the Company.
(3)
Timely Notice
In order for a nomination made by a Nominating Shareholder to be timely notice (a “Timely
Notice”), the Nominating Shareholder’s notice must be received by the corporate secretary of
the Company at the principal executive offices or Registered Office of the Company:
(a)
in the case of an annual general meeting of Members (including an annual general
and extraordinary general meeting), not later than 5:00 p.m. (Toronto time) on the 30th
day before the date of the meeting; provided, however, if the first public announcement
made by the Company of the date of the meeting (each such date being the “Notice
Date”) is less than 50 days before the meeting date, notice by the Nominating
Shareholder may be given not later than the close of business on the 15th day following
the Notice Date; and
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(b)
in the case of an extraordinary general meeting (which is not also an annual general meeting) of Members called for any purpose which includes the election of the Directors, not later than the close of business on the 15th day following the Notice Date,
provided that, in either instance, if notice-and-access (as defined in National Instrument 54-
101 - Communication with Beneficial Owners of Securities of a Reporting Issuer) is used for
delivery of proxy related materials in respect of a meeting described in Article 49.1(3)(a) or
Article 49.1(3)(b), and the Notice Date in respect of the meeting is not less than 50 days before
the date of the applicable meeting, the notice must be received not later than the close of
business on the 40th day before the date of the applicable meeting.
(4)
Proper Form of Notice
(a)
as to each person whom the Nominating Shareholder proposes to nominate for
election as a Director (a “Proposed Nominee”):
(i)
(ii)
(iii)
(iv)
(v)
(vi)
the name, age, business and residential address of the Proposed Nominee;
the principal occupation/business or employment of the Proposed Nominee,
both presently and for the past five years;
the number of securities of each class of securities of the Company or any of
its subsidiaries beneficially owned, or controlled or directed, directly or
indirectly, by the Proposed Nominee, as of the record date for the meeting of
Members (if such date shall then have been made publicly available and shall
have occurred) and as of the date of such notice;
full particulars of any relationships, agreements, arrangements or
understandings (including financial, compensation or indemnity related)
between the Proposed Nominee and the Nominating Shareholder, or any
affiliates or associates of, or any person or entity acting jointly or in concert
with, the Proposed Nominee or the Nominating Shareholder;
any other information that would be required to be disclosed in a dissident
proxy circular or other filings required to be made in connection with the
solicitation of proxies for election of directors pursuant to the Statute or
applicable securities law; and
a written consent of each Proposed Nominee to being named as nominee and
certifying that such Proposed Nominee is not disqualified from acting as
director under the provisions of the Statute; and
(b)
as to each Nominating Shareholder giving the notice, and each beneficial owner, if
any, on whose behalf the nomination is made:
(i)
their name, business and residential address;
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(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
the number of securities of the Company or any of its subsidiaries beneficially owned, or controlled or directed, directly or indirectly, by the Nominating Shareholder or any other person with whom the Nominating Shareholder is acting jointly or in concert with respect to the Company or any of its securities, as of the record date for the meeting of Members (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice;
their interests in, or rights or obligations associated with, any agreement,
arrangement or understanding, the purpose or effect of which is to alter,
directly or indirectly, the person’s economic interest in a security of the
Company or the person’s economic exposure to the Company;
any relationships, agreements or arrangements, including financial,
or
arrangements, between the Nominating Shareholder or any affiliates or
associates of, or any person or entity acting jointly or in concert with, the
Nominating Shareholder and any Proposed Nominee;
full particulars of any proxy, contract, relationship arrangement, agreement or
understanding pursuant to which such person, or any of its affiliates or
associates, or any person acting jointly or in concert with such person, has any
interests, rights or obligations relating to the voting of any securities of the
Company or the nomination of Directors;
a representation that the Nominating Shareholder is a holder of record of
securities of the Company, or a beneficial owner, entitled to vote at such
meeting, and intends to appear in person or by proxy at the meeting to propose
such nomination;
a representation as to whether such person intends to deliver a proxy circular
and/or form of proxy to any shareholder of the Company in connection with
such nomination or otherwise solicit proxies or votes from Members of the
Company in support of such nomination; and
any other information relating to such person that would be required to be
included in a dissident proxy circular or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to the
Statute or as required by applicable securities law.
compensation
and
indemnity
related
relationships,
agreements
Reference to “Nominating Shareholder” in this Article 49 shall be deemed to refer to each
shareholder that nominated or seeks to nominate a person for election as Director in the case
of a nomination proposal where more than one shareholder is involved in making the
nomination proposal.
(5)
Currency of Nominee Information
All information to be provided in a Timely Notice pursuant to this Article 49 shall be provided
as of the date of such notice. The Nominating Shareholder shall provide the Company with an
update to such information forthwith so that it is true and correct in all material respects as of
the date that is 10 Business Days before the date of the meeting, or any adjournment or
postponement thereof.
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(6)
Delivery of Information
Notwithstanding any other provision of these Articles, any notice, or other document or
information required to be given to the corporate secretary pursuant to this Article 49 may only
be given by personal delivery or courier (but not by fax or email) to the corporate secretary at
the address of the principal executive offices or Registered Office of the Company and shall
be deemed to have been given and made on the date of delivery if it is a Business Day and
the delivery was made prior to 5:00 p.m. (Toronto time) and otherwise on the next Business
Day.
(7)
Defective Nomination Determination
The chairperson of any meeting of Members of the Company shall have the power to
determine whether any proposed nomination is made in accordance with the provisions of this
Article 49, and if any proposed nomination is not in compliance with such provisions, must as
soon as practicable following receipt of such nomination and prior to the meeting declare that
such defective nomination shall not be considered at any meeting of Members.
(8)
Failure to Appear
Despite any other provision of this Article 49, if the Nominating Shareholder (or a qualified
representative of the Nominating Shareholder) does not appear at the meeting of Members of
the Company to present the nomination, such nomination shall be disregarded,
notwithstanding that proxies in respect of such nomination may have been received by the
Company.
(9)
Waiver
The Directors may, in their sole discretion, waive any requirement in this Article 49.
(10)
Definitions
For the purposes of this Article 49, “public announcement” means disclosure in a press
release disseminated by the Company through a national news service in Canada, or in a
document filed by the Company for public access under its profile on the System of Electronic
Document Analysis and Retrieval at www.sedarplus.ca.
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49.2
49.3
49.4
Exclusive Jurisdiction Unless the Company consents in writing to the selection of an alternative forum, the courts of
the Cayman Islands (or with the Company’s consent, the courts of the Province of Ontario)
and the appellate Courts therefrom (collectively, the “Courts”) shall, to the fullest extent
permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding
brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary
duty owed by any Director or Officer of the Company to the Company, (iii) any action asserting
a claim arising pursuant to any provision of the Statute or the articles of the Company (as may
be amended from time to time); or (iv) any action asserting a claim otherwise related to the
relationships among the Company, its affiliates and their respective Members, directors and/or
officers, but this paragraph (iv) does not include claims related to the business carried on by
the Company or such affiliates. If any action, the subject matter of which is within the scope of
the preceding sentence, is filed in a court other than the a court of the Cayman Islands (a
“Foreign Action”) in the name of any registered or beneficial shareholder, such registered or
beneficial shareholder shall be deemed to have consented to (i) the personal jurisdiction of the
Courts in connection with any action brought in any such Court to enforce the foregoing
exclusive forum provision (an “Enforcement Action”), and (ii) having service of process made
upon such registered or beneficial shareholder in such Enforcement Action by service upon
such registered or beneficial shareholder’s counsel in Foreign Action as agent of the
shareholder.
Restrictions Regarding the Qualifying Acquisition
No further Class A Restricted Voting Shares or Class B Shares may be issued commencing
on the day following the closing of the Qualifying Acquisition. No Subordinate Voting Shares
or Multiple Voting Shares may be issued prior to the closing of the Qualifying Acquisition
except in connection with such closing.
Toronto Stock Exchange Restrictions
(1)
(a)
(b)
Notwithstanding anything to the contrary in these Articles, for as long as Shares of the
Company are listed on the Toronto Stock Exchange:
shares issued and outstanding by the Company shall be non-assessable and the
holders thereof shall not be liable to the Company or to its creditors in respect thereof;
a share shall not be issued until the consideration for the share is fully paid in money
or in property or past services that are not less in value than the fair equivalent of the
money that the Company would have received if the share had been issued for money.
In determining whether property or past services are the fair equivalent of money
consideration, the Directors may take into account reasonable charges and expenses
of organization and reorganization and payment for property and past services
reasonably expected to benefit the Company. For the purposes of this Article 49.4,
the term “property” does not include a promissory note, or a promise to pay, that is
made by a person to whom a share is issued or a party who does not deal at arm’s
length with a person to whom a share is issued. For the purposes of this Article 49.4,
parties do not deal at arm’s length where the parties to a transaction (i) act in concert
without separate interests or (ii) are under common control. Directors who vote for or
consent to a resolution authorizing the issue of a share for consideration other than
money are jointly and severally liable to the Company to make good any amount by
which the consideration received is less than the fair equivalent of the money that the
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Company would have received if the share had been issued for money on the date of the resolution.
Fractional Shares
The Company may issue its shares in fractional denominations and deal with such fractions to
the same extent as its whole shares and shares in fractional denominations shall have in
proportion to the respective fractions represented thereby all of the rights of whole shares
including (but without limiting the generality of the foregoing) the right to vote, to receive
dividends and distributions and to participate in a winding-up.
________________________
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